Filed 8/6/26 P. v. Cross CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089273
Plaintiff and Respondent,
(Super. Ct. No. 24CM1406)
v.
JEROME LEE CROSS,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Kathy
Ciuffini, Judge.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Charlotte Woodfork and
Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On June 26, 2024, Jerome Lee Cross hit R.B., a 75-year-old man, with a metal rod.
He was convicted on three counts based on this incident and sentenced to an aggregate
term of nine years.
On appeal, Cross argues: 1) the trial court erred by failing to obtain a waiver of
his right to testify in his own defense; and 2) his elder abuse conviction must be reversed
because there was insufficient evidence introduced at the preliminary hearing and at trial
that he knew or reasonably should have known that R.B. was at least 65 years old. The
People disagree. We affirm.
PROCEDURAL HISTORY
On July 17, 2024,1 the Kings County District Attorney filed an information
charging Cross with assault with a deadly weapon (Pen. Code,2 § 245, subd. (a)(1);
count 1); felony elder abuse (§ 368, subd. (b)(1); count 2); and mayhem (§ 203; count 3).
The information also alleged, inter alia, that as to count 3, Cross personally used a deadly
weapon (§ 12022, subd. (b)(1)).
On November 13, the jury found Cross guilty on all counts. As to count 3, the
jury also found true that Cross personally used a deadly weapon.
Subsequently, Cross made a motion for a new trial, in propria persona, arguing his
counsel was ineffective. The trial court treated the motion as including a request for new
counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). After conducting
a Marsden hearing, the court denied both requests.
On January 15, 2025, Cross was sentenced to an aggregate term of 9 years,
consisting of eight years on count 3 (the upper term), plus one year for personally using a
deadly or dangerous weapon. The court imposed and stayed the sentences on counts 1
and 2 pursuant to section 654.
1 Subsequent references to dates are to dates in 2024 unless stated otherwise.
2 Undesignated statutory references are to the Penal Code.
2.
On January 30, 2025, Cross timely filed a notice of appeal.
FACTUAL SUMMARY
On June 26, R.B., who was 75 years old, was working outside. He noticed an
individual he had never seen before, whom he later identified as Cross. They walked past
each other. R.B. looked at Cross and Cross looked at R.B. Neither said anything, and
R.B. continued working. While he was looking down, he felt a blow and then lost vision
in both eyes. He did not see who attacked him. However, C.B., R.B.’s co-worker, saw
Cross approach R.B. and hit him with a metal rod.
As a result of the attack, R.B. lost all vision in one eye.
DISCUSSION
I. The Trial Court Was Not Required to Obtain a Waiver of Cross’s Right to
Testify in his Own Defense
A. Applicable Law
“A criminal defendant has the right to testify at trial, ‘a right that is the mirror
image of the privilege against compelled self-incrimination and accordingly is of equal
dignity.’ [Citations.] ‘The defendant may exercise the right to testify over the objection
of, and contrary to the advice of, defense counsel.’ ” (People v. Duong (2020) 10 Cal.5th
36, 55.). However, “[a] trial court has no duty to give such advice or seek an explicit
waiver, unless a conflict with counsel comes to its attention.” (People v. Enraca (2012)
53 Cal.4th 735, 762.) “Absent an express conflict, ‘ “a trial judge may safely assume that
a defendant, who is ably represented and who does not testify is merely exercising his
Fifth Amendment privilege against self-incrimination and is abiding by his counsel’s trial
strategy[.]” ’ ” (Duong, supra, at p. 55.)
B. Additional Background
On November 8, during the hearing on motions in limine, defense counsel stated
that “Cross hasn’t elected as to whether or not he will testify.”
3.
On November 12, after the prosecution’s case-in-chief, the following exchange
occurred:
“[Defense Counsel]: [¶] Your Honor, just … for the record, [Cross]
was asking I can tell [sic] testify, right? And what I was going to tell him
is, yes, when the [c]ourt is saying close of evidence, they mean the close of
the [prosecution’s] case, not that there won’t be any more evidence in the
case. [¶] You have time [to] make that decision. We are not going to force
you to make a choice today.
“[Cross]: Got it.
“[Trial Court]: Yeah. [Cross], I will give you as much time as you
need to talk with [defense counsel]. So tomorrow if we finish our calendar
earlier, you can talk to him about that.
“[Cross]: Got it.”
The following day, defense counsel made a motion to dismiss counts 2 and 3
pursuant to section 1118.1, which the trial court denied. The court then asked defense
counsel if he intended to present any evidence, and defense counsel stated, “No. At this
time the [d]efense has no witnesses and no evidence.” Cross did not object or otherwise
comment on this statement. After the jurors entered the courtroom, the court again asked
defense counsel if he had evidence to present. Defense counsel responded, “No. Defense
has no witnesses and no evidence. Defense rests.” Cross did not object or otherwise
comment on this statement.
C. Analysis
Cross argues that a trial court has an obligation to obtain an express waiver of a
defendant’s right to testify if there is uncertainty over whether the defendant wants to
testify. He further argues that the trial court erred by failing to obtain a waiver of his
right to testify in his own defense because the record shows there was such uncertainty
here.
Cross is incorrect as to the applicable law. “It has long been the rule that, absent
an express conflict, ‘ “ ‘[a] trial judge may safely assume that a defendant, who is ably
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represented and who does not testify[,] is merely exercising his Fifth Amendment
privilege against self-incrimination and is abiding by his counsel’s trial strategy.…’
[Citation.] If that assumption is incorrect, [the] defendant’s remedy is not a personal
waiver in open court, but a claim of ineffective assistance of counsel.” ’ ”3 (People v.
Wilson (2024) 16 Cal.5th 874, 938 (Wilson).) None of the cases Cross cites call this
long-standing rule into question.
Applying this rule to the record in this case, Cross’s argument fails. On
November 8, defense counsel indicated that Cross had not yet decided whether he was
going to testify. On November 12, defense counsel clarified that Cross still had time to
decide whether he wanted to testify, the trial court told Cross it would give him as much
time as he needed to speak with defense counsel, and Cross stated that he understood.
Ultimately, Cross did not testify.
Accordingly, there was no express conflict between defense counsel and Cross
regarding whether Cross should testify. Nor was there any indication that there might be
a conflict. Instead, the record shows that Cross was considering whether he should
testify, and he was given the opportunity to discuss the issue with his counsel. And when
Cross ultimately did not testify, the trial court could safely assume that he was
“ ‘ “ ‘exercising his Fifth Amendment privilege against self-incrimination and [was]
abiding by his counsel’s trial strategy[.]’ ” ’ ”4 (Wilson, supra, 16 Cal.5th at p. 938; see
also People v. Alcala (1992) 4 Cal.4th 742, 805–806 [“When the record fails to disclose a
timely and adequate demand to testify, ‘a defendant may not await the outcome of the
3 Cross appears to assert that his counsel’s ineffective assistance played a role in
his decision not to testify. However, he also expressly states he is not bringing a claim
based on ineffective assistance of counsel in this direct appeal. Accordingly, we do not
address any such potential claim.
4 We note that this assumption was later confirmed by Cross during the Marsden
hearing. He twice admitted that, when defense counsel advised him that he should not
testify, he agreed with defense counsel.
5.
trial and then seek reversal based on his claim that despite expressing to counsel his
desire to testify, he was deprived of that opportunity.’ ”].)
Accordingly, Cross’s argument that the trial court erred by failing to obtain a
waiver of his right to testify fails.
II. Substantial Evidence Supports Cross’s Elder Abuse Conviction, and His
Claim that Insufficient Evidence was Produced at the Preliminary Hearing is
Moot
Cross argues that his elder abuse conviction must be reversed because there was
no evidence introduced at the preliminary hearing, and insufficient evidence introduced at
trial, that Cross knew, or reasonably should have known, that R.B. was at least 65 years
old. He also argues that because defense counsel did not move to dismiss the elder abuse
charge on the ground that insufficient evidence was presented at the preliminary hearing,
he provided ineffective assistance.
Cross’s claims fail. His elder abuse conviction was supported by substantial
evidence at trial, and because of this, his claim that insufficient evidence was produced at
the preliminary hearing is moot.
A. Additional Background
On June 27, the Kings County District Attorney filed a complaint charging Cross
with assault with a deadly weapon. The preliminary hearing was held on July 11. At the
preliminary hearing, R.B. testified he was 75 years old at the time of the incident. He
also testified that, before he was hit, he and Cross saw each other.
Cross was held to answer on the charge of assault with a deadly weapon, as well
as an uncharged count of mayhem. When the prosecutor filed the information, he also
included an elder abuse charge. Defense counsel did not file a motion to dismiss the
elder abuse charge or otherwise object to its inclusion in the information.
B. Applicable Law and Standard of Review
6.
Section 368, subdivision (b)(1), punishes “[a] 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[.]” “As used in this section, ‘elder’ means a person who is 65 years of age or
older.” (§ 368, subd. (g).)
When evaluating a sufficiency of evidence claim, “ ‘we review the whole record in
the light most favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ”
(People v. Cravens (2012) 53 Cal.4th 500, 507.) “The test for evaluating a sufficiency of
evidence claim is deferential[.]” (People v. Flores (2020) 9 Cal.5th 371, 411.) “We must
presume in support of the judgment the existence of every fact that the trier of fact could
reasonably deduce from the evidence.” (People v. Medina (2009) 46 Cal.4th 913, 919.)
“We must also ‘accept logical inferences that the jury might have drawn from the
circumstantial evidence.’ ” (Flores, at p. 411.) “The conviction shall stand ‘unless it
appears “that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].” ’ ” (Cravens, at p. 508.)
C. Analysis
1. Claim re: Sufficiency of Evidence at Trial
We begin by addressing Cross’s claim that his elder abuse conviction must be
reversed because insufficient evidence was introduced at trial that he knew or reasonably
should have known that R.B. was at least 65 years old. According to Cross, “the only
evidence established that [R.B.] had never seen Cross before that morning and did not
come face-to-face with his assailant at the time of the attack.”
At trial, R.B. testified that, at the time of the incident, he was 75 years old. He
also testified that, prior to being hit, he and Cross saw each other. Additionally, the jury
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was able to observe the physical appearance of R.B., and a photograph of the injury to
R.B.’s face was introduced into evidence.
As there is evidence that Cross saw R.B. prior to hitting him with a metal rod, a
reasonable jury could find that, given R.B.’s physical appearance, Cross reasonably
should have known that he was at least 65 years old before hitting him. (See People v.
Smith (1993) 13 Cal.App.4th 1182, 1190 [“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 sixty-
eighth 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 [the] defendant reasonably should have known that she was at least
65 years old.”].)
In resisting this conclusion, Cross points to a statement made by the prosecutor.
When arguing that Cross’s section 1118.1 motion should be denied, the prosecutor stated:
“We would oppose that motion. In terms of the [section] 1118[.1]
for Count 2, knowledge that the victim was elderly, we saw what the victim
looked like. [Cross] saw what he looked like, he had gray hair, he looks
like he’s over 60 or 65 at least. And he -- you know, he’s a wrinkled man.
I think that should be enough for … the element to be met. The -- I think
it’s obvious that he’s not a young man. And that, in fact, he’s an elderly
man.”
Cross argues that this comment “should settle it in [his] favor: If [R.B.] might
look 60 years old, then that is not substantial evidence to prove that Cross ‘knew or
reasonably should have known’ that he was at least 65!” We disagree with Cross’s
reading of the record. The prosecutor did not concede that R.B. looked, or might look,
under 65 years old. Instead, it appears that he misspoke, then corrected himself. This
reading is supported by his further argument that R.B. is “an elderly man,” as well as his
argument to the jury that “[h]e doesn’t look like a 30 year old or 40 year old, he has gray
hair, he’s wrinkled. He looks like someone who is over 65.” Moreover, shortly after the
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prosecutor stated that R.B. “looks like he’s over 60 or 65 at least,” the court noted that
R.B. “does appear to be his stated age.” Thus, the prosecutor’s comment does not settle
the matter in Cross’s favor.
Accordingly, based on the foregoing, substantial evidence supports the conviction.
2. Claim re: Sufficiency of Evidence at Preliminary Hearing
We next turn to Cross’s argument that there was no evidence introduced at the
preliminary hearing that Cross knew, or reasonably should have known, that R.B. was at
least 65 years old. Because substantial evidence supports the conviction, this claim is
rendered moot. (People v. Crittenden (1994) 9 Cal.4th 83, 137 [“Where the evidence
produced at trial amply supports the jury’s finding, any question whether the evidence
produced at the preliminary hearing supported the finding of probable cause is rendered
moot. Even ‘ “ ‘[i]f there is insufficient evidence to support the commitment, the
defendant cannot be said to be prejudiced where sufficient evidence has been introduced
at … trial’ ” ’ to support the jury’s finding as to the charge or as to the truth of the
allegation.”].)
Moreover, even if this claim is not moot and was not forfeited, it fails on the
merits. As relevant here, essentially identical evidence was introduced at trial and the
preliminary hearing. At the preliminary hearing: R.B. testified that he was 75 years old
at the time of the incident; R.B. testified that, prior to being hit, he and Cross saw each
other; the trial court was able to observe R.B.’s physical appearance; and a photograph of
the injury to R.B.’s face was introduced into evidence. Given that, as discussed above,
this evidence is sufficient to support the conviction for elder abuse, which requires the
prosecution to prove each element beyond a reasonable doubt, it is also sufficient to
satisfy the lesser standard of evidence required at the preliminary hearing. (See People v.
Scully (2021) 11 Cal.5th 542, 584–585.)
Accordingly, this claim fails as well.
9.
DISPOSITION
The judgment is affirmed.
SNAUFFER, J.
WE CONCUR:
FRANSON, Acting P. J.
DESANTOS, J.
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