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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

BEN WANG,

Defendant and Appellant.

 B302758

 (Los Angeles County

 Super. Ct. No. MA076302)

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.
2

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. 
3

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 
4

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 
5

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 
6

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 
7

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.]” 
8

(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. 
9

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 
10

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 
11

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 nonelement 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