Preller

The defendant killed an infant left in his care. Convicted of a violation of Penal Code section 273ab, child abuse resulting in death, and sentenced to an indeterminate prison term of 15 years to life, the defendant appeals. He asserts the jury should have been instructed that, to convict, it had to find a reasonable person would have believed the force he used would have resulted in the child’s death. Since Penal Code section 273ab does not include such an element, we affirm.

Facts and Procedure

The defendant does not challenge the sufficiency of the evidence, so we present a brief summary of the facts.

On January 17, 1995, eight-month-old Nicholas Jones, the son of the defendant’s girlfriend, was left in the defendant’s care. Nicholas began to cry, and the defendant became frustrated and angry because his efforts to quiet the baby were unsuccessful. Finally, he slapped Nicholas twice on the side of the head. Nicholas fell unconscious and into a coma. A neighbor came to visit sometime later and was unable to awaken Nicholas. She took the baby to her mother, who called 911. Nicholas died at the hospital of swelling and bleeding in the brain.

Although the defendant…