Burgess

Certified for Partial Publication. [*]

A jury convicted defendant Christopher Daniel Burgess of first degree murder (Pen.Code, § 187, subd. (a)—count one), assault by a caretaker on a child with force likely to produce great bodily injury which resulted in death (§ 273ab—count two), [1] and infliction of cruel or inhuman corporal punishment on a child which resulted in a traumatic condition (§ 273d—count three). Defendant admitted he had served two prior prison terms. (§ 667.5, subd. (b).) The court sentenced defendant to an aggregate term of 27 years to life: 25 years to life in count one; 25 years to life in count two, which was stayed pursuant to section 654; six years in count three, also stayed pursuant to section 654; and one year for each of the two prior prison term enhancements, consecutive to the term already imposed.

On appeal, defendant contends he is entitled to reversal because the prosecutor committed misconduct, the court provided an inadequate response to a spectator's behavior, and there is insufficient evidence to support his conviction of first degree murder in count one. Defendant also argues the court erred in applying the 15 percent…