Opinion
D056545
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT BRUCE GROSS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD219486)
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.
A jury convicted Robert Bruce Gross of (1) assault by means likely to produce great bodily injury (count 1: Pen. Code, § 245, subd. (a)(1)) (undesignated statutory references will be to the Penal Code); and (2) felony elder abuse (count 2: § 368, subd. (b)(1)). As to each count, the jury found true a sentence enhancement allegation that Gross personally inflicted great bodily injury upon a person 70 years of age or older (§ 12022.7, subd. (c)). In a bifurcated proceeding, the trial court found true enhancement allegations that Gross had (1) suffered two prior convictions that rendered him ineligible for probation (§ 1203, subd. (e)(4)); (2) served a prior prison term (§§ 667.5, subd. (b), 668); (3) served a prior prison term for a violent felony (§ 667.5, subd. (a)); (4) suffered a prior serious felony conviction (§§ 667, subds. (a)(1), 668, 1192.7, subd. (c)); and (5) suffered a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12 ).
The trial court sentenced Gross to an aggregate prison term of nine years under the Three Strikes law and recommended he be housed in a psychiatric facility.
Gross appeals, contending the trial court erred in failing sua sponte to instruct the jury on the elements of simple assault and misdemeanor elder abuse as lesser included offenses of assault with force likely to produce great bodily injury (count 1) and felony elder abuse (count 2). We affirm.
FACTUAL BACKGROUND
A. The People's Case
In the afternoon on March 15, 2009, as Gross was walking along Garnet Avenue in Pacific Beach, he encountered a young adult skateboarding on the sidewalk in the opposite direction. A witness, Sararenee Garrett, saw Gross punch the skateboarder in the stomach, knocking him down onto the sidewalk. Gross continued walking, and as he crossed to the other side of the street Garrett saw him punch the back of a van that had driven across his path. Gross continued walking after he punched the van.
Irene Abuhamad, who was 84 years old, had white hair and walked with a cane, was walking toward the beach on the sidewalk along Garnet Avenue. As she was stepping down from the sidewalk onto the asphalt to cross Gresham Street, Gross walked toward her and—according to the eyewitness accounts of Garrett, Eden Burch and Gregory Eldridge—punched her hard in the face or purposefully pushed her hard on the upper right shoulder or face, causing her to fall straight back onto the concrete sidewalk. At the scene, passersby who came to Abuhamad's aid found her staring straight up, unresponsive, and bleeding from a big gash on the side of her face.
Gross kept walking as Abuhamad fell onto the concrete. He was eventually apprehended by police officers in a parking lot a few blocks away from the scene of the incident. As Gross was being transported from the police station to the county jail, he began crying and told one of the officers that he felt guilty and that he wanted to quit drinking due to his attack on the woman.
Paramedics transported Abuhamad to the hospital. There she complained of pain and asked for help. A trauma surgeon found that one square centimeter of skin had been torn off her right cheek, which required sutures both underneath the skin and on the skin itself. Abuhamad also suffered a large bruise on the back of her head, a concussion, and tenderness (pain) in her face, neck, chest, back, and left "flank." CT scans revealed a questionable injury to one of the joints in her neck.
Abuhamad was hospitalized for three days and continued to see Dr. Scott Leary, a neurosurgeon. X-rays revealed instability, a condition in which one bone was shifting out of alignment in her neck, which Dr. Leary opined was consistent with a traumatic, unstable spine injury. Abuhamad continued to suffer tremendous pain. Dr. Leary concluded surgery was necessary and found that a joint in the back of Abuhamad's neck was completely torn, requiring him to fuse two of her vertebrae. She required two surgeries: one through the front of the neck to take out the disc and a second through the back.
Dr. Leary opined that Abuhamad's neck injury was consistent with an injury caused by a punch to the face or by a push to the ground by hands to the upper shoulder area and an ensuing fall backwards during which she hit her head on a concrete sidewalk.
Abuhamad testified that as a result of the attack she has difficulty standing on her own. She also stated she cannot go places alone because she is afraid of falling.
B. The Defense Case
Gross testified he did not remember punching a skateboarder, hitting a van, or hitting or pushing Abuhamad. He stated he had been taking Zyprexia and Olanzapine for schizophrenia since 1998, and had taken these medications on the day of the incident.
DISCUSSION
Gross contends the trial court prejudicially erred in failing sua sponte to instruct the jury on the elements of simple assault and misdemeanor elder abuse as lesser included offenses of assault with force likely to produce great bodily injury (count 1) and felony elder abuse (count 2) because, he maintains, there is "ample" evidence from which a reasonable jury could conclude he committed the lesser offenses but not the greater offenses. In response, the People argue the evidence did not support the giving of instructions on the lesser included offenses and, even if the evidence did require instructions on the lesser included offenses, the court's failure to give them was harmless under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
We conclude there is no substantial evidence from which a jury composed of reasonable persons could find Gross was guilty of the lesser included offenses of simple assault and misdemeanor elder abuse but not guilty of the corresponding greater offenses of assault with force likely to produce great bodily injury and felony elder abuse, and thus the court had no duty to sua sponte instruct the jury on the elements of the lesser included offenses. We further conclude that even if the court had erred in failing to instruct the jury on the lesser included offenses, any such error was harmless under the applicable Watson test.
A. Applicable Legal Principles Governing a Trial Court's Duty To Instruct on Lesser Included Offenses
"The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." (People v. Blair (2005) 36 Cal.4th 686, 744 (Blair).) "That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser." (Id. at p. 745.)
"To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist." (Blair, supra, 36 Cal.4th at p. 745, italics added.) Stated differently, "substantial evidence" in this context is evidence from which a jury composed of reasonable persons could conclude the defendant committed the lesser offense but not the greater. (People v. Breverman (1998) 19 Cal.4th 142, 162; see also People v. Moye (2009) 47 Cal.4th 537, 556 [" 'In deciding whether evidence is "substantial" in this context, a court determines only its bare legal sufficiency, not its weight.' "].) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." (Breverman, at p. 162, original italics; see also Moye, at p. 553.)
B. Claim that the Court Had a Duty To Sua Sponte Instruct on Simple Assault
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) An aggravated assault is an assault "with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." (§ 245, subd. (a)(1), italics added.) Simple assault (§ 240) is therefore a lesser included offense of aggravated assault (§ 245, subd. (a)(1)). (People v. McDaniel (2008) 159 Cal.App.4th 736, 747 (McDaniel).)
Here, the court did not instruct the jury on the elements of simple assault, and the jury convicted Gross of aggravated assault based on the prosecution's theory he assaulted Abuhamad by means of force likely to produce great bodily injury. Thus, the question presented by Gross's first instructional error claim is whether there is substantial evidence from which a reasonable jury could find he committed only a simple assault and not an assault by means of force likely to produce great bodily injury. If the trial record contains no such evidence, the court had no duty to sua sponte instruct the jury on the elements of simple assault as a lesser included offense of aggravated assault. (See Blair, supra, 36 Cal.4th at pp. 744-745.)
It is well-established that the use of hands or fists may support a conviction of assault by means of force likely to produce great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 & cases cited therein.) Whether such force "would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied." (McDaniel, supra, 159 Cal.App.4th at pp. 748-749, citing People v. Kinman (1955) 134 Cal.App.2d 419, 422.) Although not conclusive, the results of an assault are highly probative of the amount of force used. (McDaniel, at p. 748, citing People v. Muir (1966) 244 Cal.App.2d 598, 604.)
Here, an instruction on simple assault was not warranted, and the court had no duty to sua sponte give such an instruction because there is no substantial evidence from which a jury composed of reasonable persons could conclude that the force Gross used in assaulting Abuhamad was less than force likely to produce great bodily injury, and thus there is no substantial evidence from which a reasonable jury could find he committed a simple assault and not an aggravated assault. Abuhamad was an elderly woman 84 years of age who was using a cane when Gross assaulted her. She had little if any recollection of the assault. On cross-examination, she was asked, "[Y]ou don't remember what happened that caused you to be in the hospital?" She replied, "Probably because I was attacked. What else?"
However, the detailed testimony of three eyewitnesses regarding the manner in which Gross assaulted Abuhamad—when considered with the uncontested evidence regarding her elderly condition, the fact she was standing on a concrete sidewalk when he knocked her backwards off her feet, and the nature and extent of her injuries—establishes that a reasonable jury could not conclude he used less than force likely to produce great bodily injury. The first eyewitness, Garrett, testified she saw Gross "punch" Abuhamad in the face by swinging at her with either a closed fist or his palm, and she observed him as he "kept walking while [the victim] fell to the ground." Garrett specifically testified that Gross hit the victim "[p]retty hard" in the face, and the victim "fell straight to the cement." Garrett indicated she saw Gross assault the victim after he both "punch[ed]" a man on a skateboard in the stomach, causing him to immediately fall to the ground, and then "punched" or "hit" the back of a van. Garrett also indicated she observed a dent in the back of the van as it drove away and testified Gross might have caused that dent. Garrett also testified that Gross "looked very angry."
Another eyewitness, Burch, who described Abuhamad as "[o]ld, like really old," testified that Gross "pushed" or "shoved" her to the ground "like she was in his way and he was trying to push her out," and Abuhamad "hit her head on the sidewalk and she just laid out [sic]." When the prosecutor asked Burch whether it was a "[s]oft or hard push," she replied, "It was a hard push." (Italics added.) Later, on redirect examination, the prosecutor asked Burch whether this was a "situation where [Gross] put his arms out and the [victim] happened to fall down, or did he push her down?" Burch answered, "He pushed her down on purpose." (Italics added.)
The third eyewitness, Eldridge, testified that Gross "pushed the [victim] in the face . . . and she fell back." The prosecutor asked Eldridge, "What type of physical contact did you see?" Eldridge replied, "Two open hands, fist to the face, really quick swift push." The prosecutor then asked, "What type of movement did the [victim's] body make after he pushed her in the face?" Eldridge responded, "Fell straight on her back and then nothing. Just laid [sic] there motionless." (Italics added.)
The expert medical testimony provided by Dr. Leary, a neurosurgeon, showed that Abuhamad suffered a traumatic, unstable spine injury as a result of Gross's violent use of force against her.
The foregoing evidence thus overwhelmingly shows Gross angrily used a hard or really quick swift punch, push, or shove to the 84-year-old victim's face or upper right shoulder to violently and deliberately knock her straight back off her feet and onto the concrete sidewalk, causing the back of her head to hit the cement. Given the manner in which Gross assaulted Abuhamad, her age and frail condition, the cement surface on which she was standing at the time of the attack, and the serious nature and extent of the injuries she suffered, no reasonable juror could find that the force Gross used on her was less than force likely to produce great bodily injury, and thus no reasonable jury could find that Gross committed only a simple assault and not an aggravated assault. For all of the foregoing reasons, we conclude the court did not err by failing to sua sponte give an instruction on the elements of simple assault as a lesser included offense of assault by means likely to produce great bodily injury.
C. Claim that the Court Had a Duty To Sua Sponte Instruct on Misdemeanor Elder Abuse
Gross also contends the court prejudicially erred in failing sua sponte to instruct the jury on the elements of misdemeanor elder abuse as a lesser included offense of felony elder abuse (count 2: § 368, subd. (b)(1)). We reject this contention.
Felony elder abuse is defined in section 368, subdivision (b)(1), which provides:
"Any person who knows or reasonably should know that a person is an elder or dependent adult 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, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars . . . , or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years." (Italics added.)
"[T]he difference between felony elder abuse and misdemeanor elder abuse is whether the abuse is perpetrated 'under circumstances or conditions likely to produce great bodily harm or death.' If it is, the crime is a potential felony. (§ 368, subd. (b)(1).) If it is not, the crime is a misdemeanor. (§ 368, subd. (c).) Misdemeanor elder abuse is a lesser included offense of felony elder abuse." (People v. Racy (2007) 148 Cal.App.4th 1327, 1334-1335 (Racy), italics added.)
Here, Gross's conviction of felony elder abuse was based on the same facts underlying his conviction of aggravated assault; both convictions resulted from his assault on Abuhamad.
Citing Racy, supra, 148 Cal.App.4th 1327, Gross states that "there is considerable evidence that [he] pushed A[b]uhamad down, rather than striking her with a closed fist," and "[e]ven a very hard push would not necessarily create conditions likely to produce great bodily harm." Thus, he asserts, "[i]t is possible . . . that an elderly person would escape unscathed, as the victim in Racy did after being zapped with a stun gun, chased, struggled with, and tripped."
These assertions are unavailing. For reasons discussed, ante, we have concluded there is no substantial evidence from which a jury composed of reasonable persons could conclude that the force Gross used in assaulting Abuhamad was less than force likely to produce great bodily injury. We also conclude there is no substantial evidence to show Gross was guilty of misdemeanor elder abuse, but not guilty of felony elder abuse, and thus the court had no duty to sua sponte instruct the jury on the elements of misdemeanor elder abuse as a lesser included offense of felony elder abuse.
Gross's reliance on Racy is unavailing because the facts of that case are distinguishable from those here before us. In reversing the defendant's felony elder abuse conviction on the ground the trial court prejudicially erred by failing to instruct the jury on the elements of misdemeanor elder abuse as a lesser included offense of felony elder abuse, the Court of Appeal noted that the victim "did not suffer great bodily harm during the incident, so the jury was left to draw inferences about whether the circumstances or conditions under which defendant inflicted physical pain or mental suffering were likely to produce great bodily harm or death." (Racy, supra, 148 Cal.App.4th at p. 1335, italics added.) The Racy court explained that, "[f]rom the facts that appear in the record, it is reasonable the jury could have viewed [the victim] as a rather large man who was not likely to suffer great bodily injury or death during the incident despite his age and physical limitations. [He] is six feet three inches tall and weighs 210 pounds and even after being 'zapped' with the stun gun and pursued by defendant, he was able to retreat to the bedroom, attempt to make a 911 call, and lie down on the bed in a defensive position. He emerged unscathed after being tipped and tripped." (Id. at p. 1336, italics added.) Thus, the Racy court concluded, "there was a 'reasonable chance' defendant 'would have obtained a more favorable outcome' had the jury been instructed on misdemeanor elder abuse." (Ibid.)
Racy is factually distinguishable and the Court of Appeal's holding is limited to the facts and circumstances presented in that case. Here, Abuhamad, who at 84 years of age when Gross assaulted, her was 10 years older than the Racy victim and walked with a cane. She was thus particularly susceptible to being injured in the event of a fall. (See Racy, supra, 148 Cal.App.4th at p. 1333 ["[A]s a matter of common knowledge, [74 years of age] is an age that carries with it an increased risk of bone fractures from a fall."].) Unlike the Racy victim, who was a large man and who emerged unscathed after being assaulted in his home (id. at p. 1336), Abuhamad suffered great bodily harm when Gross hit, pushed or shoved her with such force that she was knocked off her feet. Because the Racy victim did not suffer great bodily harm, the jury in that case "was left to draw inferences about whether the circumstances or conditions under which defendant inflicted physical pain or mental suffering were likely to produce great bodily harm or death." (Id. at p. 1335.) Such is not the case here.
D. The People's Claim that Any Instructional Error Was Harmless
Assuming arguendo that it was error for the court to fail sua sponte to instruct the jury on the lesser included offenses of simple assault and misdemeanor elder abuse, the People urge us to find that such error was harmless under the Watson test for prejudice (Watson, supra, 46 Cal.2d at p. 836), which the California Supreme Court made applicable to instructional errors of this sort in noncapital cases in Breverman, supra, 19 Cal.4th at pages 177-178. (See Moye, supra, 47 Cal.4th at p. 555.)
1. Watson test
Under the Watson test, an error in failing sua sponte to instruct on a lesser included offense requires reversal of the conviction for the greater offense "if, 'after an examination of the entire cause, including the evidence' [citation], it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (Breverman, supra, 19 Cal.4th at p. 178.) Probability under Watson "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (People v. Superior Court (Ghilotti)(2002) 27 Cal.4th 888, 918 (Ghilotti).)
Breverman explained that 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, 19 Cal.4th at p. 177, original italics.)
2. Analysis
Even if the court erred by failing sua sponte to instruct on the lesser included offenses of simple assault and misdemeanor elder abuse, any such error was harmless under the Watson test as it is not reasonably probable (i.e., there is not a reasonable chance) Gross would have obtained a more favorable outcome had the jury been so instructed. (Breverman, supra, 19 Cal.4th at p. 178; Ghilotti, supra, 27 Cal.4th at p. 918.) We have already concluded that in light of the overwhelming evidence regarding the manner in which Gross assaulted Abuhamad, her age and frail condition, the cement surface on which she was standing at the time of the attack, and the serious nature and extent of the injuries she suffered, no reasonable juror could find that the force Gross used on her was less than force likely to produce great bodily injury.
After reviewing the entire cause, including the evidence, we also conclude it is not reasonably probable Gross would have obtained a more favorable result if the court sua sponte had instructed the jury on the elements of simple assault as a lesser included offense of assault by means likely to produce great bodily injury, or of misdemeanor elder abuse as a lesser included offense of abuse of an elder under circumstances or conditions likely to produce great bodily harm. The evidence supporting Gross's convictions for aggravated assault and felony elder abuse is strong, and the evidence supporting a different outcome is so weak—to the point of being virtually nonexistent—that there is no reasonable probability the instructional errors of which Gross complains affected the result. For all of the foregoing reasons, we affirm Gross's felony convictions in this matter.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. I CONCUR:
McINTYRE, J. Aaron, J., dissenting:
I.
Introduction
In holding that the trial court had no duty to instruct the jury on simple assault and misdemeanor elder abuse as lesser included offenses of the aggravated assault and felony elder abuse, the majority concludes that, as a matter of law, the degree of force that Robert Gross used in assaulting the victim, Irene Abuhamad, was force likely to produce great bodily injury, and similarly, that the abuse was perpetrated under circumstances or conditions likely to produce great bodily harm or death. Because there is substantial evidence from which the jury could have concluded that Gross committed the lesser offenses, but not the greater, I would hold that the trial court erred in failing to instruct on the lesser offenses, and that the error requires that this court reverse Gross's convictions and that the case be remanded for a new trial.
II.
The trial court had a sua sponte duty to instruct the jury on simple assault
Gross was tried for a violation of Penal Code section 245, subdivision (a)(1),1 assault by means of force likely to produce great bodily injury. Great bodily injury is bodily injury that is significant or substantial, not insignificant, trivial or moderate. (See People v. Covino (1980) 100 Cal.App.3d 660, 668.) A simple assault under section 240
1 All statutory references are to the Penal Code. is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."
The central issue with respect to the offense of assault by means of force likely to produce great bodily injury is whether the force used was likely to produce great bodily injury, not whether the force used actually resulted in any injury. (People v. Wingo (1975) 14 Cal.3d 169, 176; see also People v. McDaniel (2008) 159 Cal.App.4th 736, 748 (McDaniel) ["Section 245 'prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury' [citation]"].) "[W]hether the force used by the defendant was likely to produce great bodily injury is a question for the trier of fact to decide. [Citations.]" (People v. Sargent (1999) 19 Cal.4th 1206, 1221 (Sargent).)Further, " '[w]hile . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.' [Citation.]" (McDaniel, supra, at p. 748.)
Two of the three eyewitnesses testified that Gross pushed Abuhamad; the third stated that Gross hit her. "[A] push in itself will not usually constitute force sufficient to support an aggravated assault conviction," although "it may in some circumstances." (People v. Russell (2005) 129 Cal.App.4th 776, 788, italics added.) Whether those circumstances exist is, in my view, a quintessential jury question, not one to be determined as a matter of law by a reviewing court. Based on the testimony that Gross pushed Abuhamad, the jury could have concluded that Gross committed simple assault, i.e., an assault not likely to produce great bodily injury, and not aggravated assault. I would therefore hold that the trial court erred in not submitting to the jury the question whether the degree of force that Gross used was or was not likely to produce great bodily injury.
III.
The trial court had a sua sponte duty to instruct the jury on misdemeanor elder abuse
The difference between felony and misdemeanor elder abuse is "whether the abuse is perpetrated 'under circumstances or conditions likely to produce great bodily harm or death.' [Citation.]" (People v. Racy (2007) 148 Cal.App.4th 1327, 1334 (Racy).) As with the offenses of aggravated assault and simple assault, the question whether the abuse was perpetrated under " 'circumstances or conditions likely to produce great bodily harm or death' is a question for the trier of fact." (Sargent, supra, 19 Cal.4th at p. 1221 [discussing § 273].)
For the reasons discussed in part II, ante, the evidence presented at trial was such that a reasonable jury could have concluded that the force that Gross used against Abuhamad consisted of a push, and that the push was not likely to produce great bodily harm, let alone death. Because there is evidence from which a reasonable jury could conclude that Gross was guilty of elder abuse under circumstances or conditions that were not likely to produce great bodily injury, I would hold that the trial court should have instructed the jury on misdemeanor elder abuse, and that its failure to do so constitutes error.
IV.
The court's failure to instruct on the lesser included offenses was prejudicial
"In a noncapital case, the error in failing to instruct on a lesser included offense is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, which requires reversal of the conviction for the greater offense 'if, "after an examination of the entire cause, including the evidence" [citation], it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred.' " (Racy, supra, 148 Cal.App.4th at p. 1335, citing People v. Breverman (1998) 19 Cal.4th 142, 178 (Breverman).)"Probability under Watson 'does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" (Racy, supra, at p. 1335.)
The fact that the jury convicted Gross of the greater offense rather than acquitting him, or that there may be sufficient evidence to support the convictions for the greater offenses, does not mean that the error in failing to instruct on the lesser included offenses was harmless. (See Breverman, supra, 19 Cal.4th at p. 178, fn. 25.) Yet, in concluding that if the trial court erred in failing to instruct on the lesser offenses, the error was harmless, the majority effectively concludes that, as a matter of law, the force that Gross used was likely to cause great bodily injury. In a case such as the present one, in which the evidence presents a real question as to the degree of force used, the majority usurps the role of the jury in determining the degree of force used.
In my view, the evidence is such that there is more than an abstract possibility that Gross would have obtained a more favorable outcome if the court had instructed the jury on the offenses of simple assault and misdemeanor elder abuse. As noted above, two of the three eyewitnesses to the assault of Abuhamad testified that Gross pushed her, not that he punched her. In addition, there was evidence that Gross punched another victim prior to his encounter with Abuhamad, and that this person appeared to have suffered no injuries at all after Gross's punch knocked him off of his skateboard. Further, the jury deliberated for nearly as long as it took to present the evidence in this case, and initially reported that it was deadlocked on the elder abuse charge before finally reaching a verdict. Under these circumstances, it is reasonably probable—i.e., there is a reasonable chance, more than an abstract possibility—that the jury would have found Gross guilty of the lesser included offenses if the court had provided the jury with instructions on these offenses.
For these reasons, I would reverse Gross's convictions for aggravated assault and felony elder abuse, and would remand for a new trial.
AARON, J.