Return to CALJIC Part 14-17 – Contents
F 17.20.1 n1 Infliction of Great Bodily Injury: Sex Crimes — Specific Intent Not Required (PC 12022.8).
Contrary to the suggestion in the CALJIC use note, the great bodily injury enhancement under PC 12022.8 does not require a specific intent to inflict great bodily injury on the victim. (People v. Martinez (93) 13 CA4th 23, 28-29 [16 CR2d 556].)
F 17.20.1 n2 Infliction of GBI: Sex Crimes — Is Specific Intent Required? (PC 12022.8).
ALERT: Effective 1/1/96, PC 12022.7 was amended to delete the requirement of intent to inflict injury. CJ 17.20 (6th Ed.) was modified to delete this requirement. However, because this change reduces the prosecution’s burden of proof it may not be applied retroactively to crimes occurring prior to January 1, 1996. (See In re Baert (88) 205 CA3d 514, 517-18 [252 CR 418].) Therefore, the intent element should be included for crimes committed prior to 1/1/96. (See FORECITE F 17.20 n2.)
As reflected in the 1992 revision of CJ 17.20 and the accompanying CALJIC Comment, notwithstanding some older cases to the contrary, the current judicial view is that the standard GBI enhancement, PC 12022.7, requires a specific intent to inflict great bodily injury, not merely the intent to commit the act. (See e.g., People v. Phillips (89) 208 CA3d 1120, 1123-25 [256 CR 654].) However, litigation persists over whether other enhancement statutes for “great bodily injury” also require that specific intent. People v. Santos (90) 222 CA3d 723, 742 [271 CR 811], held that, by referring to “great bodily injury as provided in Section 12022.7,” the habitual offender statute (PC 667.7(a)) effectively incorporated by reference the elements of PC 12022.7, including the specific intent requirement as construed in such cases as Phillips.
Like PC 667.7(a), PC 12022.8 (the GBI enhancement for sex offenses) specifically references PC 12022.7 (“great bodily injury, as defined in Section 12022.7″). In the wake of Santos, the CALJIC Committee initially revised its PC 12022.8 instruction, CJ 17.20.1, to require specific intent. Recently, however, two appellate decisions have taken issue with that view and have held that PC 12022.8 does not require specific intent. (People v. Martinez (93) 13 CA4th 23, 28-29 [16 CR2d 556]; People v. Wallace (93) 14 CA4th 651, 663-65 [17 CR2d 721].) In its July 1993 pocket part, the CALJIC committee re-revised CJ 17.20.1, this time deleting the specific intent element.
Nevertheless, by analogy to Santos’ construction of PC 667.7, counsel should continue to urge that, like its cross-referenced counterpart PC 12022.7, PC 12022.8 too requires specific intent. The Martinez opinion did not squarely address the parallels between the two statutes (PC 667.7, PC 12022.8) while the Wallace court attempted to distinguish the terms of the respective statutes references to PC 12022.7 (“provided” versus “defined”). This is truly an empty semantic distinction. To the extent there is any difference between the ways the statutes cross-reference PC 12022.7 (which is doubtful), PC 12022.8 appears to be the more clear example of incorporation by reference of PC 12022.7’s elements.
Moreover the Supreme Court’s inaction in response to Martinez and Wallace cannot be taken as implied approval of their holdings. (Calif. Rule of Court 977(a); People v. Dee (90) 222 CA3d 760, 763-65 [272 CR 208].)
F 17.20.1 n3 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 17.20.1a
Great Bodily Injury: Group Attack–Improper To Predicate Upon
Knowledge Of Acts Committed By Others
*Modify CJ 17.20.1 as follows:
[Delete Option # 2 of Paragraph 4.]
Points and Authorities
(See FORECITE F 17.20c.)