P. v. Turner





















Filed 1/23/13 P. v. Turner CA2/2

>

>

>

>

>

>

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

>









California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
TWO




>

THE PEOPLE, Plaintiff and Respondent, v. SEAN THOMAS TURNER, Defendant and Appellant.

B236483 (Los Angeles County Super. Ct. No. YA077615) ORDER MODIFYING OPINION AND DENYING REHEARING [CHANGE IN JUDGMENT]

THE COURT: *



It is
ordered that the opinion filed on January
8, 2013, be modified as
follows:

1. On page 13, the first full
paragraph beginning “Appellant acknowledges that proof of a traumatic injury”
is deleted and the following paragraph is inserted in its place:

“Appellant’s
contention that some
jurors could have voted to convict appellant of misdemeanor battery because
‘the prosecution had not proven the traumatic injury element of the Section
273.5 offense beyond a reasonable doubt,’ is without merit. The jury heard conflicting evidence and was
free to choose whether appellant’s application of force directly caused
Christina’s traumatic injuries or that the injuries were caused when he
attempted to remove the baby from her arms.
An instruction on misdemeanor battery was not warranted based on the
evidence presented. (>People v. Breverman (1998) 19 Cal.4th
142, 154.)”

2.
The DISPOSITION on page 17 is
modified to read as follows:

“The judgment is modified to
reflect that appellant is awarded 296 days presentence credit consisting of 148
days actual custody credit and 148 days of conduct credit. The clerk of the superior court is ordered to
prepare a corrected minute order of the sentencing hearing and an amended
abstract of judgment reflecting this change.
In all other respects, the judgment is affirmed.”

This
modification changes the judgment.

Appellant’s
petition for rehearing is denied.

* DOI TODD,
Acting P. J. ASHMANN-GERST,
J. CHAVEZ, J.