Malfavon

Jason Michael Malfavon appeals from the judgment sending him to prison for 25 years to life for the death of his girlfriend’s infant daughter, Kendra. A jury found he murdered the child, and, as an alternative charge, found he assaulted Kendra, resulting in her death. (See Pen. Code, §§ 187, 273ab.) On appeal, he contends the evidence was insufficient to sustain the convictions. He also argues that the alternative charge of assault, resulting in death—also known as child abuse homicide—constitutes a violation of due process because it is merely a restatement of murder without the element of malice. Finally, he contends the child abuse homicide is a lesser included offense within the charge of murder, and he can only be convicted of the “greater” of the two, not both. We affirm.

Facts

A week before Christmas, seven-month-old Kendra was brought to the hospital by her mother, Elizabeth, and Elizabeth’s boyfriend, Malfavon. Little Kendra was suffering from a severe skull fracture and brain injury, which were the cause of her death a day later. According to Elizabeth, she went to her apartment to get a few things on the night Kendra was hospitalized, as she intended to spend…