Filed 1/4/23 P. v. Conrady CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

CHANISH CONRADY,

Defendant and Appellant.

______________________________

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVE REA PEREZ, JR.,

Defendant and Appellant.

 B322516

 

 (Merced County

 Super. Ct. 

 No. 18CR-06159)

 

 

 B322531
2

APPEALS from judgments of the Superior Court of Merced 

County, Carol K. Ash, Judge. Convictions affirmed, sentence 

vacated, and remanded with directions as to Steve Rea Perez, Jr.

Affirmed in part and reversed in part; remanded with directions

as to Chanish Conrady.

Matthew J. Watts, under appointment by the Court of

Appeal, for Defendant and Appellant Chanish Conrady.

Valerie G. Wass, under appointment by the Court of

Appeal, for Defendant and Appellant Steve Rea Perez, Jr.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant 

Attorney General, Eric L. Christoffersen and Christina Hitomi 

Simpson, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________

Four-year-old Kyis Conrady (Kyis) died while in the care of 

his mother, Chanish Conrady (Chanish), and Chanish’s 

boyfriend, Steve Rea Perez, Jr. The jury found Perez guilty of 

assault on a child causing death (Pen. Code, § 273ab, subd. (a);1

count 1) and felony child abuse (§ 273a, subd. (a); count 4). The 

same jury found Chanish guilty of three counts of felony child 

abuse for having care or custody of Kyis and willfully permitting

Kyis to be injured (§ 273a, subd. (a); counts 2-4). 

On appeal, Perez contends the trial court abused its 

discretion in admitting Kyis’s statement that Perez had hit him 

and an autopsy photograph of Kyis. Perez also argues the trial 

court erred in providing erroneous and incomplete jury 

1 Further undesignated statutory references are to the Penal 

Code.
3

instructions for felony child abuse and improperly instructing on 

the lesser included offense of assault on a child causing death. In 

addition, Perez asserts the trial court abused its discretion by 

failing to declare a mistrial after the jury deadlocked and by

subsequently discharging a juror without determining whether 

there was good cause to dismiss the juror. Further, both Perez 

and Chanish contend there was not substantial evidence to 

support their convictions. Chanish also challenges her sentence, 

arguing the trial court violated section 654 by failing to stay two 

of her three felony child abuse convictions because they arose 

from a single course of conduct.

In addition, in his supplemental brief Perez contends, the 

People concede, and we agree, that because the trial court 

selected the upper term on count 4, he is entitled to resentencing 

pursuant to the amendments to section 1170, subdivision (b), 

made by Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3) (Senate 

Bill 567), which apply to all cases not yet final as of the 

legislation’s January 1, 2022 effective date. 

We affirm Perez’s convictions. We reverse Chanish’s felony 

child abuse conviction on count 4 and otherwise affirm. We 

remand for resentencing as to Perez and Chanish consistent with 

the amendments to section 1170, subdivision (b). 

FACTUAL AND PROCEDURAL BACKGROUND

A. The Prosecution Case 

In 2013 17-year-old Chanish became pregnant after dating 

19-year-old Kyle Conrady (Kyle). The couple moved in together, 

and Chanish gave birth to Kyis in May 2014. Chanish and Kyle 

married in 2016 but separated a year later. 
4

After the separation, Kyle dated Naomi Lartigue and 

moved to Sacramento with Lartigue and her daughter Lydia in 

early 2018. Chanish dated Perez and moved with him to the city 

of Dos Palos in mid-2018. Chanish and Kyle had an informal 

custody agreement under which Chanish had custody of Kyis on 

weekdays and Kyle had custody on weekends. 

1. The September 2018 events (count 4)

On Saturday, September 8, 2018, Kyle and four-year-old 

Kyis attended Lydia’s birthday party, which was held by a river. 

Kyle watched over Kyis during the entire time they were at the 

party. After they came home, Kyle helped Kyis undress for a 

bath because Kyis’s clothes were wet. When Kyle started pulling 

down Kyis’s pants, Kyis said “‘[o]w.’” Kyle noticed “a large bruise 

on [Kyis’s] groin area.” Kyle testified he asked Kyis “what had 

happened,” and Kyis replied, “‘Steve had punched me in the 

night.’” Kyle observed Kyis became nervous and did not want 

Kyle to leave his side. Kyle went to the kitchen and told Lartigue 

to take a look at Kyis. Lartigue heard Kyis crying and went into 

the bathroom. She saw a “blue and kind of purple-ish” bruise on 

Kyis’s groin area.2 Lartigue testified Kyis “was actually kind of 

scared and nervous to tell” Kyle and her that Perez “had went in 

his room at night and had punched him in his groin.” 

Kyle called Chanish and asked why Kyis had a bruise on 

his groin area. Chanish became upset and responded she did not 

know what Kyle was talking about. She asked Kyle to bring Kyis 

2 The prosecutor displayed to the jury a photograph of Kyis’s 

groin injury (exhibit 101). The photograph shows a large blue 

and purple bruise to the groin area. 
5

back to her home.3 Kyle refused, and Chanish threatened to call 

the police if Kyle did not bring Kyis back. Kyle told Chanish “to 

go ahead and call the police, but [he] wasn’t going to bring [Kyis] 

back.” The next day officers from the Sacramento Police 

Department came to Kyle’s home to perform a welfare check of 

Kyis. They instructed Kyle to bring Kyis to the Dos Palos Police 

Department on Monday, September 10. 

At the Dos Palos police station, Dos Palos Police Officers

Emeterio Cuevas and Battles and child protective services (CPS) 

social worker Antonio Ruezga interviewed Kyle and Kyis. Kyle 

said Kyis had an injury to his groin area, and he showed a 

photograph of the injury to the officers and Ruezga. Officer 

Battles then asked Kyis what had happened. Kyle testified he 

was present for Kyis’s interview because Kyis “wasn’t 

comfortable doing the interview by himself.” Kyle told Kyis to 

tell Officer Battles what Kyis had told Kyle two days earlier. 

Kyis responded that “‘Steve hit me.’” However, Kyis did not give 

any details or answer Officer Battles’s follow-up questions about 

where, when, and how it happened. Officer Battles asked Kyle 

whether Perez had hit him in the past, and Kyle responded no. 

When asked whether he was afraid of Perez, Kyle said he was 

not. During the interview, Ruezga asked Kyis about school, and 

Kyis responded that Perez had hit him. Ruezga testified he 

found it odd because he did not ask Kyis if he got hurt. After the 

interview, a five-day emergency protective order was issued 

3 During custody exchanges, Kyle and Chanish would 

typically discuss any injuries Kyle had from riding his scooter or 

bike or playing on the playground. During the custody exchange 

on Friday, September 7, 2018, Chanish did not inform Kyle about 

any injury to Kyis. 
6

against Chanish and Perez, and Kyis returned with Kyle to 

Sacramento. 

Ruezga and the officers interviewed Chanish, Perez, Perez’s 

son and daughter, and Perez’s ex-girlfriend, Christian Quiroz. At 

the conclusion of the investigation, Ruezga and the officers found 

the abuse allegation was inconclusive, and they decided not to

detain Kyis. 

After the emergency protective order expired, Kyle and 

Chanish formalized their custody arrangement. They agreed 

Kyis would reside with Chanish on weekdays to attend preschool 

and with Kyle on weekends. The parents further agreed Kyis 

would not be alone with either Lartigue or Perez. 

 

2. The October 2018 events (count 3)

On Friday, October 12, 2018 Perez dropped off Kyis at his 

preschool. Perez informed Kyis’s teacher, Melissa Harrelson, 

that a bug had bitten Kyis, causing a bump on the left side of 

Kyis’s face. Harrelson did not see a bump on Kyis’s face, but she 

told Perez she would “keep an eye on it.” 

Later that evening Kyle picked up Kyis from Chanish for 

the weekend and noticed a minor scratch and swelling near 

Kyis’s left eye. Lartigue, who went with Kyle to pick up Kyis, 

testified she noticed a bump close to one of Kyis’s eyes. Chanish 

told Kyle during the pickup that Kyis had been hit with a toy fire 

truck at school.4 Kyis similarly told Kyle later that a child at his 

school had thrown a truck at him. That weekend, Kyle took Kyis 

to San Jose to visit his parents. Lartigue testified that during 

the weekend the bump near Kyis’s eye started to swell. However,

4 Harrelson testified the preschool had toy trucks but 

nothing of the size that could cause an injury. 
7

Kyle put ice on the injury, and the swelling went down by the 

time he returned Kyis to Chanish at the end of the weekend. 

Kyle testified that on Sunday, October 14, on the drive back 

to Chanish’s home in Dos Palos, Kyis threw a tantrum in his 

booster seat and “just refused to go back to his mom.” Kyis 

banged his head and tried to get out of his seat. According to 

Kyle, Kyis had been having tantrums throughout October, and 

this incident “was a little bit greater than the ones prior.”5 Kyle 

believed Kyis had tantrums because of the constant changes in 

Kyis’s life, including multiple moves and changes in the people in 

his life, including Perez and Lartigue. Chanish told Kyle she 

believed Kyis might have autism or Asperger’s syndrome.6 

Harrelson testified that when Kyis returned to preschool on 

Monday, October 15, Kyis “might have [had] a little bit of 

bruising” and discoloration on the left side of his face, but 

otherwise he “looked normal.” Chanish told Harrelson that Kyis 

said a student had thrown a toy at him. Kyis similarly told 

Harrelson a child had thrown a truck at him inside the 

classroom. But about an hour later Kyis told Harrelson a 

5 Harrelson testified that when Kyis started preschool in 

August 2018, he was “excited but nervous” and “happy to come to 

school.” By October 2018, however, Kyis became “more nervous” 

and had “anxiety attacks” that involved uncontrollable crying “to 

the point where he would almost vomit.” In addition, “[i]f a child 

got too close to him he would say that they touched him in some 

way [even though] . . . no other children would touch him.” 

6 Chanish told Harrelson a therapist had evaluated Kyis for 

autism or Asperger’s syndrome, but a documented diagnosis was 

never provided to Harrelson. Harrelson did not see any signs 

indicating Kyis had autism. 
8

different story—that a child of the opposite gender had hit him 

with a toy outside the classroom. 

Kyis did not attend school on October 16 and 17. Chanish 

told Harrelson she had taken Kyis to the hospital because Kyis’s 

“eye had swelled up to the point where he was having trouble 

with his vision.” On October 17 Officer Cuevas and Ruezga went 

to the hospital to investigate abuse allegations. Officer Cuevas 

observed the left side of Kyis’s face was swollen and “smooshy,” 

and “one of his eyes was swollen.”7 Chanish stated in Kyis’s 

presence that a student had thrown a toy truck at Kyis’s head 

and caused his injuries. Officer Cuevas asked Kyis what had 

happened to his face, and Kyis similarly answered that he was 

playing at school and a “‘kid had a [plastic] truck’” and “‘he 

throwed it at me.’” Chanish also reported the bruises on Kyis’s 

shins were caused by Kyis falling off his bike. Ruezga observed 

Kyis appeared comfortable with Chanish and did not want to 

leave her side. When asked, Kyis stated he felt safe at home. 

Ruezga found the abuse allegation inconclusive and did not 

detain Kyis. 

On October 18 Chanish brought Kyis back to school, and 

Harrelson observed Kyis had a swollen eye and some bruising on 

the left side of his face. Harrelson testified Kyle “was very timid, 

very shy,” and “very attached” to her. That day Chanish and 

Perez met with the school program director, Joanne Birdsall. 

Chanish said a child had thrown a toy at Kyis in the classroom, 

7 The prosecutor showed the jury photographs of Kyis’s facial 

injuries (exhibit 106) and leg bruises taken at the hospital on 

October 17, 2018. The prosecutor also displayed two photographs 

of Kyis with facial injuries taken by Officer Cuevas at Chanish 

and Perez’s home sometime between October 18 and 22. 
9

but according to Birdsall, Chanish’s explanation then “changed to 

a child out on the playground.” Birdsall testified Chanish and 

Perez told her Kyle had been “hit pretty hard” by another 

student. Birdsall commented that if the injury was as bad as 

they were describing, Kyis would have cried or told a staff 

member. Perez responded that Kyis had a high threshold for 

pain. 

On the afternoon of October 18, Harrelson overheard Kyis 

tell a teacher’s aide, Alejandra Perez (Alejandra), “that he was at 

his dad’s house, he was riding his bike, he broke his bike, and 

because of his broken bike, his dad had hit him.” Kyis added that 

his dad told him to say one of his friends caused his injury, and 

not his dad. About 30 minutes later, Kyis told Harrelson one of 

his friends had hit him. When Harrelson or Alejandra asked 

Kyis to get the toy that had injured him, Kyis went to the 

classroom science area, looked around, and brought back a 

lightweight, plastic cylinder disk that was two-to-three inches in 

diameter (exhibit 103).

8 As a mandated reporter, Harrelson 

reported Kyis’s allegation of Kyle’s abuse to a CPS social worker. 

As a result, Officer Cuevas issued a five-day emergency 

protective order prohibiting Kyle from contact with Kyis. Kyle 

denied he ever hit Kyis or told Kyis to blame a friend for an 

injury to Kyis. 

On October 22 Kyis was again admitted to the hospital for 

injuries. Officer Cuevas went to the hospital the next day to 

investigate suspected child abuse. Officer Cuevas took 

photographs of Kyis’s facial injuries and noted the swelling on 

the left side of Kyis’s face “didn’t go down.” The photographs 

8 The prosecutor showed the jury a photograph of the toy. 
10

show significant swelling on both eyes.9 Officer Cuevas testified 

Kyis’s injuries had gotten worse since he last saw Kyis on 

October 17. Chanish reported Kyis “woke up with two bruised 

eyes” and complained of a headache; she gave him Benadryl and 

brought him to the hospital. Officer Cuevas responded that the 

stories weren’t “adding up” and he believed “there was more than 

that to it.” Chanish then said Kyis “did go to his father’s house 

over the weekend, that he was riding his bike, and because he fell 

to the ground, the dad got upset, and he hit him, [and] that she 

didn’t really know how or with what.” Officer Cuevas and 

Ruezga arranged for a multi-disciplinary interview center 

(MDIC) interview of Kyis.10 

At 1:06 in the afternoon of October 24 Saul Rodriguez, a 

CPS support staff member, arrived at the hospital to transport 

Kyis and Chanish to Merced for a 2:30 p.m. MDIC interview. 

When Kyis learned he was leaving the hospital, he cried and 

refused to leave his hospital bed. Rodriguez calmed Kyis down, 

and Kyis agreed to the car ride. According to Rodriguez, 

“Chanish didn’t provide any comfort to Kyis or talk to him or try 

to help him out.” 

They went to Rodriguez’s car, and Chanish attempted to 

buckle Kyis’s seatbelt as Rodriguez continued to talk to him. 

Kyis started “screaming and crying that he didn’t want to go in 

the car.” When Rodriguez tried to help Chanish get Kyis in the 

9 The prosecutor showed the jury the three photographs

Officer Cuevas took at the hospital on October 23. 

10 Officer Cuevas testified a MDIC interview of a child is 

performed by a social worker or professional in a neutral 

environment with two-way mirrors or video feeds where others 

can watch the interview. 
11

car seat, he saw Chanish place part of her left hand into Kyis’s 

mouth. Rodriguez asked her twice why she was doing that, but 

she did not respond. Rodriguez told her to stop. Kyis broke free; 

he ran out of the car crying, kicking, and screaming; and then he 

tripped on the curb and fell. Chanish told Rodriguez “she 

couldn’t believe that it was okay for [Kyis] to bite her or hit her, 

but it wasn’t okay for her to do the same to him.” Chanish went 

to help Kyis, but he ran away from her. Chanish started 

screaming profanities and accused Kyis “of acting up so he could 

stay in the hospital and not go home.” After five minutes, 

Chanish grabbed Kyis by his shirt collar and pulled him for a few 

minutes. 

Chanish and Rodriguez tried to put Kyis in the car seat a 

second time, but they were not successful because Kyis was still 

“crying, screaming and refusing to go in the car.” Chanish called 

a relative to bring her and Kyis home. After the call, Chanish 

threw her phone on the ground and screamed profanities. Kyis 

calmed down, but Chanish continued screaming and using 

profanities for 30 to 45 minutes. The MDIC interview was 

rescheduled for October 30, 2018. 

On Saturday, October 27, after the emergency protective 

order expired, Kyle, Lartigue, and Lydia went to Dos Palos and 

took Kyis to the movies. According to Lartigue, Kyis looked 

worse than when they had last seen him two weeks earlier, with 

injuries to both eyes, which appeared sunken in, with

discoloration to his jaw and shins. Chanish told Kyle that Kyis’s 

injuries were caused by a student hitting Kyis with a fire truck 

and Kyis falling off a bike. Lartigue did not believe Chanish’s 

explanations, noting Chanish did not look her in the eye as they 

talked. Chanish also failed to explain why Kyis’s injuries were 

getting worse. Kyle drove Kyis back to Chanish’s home after the 
12

movies. When Chanish greeted Kyis, Kyis “latched onto [Kyle] 

extremely tight and told [Kyle] that he didn’t want to go with his 

mom.” Chanish’s friend Dominique coaxed Kyis out of the car, 

and Kyis “eventually” went to Dominique. At Chanish’s request, 

Kyle, Lartigue, and Lydia went inside Chanish’s home and 

stayed for about 20 minutes so Kyis would be comfortable with 

them leaving. 

On Monday, October 29 Kyis had a panic attack at his 

preschool. He started hyperventilating and cried for Chanish. 

Harrelson saw a bruise on Kyis’s face around his jaw and two 

bruises on his shins. Harrelson brought Kyis to Birdsall’s office 

because of the panic attack. Kyis was crying and said his legs 

hurt. At Birdsall’s request, Kyis pulled up his pant legs, and 

Birdsall saw he had “some bruises on his legs.” Birdsall asked 

Kyis what had happened, and Kyis replied he fell off his bike. 

Harrelson called Chanish to pick up Kyis. Chanish confirmed

Kyis got the injuries from falling off his bike. She added that a 

hospital was running tests on Kyis to determine whether he 

might have a hereditary condition that caused his bruising. 

On October 30 Ruezga drove Chanish and Kyis to the 

MDIC interview in Merced. Officer Cuevas testified that “once 

the interview was about to take place, Kyis threw a big fit 

throwing chairs around, [and] kicking his mother.” The interview 

was cancelled because Kyis was not cooperative. Officer Cuevas 

transported Chanish and Kyis back to Dos Palos. During the 35-

to-40-minute car ride back Kyis started kicking, tossing and 

turning, hitting his head on the booster seat, and cursing. 

Chanish tried to calm Kyis down, but she was not successful. 

According to Officer Cuevas, Chanish did not lose her temper, 

curse, or yell at Kyis. When they arrived at Chanish and Perez’s 

home, Kyis was still out of control, flailing his arms and shaking 
13

his head. However, Perez talked to Kyis and was able to calm 

him down. 

 

3. Kyis’s death in November 2018 (counts 1, 2) 

When Kyle picked up Kyis on Friday, November 2, 2018, 

Kyis complained his stomach hurt. Kyis also had a “runny stool” 

that lasted until Saturday morning. On Saturday, Kyle took Kyis 

to visit Kyle’s parents in San Jose. While there, Kyis soiled his 

pants and threw a tantrum, kicking, screaming, and trying to hit 

himself in the face. Kyle brought Kyis back to Chanish’s home on 

Monday evening. On the drive back, Kyis threw another tantrum 

and said multiple times he “‘hated his mom.’”11 When they 

arrived, Chanish stood outside the car, and Kyis said he did not 

want to go with her. 

The following evening (November 6), Kyle talked to Kyis by 

telephone before Kyis’s bedtime. At 11:36 p.m. Perez called 911. 

At the start of the call, Perez said, “Hey, get your ass up now. 

[unintelligible] what’s going on buddy?”12 Perez told the operator 

that his stepson “just was walking to the bathroom and fell over 

right now.” Paramedic Brian Milbauer, his paramedic partner, 

and a paramedic intern responded to Chanish and Perez’s home. 

Milbauer testified that when they arrived, they found Kyis lying

11 Lartigue testified Kyis began saying he hated his mom 

after the September 2018 incident. Kyis also told Lartigue that 

he did not like Perez, Perez yelled at him, and Perez threw hot 

sauce at him. Kyle similarly testified that sometime after the 

September 2018 incident, Kyis told him that Perez put “hot 

Cheetos” in Kyis’s eyes. 

12 The prosecutor played a recording of Perez’s 911 call for the 

jury. 
14

on his back on the bed in a bedroom. Chanish told the 

paramedics Kyis was returning from the bathroom when he 

collapsed and fell to the floor. Chanish and Perez moved Kyis to 

the bed and poured cold water on him to wake him up, but he was 

unresponsive. Milbauer described the situation when he arrived 

as there being an “off feeling in the house”; he found it “strange” 

that Chanish, as the mother, was “not as hysterical as you would 

expect one to be.” 

Milbauer determined Kyis had fluid build-up on the top of 

his head, which was “not normal at all for anybody.” Because 

Kyis had a “very weak pulse,” the paramedics rushed him to the 

hospital. But as Kyis was being carried to the ambulance, he lost 

his pulse. Milbauer and the intern attempted to resuscitate Kyle 

during the ride to the hospital, but Kyis did not regain a pulse. 

Around midnight Kyle received a call from Chanish, who 

said Kyis had a seizure and “passed out,” and she and Kyis were 

going to the hospital. Kyle and Lartigue immediately drove from 

Sacramento to the hospital. About a half hour into their drive, 

Chanish called to report that Kyis had died. When Kyle arrived 

at the hospital, Perez hugged Kyle and said, “‘I tried. I tried. I’m 

sorry.’” Kyle and Chanish also hugged, and Kyle told Chanish 

that she was a good mom. Lartigue observed Chanish was crying 

“off and on” at the hospital. Chanish told Lartigue, “‘I’m sorry. 

I’m sorry for everything,’” and she thanked Lartigue for taking 

care of Kyis. After Kyis’s death, Chanish called Birdsall and said 

Kyis “had seizures, and that he had passed away.” Birdsall 

testified “[it] was just like we were having a regular 

conversation,” and Chanish was not “emotional or anything.” 
15

4. The autopsy 

On November 8 Dr. Mark Super, a forensic pathologist, 

conducted an autopsy of Kyis. At the time of death, four-year-old 

Kyis was 3 feet 5 inches tall and weighed 40 pounds. Kyis had a 

tear in his mesentery,13 a lacerated liver, bruises on his small 

bowel and both lungs, head injuries, two bruises on the back of 

his right hand, a bruise on the back of his left forearm, a healing 

bruise on his left elbow, bruises on both legs, and bruises on both 

sides of his abdomen and chest. Most of the bruises were not 

likely to be caused by a child’s “rough and tumble” play. The 

court admitted a photograph of Kyis taken at the time of the 

autopsy (exhibit 102), on which Dr. Super pointed out the bruises

on Kyis’s abdomen and chest, a healing bruise on his scalp with a 

subscapular hematoma, and “two more recent bruises on the 

front of his scalp and then on the mid-back of his scalp.” 

Dr. Super testified “[t]he head injuries were severe,” but “[i]t 

didn’t appear to be serious enough to have caused his death.” 

Dr. Super opined Kyis died from “bleeding in the abdomen 

due to blunt impact abdominal injuries,” likely caused by one or 

more punches or kicks. Given the type of abdominal injury, the 

child “would cry bloody murder if somebody hit [him] that hard in 

the abdomen assuming that . . . he’s alert and awake during this 

whole process.” It would “[a]bsolutely” be painful. Because the 

injury was to his abdomen, the child would become nauseous and 

13 The mesentery is a fold of membrane that attaches the 

intestine to the abdominal wall.

(<https://www.mayoclinic.org/diseases-conditions/swollen-lymphnodes/multimedia/mesentery/img20007559#:~:text=The%20mesentery%20is%20a%20fold,lymph%

20nodes%20in%20the%20mesentery> [as of January 4, 2023].) 
16

weak, and “the longer he gets into shock, then he becomes 

disoriented.” The punches or kicks would have caused him to 

become unconscious but “wouldn’t kill him instantly.” Dr. Super 

explained “it takes time for this injury to result in [] shock and 

death, so it takes probably several hours” to cause death. 

Dr. Super opined that because of the severity of the injury, 

“[e]ven three hours I think would be a lot for a little child like 

that.” He added, “I’m taking three hours to be kind of where I 

would think this child could possibly survive this . . . if this thing 

wasn’t bleeding profusely right off the bat.” 

On cross-examination, Dr. Super acknowledged Kyis’s

abdominal injury could have been caused by falling “from some 

good height onto something rounded” or “a really significant 

bicycle accident,” but “[i]t’s not going to cause all the rest of the 

bruises.” Further, the bruise and hematoma were not likely to 

have been caused by another child with a toy truck because the 

injury to the top left side of Kyis’s head was very large, and a toy 

would “cause a very small area of injury even if it caused an 

injury.” Dr. Super acknowledged, however, that a minor head 

injury could be exacerbated by a child banging his head against a 

car window during a tantrum. 

 

5. The police investigation 

On November 15, 2018 a police detective requested 

Lartigue to make a pretext call to Chanish “to ask her questions 

about the night of the incident.” Lartigue made the call from a 

detective’s office, and the call was recorded. Chanish told 

Lartigue she was in the bathroom when she saw Kyis “fall on the 

floor and ha[ve] a seizure.” Chanish confirmed four times that 

she saw Kyis have a seizure and collapse. 
17

On November 20 Merced County Sheriff’s Detectives Jose 

Andrade and Ortiz interviewed Chanish at the Merced County 

Sheriff’s Department office.14 Chanish stated she went to sleep 

at 9 p.m. on November 6 because she was tired from her 

pregnancy and had taken an anti-depressant medication. She 

did not see Kyis fall. Perez woke Chanish up and called the 

ambulance. Perez told Chanish he woke up when Kyis threw up 

in the bathroom. Perez gave Kyis some water and sent him back 

to bed. Fifteen minutes later, Kyis came out of his bedroom and 

“‘just dropped.’” Chanish had experienced seizures and fainting 

spells, and she thought Kyis had a seizure, although he had 

never had one before. When Chanish went into Kyis’s bedroom, 

she saw he had urinated in his bed. Chanish explained she told 

Lartigue that she saw Kyis fall because “‘[it’s] just Naomi, and I 

don’t trust her.’” Chanish lied to Lartigue “‘[b]ecause she’s not 

his mother’” and “I told her just whatever I told her to [get] her 

off the phone.” 

B. The Defense Case 

Perez testified on his own behalf.15 Perez was in a 

relationship with Quiroz before they broke up in December 2017. 

Perez and Quiroz have a nine-year-old son and an eight-year-old 

daughter. In March 2018 Perez started dating Chanish, and they 

immediately started living together. Kyis lived with Perez and 

Chanish on the weekdays and Kyle on weekends, unless Kyle 

cancelled the visit. Perez’s children visited on the weekends and 

14 Chanish spoke to the detectives after waiving her Miranda 

rights. (Miranda v. Arizona (1966) 384 U.S. 436.) The prosecutor 

played portions of the interview for the jury. 

15 Chanish did not testify. 
18

shared a room with Kyis. Perez had “a very good” relationship 

with Kyis. They watched television together, including football 

games, they played video games, and sometimes Kyis would join 

Perez when he exercised. Perez took Kyis to the park, to the 

river a couple of times, and to a high school football game. He 

also taught Kyis how to ride a bicycle. At school, Kyis made 

Perez “a bracelet with the Rams colors because [Perez was] a 

Rams fan.” Kyis was “an active kid” who “liked to play a lot.” 

Kyis “could get frustrated pretty quick,” and if something did not 

go his way, he would throw a tantrum by screaming and 

“sometimes trying to scratch or kick.” Chanish would get 

frustrated by Kyis’s tantrums, and she would sometimes yell or 

curse. 

Perez testified he did not discipline Kyis. However, on 

cross-examination he admitted he told detectives that he spanked 

his son. He stated it occurred only one time, during his 

relationship with Quiroz. Perez denied ever hitting Kyis, and he 

was shocked when he heard the allegation. Perez loved Kyis and 

would not do anything to hurt him. 

In October 2018 Perez was out of town when Chanish 

informed him that Kyis had gotten hit in the head by a student 

from the preschool. When Perez came home, he saw Kyis had a 

bump on the left side of his head. The next week Perez’s son 

woke up Perez and Chanish and said Kyis’s eyes were shut. 

Perez went to the children’s bedroom and saw Kyis’s eyes were 

“really swollen.” Chanish’s grandmother took Chanish and Kyis 

to the hospital, and Kyis was hospitalized for two days. 

Perez learned from Chanish there was an attempt to 

interview Kyis. When Officer Cuevas, Chanish, and Kyis 

returned from the scheduled interview, Chanish went inside the 

apartment and told Perez that Kyis “was throwing a fit and 
19

didn’t want to get out of the police car.” Perez went outside to 

calm Kyis down, and Kyis grabbed him and held him tight. Kyis 

said, “‘All I wanted was you.’” Perez was able to get Kyis out of 

the car and into the apartment. 

On Monday, November 5, 2018, Kyis “seemed a little 

irritated” when he returned from his stay with Kyle. Perez 

believed Kyis wanted to stay longer with Kyle. The next day 

when Kyis returned from school at around noon, he “looked more 

sad” and acted “real distant.” Chanish and Perez put a blanket 

outside for Kyis to play on, and they left the apartment door open 

so they could see him. After dinner, Perez watched a college 

basketball game in the master bedroom on his cell phone. Perez 

wore headphones and had the game “on full blast.” He watched 

the postgame show and “didn’t come out of the room until close to 

10:00.” Perez then went to the living room, and Chanish said she 

had already put Kyis to bed. Chanish and Perez argued because 

Chanish wanted Perez to spend more time with her. At about 

10:30 p.m. Chanish said she was going to sleep. She first went to 

the bathroom and then to Kyis’s room for a few minutes to check 

on him. 

Later that night Kyis came out of his bedroom and told 

Perez “his tummy was hurting.” Perez gave Kyis some water and 

told him to use the toilet if he had to throw up. Kyis went to the 

bathroom and vomited “some yellow stuff.” Kyis then returned to 

his bedroom. 

As Perez was falling asleep on the couch, he heard the door 

open again followed by a thud, and he saw Kyis on the ground 

outside his bedroom. Perez ran to Kyis and grabbed him. Perez 

panicked because Kyis was stiff and shaky, and his eyes “looked 

like they were turning in the back of his head.” Perez “was 

mostly yelling trying to get [Kyis] up,” and then he yelled to 
20

Chanish, who was in the master bedroom, to call 911. When the 

paramedics arrived, Perez escorted them into the apartment and 

led them to Kyis, who was on the bed in the master bedroom. 

The paramedics picked up Kyis and transported him and 

Chanish to the hospital. When Perez arrived at the hospital, he 

learned Kyis had died. Perez later saw Kyle, hugged him, and 

cried with him. Perez told Kyle “I am sorry, and I tried 

everything I could” because Perez had “tried doing CPR, mouth to 

mouth, trying to keep [Kyis] awake.” Perez was “severely 

depressed” following Kyis’s death. 

The next day Officers Cuevas and Battles, a sheriff’s 

deputy, and a social worker came to the apartment. Perez 

showed them around, including to where Kyis had collapsed. 

Perez was arrested a couple of weeks later. On November 20 he 

waived his Miranda rights and answered the detectives’ 

questions for six to eight hours. Perez initially stated he never 

saw Chanish physically abuse Kyis. At some point, the detectives 

informed Perez that Kyis had died from blunt force trauma, and 

Perez realized he was a homicide suspect. The detectives told 

Perez he “was the only one awake” and therefore was “the only 

possible person.” The detectives also said Chanish had accused 

him of killing Kyis. When one of the detectives asked Perez 

whether he had seen Chanish spank Kyis, he replied, “Yes, I’ve 

seen him spanked,” saying it happened at the grandparents’ 

house. The detective asked why, to which Perez answered, 

“Because he’s kicking, swinging, scratching, and she just swang 

at him.” Perez explained, “‘Well, when she . . . gets mad, she 

grabs the arm. She pulls real hard sometimes. She gets real 

frustrated at me. She gets real mad sometimes towards him.’” 

Perez added, “‘I remember she hit [Kyis] once, and she said she 

was trying to hit him on his butt but missed and got him on his 
21

side. She said it was an accident, but she was mad. When she 

gets mad, she doesn’t think.’” Perez testified the incident 

occurred when Kyis ran ahead of Chanish and Perez during a 

walk and “some guy in a truck pulled up and started giving 

Chanish crap about not watching him, and she got frustrated, 

and he was throwing a tantrum at the same time.” However, 

Chanish only hit Kyis that one time. 

Perez also told the detectives that Chanish took medication 

for anxiety and depression. On the night of November 6, Perez 

had to kick the bed to wake up Chanish. Perez admitted that 

when he yelled “‘get your ass up now’” on the 911 call, it was 

directed at Chanish. 

C. The Verdicts and Sentencing

On March 10, 2020 the jury found Perez guilty of assault on 

a child causing death (§ 273ab, subd. (a); count 1) and felony child 

abuse (§ 273a, subd. (a); count 4). The jury found Chanish guilty 

of three counts of felony child abuse (§ 273a, subd. (a); counts 2-

4). On June 10, 2020 the trial court sentenced Perez to an 

indeterminate term of 25 years to life on count 1 for assault on a 

child causing death, plus the upper term of six years on count 4 

for felony child abuse. The court sentenced Chanish to an 

aggregate term of six years eight months, comprised of the 

middle term of four years on count 2, plus two consecutive terms 

of 16 months (one-third the middle term) on counts 3 and 4. 

Chanish and Perez timely appealed. 
22

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Admitting 

Kyis’s Statement Under Evidence Code Section 1360

1. Proceedings below

In February 2020 the prosecutor filed a motion in limine 

requesting Kyle be allowed to testify that on September 8, 2018 

he observed a bruise on Kyis’s groin area, and when Kyle asked 

what had happened, Kyis responded, “‘Steve hit me in the night.’” 

The prosecutor argued Kyis’s statemen was admissible pursuant 

to Evidence Code section 1360. In response, Perez filed a motion 

in limine objecting to admission of Kyis’s statement. Perez 

argued Kyis’s statement was unreliable because “Kyis tended to 

blame many different people for a wide variety of problems which 

were later confirmed to be not true.” 

At an evidentiary hearing on the motions, the parties 

stipulated Kyis was under the age of 12 and deceased, and 

therefore, he was unavailable. Kyle testified that on September 

8, 2018 he noticed a bruise on Kyis’s groin area when he helped 

Kyis remove his wet clothes after swimming. Kyle became upset

when he saw Kyis’s groin area, and he asked what had happened. 

In response, Kyis “blatantly said that Steve had punched him in 

the penis.” Kyle then clarified that Kyis used the word 

“‘privates’” instead of “‘penis.’” Kyle admitted he later told 

officers Kyis said “‘Steve hit me in the night.’”

16 Kyle observed 

Kyis was “nervous” and “shaken.” Kyle believed Kyis was telling 

the truth because he “looked into [Kyle’s] eyes and physically was 

16 During cross-examination by Chanish’s attorney, Kyle 

acknowledged he was not certain whether Kyis said “Steve had 

hit him in the night or Steve hit me in the penis.”
23

shaken, [and] did not want [Kyle] to leave his side after he 

admitted that.” After Kyis’s disclosure, Kyle asked Lartigue to 

come to the bathroom to view the injury.17

Two days later Kyle and Kyis were interviewed at the Dos 

Palos Police Department. Kyle was present when Kyis told police

officers and a CPS social worker that Perez had punched him at 

night. The officers tried to ask Kyis more questions, but Kyis 

“was getting a little bit nervous.” Kyle told the officers that Kyis 

tended to ramble and had made statements about Perez that

Kyle “put aside,” including that Perez put Hot Cheetos in Kyis’s 

eyes. Chanish later told Kyle that Kyis’s groin injury was caused 

by Kyis falling on a trampoline or off a bunk bed at a friend’s 

house. 

Perez’s attorney argued Kyis’s statement was unreliable 

because his injury in the photograph looked “like something a 

child would get from falling off a trampoline or a bike.” In 

addition, Kyis would say things “that weren’t necessarily true,” 

including accusing Kyle of hitting him.18 Perez’s attorney 

17 Although the motions in limine focused on Kyis’s statement 

to Kyle, as discussed, Lartigue also testified at trial that she saw 

Kyis’s groin injury and Kyis told her “Perez had went in his room 

at night and had punched him in his groin.” 

18 In response to questioning by Perez’s attorney as to 

whether police officers asked Kyle about Kyis’s allegation that 

Kyle had hit him, Kyle denied the allegation was true. Alejandra

testified with respect to the October 2018 bruise on Kyis’s jaw 

that Kyis initially said a school friend hit him with a toy, but he 

later said Kyle hit him because Kyis broke a piece of his bike. 
24

asserted the statement was “extremely prejudicial” and Perez 

could not get a fair trial if the statement were admitted. 

The trial court found the photograph of Kyis’s injury was 

corroborating physical evidence Kyis was injured. The court 

acknowledged there was no showing that Kyis knew the 

difference between a truth and a lie. However, Kyis’s statement 

that Perez hit him was spontaneous because it was in response to 

Kyle asking “‘[w]hat is this,’” and Kyle did not prompt Kyis by 

asking “‘[w]ho did this.’” The court added, “I don’t have any 

motive Kyis would have to lie about how he received that injury, 

and he did repeat it two times. I mean, he said it once to his dad

and then later, evidently, to the police and to CPS, so I believe 

under [Evidence Code section] 1360 that is a reliable statement 

that should go in front of the jury, and they can decide if they 

believe it or not, but they should at least hear that statement.” 

2. Governing law and standard of review 

Evidence Code section 1360, subdivision (a), provides, “In a 

criminal prosecution where the victim is a minor, a statement 

made by the victim when under the age of 12 describing any act 

of child abuse or neglect performed with or on the child by 

another, or describing any attempted act of child abuse or neglect 

with or on the child by another, is not made inadmissible by the 

hearsay rule if all of the following apply: [¶] (1) The statement is 

not otherwise admissible by statute or court rule. [¶] (2) The 

court finds, in a hearing conducted outside the presence of the 

jury, that the time, content, and circumstances of the statement 

provide sufficient indicia of reliability. [and] [¶] (3) The child 

either: [¶] (A) Testifies at the proceedings. [or] [¶] (B) Is 

unavailable as witness, in which case, the statement may be 

admitted only if there is evidence of child abuse or neglect that 
25

corroborates the statement made by the child.” (Accord, People v. 

Roberto V. (2001) 93 Cal.App.4th 1350, 1367 [noting Evidence

Code section 1360 “safeguards the reliability of a child’s hearsay 

statements”].)

Factors “relevant to the reliability of hearsay statements 

made by child witnesses” include “(1) spontaneity and consistent 

repetition; (2) the mental state of the declarant; (3) use of 

terminology unexpected of a child of a similar age; and (4) lack of 

motive to fabricate.” (In re Cindy L. (1997) 17 Cal.4th 15, 29-30; 

accord, In re Lucero L. (2000) 22 Cal.4th 1227, 1239.) “[E]ven if 

the child was incompetent to testify at trial because he or she did 

not understand the duty to tell the truth, this [does] not 

necessarily render the child’s hearsay statements unreliable, but

[is] merely a factor to consider.” (People v. Brodit (1998) 

61 Cal.App.4th 1312, 1330; accord, Cindy L., at p. 34.)

We review for an abuse of discretion a trial court’s 

admission of evidence under Evidence Code section 1360. 

(People v. Mitchell (2020) 46 Cal.App.5th 919, 927; People v. 

Roberto V., supra, 93 Cal.App.4th at p. 1367.)

3. The trial court did not abuse its discretion in 

admitting Kyis’s statement to Kyle

The trial court did not abuse its discretion in admitting 

Kyis’s statement that Perez hit him. The statement was 

corroborated by the photograph of Kyis’s injury, as required 

under Evidence Code section 1360, subdivision (a)(3)(B), when a 

child is unavailable to testify. (See In re Cindy L., supra, 

17 Cal.4th at p. 35 [“Corroborative evidence in this context is 

‘“‘evidence . . . which would support a logical and reasonable 

inference’” that the act of abuse described in the hearsay 

statement occurred.’”].) Perez argues Kyis’s statement was not 
26

spontaneous because it was in response to Kyle asking him what 

had happened. But as the trial court noted, Kyle did not prompt 

Kyis to cast blame on another person by asking who caused the 

injury. Perez also asserts Kyis had a motive to fabricate an 

allegation against him because Kyis wanted to spend more time 

with his father. However, the record does not show that at the 

time Kyis preferred to spend time with Kyle, and even if he did, 

that Kyis had the sophistication to make up an abuse allegation 

to make it happen. 

Further, Kyle’s description of the circumstances of Kyis’s 

statement—that Kyis was “[n]ervous” and “shaken” and did not 

want Kyle to leave his side—was consistent with the statement. 

Moreover, regardless of whether Kyis said “Steve hit me in the

night” or hit him in his “‘privates,’” Kyis’s language was 

appropriate for a four-year-old child. Accordingly, the “time, 

content, and circumstances surrounding” Kyis’s statement 

provided sufficient indicia of reliability under Evidence Code 

section 1360. 

B. The Trial Court Did Not Abuse Its Discretion in Admitting 

the Autopsy Photograph 

1. Proceedings below 

Perez filed a motion in limine requesting all autopsy 

photographs be excluded pursuant to Evidence Code section 352. 

At a pretrial hearing, the prosecutor moved to introduce one 

autopsy photograph (exhibit 102) to “use it with Dr. Super as a 

demonstrative so he can describe where the injuries were on 

Kyis” that he observed during the autopsy. The court responded, 

“A lot of times he’ll use diagrams. But one photo doesn’t seem too 

much, if I could look at it and see. Obviously, it’s disturbing, but 

it doesn’t seem unduly gruesome.” The prosecutor stated she did 
27

not “select any photos where it shows any part of examination, 

internal examination, or anything, what I feel to be unduly 

prejudicial or inflammatory.” The court ruled the photograph 

was admissible. 

2. Governing law and standard of review 

“‘Relevant evidence is evidence “having any tendency in 

reason to prove or disprove any disputed fact that is of 

consequence to the determination of the action.”’” (People v. 

Hardy (2018) 5 Cal.5th 56, 87; accord, People v. Daveggio and 

Michaud (2018) 4 Cal.5th 790, 822.) “‘The court in its discretion 

may exclude evidence if its probative value is substantially 

outweighed by the probability that its admission will 

(a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, or 

of misleading the jury.’ (Evid. Code, § 352.)” (Hardy, at p. 87; 

accord, People v. Bell (2019) 7 Cal.5th 70, 105.) 

“‘[T]he prejudice which exclusion of evidence under 

Evidence Code section 352 is designed to avoid is not the 

prejudice or damage to a defense that naturally flows from 

relevant, highly probative evidence. “[A]ll evidence which tends 

to prove guilt is prejudicial or damaging to the defendant’s case. 

The stronger the evidence, the more it is ‘prejudicial.’ The 

‘prejudice’ referred to in Evidence Code section 352 applies to 

evidence which uniquely tends to evoke an emotional bias against 

the defendant as an individual and which has very little effect on 

the issues.”’ (People v. Jones (2017) 3 Cal.5th 583, 610; accord, 

People v. Bell, supra, 7 Cal.5th at p. 105.)

“So long as the probative value of graphic or disturbing 

material is not substantially outweighed by its prejudicial effects, 

a prosecutor is entitled to use such evidence to ‘present a 
28

persuasive and forceful case.’” (People v. Merriman (2014) 

60 Cal.4th 1, 80; accord, People v. Steskal (2021) 11 Cal.5th 332, 

357 [“Graphic evidence in a murder case is always disturbing 

[citation] but it is not inadmissible simply because it is 

unpleasant to view.”]; People v. Booker (2011) 51 Cal.4th 141, 

171.) “‘The admission into evidence of photographs lies within 

the trial court’s discretion and will not be disturbed absent an 

abuse of that discretion.’” (People v. Avila (2014) 59 Cal.4th 496, 

518; accord, People v. Chism (2014) 58 Cal.4th 1266, 1304.) 

3. The trial court did not abuse its discretion in 

admitting the autopsy photograph 

Perez contends the trial court abused its discretion in 

admitting the autopsy photograph because it was inflammatory, 

Kyis’s cause of death was not disputed, and other photographs 

depicting Kyis’s prior injuries were admitted into evidence. 

However, “‘“[a]s a rule, the prosecution in a criminal case 

involving charges of murder or other violent crimes is entitled to 

present evidence of the circumstances attending them even if it is 

grim” [citation], and even if it “duplicate[s] testimony, depict[s] 

uncontested facts, or trigger[s] an offer to stipulate.”’” (People v. 

Fayed (2020) 9 Cal.5th 147, 196 [although there was no dispute

victim was stabbed to death and defense counsel offered to 

stipulate that bloody shirt and pants belonged to victim, trial 

court did not abuse its discretion in admitting photographs of 

victim’s bloody clothes]; accord, People v. Boyce (2014) 59 Cal.4th 

672, 687-688.) 

Here, the autopsy photograph was used during the direct 

examination of Dr. Super to support his testimony about Kyis’s 

external bruises at the time of the autopsy. (See People v. 

Roundtree (2013) 56 Cal.4th 823, 852 [“We have consistently 
29

upheld the admission of autopsy photographs disclosing how the 

victim was wounded as being relevant to the question of 

deliberation and premeditation, as well the appropriate 

penalty.”]; People v. Riggs (2008) 44 Cal.4th 248, 304 [autopsy 

photograph was admissible to “corroborate the testimony of the 

forensic pathologist”].) We have reviewed the autopsy 

photograph, which is not unusually inflammatory (showing a 

deceased child with bruises, not any open wounds or blood), and 

conclude the trial court did not abuse its discretion in finding it 

was more probative than prejudicial.

C. The Trial Court Did Not Commit Prejudicial Error in Its 

Instructions on the Lesser Included Offenses as to Count 1

1. Duty to instruct on lesser included offenses

“Under California law, trial courts must instruct the jury 

on lesser included offenses of the charged crime if substantial 

evidence supports the conclusion that the defendant committed 

the lesser included offense and not the greater offense.” 

(People v. Gonzalez (2018) 5 Cal.5th 186, 196 (Gonzalez); accord, 

People v. Landry (2016) 2 Cal.5th 53, 96.) “That duty exists 

because of the right under the California Constitution ‘“to have 

the jury determine every material issue presented by the 

evidence.”’” (Gonzalez, at p. 196; accord, People v. Breverman 

(1998) 19 Cal.4th 142, 155.) “The prejudice arising from the 

failure to give such instructions is the risk that the jury ignored 

its instructions and convicted the defendant of an offense . . . for 

which the prosecution did not carry its burden. The jury might 

have been convinced that the defendant was guilty of some lesser 

included offense and, as a result, tempted to convict of a greater 

offense rather than acquit.” (Gonzalez, at p. 200; accord, 

People v. Eid (2014) 59 Cal.4th 650, 657.) 
30

“The erroneous failure to instruct on a lesser included 

offense generally is subject to harmless error review under the 

standard of People v. Watson (1956) 46 Cal.2d 818, at pages 836-

837. Reversal is required only if it is reasonably probable the 

jury would have returned a different verdict absent the error or 

errors complained of.” (People v. Prince (2007) 40 Cal.4th 1179, 

1267; accord, Gonzalez, supra, 5 Cal.5th at p. 196 [“The failure to 

instruct on lesser included offenses supported by substantial 

evidence was state law error.”].)

2. Proceedings below

At the pretrial hearing on jury instructions, the trial court 

reviewed the proposed jury instructions with the attorneys. 

Perez’s attorney stated the proposed jury instructions were 

acceptable.

19 The court instructed the jury with modified 

19 In their respondent’s brief, the People contend Perez 

forfeited his claims of instructional error because his attorney did 

not object to the instructions or request any modifications. 

However, a trial court has a sua sponte duty to instruct on lesser 

included offenses where the evidence raises a question whether 

all the elements of the charged offense were present. (People v. 

Breverman, supra, 19 Cal.4th at p. 154.) Further, we review any 

claim of instructional error that affects a defendant’s substantial 

rights whether or not trial counsel objected. (§ 1259 [“The 

appellate court may also review any instruction given . . . even 

though no objection was made thereto in the lower court, if the 

substantial rights of the defendant were affected thereby.”]; 

People v. Burton (2018) 29 Cal.App.5th 917, 923 [“‘Failure to 

object to instructional error forfeits the issue on appeal unless the 

error affects defendant’s substantial rights.’”]; People v. Bedolla

(2018) 28 Cal.App.5th 535, 544 [same].) And “[w]e can only 

determine if [a] defendant[’s] substantial rights were affected by 
31

CALCRIM No. 3517 as to the lesser included offenses: “If all of 

you find that a defendant is not guilty of a greater crime, you 

may find him or her guilty of a lesser crime. If you are convinced 

beyond a reasonable doubt that the defendant is guilty of that 

lesser crime, a defendant may not be convicted of both a greater 

and a lesser crime for the same conduct. Now I will explain to 

you the crimes affected by this instruction. Attempted assault on 

a child causing death is a lesser crime of assault on a child 

causing death, charged in count 1. Assault by means of force 

likely to produce great bodily injury is a lesser crime of assault on 

a child causing death, charged in count 1. Simple assault is a 

lesser crime of assault on a child causing death, charged in count 

1.” 

The court also instructed the jury with modified CALCRIM 

No. 460: “Attempted assault on a child causing death is a lesser 

crime to assault on a child causing death. To prove that a 

defendant is guilty of attempted assault on a child causing death, 

the People must prove that, one, the defendant took a direct but 

ineffective step towards committing . . . assault on a child causing 

death; and, two, the defendant intended to commit attempted 

assault on a child causing death.” The court also instructed on 

what is required to prove a direct step toward committing an 

assault on a child causing death. 

deciding whether the instruction was given in error and, if so, 

whether the error was prejudicial.” (People v. Medina (2019) 

33 Cal.App.5th 146, 154, fn. 7.) That is, if Perez’s claims have

merit, they have not been forfeited. We therefore necessarily 

review the merits of Perez’s contention the instructions violated 

his rights. Because we find no forfeiture, we do not reach Perez’s 

argument his attorney’s failure to object constituted ineffective 

assistance of counsel.
32

The trial court did not initially instruct the jury with 

CALCRIM No. 875 on assault with force likely to produce great 

bodily injury. However, the jury initially deadlocked on count 1,

and the court discharged juror no. 2 (who indicated he could no 

longer serve) and replaced him with an alternate. At that point,

the jury foreperson inquired where the instruction was for the 

lesser included offense of assault with force likely to produce 

great body injury. Perez’s counsel stated he had no objection to 

the court instructing the jury with CALCRIM No. 875, and the 

court proceeded to read the instruction to the jury. 

3. The trial court did not commit prejudicial error in 

instructing the jury on attempted assault on a child 

causing death

Perez contends the trial court erred in instructing the jury 

on attempted assault on a child causing death as a lesser 

included offense of count 1 because the offense is not a crime in 

California, relying on In re James M. (1973) 9 Cal.3d 517, 522

(attempted assault with a deadly weapon on a police officer is not 

a crime) and People v. Duens (1976) 64 Cal.App.3d 310, 314

(attempted assault with intent to commit rape is not an offense). 

The James M. court explained attempted assault was not a 

“logical absurdity,” but the assault statute showed a clear 

legislative intent not to punish an attempt to commit a battery

without the present ability to do so (an attempted assault). 

(James M. at pp. 521-522.) 

Even assuming it was error for the trial court to instruct on 

attempted assault on a child causing death, Perez has failed to 

show prejudice. As discussed, a defendant may be prejudiced by 

the failure to instruct the jury on a lesser included offense 

because of the possibility the jury would convict the defendant of 
33

a greater offense even if the elements had not been proven,

rather than acquit. (Gonzalez, supra, 5 Cal.5th at p. 200.) But 

here, the jury was offered the option to convict Perez of the lesser 

included offense. Thus, there is no risk the jury convicted him of 

the greater offense to avoid an acquittal.

4. The trial court did not commit prejudicial error in its 

delayed instruction on assault with force likely to 

produce great bodily injury

Perez contends the trial court erred in failing initially to 

instruct the jury with CALCRIM No. 875 for assault with force 

likely to produce great bodily injury, which is a lesser included 

offense of assault on a child causing death. As discussed, the 

court initially instructed the jury that assault by means of force 

likely to produce great bodily injury is a lesser included offense of 

the assault charged in count 1. However, it is undisputed the 

court inadvertently failed initially to instruct the jury with 

CALCRIM No. 875. Once the jury foreperson notified the court 

that the jury had not been instructed on assault by means of force 

likely to produce great bodily injury, the court rectified its error

by giving the instruction. 

Perez contends he was prejudiced by the initial omission of 

CALCRIM No. 875 because the deadlocked jury did not have the 

instruction during its 10 hours of deliberation and would have 

“reached a more favorable verdict” on count 1 had it been 

properly instructed. But to demonstrate prejudice, Perez needed 

to have submitted juror declarations to show it was reasonably 

probable the deadlocked jury would have found Perez guilty of 

the lesser included offense of assault with force likely to produce 

great bodily injury had the jury been instructed with CALCRIM 

No. 875. Perez did not submit any declarations. We recognize 
34

the most relevant juror declarations would have been 

inadmissible, for example, hypothetically, a declaration from 

juror no. 2 explaining that he voted not guilty of assault on a 

child causing death and would have voted guilty of the lesser 

included offense had he been properly instructed. (See Evid. 

Code, § 1150, subd. (a) [“Upon an inquiry as to the validity of a 

verdict, any otherwise admissible evidence may be received as to 

statements made, or conduct, conditions, or events occurring, 

either within or without the jury room, of such a character as is 

likely to have influenced the verdict improperly. No evidence is 

admissible to show the effect of such statement, conduct, 

condition, or event upon a juror either in influencing him to 

assent to or dissent from the verdict or concerning the mental 

processes by which it was determined.”].) 

As the Supreme Court explained in People v. 

Gonzales (2012) 54 Cal.4th 1234, 1281, “‘This statute 

distinguishes “between proof of overt acts, objectively 

ascertainable, and proof of the subjective reasoning processes of 

the individual juror, which can be neither corroborated nor 

disproved. . . .” [Citation.] “This limitation prevents one juror 

from upsetting a verdict of the whole jury by impugning his own 

or his fellow jurors’ mental processes or reasons for assent or 

dissent. The only improper influences that may be proved under 

[Evidence Code] section 1150 to impeach a verdict, therefore, are 

those open to sight, hearing, and the other senses and thus 

subject to corroboration.”’” (Accord, People v. Flores (2021) 

70 Cal.App.5th 100, 108 [statements in juror declarations as to 

jurors’ subjective understandings were inadmissible, but 

statements as to what was said in the jury room relating to 

punishment were admissible because they were made “out loud, 
35

heard by all the jurors, and involved information that could have 

influenced the verdict”].) 

Although arguably a juror could state what an oral vote 

count in the jury room was at the time of the deadlock (whether 

10 jurors voted guilty or not guilty), absent information on how 

juror no. 2 voted and how he would have voted on the lesser

offense, it is speculation whether juror no. 2 would have voted 

guilty of the lesser offense and would have been able to convince 

the other 11 jurors (who later voted guilty on the greater offense 

after they were instructed with CALCRIM No. 875) to vote not 

guilty of the greater offense and guilty of the lesser offense. 

Perez has therefore not met his burden under Watson to 

demonstrate prejudice. (See People v. Hernandez (2011) 

51 Cal.4th 733, 746 [“This requirement that the defendant 

demonstrate actual prejudice is consistent with the defendant’s 

burden under Watson, supra, 46 Cal.2d at page 837, to establish 

a reasonable probability that error affected the trial’s result.”].)

A comparison of the two jury instructions supports our

conclusion. Three of the differences between the instructions on 

assault causing death of a child (CALCRIM No. 820) and assault 

likely to produce great bodily injury (CALCRIM NO. 875) are not 

in dispute (assuming Perez was the perpetrator): the People 

must prove (1) the defendant had care or custody of a child who 

was under the age of eight; (2) the force was applied to a child; 

and (3) the defendant’s act caused the child’s death. The only 

significant difference between the two instructions is that to 

prove an assault causing death of a child, the People must prove

that “[w]hen the defendant acted, he was aware of facts that 

would lead a reasonable person to realize that his act by its 

nature would directly and probably result in great bodily injury 

to the child.” (CALCRIM No. 820, italics added.) By contrast, for 
36

assault likely to produce great bodily injury, the People must 

prove “[w]hen the defendant acted, he was aware of facts that 

would lead a reasonable person to realize that his act by its 

nature would directly and probably result in the application of 

force to someone.” (CALCRIM No. 875, italics added.) 

The evidence at trial does not support a finding that Perez 

was aware of facts that would lead a reasonable person to realize 

his conduct in kicking or punching Kyis in the abdomen would 

have resulted in the application of force, but not great bodily 

injury. Dr. Super testified to the significant injuries suffered by 

Kyis, including a tear in his mesentery, a lacerated liver, bruises 

on his small bowel and both lungs, and bruises on both sides of 

his abdomen and chest. According to Dr. Super, Kyis died from 

bleeding in his abdomen due to a blunt impact likely caused by 

one or more punches or kicks. Further, given the nature of the 

injuries, a child “would cry bloody murder if somebody hit [him] 

that hard in the abdomen,” causing the child to die within three 

hours. There was no expert testimony to the contrary. 

Therefore, it is not reasonably probable the jury would have 

returned a not guilty verdict of the greater offense had it been 

given the option to convict Perez of the lesser offense based a 

finding he was aware (through the lens of a reasonable person) 

that kicking or punching Kyis hard in the abdomen, causing Kyis 

to scream in pain, would have resulted in the application of force, 

but not great bodily injury.

20 

20 Perez also argues the trial court erred in instructing the 

jury with CALCRIM No. 251 that the offense of assault on a child 

causing death is a specific intent instead of general intent crime. 

But as Perez concedes, instructing the jury that specific intent 

was required to prove the offense was not prejudicial error 
37

D. The Trial Court Erred in Instructing the Jury on Criminal 

Negligence with Respect to the Offense of Felony Child 

Abuse Charged in Count 4 as to Perez, but the Error Was 

Harmless 

1. Proceedings below 

With respect to felony child abuse charged in count 4 

(§ 273a, subdivision (a)), the trial court instructed the jury with a 

modified version of CALCRIM No. 253: “For you to find a person 

guilty of the crime of child abuse as charged in Counts 2, 3 and 4, 

a person must do an act or fail to do an act with criminal 

negligence. Criminal negligence is defined in the instructions on 

that crime.” 

The court instructed the jury further with modified 

CALCRIM No. 821: “The defendants are charged with child 

abuse likely to produce great bodily harm or death in violation of 

Penal Code section 273a(a). To prove that a defendant is guilty of 

this crime, the People must prove that, one, the defendant, while 

having care or custody of a child, willfully caused or permitted 

the child’s person or health to be injured; two, the defendant 

inflicted pain or suffering on the child or caused or permitted the 

child to suffer or be injured or be endangered under 

circumstances or conditions likely to produce great bodily harm 

or death; and three, the defendant was criminally negligent when 

he or she caused or permitted the child to be injured.” 

The court instructed further, “Criminal negligence involves 

more than ordinary carelessness, inattention, or mistake in 

judgment. A person acts with criminal negligence when, one, he 

because it increased the People’s burden. The instruction of the 

jury with CALCRIM No. 251 was likewise not prejudicial as to 

the lesser included offenses. 
38

or she acts in a reckless way that is a gross departure from the 

way an ordinarily careful person would act in the same situation; 

two, the person’s acts amount to disregard for human life or 

indifference to the consequences of his or her acts; and, three, a 

reasonable person would have known that acting in that way 

would naturally and probably result in harm to others.” 

In her closing argument, the prosecutor stated as to count 

4: “[B]oth defendants are charged with felony child abuse on or 

between September 1 and September 8. And that would have 

been the injury to Kyis’s groin. I start here because I know there 

is some overlap in these charges, and so I wanted to explain, up 

front, that there are different ways to hold people accountable for 

these crimes. Ms. Conrady is charged with child abuse because 

she had care and custody of Kyis on all of these dates. And she 

allowed him to be placed in a position in which he suffered harm 

likely to cause great bodily injury. That is why she’s charged. 

Mr. Perez is charged with actually causing these injuries in early 

September and then on November 6 when Kyis was killed.” The 

prosecutor added as to count 4, “For this count, [Perez] is charged 

with willfully causing or permitting the child to be placed in a 

situation where his health was in danger, that he inflicted pain 

or suffering on the child or caused or permitted him to suffer and 

be injured under circumstances likely to cause great bodily 

injury. And he was—and that he was criminally negligent when 

he or she caused or permitted the child to be injured. . . . And 

[Perez] is the one who did it.” 

2. The trial court erred in instructing the jury on count 4 

as to Perez

“Section 273a, subdivision (a) ‘is an omnibus statute that 

proscribes essentially four branches of conduct.’ [Citation.] As 
39

relevant here, it provides: ‘Any person who, under circumstances 

or conditions likely to produce great bodily harm or death, 

[1] willfully causes or permits any child to suffer, or [2] inflicts 

thereon unjustifiable physical pain or mental suffering, or 

[3] having the care or custody of any child, willfully causes or 

permits the person or health of that child to be injured, or 

[4] willfully causes or permits that child to be placed in a 

situation where his or her person or health is endangered, shall 

be punished by imprisonment in a county jail not exceeding one 

year, or in the state prison for two, four, or six years.’” (People v. 

Valdez (2002) 27 Cal.4th 778, 783 (Valdez), fn. omitted; accord, 

People v. Flores (2016) 2 Cal.App.5th 855, 873.) “Violation of 

section 273a, subdivision (a), ‘“can occur in a wide variety of 

situations: the definition broadly includes both active and passive 

conduct, i.e., child abuse by direct assault and child endangering 

by extreme neglect.”’” (Valdez, at p. 784; accord, People v. 

Sargent (1999) 19 Cal.4th 1206, 1215-1516.) “[W]hen the conduct 

at issue involves the direct infliction of unjustifiable physical 

pain or mental suffering on a child, criminal negligence is not an 

element of the offense. Rather, the defendant must have a mens 

rea of general criminal intent to commit the proscribed act.” 

(Sargent, at p. 1224; accord, Valdez, at p. 786.)

Perez argues the trial court erroneously instructed the jury 

on felony child abuse as charged in count 4 against him. We 

agree. Perez’s liability for felony child abuse was based on the 

theory Perez willfully inflicted the groin injury on Kyis. As the 

prosecutor argued, “Mr. Perez is charged with actually causing 

these injuries in early September,” and further, he “is the one 

who did it.” Because the People argued Perez was liable for 

directly inflicting physical pain on Kyis, as the Sargent court and 

CALCRIM No. 821 make clear, the People had to prove Perez had 
40

a mens rea of general criminal intent to commit the prohibited 

act. (See People v. Sargent, supra, 19 Cal.4th at p. 1224.) Yet the 

trial court instructed on criminal negligence, not general criminal 

intent.21 

 

3. The instructional error is not prejudicial under 

Chapman

“Among the constitutional errors subject to [Chapman v. 

California (1967) 386 U.S. 18] review is misinstruction of the jury 

on one or more elements of the offense.” (People v. Hendrix

(2022) 13 Cal.5th 933, 942 [under Chapman, “[t]his ‘stricter’

standard of review requires reversal unless the error is ‘harmless 

beyond a reasonable doubt’”]; accord, People v. Wilkins (2013) 

56 Cal.4th 333, 351.) “This is because the federal Constitution 

requires ‘criminal convictions to rest upon a jury determination 

that the defendant is guilty of every element of the crime with 

which he is charged, beyond a reasonable doubt.” [Citations.] A

21 The People argue the trial court properly instructed on 

criminal negligence because the court instructed the jury on 

CALCRIM No. 821, alternative C—that “[t]he defendant, while 

having care or custody of a child, willfully caused or permitted 

the child’s person or health to be injured”—and thus the jury was 

correctly instructed on criminal negligence, which applies to this 

alternative. The People are correct that the court instructed with 

alternative C, but the People’s theory of the case as expressed in 

the prosecutor’s closing argument was that it was Perez who 

inflicted unjustifiable physical pain on Kyis (alternative A) (“[t]he 

defendant willfully inflicted unjustifiable physical pain or mental 

suffering on a child”), with Conrady permitting Kyis to be injured 

(alternative C). Therefore, the court should have instructed on

general criminal intent as to felony child abuse charged against 

Perez.
41

jury misinstruction that relieves the prosecution of its burden to 

prove an element of the crime—by either misdescribing the 

element or omitting it entirely—violates this requirement.” 

(Hendrix, at p. 942; accord, Neder v. United States (1999) 

527 U.S. 1, 10 [“In both cases—misdescriptions and omissions—

the erroneous instruction precludes the jury from making a 

finding on the actual element of the offense.”].)

The trial court’s misinstruction on the mens rea of the 

felony child abuse charge against Perez was harmless beyond a 

reasonable doubt under Chapman. A defendant has general 

criminal intent if he “intended to do the proscribed act.” 

(People v. Atkins (2001) 25 Cal.4th 76, 82 [“‘When the definition 

of a crime consists of only the description of a particular act, 

without reference to intent to do a further act or achieve a future 

consequence, we ask whether the defendant intended to do the 

proscribed act. This intention is deemed to be a general criminal 

intent.’”]; accord, People v. Hering (1999) 20 Cal.4th 440, 445.)

The only evidence at trial as to the cause of Kyis’s groin injury 

was Kyis’s statements to Kyle, Lartigue, and the police officers

and social worker that Perez hit him. There was no evidence the 

injury occurred accidentally or that Chanish inflicted the injury

while Kyis was in Perez’s care. Although Perez in his testimony 

denied he ever hit Kyis in his groin area (or anywhere), Perez

also denied he ever saw Chanish “mistreat Kyis to cause that 

bruise.” Given the evidence of Kyis’s multiple statements that 

Perez hit him and the photograph of the significant bruising to 

Kyis’s groin area (exhibit 101), the jury necessarily found Perez

hit Kyis in the groin with the intent “to do the proscribed act”

(inflict the injury). (Atkins, at p. 82; accord, Hering, at p. 445.) 

Accordingly, the People have met their burden to show beyond a 

reasonable doubt that the error in failing to instruct on general 
42

criminal intent did not contribute to the verdict. (People v. 

Hendrix, supra, 13 Cal.5th at p. 942; People v. Wilkins, supra, 56 

Cal.4th at p. 351.)

E. The Trial Court Did Not Abuse Its Discretion in Directing 

Further Jury Deliberations and Did Not Commit 

Prejudicial Error in Discharging Juror No. 2

1. Proceedings below

The jury began deliberations on Wednesday, March 4, 2020 

at 3:35 p.m., and deliberated for approximately an hour. The jury 

resumed deliberations at 9:05 a.m. the following day, continued 

until just before noon, then left for the day. On Friday, March 6, 

the jury resumed deliberations just after 9:00 a.m. At 11:39 a.m. 

the jury requested readback of the testimony of Perez and Dr. 

Super. The court wrote in response, “‘OK, it may take a little 

while. Also, if any of you are not available this afternoon or next 

week, please let me know now.’” The jury sent a note back 

stating, “‘Juror 2 not available next week.’” The court then took a 

lunch recess. After lunch, the court reporter read back the 

testimony of Perez and Dr. Super (from approximately 1:20 to

3:20 p.m.). 

Just after 4:00 p.m. the jury sent a note to the trial court 

stating, “We have a verdict on counts 2, 3 & 4. [¶] We cannot 

reach agreement on Count 1.” (Capitalization omitted.) The 

court called the attorneys on the record and notified them of the 

jury’s note. The court stated in part, “I don’t think they have 

been deliberating long enough. I would tell them to deliberate 

further, but I wanted to get counsel’s input.” The prosecutor 

responded, “I don’t think they’ve deliberated that long, because 

they were out yesterday afternoon.” Chanish’s attorney queried, 

“The concern I have, is, are we going to lose a juror on Monday?”
43

The court replied, “Well, we can bring an alternative in.” 

Chanish’s attorney responded, “Well then they have to start 

deliberations over.” The prosecutor indicated she wanted to 

obtain more information from the jury. The court asked Perez’s 

attorney, and he replied, “I’m not sure, Your Honor. I’ll do 

whatever the court wants to do.” The court then asked the 

attorneys to return to the courtroom so the jury could be brought 

out and questioned. 

When the attorneys returned to the courtroom, the trial 

court stated its intent to question the jury and then “have them 

go back in and we can discuss further what we want to do.” The

jury was brought into the courtroom, and the court asked the 

foreperson, “Do you think any further deliberations would help 

you or any reading back of other testimony?” The foreperson 

responded, “We did try that, and, no, I do not believe—because 

we tried approaching it from all different options; yes.” The court 

then asked, “Do any of the other jurors feel that any further readback or further deliberations would help you reaching a verdict 

on count 1?” No juror raised a hand. Next, the court asked,

“Foreperson, without telling me which way, if you can tell me 

how many ballots have you taken?” The foreperson stated the 

jury had taken approximately four ballots on count 1, and the 

split in votes “started out one to 11, and ended up two to ten.”

The court then sent the jury back to the jury room for further 

deliberations. 

Outside the presence of the jury, the trial court noted the 

jury had deliberated for approximately nine hours (not including 
44

the hour of deliberations on March 4).

22 The prosecutor stated, 

“In my experience, when a split is this close and they haven’t 

been deliberating for a significant period of time—I guess, 

especially compared to the length of the tria1—is that the judge 

would usually send them back to further deliberate, but I would 

submit it on that, Your Honor.” Perez’s attorney stated, “Your 

honor, I don’t have any thoughts on the matter.” 

Chanish’s attorney expressed concern that if the 

deliberations went to Monday, there would be “one or two new 

jurors, and if those jurors are not the two people that are holding 

out, we're going to be in the same position we are in now, with 

maybe a different [c]ount.” The court responded, “That’s why I 

wouldn’t have alternates in because I think it’s going to change 

the dynamic. It’s just—my concern is I don't believe they have 

actually been deliberating long enough, given the length of the

trial. And unfortunately, since we ran over time, we’re running 

into time constraints. But that is the purpose of the alternates, 

and I realize they have reached verdicts on 2, 3, and 4, but unless 

those verdicts have been received and recorded, they could still 

start deliberations all over again.” The prosecutor argued the 

verdicts should not be recorded “because then you’re having a 

different jury decide part of the case,” and the court agreed.

22 The trial court observed the jury deliberated for three 

hours on March 5 and six hours on March 6. The court noted it 

had recessed at approximately 3:30 p.m. on March 4, but it did 

not address the jury’s deliberations reflected in the record for 

March 4. For purposes of our discussion, we use the 10-hour 

estimate made by Perez in his opening brief that includes the 

March 4 deliberations. We note the 10-hour estimate includes 

the two-hour readback of Perez’s and Dr. Super’s testimony.
45

The jury returned to the courtroom, and the trial court told 

the jurors they needed to continue deliberating. The court 

inquired whether any juror could not come back the following 

week, and juror no. 2 indicated he would not be available. The 

court stated, “So at this time, the juror in seat number two, I’ll 

excuse you. We’ll randomly select an alternate to come in and 

take your spot, and then we’ll resume deliberations, and when 

the alternate comes in next week, I’ll give you further 

instructions on how to do that.” After the jury decided to return 

on Tuesday, the court told juror no. 2, “I appreciate your service.

Unfortunately, we ran long, and so it ran into your schedule, but

I do appreciate the time you put in.”

On Tuesday morning, March 10, the trial court swore in an 

alternate juror. The court instructed the jury to disregard its

prior deliberations and start deliberations from the beginning.

After further discussions in the courtroom, the jury resumed its 

deliberations at 9:23 a.m. At 2:25 p.m. the jury indicated it had 

reached verdicts on all counts. The jury returned verdicts of 

guilty on all counts as to Perez and Chanish. 

2. The trial court did not abuse its discretion in

directing further jury deliberations 

Section 1140 provides, “Except as provided by law, the jury 

cannot be discharged after the cause is submitted to them until 

they have agreed upon their verdict and rendered it in open 

court, unless by consent of both parties, entered upon the 

minutes, or unless, at the expiration of such time as the court 

may deem proper, it satisfactorily appears that there is no 

reasonable probability that the jury can agree.” “The 

determination whether there is a reasonable probability of 

agreement rests within the sound discretion of the trial court. 
46

[Citation.] ‘Although the court must take care to exercise its 

power without coercing the jury into abdicating its independent 

judgment in favor of considerations of compromise and 

expediency [citation], the court may direct further deliberations 

upon its reasonable conclusion that such direction would be 

perceived “‘as a means of enabling the jurors to enhance their 

understanding of the case rather than as mere pressure to reach 

a verdict on the basis of matters already discussed and 

considered.’”’” (People v. Harris (2005) 37 Cal.4th 310, 363-364; 

accord, People v. Peoples (2016) 62 Cal.4th 718, 783 [“the trial 

court’s statement that 21.5 hours of deliberation was a ‘drop in 

the bucket’” was not coercive]; People v. Pride (1992) 

3 Cal.4th 195, 265 [it was not coercive for the court after a week 

of deliberations on the penalty phase of a death penalty case to 

order further deliberations where vote remained at 11 to 1].)

Perez contends the trial court coerced the jury to reach a 

verdict by telling the jurors they had not deliberated long enough

after 10 hours of deliberation. However, the court did not make

any statement to pressure the jury to reach a verdict. The court 

appropriately concluded there was a reasonable probability the 

jury could reach an agreement because the jury was actively

deliberating. According to the foreperson, after taking four 

ballots on count 1, the split in votes changed from 11 to one to 10 

to two. Although the change in votes shows the jury was moving 

away from unanimity, it also demonstrates the jury was 

continuing to deliberate. Further, it was not an abuse of 

discretion, after eight days of trial testimony and counsel’s 

argument on multiple counts against two defendants, for the 

court to conclude after approximately 10 hours of jury 

deliberations that further deliberations could be fruitful. (See 

People v. Debose (2014) 59 Cal.4th 177, 209 [trial court did not 
47

abuse its discretion in denying mistrial motion where “the jury 

had only been deliberating for a day and a half as to three 

defendants, after a trial that had lasted two months”]; People v. 

Bell (2007) 40 Cal.4th 582; 617 [“the jury in this case had 

deliberated less than two full days, around 10 hours; we have 

upheld courts’ denials of mistrials even after fruitless 

deliberations for longer periods”], disapproved on other grounds

in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13; People v. 

Cook (2006) 39 Cal.4th 566, 615 [no abuse of discretion where 

trial court ordered a deadlocked jury, which had deliberated for a 

day and a half, to continue deliberating for the afternoon].)

3. The trial court’s discharge of Juror No. 2 was not 

prejudicial error

During voir dire, juror no. 2 asked the trial court, “I just 

had a question on . . . the length of the trial, because I have some 

commitments, like, after March the 8th.” The court responded, 

“No, we’ll be done before then. I estimated February 28th, and 

that was—I tried to build in a little bit of padding into it, so I’m 

sure that you would be fine, and we’ll have alternates, so if 

something does come and you’re unavailable, there would be a 

juror that would substitute in for you.” Juror no. 2 replied, “No, 

I’m fine until then, so I just wanted to make sure until I know 

where I’m at.” The trial ran longer than expected, and the jury 

did not begin deliberations until March 4. As discussed, on the 

afternoon of Friday, March 6 juror no. 2 indicated he would not 

be available the following week. The court discharged juror no. 2

and replaced him with an alternate juror. 

“The trial court may discharge a juror at any time if good 

cause exists to find that the juror is unable to perform his or her 

duty. (§ 1089.) ‘The trial court’s decision whether or not to 
48

discharge a juror under section 1089 is reviewed for abuse of 

discretion and will be upheld if supported by substantial 

evidence; to warrant discharge, the juror’s bias or other disability 

must appear in the record as a demonstrable reality.’ [Citation.] 

A reviewing court does not reweigh the evidence but ‘must be 

confident that the trial court’s conclusion is manifestly supported 

by evidence on which the court actually relied.’” (People v. Lopez

(2018) 5 Cal.5th 339, 365; accord, People v. Landry, supra,

2 Cal.5th at pp. 88-89; People v. Holloway (2004) 33 Cal.4th 96, 

124-125.)

The trial court did not inquire into the reason for juror 

no. 2’s unavailability after March 8. Although a juror’s 

unavailability to serve on the jury would constitute good cause for 

discharge, it may well have been that juror no. 2 had a doctor’s 

appointment, a work commitment, or other short-term 

unavailability after March 8 that could have been accommodated.

Further, the court did not expressly state its reasons for 

discharging juror no. 2 other than the juror’s general statement 

he was not available. Because the record does not reflect good 

cause for discharging juror no. 2, the court abused its discretion.

23

However, Perez has failed to establish he was prejudiced by 

discharge of the juror under the Watson harmless error standard.

(See People v. Henderson (2022) 78 Cal.App.5th 530, 566-567

23 We recognize the trial court informed juror no. 2 that if the 

trial ran past March 8, the court would replace him with an 

alternate. Thus, the juror had a reasonable expectation he would 

not have to serve after that date. However, the court’s statement

was made without inquiry into the reason for the juror’s 

unavailability, and it cannot take precedence over Perez’s right to 

have the jury decide the case absent good cause for discharge of 

the juror. 
49

[applying Watson harmless error standard to discharge of juror 

without good cause]; People v. Bowers (2001) 87 Cal.App.4th 722,

735 [same].) There is no evidence as to how juror no. 2 voted 

when the jury deadlocked on count 1, voting 11 to one and then 

10 to two. Further, Perez does not contend the alternate juror 

was biased or incompetent. Perez “has a right to jurors who are 

qualified and competent, not to any particular juror.” (People v. 

Tate (2010) 49 Cal.4th 635, 672.) Therefore, Perez has not shown 

it is reasonably probable that had juror no. 2 not been excused, 

Perez would have obtained a more favorable verdict. (Henderson, 

supra, 78 Cal.App.5th at p. 567; Bowers, supra, 87 Cal.App.4th at 

p. 735.) 

F. Substantial Evidence Supports the Convictions Except for 

Felony Child Abuse Charged in Count 4 as to Chanish 

1. Standard of review 

“When a defendant challenges the sufficiency of the 

evidence for a jury finding, we review the entire record in the 

light most favorable to the judgment of the trial court. We 

evaluate whether substantial evidence, defined as reasonable and 

credible evidence of solid value, has been disclosed, permitting 

the trier of fact to find guilt beyond a reasonable doubt.” 

(People v. Vargas (2020) 9 Cal.5th 793, 820; accord, People v. 

Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri) [“‘To assess the 

evidence’s sufficiency, we review the whole record to determine 

whether any rational trier of fact could have found the essential 

elements of the crime or special circumstances beyond a 

reasonable doubt.’”].) “‘“Conflicts and even testimony [that] is 

subject to justifiable suspicion do not justify the reversal of a 

judgment, for it is the exclusive province of the trial judge or jury 

to determine the credibility of a witness and the truth or falsity of 
50

the facts upon which a determination depends. [Citation.] We 

resolve neither credibility issues nor evidentiary conflicts; we 

look for substantial evidence.”’” (Penunuri, at p. 142; accord,

People v. Mendez (2019) 7 Cal.5th 680, 703.)

“‘“The standard of review is the same in cases in which the 

prosecution relies mainly on circumstantial evidence.”’” 

(People v. Vargas, supra, 9 Cal.5th at p. 820; accord, People v. 

Rivera (2019) 7 Cal.5th 306, 324.) “‘We presume in support of the 

judgment the existence of every fact the trier of fact reasonably 

could infer from the evidence. [Citation.] If the circumstances 

reasonably justify the trier of fact’s findings, reversal of the 

judgment is not warranted simply because the circumstances 

might also reasonably be reconciled with a contrary finding.’” 

(People v. Westerfield (2019) 6 Cal.5th 632, 713 (Westerfield); 

accord, Penunuri, supra, 5 Cal.5th at p. 142 [“‘A reversal for 

insufficient evidence “is unwarranted unless it appears ‘that 

upon no hypothesis whatever is there sufficient substantial 

evidence to support’” the jury’s verdict.’”].)

2. Substantial evidence supports Perez’s conviction of 

felony child abuse (count 4)

As discussed, Perez was charged in count 4 with felony 

child abuse based on the theory he hit Kyis in the groin sometime 

between September 1 and 8, 2018, inflicting unjustifiable 

physical pain on Kyis. Substantial evidence supports the jury’s 

finding that Perez inflicted the groin injury. Chanish and Perez 

had custody of Kyis on September 7, when Kyle met them at an 

exchange location in Los Banos for the custody exchange. The 

next day Kyle watched Kyis during Lydia’s birthday party, and 

Kyle did not observe any injuries. But when Kyle helped Kyis 

remove his wet clothing for a bath, Kyis complained of pain when 
51

Kyle started pulling down Kyis’s pants. At that point Kyle 

noticed the large bruise on Kyis’s groin area, and when Kyle 

asked what had happened, Kyis responded that “‘Steve had 

punched me in the night.’” Kyle asked Lartigue to take a look at 

Kyis. Lartigue heard Kyis crying and saw a “blue and kind of 

purple-ish” bruise on Kyis’s groin area. Lartigue testified Kyis 

“was actually kind of scared and nervous” to say what had 

happened, but Kyis stated consistently that Perez “had went in 

his room at night and had punched him in his groin.” Kyis 

repeated his statement that “Steve hit me” two days later to 

Ruezga and Officers Cuevas and Battles during an interview at 

the Dos Palos police station. 

Perez suggests Kyis may have sustained the injury at the 

party because if Kyis had sustained a groin injury before Kyle 

picked him up on Friday, Kyis likely would have complained 

about it. But Kyis was nervous about telling Kyle about his 

injury, and he only disclosed it after Kyle asked what had

happened. Further, there is no evidence Kyis was injured at the 

party. The jury could have reasonably inferred that Kyis did not 

disclose the abuse until Kyle saw the injury and asked what had 

happened because Kyis was scared to reveal it. 

Perez also asserts multiple arguments why it was Chanish

who caused the injury. He notes the photograph of Kyis’s groin 

injury (exhibit 101) only corroborated that Kyis was injured, not 

that Perez caused the injury.24 Further, Kyis made numerous 

24 Perez also argues the prosecutor did not present any 

evidence to establish who took the photograph or when it was 

taken. However, Lartigue testified Kyle photographed Kyis’s 

groin injury. And Kyle testified that on September 8 he sent 

Chanish’s grandmother a photograph of the groin injury because 
52

conflicting statements regarding other injuries he sustained in 

October, including that two different students threw a toy truck 

at him and Kyle had hit him after Kyis broke a piece of Kyis’s 

bicycle. And Kyis’s unsolicited statement to Ruezga that Perez 

hit him after Ruezga asked him about school, as well as Kyis’s 

inability to answer follow-up questions from Officer Battles,

showed Kyis had been coached. Perez also relies on evidence 

Chanish became easily frustrated with Kyis, exhibited 

inappropriate parenting behavior, and lied about how Kyis 

sustained his other injuries. By contrast, there was no evidence 

Kyis was afraid of Perez, and Perez was able to comfort Kyis 

after Officer Cuevas drove Kyis and Chanish home from the 

unsuccessful October 30 MDIC interview. In addition, Perez 

argues Kyis had a motive to lie because he wanted to spend more 

time with Kyle.25

Although the jury could have found Perez’s contentions 

persuasive, it did not. As discussed, on appeal we consider 

whether substantial evidence supports the jury’s finding, not 

whether the circumstances could have supported a contrary 

finding. (Westerfield, supra, 6 Cal.5th at p. 713; Penunuri, supra, 

5 Cal.5th at p. 142.) Kyis’s consistent statements that Perez had 

she did not believe him. Officer Cuevas likewise testified Kyle 

showed the officers a picture of Kyis’s groin injury on September 

10. In light of this testimony, the jury could reasonably have 

inferred Kyle took the photograph of Kyis’s groin injury on 

September 8. 

25 Perez ignores testimony from Lartigue that Kyis told her 

he did not like Perez, Perez yelled at him, and Perez threw hot 

sauce at him. In addition, as discussed, it is speculative that 

Kyis would have made up the allegation that Perez hit him in 

order to spend more time with Kyle.
53

hit him, first made on the day after Kyle took custody of Kyis 

from Perez and Chanish, along with the photograph of Kyis’s 

significant groin injury, amply support Perez’s conviction of 

felony child abuse as charged in count 4. 

3. Substantial evidence supports Chanish’s convictions 

of felony child abuse for counts 2 and 3 but not 

count 4

The jury was instructed under the third branch of section 

273a, subdivision (a), that to find Chanish guilty of felony child 

abuse, the People had to prove that while having care or custody 

of Kyis, Chanish willfully caused or permitted Kyis’s person or 

health to be injured under circumstances likely to produce great 

bodily harm. (Valdez, supra, 27 Cal.4th at p. 783; see CALCRIM 

No. 821, Alternative C.) Count 4 alleged conduct between 

September 1 and 8, 2018 (the groin injury), count 3 alleged 

conduct between October 12 and 22, 2018 (the facial injuries), 

and count 1 alleged conduct on November 6, 2018 (the abdominal 

injuries that caused Kyis’s death). In her closing argument, the 

prosecutor argued with respect to counts 2 and 3 that Chanish

was “charged with felony child abuse under the theory of 

endangerment for allowing her son to be with this man, who she’s 

been put on notice that has abused him before.” As to count 4, 

the prosecutor similarly argued Chanish permitted Kyis to be 

placed in a situation in which he suffered great bodily injury 

inflicted by Perez. 

To convict Chanish of felony child abuse, the jury had to 

find Chanish willfully caused or permitted Kyle’s person or 

health to be injured. (Valdez, supra, 27 Cal.4th at p. 787; 
54

People v. Flores, supra, 2 Cal.App.5th at p. 874.)26 The mens rea 

for “indirect abuse” under section 273a, subdivision (a), is 

criminal negligence. (Valdez, at pp. 786-787; Flores, at p. 874.) 

Criminal negligence “‘“must be aggravated, culpable, gross, or 

reckless, that is, the conduct of the accused must be such a 

departure from what would be the conduct of an ordinarily 

prudent or careful [person] under the same circumstances as to 

be incompatible with a proper regard for human life . . . or an 

indifference to consequences.”’” (Valdez, at p. 788; accord, Stark 

v. Superior Court (2011) 52 Cal.4th 368, 399.) “‘Under the 

criminal negligence standard, knowledge of the risk is 

determined by an objective test: “[I]f a reasonable person in 

defendant’s position would have been aware of the risk involved, 

then defendant is presumed to have had such an awareness.”’” 

(Valdez, at p. 783; accord, Williams v. Garcetti (1993) 5 

Cal.4th 561, 574 [“there can be no criminal negligence without 

actual or constructive knowledge of the risk”]; People v. Felton 

(2004) 122 Cal.App.4th 260, 269.)

Chanish contends the People failed to present evidence she 

was criminally negligent for permitting Perez to live with Kyis in 

September 2018, enabling Perez to inflict injury on Kyis. We

agree substantial evidence does not support the jury’s finding of 

criminal negligence on count 4. The People argue a reasonable 

26 Valdez considered the fourth branch of child abuse, in 

which a defendant willfully permits a child to be placed in a 

situation where his or her person or health is endangered. 

(Valdez, supra, 27 Cal.4th at p. 787.) However, the criminal 

negligence standard is the same for indirect abuse under either 

the third branch of child abuse (permitting the child’s person or 

health to be injured) or the fourth branch (permitting the child’s 

person or health to be endangered). (Id. at pp. 789-790.)
55

person in Chanish’s position would have been aware in 

September of the risk that Perez would inflict injury on Kyis 

because, as Perez told detectives, he spanked his biological 

children as a form of discipline. Perez admitted in his testimony 

that he spanked his son one time during his relationship with 

Quiroz. However, there is no evidence Chanish was aware that 

Perez had spanked his son. Further, even if Chanish was aware 

that Perez had previously spanked his son, absent evidence the 

discipline was excessive, a reasonable person in Chanish’s 

position would not have suspected that Perez would violently 

injure Kyis. Nor is there any other evidence Chanish was or 

should have been aware of Perez’s violent nature. The People’s 

argument that Chanish should have known about the abuse 

because they lived in a two-bedroom apartment with the 

bedrooms “directly apart from each other” likewise lacks merit

because there is no evidence of the size of the apartment, where 

the abuse took place, or whether Chanish was home when it 

happened. 

The People also rely on Perez’s testimony that Chanish 

would sometimes get frustrated and scream and curse at Kyis 

and that she hit Kyis one time. But the prosecutor did not argue 

at trial that Chanish caused Kyis’s groin injury. And even if the 

jury believed Chanish had hit Kyis one time, this does not bear 

on whether a reasonable person under the same circumstances 

would have been aware of Perez’s likely abuse. We therefore 

reverse Chanish’s conviction on count 4.

Chanish also argues there was not substantial evidence to 

support her convictions on counts 2 and 3 because there is no 

evidence anyone told her that Perez had punched Kyis in 

September, and therefore she would not have been on notice that 

Perez might injure him again. Substantial evidence supports 
56

Chanish’s convictions on both counts. On September 8, after

Kyle discovered Kyis’s groin injury, he called Chanish and asked 

why Kyis had a bruise on his groin area, refusing to return Kyis 

to her care. A few days later Ruezga and Officers Cuevas and 

Battles interviewed Chanish about Kyis’s injury. And the police 

issued a five-day emergency protective order against Chanish 

and Perez after Kyis disclosed that Perez had hit him. The jury 

could have reasonably inferred that Ruezga, Officers Cuevas and 

Battles, or Kyle informed Chanish of Kyis’s accusation against 

Perez during the investigation. A reasonable person in Chanish’s 

position, with knowledge of the accusation against Perez as to the 

September groin injury, would have been aware Kyis was at risk 

of being physically injured by Perez if Kyis continued to reside 

with him. 

4. Substantial evidence supports Perez’s conviction of 

assault on a child causing death (count 1)

“Assault on a child resulting in death requires a showing 

that (1) the defendant had care or custody of a child under eight 

years old, (2) the defendant did an act that by its nature would 

directly and probably result in the application of force to the 

child, (3) the defendant did that act willfully, (4) the force used 

was likely to produce great bodily injury, (5) when the defendant 

acted, he was aware of facts that would lead a reasonable person 

to realize that his act by its nature would directly and probably 

result in great bodily injury to the child, (6) when the defendant 

acted, he had the present ability to apply force likely to produce 

great bodily injury to the child, and (7) the defendant’s act caused 

the child’s death.” (People v. Sanchez (2020) 49 Cal.App.5th 961, 

978; accord, People v. Wyatt (2010) 48 Cal.4th 776, 780.) 

“Because the defendant ‘need not know or be subjectively aware 
57

that his act is capable of causing great bodily injury,’ the 

requisite mens rea may be established ‘even when the defendant 

honestly believes his act is not likely to result in such injury.’” 

(People v. Wyatt (2012) 55 Cal.4th 694, 702.) 

On appeal, Perez argues only that he is not the one who 

committed the act that caused Kyis’s injuries and death. 

Substantial evidence supports the jury’s finding that Perez 

caused the fatal injuries. Dr. Super testified that Kyis died from 

abdominal bleeding caused by one or more punches or kicks likely 

inflicted within three hours before his death at 1:30 a.m. on 

November 7, 2018.27 As Perez concedes on appeal, only Chanish 

and Perez had the opportunity to injure Kyis on the night of 

November 6. It is undisputed that Kyle returned Kyis to Perez 

and Chanish’s home on Monday evening, November 5. Kyis went 

to preschool the next day, and when he returned at noon, Perez 

and Chanish put a blanket outside for Kyis to play on and left 

their apartment door open so they could watch him. There is no 

evidence Kyis suffered an injury that day while in school or while 

he was playing outside. And given the jury’s finding that Perez 

hit or punched Kyis in the groin area two months earlier, causing 

a significant injury, the jury could have reasonably concluded it 

was Perez who again inflicted the injuries on Kyis. 

According to Perez, after dinner he went to the master 

bedroom and watched a basketball game on his cell phone and 

listened to the game through his headphones from approximately 

27 Perez notes Dr. Super acknowledged the injuries could 

have resulted from a fall from a good height onto something 

rounded or a significant bicycle accident. But there is no 

evidence Kyis fell from a tall structure or fell off his bicycle on 

November 6. 
58

6:30 until almost 10:00 p.m. Perez asserts Chanish could have 

hit or kicked Kyis in the abdomen while Perez was watching the 

basketball game or when she went to Kyis’s room before going to 

bed. However, if Chanish injured Kyis prior to 10:00 p.m., it was 

outside the three-hour window Dr. Super identified as when the 

injuries likely occurred.

Perez next argues Chanish was still awake when Kyis 

collapsed, pointing to the November 15 pretext call in which 

Chanish told Lartigue multiple times that she had been awake 

and saw Kyis have a seizure and collapse. But in her November 

20 police interview Chanish told detectives she was asleep when 

Kyis collapsed, and she had lied to Lartigue because she did not 

trust Lartigue and wanted to get her off the phone. Chanish’s 

November 20 statement was consistent with Perez’s statement to 

the detectives that he had to kick the bed to wake up Chanish. It 

was also consistent with Perez’s admission on cross-examination 

that when he said in the 911 call “get your ass up now,” he was 

directing the comment to Chanish. Further, in his November 20 

police interview, Perez admitted Chanish took medication for 

anxiety and depression, which corroborated Chanish’s statement 

to detectives that she took an anti-depressant medication before 

going to bed at 9:00 p.m. 

Perez also points to evidence of Chanish’s inappropriate 

parenting behavior to suggest Chanish caused Kyis’s death. 

When Chanish attempted to buckle Kyis’s seatbelt in Rodriguez’s 

car after leaving the hospital on October 24, Kyis started 

screaming and crying, and Chanish responded by placing part of 

her left hand in his mouth. Chanish told Rodriguez “she couldn’t 

believe that it was okay for [Kyis] to bite her or hit her, but it 

wasn’t okay for her to do the same to him.” When Kyis broke free 

and ran out of the car, Chanish started screaming profanities, 
59

grabbed him by his shirt collar, and pulled him for a few minutes. 

Certainly, Rodriguez’s testimony shows Chanish reacted 

inappropriately to Kyis’s behavior, and the jury could have found 

she was the one who punched or kicked Kyis. But it did not. 

Instead, the jury could have reasonably believed that Chanish 

took anti-depressant medication and went to bed at 9:00 p.m., 

then was asleep when Perez abused Kyis, causing Kyis to 

collapse on the floor. (Westerfield, supra, 6 Cal.5th at p. 713; 

Penunuri, supra, 5 Cal.5th at p. 142.)

G. Perez Was Not Prejudiced by the Cumulative Effect of the 

Errors 

Perez contends he suffered cumulative prejudice from 

multiple errors. “‘[A] series of trial errors, though independently

harmless, may in some circumstances rise by accretion to the 

level of reversible and prejudicial error.’” (People v. Cunningham 

(2001) 25 Cal.4th 926, 1009; accord, In re Reno (2012) 55 Cal.4th 

428, 483 [“In theory, the aggregate prejudice from several 

different errors occurring at trial could require reversal even if no 

single error was prejudicial by itself.”].) In evaluating cumulative 

error, we consider whether the cumulative error caused the trial 

to be fundamentally unfair in violation of the Fourteenth 

Amendment’s due process guarantee. (People v. Rogers (2006) 39 

Cal.4th 826, 890; Cunningham, at p. 1009 [cumulative error did 

not render trial “fundamentally unfair,” observing “[d]efendant 

was entitled to a fair trial but not a perfect one”]; People v. 

Thomas (2021) 64 Cal.App.5th 924, 971 [“‘The “litmus test” for 

cumulative error “is whether defendant received due process and 

a fair trial.”’”].) 

Considered cumulatively, the four errors we found or 

assumed did not affect the outcome of Perez’s trial or render it 
60

fundamentally unfair. As discussed, with respect to the 

instruction on the lesser offense of attempted assault on a child 

causing death, the jury was offered the option to convict Perez on 

the lesser offense but convicted him of the greater offense. As to 

the delay in instructing the jury on assault with force likely to 

produce great bodily injury, 11 of the initial jurors found Perez 

guilty of the greater offense of assault on a child causing death 

even after being instructed on both the greater and lesser 

offenses. Although the court erroneously instructed the jury on 

criminal negligence for the felony child abuse count, in finding 

Perez guilty of child abuse the jury necessarily found Perez hit 

Kyis with the intent to inflict the injury. And Perez failed to 

show it was reasonably likely he would have obtained a more 

favorable verdict had juror no. 2 not been excused.

 

H. Section 654 Does Not Apply to Chanish’s Multiple Child 

Abuse Convictions 

At the time of Chanish’s sentencing, former section 654, 

subdivision (a), provided, “An act or omission that is punishable 

in different ways by different provisions of law shall be punished 

under the provision that provides for the longest potential term of 

imprisonment, but in no case shall the act or omission be 

punished under more than one provision.”28 

28 Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, 

ch. 441), effective January 1, 2022, amended section 654 “to 

remove the requirement that a court impose the longest sentence 

when a defendant is convicted of more than one offense arising 

from the same conduct.” (People v. Lopez (2022) 78 Cal.App.5th

459, 468; accord, People v. Mani (2022) 74 Cal.App.5th 343, 351.)

Current section 654, subdivision (a), provides, “An act or omission 
61

The trial court sentenced Chanish to the middle term of 

four years on count 2, plus consecutive terms of 16 months each

on counts 3 and 4. The court explained, “And I am running them 

consecutive because these were all separate instances that 

happened to Kyis. She was aware of them. And I admit she took 

him to the doctor and appeared to try to be doing what she could, 

but I don’t think she really was doing what she could. . . . Her 

best [course] or way of action would have been to remove him 

from that home. And unfortunately, I’m sure she does regret his 

loss now, and it’s going to be hard for her to 1ive with, but it’s 

still—she lost her chi1d because of those acts.” 

Chanish contends the trial court erred by not staying the

sentence under section 654 on count 3 for felony child abuse 

because her convictions on counts 2 and 3 arose from a single 

course of conduct with a single intent and objective.29 (See People 

v. Rodriguez (2009) 47 Cal.4th 501, 507 [section 654 bars

separate punishment for multiple offenses arising from the same 

act or from a series of acts constituting an indivisible course of 

criminal conduct].) We do not reach whether Chanish’s 

convictions of child abuse arise from an indivisible course of 

that is punishable in different ways by different provisions of law 

may be punished under either of such provisions, but in no case 

shall the act or omission be punished under more than one 

provision.” 

29 Chanish argues the sentences on two of the three counts 

should have been stayed, but because we reverse Chanish’s 

conviction on count 4, we only address whether the court should 

have stayed the sentence on count 3.
62

conduct because section 654 does not apply to Chanish’s 

convictions of the same provision of the Penal Code.

Although not cited by Chanish or the People, in People v. 

Correa (2012) 54 Cal.4th 331, 344 (Correa) the Supreme Court 

held that based on the language and purpose of section 654, it 

only applies to conduct that violates multiple criminal code 

provisions. The defendant in Correa was convicted of seven 

counts of being in possession of a firearm after he was 

apprehended from a house with a cache of seven guns. (Id. at 

p. 334.) In holding section 654 did not apply to bar multiple 

punishment for the convictions, the Supreme Court disapproved 

dictum in footnote 1 of its earlier decision in Neal v. State (1960) 

55 Cal.2d 11, 18, which stated, “Although section 654 does not 

expressly preclude double punishment when an act gives rise to 

more than one violation of the same Penal Code section or to 

multiple violations of the criminal provisions of other codes, it is 

settled that the basic principle it enunciates precludes double 

punishment in such cases also.” (See Correa, at p. 337.)

The Correa court observed the language of section 654 

made clear it only barred punishment for an “‘act or omission 

that is punishable in different ways by different provisions of 

law.’” (Correa, supra, 54 Cal.4th at p. 341.) The court held, 

“[H]aving reconsidered the Neal footnote, we conclude that 

section 654 does not bar multiple punishment for violations of the 

same provision of law. In doing so we reject dictum, correct a 

legally unsupported principle, are more consistent with our later 

jurisprudence, and conform to the plain language of the 

statute.” (Id. at p. 344; accord, People v. Chung (2015) 

237 Cal.App.4th 462, 468 [considering Correa but applying 

section 654 to two counts of transportation of different controlled 
63

substances because the counts were punishable under separate 

provisions of the Health and Safety Code].) 

The Supreme Court in Correa cited with approval its 

earlier decision in People v. Harrison (1989) 48 Cal.3d 321, 337, 

which held section 654 did not apply to bar punishment for three 

convictions of forcible sexual penetration where the defendant 

committed the acts in succession. (See Correa, supra, 54 Cal.4th 

at p. 342.) The Harrison court explained that “[t]o adopt such an 

approach [applying section 654] would mean that ‘once a 

[defendant] has committed one particular sexual crime against a 

victim he may thereafter with impunity repeat his offense,’ so 

long as he does not direct attention to another place on the 

victim’s body, or significantly delay in between each 

offense.” (Harrison, at p. 337.)

Here, as in Correa and Harrison, Chanish was convicted on 

counts 2 and 3 for violation of the same statute—for felony child 

abuse. Thus, section 654 does not apply. To hold otherwise 

would be contrary to the language of section 654, and further, 

would have allowed Chanish to continue to allow Perez access to 

Kyis despite repeated abuse by Perez, without additional 

consequences.

I. Senate Bill 567’s Amendments to Section 1170, 

Subdivision (b), Require Resentencing of Perez on Count 4

At the time of Perez’s sentencing, former section 1170, 

subdivision (b), provided as to offenses for which there are three 

possible terms, “the choice of the appropriate term shall rest 

within the sound discretion of the court.” On count 4 for child 

abuse, the court found the aggravating factors outweighed the 

mitigating factors and imposed the upper term of six years. The 

court explained, “As to count 4, that’s the punch to the groin or 
64

the hit to the groin, I am going to find certain factors in 

aggravation, that crime did involve great body harm or threat of 

great bodily harm. And it did display a high degree of cruelty, 

viciousness and callousness to hit a young boy like that, only five 

years old, in his groin that left a horrible, horrible bruise. [¶] He 

was only five. I think he was particularly vulnerable. I guess 

you could argue it’s a dual use of facts because you had care and 

custody of child. Obviously, children are vulnerable, but I think 

that’s such a young age that makes it extra aggravating. So I’m 

finding that as an aggravating factor as well. I would also find 

under Rule 421(b)(1) that you have engaged in violent conduct 

that does indicate a serious danger to society. So I think those 

are aggravating factors . . . . [I] find the aggravating factors 

outweigh the mitigating factors as to count 4 . . . . So as to 

count 4 you would receive upper term of six years.” 

Senate Bill 567 amended section 1170, subdivision (b), 

effective January 1, 2022, to limit the trial court’s sentencing 

discretion, as follows: “(1) When a judgment of imprisonment is 

to be imposed and the statute specifies three possible terms, the 

court shall, in its sound discretion, order imposition of a sentence 

not to exceed the middle term, except as otherwise provided in 

paragraph (2). [¶] (2) The court may impose a sentence exceeding 

the middle term only when there are circumstances in 

aggravation of the crime that justify the imposition of a term of 

imprisonment exceeding the middle term, and the facts 

underlying those circumstances have been stipulated to by the 

defendant, or have been found true beyond a reasonable doubt at 

trial by the jury or by the judge in a court trial. . . . [¶] 

(3) Notwithstanding paragraphs (1) and (2), the court may 

consider the defendant’s prior convictions in determining 
65

sentencing based on a certified record of conviction without 

submitting the prior convictions to a jury.” 

Perez contends, the People concede, and we agree Senate 

Bill 567’s changes to section 1170, subdivision (b), are retroactive 

under the principles set forth in In re Estrada (1965) 63 Cal.2d 

740, 742 because they lessen the punishment for the offense by 

limiting the trial court’s discretion to impose the upper term of 

imprisonment. (People v. Zabelle (2022) 80 Cal.App.5th 1098, 

1109 [“section 1170’s current statutory language applies 

retroactively in all nonfinal cases”]; People v. Lopez (2022) 78 

Cal.App.5th 459, 465 [“[t]he People properly concede that Senate 

Bill No. 567’s ameliorative amendments to section 1170, 

subdivision (b) apply retroactively to all cases not yet final as of 

January 1, 2022”]; see People v. Frahs (2020) 9 Cal.5th 618, 628 

[“‘Estrada stands for the proposition that, “where the amendatory 

statute mitigates punishment and there is no saving[s] clause, 

the rule is that the amendment will operate retroactively so that 

the lighter punishment is imposed.”’”]; People v. Superior Court 

(Lara) (2018) 4 Cal.5th 299, 307.)

As the People concede, Perez is entitled to resentencing 

under the amendments to section 1170, subdivision (b), because 

in selecting the upper term on count 4, the court relied on 

circumstances in aggravation that were not stipulated to by 

Perez or found true by the jury beyond a reasonable doubt. 

Accordingly, we vacate Perez’s sentence and remand for 

resentencing consistent with section 1170, subdivision (b).
66

DISPOSITION

We affirm Perez’s convictions. We reverse Chanish’s 

conviction on count 4 for felony child abuse and affirm her other 

convictions. We vacate the sentences for Perez and Chanish and 

remand with directions for the trial court to resentence them in 

accordance with the terms of section 1170, subdivision (b)(2), and 

all other applicable, newly enacted ameliorative legislation.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.