Filed 6/21/22 P. v. Ulloa CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F078977 Plaintiff and Respondent, (Super. Ct. No. VCF244038) v. JOSEPH AARON ULLOA, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Kathryn L. Althizer and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION Three-month-old Jackson Ulloa1 died from blunt force head trauma inflicted while in the care of Joseph Aaron Ulloa (defendant). A jury convicted defendant of second degree murder and assault on a child causing death. The trial court sentenced defendant to 25 years to life in state prison. On appeal, defendant argues that (1) the murder conviction is not supported by sufficient evidence of implied malice; (2) the trial court erred in admitting defendant’s un-Mirandized prearrest interview with a detective;2 (3) the trial court erred in determining that defendant’s prearrest interview was voluntarily given; (4) the trial court erred in failing to instruct the jury on involuntary manslaughter as a lesser included offense of murder; and (5) we should strike defendant’s $1,000 fine pursuant to Penal Code3 section 294, subdivision (a) as unauthorized. In supplemental briefing, defendant also argues he is entitled to be resentenced under the new sentencing provisions in section 654, which became effective on January 1, 2022. (Stats. 2021, ch. 441, § 1.) The People agree remand is required for resentencing under recently amended section 654, as do we. In resentencing defendant, the trial court shall not impose a fine pursuant to section 294, subdivision (a). We affirm the judgment in all other respects. PROCEDURAL BACKGROUND The District Attorney of Tulare County filed an information on August 22, 2011, charging defendant with murder (§ 187, subd. (a); count 1) and assault on a child causing death (§ 273ab, subd. (a); count 2). As to count 1, the information alleged the special circumstance that the murder was intentional and involved the infliction of torture 1 Pursuant to California Rules of Court, rule 8.90 and for clarity and convenience because some individuals share a last name, we refer to certain persons by their first names and/or initials. No disrespect is intended. 2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) 3 Undesignated statutory references are to the Penal Code. 2. (§ 190.2, subd. (a)(18)). The trial court granted defendant’s motion to set aside the special circumstance allegation for insufficient evidence on June 30, 2017. …
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