Stewart

A jury convicted Willie Stewart, Jr. (Stewart) of assaulting a child under the age of eight years in his custody and care by means of force that to a reasonable person would be likely to produce great bodily injury (GBI) resulting in the child’s death. (Pen. Code § 273ab. ) Subsequently, the trial court found true Stewart had suffered two out-of-state serious felony convictions (§§ 667, subd. (a)(1), 1192.7, subd. (c)(8) & (23)) and that those same priors constituted strikes under the three strikes law. (§§ 667, subds. (b)-(i), 1170.12.) The court sentenced Stewart to a total term of 80 years to life.

Stewart timely appealed. In addition to challenging the sufficiency of the evidence to support his conviction, Stewart contends the trial court committed reversible error by admitting evidence of an earlier act of violence toward the child he killed and by failing to sua sponte instruct the jury on the lesser included offenses of involuntary manslaughter, second degree felony murder, simple assault, assault by means of force likely to produce GBI and battery. He also asserts the true findings regarding his Florida priors must be reversed because there was insufficient…