Filed 4/30/14 P. v. Parker CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,
Plaintiff and Respondent,

v.
DION C. PARKER,
Defendant and Appellant. B247405
(Los Angeles County Super. Ct. No. MA047683)

APPEAL from a judgment of the Superi or Court of Los Angeles County. David Walgren, Judge. Affirmed as modified. Lynda A. Romero, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Eric E. Re ynolds and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

________________ __________________2 Dion Parker (Parker) appeals from a j udgment entered after a jury found him guilty of second degree murder and assault on a child causing death involving his eightmonth-old daughter. The trial court sentenced him to 25 years to life in prison. He
contends neither conviction is supported by substantial ev idence. We reject this contention. He also contends, and the Atto rney General concedes, he is entitled to one additional day of custody credit. We modify the judgment to correct Parker’s custody credits. As so modified, we affirm the judgment.
BACKGROUND
Prosecution Evidence The victim, baby Dionne Parker (Dionne), was the daughter of Parker and Barbara
Sloan. Dionne was born in early April 2009. Parker firs t met his daughter Dionne in July 2009, when she was two months old. Thereafter, Parker helped Sloan care for Dionne. During Dionne’s life, Sloan star ted consuming alcohol “a lot” and taking the drug ecstasy. Taking care of Dionne some times overwhelmed Sloan and she would ask
Parker or other relativ es to watch Dionne. Around the time of the December 8, 2009 incident, Parker usually stayed at Sloan’s home a few nights a week with Sl oan, her eight-year-old son Romeo, and Dionne. Parker would spend th e other nights of the week at a cousin’s home. For a few nights leading up to December 8, 2009, Park er had been staying at Sloan’s home with Sloan, Romeo and Dionne. The December 8, 2009 incident and investigation Eight-month-old Dionne had been ill with a cold for about a week and was fussy and crying during the evening of December 7, 2009. Dionne slept th at night in bed with Sloan and Romeo. Parker slept on the couch in the living room. This was their normal sleeping arrangement in the days leading up to December 8, 2009. Dionne woke early on December 8, 2009, at about 7:00 a.m. Accord ing to Sloan’s trial testimony, Dionne was “ready to play” and was not crying that morni ng. Sloan asked Parker if he could take
Dionne out of the bedroom so she “could get a couple more minutes of sleep.” Parker3 brought Dionne to the living room, placed her in her playpen, and he went back to the
couch.
Sloan and Romeo left home at about 8:00 a.m. on December 8, 2009. Sloan’s cousin Roisha picked them up. Roisha droppe d off Romeo at the corner so he could walk
to school with his friends. She drove Sloan to her home so Sloan could help her babysit. Roisha lived close to Sloan, “[j]ust a coupl e houses away on the other block.” When Sloan left, Dionne was still in her playpen and Parker was on the couch. Dionne was wearing “[a] onesie.” Thirty to 40 minutes later, Parker knocke d on the door of Roisha’s home. Parker was holding Dionne, who was wrapped in a towel and wearing only a diaper. Sloan
noticed that Dionne had bl ood on the bottom of her lip and was having difficulty breathing. Dionne did not have blood on her lip when Sloan left home. Sloan talked to Dionne but the baby was unrespo nsive. Sloan asked Parker wh at happened. Parker told her Dionne “pooped on herself,” so he left her on the couch and went to get the bath ready. When he returned, Dionne was not breathing. Sloan did not see any feces on
Dionne. Parker also stated that he had tr ied to give Dionne CPR before leaving Sloan’s home. He continued to try to administer CP R at Roisha’s home. At 8:43 a.m., Sloan
dialed 911. Sergeant Theresa Dawson from the Lancas ter Sheriff’s Station was the first responder to arrive at Roisha’s home. Park er, Sloan, Roisha and two small children were outside, frantically waving at Sergeant Daws on and yelling for her to come inside and attend to the baby who was not breathing. Parker appeared excited and concerned, and he adamantly asked about the whereabouts of the ambulance. Sergeant Dawson observed Dionne on the couch “with her arm[s] outstretc hed to her sides, laying there motionless with her eyes fixed open.” Dionne was not blinking or moving. She was limp when Sergeant Dawson picked her up. Dionne’s sk in was discolored, but Sergeant Dawson did not notice any injuries on her, other than a “s cratch” or “little white mark” on her neck. Sergeant Dawson checked Dionne, but could not hear breath so unds or feel a pulse. She began administering CPR. At that point, she noticed that Dionne had a cut on her lip and4 an injury in her mouth. There was a red substance on Dionne’s mo uth. Other deputies
from the Lancaster Sheriff’s Station arrive d. After another minute or two, fire department personnel arrived and the para medics took over administering CPR. When Deputy Kenneth Saylor arrived at Roisha’s home, Parker was still outside asking about the paramedics who were not yet on the scene. Deputy Saylor went inside and saw Sergeant Dawson administering CPR to Dionne. He observed Dionne and noticed blood on her lip, but he did not notice any bruising on her face. 1 Deputy Saylor
went back outside and asked Parker what ha d happened to Dionne . Parker told the deputy the same story he had told Sloan—that Dionne “had a messy diaper,” so he left her to go get the bath ready, and when he returned she was having trouble breathing and was wheezing. He tried to administer CPR. Parker explained that there was no telephone at Sloan’s home, so he ran with the baby to Roisha’s home so Sloan could dial 911 on her cell phone. Deputy Saylor asked Parker about the blood on Dionne’s lip. Parker stated
that Dionne had fallen off the bed a week or two before Decembe r 8, 2009. Deputy Saylor also asked Parker if Dionne had been sick. Parker stated that Dionne had been coughing and crying. Deputy Saylor and Parker went inside Roisha’s home. The paramedics questioned Parker about what had happened to Dionne. Parker told them the same things he had told Deputy Saylor about the messy diaper and the bath and returning to find Dionne having difficulty breathing. He also told the paramedics that Dio nne had fallen two feet off the bed onto carpeted ground a week or two before December 8, 2009. The paramedics asked Parker if he had sought medical treatment for Dionne after the fall and he stated he
had not.

1 When Deputy Chris Voda first arrived at Roisha’s home and observed Dionne he noticed “red fluid around her lip area,” but he did not notice bruising on her forehead. Later, after paramedics arrive d and took over administering CPR from Sergeant Dawson, Deputy Voda noticed bruising on Dionne’s fo rehead and “a small white scratch on her neck.”5 Parker told Sergeant Dawson that Dionne had been sick for a “week and a half or two,” and “she had been extremely fussy,” a nd Parker “had been tr ying to console her and he wasn’t able to do that.” Sergeant Dawson asked Parker if Dionne had suffered any injuries. Parker said Dionne had sustai ned a cut on her lip when she fell off the bed about a week before December 8, 2009. Serg eant Dawson asked Parker “if he had gotten medical treatment for the child, and he said no .” After hearing Parker’s statements to paramedics and questi oning him herself, Sergeant Dawson c ontacted the child abuse unit, the Special Victim’s Bureau, be cause “things weren’t adding up ” and “didn’t feel right.” Dionne was transported to Antelope Valle y Hospital. Deputy Saylor collected a towel with spots of blood on it from the couch in Roisha’s home where paramedics had been administering CPR to Dionne. Deputies drove Parker to Sloan’s home so Parker could put on appropriate clothing and shoes before going to the hospit al. Sergeant Dawson met them at Sloan’s home shortly thereafter. She wanted to see th e location and have Pa rker explain to her
how Dionne had fallen a week or two before . When Sergeant Dawson entered Sloan’s home, she saw “a brown substance like a splash ” on the heater or air conditioning unit that she thought might have be en blood. She also observe d possible blood stains on a pillow and blankets in the play pen, and a spot on a couch cushion which was on the floor in the living room. In the bedroom, she no ticed a “brown substance on the wall behind
the bed where the headboard was” a nd a brown substance on a pillow. Deputy Voda conducted a videotaped inte rview of Parker at Sloan’s home. The prosecutor showed the video to the jury. A tran script of that interview is included in the record on appeal. Parker to ld Deputy Voda the same things he had told the deputies and paramedics at Roisha’s home about the messy diaper and the bath and returning to find Dionne having difficulty breathi ng. Parker also told Deput y Voda that Dionne had been congested, and on December 7, 2009, “she was crying all da y, crying, crying, crying, crying, crying.” Deputy Voda asked Parker ab out “the last time” Dionne fell off the bed and Parker said it was “a couple of days ago.” Parker stated that Dionne “messed her lip up” as a result of that fall. Parker denied that Dionne had fallen on December 8, 2009.6 Detective Cecilia Barragan, a deputy with the Special Victim’s Bureau, went to Antelope Valley Hospital on December 8, 2009 and observed Dionne. Her partner, detective Timothy O’Quinn, took photographs of Dionne before do ctors took her into surgery. The prosecutor show ed the photographs to the ju ry. The photographs depict bruising on the right side of Dionne’s face, “from the upper portion of her forehead down to her lower ear,” “a large bump on her head along with dark brui sing from the front of her head down the left side,” a scratch on her neck, a “bite mark” on her left shoulder, and bruising, swelling and scratche s with dried blood on her feet. Detectives Barragan and O’Qu inn interviewed Parker at Antelope Valley Hospital. The prosecutor played an audi o recording of the interview fo r the jury. A transcript of
that interview is included in th e record on appeal. Parker told the detectives the same things he had said earlier about the messy diaper and the bath and returning to find Dionne having difficulty breath ing. Detective O’Quinn aske d Parker if Dionne had fallen off the bed the night before when she was sleepi ng with Sloan, and Parker said he did not believe she had. O’Quinn also asked Parker if Dionne had any ma rks or bruises on her that morning. Parker mentioned a bruise on her forehead and a cut on her lip from when
she had fallen off the bed onto the carpet a few days before. Parker stated that Dionne had acted normally after that fall. The detectives showed Parker a phot ograph of bruising on Dionne’s head, and Parker said the bruising must have resulted fro m the fall off the bed. The detectives also showed Parker a photograph of a scar on Dion ne’s neck. According to Parker, Sloan said a picture frame fell on Dionne and cut her neck about a month be fore when Dionne reached for something and the pi cture fell. Parker stated a photograph of Dionne’s arm
showed a bite mark Dionne sustained when Sloan left Dionne with her sister and her

sister’s children. 2 Parker believed one of the childre n had bitten Dionne. The detectives told Parker it appeared that Di onne’s toenails had been crus hed. Parker stated Dionne

2 Sloan’s sister and her sister’s children had lived temporarily at Sloan’s home during the latter part of Dionne’s life.7 had a habit of putting her feet in her mouth a nd Sloan told him that was why her toenails
looked like that. The detectives showed Parker photog raphs of the marks on Dionne’s
ankles and Parker said he believed those in juries resulted from the prior fall. When Detective O’Quinn told Parker that Dionne had a fresh brain injury which “happened within the last several hours,” Park er responded, “It couldn’t have.” Detective Barragan went to Sloan’s home with a search warrant and the assistance
of technicians from the crime lab. In searchi ng the premises she exited the back door and discovered a washing machine and a dryer. Inside the washing machine were baby clothes (a white onesie, a green and white sleep er and a pair of white socks), which were soaking wet. 3 The clothes were examined and ther e were no blood stains found on them.
A criminalist determined that blood stains on a pillow from the playpen, another pillow, a
towel, and the front of the washin g machine were from Dionne’s blood. 4
Parker agreed to go to Detective O’Quinn’s office on December 8, 2009 for a further interview. Deputy Scott Mitchell c onducted a videotaped interview there. The prosecutor showed the video to the jury. A tran script of that interview is included in the record on appeal. Parker told Deputy Mitchell he had a lot of stress in his life because he
had been unable to fi nd a job. He also stated that Dionne “crie[d] a lot” and it was frustrating. Parker told Deputy Mitchell he dropped Dionne twice. He explained that he
was “scared” and “didn’t mean to do this to my daughter.” Park er stated that a couple of days before, when Dionne “was just so fussy,” he put her on the couch and she fell off. He said the same thing happ ened again on the morning of December 8, 2009—he put
Dionne on the couch so he coul d get the bath ready to clean her up after she pooped, and
he turned around and she fe ll off the couch onto the hard wood floor. He told Deputy

3 Sloan testified at trial that she did not put those items in the washing machine and she did not know if they were in the washing machine when she left home in the morning on December 8, 2009.

4 Sloan testified that when she left home in the morning on December 8, 2009, she had not seen the dark reddish spots on the pillow in the playpen and on a towel and a pillow in her bed, depicted in p hotographs shown at trial.8 Mitchell, “That’s the honest to God truth” about what happened on December 8, 2009. Parker added, “I got frustrated, I dropped her.” Later in the interview, Pa rker told Deputy Mitchell he would tell him the truth about what happened that morning. Parker stated that Dionne had been crying since the day before, and she continued to cry when he placed her in her playpen that morning so Sloan could go back to sleep. On a scale of 1 to 10, Parker’s frustration level was at an 8. After Sloan and Romeo left, Parker tried gi ving Dionne a pacifier and then a bottle, but
she would not take either one and she c ontinued to cry. In describing Dionne’s demeanor, Parker stated, “And it wasn’t no cries, it was screaming like, you know like ‘AAHHHHH, AAHHHHH!’” Parker changed Di onne’s diaper after she pooped, but that
did not calm her down. He walked around ho lding her and patting he r. Parker stated: “So I’m walking around like, ‘Citas [Dionne’s nickname], okay, okay, okay, okay, and by then it’s just like my head, just the crying, my head is pounding, you know pounding. I just wanted to get her to be quiet. So I’m walking around the hou se, walking around the house, walking around the house, and she’s s till screaming and scream ing and screaming. So then I just yell, ‘AAAAHHHHH!’, and when I went, ‘AAAAH HHHH!’, she fell.” Parker further explained that “when [he] just lost it” and screamed, “AAAHHH!”, he put both hands up to his head and dropped Dionne. Parker believed Dionne hit the floor head
first. He denied that she bled. He also denied that he threw Dionne on the floor, but admitted he droppe d her on the floor and allowed her to fall because he was frustrated. Deputy Mitchell told Parker it appear ed that Dionne had two bumps on her
forehead and he asked Parker how she sustained the other one. Parker stated that a couple of days to a week before December 8, 2009, he was not feeling well and he passed out while holding Dionne, and th ey both fell to the ground head first. Parker sustained facial injuries, which he pointed out to De puty Mitchell, and he claimed that Dionne sustained bruising to her face. When he regained consciousness, Dionne was lying beside him on the floor. She was not crying. Parker called Sloan and told her to come home. After Sloan came home, Parker was thro wing up blood for the rest of the day. Deputy Mitchell told Parker there was blood fo und in Dionne’s playpen, and Parker said9 it was from the day he passed out because Dionne cut her lip when they fell. Parker did

not take Dionne to the doctor on that occasion because he could not find a ride. 5
After this interview, Detective O’Qui nn transported Parker to the Lancaster
Sheriff’s Station. Parker asked the detective if he could write a letter to Sloan. Detective O’Quinn agreed. In the letter, Parker stated that he dropped Di onne by accident. He explained that Dionne was screaming, so he sc reamed, and he grabbed his head with both hands, not remembering that Dionne was in his arms. 6
Sergeant Dawson saw Parker at the Lancaste r Sheriff’s Station at about 7:00 p.m. on December 8, 2009. He approa ched her and said, “‘I’m sorry I lied to you earlier about what happened.’” Parker told her “he had the baby on his shoulder, and she was fussy, and he couldn’t get her to stop crying, and he just got frust rated and he went ‘Wheooo,’” and he threw his hands up in the air in front of him.
No witness who testified at trial had seen Parker inflict any injury on Dionne. Testimony from Dionne’s treating physicians regarding her injuries
Dr. Mukesh Misra is a neur osurgeon who performed brai n surgery on Dionne on December 8, 2009 at Antelope Valley Hospital . Dionne had “a very large blood clot in

5 At trial, Sloan, Parker’s mother (Cor a Martin), and Parker’s cousin (Jarvis Breatlove) all testified that Parker had told them before December 8, 2009 about the incident during which he had passed out while holding Dionne. Prior to December 8, 2009, Sloan had seen a bruise on Dionne’s left eye and a brui se on the back of Dionne’s head that she attributed to Dionne falling wh en Parker passed out. Sloan also was aware prior to December 8, 2009 of the scratch mark on Dionne’s neck from the picture frame and of injuries to Dionne’s two big toenails from putting her feet in her mouth. She was not aware of any other visible injuries on Dio nne’s body at the time she left home in the morning on December 8, 2009. A bite mark Dionne had su stained on her shoulder in October 2009 from an unknown source alrea dy had healed, according to Sloan. Sloan testified that she did not inflict any injuri es on Dionne, but she felt like she failed to protect her because she did not know about all of Dionne’s injuries and where they came from. After Dionne died, Sloan pleaded guilty to felony child abuse and served half of a four-year sentence.

6 The trial exhibits were transmitted to this court and we have reviewed them, including Parker’s handwritten letter (People’s Exh. No. 40).10 her brain” that “was causing a tremendous am ount of pressure into the brain.” Dr. Misra opened Dionne’s skull and remo ved the blood clot. The blee ding in Dionne’s brain was “acute,” meaning that it was fro m a recent injury. The blood was bright red. There was
no darker blood in her brain wh ich would have indicated an older injury. The membranes in her brain “were recently bruised and fresh from the recent trauma.” The bleeding in
Dionne’s brain was not consistent with a “r ebleed” from a prior brain injury. Based on what Dr. Misra saw when he operated on Dionn e, he determined that the injury would have been instantaneously incapacitating. A rebleed typically does not cause instantaneous incapacitation. After surgery, Dionne was transferred to Loma Linda Children’s Hospital for further care. Dr. Amy Young is a forensic pediatrician at Loma Linda Child ren’s Hospital, who is board certified in child abuse pediatrics. On December 9, 2009, Dr. Young was called
in to consult on Dionne’s case. Dionne was in a coma after her cr aniotomy at Antelope Valley Hospital. Dr. Young observed Dion ne and photographed her injuries. The prosecutor showed the phot ographs to the jury. Dionne’s feet were swollen, with “cur ve linear bruising” on the top and bottom, gouge marks and scabs on the ankle and heel , bruising on her toes and blood under her big toenails. According to Dr. Young, the cu rve linear bruising was consistent with bite marks caused by adult teeth. Th e toe injuries were consistent with “a crush injury to the toe.” The injuries to Dionne’s feet appeared recent, or acute, based on the nature of the swelling, redness and bruising.
Dionne also had bite marks on both of her thighs, her left knee, her left upper arm, and both of her hands, which appeared r ecent based on the swelling, redness and bruising. Abrasions on her neck were consis tent with a recent strangulation injury. 7 Dr. Young also observed an older injury on Dionne’s neck where the scab had fallen off.

7 A photograph of Sloan’s livi ng room taken after the incident shows a belt on the floor near a Christmas tree. Sloan testified that she did not see the belt when she left home in the morning on December 8, 2009, and she did not know whose belt it was.11 Dionne also had a “very distinct S-shaped ma rking on her nose” and some of the skin on
her nose had been rubbed off. According to Dr. Young, “Dionne had a lo t of pretty significant mouth injuries,” which appeared recent and bl ed when Dr. Young touched them. The skin along her bottom lip and onto her chin wa s rubbed off. She had a larg e cut inside her upper lip where the tissue (the frenulum) had torn aw ay from the base. She had puncture wounds inside her lower lip. Dr. Young believed the ca use of these injuries was “multifactorial,” consistent with smothering, something bei ng shoved into Dionne’s mouth, and being
struck in the face. Dr. You ng did not believe these injuries could have been caused by
intubation or CPR. Dionne had swelling and br uising on her upper eyelids a nd her mid-forehead. She had a patch of broken hair on the other side of her head from where she had surgery,
consistent with her hair be ing pulled out. X-rays show ed two fractures on each of Dionne’s legs, and a fracture on each of Dionne ’s arms. Most of the fractures appeared
two to three weeks old. One fracture on Dio nne’s arm, a chip off the bone on her right humerus, appeared recent because there was no evidence that it had started to heal. Photographs of Dionne’s eyes showed hemorrhaging. Dr. Young explained that, “In her right eye, basically all the normal re tina had been oblitera ted.” There was only “hemorrhage and blood in her retina.” There was a fold inside the retina, meaning that “there ha[d] been injury to the retina that ha[d] taken the retina and split it and pushed it up on itself.” There also were “blood hemorrhages that go throughout the entire retina in the left eye” as well as “a fold in her left ey e.” Photographs of Dionne’s left eye showed “very little normal retina.” Acco rding to Dr. Young, “this is the most severe eye findings you can see in an infant.” Th ese eye injuries were consiste nt with “massive acceleration
deceleration” of the head whic h “can pull traction on the re tina and causes the retina to fold on itself.” Injuries such as these had been documented in cases where children were in car accidents and ejected from the car. C.T. scans depicted blood in the su bdural and subarachnoid spaces of Dionne’s brain. The scans also depicted a skull fractur e in the back of Dionne ’s head in the right12 side of her occipital bone, which appeared to extend into the temporal bone at the base of
her skull. Dr. Young opined that the cause of the inju ries to Dionne’s re tinas and brain “was repeated acceleration deceleration in conjunction with some sort of blunt impact.” These injuries were not caused by so meone tossing Dionne in the air, 8 jiggling her to calm her down, dropping her onto a hardwood floor while holding her at shoulder level, or a fall from a couch or a bed. The injuries were caused by “a very violent act” like “swinging a baby around and impact[ing] their head on something.” Dr. Young had treated children
who had fallen out of two-stor y windows who did not have the severity of injuries Dionne had. The symptoms Dionne expe rienced on December 8, 2009 would have occurred immediately after she was injured. Her injuries were not consistent with a rebleed from a prior injury. D r. Young testified that Dionne could not have sustained the injuries to her retinas and brain prior to the date she lost consciousness. Dionne died on December 12, 2009 , after being declared brain dead.
Defense Evidence Dr. David Posey, a forensic pathologist, testified for Parker. He believed Dionne’s
C.T. scans showed an acute (recent) brain injury from a fall on December 8, 2009, and a subacute (older) brain injury which had occurre d four to eight days before. A radiologist from Antelope Valley Hospital noted a subacute injury. Dr. Posey examined microscopic slides from Dionne’s autopsy a nd “saw evidence of a fresh, or acute, bleed” in her brain, and also saw “the presence of a very thin me mbrane,” indicating a subacute injury in the brain. Dr. Posey opined that a second injury from a fall on December 8, 2009 caused a rebleed of an older brain injury. Dr. Posey stated that the fracture in Dionne’s skull appeared to be “an old fracture that’s healing,” and could be related to the subacute bleed. The hemorrhages in he r eyes were due to swelling in her brain. Dr. Posey did not
observe evidence of a blunt forc e injury which would have ca used the optic hemorrhages.

8 Parker’s mother, Cora Martin, testified that she had seen Sloan and Romeo throw Dionne in the air.13 There was no bump on Dionne’s head visi ble in the coroner’s photographs which indicated an impact site. Dr. Posey believe d Dionne’s injuries we re consistent with Dionne falling when Parker passed out and th en Dionne falling again a few days later when Parker dropped her. The brain injury on December 8, 2009 would not have been
lethal if not for the subacute injury. Dr. Posey did not believe the acute injury was caused by excessive force. In discussing Dionne’s other injuries, Dr. Posey stated that he could not date the bruises on Dionne’s body absent an examin ation of tissue samples reviewed under a microscope. He did not believe marks on Dio nne’s neck were indicative of strangulation because there did not appear to be damage beneath the skin. Sc abs and bite marks on Dionne’s body appeared to be older injuries that occurre d before December 8, 2009, because there was evidence of healing. Dr. Posey believed the torn frenulum in Dionne’s mouth was caused by intubation or resuscitation efforts. Parker’s mother, Cora Martin, testified fo r the defense. She also testified for the prosecution. In the defense cas e, she stated that when she first saw Dionne on July 2, 2009, before Parker had begun caring for he r, she was dirty, smelled bad and appeared
not to have been bathed in days. On November 28, 2009 , Martin observed a cut on
Dionne’s ear after Dionne had be en with Sloan. On one occas ion, Martin saw Sloan grab and twist Romeo’s arm. Between July and No vember 2009, Martin noticed that Dionne had a bald spot on her head. Verdicts and Sentencing The jury found Parker guilty of second degree murder (Pen. Code, § 187, subd.
(a); 9 count 1), and assault on a child causing d eath (§ 273ab; count 2). The trial court sentenced Parker to 25 years to life on count 2, and imposed and stayed a term of 15 years to life on count 1.

9 Further statutory references are to the Penal Code.14 DISCUSSION Sufficiency of Evidence Supporting Convictions
Parker contends neither of his two convictions is supported by substantial evidence. With rega rd to his second degree murder conviction, he argues there is
insufficient evidence demonstra ting he acted with malice afor ethought, either express or implied. With regard to his conviction fo r assault on a child causing death, he argues
there is insufficient evidence demonstrating he acted with an awareness of facts “that would lead a reasonable person to realize that his act by its nature would probably result in great bodily inju ry to the child.” “In assessing a claim of insu fficiency of eviden ce, the reviewing court’s task is to review the whole record in the light most fa vorable to the judgment to determine whether
it discloses substantial evidence —that is, evidence that is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defe ndant guilty beyond a reasonable doubt. [Citation.] The federal standa rd of review is to the same effect: Under principles of federal due process, review for sufficiency of evid ence entails not the determination whether the reviewing court itsel f believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crim e beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.]” “‘“‘“ If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a re versal of the judgment.”’ [Citations.]”’ [Citation.]” ( People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Second degree murder The unlawful killing of a human being with malice aforethought is murder. (§ 187, subd. (a).) As set forth in section 188, “Such malice may be express or implied. It is express when there is manife sted a deliberate intention unla wfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when15 the circumstances attending the killing show an abandoned and malignant heart. [¶]
When it is shown that the k illing resulted from the intenti onal doing of an act with express or implied malice as defined above, no other mental state need be shown to
establish the mental state of malice aforeth ought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such
awareness is included within the definition of malice.” California courts “have interpreted implie d malice as having ‘b oth a physical and a mental component. The physic al component is satisfied by the performance of “an act, the natural consequences of which are dange rous to life.” [Citation.] The mental component is the requirement that the defendant “knows that his conduct endangers the
life of another and . . . acts with a conscious disr egard for life.” [Citation.]’ [Citation.]” ( People v. Chun (2009) 45 Cal.4th 1172, 1181.) “An act is dangerous to life, for purposes of implied malice, when there is a high probability it will result in death.” ( People v. Calderon (2005) 129 Cal.Ap p.4th 1301, 1310.) “‘Implied malice, like all other elem ents of a crime, may be proven by circumstantial evidence. [Citatio ns.]’ [Citation.] ‘The very nature of implied malice . . .
invites consideration of the circumstance s preceding the fatal act. [Citations.]’ [Citation.]” ( People v. James (1998) 62 Cal.App. 4th 244, 277-278.) Substantial evidence presented at trial demonstrates Parker acted with implied malice when he inflicted injuries on Dionne on December 8, 2009 which resulted in her death. Dionne was alert and ready to pl ay when Sloan and Romeo left home in the morning on December 8, 2009. After being in Pa rker’s sole care for a period of about 40 minutes, she stopped breathing. The medica l evidence presented by the prosecution indicates that the lethal brain injuries Di onne suffered were inflicted on December 8, 2009 by violent acts consistent with repeat ed acceleration and deceleration—shaking or swinging—in conjunction with blunt impact. Such acts obviously are dangerous to the life of an eight-month-o ld baby. The severity of the in juries inflicted on Dionne—the retinal hemorrhaging and folds, and the bleedi ng in the brain—indicate that Parker acted with a conscious disregard for Dionne’s life. He was frustrated and angry and wanted to16 silence Dionne’s unrelenting cries. Parke r’s repeated lies about the manner in which Dionne sustained her injuries—that she had not fallen or hit her head, but had merely stopped breathing when he went to get the bath ready—indicate he knew his conduct endangered her life. Parker asks this court to ignore the medi cal evidence presented by the prosecution and make a finding that Parker accidentally dropped Dionne on Decemb er 8, 2009. This we cannot do in applying the substa ntial evidence test. It was the jury’s task to determine the credibility of witnesses. Assault on a child causing death Section 273ab, subdivision (a), states, in pertinent part: “Any person, having the care or custody of a child who is under eigh t years of age, who assaults the child by means of force that to a reasonable person woul d be likely to produce great bodily injury, resulting in the child’s death, shall be punish ed by imprisonment in the state prison for 25 years to life.” “[A] defendant may be guilty of an assault with the meaning of section
273ab if he acts with awareness of facts th at would lead a reasona ble person to realize that great bodily injury would directly, na turally, and probably result from his act. [Citation.] The defendant, however, need not kn ow or be subjectively aware that his act is capable of causing great bodily injury. [C itation.] This means the requisite mens rea may be found even when the defendant honestly believes his act is not likely to result in such injury.” ( People v. Wyatt (2010) 48 Cal.4th 776, 781.) The substantial evidence demonstrating Pa rker acted with implied malice when he inflicted injuries on Dionne on December 8, 2009, summarized above, also demonstrates
Parker acted with an awarene ss of facts that would lead a reasonable person to realize that great bodily injury would directly, natu rally, and probably result from his act. The
evidence indicates Parker e ngaged in violent acts agains t this eight-month-old baby which caused instantaneous symp toms including respiratory a rrest. We need not further
summarize that evidence here.17 Custody Credits Based on defense counsel’s calculation, the trial court awarded Parker 1,185 days of presentence custody credit. Parker conte nds and the Attorney General concedes he is entitled to 1,186 days of actual custody cred it because he was arrested on December 8,
2009 and sentenced on March 7, 2013. On or about Augus t 7, 2013, Parker made a written request to the trial court for correction of his custody credits. As of the date he filed his appellate reply brief, January 23, 2014, Park er had not received notification that
the trial court had corrected his credits. In th e event it has not done so already, we order
the trial court to make the correction.
DISPOSITION The trial court is ordered to correct the ju dgment to reflect that Parker is awarded 1,186 days of actual presentence custody cr edit. As so modified, the judgment is affirmed. The clerk of the supe rior court is directed to pr epare an amended abstract of judgment and to forward it to the Depart ment of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

ROTHSCHILD, Acting P. J.

MILLER, J. *

* Judge of the Los Angeles Superior Cour t, assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.