Racy

Despite being “zapped” on the leg with a stun gun and chased down the hallway in his house, the elderly victim in this case was able to retreat to his bedroom, lie in a defensive position on his bed, and emerge unscathed as his wallet was stolen from his person. Based on these facts, a jury found defendant Norman William Racy II guilty of residential robbery and elder abuse “under circumstances or conditions likely to produce great bodily harm or death.” (Pen. Code, § 368, subd. (b)(1).) The jury was unable to reach a verdict on charges of assault with a stun gun and intimidation of a witness, and the court declared a mistrial on those counts. Defendant was sentenced to prison for six years "after the court refused to stay the punishment for felony elder abuse. Defendant appeals.

On appeal, defendant contends his conviction for felony elder abuse must be reversed because it was not supported by substantial evidence or, in the alternative, because the trial court prejudicially erred in failing to instruct the jury on the lesser included offense of elder abuse “under circumstances or conditions other than those likely to produce great "bodily harm or death.” (§ 368, subd.…