Cochran

Defendant was convicted by a jury of assault resulting in the death of a child under the age of eight in violation of Penal Code section 273ab. On appeal, defendant claims that the defendant was deprived of a fair trial because two jurors belatedly disclosed that they knew members of the victim’s family, that defendant did not have “care and custody” of the victim at the time of the offense and therefore did not fall within the purview of the statute, and that the court refused to instruct the jury under the prior version of CALJIC No. 2.90 which included the phrase “moral certainty.” We affirm.

Facts

Defendant and the victim’s mother met in 1994 shortly after the birth of Shayla, the victim. After meeting in December, by March 1995, at defendant’s request, mother and the baby moved in with defendant at the home of his grandparents. All three individuals, mother, defendant and the baby slept together in the same room. The victim’s mother described defendant as the child’s surrogate,father in that he watched and fed the baby, gave her baths and helped put her down for naps.

The baby was taken to a hospital emergency room for an ear infection on July 4, 1995. She was…