Filed 11/14/13 P. v. Kao CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C072749

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F05472)

         v.

WEILI KAO,

                   Defendant and Appellant.




         This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Having reviewed the record as required by Wende, we note an error requiring correction
of the abstract and affirm the judgment.
         We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
                        FACTUAL AND PROCEDURAL BACKGROUND
         On May 11, 2004, defendant Weili Kao was at home with her stepdaughter, six-
year-old Truly Lo and defendant’s 16-month-old biological daughter while her husband,


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Truly’s father, was working in the Bay Area. Defendant beat Truly with a plastic hanger,
pulled her ears, and slapped her. She also knocked Truly to the floor twice, causing her
head to strike the floor both times and strangled her to the point of unconsciousness.
Defendant later put Truly to bed.
        Defendant was unable to wake Truly the following morning. She called two
friends and asked the difference between a sleeping and unconscious child. After one
of the friends advised her to take Truly to the hospital, defendant changed her clothes,
dropped her own child off at her sister’s house, and then took Truly to the hospital. As
a result of the attack, Truly was in a persistent vegetative state, but managed to breathe
on her own after life support was removed three days later.
        In case No. 04F04427, defendant was convicted by a jury of three counts of
corporal injury to a child (Pen. Code, § 273d, subd. (a))1 and one count of willful cruelty
to a child (§ 273a, subd. (a)) with enhancements for great bodily injury (§ 12022.7) and
personal use of a deadly weapon (§ 12022, subd. (b)(1)), and sentenced to 16 years six
months in state prison.
        On December 23, 2010, Truly died as a result of the injuries inflicted by
defendant.
        Defendant was charged with murder (§ 187) and assault on a child under the age
of eight with force likely to produce great bodily injury resulting in death (§ 273ab,
subd. (a)) and enhancements for personal use of a deadly weapon (§ 12022, subd. (b)(1)).
After the trial court denied defendant’s section 654 and once in jeopardy motion, the
information was amended to strike the deadly weapon enhancement allegations and
defendant pleaded no contest to second degree murder with the understanding that three
years of custody credits for her time in prison on the prior charges would be waived. The




1   Undesignated statutory references are to the Penal Code.

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trial court sentenced defendant to 15 years to life, stayed the sentence on the counts in
case No. 04F04427 pursuant to section 654, and awarded 1,774 days’ credit, consisting of
1,579 days’ state prison time, 195 days’ presentence time and no conduct credit.
(§ 2933.2.)
       Defendant obtained a certificate of probable cause and appealed.
       We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d
436.) Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief.
       Defendant filed a supplemental brief which asserts the trial court erred in denying
her motion to dismiss the section 273ab charge. She relies on the rule of Kellett v.
Superior Court (1966) 63 Cal.2d 822 (Kellett), and section 194.
       “An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one bars a prosecution for
the same act or omission under any other.” (§ 654, subd. (a).) Applying section 654, in
Kellett, the Supreme Court held: “[w]hen, as here, the prosecution is or should be aware
of more than one offense in which the same act or course of conduct plays a significant
part, all such offenses must be prosecuted in a single proceeding unless joinder is
prohibited or severance permitted for good cause. Failure to unite all such offenses will
result in a bar to subsequent prosecution of any offense omitted if the initial proceedings
culminate in either acquittal or conviction and sentence.” (Kellett, supra, 63 Cal.2d at
p. 827.) Defendant argues she should have been charged with section 273ab in the first
prosecution, and therefore a later prosecution for this offense is barred by Kellett and
section 654.

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       This rule does not apply when the prosecution does not or could not know of an
offense at the time of the original prosecution. (People v. Scott (1997) 15 Cal.4th 1188,
1202.) For example, a guilty plea to rape and attempted murder does not bar prosecution
for murder when the victim dies after the plea. (Id. at pp. 1201-1202.) Here, the child’s
death is an element of section 273ab.2 Since the child did not die until after the first
prosecution, section 654 and the Kellett rule do not bar a subsequent prosecution for
violating section 273ab.
       Defendant’s contention regarding section 194 is also without merit. Section 194
provides in pertinent part: “To make the killing either murder or manslaughter, it is not
requisite that the party die within three years and a day after the stroke received or the
cause of death administered. If death occurs beyond the time of three years and a day,
there shall be a rebuttable presumption that the killing was not criminal. The prosecution
shall bear the burden of overcoming this presumption.” Defendant claims this bars the
later prosecution of section 273ab.
       By its terms, section 194 applies only to murder and manslaughter. Moreover, the
prosecution rebutted the presumption at the preliminary hearing by establishing that that
the injuries Truly sustained on May 11, 2004 resulted in complications that were a direct
cause of her death. Thereafter, defendant entered a plea to the murder charge and the
prosecution was not required to provide any further proof on this issue.




2 Section 273ab, subdivision (a) states: “Any person, having the care or custody of a
child who is under eight years of age, who assaults the child by means of force that to a
reasonable person would be likely to produce great bodily injury, resulting in the child’s
death, shall be punished by imprisonment in the state prison for 25 years to life. Nothing
in this section shall be construed as affecting the applicability of subdivision (a) of
Section 187 or Section 189.”

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       There is an error in the abstract. Even though the trial court ordered the sentence
in case No. 04F04427 stayed, the stay is not reflected in the abstract of judgment. We
shall direct the trial court to prepare a corrected abstract of judgment.
       Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
                                       DISPOSITION
       The judgment is affirmed. The trial court is directed to prepare a corrected
abstract of judgment reflecting that the sentence in case No. 04F04427 was stayed
pursuant to section 654 and to forward a certified copy of the abstract to the Department
of Corrections and Rehabilitation.


                                                            MURRAY           , Acting P. J.


We concur:



             DUARTE                  , J.



             HOCH                    , J.




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