Cockburn

An information charged defendant Ivan Edward Cock-bum with kidnapping (Pen. Code, § 207, subd. (a), count 1; undesignated section references are to this code); felony child abuse (§ 273a, subd. (a), count 2); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), count 3); and brandishing a deadly weapon, to wit, a knife, a misdemeanor (§ 417, subd. (a)(1), count 4). In connection with count 1 only, it was further alleged that defendant had sustained a prior serious felony conviction, to wit, battery with serious bodily injury (§§ 243, subd. (d), 667, subd. (a)).

A jury acquitted defendant on counts 3 and 4, and deadlocked on counts 1 and 2.

On retrial, the jury convicted defendant on count 2 and acquitted on count l.

Sentenced to state prison for an aggregate term of seven years (the upper term of six years for child abuse plus a consecutive one-third the midterm or one year for battery with serious bodily injury in case No. CM011006), defendant appeals, contending (1) the trial court erroneously instructed that proof of a mental state no more culpable than criminal negligence was sufficient for assaultive child abuse; (2) the trial…