What is the test for a jury to find a charge of child endangerment a misdemeanor?

" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]' " (People v. Breverman (1998) 19 Cal.4th 142, 154.)

"A trial court must instruct on a lesser included offense if there is substantial evidence from which a reasonable jury could conclude the defendant is guilty of the lesser offense, but not the charged offense. [Citation.] 'In deciding whether evidence is "substantial" in this context, a court determines only its bare legal sufficiency, not its weight.' [Citation.]" (People v. Racy (2007) 148 Cal.App.4th 1327, 1335.)

"The distinction between felony and misdemeanor child endangerment depends on whether the acts or omissions involved circumstances or conditions likely to produce great bodily injury or death to the child (if so, felony 273a, subd. (a); if not, misdemeanor 273a, subd. (b))." (People v. Burton (2006) 143 Cal.App.4th 447, 454, fn. 4.) Defendant argues the jury could have found count one to be a misdemeanor, despite the serious injury to the baby, by finding "the injury was an unexpected, unforeseen, unlikely accident and that situation was unlikely to result in great bodily harm." This argument fails to persuade. Defendant continued to hit J.H. after she picked

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