Filed 1/6/ 21 P. v. Wang CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

BEN W ANG,

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 Responde nt.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
instruct ion for the lesser included offense of misdemeanor elde r abuse. F ind ing neither error n or 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 sentence d 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 h usband 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

, intend ing to s t ay until April 15

. Defendant agreed to help them move into his home, to tak e 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 help ed them move and took them to the supermarket once , but then did not provide the agreed

- upon transportation

. O ther conflicts arose: defendant
would not allow Yang and Guo t o sign a written rental agreement ; the couple was not able to lock their doo r; defendant
told them he would not take them to the airport after all; and
defendant pressured them to buy h is vitamin s upplements and
make up 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 cover ed with thick carpet ing

, was separated from the dining room by a partial wall with an open area between
the two rooms. D efendant made several trips into the kitchen, making comments each time , a s he s howed Guo photographs of

wo men

. Yang considered some of the comments to be obscene

, such as: “ L ook at this big ass. And check out the big boobs. Hell

, yeah. That’s going t o feel so good.” Defendant also said to Guo
that Yang was old, ugly, and not sexy , and then laugh ed as he
l eft the room. W ant ing 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 want ed to fight him physically

. She replied that she did not, but did not4

want him to speak as he had. Defendant then stood , turned to
face Yang , step ped 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 h er head and
shoulders

, making a loud boom sound, and after hitting the wall,
she fell to th e 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

up ward

, and said she faked everything. Yang t old 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

. A nd that one

-- that one is pretty.” Guo tried to stop him, but defendant returned several times. Guo

t hought 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 defendan t’s voice and a loud bang on the wall

. Guo immediately went into th e living room, where he saw his wife sitting on the floor near the wall. The distance between that wall5

and defendant’s desk was about 14 feet . W hen Guo came in,
defendant was approximately halfway between the desk and the
wall , facing Yang

. Without say ing anything

, defendant pulled Yang up by her clothing and said that she was faking. Guo called
911 . D efendant 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 d ecided 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

s imple people who did not smoke, were old

, and could help take
care of the house. T he 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
otherwi se 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 i nvited them to take some free of charge. Def

endant 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 p hotographs of women who were colleagues in his company, wearing company uniforms. J okingly

, 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 photog raph of a woman who was over 70 , and that he was only6

joking. Defendant assumed that Guo was happy because he was

a man ; h oweve r , Yang did not look happy, so he did not return to the kitchen.
Defendant went to his study, and was looking on his computer a nd cell phone , when Yang quickly walk e d in and said, “You did that on purpose, didn’t you?” Defendant stood up , and Yang said, “ Y ou purposely wanted to separate us; right ?” Defendant did not reply, and backed away because Yang was then trying to grab his cell phone. When h e 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 pus hed her, claiming he could not
have done so s ince he was holding his cell phone. He also denied making any contact with Yang’s body until he tried to get her up

. He sa id “Stop faking it

, ” because he thought that she was pretending, since she fell on carpet and did not hit the wal l

. 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 pho ne 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 , a nd another when , defendant , Yang and Guo ran to the front yard

-- all after she fell. Defendant then testified that h e took her phone after she called 911 , but he was not certain
whether the call was re al, so he grabbed her husband’s phone,

ran t o the front yard and placed it under the tree. Yang then got7

up, ran to the tree and picked up the phone

. Defendant denied grab bing Yang after she fell. He explained that h e was about to pull her up but she de clined and w aived 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 dan cing.

DISCUSSION
Defendant contends that the trial court erred by failing to give a jury instruction regarding misdemeanor elder abuse.
A lthough a trial court must instruct the jury sua sponte on
a lesser included offense if there is substantial evi dence supporting it, “ t he ‘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.) S ubstantial evidence is “ ‘“‘ evidence
that a reason able 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 mat ter 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 unjustifia ble physical pain .

. . .” (§ 368, subd. (b)(1).)
M isdemeanor 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 .) T he 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 d efendant’s version of the event there is no substantial evidence of either the greater or the lesser offense . If the jury
had been ins tructed with misdemeanor elder abuse and had believed defendant’s testimony, the result would be acquittal, not
a conviction of misdemeanor elder abuse. D efendant’s testimony
thus did not provide substantial evidence justifying the
instruction.
Defendant argues that the version of events given by Yang provided s ubstantial evidence to support an instruction on
misdemeanor elder abuse because the jury could have found that a single push which caus ed her to fall on thick carpet was unlikely to produce great bodily injury. Defendant accomplishes this by combin ing 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 d efendan t testified that he did not push her at
all. Defendant did not testify that the push was not forceful ; indeed, t here was no evidence that the push lacked force, rather that there was no push, forceful or otherwise. Defendant’s testimony that Yang f e ll on c arpet did not provide evidence that a push caused her to fall on carpet. D efendant ’s argument , rather,
relies on the absence of evidence . We rej ect any suggestion that
the absence of evidence can somehow be s ubstantial evidence.
The trial court did not err, but if it had erred, we would
find the error harmless

. “‘ The erroneous failure to instruct on a10

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. [Cit ations.] ’ [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 diff erent 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.)
T rue find ings on special allegations can demonstrate that
the failure to instru ct 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 .) W hile not conclusive, it may be inferred
from the jury’s finding that Yang suffer ed 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

. O bserving that the prosecutor argued that any absence of
intent to i njure Yang did not matter

, defendant contends that the11

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 , t he 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 u sed force not likely to produce great bodily harm.
Since w e 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 abs ence of a n 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