Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 201462
Marchiano, P.J.
A jury convicted defendant Melissa Shelby of aggravated assault, specifically felony assault by any means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) It also convicted her of felony elder abuse—the infliction of unjustifiable physical pain or mental suffering on an elder under circumstances likely to produce great bodily harm, when she knew or reasonably should have known that her victim was an elder. (§ 368, subd. (b)(1).) Defendant claims that the evidence was insufficient to support these convictions. She further contends the trial court erred when it granted the prosecution’s motions in limine to exclude evidence of her mental illness. As discussed below, we find no prejudicial error and affirm the judgment.
Further statutory references are to the Penal Code.
Background
On the morning of November 17, 2006, Raymond Amend, 70 years of age, was walking on a sidewalk in downtown San Francisco, near the intersection of Market and Spear Streets. He saw a stranger, the defendant, quickly approach him from about 10 feet away. At first, Amend thought defendant intended to ask him for money or directions. She did neither, but instead struck him suddenly in the face with her right hand, in which she appeared to be clutching a metal soda can. Defendant’s blow was more of “a chop, not a punch.” Amend momentarily “lost consciousness” and “everything appeared . . . black.” When he regained awareness he was “hunched over” and found he had temporarily lost his color vision. A witness collected his eyeglasses, which were now “lopsided,” some 10 feet away. Amend was left with some “scratch marks” on his nose and afterward experienced “a little bit of a headache.”
An information filed April 19, 2007, set out two counts based on this incident. Count 1 alleged defendant’s commission of aggravated assault in violation of section 245, subdivision (a)(1). Count 2 charged defendant with felony elder abuse in violation of section 368, subdivision (b)(1). Defendant pleaded not guilty to both counts.
A “elder” is defined as a person 65 years of age or older. (§ 368, subd. (g).)
On June 14, 2007, a jury returned verdicts finding defendant guilty of the two felony offenses. At the sentencing hearing, the trial court imposed a two-year-prison sentence—the lower term—for defendant’s conviction of felony elder abuse. It imposed an identical sentence for her conviction of aggravated assault, but stayed the execution of that sentence pursuant to section 654. This appeal followed. (§ 1237, subd. (a).)
Discussion
A. Sufficiency of the Evidence of Aggravated Assault
Defendant argues the evidence was insufficient to find beyond a reasonable doubt that she committed assault “by any means of force likely to produce great bodily injury.” (§ 245, subd. (a)(1).) She reasons that no reasonable jury could have found she employed force “likely to produce great bodily injury,” because the evidence showed only an assault by a diminutive woman on a taller man, and it consisted only of a single fist blow that resulted in nothing more than insignificant or momentary injuries.
In determining evidentiary sufficiency in a criminal prosecution, we review the entire record, in the light most favorable to the judgment, for the presence of substantial evidence—that which reasonably inspires confidence and is of solid value—such that “ ‘[a]nyrational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Marshall (1977) 15 Cal.4th 1, 34 (Marshall), quoting Jackson v. Virginia (1979) 443 U.S. 307, 319, italics in original; see also People v. Chatman (2006) 38 Cal.4th 344, 389.) Under this standard, we do not reweigh the evidence or otherwise attempt to substitute our assessment of the facts for that of the jury. (See People v. Bean (1988) 46 Cal.3d 919, 933.)
An assault “by means of force likely to produce great bodily injury” is essentially an attempt to apply, to the person of another, force of such nature or degree that the probable result of its application would be injury that is significant or substantial rather than insignificant, trivial, or moderate. (People v. Covino (1980) 100 Cal.App.3d 660, 668 (Covino).) The application of force with hands or fists alone may be sufficient to sustain a conviction for such assault. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
In this case, two eye witnesses testified. The first described defendant as five feet three or four inches tall, whereas Amend appeared to be about six feet tall. She described Amend, on the other hand, as an “elderly gentleman” whom she assumed was 70 years old or older, based on his skin tone, his posture, his “thinning gray hair” and his general appearance. According to this witness, defendant shifted so as to throw her “whole body weight” into the blow she delivered to Amend’s face. The blow “looked hard.” It appeared to come as a complete surprise to Amend, because defendant said nothing and gave no indication “that would have alerted him that he was going to be hit.” The blow stopped Amend in his tracks as he leaned over, “stunned.” He had a “a little bit of blood on his face.” The witness helped Amend to a nearby sidewalk café table, contacted 911, and then sat with Amend until police arrived.
The second eyewitness “confirmed that [Amend] was an elderly gentleman . . . 65 [years of age] or so,” after she saw Amend’s gray hair and otherwise “got a very good look at him.” This witness said defendant’s blow was not “a light tap” or “a slap,” but was one accomplished “with some definite force” akin to that which an “angry” person might use “to punch a hole through a wall.” She also stated defendant appeared to be “gripping something” in her hand as she struck the blow. The witness contacted 911 with her cell phone. The sudden, unprovoked nature of defendant’s conduct prompted her to follow the defendant and stay in phone contact to report defendant’s whereabouts to police and thus prevent another attack. Because this witness saw the elderly Amend “crumple” from defendant’s blow, and saw “some blood on his face,” she was also prompted to request that the 911 operator dispatch an ambulance to the scene.
When viewed in the light most favorable to the judgment, the foregoing evidence, together with the testimony of Amend that we summarized previously, shows that defendant delivered a blow with a degree of force akin to that applied in order “to punch a hole through a wall.” She gave Amend a “chop,” squarely in his face. While Amend was taller than defendant he was also, to all reasonable appearances, an elderly man. Defendant threw her entire weight into the blow. She struck without warning, precluding any defensive reaction and ensuring that her elderly victim would suffer the full force and effect of her “hard” blow.
In arguing that Amend’s relatively insignificant injuries precluded a finding that her assault was accomplished “by any means of force likely to produce great bodily injury,” defendant relies primarily on the decision in People v. Fuentes (1946) 74 Cal.App.2d 737 (Fuentes), disapproved on another ground in People v. Yeats (1977) 66 Cal.App.3d 874, 879. We are not persuaded by her analogy to the facts of that case. Here, defendant’s attack was by no means the sort of “fistic encounter[]” that led the reviewing court in Fuentes to emphasize the victim’s actual injury as the determinative “measure of the likelihood of great bodily injury.” (Fuentes, supra, 74 Cal.App.2d at p. 741.) In our view, the decision in Fuentes has been rightly criticized for such emphasis. (See People v. Muir (1966) 244 Cal.App.2d 598, 603-604.) The degree of actual injury is certainly a relevant factor to consider. (Covino, supra, 100 Cal.App.3d at p. 667.) Defendant’s trial counsel accordingly argued that Amend’s resulting injuries indicated an absence of force likely to produce great bodily injury. But the extent of actual injury is not necessarily dispositive and, indeed, no degree of actual injury is required to commit the offense of aggravated assault. (Ibid.)
We conclude that, despite the absence of any severe or permanent actual injury, there was substantial evidence that would permit a rational trier of fact to find beyond a reasonable doubt that defendant committed an assault by means of force likely to produce significant or substantial, rather than trivial, bodily injury.
B. Sufficiency of the Evidence of Felony Elder Abuse
Defendant points out that her conviction for felony elder abuse required proof that she inflicted unjustifiable physical pain or mental suffering on Amend “under circumstances or conditions likely to produce great bodily harm or death.” (§ 368, subd. (b)(1).) She contends the evidence was insufficient to prove this element, and her supporting argument is virtually the same that we discussed above in connection with her challenge to the conviction for aggravated assault. She analogizes and tries to distinguish the facts that led the reviewing court in People v. Racy (2007) 148 Cal.App.4th 1327 (Racy) to affirm a conviction for felony elder abuse. (Id. at pp. 1329-1336.)
The question, however, is not whether defendant’s attack was as egregious as that underlying the conviction upheld in Racy, supra, 148 Cal.App.4th 1327, but whether there was substantial evidence such that a reasonable trier of fact could find, beyond a reasonable doubt, that defendant committed felony elder abuse “under circumstances or conditions likely to produce great bodily harm.”
The “circumstances . . . likely to produce great bodily harm,” for purposes of section 368, subdivision (b)(1), may well be broader than, but certainly include, the particular circumstance of an assault “by any means of force likely to produce great bodily injury.” It was for precisely this reason that the trial court, pursuant to section 654, stayed the sentence it had imposed for defendant’s conviction for aggravated assault. Because we have determined there was substantial evidence to support the jury’s finding that defendant accomplished her assault “by any means of force likely to produce great bodily injury,” we likewise conclude, for the same reasons, that there was substantial evidence to support the finding that she inflicted unjustifiable physical pain on an elder “under circumstances . . . likely to produce great bodily harm.”
Courts have construed the phrase “circumstances . . . likely to produce great bodily harm,” as it appears in the child abuse statutes (§ 273a), to be virtually synonymous with “means of force likely to produce great bodily injury,” as the latter phrase appears in section 245, subdivision (a)(1). Specifically, “[g]reat bodily harm” is deemed to be “significant or substantial injury” as opposed to “trivial or insignificant injury.” (People v. Cortes (1999) 71 Cal.App.4th 62, 80.) The phrase “circumstances or conditions likely to produce great bodily harm,” as it appears in section 368, subdivision (b)(1), is in turn to be construed in the same fashion, because it was borrowed almost verbatim from the child abuse statute. (People v. Heitzman (1994) 9 Cal.4th 189, 204-205.) Accordingly, the jury instruction given in this case, concerning the elements of felony elder abuse, included a statement that “great body injury means significant or substantial physical injury [and] an injury that is greater than minor or moderate harm.” (See CALCRIM No. 830 (2007 ed.).)
C. The Trial Court’s Exclusion of Evidence of Mental Disorder
Before the trial commenced, the prosecuting attorney filed motions in limine that included requests to exclude evidence, including expert opinion testimony, concerning defendant’s mental health status, her diagnosed psychiatric condition, or any other evidence relating to defendant’s psychological disorders, disturbances, or therapy. The basis for the requests was primarily that both charged offenses required only general criminal intent, and that evidence of a mental disorder is not admissible to negate general—as opposed to specific—intent. (See § 28, subd. (a).)
Defendant’s trial counsel, in his subsequent sentencing memorandum, stated as a mitigating factor the fact that defendant had been diagnosed as suffering from schizophrenia. (See Cal. Rules of Court, rule 4.423(b)(2).)
Defendant’s trial counsel submitted opposition to the motions in limine, but included no challenge to the requests to exclude evidence of defendant’s mental disorder. At the hearing on these motions, he agreed that evidence of defendant’s mental disorder could not be used as a defense, and the trial court replied: “I don’t think that you were even asking for that.” Defendant’s counsel also replied in the negative when the trial court asked if he intended to call any expert witnesses on the issue. The court agreed “[a]bsolutely,” with a statement the prosecutor made for clarification, to the effect that such evidence “cannot be used . . . to defend against any of the elements of the crimes, including knowledge.” The trial court then granted the prosecution’s requests, ruling that all evidence relating to defendant’s mental disorder would be excluded.
One element of the crime of felony elder abuse is that the perpetrator must “know[] or reasonably should know” that the victim is an elder, defined as a person 65 years of age or older. (§ 368, subd. (b)(1), italics added; see fn. 2, ante.) Defendant claims that, to the extent that section 368 requires such knowledge, it is a “specific intent” offense within the meaning of section 28, subdivision (a). She claims that the trial court therefore erred when it excluded any evidence of her mental disorder. In her view, the error impinged upon her constitutional due process rights and requires reversal of the conviction for felony elder abuse, because its effect was to preclude her entirely from offering a defense—specifically, that her mental disorder rendered her incapable of forming the requisite knowledge that her victim was an elder.
Section 28, subdivision (a), provides in relevant part that “[e]vidence of mental . . . disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent . . . when a specific intent crime is charged.”
Initially, we note that defendant has forfeited the right to raise this issue on appeal, because her trial counsel offered no objection to the prosecution’s requests to exclude evidence of her mental disorder. (People v. Saunders (1993) 5 Cal.4th 580, 589-590 (Saunders).) The record does not show that she apprised the court of the substance, purpose, and relevance of the excluded evidence, whether by questions asked, an offer of proof, or any other means. (Evid. Code, § 354, subd. (a).)
Defendant argues that any objection would have been futile, because the trial court had stated its ruling “[a]bsolutely.” (See Evid. Code, § 354, subd. (b).) In our view, however, that court did not declare or otherwise indicate its unwillingness even to entertain any argument or offer of proof made in favor of admitting evidence of defendant’s mental disorder. It merely expressed its understanding that her trial counsel had not “even ask[ed] for that.”
Defendant requests alternately that we exercise our discretion to excuse the forfeiture in order to address the merits of her contention. But a reviewing court’s discretion to excuse the forfeiture of an issue involving the exclusion of evidence is essentially barred by Evidence Code section 354. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.) In addition, when the trial court stated that its intended ruling was to exclude any evidence of defendant’s mental disorder “as a defense,” defense counsel replied “[r]ight.” It was at this point the court stated that there was thus an “[e]nd of discussion” of the issue, noting defense counsel had never “even ask[ed] for that.” This colloquy, as well as defendant’s counsel’s remarks indicating that he did not intend to call any expert witnesses on the issue, amounts, in our view, to an express waiver of the right, whether statutory or constitutional, to present evidence of defendant’s mental disorder in order to negate the mental state required for felony elder abuse. (See Saunders, supra, 5 Cal.4th at p. 590, fn. 6.)
In any event, there is no merit to defendant’s argument. The decisions on which she relies involved offenses that included an element of actual knowledge. Thus, the Supreme Court held that a charge of aiding and abetting included an element of “specific intent” for purposes of admitting evidence of voluntary intoxication, because it required that an aider and abettor have actual knowledge of the perpetrator’s criminal purpose, combined with an intent to encourage or facilitate that purpose. (People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123, 1126-1127, 1131 (Mendoza).) Similarly, a Court of Appeal held that the offense of receiving stolen property included an element of “specific intent” for purposes of admitting evidence of mental disorder pursuant to section 28, because the charge required the perpetrator to have actual knowledge that the property received was stolen. (People v. Reyes (1997) 52 Cal.App.4th 975, 984-986 (Reyes).)
Evidence of voluntary intoxication, like that of a mental disorder, is admissible solely on the issue whether or not a defendant formed a required specific intent. (§ 22, subd. (b).)
The opinion in People v. Jefferson (2004) 119 Cal.App.4th 508 (Jefferson) is not precisely on point, yet is instructive concerning the distinction properly to be drawn between the requisite mental states at issue in Mendoza, supra, 18 Cal.4th 1114, and Reyes, supra, 52 Cal.App.4th 975, and the mental state that is required to prove felony elder abuse under section 368, subdivision (b)(1). In Jefferson the defendant was convicted of several counts of battery against correctional officers, which he committed while incarcerated in the psychiatric services unit of a state prison. (Jefferson, supra, 119 Cal.App.4th at pp. 510-512.) On appeal he claimed the trial court had erred in excluding evidence of his mental illness to establish the affirmative defense of self-defense. (Id. at pp. 516, 518-519.) Before the trial the prosecution moved to exclude such evidence, not on the ground of its inadmissibility under section 28, but simply because it was not relevant. The trial court, in granting the motion, had rejected defendant’s argument, the rather novel proposition that evidence of his mental disorder was relevant to establish that a reasonable belief, under the circumstances, was the belief of an individual with a mental illness, who found himself in a “mental health prison ward being treated for [that] illness.” (Jefferson, supra, at pp. 516-517.) When defendant reiterated this argument on appeal, the Court of Appeal likewise rejected it. (Id. at p. 520.) In doing so, the reviewing court noted that the issue was “whether a ‘reasonable person’ in defendant’s situation . . . would be justified in believing he was in imminent danger of bodily harm.” (Id. at p. 519.)The court held that such a “reasonable person” was not properly defined as “one who hears voices due to severe mental illness,” but rather as “an abstract individual of ordinary mental and physical capacity.” (Ibid.) The court thus affirmed that the proper standard to be employed by the jury in determining whether defendant’s belief was “reasonable,” for purposes of acting in self-defense, was an objective rather than subjective standard. (Id. at p. 520.)
The decisions in Mendoza, supra, 18 Cal.4th 1114, and Reyes, supra, 52 Cal.App.4th 975, stand for the proposition that a requisite mental state of actual, subjective knowledge is equivalent to “specific intent” for purposes of sections 28 and 22. Only when actual, subjective knowledge is required can a defendant’s mental disorder or involuntary intoxication have possible relevance to negate the requisite mental state. Here, by contrast, section 368, subdivision (b)(1), requires that a defendant “know[] or reasonably should know” his or her victim is an elder. (Italics added.) The offense of felony elder abuse does not require actual, subjective knowledge, because the requisite knowledge may ultimately be imputed under the same, objective “reasonable person” standard that applied in Jefferson, supra, 119 Cal.App.4th 508, to determine whether a defendant’s belief in the need for self-defense measures was “reasonable.” In short, we conclude that section 368, subdivision (b)(1), does not include a requisite mental state that is the equivalent of “specific intent” for purposes of admissibility of mental illness evidence under section 28, subdivision (a). There was no error in excluding evidence of defendant’s mental disorder in this case pursuant to section 28.
We note further that there were two eyewitnesses in this case, both of whom had not only demonstrated ordinary mental capacity on the witness stand, but also had observed Amend under the same circumstances as defendant. Both regarded Amend as a person aged 65 years or older, based on his hair, posture, or general appearance. The jury also had an opportunity to observe Amend less than a year after the incident. In our view, the jury had before it substantial relevant evidence to find beyond a reasonable doubt that defendant “reasonably should” have known that Amend was an elder, and hence that she had the mental state required for a conviction of felony elder abuse under section 368, subdivision (b)(1).
Disposition
The judgment is affirmed.
We concur: Margulies, J., Flinn, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.