P. v. Reibstein

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Filed 4/16/07 P. v. Reibstein CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
RICKY LEE REIBSTEIN,
Defendant and Appellant.
E039559
(Super.Ct.Nos. INF050125,
INF047073, & INF043523)
OPINION
APPEAL from the Superior Court of Riverside County. Richard A. Erwood,
Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General,
and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

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A jury convicted defendant and appellant Ricky Lee Reibstein of one count of
elder abuse. (Pen. Code, § 368, subd. (b)(1).)1 The jury did not find true the allegation
that, in the commission of the elder abuse, defendant personally inflicted great bodily
injury upon the victim. The trial court sentenced defendant to the upper term of four
years in state prison.
On appeal, defendant contends that: 1) there was insufficient evidence to support
the finding that he committed elder abuse; 2) the court erred in imposing the upper term
based upon the vulnerability of the victim; and 3) the court erred in imposing the upper
term, pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Defendant has
submitted a supplemental brief asserting that Cunningham v. California (2007) ___ U.S.
___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) requires that a jury find aggravating
factors before a trial court may impose the upper term. We affirm.
FACTUAL BACKGROUND
On February 25, 2005, defendant’s mother (mother or the victim), who was
approximately 72 years old at the time, and was five feet two inches tall and weighed 110
pounds, had a laser procedure performed on her right eye. Defendant knew that mother
was having laser surgery that day, so he met her at the doctor’s office after the surgery
was finished. Around noon, mother left the doctor’s office and took the bus home.
Defendant also went to her house. Defendant did not live with mother.
1 All further statutory references will be to the Penal Code unless otherwise noted.

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Mother testified that that evening, defendant became angry with her and hit her on
her forehead and face, below her eyes. She tried to call 911 on her cell phone, but
defendant took her phone away. Defendant then told the person on the line that there was
no problem and that mother had been drinking. As a result of being hit, mother had a
lump on her forehead, bruising around her eyes, and pain in her right eye. Mother
believed defendant had been drinking alcohol that day, and she admitted to drinking
alcohol that day, as well. Mother was also taking Welbutrin for depression at the time.
On March 2, 2005, mother returned to the doctor’s office, complaining of
significant eye pain, as a result of being hit by defendant. Mother told Dr. Dariusz
Tarasewicz that defendant hit her multiple times with his fists. Dr. Tarasewicz examined
her, noted that she had moderate to severe bruising in the area around her eyes, and
concluded that there had been a history of trauma around her eyes. Dr. Tarasewicz
testified that mother’s injuries were consistent with her story of how she sustained the
injuries. He was concerned that there was more underlying damage, such as bone
fractures around the eyes, and requested that a computerized axial tomography (CAT)
scan be performed on her. He asked her if she wanted to contact the police, but she said
no. Dr. Tarasewicz reported his findings to Riverside County Adult Protective Services.
On March 3, 2005, Officer Gregory Jackson was dispatched to investigate the
elder abuse call from adult protective services. He met with mother at her home and
noted that she had severe bruising on her face (around her eyes), the side of her head, her
shoulder, and her leg. He also noticed a lump and a contusion on mother’s forehead. The

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bruises appeared to be several days old. Mother told Officer Jackson that when
defendant drinks, he becomes violent toward her.
On March 4, 2005, Ellen Mary McGuire, who worked for the Riverside County
Department of Social Services, interviewed mother. McGuire observed that mother had
bruises and swollen eyes. McGuire was so concerned about mother’s welfare that she
advised mother to get a restraining order against defendant and encouraged her to move
into a shelter. Mother adamantly told McGuire that she did not want to obtain a
restraining order because defendant was her son.
Defendant testified on his own behalf. Defendant said that mother had been
drinking alcohol that day, and that she fell on the front of her head when she got up from
the couch. He said that he took away a bottle of vodka that was sitting on the table, and
then mother attacked him, biting him and banging her head into his belt. Defendant also
testified that he was six feet tall and weighed 220 pounds.
When called to testify by the defense, mother said that she did not recall telling the
doctor that defendant punched her. She said that defendant hit her with an open hand.
ANALYSIS
I. There Was Sufficient Evidence to Establish That Defendant Committed Elder Abuse
Defendant contends that there was insufficient evidence to support his conviction
for elder abuse. He argues that, although the evidence showed that mother sustained
injuries, it did not establish that he inflicted those injuries. We disagree.

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A. Standard of Review
“To determine the sufficiency of the evidence to support a conviction, an appellate
court reviews the entire record in the light most favorable to the prosecution to determine
whether it contains evidence that is reasonable, credible, and of solid value, from which a
rational trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.)
B. The Evidence Was Sufficient
Section 368, subdivision (b)(1), imposes criminal liability on “[a]ny person who
knows or reasonably should know that a person is an elder or dependent adult and who,
under circumstances or conditions likely to produce great bodily harm or death, willfully
causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable
physical pain or mental suffering.”
Here, the evidence presented at trial established that defendant punched his elderly
mother multiple times in the face. Mother testified that, several hours after she
underwent laser eye surgery, defendant became angry with her and hit her on her
forehead and face, below her eyes. She tried to call 911, but defendant took her phone
away from her. Furthermore, Dr. Tarasewicz, who examined mother five days after
defendant hit her, testified that mother told him that defendant hit her multiple times with
his fists, several hours after her eye surgery. Dr. Tarasewicz observed moderate to severe
bruising in the area around mother’s eyes that was consistent with her story of how she
sustained the injuries. Similarly, Officer Jackson testified that he observed severe
bruising around mother’s eyes, as well as on the side of her head, her shoulder, and her

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leg. He also noticed a lump and a contusion on mother’s forehead. In addition, Ellen
Mary McGuire testified that when she interviewed mother, she observed that mother had
bruised and swollen eyes. Further, we reasonably infer that mother told McGuire that
defendant caused her injuries, because McGuire recommended that mother obtain a
restraining order against him. Mother adamantly refused to obtain a restraining order
because defendant was her son.
Defendant argues that the evidence did not prove that he inflicted the injuries upon
mother since mother drank alcohol on the day of the incident and took Welbutrin,
ignoring the recommendation on the prescription that she not drink alcohol while taking
the medication. He further asserts that mother did not seek medical treatment until five
days after the incident, that mother failed to inform Dr. Tarasewicz of her history of
alcohol, and that Dr. Tarasewicz testified that any injury to the back of the head could
cause the type of condition seen on mother’s face. Defendant concludes that this
evidence suggests that mother could have received her injuries by her own fall, as a result
of her drinking. Defendant’s argument is simply a self-serving and speculative theory.
The jury properly evaluated the direct evidence presented at trial and determined that
defendant hit mother, thereby causing her injuries.
Defendant further argues that the evidence was equivocal, since Dr. Tarasewicz
testified that mother told him that defendant hit her with his fists, whereas, when she was
called as a witness by the defense, she testified that defendant hit her with an open hand.
He argues that her injuries were not consistent with being hit with an open hand. In view
of such evidence, defendant argues that it was more likely that mother sustained her

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injuries when she got up from the couch and fell. Mother was clearly reluctant to pursue
any action against defendant, as evidenced by her declining to report the incident to the
police and her adamant refusal to obtain a restraining order against defendant. Moreover,
at trial, she conveniently testified that she did not recall telling Dr. Tarasewicz that
defendant punched her with his fists, but rather testified that defendant hit her with an
open hand. We note that mother consistently and unequivocally testified that defendant
hit her. We further note Dr. Tarasewicz’s testimony that mother said defendant punched
her with his fists, and that her injuries were consistent with that history. The jury
apparently simply believed the evidence that supported the version of facts that defendant
hit mother, rather than that mother fell on her own accord.
Viewing the evidence in the light most favorable to the prosecution, as we must,
we conclude that there was sufficient evidence that defendant inflicted unjustifiable pain
on his elderly mother.
II. The Court Properly Sentenced Defendant to the Upper Term
Defendant contends that his Sixth Amendment right to a jury trial, as defined in
Blakely, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi), was violated when the trial court imposed the upper term sentence. We
disagree and conclude that the present sentence may be affirmed based on defendant’s
recidivism.

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A. The Upper Term Was Supported by a Factor That Did Not Need to Be Found
by a Jury
In Blakely, the U.S. Supreme Court affirmed that “‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.’”
(Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) In
Cunningham, supra, 127 S.Ct. at page 860, the United States Supreme Court held that the
imposition of an upper term sentence under California’s determinate sentencing law,
based solely on a judge’s factual findings, violates a defendant’s Sixth and Fourteenth
Amendment right to a jury trial.
At the outset, the People assert that defendant forfeited his Blakely claim by failing
to raise it at the sentencing hearing. We disagree. At the time of defendant’s sentencing,
the decision in People v. Black (2005) 35 Cal.4th 1238 (Black) was the controlling
precedent. Black held that Blakely did not apply to California’s determinate sentencing
law. (Black, supra, at p. 1244.) In light of that holding, it would have been futile for
defendant to raise a Blakely objection at sentencing. “Reviewing courts have
traditionally excused parties for failing to raise an issue at trial where an objection would
have been futile or wholly unsupported by substantive law then in existence.” (People v.
Welch (1993) 5 Cal.4th 228, 237-238.) Thus, defendant did not waive his claim of
Blakely error by failing to object in the trial court. Nonetheless, his contention fails.
A single factor in aggravation suffices to support the imposition of the upper term.
(People v. Osband (1996) 13 Cal.4th 622, 730.) Here, the court based the upper term on

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the aggravating factors that the victim was particularly vulnerable and that defendant was
on probation when he committed the current offense. Both Blakely and Apprendi
recognize that “the fact of a prior conviction” can be found by a judge, even though any
other fact that increases the maximum statutory penalty for a crime must be found by a
jury. (Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.) The
Apprendi exception for prior convictions has been broadly interpreted by California
courts. (People v. Thomas (2001) 91 Cal.App.4th 212, 221-223.) Because the factor of
defendant’s probation status at the time of the current offense arises out of the fact of a
prior conviction, and so is closely related to the prior conviction itself, it comes within
the prior conviction exception. Also, as with a prior conviction, this fact can be
established by a review of court records. (Id. at p. 223.) Thus, the upper term was
supported by a factor that did not need to be found by a jury. (Blakely, supra, at p. 301;
Apprendi, supra, at p. 490.)
B. Any Error Was Harmless
In defendant’s opening brief, he contends that the trial court’s use of the victim’s
vulnerability as an aggravating factor in sentencing was improper since the victim’s
vulnerability was an element of the crime. In his supplemental brief, he contends that the
court improperly relied on this factor since it was not submitted to a jury.
The People effectively concede that the court erred in relying on the vulnerability
factor since it was not found true by a jury, but argue that any error was harmless beyond
a reasonable doubt. The record shows that defendant, who was six feet tall and weighed
220 pounds, attacked his five-foot two-inch elderly mother, who weighed 110 pounds, in

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her home, where he could take advantage of her isolation. While we find that the record
supported the court’s determination, it would be speculative for us to say that a jury
would have found this factor true beyond a reasonable doubt. Nonetheless, in view of the
court’s proper reliance on the recidivist factor, any error in relying on the vulnerability
factor was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Price
(1991) 1 Cal.4th 324, 492, superseded by statute on other grounds as stated in People v.
Hinks (1997) 58 Cal.App.4th 1157, 1161-1164.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P.J.
We concur:
McKINSTER
J.
RICHLI
J.

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