Filed 5/11/21 P. v. Floyd CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077026
Plaintiff and Respondent,
v. (Super. Ct. No. SCD278543)
STEPHEN FLOYD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Amalia L. Meza, Judge. Judgment affirmed; remanded with directions to
modify the abstract of judgment
Ava R. Stralla, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Kelley A. Johnson, Deputy Attorneys General, for Plaintiff and
Respondent.
I.
INTRODUCTION
Defendant Stephen Floyd appeals from a judgment entered after a
jury convicted him of committing elder abuse likely to cause great bodily
injury or death, assault with force likely to cause great bodily injury, and
delaying a peace officer.
Floyd raises two challenges to the judgment and a third contention
that the abstract of judgment requires correction. First, Floyd argues
that there is insufficient evidence that he knew or should have known
that his victim was 65 years of age or older, requiring reversal of his
conviction for elder abuse. Second Floyd argues that he cannot remain
properly convicted of both elder abuse likely to cause great bodily injury
or death and assault with force likely to cause great bodily injury because
the latter is a lesser included offense of the former. Finally, Floyd argues
that the abstract of judgment refers to the wrong statutory subdivision for
an enhancement imposed in connection with the elder abuse count.
We conclude that Floyd’s challenges to his convictions are without
merit. However, we agree that the abstract of judgment must be
corrected to align with the trial court’s oral pronouncement of judgment.
We therefore affirm the judgment of conviction but remand for the trial
court to modify the abstract of judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
In 2018, Floyd and the victim, R.W., were both transients who were
living in an area near the Torrey Pines Glider Port in La Jolla. Floyd lived in
a canyon to the east of the Glider Port’s parking lot, and R.W. would often sit
2
in a beach chair under an umbrella near the guardrail of the parking lot. The
two men had known each other since approximately 2009 or 2010, when they
met at the beach. According to R.W., he and Floyd had engaged in about a
dozen conversations over the years.
On September 10, 2018, R.W. who was 65 years old, was sitting in his
usual location by the guardrail when Floyd approached him and yelled, “ ‘I’m
going to kill you.’ ” Floyd began punching R.W. as R.W. was still in the chair.
R.W. tried to cover his head during the attack. At some point, R.W. fell out of
the chair, and Floyd continued to hit and kick R.W. while he was on the
ground. According to R.W., when he fell out of the chair, Floyd came down on
top of him and “crushed [his] hip.” An unidentified man pulled Floyd off of
R.W., ending the attack.
R.T. was sitting in his car at the Glider Port and witnessed the entire
attack. After the unidentified man pulled Floyd off of R.W. and left, R.T.
could hear R.W. screaming that he was in pain and that he could not move.
R.T. called 911, and an ambulance arrived soon after. While medical
personnel were tending to R.W., R.W. saw Floyd walking toward the canyon.
R.W. identified Floyd as his assailant.
Police officers responded to the scene and located Floyd approximately
100 feet down a steep and narrow path in the canyon. When officers tried to
handcuff Floyd, he went limp and fell to the ground. After approximately 30
minutes, officers were able to get Floyd to comply with their orders to stand
and walk out of the canyon on his own.
R.W. was taken to a hospital. He had suffered a fractured hip, which
required surgery for the placement of a pin in the hip. R.W. spent six weeks
in a rehabilitation facility. Until two weeks before the trial, R.W. had been
using the assistance of a cane to walk. Although R.W. continued to have
3
difficulty walking at the time of trial, he testified that he had lost his cane
and could not afford a new one. He described himself as “stumbling around”
without it.
Floyd testified on his own behalf. He stated that he had wanted to be
friends with R.W., but R.W. did not want his friendship. Floyd described a
few of the social interactions the men had engaged in together. For example,
the men had once eaten nachos together at a restaurant and had a couple of
drinks. Another time, Floyd had allowed R.W. to take a shower in a hotel
room Floyd was staying in for a short period of time, and afterward the pair
ate dinner at the hotel buffet. Floyd would sometimes give R.W. cigarettes
and part of his lunch. On another occasion, R.W. drove Floyd to the grocery
store.
Floyd described how in 2015, R.W. had hit Floyd with his truck two
times. Floyd had an injury to his hip as a result, and a large bruise on his
waist. According to Floyd, after this incident, Floyd tried to avoid R.W. at the
Glider Port.
On September 10, 2018, Floyd decided that he was going to try to talk
to R.W. Floyd claimed that as he approached the location where R.W. could
usually be found, he tripped, fell, and lost consciousness. When he regained
consciousness, R.W. was hitting him in the head with a golf club. Floyd tried
to stand up, but his legs were wrapped around R.W., and R.W. fell down on
top of him. Floyd pushed R.W. off of him and walked away. When he tried to
go back to help R.W. stand up, someone else was standing over R.W. and told
Floyd to stay away.
A former neighbor of Floyd’s before Floyd became homeless testified to
having seen bruising on Floyd that Floyd had said he received when someone
at the Glider Port hit him with a truck.
4
Another witness, R.K., also testified for the defense. R.K. had started
going to the Glider Port area to rest after receiving chemotherapy
treatments, and he became familiar with some of the homeless individuals
who lived in the area. R.K. testified that on several occasions he had
observed R.W. acting “extremely violent” when he was drunk.
B. Procedural background
A jury convicted Floyd of elder abuse likely to cause great bodily injury
or death (Pen. Code,1 § 368, subd. (b)(1); count 1); assault with force likely to
cause great bodily injury (§ 245, subd. (a)(4); count 2); and delaying a peace
officer (§ 148, subd. (a)(1); count 3). The jury also found true the
enhancement allegations with respect to count 1 that the victim suffered
great bodily injury during the commission of the offense (§§ 368, subd. (b)(2),
12022.7, subd. (e)), and that Floyd personally inflicted great bodily injury on
the victim (§ 1192.7, subd. (c)(8)). The jury also found true with respect to
count 2 that Floyd personally inflicted great bodily injury upon the victim
(§§ 1192.7, subd. (c)(8)), 12022.7, subd. (a)).
The trial court sentenced Floyd to a term of six years in state prison,
comprised of the midterm of three years on count one, plus a consecutive
three-year term for the great bodily injury enhancement connected with
count 1, and a concurrent one-year term on count 3. The court imposed but
stayed, pursuant to section 654, the midterm of three years for the assault in
count 2, and an additional three-year enhancement term for the great bodily
injury enhancement finding connected with count 2.
Floyd filed a timely notice of appeal.
1 Further statutory references are to the Penal Code unless otherwise
indicated.
5
III.
DISCUSSION
A. Substantial evidence supports Floyd’s conviction for elder abuse
Floyd contends that his conviction for elder abuse in count 1 must be
reversed because the evidence was insufficient to establish that he knew or
reasonably should have known that R.W. was 65 years old or older at the
time Floyd attacked him.
In considering a claim of the insufficiency of evidence, a reviewing court
must determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” (Jackson v.
Virginia (1979) 443 U.S. 307, 319.) The court must “review the whole record
in the light most favorable to the judgment [below] to determine whether it
discloses substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999)
20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578.)
Reversal is not warranted unless it appears that upon no hypothesis
whatever is there sufficient substantial evidence to support the conviction.
(People v. Bolin (1998) 18 Cal.4th 297, 331.) This standard applies regardless
of whether the conviction rests on circumstantial evidence or on direct
evidence. (People v. Chatman (2006) 38 Cal.4th 344, 389; People v. Perez
(1992) 2 Cal.4th 1117, 1124.)
Floyd challenges his conviction for violating section 368, subdivision
(b)(1), which provides: “A person who knows or reasonably should know that
the person is an elder . . . and who, under circumstances or conditions likely
to produce great bodily harm or death, willfully causes or permits any elder
6
or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or
mental suffering, . . . is punishable by imprisonment . . . .” As used in section
368, “ ‘elder’ means a person who is 65 years of age or older.” (§ 368, subd.
(g).) The jury was instructed, pursuant to CALCRIM No. 830, that in order to
prove that Floyd was guilty of the elder abuse offense, the People had to
prove that:
“1. The defendant willfully inflicted unjustifiable physical
pain or mental suffering on [R.W.];
“2. The defendant inflicted suffering on [R.W.] under
circumstances or conditions likely to produce great bodily
harm or death;
“3. [R.W.] is an elder;
“AND
“4. When the defendant acted, he knew or reasonably
should have known that [R.W.] was an elder.”
The instruction also told the jury that “[a]n elder is someone who is at
least 65 years old.”
Floyd specifically challenges the sufficiency of the evidence with respect
to the fourth element as set forth in the instruction—i.e., that he knew or
reasonably should have known that R.W. was at least 65 years old.2 We
reject Floyd’s contention.
In People v. Smith (1993) 13 Cal.App.4th 1182 (Smith), a jury found
true the factual basis for a two-year enhancement under section 667.9, which
applies where the defendant is found to have committed certain enumerated
felony offenses against three classes of vulnerable victims, including persons
2 Floyd does not dispute that R.W. was 65 years of age at the time of the
offense.
7
over 65 years of age or older, while having suffered a prior conviction for one
of the same enumerated felonies. (§ 667.9.) Two elements of the
enhancement at issue in that case were that the defendant have committed
the enumerated felony against a person 65 years or older and the defendant
knew or reasonably should have known that the victim was 65 years old or
older. (See Smith, supra, at p. 1184.) Like Floyd, the defendant in Smith
challenged the sufficiency of the evidence to support the jury’s finding that he
reasonably should have known that his victim, who was 67 at the time of the
offense, was 65 years or older. (Id. at pp. 1190–1191.)
The Smith court rejected the defendant’s challenge, noting that “the
record shows that the evidence presented to the jury included [the victim’s]
physical appearance before the jury,” as well as evidence that the victim “was
just three months short of her sixty-eighth birthday on the day of the
robbery.” (Smith, supra, 13 Cal.App.4th at p. 1190.) The court further
explained that based on this evidence, the court must “therefore presume, in
support of the judgment, that the jury could reasonably deduce from its view
of [the victim’s] physical appearance that defendant reasonably should have
known that she was at least 65 years old.” (Ibid.)
Smith is virtually indistinguishable from this case. The evidence
presented with respect to whether Floyd “knew or reasonably should have
known that [the victim] was an elder” in this case is essentially the same as
the evidence that the Smith court found sufficient to support the jury’s
finding on an age-based knowledge element in that case. Here, there was
evidence that R.W. was 65 years old when Floyd committed the offense, and
the jury was able to view R.W.’s physical appearance, both at the time of trial
and through exhibits of photographs taken on the date of the offense that
were presented at trial.
8
We agree with the Smith court that given this evidence, and viewing it
in the light most favorable to the judgment, a jury could have reasonably
determined that Floyd actually knew or should have known that his victim
was 65 years old at the time of the offense. We therefore reject Floyd’s
contention that his conviction for elder abuse must be reversed based on the
insufficiency of the evidence that he knew or should have known his victim
was 65 or older.
B. Floyd is not entitled to reversal of his conviction for assault by means of
force likely to produce great bodily injury because it is not a lesser
included offense of elder abuse
Floyd argues that he cannot stand convicted of both elder abuse and
assault with force likely to cause great bodily injury because the latter is a
lesser included offense of the former. Specifically, Floyd argues that in order
“[t]o decide whether an offense is included in another offense for purposes of
the prohibition on multiple convictions for the same act or course of conduct,
courts apply the elements test. Under this test, if all of the statutory
elements of one offense are included in another offense, the former is a
necessarily included offense.” Floyd asserts that “[a]pplying the test here, it
is plain that one cannot commit elder abuse without also committing an
assault by means/force likely to produce great bodily injury. The latter is a
necessarily included offense of the former.”
The People contend that under the “ ‘elements test’ – which looks to the
statutory elements of both offenses – assault with force likely to cause great
bodily injury is not a lesser included offense of elder abuse.”
9
Generally, a defendant may be convicted of multiple offenses arising
out of a single course of conduct under section 954.3 However, “[w]hen a
defendant is found guilty of both a greater and a necessarily lesser included
offense arising out of the same act or course of conduct, and the evidence
supports the verdict on the greater offense, that conviction is controlling, and
the conviction of the lesser offense must be reversed.” (People v. Sanders
(2012) 55 Cal.4th 731, 736.)
For purposes of instructing the jury, there are two tests for determining
whether one offense is necessarily included in another: the “ ‘elements’ test”
and the “ ‘accusatory pleading’ test[.]” (See People v. Lopez (1998) 19 Cal.4th
282, 288.) For purposes of the rule against convictions for both greater and
lesser included offenses, however, only the elements test may be used to
determine whether a charged offense is necessarily included within another
charged offense. (People v. Reed (2006) 38 Cal.4th 1224, 1231.) Under the
elements test, a court considers only the statutory elements of the two
offenses, and the question is whether all of the statutory elements of the
lesser offense are necessarily included within those of the greater offense—
i.e., “if a crime cannot be committed without also committing a lesser offense,
the latter is a necessarily included offense.” (People v. Ramirez (2009)
45 Cal.4th 980, 985.)
The statutory elements of abuse of an elder likely to produce great
bodily harm or death as was charged in count 1 are: (1) infliction or cause of
3 Section 954 provides in relevant part that “[a]n accusatory pleading
may charge two or more different offenses connected together in their
commission, or different statements of the same offense or two or more
different offenses of the same class of crimes or offenses, under separate
counts . . . . The prosecution is not required to elect between the different
offenses or counts set forth in the accusatory pleading, but the defendant may
be convicted of any number of the offenses charged . . . .”
10
unjustifiable physical pain or mental suffering on an elder under
circumstances or conditions likely to produce great bodily harm or death,
(2) willfulness, and (3) when the person acted, he or she knew or reasonably
should have known that the victim was an elder or dependent adult. (§ 368,
subd. (b)(1); see also CALCRIM No. 830.) Again, the statute defines an
“elder” as someone who is at least 65 years old. (§ 368, subd. (g); see also
CALCRIM No. 830.) “Great bodily harm means significant or substantial
physical injury. It is an injury that is greater than minor or moderate harm.”
(CALCRIM No. 830, italics omitted.)
The elements of assault with force likely to cause great bodily injury as
charged in count 2 are (1) an assault, i.e., an act that by its nature would
directly and probably result in the application of force to a person,
(2) willfulness, and (3) force likely to produce great bodily injury. (§ 245,
subd. (a)(4); see also CALCRIM No. 875.)
It is apparent from a comparison of the elements for these offenses that
assault with force likely to cause great bodily injury is not a lesser included
offense of elder abuse, because the offense of elder abuse under section 368
may be committed by inflicting mental suffering, alone. Thus, the elder
abuse offense may be committed without necessarily committing assault with
force likely to cause great bodily injury, given that assault with force likely to
cause great bodily injury requires an act that by its nature would probably
and directly result in the application of force to likely to produce great bodily
injury to a person. We therefore reject Floyd’s contention that he may not
stand properly convicted of both the offense of elder abuse and assault with
force likely to cause great bodily injury.
11
C. The abstract of judgment should be amended to reflect the accurate
subdivision for Floyd’s section 368 enhancement
Floyd contends that at the sentencing hearing, the trial court correctly
cited to section 368, subdivision (b)(2) as the statutory basis for the three-
year enhancement imposed in connection with count 1.4 However, the
abstract of judgment incorrectly lists the enhancement connected with count
1 as being based on section 368, subdivision (b)(1). He argues that this
discrepancy is a clerical error that can be corrected at any time.
The People agree with Floyd that where the court’s oral pronouncement
of judgment conflicts with the minute order or the abstract of judgment, the
court’s oral pronouncement controls, and the People further concede that the
abstract of judgment should be amended to reflect the court’s imposition of an
enhancement based on section 368, subdivision (b)(2) with respect to count 1.
(See People v. Mitchell (2001) 26 Cal.4th 181, 185 [“Courts may correct
clerical errors at any time, and appellate courts (including this one) that have
properly assumed jurisdiction of cases have ordered correction of abstracts of
judgment that did not accurately reflect the oral judgments of sentencing
courts”].) We agree that the abstract of judgment does not reflect the court’s
oral pronouncement of judgment and that this discrepancy is a clerical error
requiring correction. (See People v. Leon (2020) 8 Cal.5th 831, 855 [“Any
discrepancy between the judgment as orally pronounced and as recorded in
the clerk’s minutes or abstract of judgment is presumed to be the result of
clerical error”].) We will therefore direct the trial court to enter an amended
abstract of judgment that reflects that the enhancement imposed in
4 The minute order issued by the court for this date also indicates section
368, subdivision (b)(2) as the statutory basis for the enhancement attached to
count 1.
12
connection with count 1 is based on section 368, subdivision (b)(2) and not on
subdivision (b)(1) of that that provision.
IV.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court
with directions to issue an amended abstract of judgment that correctly
identifies section 368, subdivision (b)(2) as the statutory basis for the
enhancement imposed in connection with count one. The court shall forward
a copy of the amended abstract to the Department of Corrections and
Rehabilitation.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
13