California Penal Code Section 667.9 Subdivision (b) - Interpretation

In People v. Smith (1993) 13 Cal.App.4th 1182, the jury found true the two-year enhancement in section 667.9, subdivision (b), committing certain enumerated felony offenses against three classes of vulnerable victims, including persons over 65 years of age or older, with a prior conviction of the same enumerated felonies. An element of that enhancement is that the defendant commit the felony against a person 65 years or older, where the defendant knows or reasonably should have known that his victim was 65 years old or older. (Smith, supra, at p. 1184.) On appeal, the defendant made the very same argument that is raised here. (Id. at p. 1190.) The Smith court concluded that the trial evidence included the elderly victim's actual age--the victim was just months short of her 68th birthday at the time the defendant robbed her. (Smith, supra, 13 Cal.App.4th at p. 1190.) Also, the record indicates that at trial, the victim appeared before the jury. (Ibid.) During final argument, the prosecutor noted for the record only that the victim's hair was gray, but noted no other physical characteristics indicating the victim was older than a certain age. (Ibid.) The reviewing court rejected the defendant's claim of insufficient evidence. It observed that from the above evidence, a reviewing court presumes that "the jury could reasonably deduce from its view of the victim's physical appearance that the defendant reasonably should have known that the victim was at least 65 years old." (Smith, supra, 13 Cal.App.4th at pp. 1190-1191) The defendant argued that the evidence was insufficient to support the jury's finding under section 667.9 that he should have known his victim was 65 years of age or older because "although the jury could view the victim's physical appearance at trial, the prosecutor noted for the record only that her hair was gray, but did not note any other physical characteristics indicating her to be more than a certain age." (Smith, at p. 1190.) The Court of Appeal rejected this argument, stating, "the record shows that the evidence presented to the jury included the victim's physical appearance before the jury. Evidence was also presented that she was just three months short of her sixty-eighth birthday on the day of the robbery. The Court therefore presume, in support of the judgment, that the jury could reasonably deduce from its view of her physical appearance that defendant reasonably should have known that she was at least 65 years old." (Ibid.) The defendant made the same contention as to a sentencing enhancement imposed pursuant to section 667.9, subdivision (a). The enhancement applied only if the defendant knew or reasonably should have known that the defendant was 65 years of age or older. In rejecting the defendant's argument that the evidence was insufficient, the court reasoned: "Here, the record shows that the evidence presented to the jury included the victim's physical appearance before the jury. Evidence was also presented that the victim was just three months short of her 68th birthday on the day of the robbery. We therefore presume, in support of the judgment, that the jury could reasonably deduce from its view of the victim's physical appearance that defendant reasonably should have known that she was at least 65 years old." (Id., at p. 1190.)