People v. Prestwood CA4/3

Filed 11/25/24 P. v. Prestwood CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G063088

v. (Super. Ct. No. FWV21002410)

DONALD ROBERT PRESTWOOD, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of San Bernardino County, Kyle S. Brodie, Judge. Affirmed. Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Donald Robert Prestwood was convicted of felony elder abuse and related counts for striking an 82-year-old woman and knocking her to the floor, dislocating her hip, and striking her thereafter. On appeal, he contends the trial court erred by not instructing the jury with misdemeanor elder abuse. Prestwood contends the victim was more likely to dislocate her hip due to a prior injury, and therefore he did not apply force likely to result in great bodily injury. He claims the jury should have been instructed on the lesser included misdemeanor offense. Because we find there was no substantial evidence to support instructing on the misdemeanor, we affirm the judgment. STATEMENT OF FACTS AND PROCEDURAL HISTORY The victim, Elizabeth M., was 82 years old on September 28, 2020. On that date, she lived in a senior apartment building in Fontana. Elizabeth’s upstairs neighbor, Lorenza M., was a friend of her daughter, Crystal. Prestwood was also friends with Crystal, and knew both Elizabeth and Lorenza. On September 28, Prestwood entered Lorenza’s apartment without knocking. Prestwood said he needed to talk about his relationship with Crystal. According to Lorenza, he was acting very strangely, as if not in his right mind. Lorenza asked him to leave, followed him to Elizabeth’s apartment, and watched him enter. Elizabeth testified that Prestwood knocked at her door, told her somebody had beaten him up, and asked to come in to wash his hands. Elizabeth reluctantly let him in, telling him to wash and leave. After going to the kitchen sink and turning on the water, Prestwood asked Elizabeth for a towel, and she went to the couch using her walker to retrieve a towel.