People v. Leyva CA5

INTRODUCTION

Defendant Eddie Leyva and his girlfriend, Vanessa Wolfe, were arrested in 2014 in connection with the death of their three-month-old daughter, Adenalie. They were jointly charged with second degree murder (Pen. Code, §§ 187, subd. (a), 189, subd. (b); count 1),1 assault on a child causing death (§ 273ab; count 2), felony child endangerment of Adenalie (§ 273a, subd. (a); count 3), and misdemeanor child endangerment of Adenalie’s three siblings (§ 273a, subd. (b); count 4). As to defendant, count 3 included an enhancement for personal infliction of great bodily injury. (§ 12022.7, subd. (d).) Defendant and Wolfe were tried together before separate juries. Wolfe is not a party to this appeal.2 After jury selection but prior to the commencement of evidence, the trial court dismissed counts 3 and 4 on the prosecution’s motion. (Former section 1385.)3 During jury deliberations, the trial court declared a mistrial on both counts. Count 2 was subsequently dismissed and defendant was retried on count 1. The jury convicted defendant of second degree murder, and the trial court sentenced him to an indeterminate term of 15 years to life. Defendant advances one claim on appeal:…