People v. Richey CA3

Filed 2/17/21 P. v. Richey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C089145

Plaintiff and Respondent, (Super. Ct. No. 16FE023867)

v.

LARRY RAY RICHEY,

Defendant and Appellant.

Defendant Larry Ray Richey punched 85-year-old Lawrence Windham multiple times after he parked close to defendant’s car at a gas station. Windham died five hours later from a heart attack. The pathologist that performed the autopsy of Windham testified he died from a heart attack precipitated by defendant’s attack. Defendant was found guilty of elder abuse likely to produce great bodily injury or death (Pen. Code,

1

§ 368, subd. (b)(1))1 and battery with serious bodily injury (§ 243, subd. (d)), with the special allegation for the elder abuse charge that defendant personally inflicted great bodily injury on the victim who was 70 years of age and older (§ 12022.7, subd. (c)). On appeal, defendant argues the pathologist’s causation testimony was irrelevant because he was not charged with the death of Windham, and it was also speculative because he could not say defendant’s attack definitively caused Windham’s death. He asserts the admission of the testimony, and the prosecutor’s arguments discussing the testimony, violated his rights to due process and a fair trial. We will affirm. BACKGROUND Trial Testimony At trial, three witnesses from the gas station testified to seeing aspects of defendant’s confrontation with the victim and him punching the victim on the head multiple times. The video of the incident from the gas station’s surveillance camera was also played for the jury. Windham’s wife testified he was at the gas station after he dropped her off at the grocery store. She said he complained his chest and right cheek hurt, just under his eye, after the incident, none of which he complained of beforehand. She testified she did not hear him say his jaw was hurting but she told a police detective a few days after the incident Windham told her his jaw hurt and the jaw pain was not caused by the punch. Windham’s wife also said though Windham had gone to the dentist office after the incident, he was late and had to reschedule for the following day. She showered when they returned home and afterwards found Windham unresponsive in his recliner. She called 911 and when the paramedics arrived, they unsuccessfully tried to revive him and took him to the hospital where he was pronounced dead.