Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA319425 Charlaine F. Olmedo, Judge.
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Garmai Shibeshi Fitwi (defendant) appeals from the judgment entered following a jury trial resulting in his convictions of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and elder abuse (§ 368, subd. (b)(1)). In bifurcated proceedings, the trial court found true that defendant had a previous serious felony conviction of assault with a deadly weapon that required a five-year enhancement and qualified him for sentencing pursuant to the “Three Strikes” law. (§§ 667 & 1170.12.) The trial court also found true that defendant had another prior conviction for which he had served a separate prison term. (§ 667.5, subd. (b).) The trial court sentenced him to an aggregate term of 12 years in state prison, consisting of a doubled middle term of three years, or six years, for the aggravated assault, enhanced by five years for the prior serious felony conviction and by one year for the service of a separate prison term.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) that the evidence is insufficient to support a conviction of elder abuse because there is no evidence that defendant knew or reasonably should have known the victim was 65 years of age or older; and (2) the evidence is insufficient to support a finding of a prior serious felony conviction.
Though the initial contention is without merit, we will however reverse the finding of the prior serious felony conviction and remand the cause for a new trial on the truth of the prior serious felony conviction allegations pursuant to sections 667 and 1170.12.
FACTS
William Roller (Roller) has been the bar manager at King Eddie’s Saloon at 5th and Los Angeles Streets in Los Angeles for 32 years. On March 25, 2007, at 5:00 p.m., the bar was busy, but not crowded, and defendant, whom Roller did not know, was inside the bar. Roller was then 68 years old. Defendant complained to Roller that when he had momentarily left the bar to go into the smoke room, a location where patrons could smoke cigarettes, his beer bottle had disappeared. Roller told defendant that Roller had personally picked the beer bottle up as it was empty. Defendant insisted that Roller purchase a new bottle of beer for him, and Roller refused.
Roller testified that defendant became aggressive and hostile, and at that point, Roller told him to “back off.” Defendant insisted that Roller was trying to intimidate him because defendant was African-American. In a raised voice, Roller told defendant to go sit down, that the bottle had been empty, and that if defendant wanted another beer, he would have to buy it himself. Defendant sat down.
Defendant ordered and paid for another bottle of beer. Roller saw defendant take the bottle with him to an area near the smoke room and then attempt to walk outside the bar holding the bottle in his hand. Roller followed defendant outside and attempted to retrieve the bottle as it was illegal for the bar to engage in offsite sales. Roller yelled at defendant, and defendant turned and quickly reversed the hold he had on the bottle. Defendant assumed a defensive posture and refused to give Roller the bottle of beer. Roller reached for the beer bottle and said, “Let me have the bottle.” Roller explained to defendant that Roller could not let defendant remove the bottle from the bar.
Defendant then broke the bottle over Roller’s head. Roller dropped to a knee and got up, and the two of them “wrestled.” Roller believed that defendant was attempting to kill him, and he grabbed defendant in a bear hug. They fell to the ground. Several people separated them. Police arrived. Roller was treated by paramedics for a laceration on his head and cuts and bruises on one hand.
The responding police officer corroborated Roller’s injuries and said that defendant was apparently uninjured. The officer added that they could not find the beer bottle after their arrival and that Roller had speculated that someone on the street had picked it up for recycling.
In defense, defendant testified that he was in the bar watching a sports event. He went outside to smoke a cigarette and left a partially full bottle of beer on a table. As he went outside, he instructed the bartender to “keep this bottle with you.” When defendant returned, the bottle was gone. Another patron claimed that the barmaid had removed the bottle. Defendant ordered another beer and told the bartender that if his beer was picked up again, the bartender would be purchasing his next beer for him.
Halfway through his fourth bottle of beer, defendant left his bottle of beer on a table and walked to the juke box. When he returned to his table, another customer told him that the barmaid had picked up the bottle of beer. Defendant complained, and the bartender told him to speak to Roller. He did so, and Roller refused to buy a new beer for him. Defendant purchased a fifth bottle of beer and told Roller that this time, he was holding onto his beer.
Defendant acknowledged that at this point, he was being loud and disruptive and that he was attempting to annoy Roller. Defendant announced that he was going outside to smoke a cigarette and that he was taking his beer with him. But instead of taking the beer bottle with him, he handed the bottle to another customer. As he walked outside, Roller directed him to leave the bottle inside. Defendant replied that he had no beer.
Roller followed defendant outside. Roller was muttering racial slurs. Roller was convinced that defendant had taken a beer bottle outside the bar with him. Roller punched defendant and grabbed and twisted defendant’s ring finger. Roller cursed at him and asked, “Where is the beer?” Defendant told Roller to leave him alone and defended himself by punching Roller in the head with his left hand. When defendant punched Roller, he cut him with the ring on his hand. Roller tried to “fight again,” or fell against him, and several persons separated them.
After his arrest, defendant had a split lip and was told his finger was broken. Defendant denied that he hit Roller with the beer bottle.
Throughout the trial, defendant questioned the prosecution about the missing beer bottle. If he had taken the beer bottle outside the bar, where was it?
Defendant’s credibility was challenged with a January 4, 2000, conviction for assault with a deadly weapon. Defendant was also impeached with statements he had made to the police in which he admitted that he had left the bar with a bottle of beer and that he used the beer bottle to strike Roller in self-defense.
The trial court sanitized the prior conviction, but defendant denied that it had ever occurred. The trial court permitted the prosecutor to impeach defendant with the certified record of the prior conviction.
During defendant’s direct examination, trial counsel asked whether Roller had informed defendant that he was over 65 years old or whether he knew Roller’s age. Defendant indicated that he was not informed about Roller’s age and that Roller was “old enough.” He testified that Roller was taller than he was.
During final argument, the prosecutor argued that the jurors could use common sense in determining credibility. He said: “You saw Mr. Roller. You saw how he acted and what his demeanor was. You even saw him struggle getting up and down the stand given his age at 69.” He urged that defendant may not have known Roller’s exact age, but he knew how elderly Roller was. Defendant had admitted during his testimony that “he could tell [Roller] was old enough, and he was trying to give him respect because of that.” On the other hand, defendant’s counsel pointed out that Roller was young enough to go running outside the bar chasing defendant.
DISCUSSION
I. Substantial Evidence
Defendant contends that the evidence is insufficient to support his conviction of elder abuse. The contention is not persuasive.
Recently, in People v. Whisenhunt (2008) 44 Cal.4th 174, the California Supreme Court summarized the well-established standard of review. “‘In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility. [Citation.]’ [Citation.]” (Id. at p. 200.)
Section 368, subdivision (b)(1), provides in part that “Any 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 or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering... is punishable....” (Italics added.)
The jury was instructed with CALCRIM No. 830 and that the elements of elder abuse were (1) the defendant willfully inflicted unjustifiable physical pain or mental suffering on the victim; (2) he inflicted suffering on the victim under circumstances or conditions likely to produce great bodily harm or death; (3) the victim was an elder; and (4) that when the defendant acted, the defendant knew or reasonably should have known that the victim was an elder. It further defined “an elder” as someone who is at least 65 years old and that “unjustifiable physical pain or mental suffering” is pain or suffering that is not reasonably necessary or is excessive under the circumstances. The jury was charged that “if an elder does suffer great bodily harm, you may consider that fact, along with the other evidence, in deciding whether the defendant committed the offense.”
Defendant argues that the evidence is insufficient because nothing was presented establishing that defendant had “actual knowledge of Roller’s age.” In his briefing on appeal, defendant claims the evidence was that Roller had not informed defendant of his age. At trial, when defendant was questioned about how old he believed Roller was at the time of the confrontation, defendant replied, “old enough,” and defendant said that he respected Roller because of his age and because he was the bar’s manager. Defendant asserts that the above testimony does not constitute evidence that he was aware of Roller’s age or that he was reasonably aware of Roller’s advanced age.
The latter part of his reply was stricken by the trial court.
Contrary to defendants’ claim, Roller’s actual age, the circumstantial evidence, the photograph of Roller admitted into evidence, and Roller’s appearance before the jury is sufficient to support his conviction of elder abuse. This case is analogous to the decision in People v. Smith (1993) 13 Cal.App.4th 1182, 1190 (Smith). There, the jury found true the two-year enhancement in section 667.9, subdivision (b), committing certain enumerated felony offenses against three classes of vulnerable victims, including persons over 65 years of age or older, with a prior conviction of the same enumerated felonies. An element of that enhancement is that the defendant commit the felony against a person 65 years or older, where the defendant knows or reasonably should have known that his victim was 65 years old or older. (Smith, supra, at p. 1184.) On appeal, the defendant made the very same argument that is raised here. (Id. at p. 1190.)
The Smith court concluded that the trial evidence included the elderly victim’s actual age—the victim was just months short of her 68th birthday at the time the defendant robbed her. (Smith, supra, 13 Cal.App.4th at p. 1190.) Also, the record indicates that at trial, the victim appeared before the jury. (Ibid.) During final argument, the prosecutor noted for the record only that the victim’s hair was gray, but noted no other physical characteristics indicating the victim was older than a certain age. (Ibid.)
The reviewing court rejected the defendant’s claim of insufficient evidence. It observed that from the above evidence, a reviewing court presumes that “the jury could reasonably deduce from its view of [the victim’s] physical appearance that the defendant reasonably should have known that [the victim] was at least 65 years old.” (Smith, supra, 13 Cal.App.4th at pp. 1190-1191)
This court agrees with the decision in Smith and draws a similar conclusion from the instant trial evidence. Although there was no specific evidence describing Roller’s physical appearance and an impression of age in the manner he moved around the courtroom, his actual age at the commission of the offense is part of our record. Roller testified before the jury at trial, and the jury had an opportunity to assess whether he looked as if he was at least 65 years of age. The prosecutor argued to the jury that Roller looked his age and that it was up to the jurors to determine whether defendant reasonably was on notice of Roller’s age from his physical appearance, including his manner of movement at the time of the offense. In addition, the prosecutor had admitted into evidence photographs of Roller’s injuries, which also depicted Roller’s appearance at the time of the event.
Photographs of Roller were entered into evidence as exhibits at trial. This court had the photographs transmitted. (Cal. Rules of Court, rule 8.224(d).)
As the reviewing court did in Smith, on this record, we presume that the jury considered Roller’s appearance in determining whether the offense of elder abuse was proven. The combination of Roller’s actual age, his photograph, and his appearance at trial, supports defendant’s conviction of elder abuse.
II. The Prior Conviction
Defendant contends that the evidence is insufficient to support the trial court’s finding of a prior serious felony conviction.
Before trial, defendant waived his constitutional right to a jury trial on the prior convictions. Following the verdict, the trial court held a court trial on the truth of the prior convictions. After certain identification testimony and a section 969b prison packet was introduced, the court found the allegation to be true. The abstract of judgment in the prison packet for defendant’s 2000 prior conviction described the conviction separately as pursuant to section 245, subdivision (a)(1), and as “ASSLT GBI W/DLY WPN.” The conviction had been obtained by means of a plea. After considering the evidence, the trial court found true that defendant had one prior serious felony conviction, his 2000 felonious assault conviction, that qualified him for a five-year enhancement and for sentencing pursuant to the Three Strikes law.
A prior felony conviction of felonious assault qualifies as a serious felony conviction where the defendant has committed an assault with a deadly weapon. (§ 1192.7, subd. (c)(31).) A conviction of assault by means likely to cause great bodily injury is not a serious felony. (People v. Delgado (2008) 43 Cal.4th 1059, 1070, fn. 4 (Delgado); People v. Banuelos (2005) 130 Cal.App.4th 601, 605.)
As the court in Delgado observed: ‘“[O]fficial government records clearly describing a prior conviction presumptively establish that the conviction in fact occurred, assuming those records meet the threshold requirements of admissibility.”’ (Delgado, supra, 43 Cal.4th at p. 1066.) However, the notations on the abstracts of judgment here referred to both the deadly weapon and GBI prongs of section 245, subdivision (a)(1) in a manner that is unclear as to whether one, the other, or both, of the statutory forms of offense underlie the conviction. The notation is too ambiguous to constitute substantial evidence of the precise factual nature of the prior convictions and to prove that this particular felonious assault conviction qualified defendant for a five-year enhancement and sentencing pursuant to the Three Strikes law. (Delgado, supra, at p. 1070, fn. 4.)
There is an additional document in the section 969b package describing the conviction as “FORCE/ADW NOT FIREARM: GBI.” That document is apparently prepared by a Department of Corrections employee and sent to the Federal Bureau of Investigation pursuant to sections 2082 and 11105. But we have no reasonable basis to believe that the Department of Corrections employee who made the notation had any reliable information concerning the nature of the assault apart from that revealed in the abstract of judgment. (Delgado, supra, 43 Cal.4th at p. 1069.) Accordingly, we decline to consider the contents of this document in determining the sufficiency of the evidence. (Ibid.)
We also decline the People’s suggestion that the evidence is sufficient to support the findings because during the parties’ arguments on the sufficiency of the evidence, the trial court assumed that defendant had used a deadly weapon. Also, contrary to the People’s claim, during cross-examination, defendant did not admit that he had suffered a conviction of assault with a deadly weapon in 2000. He denied that he had such a conviction. And when the prosecutor showed defendant the abstract of judgment in the section 969b package for impeachment and asked defendant whether he had been convicted of assault with a deadly weapon, defendant replied that “I did it because [it] was self-defense. I did not attack these people to rob of—for any aggression.”
We find the evidence in the section 969b package and defendant’s testimony at trial insufficient to demonstrate a prior serious felony conviction within the meaning of section 1192.7, subdivision (c)(31).
We will reverse the trial court’s true findings concerning the allegations of a prior serious felony conviction. (§ 1192.7, subd. (c)(31).) No jeopardy attaches to these findings. Accordingly, on remand, defendant may be retried on the truth of the allegations of the prior serious felony conviction. (People v. Monge (1997) 16 Cal.4th 826, 829; Monge v. California (1998) 524 U.S. 721, 734; People v. Trujillo (2006) 40 Cal.4th 165, 174.)
DISPOSITION
The trial court’s findings on the truth of the prior conviction allegations pursuant to sections 667 and 1170.12 are reversed, and the matter is remanded for a new trial. In all other respects, the judgment is affirmed.
We concur BOREN P. J., DOI TODD J.