Filed 11/23/20 P. v. Malekmirzayans CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B300345
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA104426)
v.
KHAZHIGH MALEKMIRZAYANS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Suzette Clover, Judge. Affirmed.
Erica Gambale, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and Charles J. Sarosy, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________________
A jury convicted defendant Khazhigh Malekmirzayans
of assault with a deadly weapon (count 1; Pen. Code,1
§ 245, subd. (a)(1)), making a criminal threat (count 3; § 422,
subd. (a)), and felony elder abuse (count 4; § 368, subd. (b)(1)).
The jury also found true an allegation that he personally used
a deadly weapon (a knife) in the commission of counts 3 and 4.
(§ 12022, subd. (b)(1).) The court sentenced him to 16 months in
prison on the count of making a criminal threat, imposed and
stayed the one-year terms for the weapon enhancement, and
imposed and stayed the sentences on the remaining counts
pursuant to section 654. Because his custody credits at the time
of sentencing exceeded the length of his sentence, defendant was
released on parole.
Defendant contends that the court erred by failing
to instruct the jury sua sponte on the crime of misdemeanor
elder abuse, a lesser included offense of felony elder abuse.
We conclude that any error was harmless and affirm the
judgment.
FACTUAL SUMMARY
In October 2018, Peter Palumbo was 78 or 79 years old.
Defendant was 62 years old. For a couple of years, Palumbo
had been going to a park near the nursing home where he lived.
He occasionally spoke with defendant at the park and, in his
words, they would “debate and have different opinions on
certain things.”
On October 6, 2018, Palumbo was in the park sitting
in his walker between two picnic tables with his back against
1 Subsequent statutory references are to the Penal Code.
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a wall. He had drunk a couple of beers. Defendant was also in
the park, about 25 or 30 yards away.
According to Palumbo, defendant walked up to him, said
something “about Armenians,” and punched him twice with
a closed fist—first in his eye and then in the nose. Defendant
then slapped Palumbo numerous times, pulled his hair, held his
head back, and placed a knife against his throat. Palumbo could
feel the point of the knife “poking into [his] neck.” Defendant
told Palumbo that he would kill him if he called the police.
Palumbo’s walker slid out from under him and he fell to the
ground. Defendant then walked away.
As a result of the attack, Palumbo suffered a black eye
and a bloody nose. Palumbo was admitted to the hospital later
that day because “[t]hey wanted to check [his] ribs.”
A witness to the incident was at the park with his
two children. He was sitting at a table near the defendant,
who appeared to be drunk. Palumbo was about 50 feet away.
Defendant and Palumbo appeared to be yelling and cursing at
each other. Defendant “started getting mad and just attacked
[Palumbo] and punched him” “[a]t least five or six times.”
Defendant held a knife to Palumbo’s throat for about 20 seconds
and told Palumbo he “was going to cut him if he didn’t shut up.”
The witness called 911.
When police apprehended defendant soon after the
incident, he had a pocketknife in his pocket and about three
drops of blood on his right hand. An officer described Palumbo
as having a bloody nose and observed blood on the pavement
near Palumbo.
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DISCUSSION
Defendant was convicted of felony elder abuse under
section 368, subdivision (b)(1). This statute provides in
relevant part: “A 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” is guilty of a crime punishable as a felony or
a misdemeanor.2
Subdivision (c) of section 368 makes the same conduct
a misdemeanor if it is committed “under circumstances or
conditions other than those likely to produce great bodily harm
or death.” (Italics added.) Misdemeanor elder abuse is thus a
lesser included offense of felony elder abuse. (People v. Racy
(2007) 148 Cal.App.4th 1327, 1335.)
The court instructed the jury as to felony elder abuse;
that is, that the People were required to prove, among other
elements, that defendant “inflicted suffering on . . . Palumbo
under circumstances or conditions likely to produce great
bodily harm or death.” Defendant contends that the court
erred by failing to instruct the jury that it could find defendant
guilty of misdemeanor elder abuse because there was a factual
issue as to whether his assault on Palumbo was made under
circumstances or conditions likely to produce great bodily harm
or death.
In criminal cases, trial courts have a sua sponte duty
to “ ‘ “instruct on the general principles of law relevant to the
2Great bodily harm “means a significant or substantial
physical injury.” (§ 12022.7, subd. (f); see § 368, subd. (b)(2).)
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issues raised by the evidence.” ’ ” (People v. Breverman (1998)
19 Cal.4th 142, 154.) This includes the duty to instruct “ ‘on
lesser included offenses when the evidence raises a question
as to whether all of the elements of the charged offense were
present [citation], but not when there is no evidence that the
offense was less than that charged. [Citations.]’ ” (Ibid.)
“We independently review a trial court’s failure to instruct
on a lesser included offense.” (People v. Cook (2006) 39 Cal.4th
566, 596.)
In a noncapital case, if the court erred in failing
to instruct on a lesser included offense, we review the record
to determine whether the error was prejudicial under People
v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Beltran
(2013) 56 Cal.4th 935, 955.) “ ‘[U]nder Watson, a defendant
must show it is reasonably probable a more favorable result
would have been obtained absent the error.’ ” (Ibid.) We
focus on what “a jury is likely to have done in the absence
of the error under consideration. In making that evaluation,
[we] 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.” (See People v.
Breverman, supra, 19 Cal.4th at p. 177.)
Here, even if we assume that the court erred by failing
to instruct as to the lesser offense, defendant has failed to show
that the error was prejudicial. The defendant hit defenseless
Palumbo, a man in his late 70’s, with a closed fist twice in the
face, resulting in a black eye and a bloody nose. He continued
to hit or slap Palumbo numerous times causing him to fall to the
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ground. In addition, defendant held a knife to Palumbo’s
throat with enough pressure to give Palumbo the feeling that
it was poking him. Even if the knife assault did not cause
an injury, the evidence supports a strong inference that the
circumstances and conditions of the attack made great bodily
injury likely. The alternative inference needed to support
the lesser offense—that great bodily injury was not likely—is
relatively weaker. (See People v. Breverman, supra, 19 Cal.4th
at p. 177.) Defendant has therefore failed to establish a
reasonable probability that he would have obtained a more
favorable result if the jury had been instructed as to the lesser
offense.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
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