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Name: People v. Racy
Case #: C052783
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/27/2007

In a prosecution for felony elder abuse, unanimity is not required as to the acts likely to produce harm or death. Here appellant was convicted of felony elder abuse and residential robbery. The jury was unable to reach a verdict on assault or intimidation charges. Appellant entered the 74-year-old victim’s house without knocking and demanded money. When the victim told him he had none, defendant “zapped” him with a stun gun and then followed him into a bedroom. Although the victim attempted to lock the door, he was thwarted by defendant who was so close behind him that the victim could not close the door. The victim retreated to the bed where he assumed a defensive posture but defendant was able to tip him over and rip the wallet from the victim’s pants. The use of the stun gun could not support the finding of circumstances likely to produce great bodily harm or death as expert testimony would have been required on the effects of a stun gun. However, the jury could have based its verdict on appellant’s other acts. But the conviction was reversed because the court failed to instruct on the lesser offense of misdemeanor felony abuse and with these facts there was a “reasonable chance” the jury would have found a misdemeanor violation if so instructed. The court could use appellant’s statement in the probation report to find a separate intent for robbery and elder abuse for sentencing purposes even though it excluded such evidence from trial. Appellant told the probation officer that he confronted the victim because the victim had assaulted appellant’s mother and appellant was going to make the victim “pay” for what he did.