Filed 5/13/16 P. v. Dean-Baumann CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MELISSA DEAN-BAUMANN,

Defendant and Appellant.

 D069430

 (Super. Ct. No. RIF1210970)

APPEAL from a judgment of the Superior Court of Riverside County, 

Jeffrey J. Prevost, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. 

Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

INTRODUCTION

A jury convicted Melissa Dean-Bauman of second degree murder (Pen. Code, 

§ 187, subd. (a); count 1),1 vehicular manslaughter with gross negligence while 

intoxicated (§ 191.5, subd. (a); count 2), driving under the influence of alcohol and/or 

drugs causing injury (Veh. Code, § 23153, subd. (a); count 3), felony drunk driving (Veh. 

Code, § 23153, subd. (b); count 4), and felony child endangerment (§ 273a, subd. (a); 

count 5). The jury found true allegations Dean-Bauman inflicted great bodily injury on 

victims 70 years of age or older in committing counts 2 through 4 (§ 12022.7, subd. (c)). 

The court sentenced Dean-Baumann to prison for 15 years to life for count 1. The 

court sentenced Dean-Baumann to concurrent terms of six years for count 2 and two 

years each for counts 3 and 4. Pursuant to section 12022.7, subdivision (c), the court 

added a five-year enhancement to the sentence for count 2 and additional enhancements 

of one year and eight months (one-third of the five years) to each of the sentences for 

counts 3 and 4. The court also sentenced Dean-Baumann to one year and four months for 

count 5, to be served consecutively to count 1. Pursuant to section 654, the court stayed 

punishment for counts 2 through 5.

On appeal, Dean-Baumann contends: (1) the court erred in failing to instruct on 

the lesser included offense of misdemeanor child abuse/endangerment (§ 273a, subd. (b)) 

as to count 5 because the jury could have concluded her child was not at great risk of 

bodily injury since the vehicle Dean-Baumann drove while under the influence of both 

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
3

alcohol and drugs was a sports utility vehicle (SUV) as opposed to some smaller vehicle; 

(2) the true finding on the great bodily injury enhancement for count 2 should be stricken 

as unauthorized under section 12022.7; and (3) the drunk driving convictions in counts 3 

and 4 should have been vacated because they are lesser included offenses of the gross 

vehicular manslaughter conviction in count 2. The People concede the second 

contention. Therefore, we strike the enhancement for count 2. We disagree with the 

other contentions and affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

A

In May 2003 a police officer stopped Dean-Baumann after he observed her vehicle 

make a right turn and then a U-turn before it turned left, drove over a sidewalk, through a 

dirt field, and stopped behind a house. When the officer explained why he stopped her, 

Dean-Baumann stated she was going home and this was the quickest route. The officer 

smelled alcohol on her breath and noticed she had bloodshot and watery eyes. She also 

had slurred speech and a dry mouth. Dean-Baumann denied drinking. However, she did 

not perform well on field sobriety tests. She was cooperative, but giggly during the field 

sobriety tests. The results of two preliminary alcohol sensor tests (breathalyzer) were 

0.14 and 0.13. Dean-Baumann was arrested and cited for driving under the influence. 

Later, in 2009, Dean-Baumann was required to attend drug and alcohol counseling 

sessions regarding the impact of driving under the influence.

On September 10, 2012, Dean-Baumann's boyfriend called 911 because he 

suspected she was trying to pick up their child from school after she had been drinking. 
4

Dean-Baumann knocked the phone from his hand as he was calling and she left with the 

child in the car. Her boyfriend told her not to drink and drive with their children in the 

vehicle.

B

On December 13, 2012, at approximately 12:30 p.m., Dean-Baumann ran a red 

light at the intersection of McCall Boulevard and Encanto Drive in Menifee, California. 

She drove her Chevrolet Tahoe into the intersection at a high rate of speed and struck a 

Saturn driving the opposite direction, which was turning left onto Encanto Drive. A 

witness, who was in the left turn lane behind the Saturn, saw the Tahoe come toward the 

intersection without slowing down. The driver of the Tahoe did not appear to be paying 

attention to the road. She had one hand on the steering wheel in the 12 o'clock position 

as she looked toward the right. She appeared to be trying to find something or grab 

something with her other hand. 

Donald F. was taking his 86-year-old wife, Phyllis F., to the hairdresser and turned 

left on a green turn signal from McCall Boulevard onto Encanto Drive. As he did so, his 

vehicle was hit on the passenger side by Dean-Bauman's vehicle. Phyllis F. died from 

blunt impact injuries to the torso as a result of the collision. Donald F. was taken to a 

trauma center. He sustained cuts, bruises and a concussion. 

After the collision, a witness saw Dean-Baumann raise her hands in the air. It 

looked like she was talking or yelling at someone in the back of the vehicle. Another 

witness saw the driver of the Tahoe exit her vehicle crying and holding a child. DeanBaumann's boyfriend, went to the scene to pick up the child. 
5

A community service officer of the Riverside County Sheriff's Department 

responded to the traffic collision. The officer found an elderly male in the driver's seat 

and an elderly female in the front passenger seat. Both were injured. The male was 

bleeding from his head. The female had a large gash wound to the skull. She was 

unresponsive and her head draped forward. The male was alert, but agitated. 

When the responding officer initially contacted Dean-Baumann, she was crying 

and appeared hysterical. Another officer later contacted Dean-Baumann at the scene to 

discuss the accident. Dean-Baumann said she and her daughter had come from Fallbrook 

that morning to purchase a puppy and they were on their way home when the accident 

occurred. She denied drinking or taking medication before the accident other than 

medication for acid reflux.

The officer observed her eyes were bloodshot and watery, her speech was slurred 

and the odor of alcohol emanated from her breath and person. He advised her the 

passenger in the vehicle she hit was dead at the scene. During field sobriety tests, as 

Donald F. was being loaded into an ambulance, Dean-Baumann laughed and talked about 

how hard the tests were and how they were like games children play. 

Dean-Baumann's blood alcohol level was found to be 0.16 percent, which is twice 

the level at which a person is impaired for driving. Since the sample was drawn more 

than an hour after the accident, her blood alcohol level at the time of the accident was 

likely higher than 0.17 percent. She also tested positive for methamphetamine and 

marijuana. The amount of methamphetamine found in her blood was more than three 
6

times the therapeutic level. The levels of cannabinoids found in her blood indicated 

marijuana use within hours of when the blood was drawn.

During an inspection of the SUV, an open empty bottle of vodka was found inside 

a closed compartment between the passenger and driver seat of the SUV under some 

papers. The vehicle also smelled of alcohol.

A deputy sheriff for the Riverside County Sheriff's Department analyzed the crash 

data retrieval (CDR) box in the Tahoe. The CDR records data when it is senses 

something is about to happen. Various things can trigger the module such as braking, the 

start of an impact, deployment of an airbag or a combination of things. The module 

records information prior to the event based on an algorithm from the time the device is 

enabled, i.e., algorithm enabled (AE). In this case, the data showed the vehicle was 

traveling 59 miles per hour five seconds before AE and decelerated to 53 miles per hour 

two seconds before AE. One second before AE, the speed was 29 miles per hour. That 

amount of deceleration could not occur with braking, but instead would occur if the 

vehicle struck something.

C

Dean-Baumann presented evidence she purchased a puppy at a residence 

approximately three miles from the intersection where the accident occurred. The person 

who sold the puppy to Dean-Baumann did not notice she was under the influence of 

alcohol. 
7

DISCUSSION

I

Dean-Baumann contends the court erred in failing to instruct the jury on the 

elements of misdemeanor child abuse or endangerment as a lesser included offense of 

felony child abuse or endangerment, as charged in count 5. Dean-Baumann contends a 

jury could conclude, even though she drove while intoxicated through a red light at a high 

rate of speed and broadsided another vehicle, her child was not endangered under 

circumstances or conditions likely to produce great bodily injury because the child was 

riding restrained in a car seat in the back seat of her SUV. Dean-Baumann claims the 

large, heavy SUV was "somewhat impervious to damage" and the child was "more 

protected than a child in a standard sedan, or small vehicle." We are not persuaded.

A

"A trial court has a sua sponte duty to 'instruct on a lesser offense necessarily 

included in the charged offense if there is substantial evidence the defendant is guilty 

only of the lesser.' [Citation.] Substantial evidence in this context is evidence from 

which a reasonable jury could conclude that the defendant committed the lesser, but not 

the greater, offense. [Citation.] 'The rule's purpose is ... to assure, in the interest of 

justice, the most accurate possible verdict encompassed by the charge and supported by 

the evidence.' [Citation.] In light of this purpose, the court need instruct the jury on a 

lesser included offense only '[w]hen there is substantial evidence that an element of the 

charged offense is missing, but that the accused is guilty of' the lesser offense.' " (People 

v. Shockley (2013) 58 Cal.4th 400, 403-404.) 
8

"[T]he existence of 'any evidence, no matter how weak' will not justify 

instructions on a lesser included offense, but such instructions are required whenever 

evidence that the defendant is guilty only of the lesser offense is 'substantial enough to 

merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is 

' "evidence from which a jury composed of reasonable [persons] could ... conclude[]" ' 

that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 

19 Cal.4th 142, 162 (Breverman).)

"Section 273a defines both felony and misdemeanor child abuse. The criminal 

acts proscribed by section 273a are: (1) willfully causing or permitting any child to 

suffer, or (2) inflicting thereon unjustifiable physical pain or mental suffering, or (3) 

having the care or custody of any child, willfully causing or permitting the person or 

health of such child to be injured, or (4) willfully causing or permitting such child to be 

placed in such situation that his or her person or health is endangered." (People v. 

Moussabeck (2007) 157 Cal.App.4th 975, 980 (Moussabeck).) The Moussabeck court 

explained the difference between felony child abuse or endangerment and misdemeanor 

child abuse or endangerment: "If the act is done under circumstances or conditions likely 

to produce great bodily injury or death, it is a felony (§ 273a, subd. (a)); if not, the 

offense is a misdemeanor (§ 273a, subd. (b)). [Citation.] Misdemeanor child abuse 

(citation), is a lesser included offense of felony child abuse." (Moussabeck, supra, at p. 

980.)

Courts have defined the phrase "circumstances ... likely to produce great bodily 

harm or death" in section 273a to mean " 'the probability of serious injury is great.' "
9

(People v. Sargent (1999) 19 Cal.4th 1206, 1223; People v. Chaffin (2009) 173 

Cal.App.4th 1348, 1351-1353; contra, People v. Wilson (2006) 138 Cal.App.4th 1197, 

1204 [holding the term "likely" in section 273a means "a substantial danger, i.e., a serious 

and well-founded risk, of great bodily harm or death"].) The jury, which convicted DeanBaumann of felony child endangerment, was instructed "[t]he phrase likely to produce 

great bodily harm or death means the probability of great bodily harm or death is high." 

(CALCRIM No. 821.) 

We need not decide the contours of the definition of "likely" in section 273a, 

because, under any standard, we conclude there is no substantial evidence from which a 

reasonable jury could find Dean-Baumann committed misdemeanor child endangerment,

but not felony child endangerment. The evidence in the case showed Dean-Baumann 

consumed alcohol, methamphetamine and marijuana before or while she drove her threeyear-old child from Fallbrook to Menifee to purchase a puppy. She had an open empty 

bottle of vodka in her vehicle. Immediately before the accident, she was driving 59 miles 

per hour on a roadway with a speed limit of 35 miles per hour. She admitted she was not 

looking where she was going as she approached the intersection. She ran a red light at a 

high rate of speed and struck another vehicle, killing one of the occupants. 

Each of the intoxicants, and the combination thereof, impaired Dean-Baumann's 

ability to drive. Dean-Baumann drove under the influence with her child in the car 

knowing the risks involved. She had previously attended courses about the dangers of 

driving under the influence. In addition, her boyfriend had recently called 911 because 
10

he was concerned about her drinking and driving with children in the vehicle. He told 

her not to drink and drive with their children in the car for their safety. 

The fact neither she nor her child were significantly injured in the accident is 

fortuitous, but irrelevant. (People v. Clair (2011) 197 Cal.App.4th 949, 955-956 [lack of 

evidence of actual injury or harm is irrelevant for violation of § 273a, subd. (a)].) We 

cannot agree a reasonable jury could conclude Dean-Baumann's criminally negligent 

conduct did not create a probability of serious injury for her child simply because she was 

driving a large SUV and happened to crash into a smaller vehicle. Even in an SUV, there 

is a significant risk of great bodily injury and death associated with driving under the 

influence of alcohol and drugs. Dean-Baumann's impaired driving could have just as 

easily caused her to become involved in a roll-over accident or a collision with a larger 

vehicle, with a much different outcome for the child. Given the evidence in this case, 

there was no basis upon which to give the instruction on the lesser included offense.

B

Even assuming, arguendo, it was error not to instruct on the lesser included 

offense of misdemeanor child abuse, it was not prejudicial. We review the failure to 

instruct sua sponte on a lesser included offense in a noncapital case under state standards 

of reversibility. (Breverman, supra, 19 Cal.4th at p. 165, citing Cal. Const., art. VI, § 13; 

People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) " 'Appellate review under 

Watson ... takes an entirely different view of the evidence [than that employed when 

considering whether or not to instruct on a lesser included offense]. Such posttrial review 

focuses not on what a reasonable jury could do, but what such a jury is likely to have 
11

done in the absence of the error under consideration. In making that evaluation, an 

appellate court may consider, among other things, whether the evidence supporting the 

existing judgment is so relatively strong, and the evidence supporting a different outcome 

is so comparatively weak, that there is no reasonable probability the error of which the 

defendant complains affected the result. Accordingly, a determination that a duty arose 

to give instructions on a lesser included offense, and that the omission of such 

instructions in whole or in part was error, does not resolve the question whether the error 

was prejudicial. Application of the Watson standard of appellate review may disclose 

that, though error occurred, it was harmless.' " (People v. Moye (2009) 47 Cal.4th 537, 

556 (Moye).)

The evidence in this case overwhelmingly supported the jury's finding DeanBaumann's conduct in driving under the influence of a combination of intoxicants at a 

high rate of speed and not paying attention to the road ahead created a high probability of 

great bodily harm or death for her child who was riding in the vehicle. Speculation the 

child was not at actually at risk of suffering death or great bodily injury because the child 

was in an SUV is so comparatively weak we conclude any instructional error was 

harmless. It is not reasonably probable Dean-Baumann would have obtained a more 

favorable outcome had a misdemeanor child endangerment instruction been given. 

(Moye, supra, 47 Cal.4th at pp. 557-558.)

II

With respect to count 2, the jury convicted Dean-Bauman of vehicular 

manslaughter of Phyllis F. (§ 191.5, subd. (a).) The jury found true allegations Dean-
12

Baumann inflicted great bodily injury upon Donald F. when she committed count 2 

(§ 12022.7, subd. (c)). As a result, the court imposed and stayed the five-year sentence 

enhancement for count 2. 

Dean-Baumann contends, and the People concede, the enhancement for count 2 

must be stricken pursuant to People v. Cook (2015) 60 Cal.4th 922 (Cook). The Supreme 

Court held in Cook great bodily injury enhancements under section 12022.7 do not apply 

to a murder or manslaughter conviction, even if the victim who suffered great bodily 

injury is not the deceased victim. (Cook, supra, at p. 935.) We, therefore, strike the great 

bodily injury enhancement for count 2.

III

Dean-Baumann contends the convictions under counts 3 (Veh. Code, § 23153, 

subd. (a), driving under the influence of alcohol and/or drugs causing injury) and 4 (Veh. 

Code, § 23153, subd. (b), felony drunk driving) should have been vacated because they 

are necessarily included offenses of count 2 (§191.5, subd. (a), gross vehicular 

manslaughter while intoxicated). As a result, Dean-Baumann contends the court erred in 

sentencing her and staying punishment as to these counts under section 654. The People 

contend the convictions under counts 3 and 4 are not necessarily included offenses of 

count 1 because they involve a different victim than charged in count 2. The People are 

correct.

"In general, a person may be convicted of, although not punished for, more than 

one crime arising out of the same act or course of conduct. 'In California, a single act or 

course of conduct by a defendant can lead to convictions "of any number of the offenses 
13

charged." [Citations.]' [Citation.] Section 954 generally permits multiple conviction. 

Section 654 is its counterpart concerning punishment. It prohibits multiple punishment 

for the same 'act or omission.' When section 954 permits multiple conviction, but section 

654 prohibits multiple punishment, the trial court must stay execution of sentence on the 

convictions for which multiple punishment is prohibited. [Citations.] ... [¶] A judicially 

created exception to the general rule permitting multiple conviction 'prohibits multiple 

convictions based on necessarily included offenses.' [Citation.] '[I]f a crime cannot be 

committed without also necessarily committing a lesser offense, the latter is a lesser 

included offense within the former.' " (People v. Reed (2006) 38 Cal.4th 1224, 1226-

1227.)

The Supreme Court has held a defendant in a single driving incident may be 

convicted of multiple crimes where he or she commits vehicular manslaughter in 

violation of the Penal Code as to one victim and drunk driving in violation of the Vehicle 

Code causing injury to a separate victim. (People v. McFarland (1989) 47 Cal.3d 798, 

803 (McFarland).) Noting the crime of vehicular manslaughter with gross negligence 

constitutes a crime of violence against a person, the court held where "a defendant 

commits vehicular manslaughter with gross negligencean act of violence against the 

personhe [or she] may properly be punished [for a violation of the Vehicle Code] for 

injury to a separate individual that results from the same incident." (Id. at p. 804.)

Here, Dean-Baumann was convicted under count 2 for gross vehicular 

manslaughter of Phyllis F. for driving while intoxicated in violation of section 191.5, 

subdivision (a). She was convicted under counts 3 and 4 for causing injury to Donald F. 
14

under Vehicle Code section 23153, subdivisions (a) and (b), for drunk driving. 

Therefore, counts 3 and 4 are not necessarily included offenses of count 2. (McFarland,

supra, 47 Cal.3d at p. 804.) 

The cases cited by Dean-Baumann are single victim cases in which courts have 

held a violation of Vehicle Code section 23153, subdivision (a), for driving under the 

influence is a necessarily included offense of gross vehicular manslaughter while 

intoxicated. (People v. Miranda (1994) 21 Cal.App.4th 1464, 1468; People v. Binkerd 

(2007) 155 Cal.App.4th 1143, 1149 ["where one victim dies from an alcohol-related

accident due to a violation of Vehicle Code [section 23153], the Vehicle Code violation 

would always be a lesser included offense" of vehicular manslaughter while 

intoxicated].) Such cases are inapposite when the charges involve separate victims. The 

court properly sentenced Dean-Baumann as to counts 3 and 4 and stayed the punishment 

for those counts pursuant to section 654.
15

DISPOSITION

The great bodily injury enhancement accompanying count 2 is stricken. The court 

is directed to prepare an amended abstract of judgment reflecting the modification and to 

forward the amended abstract to the Department of Corrections and Rehabilitation. In all 

other respects, the judgment is affirmed.

MCCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

AARON, J.