P.

BACKGROUND

Procedural history Defendant was charged with three felony counts relating to the death of her 18- month-old daughter Emma Barker (Emma):4 first degree murder in violation of Penal Code section 187 (count 1);5 assault on a child under the age of eight, causing death in violation of section 273ab (count 2); and child abuse in violation of section 273a, subdivision (a) (count 3). Count 3 specially alleged infliction of unjustifiable pain on a

1 See Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).)

2 See Massiah v. United States (1964) 377 U.S. 201 (Massiah).

3 See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); Penal Code sections 832.7 and 832.8; Evidence Code sections 1043 through 1047.

4 To avoid confusion we refer to the members of the Barker family by their first names after first mention. No disrespect is intended.

5 All further statutory references are to the Penal Code, unless otherwise indicated.

2 child by a caretaker under circumstances likely to produce great bodily harm and death, and resulting in death, pursuant to section 12022.95.6 After a jury trial, defendant was…