## Facts

- On Christmas Eve 2005, 74-year-old James Picaso Jr. heard a noise and saw Norman William Racy II enter his home through the back door without knocking.
- Picaso recognized Racy as the son of a tenant who had done occasional work for him.
- Racy demanded $500; when Picaso said he did not have it, Racy followed him down a hallway and applied a stun gun to Picaso’s leg, causing great pain.
- Picaso, who was diabetic and had bad knees, retreated toward his bedroom; Racy chased him, tipped him onto the bed, and took Picaso’s wallet from his back pocket.
- Picaso suffered no visible injury and did not seek medical care, but reported leg pain for the remainder of the evening.
- Racy fled; Picaso called 911.
- Racy was charged with residential robbery and felony elder abuse under Penal Code § 368(b)(1) (abuse under circumstances likely to produce great bodily harm or death).

## Issues

1. Whether substantial evidence supported the finding that the elder abuse occurred “under circumstances or conditions likely to produce great bodily harm or death” under Penal Code § 368(b)(1).
2. Whether the trial court had a sua sponte duty to instruct on misdemeanor elder abuse under Penal Code § 368(c) as a lesser included offense, and whether omission was prejudicial.
3. Whether Penal Code § 654 barred separate punishment for elder abuse in addition to robbery.

## Decision

- The court held substantial evidence supported the felony elder-abuse theory because the statute focuses on the dangerousness of the circumstances, not the fortuity of minimal injury.
- The court held the trial court prejudicially erred by failing to instruct on misdemeanor elder abuse as a lesser included offense where the evidence was sufficiently equivocal on whether great bodily harm or death was “likely.”
- The felony elder-abuse conviction was reversed and the matter remanded for further proceedings consistent with the opinion.
- The court rejected the challenge to separate punishment, concluding substantial evidence supported an implicit finding of multiple criminal objectives, so § 654 did not require a stay.
- The judgment was otherwise affirmed.

## Legal Principles

- For Penal Code § 368(b)(1), the prosecution must prove the circumstances or conditions were likely to produce great bodily harm or death; actual injury is relevant but not determinative.
- Expert testimony is not categorically required to establish the dangerousness of a device (such as a stun gun); jurors may evaluate risk from the evidence and common experience.
- A trial court must instruct sua sponte on a lesser included offense when substantial evidence would support conviction of the lesser but not the greater; an “all-or-nothing” presentation can make the omission prejudicial.
- Under Penal Code § 654, multiple punishment is barred only when the course of conduct reflects a single intent and objective; separate punishment is permitted when substantial evidence supports multiple objectives (e.g., endangering an elder and taking property).

## Conclusion

The court reversed the felony elder-abuse conviction because the jury was not instructed on misdemeanor elder abuse despite evidence that could support the lesser offense, while upholding the sufficiency of the felony-level evidence and permitting separate punishment for robbery and elder abuse under § 654 based on multiple objectives.


People v. Racy, 148 Cal. App. 4th 1327, 56 Cal. Rptr. 3d 455 (Cal. Ct. App. 2007)