People v. Wang CA2/2 ( 2021 )

Filed 1/6/21 P. v. Wang CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302758
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA076302)
v.
BEN WANG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Ashfaq G. Chowdhury, Judge. Affirmed.
William G. Holzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Noah P. Hill and
Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Ben Wang (defendant) appeals
from his conviction of felony elder abuse. He contends that the
trial court prejudicially erred in failing to give a sua sponte jury
instruction for the lesser included offense of misdemeanor elder
abuse. Finding neither error nor prejudice, we affirm the
judgment.
BACKGROUND
Defendant was charged with the infliction of injury under
circumstances likely to produce great bodily injury, in violation of
Penal Code section 368, subdivision (b)(1).1 It was further
alleged the victim suffered great bodily injury (see §§ 368,
subd. (b)(2) & 12022.7, subd. (a)). A jury found defendant guilty
as charged and the two special allegations to be true. On
November 14, 2019, the trial court sentenced defendant to a term
of five years in prison, execution of sentence stayed, and placed
defendant on formal probation for five years with specified
conditions, including 364 days in jail, with combined custody
credit of 160 days; direct victim restitution; and payment of fines
and fees.
Defendant filed a timely notice of appeal from the
judgment.
Prosecution evidence
Schuzhi Yang
Schuzhi Yang (Yang) testified that at the time of trial,
October 2019, she was 72 years old. On March 1, 2019, she and
her husband Zhaorong Guo (Guo), rented a room in defendant’s
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
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Lancaster home, intending to stay until April 15. Defendant
agreed to help them move into his home, to take them to the
airport when they left for China, and to provide transportation to
the supermarket and hospital where Guo had recently had hip
replacement surgery. Defendant helped them move and took
them to the supermarket once, but then did not provide the
agreed-upon transportation. Other conflicts arose: defendant
would not allow Yang and Guo to sign a written rental
agreement; the couple was not able to lock their door; defendant
told them he would not take them to the airport after all; and
defendant pressured them to buy his vitamin supplements and
makeup products. Defendant also reneged on his agreement to
store the couple’s belongings for one week after April 15.
On April 4, 2019, Yang and Guo were in the kitchen having
dinner and defendant was in the nearby living room. The living
room, which was covered with thick carpeting, was separated
from the dining room by a partial wall with an open area between
the two rooms. Defendant made several trips into the kitchen,
making comments each time, as he showed Guo photographs of
women. Yang considered some of the comments to be obscene,
such as: “Look at this big ass. And check out the big boobs. Hell,
yeah. That’s going to feel so good.” Defendant also said to Guo
that Yang was old, ugly, and not sexy, and then laughed as he
left the room. Wanting to stop defendant from saying such
things, Yang went into the living room where she stood about
three feet from where defendant was sitting at a computer desk.
She asked, “Why are you saying all this nonsense?” He replied
that he was talking to her husband, and “It was none of your
business.” They argued, and defendant asked if she wanted to
fight him physically. She replied that she did not, but did not
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want him to speak as he had. Defendant then stood, turned to
face Yang, stepped toward her, placed both hands on her
shoulders, and pushed her, saying “I’m going to beat you to a
pulp.”
The push caused Yang to hit the wall with her head and
shoulders, making a loud boom sound, and after hitting the wall,
she fell to the floor. Guo immediately entered the room. Yang
felt weakness in her lower back and all over, and was unable to
get up. Defendant then grabbed her by her collar, dragged her
upward, and said she faked everything. Yang told Guo to call
911. Both the police and an ambulance responded. Yang was
taken to the hospital, where she was diagnosed with a fracture in
her back. At the time of trial she still wore a support device
around her waist, had lost five of her 154 centimeters in height,
and could not stand or sit for long periods.
Zhaorong Guo
Guo testified that on April 4, 2019, as he and Yang were
having dinner in the kitchen, defendant repeatedly came into the
room with his cell phone to show him photographs of women.
Defendant said, “Your wife is both old and ugly. Let me
introduce you some more beautiful ones. Look at. Take a look.
This one has big boobs. And that one -- that one is pretty.” Guo
tried to stop him, but defendant returned several times. Guo
thought that defendant was trying to provoke some sort of
disagreement between him and his wife. After Yang went into
the living room, Guo continued eating in the kitchen. He then
heard defendant’s voice and a loud bang on the wall. Guo
immediately went into the living room, where he saw his wife
sitting on the floor near the wall. The distance between that wall
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and defendant’s desk was about 14 feet. When Guo came in,
defendant was approximately halfway between the desk and the
wall, facing Yang. Without saying anything, defendant pulled
Yang up by her clothing and said that she was faking. Guo called
911. Defendant then took the cell phone from him and threw it
into the garden. When Yang was taken to the hospital, Guo went
with her.
Defense evidence
Defendant testified that he decided to rent out a room in
his house after he lost his telemarketing job selling vitamin
supplements. He placed an ad in a Chinese-language newspaper,
received many calls, but chose Yang and Guo because they were
simple people who did not smoke, were old, and could help take
care of the house. The day they moved in, they paid for the one
and a half months they would be there. He helped them move in
and agreed to take them to the airport when they left, but
otherwise they took trains and buses. Defendant claimed that
they had no arguments between March 1 and April 4, and until
then their relationship was good. He denied trying to sell them
vitamin supplements, but had invited them to take some free of
charge. Defendant taught Yang to ballroom dance, and took her
and Guo to the supermarket to buy groceries. Defendant claimed
that Yang never asked about locking their door.
On April 4, defendant went into the kitchen twice to show
Guo photographs of women who were colleagues in his company,
wearing company uniforms. Jokingly, defendant said, “These are
young girls,” and, “They could be my nieces.” Defendant denied
calling Yang old and ugly, and claimed that he was referring to a
photograph of a woman who was over 70, and that he was only
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joking. Defendant assumed that Guo was happy because he was
a man; however, Yang did not look happy, so he did not return to
the kitchen.
Defendant went to his study, and was looking on his
computer and cell phone, when Yang quickly walked in and said,
“You did that on purpose, didn’t you?” Defendant stood up, and
Yang said, “You purposely wanted to separate us; right?”
Defendant did not reply, and backed away because Yang was
then trying to grab his cell phone. When he raised his arm high
to keep her from taking the phone, Yang stood on her toes trying
to reach it. When defendant moved back, Yang failed to stand
steadily, and fell to the floor in a sitting position between the
desk and the wall. She did not hit her head.
Defendant denied having pushed her, claiming he could not
have done so since he was holding his cell phone. He also denied
making any contact with Yang’s body until he tried to get her up.
He said “Stop faking it,” because he thought that she was
pretending, since she fell on carpet and did not hit the wall.
Defendant also thought Yang was faking her injury
because she liked to joke around with him. To prove he was
correct he took her cell phone after she fell, and put it near the
root of the tree outside. He saw Yang run quickly to pick it up,
and quickly run back to sit near the corner of the wall.
Defendant then testified that there had been two trips to retrieve
the cell phone, one to the backyard, when both Yang and Guo ran
there, and another when, defendant, Yang and Guo ran to the
front yard -- all after she fell. Defendant then testified that he
took her phone after she called 911, but he was not certain
whether the call was real, so he grabbed her husband’s phone,
ran to the front yard and placed it under the tree. Yang then got
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up, ran to the tree and picked up the phone. Defendant denied
grabbing Yang after she fell. He explained that he was about to
pull her up but she declined and waived his hand to the side.
Defendant thought Yang was lying when she testified that
he threatened to beat her up. He claimed that before the day of
the incident, Yang had mentioned that she had lower back pain,
but that it improved with dancing.
DISCUSSION
Defendant contends that the trial court erred by failing to
give a jury instruction regarding misdemeanor elder abuse.
Although a trial court must instruct the jury sua sponte on
a lesser included offense if there is substantial evidence
supporting it, “the ‘substantial’ evidence required to trigger the
duty . . . is not merely ‘any evidence . . . no matter how weak’
[citation], but rather ‘“evidence from which a jury composed of
reasonable [people] could . . . conclude[]”’ that the lesser offense,
but not the greater, was committed. [Citations.]” (People v. Cruz
(2008) 44 Cal.4th 636, 664.) Substantial evidence is “‘“‘evidence
that a reasonable jury could find persuasive’” [citation], which, if
accepted, “‘would absolve [the] defendant from guilt of the greater
offense’ [citation] but not the lesser” [citation].’ [Citation.]”
(People v. Licas (2007) 41 Cal.4th 362, 366.) “The obligation to
instruct on lesser included offenses exists even when as a matter
of trial tactics a defendant not only fails to request the
instruction but expressly objects to its being given. [Citations.]”
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(People v. Breverman (1998) 19 Cal.4th 142, 154-155
(Breverman).)2
As relevant here, felony elder abuse occurs when “[a]
person who 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 . . . .” (§ 368, subd. (b)(1).)
Misdemeanor elder abuse occurs when a person with such
knowledge “willfully causes or permits any elder . . . to suffer, or
inflicts thereon unjustifiable physical pain . . . ,” but does so
“under circumstances or conditions other than those likely to
produce great bodily harm or death.” (§ 368, subd. (c).)
Misdemeanor elder abuse is a lesser included offense of felony
elder abuse. (People v. Racy (2007) 148 Cal.App.4th 1327, 1335.)
“In deciding whether there is substantial evidence of a
lesser offense, courts should not evaluate the credibility of
witnesses, a task for the jury.” (Breverman, supra, 19 Cal.4th at
p. 162.) The evidence is viewed in the light most favorable to the
defendant. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368,
fn. 5).
Defendant testified that he did not touch Yang, but merely
held his cell phone out of her reach as she tried to take it from
him while on her tiptoes, and it was her own action which caused
her to lose her balance and fall accidentally. He also testified
that she did not hit her head, did not hit the wall, and her fall did
not cause her pain, as proved by the game he played of taking her
2 The trial court asked counsel whether there was “any issue
about instructing on a lesser included here or no.” Both counsel
said they saw no need for one.
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cell phone to the back yard and then the front yard, and watching
her run to fetch it each time. He also suggested that she had a
preexisting back injury. In essence, defendant described an event
which he did not willfully cause or permit, and he essentially
asserted that he did not willfully cause, permit, or inflict pain.
Under defendant’s version of the event there is no substantial
evidence of either the greater or the lesser offense. If the jury
had been instructed with misdemeanor elder abuse and had
believed defendant’s testimony, the result would be acquittal, not
a conviction of misdemeanor elder abuse. Defendant’s testimony
thus did not provide substantial evidence justifying the
instruction.
Defendant argues that the version of events given by Yang
provided substantial evidence to support an instruction on
misdemeanor elder abuse because the jury could have found that
a single push which caused her to fall on thick carpet was
unlikely to produce great bodily injury. Defendant accomplishes
this by combining parts of his testimony with parts of Yang’s
testimony. Yang testified that defendant pushed her with both
hands against her shoulders with such force that she hit the wall
behind her, while defendant testified that he did not push her at
all. Defendant did not testify that the push was not forceful;
indeed, there was no evidence that the push lacked force, rather
that there was no push, forceful or otherwise. Defendant’s
testimony that Yang fell on carpet did not provide evidence that a
push caused her to fall on carpet. Defendant’s argument, rather,
relies on the absence of evidence. We reject any suggestion that
the absence of evidence can somehow be substantial evidence.
The trial court did not err, but if it had erred, we would
find the error harmless. “‘The erroneous failure to instruct on a
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lesser included offense generally is subject to harmless error
review under the standard of People v. Watson (1956) 46 Cal.2d
818, at pages 836-837. Reversal is required only if it is
reasonably probable the jury would have returned a different
verdict absent the error or errors complained of. [Citations.]’
[Citations.]” (People v. Prince (2007) 40 Cal.4th 1179, 1267; see
also Breverman, supra, 19 Cal.4th at p. 163.) “Appellate review
under Watson, . . . focuses not on what a reasonable jury could
do, but what such a jury is likely to have done in the absence of
the error under consideration. In making that evaluation, an
appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong,
and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result.”
(Breverman, supra, at p. 177.)
True findings on special allegations can demonstrate that
the failure to instruct on a lesser included offense was harmless.
(People v. Hughes (2002) 27 Cal.4th 287, 368, citing People v.
Guiton (1993) 4 Cal.4th 1116, 1130; see People v. Sedeno (1974)
10 Cal.3d 703, 721.) While not conclusive, it may be inferred
from the jury’s finding that Yang suffered great bodily injury,
that the force used was sufficient or likely to cause great bodily
injury. (See People v. McDaniel (2008) 159 Cal.App.4th 736, 748.)
Moreover, as the jury found that Yang suffered great bodily
injury which defendant personally inflicted, it follows that the
jury necessarily rejected the entirety of defendant’s version of the
incident.
Observing that the prosecutor argued that any absence of
intent to injure Yang did not matter, defendant contends that the
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absence of intent is evidence that the force used was unlikely to
cause great bodily injury. We agree that felony elder abuse is not
a specific intent crime. (People v. Thiel (2016) 5 Cal.App.5th
1201, 1213.) However, we do not agree that the absence of a non-
element is somehow evidence. Furthermore, the only evidence of
defendant’s lack of intent to injure Yang was his testimony that
he did not push her at all, not that he used force not likely to
produce great bodily harm.
Since we conclude that the evidence supporting the
judgment is strong, and the evidence supporting a different result
is comparatively weak or nonexistent, we discern no reasonable
probability that the absence of an instruction regarding the lesser
included offense could have affected the outcome. If the trial
court had erred, therefore, the error would be harmless. (See
Breverman, supra, 19 Cal.4th at p. 177.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
HOFFSTADT
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