Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino CountySuper.Ct.Nos. FVI022757 & FVI024698, Arthur A. Harrison, Judge.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Angela M. Borzachillo, Deputy Attorney General, for Plaintiff and Respondent.
RAMIREZ, P. J.
Defendant David Walter Johnson appeals his conviction for willful elder abuse in violation of Penal Code section 368, subdivision (b)(1), arguing there is insufficient evidence to support the conviction.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
The victim in this case was defendant’s 70-year-old stepfather. At trial, the victim testified that on the morning of October 11, 2005, he was in the kitchen of his home reading the newspaper. His wife and two stepsons, defendant and Eddie, were in the living room, which is partially open to the kitchen. He heard an argument in the living room and could tell defendant was doing most of the talking. Defendant was getting louder, but the victim could not hear what was being said. He walked into the living room to see what was going on. Defendant was standing at one end of the coffee table, and the victim walked to the other end of the table and said defendant’s name.
Although he does not recall seeing exactly what happened next, the victim said he was pushed backwards down the hallway onto the floor; he hit his head on a dog dish and a door that is approximately 11 or 12 feet away from where he was standing. He believes defendant is the one who pushed him, because defendant is the one who was upset and who was no longer in the room after he fell. When the victim was able to get up, he went to the kitchen and dialed 911 because he had blood coming from his head. He then handed the telephone to his stepson Eddie, and he went out to the garage to get a baseball bat. He brought the baseball bat into the kitchen, because he was scared and did not know what defendant was going to do. At this time, he noticed defendant’s bedroom door was closed. A few minutes later, he heard the front door of the home close and saw defendant walking outside towards his car through the window. The paramedics arrived shortly thereafter and told the victim’s wife to take him to the emergency room for treatment.
During trial, the victim identified a picture of the laceration on his head that was taken in the emergency room. The emergency room physician testified he treated the victim for a bleeding injury to the back of his head using a total of eight staples. The head wound was consistent with blunt force from an object or a fall. The victim also had pain and a contusion on his left shoulder and a bone fracture just above the thumb on his left wrist that “usually occurs from an out-stretched hand fall.”
Defendant testified at trial in his own defense and stated he was involved in a heated argument with his mother and brother on the morning in question, and his mother told him to leave the house. He was upset and headed towards his bedroom. On his way to his bedroom, he saw someone out of the corner of his eye coming towards him from the kitchen. He indicated he was startled or surprised by this, so he put his hands up in a defensive motion. As he moved quickly towards his room, he made contact with someone but did not realize at the time it was his stepfather rather than his brother. He did not stop but kept moving and went into his room, slamming the door behind him. His only concern at the time was to get his shoes and car keys so he could leave the house. He came out of his room after getting his shoes and keys but did not see that anyone had fallen or been hurt. Later that day, he learned he had pushed his stepfather, who had been hurt and had to go to the hospital. He contacted police to make a statement and wrote a letter apologizing to his stepfather.
As a result of the incident, defendant was charged with one count of elder abuse in violation of section 368, subdivision (b)(1) (count 1). It was further alleged that during the offense defendant inflicted “great bodily injury” on his stepfather within the meaning of section 12022.7, subdivision (c). A second charge of battery resulting in serious bodily injury in violation of section 243, subdivision (d), was added by information just before trial (count 2). The jury found defendant guilty of elder abuse, as well as infliction of great bodily injury (count 1), but not guilty of battery resulting in serious bodily injury (count 2).
The elder abuse case (No. FVI022757) was consolidated with a second case (No. FVI024698), arising out of a separate incident. In this separate incident, defendant went to talk to his girlfriend at a restaurant where he knew she was eating lunch after they had broken up. She told him she did not have time to talk, so he drove his car into her car in the parking lot. The girlfriend originally told police defendant intentionally hit the front end of her car with his car, but she later testified she believed the collision was accidental. As a result of this incident, defendant was charged with assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 3). It was also specially alleged that defendant committed this offense while he was released on bail within the meaning of section 12022.1. The jury also found defendant guilty of assault with a deadly weapon on his girlfriend. As a result of the jury’s verdict on the consolidated charges, the trial court sentenced defendant to a total term of 10 years in state prison.
DISCUSSION
Defendant contends there is insufficient evidence to establish he pushed the victim in a manner likely to result in great bodily injury or death as required by section 368, subdivision (b)(1). According to defendant, the evidence merely shows he put his hands up in a defensive stance and pushed the victim out of his way making great bodily injury or death possible, but not “likely” or probable. He claims the facts are only enough to constitute the lesser included offense set forth in section 368, subdivision (a), which applies when an individual harms or endangers an elder under circumstances or conditions other than those likely to produce great bodily injury or death.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (Ibid.)
Under section 368, subdivision (b)(1), a defendant can be convicted of elder abuse if he “knows or reasonably should know that a person is an elder . . . and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder . . . to suffer, or inflicts thereon unjustifiable physical pain or mental suffering.” (Emphasis added.) “Section 368 is patterned on the felony child abuse statute,” and, as a result, it is appropriate for us to look to decisions interpreting that statute when addressing issues related to the scope of section 368. (Roman v. Superior Court (2003) 113 Cal.App.4th 27, 35.)
“ ‘[L]ikely’ ” means “a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death.” (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204.) “ ‘Great bodily harm refers to significant or substantial injury and does not refer to trivial or insignificant injury.’ ” (People v. Cortes (1999) 71 Cal.App.4th 62, 80.) However, it is not necessary that the victim actually suffer great bodily harm or injury, only that the circumstances be likely to produce such injury. (Roman v. Superior Court, supra, 113 Cal.App.4th at p. 35.) Any injuries actually suffered by the victim are, of course, relevant to the consideration of whether the circumstances were likely to produce great bodily injury. (Ibid.) Similar to the term great bodily harm, “great bodily injury” as used in section 12022.7, has been defined as “a significant or substantial physical injury.” (§ 12022.7, subd. (f).)
In our view, a reasonable trier of fact could easily and justifiably conclude from the evidence that the force applied by defendant when he made contact with the victim was “likely to produce great bodily harm” within the meaning of section 368, subdivision (b)(1). First, the injuries actually suffered, which are relevant to our analysis, were significant rather than superficial in that they included a fractured wrist and a head injury requiring eight staples. Second, the jury was not required to believe defendant’s testimony that he did nothing more than raise his hands in a defensive position to protect himself against someone coming towards him without realizing who it was. Defendant’s testimony merely created a conflict in the testimony, which the jury obviously did not resolve in defendant’s favor. Third, the jury’s verdict is not only supported by the injuries actually suffered, but also by the testimony about the distance between the point where defendant came into contact with the victim and where the victim landed and hit his head, some 11 or 12 feet away. In this regard, the jury—having had live witnesses before it who referred to diagrams and pictures which are not before us on appeal—was in the best position to assess credibility and whether the amount of force involved was likely to result in great bodily harm or death. Finally, it is apparent from the victim’s testimony that he was frightened enough by defendant’s demeanor and the amount of force applied to feel compelled to obtain a baseball bat from the garage for protection in case defendant returned. Under these circumstances, we can discern no basis for disturbing the jury’s verdict. The evidence was of solid value and was sufficient to convict defendant of felony elder abuse in violation of section 368, subsection (b)(1).
To support an insufficiency of the evidence argument, defendant cites the recent case of People v. Racy (2007) 148 Cal.App.4th 1327. However, Racy does not support defendant’s argument. The defendant in Racy entered the home of his 74-year-old victim through a back door and demanded money. (Id. at p. 1330.) When the victim stated he did not have the money, defendant shot the victim in the leg with a stun gun and then followed the victim to his bedroom. In the bedroom, defendant shot the stun gun in the air eight to 10 times and continued to demand money. Defendant thwarted the victim’s effort to dial 911, so the victim took a defensive position of lying on his bed with his feet up in order to kick defendant if necessary. Defendant and the victim then struggled, and the defendant was able to tip the victim over, grab his wallet, and run out of the house. During the struggle, the bed was moved approximately one foot and a pocket on the victim’s pants was torn while the wallet was being removed. (Id. at pp. 1330-1331.) The victim did not go to the doctor after the incident, and there was no evidence of any significant injury. At trial, the victim testified the pain from the stun gun was a seven or eight on a scale of one to 10, was not debilitating, and was similar to being poked by an ice pick. (Ibid.) Because there was no expert testimony to show the use of a stun gun on someone of the victim’s age and health was likely to produce great bodily injury, the appellate court concluded the use of the stun gun could not alone establish “circumstances or conditions likely to produce great bodily harm or death.” (Id. at p. 1332.)
Although suggesting it was a close question, the appellate court in Racy concluded the evidence was sufficient to support the jury’s verdict of felony elder abuse in violation of section 368, subdivision (b)(1), when viewed in the light most favorable to the judgment. (Racy, supra, 148 Cal.App.4th at p. 1333.) However, the appellate court reversed the conviction because it found prejudicial error in the trial court’s failure to instruct the jury on the lesser included offense of misdemeanor elder abuse. The appellate court reasoned the evidence of felony elder abuse “was not so compelling that the jury instead could have reasonably reached a guilty verdict of misdemeanor elder abuse” because the victim did not suffer great bodily harm during the incident and was “a rather large man who [the jury could reasonably have concluded] was not likely to suffer great bodily injury or death during the incident despite his age and physical limitations.” (Id. at p. 1336.)
As we understand it, defendant’s argument is essentially that the evidence of force likely to produce great bodily injury in his case was even less compelling than that presented in Racy, so we should therefore be convinced there is insufficient evidence of felony elder abuse in his case. However, Racy is not analogous because, as outlined above, the victim in this case did sustain significant injuries from which a jury could infer an amount of force likely to result in great bodily injury. In addition, the jury in this case was instructed on the lesser included offense of misdemeanor elder abuse under section 368, subsection (c), but apparently rejected it based on matters of credibility.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., MILLER, J.