Filed 7/31/14 P. v. James CA4/3

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. DAVIA DAMANIQUE JAMES and ANDREW PAYNE, Defendants and Appellants. G049901 (Super. Ct. No. RIF1105740)

O P I N I O N

Appeal from a judgment of the Superior Court of Riverside County, /Bernard Schwartz, Judge. Affirmed as modified. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Davia Damanique James. Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant Andrew Payne. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistan t Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 After the death of her two-year-old son, Robert V., Davia Damanique James was convicted by a jury of second degr ee murder (Pen. Code, § 187, subd. (a); count 2) 1 and felony child endangerment with th e infliction of great bodily harm that results in a child’s death (§ § 273a, subd. (a), 12022.95; count 3). The trial court
sentenced James to an indeterminate term of 15 years to life on count 2, and stayed imposition of sentence on count 3 and the related enhancement. A separate jury convicted her live-in boyfriend, Andrew Payne, of second degree murder (count 1), illegal possession of Xanax (Health & Saf. Code, § 11350, subd. (a); count 4), fo rgery of a prescription for Xanax (Bus. & Prof. Code, § 4324, subd. (a); count 5), and child abus e resulting in death (§ 273ab; count 6). The trial court sentenced Payne to an indeterminate term of 25 years to life on count 6, plus a total consecutive determinate term of one year four months on counts 4 and 5. A sentence of 15 years to life was imposed on count 1, but the trial court stayed imposition of sentence pursuant to section 654. James challenges the sufficiency of th e evidence to prov e the second degree murder conviction under an implied malice th eory, and she claims the prosecution failed to prove she proximately caused Robert’s deat h. She also claims the court abused its discretion by denying her request for probation. Payne challenges the suffici ency of the evid ence to support the prescription forgery conviction, and he claims the tria l court violated section 654 by imposing a separate sentence for this crim e. He also claims the tria l court committed instructional error by limiting the applicability of evidence his was voluntary intoxi cated at the time of the crime. Finally, he claims the abstract of judgment does not accurately reflect the trial court’s sentence. The Attorney General conc edes the final issue, and we correct the

1 All further statutory references are to the Penal Code unless otherwise noted.3 abstract of judgment as requested. For reasons explained below, the judgment is
affirmed.
FACTS
1

. 911 Call
Around 4:00 a.m. on the morning of November 9, 2011, firefighter paramedics Gabriel Lopez and Gary Roglin responded to a 911 call from a residence shared by Payne, then 22-yea r-old James, James’s two sons , two-year-old Robert and one-year-old Jason V., and Andrea Partridge. Payne met the paramedics on the front porch of the residence, and he showed Lopez into a bedroom. Lopez saw Robert on th e bed. His mouth and eyes were partially open, and his tongue was sticking out. Lopez heard Robert gasp for air, but this could have been an involuntary resp onse known as agonal breathing. Lopez asked Payne and James what ha d happened to Robert, but neither responded. It appeared to Lopez they were apathetic and unconcerned because they were unemotional, unhelpful, and disinterested in Ro bert’s fate. After some amount of time, Payne said, “I can’t talk right now.” Eventually, James told Lopez that Robert had slipped and fallen in the bathroom on the morning of November 7. She was not at home because she had a doctor’s appointment. James had left Robert in Payne’s care. James also told Lopez that Robert had not been acting norm ally since the fall. In fact , he had been asleep for two days, and he had not eaten during that time period. When Lopez asked James why she had not taken Robert to the doctor, she said she thought he would get better on his own. Lopez ultimately found a pulse, but be cause Robert’s pupils were fixed, dilated, and unresponsive to light, Lopez knew Robert could have seve re brain damage, if not brain death. Robert was then transpor ted to the hospital. During the trip, Lopez noticed a scab on Robert’s lower lip, a smal l bump on the bridge of his nose, and a small4 bump on his forehead, but there was no movement and Robert never regained consciousness. He died two days later. Banning Police Officer Brian Callaha n observed James at the emergency room. In the two hours he watched her, Ca llahan saw James texting or talking on the phone, but she did not appear emotional or concerned for Robert’s welfare. She asked Callahan why he was at the emergency room. Callahan told her it was to conduct an investigation into the cause of Robert’s inju ries. James asked how long that would take,
but did not ask about he r son’s condition. 2. Medical Testimony On November 10, Dr. Amy Young, a board certified child abuse pediatrician, examined Robert at the hosp ital. She noted the following superficial injuries: (1) curvilinear abrasions consistent with finger scratches and scars on his chest; (2) a contusion and laceration or Robert’s lower lip, which was consistent with blunt force trauma to his mouth; (3 ) curvilinear abrasions consistent with fingernail scratches, or being grabbed with fingerna ils, on his neck; (4) a faint brui se on the forehead; (5) a red bruising on the edge of Robert’s left ear which was consistent with child abuse; (6)
bruises on Robert’s midback and upper buttocks, and scars on his buttocks; and (7) a circular scar consistent with a cigare tte or cigar burn on his right shoulder. A bone scan disclosed three compre ssion fractures in Robert’s thoracic spine, a type of injury consis tent with an impact to the t op of his head severe enough to compress the vertebra, or by violent back an d forth movement. Young also noticed blood
in the area of the fractures. A CT scan of Robert’s abdomen show ed swelling and blood
in the connective tissue around the intestines , which was consistentwith multiple, bluntforce impacts to the abdomen and kidneys. A CT scan of Robert’s brain showed severe global injury, which indicated that Robert ’s head had been subjected to repetitive acceleration—deceleration impact injuries. Plus, his brain was swollen with subdural hemorrhaging, which is also consistent w ith non-accidental tr auma. Young opined5 Robert’s injuries were not accidental. She also testified his injuries were consistent with
child abuse. She stated the cause of Robert ’s death was blunt-forc e trauma to the head. According to Dr. Young, Robert’s blood acetone level of 66 milligrams per
milliliter and his sodium levels indicated he had severed from dehydra tion. In Robert’s preautopsy photographs he look ed “wasted,” i.e., his ribs were prominent, his stomach sunken, and his extremities thin. Young opine d that by the time the paramedics arrived, Robert was dehydrated and malnourished, wh ich when coupled with his other injuries, proved fatal. Young opined the lack of medical care for two full days was a substantial factor in Robert’s death. Although she co uld not state for certain whether early medical intervention would have saved Robert’s life, she did say such care would have greatly
increased his su rvival chances. On November 14, Dr. Ch o Lwin, a deputy medical examiner and specialist in neuropathology, conducted Robert’s autopsy. Lwin concluded Robert died as the result of multiple blunt-force impacts to the head, which caused swe lling, herniation and hypoxic-ischemic encephalopathy, a conditi on where there is no blood and therefore no oxygen going to the brain.
Lwin testified Robert’s brain was sw ollen and enlarged, and there had been two types of hemorrhages. The first was acute and probably happened within one to six days of his death. The other appeared to be from an injury about a month before death. He also stated that having di fficulty breathing would be cons istent with the brain stem being pushed down through the spinal column. In all, Lwin saw 10 areas of impact on Robert’s skill, and he opined all 10 cont usions and the resulti ng hemorrhages occurred within three days of death. Lwin also test ified Robert might have been save if he had
been taken to the ho spital at the time of his injuries. 3. Defendants’ Pretrial Statements
Detective Robert Fisher interviewe d James and Payne during the morning
of November 9. James adm itted her pregnancy with Robert was unwanted and Payne had6 a bad temper, but she denied seeing Payne a busing or hurting Robert. She did not know what happened to Robert, but she said Payne loved the children and would never hurt them, although she admitted Robert did not lik e Payne. James also said the last time Robert had seen his pediatrician, the doct or told her Robert was healthy, growing normally, and very active. James explained to Fisher that on Mo nday, November 7, she left her home around 9:00 a.m. to go to a prenatal doctor’s appointment. She left Robert with Payne and Jason with Payne’s mother. Before James got to the doc tor’s office, Payne called to tell her Robert was having a temper tantrum, he would not stop crying, and he might need to see a child psychiatrist.
When James arrived home that aftern oon, she found Robert asleep on the
floor of his room. James told Fisher she thought Robert was just tired. The next morning, however, Payne, with tears in his ey es, told James that Robert had slipped and
fallen in the bathroom and hit his head on the tile floor. Later, Payne claimed he did not know what happened to Robert . James said she was upset by this information, but she did not think Payne was faking memory loss.
James went into the room where Robe rt was sleeping and checked on him. She noticed a swollen right eye and lip, but his skin felt normal and he did not appear to be having seizures or spasms. However, James could not awaken Robert. She told Fisher that when she tried to give Robert Ty lenol and water, he was not able to take the
medicine. James said Robert would look at her, but he did make a sound, stand, or respond to light. James said she knew so mething was wrong with Robert, but she thought he would get better on his own. According to James, Robert slept a ll day Tuesday the 8th of November. However, she did not call for medical help, no t even after Payne suggested taking Robert to the hospital. James stated she believed Robert just ne eded to sleep, and doctors would7 tell her it was nothing. She said Robert had sl ept for long periods of time before, e.g., 18 hours on one occasion, a nd been fine afterward. Around 7:00 p.m. on November 8th, James tried to give Robert a bath, but his body was stiff and he would not sit up. After Robert defecated in the bathtub, James cleaned him up and put him back to bed. Pa yne again told her to call 911, but Robert seemed responsive to James and so she did not make the call. After 24 hours, James
realized Robert was unconscious. Neverthe less, she still would not call 911. She finally
called 911 at 3:30 a.m. on Nove mber 9 when she realized Robert was having trouble breathing. Payne told Fisher he was watching R obert while James went to her doctor’s appointment. During the afte rnoon, he saw Robert run into the bathroom and heard him slip and hit his head on the floor. He saw Robert’s eyes roll back and his body go stiff, but he decided to just put Robert in his room and let him sleep it off. The next morning, Payne thought they should call 911, but James said it was not necessary. He knew Robert did not eat or move the entirety of Novemb er 9, but they waited to call 911 until the following morning. Payne also told Fisher he had ta ken Xanax and codeince cough syrup the day of Robert’s fall. He also smoked marijuana. At one po int, Payne said he could not remember exactly what happened to Robert , but he thought perhaps he had dropped
Robert while he carried him into the bathr oom. Then, Payne claimed everything he said
had been a lie and he had no memory of November 7. During his incarceration, Payne sent le tters to James. In one letter, he asked if there was “anything [he] could do for [James] to forgive [him].” In another letter, Payne admitted ruining their family and their life together, and he asked for forgiveness “so we can get past this, get ma rried, and have as ma ny children as you can pump out.” In a third letter, he admitted bei ng “the sole reason for everything that has happened.”8 4. Defense Evidence James’s mother testified her grands on was healthy, with a good appetite,
but that he was thin. She believed James wa s a devoted mother, and she trusted Payne with her grandson.
James called two other ch aracter witnesses to testify she was a devoted and caring mother who they would never suspec t of child abuse and an unemotional person by nature.
5

. Rebuttal Partridge, the defendants’ roommate, testified she had taken a shower on November 7, but she did not re member leaving water on the bathroom floor. She also testified she had seen Payn e drink codeine cough syrup, take Xanax, and smoke marijuana on other occasions, but that he did not appear to be under the influence of any
of these substances when she saw him on Novemb er 7. In fact, she testified he acted like a “normal, sober-type person” that day. 6. Prescription Drug Forgery On November 9, 2011, Fisher search ed the defendants’ home. In Payne’s bedroom, Fisher discovered 13 empty bottles of cough syrup in a storage space in the
closet. He also found a briefcase in the ro om. The briefcase contained prescriptions for various drugs in the names of several different people. One of the prescriptions was in Payne’s name, and it was for o xycodone and a cough syrup made with Codeine. Fisher also found an envelope with the word Xanax written on it, and Payne threw a prescription bottle containing one Xanax at Fisher during the search. At trial, Dr. Harry Web, a family prac tice physician with a clinic in Colton, California, testified the prescription form used to write the one prescription found in in Payne’s name came from his office. Howe ver, neither the writing, nor the signature on the form was his, and he testified he di d not recognize Payne and had never written a prescription for him.9 DISCUSSION
1. James’s Claims a. Sufficiency of the Evidence James claims the evidence is legally insufficient to support the second degree murder conviction on an implied malice theory. She asserts her “failing to seek prompt medical care for her son constituted gr eat neglect but, at the most, was criminal negligence. Thus, the greatest degree of cr iminal homicide established by the evidence was involuntary manslaughter.” We disagree. “In assessing the sufficiency of the ev idence, we review th e entire record in the light most favorable to the judgment to de termine whether it disclo ses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reas onable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no h ypothesis whatever is there sufficient substantial evidence to support [t he conviction].’ [Citation.]” ( People v. Bolin (1998) 18 Cal.4th 297, 331.) The prosecution argued James murdered Robert by either failing to seek medical care when it was clear he needed it, and/or by not giving him food and water
between November 7 and 9 of 2011. Mu rder is an unlawfu l killing with malice aforethought. (§ 187, subd . (a).) “Second degr ee murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements— i.e., willfulness, premeditation, and deliberatio n—that would support a conviction of first degree murder. [Citations.]” ( People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) “Malice, for the purpose of defining murder, may be express or implied. [Citation.] It is express ‘when there is manifested a deliberat e intention unlawfully to take away the life of a fellow creature.’ [Citation.] Implied malice is present ‘when no considerable provocation appears, or when the circumstan ces attending the killing show an abandoned and malignant heart.’ [Citations.]” ( Id. at pp. 102-103.)10 In keeping with the prosecution’s theo ry, the trial court in structed the jury on second degree murder under a theory of implied malice. CALCRIM No. 520 told the jury a conviction required proof beyond a reasonable doubt James intentionally committed an act, the natural a nd probable consequences of which were dangerous to human life, she knew of the danger when sh e acted, and she deliberately acted with conscious disregard for human life. If the jury found sufficient proof of these elements, then James was guilty of second degree murder.
The court also instructed the jury with CALCRIM No. 580, the instruction for the lesser offense of involuntary ma nslaughter. CALCRIM No. 580 states, in pertinent part, “When a person commits an unlawful killing but doe s not intend to kill and does not act with conscious disregard fo r human life, then the crime is involuntary manslaughter. [¶] The difference between ot her homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk.” James argues, “The question is whethe r appellant’s failure to provide her
child with medical assistance a nd/or food or water during [t he period 11-7-11 through 11- 9-11] was aggravated, culpable, gross or reckless negl ect incompatible with a proper regard for human life and thus involuntary ma nslaughter, or involved such a high degree of probability that it would re sult in death that it constitu ted conscious disregard for human life, making it second degree murder.” We believe the jury properly answered the question. James admitted she was aware of the inju ries to Robert’s lip and eye. After she got home, she knew he ha d not moved or made noise for nearly 24 hours. Many hours later, she noticed his bo dy become stiff when she tried to bathe him. Furthermore, on more than one occasion, Payne suggested sh e call an ambulance. James refused. Her
indifference to Robert’s hea lth was apparent to the paramedics who responded, and the police officer who observed he r at the emergency room. Thus, a rational jury could11 reasonably conclude James was aware of the se rious nature of Robert’s injuries, but she decided to ignore them until it wa s too late to save his life. James reliance on two cases, People v. Burden (1977) 72 Cal.App.3d 603 ( Burden ) and People v. Latham (2012) 203 Cal.App.4th 319 ( Latham ), is misplaced. In
Burden , the defendant’s son was born healthy and normal, but at the age of five months the child died of malnutrition and dehydration. The defendant argued his passive conduct was inadequate to establish ma lice aforethought. After reviewing several cases, the court
concluded an omission can be as malicious as any action. ( Burden , supra , 72 Cal.App.3d at p. 618.)
The court found substan tial evidence to support the conviction because the
defendant admitted he knew his son was star ving to death. As the court stated, “Defendant was obliged to con cede that for the last two week s of the victim’s life he could not remember his ‘getting anything to eat ever.’ The color photographs of the victim’s body were themselves sufficient to show that defendant must have appreciated that his baby was in a state of terminal starva tion. Add to this defendant’s statement that he did nothing about the child’s deplorable stat e, though he could have if he ‘had really wanted to,’ because he ‘just didn’t care.’” ( Burden , supra , 72 Cal.App.3d at p. 620.) Under these facts, the appellate court affi rmed the jury’s verdict of second degree murder. ( Id. at p. 621.)
In Latham, parents of a 17-year-old-girl, Na nette, were convicted of second degree murder after the girl died of diabetic ketoacidosis. ( Latham , supra , 203 Cal.App.4th at p. 324.) The appellate cour t looked at four categories of evidence and
concluded sufficient evidence supported the jury’s second degree murder conviction. The four types of evidence were: (1) th e obvious nature of Nanette’s physical deterioration in the days befo re her death, (2) the fact her parents were trained to recognize symptoms of diabetic ketoacidos is, (3) that various neighbors saw Nanette during the relevant time period and told her pare nts to seek medical help, and (4) the fact12 that parents’ emotional state and conduct ne ar the time of Nanette’s death indicated a certain lack of concern for Nanette’s well-being. ( Id. at pp. 328-332.) The appellate court stated, “Viewing th e cumulative impact of the evidence discussed above in the light most favorable to the prosecution, a rational trier of fact could have found that appellants were aware th at their failure to obtain medical treatment for Nanette endangered her life, and that they failed to obtain medical treatment for her in conscious disregard of that risk.” ( Latham , supra , 203 Cal.App.4th at pp. 331-332.) The court went on to note the most important si gn was her physical condition: “[E]vidence that Nanette displayed clearly visible signs of an extremely se rious medical condition supports the inference that appellants were aware of the life threatening nature of her condition. [Citations.]” ( Latham , supra , 203 Cal.App.4th at pp. 331-332.) In an attempt to distinguish her situ ation, James notes the obvious factual
differences between her case and Burden or Latham. Notwithstanding the varying facts involved, those cases are on point. Here, the evidence supports th e jury’s conclusion James knew and appreciated the severity of Robert’s injuries, but she consciously decided to do nothing to protect him. Even after Payne told her Robert had fallen and hit his head, she did nothing to en sure the fall caused no life-th reatening injuries. In fact,
James treated Robert’s condition as some t ype of normal childho od illness when it was apparent that was not the case, even to Payne . Moreover, she did nothing to ensure the accuracy of her belief in the face of substantia l evidence to the contrary . This is the very definition of second degr ee implied malice murder.
James also claims the ev idence is insufficient to pr ove proximate causation. She asserts, “This case presents a novel applic ation of causation because it deals with a failure to act; it is much mo re difficult to assess culpability in such a vacuum.” She claims the medical evidence does not sup port a conclusion her failure to act was a proximate cause of Robert’s death. Again, we disagree.13 The jury was instructed “An act caus es death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable c onsequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and prob able, consider all of the circumstances established by the evidence.” A reasonable person assessing Robert’s conditi on would have known medical intervention was necessary. Plus , the jury was told there may be more than one cause of death, so long as the act is a substantial fact or causing death, and “[a] parent has a legal duty to care for and or furnish nece ssary care and medical attention.” Here, it is undisputed James had a le gal duty to provide reasonable medical
care for Robert. Based on the medical testim ony, Robert’s injuries and behavior would have led a reasonable person to believe medical interventi on was necessary. But James ignored the obvious signs of Robert’s dist ress. Under these circumstances, it is objectively reasonable to believe James was aware her inaction created a substantial
likelihood of death or serious in jury. Of course, she did nothing to abate this risk. Thus, the jury reasonably concluded James’s failure to perform her duty as a parent to obtain medical care for a sick or injure d child was a substantial factor in Robert’s death. Thus, substantial evidence supports the verdict b. Trial Court’s Sentencing Discretion James requested the trial court grant probation, a request the trial court
denied. James claims the trial court abused its discretion by doing so . Again, we find her
contention meritless. A trial court has broad discretion to gr ant or deny probation, unless there is a statutory limitation. ( People v. Marquez (1983) 143 Cal.App.3d 797, 803.) The granting of probation is not a matter of right, but a discretionary choice. (See People v.
Main (1984) 152 Cal.App.3d 686, 693.) The trial court must state the factors which14 support the denial of probation and the sent encing of a defendant to state prison. ( People
v. Romero (1985) 167 Cal.App.3d 1148, 1151.) On review, “The grant or denial of probation is within the trial court’s discretion and the defendant bears a heavy burd en when attempting to show an abuse of that discretion.” ( People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) “‘[I]t is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order gr anting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all th e facts and circumstances.’” ( People v. Weaver (2007) 149 Cal.Ap p.4th 1301, 1311.) California Rules of Court, rule 4.414, lists criteria to be considered in granting or denying proba tion. (All subsequent references to rules are to the Cal. Rules of Court.) Here, the trial court cited the follo wing factors as reasons to deny probation: (1) rule 4.414(a)(1) (nature and circumst ances of crime); (2) rule 4.414(a)(3) (vulnerability of the victim); (3) rule 4.414(a)(4) (infliction of injury); (4) rule 4.414(a)(6) (active or passive participant); (5) rule 4.414(a)(9) (position of trust); and (6) rule 4.414(b)(8) (danger to others if not imprisoned). On appeal, James argues the trial court relied on improper factors and inaccurate or mistaken information, and the court failed to consider positive factors, like her youth, lack of prior record, and the unusu al circumstances of the case, when denying her request for probation. We are not persuaded. At the beginning of the sentencing hearin g, the trial court stated it had read and considered the probation o fficer’s report. The probation report recommended the court deny probation and sentence James to pris on. In support of a grant of probation, the report noted James was youthful and had no significant prior cr iminal record. The report
also listed the fact the crime was committe d without a weapon (ru le 4.414(a)(2)) and evidenced no particular crimin al sophistication (rule 4.4 14(a)(8)), as well as James’s willingness to comply with the conditions of probatio n (rule 4.414(b)(3), (4)) and the15 likely serious effects of prison on her (rule 4.414(b)(5)) as factors in support of probation. On the other hand, the report also listed nine factors supporting a de nial of probation,
which included the factors not ed by the court in denying James’s request and discussed by James on appeal. The problem with James’s argument is her steadfast refusal to view the evidence in any but the light most favorable to her position. She asserts her crime was not serious when compared to other crimes , she did not personally inflict Robert’s injuries, nor was she an activ e participant in the crime. She also claims the court erroneously believed she took advantage of a position of trust, and that she would be a danger to others if not imprisoned. However, these factors need only be established by a preponderance of the evidence ( People v. Leung (1992) 5 Cal.App.4t h 482, 506), and the evidence supports the trial court’s assessment. Furthermore, as the Attorney General points out, a single factor in aggravation provides a suffici ent basis for the trial court’s sentencing decision. ( People
v. Brown (2000) 83 Cal.App.4th 1037, 1043.) James does not even mention the vulnerability of the victim, wh ich was conclusively proven. Based on the facts of this case, we would not find an abuse of discreti on had the court relied on this factor alone in denying probation. In short, we reject James’s assignment of error in the trial court’s denial of her request for probation, and we conclude the trial court’s decision did not violate James’s right to due process of law.16 2

. Payne’s Claims a. Sufficiency of the Evidence Payne challenges the suffici ency of the ev idence to prove he forged a Xanax prescription. 2 The standard of review applicable to challenges to the sufficiency of the evidence has been previo usly stated: “In assessing the sufficiency of the evidence, we review the entire record in the light mo st favorable to the ju dgment to determine
whether it discloses evid ence that is reasonable, credible, and of solid value such that a
reasonable trier of fact coul d find the defendant guilty be yond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” ( People v. Bolin , supra , 18 Cal.4th at p. 331.) Substantial evidence supports the jury’s verdict.
Business and Professions Code sec tion 4324, subdivision (a) provides, “Every person who signs the name of another, or of a fictitious person, or falsely makes, alters, forges, utters, publishes, passes, or attempts to pass, as genuine, any prescription for any drugs is guilty of fo rgery and upon conviction ther eof shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or by imprisonment in a county jail for not more than one year.” 3 Payne asserts the unexplained posse ssion of prescription forms is not sufficient to prove forgery of a prescription. He relies on People v. Davis (1967) 66

2 Noting that his trial counsel conced ed guilt “‘on those two drug charges,’” Payne asserts that if his trial attorney’s concession forestalls his challenge to the sufficiency of the evid ence on appeal then he also rece ived ineffective assistance of counsel. We need not discu ss this issue in light of our resolution of the merits. 3 The court instructed the jury as follows: “The defe ndant is charged in Count 5 with forging or altering a prescription drug. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant forged or altered a prescription; [¶] AND [¶] 2. The pr escription was for a prescription drug.”17 Cal.2d 175 ( Davis ) and People v. McNamara (1951) 103 Cal.App.2d 729 ( McNamara ), but we find these cases inapposite.
In Davis, the defendant was a passenger in a car stopped by police for a traffic violation. ( People v. Davis , supra , 66 Cal.2d at p. 178.) When neither the defendant nor the driver of the car could prod uce identification, they were arrested and searched. ( Ibid. ) The police found seconal and a mar ijuana cigarette in the car. An investigation revealed the s econal had been purchased at a pharmacy in another town, using a forged prescription. ( Ibid. ) Both the driver of the car and the defendant made incriminating statements after their arrest s, which were introduced at trial. ( Ibid. ) The California Supreme Court reversed the judgme nts after concluding the statements of the
driver and the defendant were erroneousl y admitted into eviden ce, and without the
defendants’ statements the evidence was in sufficient to sustain the convictions. ( Id. at p. 182.) Other than the high lighting the importance of defe ndants’ statements, this case provides no insight as to the nature or qu antum of other evidence required to sustain a conviction for violating Business and Professions Code section 4324.
In McNamara , the defendant was convicted of conspiracy to commit check forgery. ( McNamara , supra , 103 Cal.App.2d at p. 731.) The defendant challenged the judgment by claiming the jury rendered an inconsistent verdict and thus an implied acquittal. ( Id. at p. 732.) The prosecution’s cas e against the defendant included the testimony of his coconspirators. ( Id. at p. 733.) Payne argues the coconspirators’ testimony provided the kind of corroborating evidence necessary to more than establish mere “shared constructive possession of the in strument. . . .” We do not necessarily agree with that assessment of the case, but assuming we did, it provides no guidance for
this case. Thus, it is unclear why Payne believes Davis and McNamra bolster his argument. As noted, neither is on point. Bu t regardless, the eviden ce adduced at trial demonstrates Payne unlawfully possessed prescription forms from a doctor who had18 never treated him. Payne’s briefcase, whic h contained multiple pres criptions, also held an envelope with the word “Xanax” written on it, as if so meone was practicing how to write the word, and Payne had a Xanax ta blet on his person. During one of his interviews, Payne admitted he had taken Xana x for years although he had never been prescribed the drug. We agree there is no direct evidence Payne altered a particular prescription form to obtain Xanax, but the circumstantial evidence leads to a reasonable inference Payne forged a prescription in vi olation of Business and Professions Code section 4324. Thus, the evidence is sufficient to sustain the conviction. Payne also argues the trial court viol ated section 654 by imposing sentence on the forgery and possession counts. As releva nt, section 654, subdivision (a), provides: “An act or omission that is punishable in di fferent ways by different provisions of law shall be punished under the provision that provides for th e longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Thus, the question is whether Pa yne’s “‘course of conduct . . . comprised a
divisible transaction which co uld be punished under more than one statut e within the meaning of section 654.’” ( Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 334.) The critical inquiry is “[w]hether a c ourse of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” ( Neal v. State of California , supra , 55 Cal.2d at p. 19, disapproved on other grounds in People v. Correa, supra, 54 Cal.4th at p. 334.) Payne claims he committed both crimes with the single objective of main taining his addiction. While the abuse of prescription medications could be consider ed his single objective, it is clear Payne
harbored an intent to obtain prescription medicine and a sepa rate intent to possess it. Consequently, the trial court appropriately im posed separate punishment for both crimes.19 b. Instructional Error While going over proposed jury instruc tions with counsel, the court stated, “Now, next is [CALCRIM No.] 580[ 4 ]. We had a rather lengthy discussion off the record as it related to involuntary manslaughter. Th e People’s theory, with respect to Mr. Payne, is, in essence, first, that the defendant commi tted the crime of first-degree murder with premeditation and deliber ation. They will be read vol untary intoxication, which we haven’t gotten to yet, but we’ll deal with that now, 625 of CALCRIM.[ 5 ] The court is going to give that but instruct the jury that it is only appl icable as to reduce the firstdegree to a second-degree murder. It would not be applicable to do anything else. So the Court will modify that instruction indicating that voluntary intoxica tion would only apply as to negate the premeditation and deliberation, and reduce the charge from first-degree to second-degree murder. [¶] . . . [¶] I am not going to inst ruct the jury as to how they are to consider both involuntary manslaughter an d voluntary intoxication.. . . . ” Payne did not object.

4 With respect to CALCRIM No. 580, th e trial court instructed the jury, in pertinent part, as follows: “When a pers on commits an unlawful killing but does not intend to kill, and does not act with conscious disregard for human life, the crime is then involuntary manslaughter. The differen ce between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created, and consciously disregarded that risk. An unlawful killing . . . caused by a willful act done wi th full knowledge and awareness that the person is endangering the life of another, and don e in conscious disregard of that risk, is involuntary [ sic ] manslaughter or murder. An un lawful killing resulting from a willful act committed without intent to kill, and without conscious disregard of the risk to human life is involuntary manslaughter.”

5 CALCLRIM No. 625 as given stated, “A person is voluntarily intoxicated if he or she becomes intoxicated by willingly usin g any intoxicating drug, drink, or other substance, knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not cons ider evidence of voluntary intoxication for any other purpose. You may not consider this evid ence as it relates to Counts, 4, 5, and 6. You may not consider this evidence of volunta ry intoxication to reduce a murder charge to involuntary manslaughter.”20 Payne claims the trial court comm itted prejudicial error by limiting the jury’s consideration of evid ence of voluntary intoxication to the difference between first and second degree murder, because voluntary intoxication can also be used to reduce murder to involuntary manslaughter. We disagree.
In People v. Turk (2008) 164 Cal.App.4th 1361 ( Turk ), the defendant
claimed instructional error because the trial cour t failed to instruct th e jury on involuntary manslaughter based on voluntary intoxication in a prosecution for first degree murder. After a lengthy discussion on the trial cour t’s duty to instruct a jury on involuntary manslaughter stemming from voluntary intoxica tion in the wake of the abolition of the diminished capacity defense and ame ndments to former section 22 ( id. at pp. 1371-1379),
the Turk court concluded, “It is no longer proper to instruct a jury, as Turk suggests, that ‘when a defendant, as a resu lt of voluntary intoxication, kills another human being without premeditation and deliberation and/or w ithout intent to kill (i.e. without express malice), the resultant crime is involuntary ma nslaughter.’ This instruction is incorrect because a defendant who unlawfully kills without express malice due to voluntary intoxication can still act with implied malice, which voluntary int oxication cannot negate,21 in the wake of the 1995 amendment to section 22, subdivision (b).” ( Id. at pp. 1376- 1377, fn. omitted.) 6 In fact, the Turk court explained that the Legislature’s 1995 amendment made evidence of “voluntary intoxication inad missible to negate implied malice in cases
in which a defendant is ch arged with murder.” ( Turk, supra, at pp. 1374-1375, citing People v. Timms (2007) 151 Cal.App.4th 1292, 12 98, review den. Sept. 19, 2007; People
v. Martin (2000) 78 Cal.App. 4th 1107, 1114-1115; People v. Reyes (1997) 52 Cal.App.4th 975, 984, fn. 6.)
Turk has not been overruled, and we agree with its reasoning and conclusion. However, we re we to assume for purposes of this discussion that the trial court should have instructed the jury that Payne’s voluntary intoxication may negate
express and implied malice, the error was harmless. The problem is that ev en viewed in the light most favorable to Payne ( People v. Stewart (2000) 77 Cal.App.4t h 785, 795-796), the evidence his voluntary intoxication rendered him unable to form expr ess or implied malice was weak at best.

6 Former section 22, subdivision (b), provided: “Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific inte nt, or, when charged with mu rder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.” The 1995 amendment added “express” befo re “malice aforethought.” (S tats. 1995, ch. 793, § 1.) In 2012, section 22 was renumbered to s ection 29.4 and amended. (Stats. 2012, ch. 162, § 119.) Section 29.4 states: “(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be adm itted to negate the capacity to form any mental states fo r the crimes charged, includin g, but not limited to, purpose, intent, knowledge, premeditation, deliberati on, or malice aforethought, with which the accused committed the act. [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the de fendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought. [¶ ] (c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance.”22 True, Payne claimed he ingested Xanax, co edine, and marijuana at the time Robert’s injuries likely occurred and he once told James he could not remember what happened, none of the witnesses observed obje ctive symptoms of intoxication. Payne gave James a clear explanation of Robert’s injuries at the time the injuries occurred, and James did not testify Pa yne seemed intoxicated when he called her. Nor did she say he appeared to be in any kind of state remo tely approaching unconscious
when she returned from he r doctor’s appointment. Moreover, neither the responding pa ramedic, nor Fisher, nor Partridge testified Payne exhibited signs of intoxication. In fact Partridge, the woman who lived with Payne and James and had s een Payne on a combination of drugs in the past, testified Payne appeared to be “normal, a sober-type person” on the day James left Robert in Payne’s care to attend a doctor’s appointment. Under the f acts presented in this case, which is one of the more egregious cases of child abuse and neglect we have seen, the error would be harmless beyond a reasonable doubt. ( People v. Larsen (2012) 205 Cal.App.4th 810, 829 [instructional e rror is generally subject to “‘the Chapman [ v. California (1967) 386 U.S. 18, 24] “beyond a reasonable doubt” standard for assessing prejudice’”].) And, finally, an error that is harm less beyond a reasonabl e doubt precludes a finding of prejudice assuming Payne’s a ttorney performed be low an objectively reasonable standard. ( People v. Stanley (2006) 39 Cal.4th 9 13, 954, [reversal on ineffective assistance grounds proper only where “the re is a reasonable probability that, but for counsel’s unprofessional errors, the re sult of the proceeding would have been
more favorable to the defendan t. [Citation.]”.) Thus, Payne’s claim of instructional error
is meritless. c. Abstract of Judgment The trial court sentenced Payne to an indeterminate term of 25 years to life on count 6, plus a total consecutive determin ate term of one year and four months on23 counts 4 and 5. The abstract of judgment incorrectly reflects the imposition of a total determinate term of 26 years and four months . Payne contends the abstract must be corrected to accurately reflect the trial court’s imposition of sentence, and the Attorney General concedes the error. We agree.
DISPOSITION The judgment is affirmed as modified. The clerk of the superior court is directed to correct Payne’s abstract of judg ment to reflect the imposition an indeterminate term of 25 years to life on count 6, plus a to tal consecutive determinate term of one year
and four months on counts 4 and 5; and to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation.

THOMPSON, J.

WE CONCUR:

MOORE, ACTING P. J.

ARONSON, J.