Filed 7/16/15 P. v. Quesenberry CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142923
v.
PIERCE EUGENE QUESENBERRY,                                           (Lake County
                                                                     Super. Ct. No. CR935652)
         Defendant and Appellant.


         Alleging instructional error or, alternatively, ineffective assistance of counsel,
Pierce Eugene Quesenberry appeals from a judgment entered on the verdict of a jury
convicting him of criminal threats (Pen. Code, § 422),1 elder abuse likely to produce
great bodily injury or death (§ 368, subd. (b)(1)), and two misdemeanor violations of
battery against an elder (§ 243.25), all upon his mother. Appellant advances four
arguments: that (1) the trial court had a responsibility to instruct the jury sua sponte on
the meaning of the word “likely” in the context of elder abuse “likely to produce great
bodily injury,” (2) defense counsel’s failure to object to the prosecution’s misstatement of
law as to elder abuse “likely to produce great bodily injury” constituted ineffective
assistance of counsel, (3) defense counsel’s failure to object to the prosecutor’s argument
regarding the testimony of victims of domestic violence, “based on his own supposed
personal experience” also constituted ineffective assistance of counsel, and (4) defense



         1
             All statutory references are to the Penal Code.


                                                             1
counsel’s failure to request that the jury be instructed on accident as a defense to elder
abuse, also constituted ineffective assistance of counsel.
       We shall conclude that these contentions lack merit.
                         FACTS AND PROCEEDINGS BELOW
       At the time of the offenses, Leona Stoll, appellant’s 85-year-old mother, who
walked with a cane due to difficulty maintaining her balance, was receiving medical
treatment for heart failure, high blood pressure, diabetes, and arthritis. Appellant, who
had been living in Stoll’s home for about a year, had lived with her on and off for 10
years and was aware of her poor health.
       On April 21, 2014, Stoll told appellant she wanted his friends, who she disliked
and came there to drink, to leave the house. After she and appellant argued about this,
she went to her bedroom to pack her bags to leave and appellant followed her into her
room. Stoll related what next happened to Clearlake Police Officer Elvis Cook, who
responded to her call for police assistance. As Stoll was taking clothes out of a dresser in
her bedroom, appellant grabbed her by the hair near her forehead and shoved her
forcefully to the floor, causing her to fall to the floor. As she fell, her body hit the
dresser. The impact left a bruise on her right arm, and the fall also injured her forehead
and nose. Appellant shoved her two or three times while she was on the floor while
yelling that he was going to “smash her face in.” Appellant had threatened Stoll in this
way many times in the past, and she feared he might carry out the threat.
       Although Stoll testified a bit differently at trial, she told Officer Cook that
appellant refused her requests to help her stand up, requiring her to crawl to the door and
pull herself up by gripping the jamb hand over hand. She also told the officer that after
appellant knocked her down “he continued to keep pushing her down on the ground two
or three times as he was yelling he was going to smash her face.” At that time, Stoll said
“she was in fear the he could kill her.”
       Stoll stated that the previous day, April 20, while she was sitting in her bedroom,
appellant became angry and kicked a footstool, which hit her ankle and caused bruising.
According to her, appellant was having a “temper fit.” The kicking of the stool and


                                               2
resulting injury were the basis for the misdemeanor charge that appellant committed
battery against an elder in violation of section 243.25.
       Stoll testified that she and appellant, who she described as “having a short fuse,”
argued frequently. As an example she described an altercation in August 2010, in which
appellant “threw my stuff off the porch to aggravate me.” Stoll was shown a police
incident report stating that she told a police officer at that time that appellant had pushed
her on two or three occasions and threw her belongings off the porch. Reminded that she
had testified about these uncharged prior events earlier in the present case, Stoll
acknowledged appellant had pushed her “on other occasions where he said he was going
to smash your face in.”
       Appellant, the only defense witness, stated that on April 21, he and his mother
argued about her driving to and from the post office under the influence of her
medications. Appellant denied grabbing his mother by her hair, or pushing or throwing
her down, and he never threatened to smash her face in. According to appellant, he
didn’t throw her things out of the house and “wasn’t mad at my mother about anything”;
she packed her bags to leave solely due to her anger at him.
       As to the incident the prior evening, appellant testified that he acted out of
“irritation” after a “disagreement” with his mother. Admitting that his kicking of a
footstool injured his mother, he stated that he did not intend to harm her. With respect to
the uncharged altercation in August 2010, appellant acknowledged he had pled no contest
to the offense, but testified that his conduct only involved “nudging” his mother.
                                       DISCUSSION
                                              I.
                  The Court’s Failure to Define the Word “Likely” Was
                   Not Prejudicial Even Assuming it Was Erroneous

       With respect to the offense of elder abuse, the jury was given the instruction
prescribed by CALCRIM No. 830, which instructs that, to prove that the defendant is
guilty of the elder abuse offense defined by section 368, subdivision (b)(1), “the People
must prove that: [¶] 1. The defendant willfully inflicted unjustifiable physical pain or


                                              3
mental suffering on Leona Stoll; [¶] 2. The defendant inflicted suffering on Leona Stoll
under circumstances or conditions likely to produce great bodily harm or death; [¶]
3. Leona Stall is an elder. [¶] AND [¶] 4. When the defendant acted, he knew or
reasonably should have known that Leona Stoll was an elder.” (Italics added.)
       The court was not asked to define the word “likely” and did not do so; although
the CALCRIM instruction that was given did define the words or phrases “willfully,”
“great bodily injury,” “elder” and “unjustifiable.”
       Appellant does not dispute that a jury need not be instructed on the meaning of
words “commonly understood by those familiar with the English language.” (People v.
Anderson (1966) 64 Cal.2d 633, 639-640.) His contention is that, insofar as it appears in
the definition of elder abuse as conduct “likely to produce great bodily injury or death,”
the word “likely” has a technical or legal meaning that differs from its nonlegal or
common meaning, and that the technical or legal meaning is not “commonly understood
by those familiar with the English language.”
       Appellant’s argument rests on People v. Wilson (2006) 138 Cal.App.4th 1197
(Wilson). The appellant in that case was charged with felony child endangerment in
violation of section 273a, subdivision (a), which, as material, provides that the offense
occurs when: “Any person who, under circumstances or conditions likely to produce
great bodily harm or death, willfully causes or permits any child to suffer . . .
unjustifiable physical pain or mental suffering” (§ 273a, subd. (a), italics added), or other
forms of endangerment. The appellant in Wilson claimed there was insufficient evidence
of child endangerment because the circumstances on which the prosecution relied were,
as a matter of law, not “ ‘likely to produce great bodily injury or death.’ ” (Wilson, at
p. 1201, italics added.) After analyzing the opinion of our Supreme Court in People v.
Superior Court (Ghilotti) (2002) 27 Cal.4th 888, which “provided an in-depth review of
the troublesome word ‘likely’ ” (Wilson, at p. 1202) as it appeared in the Sexually
Violent Predator Act (SVPA), the court held that “likely,” as used in section 273a does
not mean “that death or serious injury is probable or more likely than not,” but instead



                                              4
means that the defendant’s act presented “a substantial danger, i.e., a serious and well-
founded risk, of great bodily harm or death.” (Wilson, at p. 1204)
       As stated in Wilson, Ghilotti noted that: “ ‘California decisions indicate a varied
contextual understanding of the word “likely.” ’ [Citation.] Using cases dealing with
child endangerment as one example, the [Ghilotti] court observed: ‘In People v. Sargent
(1999) 19 Cal.4th 1206, we said in passing that the felony child endangerment statute,
which punishes a caretaker’s willful abuse or neglect of a child under “ ‘ “circumstances
. . . likely to produce great bodily harm or death” ’ ” (Pen. Code, § 273a, subd, (a)) is
“ ‘intended to protect a child from an abusive situation in which the probability of serious
injury is great.’ ” [Citations.] But People v. Hansen (1997) 59 Cal.App.4th 473
indicated that this statute is satisfied when the child is placed in a situation where a
serious health hazard or physical danger is “reasonably foreseeable” [citation], as where
the caretaker stores a loaded gun in a home occupied by children without denying the
children access to the weapon. [Citation.]’ (Ghilotti, supra, 27 Cal.4th at p. 917.)
       “As a further example of the varied contextual understanding of the term ‘likely’
in California cases, the court in Ghilotti cited People v. Savedra (1993) 15 Cal.App.4th
738. There the defendant was charged with possessing a deadly weapon in a jail. The
court instructed a deadly weapon was any instrument or object likely to cause death or
great bodily injury. When the jury asked if ‘likely’ meant more probable than not or
merely possible, the trial court replied that ‘likely’ referred to the ‘potential’ for use of a
deadly weapon. The Court of Appeal agreed. Noting that although ‘likely’ most often
means ‘more likely than not,’ the word has a broader meaning in connection with a
statute seeking to protect inmates and jail personnel from armed attack. (Ghilotti, supra,
27 Cal.4th at pp. 917-918.)
       “After giving other examples of how context affects the use of the word ‘likely’ in
various legal settings, the court gave examples of statutes in which the Legislature
specifically used the term ‘more likely than not.’ The [Ghilotti] court concluded that the
mere use of the word ‘likely’ in any given context was not proof the Legislature intended
it to mean ‘more likely than not.’ The court stated it was necessary to look to the context


                                               5
of legislation to determine what meaning the Legislature intended in using the term
‘likely.’ (Ghilotti, supra, 27 Cal.4th at p. 918.)
       “The court noted that the purpose of the SVPA was to protect the public from a
limited group of persons, previously convicted for violent sex offenses, who because of a
current mental disorder presented a high risk of reoffense. The court concluded that in
the SVPA context, ‘likely to reoffend’ meant more than a mere possibility of reoffense
but did not require that the chance of reoffense be better than even. Rather, the test was
whether the person presented a ‘substantial danger— . . . a serious and well-founded
risk—of [reoffense].’ (Ghilotti, supra, 27 Cal.4th at pp. 916, 922.)” (Wilson, supra, 138
Cal.App.4th at pp. 1203-1204.)
       The Wilson court concluded that though the analysis in Ghilotti was developed in
a different legal context from that it confronted, the Ghilotti court’s “adaptation of the
definition of ‘likely’ as used in the SVPA context is appropriate here. We thus conclude
that ‘likely’ as used in section 273a means a substantial danger, i.e., a serious and well-
founded risk, of great bodily harm or death. We believe in the context of child
endangerment this definition of the term ‘likely’ draws a fair balance between the broad
protection the Legislature intended for vulnerable children and the level of seriousness
required for a felony conviction.” (Wilson, supra, 138 Cal.App.4th at p. 1204.)
       Appellant points out that while section 273a, the statute at issue in Wilson, applies
to child abuse, not elder abuse, which is the subject of section 368, “[s]ection 368 is
patterned on the felony child abuse statute, section 273a” (Roman v. Superior Court
(2003) 113 Cal.App.4th 27, 35), and we should therefore accept the analysis and
conclusion of Wilson. The gist of his claim is that it would be anomalous to grant a
higher level of protection to persons who are vulnerable because they are young than to
elders whose vulnerability also arises from their age. Like section 273a, section 368 was
intended to protect certain persons from an abusive situation in which, due to their age,
the probability of serious injury is great. Accordingly, the latter statute should also be
satisfied when the protected person is subjected to a serious and well-founded risk of
great bodily harm.


                                              6
       The Attorney General’s first response to appellant’s argument is that he provides
no reason to conclude the ordinary meaning of the word “likely”—i.e., “having a better
chance of occurring than not” actually conflicts with the meaning he would have us
attribute to the word—namely, “a substantial danger,” i.e., a “serious and well-founded
risk” of “great bodily harm or death.” (People v. Roberge (2003) 29 Cal.4th 979, 988.)
According to the Attorney General, “[a] person faced with even a modest chance of great
bodily injury would surely consider that risk to be ‘substantial’ and ‘serious.’ ” What the
Attorney General apparently means is that the nature of the risk—i.e., “great bodily
injury or death”—ipso facto renders it a “substantial” or “serious” possibility. Defining
the likelihood injury will occur by the seriousness of the injury the statute is designed to
prevent seems to us logically questionable. Moreover, the use of such a criterion would
not only diminish the People’s burden of proof but shift attention away from the
foreseeability of injury that the Ghilotti majority, and the opinion in People v. Hansen,
supra, 59 Cal.App.4th 473, considered a critical factor.
       In fact, the definition of “likely” that appellant urges us to adopt may be less
favorable to him and others charged with violation of section 368 than he realizes.
Appellant appears to view the definition of “likely” as involving “serious and well-
founded risk” as setting a higher standard than “probable or more likely than not.” But
the description (in the same sentence) of the nature of the risk—“great bodily harm or
death”—invites a jury to place weight on the gravity of the charged offense, which may
be detrimental to the interests of the accused. Indeed, the instruction appellant seeks
might well enable prosecutors to argue, as does the Attorney General in this case, that in
the minds of many reasonable people even “a modest chance of great bodily injury”
would constitute a “substantial” and “serious” risk.
       Alternatively, the Attorney General points out that the definition of “likely”
endorsed in Ghilotti was developed for a purpose different from that it would have in
connection with section 368. As she states, the definition adopted in Ghilotti was not
designed “to measure the likelihood an action will cause great bodily harm, but to assess
a sex offender’s likelihood of reoffending.” We think there is something to this


                                              7
argument. As Justice Werdegar pointed out in Ghilotti, the SVPA focuses on the
problem presented by repeat violent sex offenders, and the drafters “narrowly tailored the
law to those who were extremely dangerous, not merely by virtue of their past offenses,
but because, in their present state, they were actually likely to reoffend.” (Ghilotti, supra,
27 Cal.4th at p. 933, conc. opn. of Werdegar, J.) By definition, a sexually violent
predator must have a “ ‘ “diagnosed mental disorder” ’ ” that “ ‘predisposes the person to
the commission of criminal sexual acts.’ ” (Id. at p. 931.) The likelihood of reoffense in
this context is entirely different from the likelihood of great bodily harm resulting from
particular physical conduct. Thus, the context in which Ghilotti was decided is more
significantly different from that presented in child (and elder) abuse cases than the Wilson
court appears to have appreciated.
       This point was made in People v. Chaffin (2009) 173 Cal.App.4th 1348 (Chaffin),
in the context of child endangerment under section 273a. Conceding that Wilson applied
the definition of “likely” prescribed in Ghilotti to a child abuse statute analogous to the
elder abuse statute applicable in the present case, the Attorney General points out Chaffin
criticized Wilson’s application of Ghilotti. In Chaffin, a panel of the Fourth District
questioned “whether Wilson should have relied so heavily on Ghilotti because the
considerations pertinent to the SVPA . . . are not raised by section 273a.” (Chaffin, at
p. 1351) Chaffin explained, “[b]oth the SVPA and section 273a serve to protect others
from abuse. The SVPA operates by providing procedures for the involuntary civil
commitment of those sexually violent predators who, in fact, pose a high risk of reoffense
in the future. Section 273a protects children from existing abusive situations by punishing
offenders upon conviction . . . .” (Id. at pp. 1351-1352, italics added.) The same
distinction can be made between the SPVA and section 368.
       Because sexually violent predators pose such a high risk of reoffense in the future,
the “clear overall purpose” of the SVPA “is to protect the public from that limited group
of persons . . . .” (Ghilotti, supra, 27 Cal.4th at p. 921.) Achieving that purpose is
complicated by “the ‘difficulties inherent in predicting human behavior’ ” (ibid.), and the
Ghilotti court construed the word “likely” in the light of those difficulties. (Ibid.) As


                                              8
Chaffin points out, “the word ‘likely’ [as used] in section 273a does not serve as a
measure for the difficult and imprecise task of predicting future human behavior. Rather,
it is merely a measure of determining the risk of present injury created by external and
tangible circumstances or conditions.” (Chaffin, supra, 173 Cal.App.4th at p. 1352,
citing People v. Sargent, supra, 19 Cal.4th at p. 1223.) The same is true in section 368.
        As the foregoing discussion indicates, the question whether the word “likely,” as it
appears in section 368 has a technical or legal meaning that differs from its nonlegal or
common meaning is complex and has not been definitively resolved by the courts; nor
have the parties adequately come to grips with the issue in their briefs. Fortunately, it is
not a matter we need to resolve.
        “An instruction that omits a required definition of or misdescribes an element of
an offense is harmless only if ‘it appears “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” ’ (People v. Harris (1994) 9
Cal.4th 407, 424, quoting Chapman v. California (1967) 386 U.S. 18, 24.) ‘To say that
the error did not contribute to the verdict is . . . to find the error unimportant in relation
to everything else the jury considered on the issue in question, as revealed in the record.’
(Yates v. Evatt (1991) 500 U.S. 391, 403.)” (People v. Mayfield (1997) 14 Cal.4th 668,
774.)
        Even if the trial court’s failure to sua sponte define the word “likely” as used in
section 368 and CALCRIM No. 830 was erroneous, and the court should have told the
jury that in order to convict appellant under the statute it must find that the circumstances
in which he acted presented “a substantial danger, i.e., a serious and well-founded risk, of
great bodily harm or death” (Wilson, supra, 138 Cal.App.4th at p. 1204), there is no
reasonable doubt that such error did not contribute to the verdict obtained. On the
contrary, we believe the record and reason compel us to conclude that the failure to so
instruct was unimportant in comparison to all of the other evidence the jury considered.
In short, it is impossible for us to believe that the verdict would have been different if the
omitted instruction had been given.



                                               9
       First of all, as earlier noted, the instruction prescribed in Ghilotti and adopted in
Wilson is not clearly more favorable to appellant than the common understanding of the
word “likely.” As the Attorney General points out, Ghilotti indicates that its definition
imposed a lower evidentiary hurdle than a definition of “likely” as meaning “the chance
of reoffense is better than even.”
       Second, instructing the jury that it had to find a serious and substantial risk of
great bodily harm simply would not have made any difference in this case. Appellant
does not dispute that he knew his 85-year-old mother suffered from heart failure, high
blood pressure, diabetes and arthritis, and was unable to walk without the use of a cane.
Moreover, he did not testify or present any other evidence that, in the circumstances and
in light of his mother’s physical condition, the abusive acts charged and testified to by
Stoll and Officer Cook would not likely have resulted in great bodily harm; his testimony
was that he did not commit the charged acts of elder abuse.
       It seems to us all but inconceivable that a reasonable jury would think the acts of
grabbing the hair of a frail 85-year-old who suffered from heart failure, high blood
pressure and other serious medical conditions, forcing her impactfully to the floor after
hitting a dresser on the way down, and repeatedly shoving her while she was on the floor
while yelling that he was going to “smash her face in,” would not present a “substantial
danger” or “serious and well-founded risk” of infliction of great bodily harm.
       It is in our view “ ‘beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’ ” (People v. Harris, supra, 9 Cal.4th at p. 424.)
                                              II.
          Defense Counsel’s Failure to Object to the Prosecution’s Definition
           of “Likely” Did Not Constitute Ineffective Assistance of Counsel

       In her closing argument, the prosecutor told the jury that Stoll is “not, you know, a
healthy 22-year-old being pushed to the floor. She’s 85 years old and she’s got various
health problems, health problems that defendant’s aware of, health problems that make it
difficult for her to even get up off the ground, including heart problems and blood
pressure issues. So you can take sort of her as an eggshell and you can look at—in other


                                              10
words if you take, you know, an object that’s not easy to break versus her that’s a little
more easy to break, that’s when I think you’re looking at great bodily harm was a
potential here. It didn’t happen, and it doesn’t have to happen. It’s just the potential of it
to happen.” (Italics added.)
       In his closing argument, defense counsel contested the district’s attorney statement
that “potential” great bodily harm was sufficient, reminding jurors that the court’s
instruction required them to decide whether the infliction of great bodily harm was
“likely.” In her rebuttal, the district attorney stated that she was “not sure of the
difference between potential or likely,” but maintained that, “under these circumstances,”
appellant’s conduct “was likely to create great bodily injury.”
       The failure of counsel to correct opposing counsel’s misstatement of law requires
reversal only if there can be no satisfactory explanation for not objecting and “there is a
reasonable probability that, but for counsel’s unprofessional error[], the result of the
proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668,
687, 694 (Strickland).)
       Because the prosecutor appears to have acceded to the jury’s use of “likely” rather
than “potential,” it is not clear that her initial use of “potential” was a material
misstatement or, if it was, that is was not cured. Nevertheless, indulging appellant’s
assumptions that the prosecutor misstated the law and there was no reason for defense
counsel not to object, we conclude—for the reasons we have discussed in finding the
instructional error non-prejudicial—that there is no reasonable probability the result
would have been different if the objection had been made.
                                              III.
            Defense Counsel’s Failure to Object to Statements Made by the
        Prosecutor During Closing Argument Was Not Professionally Deficient
       In her opening argument to the jury, the prosecutor indicated that there were
“some issues with [Stoll’s] credibility while testifying,” because her recorded statements
to Officer Cook at the scene, which were made when her memory was fresh, painted a
worse picture of appellant’s conduct than her testimony at trial. Her subsequent


                                               11
testimony soft-pedaled appellant’s conduct, the prosecutor suggested, because “she lost
her son,” “[s]he [didn’t] want to get him in trouble,” and also “[s]he may have some
memory problems.” The prosecutor then stated “this really is like a domestic violence
case,” and “it’s not uncommon for victims in those situations to recant, minimize, try not
to get their loved one in trouble. And I think that’s really evident by what she told you,
that she hesitated going to the police. She debated about it. She didn’t want to come
testify, she told you. She didn’t want to be here. Again, she loves him and doesn’t want
to see him in trouble.”
       Appellant maintains that the foregoing statements constituted prosecutorial
misconduct for two reasons. First, the prosecutor was “arguing from her own personal
expertise” and, second, “she was serving as [her] own unsworn witness,” and therefore
violated appellant’s Sixth Amendment right to confront witnesses against him. Appellant
argued that his attorney rendered ineffective assistance of counsel (Strickland, supra, 466
U.S. 668) in that competent counsel would have objected to the prosecutor’s statements
and requested an admonition, defense counsel’s failure to do so served no strategic
purpose and was professionally deficient, and there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. We cannot agree.
       It is, as appellant says, misconduct for a prosecutor to argue from his or her own
experience. But the two cases appellant relies upon—People v. Mendoza (1974) 37
Cal.App.3d 717 (Mendoza) and People v. Criscione (1981) 125 Cal.App.3d 275
(Criscione)—do not show the prosecutor in this case presented such an improper
argument.
       In Mendoza, in which the defendant was convicted of committing a lewd act on a
child under 14 years of age, the prosecutor told the jury: “ ‘It is the very little, small,
mild people, some of whom, rather than being prosecuted, go to psychiatric care, who
maybe ultimately molest, sexually attack, and even kill their granddaughters, friends who
come to the house to see them, or the child is found in Griffith Park. These are things
that happen all the time. . . . There are more, many more articles in newspapers; you


                                              12
have all read them, that say, “Hey, you know, we didn’t think this guy was too
dangerous. He looked kind of meek.” And we don’t know how fragile Mr. Mendoza is.
There is no evidence as to how fragile he is, but he looked sort of meek. We didn’t really
know; we didn’t realize, and this is after death and worse that leaves injury on these
kids.’ ” (Mendoza, supra, 37 Cal.App.3d at p. 726.) These statements were not declared
misconduct for the reasons alleged by appellant in this case, but on the very different
ground that they “drew unjustifiable inferences from Mendoza’s conduct and dwelt on
suppositions not reflected in evidence before the jury.” (Ibid.) Furthermore, in other
statements to the jury, the prosecutor in Mendoza “misstated the law” and otherwise
made a “stronger appeal to passion and prejudice.” (Id. at pp. 726-727.) The prosecutor
in Mendoza was not charged with “arguing from his own personal expertise” or serving
as his own expert witness, and the case has little to do with prosecutorial violation of a
defendant’s confrontation rights under the Sixth Amendment.
       Criscione, supra, 125 Cal.App.3d 275 is a case in which the prosecutor improperly
set himself up as an expert. The defendant in that case, who was ethnically a southern
Italian, killed his girlfriend; the real controversy at trial centered upon his mental state.
During both the guilt and penalty phases of trial, the prosecutor engaged in extensive
cross examination of defense psychiatrists to which defense counsel objected. The cross-
examinations all insinuated that mental illness is often feigned, that the defendant’s
violent attitudes relating to women were merely the normal responses of a man raised in a
traditional Italian culture and that, if released, he was likely to kill again. To take one of
many examples, when commenting upon the testimony of an expert witness that paranoia
often results in the use of a double standard, the prosecutor, who was himself also an
Italian-American, stated that “ ‘the double standard is part of the fact of life of people of
particular ethnic extraction, for years and years and years. I hope my wife doesn’t hear
me say that. But that’s not a sign of manicness. [¶] What we have here is a man who
has come from a society—and don’t get me wrong, please. Italians have degrees of
society and there are degrees of attitudes, and people change. But generally speaking, in



                                              13
the European, the traditional European society, women are not given equal treatment.’ ”2
(Id. at p. 289.) As the court observed, “[h]aving thus placed before the jury throughout
the trial his own irrelevant and spurious opinions, the prosecutor in closing argument in
the sanity phase condensed and presented them to the jury as a logical basis for the
conclusion that, in killing [his victim], appellant was not suffering from any mental
disease, but merely acting out a common Southern Italian masculine role.” (Id. at p. 289,
fn. omitted.) The hyper masculine role and gender bias attributed to Italian men from the
Mezzogiorno by the prosecutor in Criscione is certainly not a matter of common
knowledge, as the court noted. (Id. at p. 289, fn. 3 citing Greeley and McCready,
Ethnicity, Theory and Experience (1975) Harv. Univ. Press, which presents “a view of
Italian male behavior patterns exactly opposite to the prosecutor’s, and based upon
extensive scientific research.”)
       The conduct of the prosecutor in the present case bears no relationship to that of
the prosecutor in Criscione. As the Attorney General points out, counsel may present to
the jury “matters not in evidence that are common knowledge, or are illustrations drawn
from common experience, history or literature.” (People v. Love (1961) 56 Cal.2d 720,
730.) Without dwelling on the particular facts of unrelated and/or unsubstantiated cases,
as in Mendoza, (see Mendoza, supra, 37 Cal.App.3d at p. 725), and without setting
herself up as uniquely well-informed and an authority on the subject, the prosecutor here
simply stated, as is commonly appreciated, that a person victimized by the criminal act of
a relative, particularly a son, might well, after the passage of time, have misgivings about
testifying against him. Competent defense counsel would probably recognize not just
that an objection would be overruled, but that jurors might be unnecessarily antagonized

       2
         The fact that, like the defendant, the district attorney in Criscione was also
Italian-American renders the situation in that case similar to that in People v. Bain (1971)
5 Cal.3d 839, in which an African-American prosecutor “in effect, asked the jury to give
credence to his belief in defendant’s guilt from the inception of the case, because he, as a
black man, ‘understood’ black defendants. This tactic was a way of persuading the jury
that the defendant’s story was a sham that could not convince any other black person.”
(Id. at pp. 848-849, fn. omitted.)


                                             14
by an unjustified interruption of the prosecutor’s closing argument. Clearly, defense
counsel’s failure to object to the commonsense observation of the district attorney was
not below the standard of professional competence.
                                             IV.
                    Defense Counsel’s Failure to Request Instruction
                     on Accident Was Not Professionally Deficient

       As previously indicated, Stoll testified that the incident resulting in the
misdemeanor charge of battery against an elder in violation of section 243.25 was an
“accident.” She explained that when appellant kicked the stool that hit her ankle, he was
not trying to hit her with the stool but simply having a “temper fit.” This was consistent
with appellant’s testimony that he was not trying to hit her with the stool when he
“kicked” it but did so because he was “irritable” due to a “conversation” or
“disagreement” with his mother. Apparently relying on this testimony of Stoll and
appellant, defense counsel told the jury: “[I]t should be obvious to you that this was an
accident. It wasn’t just the defendant said it was an accident. She said it was an
accident.”
       Appellant maintains defense counsel was professionally deficient in failing to ask
the court to request instruction with CALCRIM No. 3404, which tells the jury that
defendant is not guilty of a charged crime if he or she acted “without the intent required
for that crime, but acted instead accidentally.”
       The failure to give an instruction is harmless error if “ ‘the factual question posed
by the omitted instruction was necessarily resolved adversely to the defendant under
other, properly given instructions. In such cases the issue should not be deemed to have
been removed from the jury’s consideration since it has been resolved in another context
. . . .’ ” (People v. Wright (2006) 40 Cal.4th 81, 98, quoting People v. Sedeno (1974) 10
Cal.3d 703, 721.) Although the Attorney General has not advanced the argument in these
terms, that is the case here.
       The jury was properly instructed that defendant was charged with battery of an
elder in violation of section 243.25, and that to prove such a defendant guilty of the crime


                                              15
the People must, among other things, prove the following things: that “[t]he defendant
willfully touched Leona Stoll in a harmful or offensive manner,” that “[s]omeone
commits an act willfully when he or she does it willingly or on purpose. . . . It is not
required that he or she intend to break the law, hurt someone else, or gain any
advantage,” that “[t]he slightest touching can be enough to commit a battery if it is done
in a rude or angry way,” that “[m]aking contact with another person . . . is enough,” and
that “[t]he touching does not have to cause pain or injury of any kind,” that “[t]he
touching can be done indirectly by causing an object to touch the other person,” and that
“[w]ords alone, no matter how offensive or exasperating, are not an excuse for this
crime.” (Italics added.)
                                      CONCLUSION
       In short, the jury must be deemed to have understood that it could not convict
appellant of misdemeanor battery of an elder, as it did, without finding his act was
purposeful—i.e., and not accidental—and that a “temper fit” was not “an excuse.”
       For the foregoing reasons, the judgment is affirmed.



                                                  _________________________
                                                  Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Miller, J.




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