F 17.20

F 17.20 n1 Great Bodily Injury: When Unintended Victim Injured (PC 12022.7).

Based on the statutory language a GBI enhancement may be found even though a person other than the intended victim was injured. (People v. Calderon (91) 232 CA3d 930, 937 [283 CR 833]; see also People v. Troung (2001) 90 CA4th 887, 896-900 [108 CR2d 904] [GBI inflicted during domestic violence incident triggered sentencing enhancement even though it was inflicted on third person].)

F 17.20 n2 Great Bodily Injury: Specific Intent Required (PC 12022.7).

ALERT: As of 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, 517-518 [252 CR 418].) Therefore, the intent element should be included for crimes committed prior to 1/1/96. See also FORECITE F 17.20 n6 [constitutional challenge to elimination of specific intent for GBI].

PC 12022.7 requires only a general intent to inflict GBI. The reference to domestic violence in PC 12022.7(d) “was designed to describe the context in which the subdivision applies, not the intent requirement needed under that provision.” (People v. Carter (98) 60 CA4th 752, 755 [70 CR2d 569].)

In People v. Santos (90) 222 CA3d 723, 742 [271 CR 811], the court held that great bodily injury under PC 12022.7 requires a specific intent to inflict great bodily injury. In so doing, the court rejected those cases finding that such intent is not necessary (People v. Bass (83) 147 CA3d 448, 454 [195 CR 153]; People v. Martinez (85) 171 CA3d 727, 735 [217 CR 546]) and adopted the reasoning of People v. Phillips (89) 208 CA3d 1120, 1123 [256 CR 654], which held that specific intent to inflict great bodily injury is required. However, this requirement did not encompass an intent to cause the exact great bodily injury actually sustained by the victim. (People v. O’Connell (95) 39 CA4th 1182, 1191-92 [46 CR2d 379]; see also People v. Ramirez DEPUBLISHED (97) 54 CA4th 888, 902-905 [62 CR2d 644] [discussing split in authorities].)

The conflict between Bass and Phillips was recognized in the July 1990 CALJIC pocket.

RESEARCH NOTES: See also “With The Intent to Inflict Such Injury: The Courts and the Legislature Create Confusion in California Penal Code Section 12022.7,” 28 San Diego LR 963, and “Regarding Troy: Will The Real Abusers Please Stand Up,” 24 UWLA LR 379.

F 17.20 n3 Great Bodily Injury: Ex Post Facto Limitation To Escobar Definition Of GBI (PC 12022.7).

As noted in the 1993 CALJIC comments to these instructions, in People v. Escobar (92) 3 C4th 740, 752 [12 CR2d 586], the California Supreme Court overruled its previous decision in People v. Caudillo (78) 21 C3d 562, 580-83 [146 CR 859], defining “great bodily injury.” The Supreme Court abandoned Caudillo insistence upon proof of injuries “severe or protracted in nature” and held that injuries need not fit into one of the specific categories listed in Caudillo to satisfy the enhancement statute.

In Escobar itself the Supreme Court acknowledged the potential ex post facto problems raised by its expansion of the enhancement, but found that the injuries there were sufficient to constitute “great bodily injury” even under the Caudillo test. (Escobar 3 C4th at 752.) Though the Escobar opinion did not squarely resolve the ex post facto issue, the Supreme Court’s subsequent decision in People v. King (93) 5 C4th 59, 79-81 [19 CR2d 233], appears dispositive of the matter. In King the court recognized that retroactive application of its overruling of Culbreth (In re Culbreth (76) 17 C3d 330, 332-35 [130 CR 719]) would offend the ex post facto clause, since (notwithstanding some appellate decisions questioning its wisdom) Culbreth was clearly the law at the time of King’s crime. That analysis applies equally to Escobar’s overruling of Caudillo: Though the Caudillo opinion was controversial, it was settled California law until the California Supreme Court declared otherwise in Escobar. Accordingly, under the ex post facto analysis of King, great bodily injury enhancements must continue to meet the more restrictive test of Caudillo for any offense committed prior to the date of finality of the Escobar opinion (Nov. 21, 1992).

F 17.20 n4 Application Of “Temporary Safety” Rule To Enhancements.

See FORECITE F 8.21.1 n4.

F 17.20 n5 Great Bodily Injury: Does Not Require Intent To Inflict The Specific Type Of Injury Actually Sustained By The Victim.

This requirement did not encompass an intent to cause the exact great bodily injury actually sustained by the victim. (People v. O’Connell (95) 39 CA4th 1182, 1191-92 [46 CR2d 379].)

F 17.20 n6 Constitutional Challenge To Elimination Of Specific Intent For GBI.

By eliminating the specific intent requirement, the new statute (PC 12022.7) allows a form of strict liability for GBI enhancements for any injury no matter how unforeseeable, resulting from the commission of the crime. Such strict liability is arbitrary since the enhancement liability is unrelated to the inherent danger of the crime committed. This implicates substantive due process (U.S. Constitution 14th Amendment) and the cruel and unusual punishment clause (8th and 14th Amendments). Accordingly, reasonable foreseeability of the injury, as well as the defendant’s knowledge thereof (see FORECITE F 1.20a and FORECITE F 3.30a), should be elements of the enhancement.

F 17.20 n7 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 n8 Enhancement For Great Bodily Injury Or Death By Discharging Firearm From Motor Vehicle: Great Bodily Injury As Lesser Included Enhancement.

The enhancement for great bodily injury or death which results from discharging a firearm from a motor vehicle is of greater severity than the great bodily injury enhancement imposed by PC 12022.7. (See People v. Eck (99) 76 CA4th 759 [90 CR2d 594].) Thus, because both enhancements punish the intentional infliction of great bodily injury (see, e.g., In re Sergio R. (91) 228 CA3d 588, 599 [279 CR 149] [“it is therefore apparent, and we hold, that the phrase ‘intent to inflict great bodily injury’ in section 12022.55 has the same meaning as it has in section 12022.7″]), “the lesser enhancement proscribed by section 12022.7 is subsumed into section 12022.55….” (Eck, 76 CA4th at 763.) For this reason, when appropriate an instruction on great bodily injury under section 12022.7 may be appropriate as a lesser included enhancement when PC 12022.55 is charged. (See FORECITE LIO II(A)(3).)

Additionally, when both enhancements are charged the jury should only be permitted to find one or the other of such enhancements to be true. (But see Eck, supra [holding that multiple punishment is barred by PC section 654 but not addressing the propriety of allowing the jury to return such multiple enhancements].)

CAVEAT: Instruction on lesser included enhancements must be requested. (See FORECITE LIO II(A)(4).)

F 17.20 n9 Great Bodily Injury Resulting In Coma.

The phrase “of a permanent nature” in PC 12022.7(b) refers to paralysis, not to injuries causing the victim to become comatose. (People v. Tokash (2000) 79 CA4th 1373, 1378 [94 CR2d 814] [victim’s coma chemically induced to prevent brain swelling].)

F 17.20 n10 Group Attack: Constitutional Claim — Failure To Require Finding Of Personal Infliction.

People v. Cole (82) 31 C3d 568, People v. Corona (89) 213 CA3d 589 and People v. Modiri (2006) 39 C4th 481, purport to authorize great bodily injury liability inflicted during a group attack without a finding that the defendant personally inflicted great bodily injury. However, there is a fundamental constitutional problem with allowing imposition of any sentencing enhancement unless all required statutory elements are found beyond a reasonable doubt by the jury. A sentencing enhancement which increases the range of punishment to which the defendant is exposed is subject to the due process (5th and 14th Amendments) and fair trial by jury (6th and 14th Amendments) provisions of the federal constitution. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215]; Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]; see also FORECITE PG VII(C)(32).)

Hence, it violates the federal constitution to impose a great bodily injury enhancement upon a criminal defendant unless the prosecution has proven beyond a reasonable doubt that the defendant personally inflicted such injury as required by the statute as interpreted by the California Supreme Court in Cole. While it is obviously difficult to prove who inflicted what injury in a “group attack, “difficulty of proof does not justify lessening the [prosecution’s] burden….” (Wright and Cuculic, Annual Review Of Developments In Instructions – 1997, July 1998 The Army Lawyer 39, 41.) Even though “[c]ourts must be sensitive to the difficulties attendant upon the prosecution of [certain kinds of cases] … `this court cannot alter evidentiary rules because litigants might prefer different rules in a particular class of cases.'” (Tome v. United States (95) 513 US 150, 165-67, quoting United States v. Salerno (92) 505 US 317, 322.)

F 17.20 n11 Propriety Of Multiple GBI Enhancements For Single Count Alleging Two Victims.

See People v. Ausbie (2004) 123 CA4th 855 [two enhancements per PC 12022.7 are permissible for one count alleging two victims where each victim had great bodily injury inflicted on them].

F 17.20 n12 Pregnancy Resulting In Abortion As GBI

See People v. Cross (2008) 45 C4th 58.

F 17.20a

Great Bodily Injury: Must Be In Addition

To That Present In The Offense Itself

(PC 12022.7)

Modify ¶ 3, first sentence of CJ 17.20 to provide as follows [added language is capitalized]:

“Great bodily injury” as used in this instruction means a significant or substantial physical injury IN ADDITION TO THAT WHICH MUST NECESSARILY BE PRESENT IN EVERY CASE OF __________ [insert charged offense].

Points and Authorities

In People v. Escobar (92) 3 C4th 740, 752 [112 CR2d 586], the court overruled People v. Caudillo (78) 21 C3d 562, 580-83 [146 CR 859] by holding that “transitory and short-lived” injuries are sufficient to support a GBI enhancement under PC 12022.7. However, the court agreed with Caudillo’s conclusion that the legislative history of PC 12022.7 does require “substantial or significant injury in addition to that which must be present in every case of rape.” [Internal quote marks and citations omitted.] (Escobar 3 C4th at 746-47; see also People v. Beltran (2000) 82 CA4th 693 [98 CR2d 730] [court erred in imposing GBI enhancement under PC 12022.7 since GBI is an element of felony evasion of peace officer (VC 2800.3)].) Accordingly, the standard CALJIC instruction should be modified to assure the jury understands that the injury must be “beyond that inherent in the offense itself.” (See e.g. People v. Pitmon (85) 170 CA3d 38, 52 [216 CR 221] [jury must be instructed that rape requires physical force beyond that necessary to accomplish the sexual intercourse]; see also authorities at FORECITE F 10.00b.)

A sentencing enhancement which increases the range of punishment to which the defendant is exposed is subject to the due process (5th and 14th Amendments) and fair trial by jury (6th and 14th Amendments) provisions of the federal constitution. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215]; Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]; see also FORECITE PG VII(C)(32).)

F 17.20b

Great Bodily Injury: Must Be Inflicted On Non-Accomplice

SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. CALJIC’s Sixth Edition adopted FORECITE’s position and added the requirement, omitted in the 5th Edition, that the great bodily injury be inflicted upon a person other than an accomplice to the crime.

*Add at end of CJ 17.20 ¶ 1:

… other than an accomplice to the offense or attempted offense.

Points and Authorities

CJ 17.20 omits the requirement that great bodily injury applies only if the person injured was not an accomplice. (PC 12022.7(a).)

NOTES

If there is a factual question as to whether the person injured was an accomplice, the jury should also be given the appropriate instructions defining an accomplice.

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-603.]

F 17.20c

Great Bodily Injury: Group Attack — Knowledge Alone Insufficient

*Modify CJ 17.20 as follows:

Alternative # 1:

[Delete Option # 2 of Paragraph 4.]

Alternative # 2. Replace CJ 17.20 with the following:

If you find that ________ [name of victim] suffered great bodily injury but you are unable to determine who inflicted such injury, you may still find the great bodily injury allegation against the defendant to be true if the prosecution has proven beyond a reasonable doubt that:

1. The defendant knowingly and intentionally participated in a group beating which caused great bodily injury to _________ [name of victim];

2. It is not possible to determine which assailant inflicted the great bodily injuries; and

3. The defendant personally [delivered blows] [applied physical force] upon ________ [name of victim] which, by itself, could have caused the great bodily injury suffered by ________ [name of victim].*

[*But see CAVEAT below.]

Points and Authorities

A. Second CJ Alternative Is Improper

CJ 17.20 (¶ 4) was added in the July 1999 Pocket Part. The comment stated that the new paragraph was derived from People v. Corona (89) 213 CA3d 589 [261 CR 765]; see also People v. Banuelos (2003) 106 CA4th 1332 [131 CR2d 639]. However, only the first option of the new CJ paragraph is supported by Corona. (See People v. Pena DEPUBLISHED (2005) 128 CA4th 1219 [the second alternative in CJ 17.20 is facially inconsistent with the statutory language that requires a finding that the defendant personally inflicted great bodily injury].) The second option is a form of vicarious liability that is based upon what the defendant knew, or reasonably should have known, the other attackers did or would do. This is actually less than would be required under aiding and abetting which requires actual knowledge and specific intent. (See People v. Mendoza (98) 18 C4th 1114, 1128 [77 CA2d 428].) Hence, the second option is not authorized by Corona and contrary to People v. Cole (82) 31 C3d 568 [183 CR 350], which doesn’t even allow the enhancement when aiding and abetting is proven. (See also People v. Rodriguez (99) 69 CA4th 341, 351 [81 CR2d 567] [proximately causing great bodily injury insufficient to satisfy personal infliction required by Cole].) [See Brief Bank # B-836 for additional briefing alleging that Corona is invalid for several reasons.]

Moreover, use of a non-legislative group liability exception would violate due process because it is patently contrary to the plain wording of the statute, and the plain wording of a stature must control. (McBoyle v. United States (31) 283 US 25, 27 [75 LEd2d 816; 51 SCt 340].) As Jones v. U.S. (99) 527 US 373 [144 LEd2d 370; 119 SCt 2090] suggested, the elements of an enhancement which increases the range of available punishment must be found by a jury beyond a reasonable doubt as required by the federal constitution. (5th, 6th and 14th Amendments.) Hence, to judicially redefine the elements of an enhancement violates state law (see Keeler v. Superior Court (70) 2 C3d 619, 630-31 [87 CR 481]) and the due process clause of the federal constitution. (See e.g., United States v. Lanier (97) 520 US 259, 265 fn 5 [137 LEd2d 432; 117 SCt 1219].)

B. Requirement That Defendant Personally Join In The Delivery Of Blows

Assuming arguendo that Corona does not violate Cole (see CAVEAT, below), CJ 17.20 fails to make it clear that the defendant must have personally “joined” in the “delivery” of “blows” by a group of attackers. (See e.g., People v. Pena DEPUBLISHED (2005) 128 CA4th 1219, 1251 [the second alternative in CJ 17.20 is facially inconsistent with the statutory language that requires a finding that the defendant personally inflicted great bodily injury].) Hence, if used, the second paragraph should be modified to a form such as the one set forth above.

C. Requirement That Participation In Group Attack Be Knowing And Intentional

Because the group attack rule promulgated by Corona is founded on the principles of aiding and abetting (see Corona at 594-95), the knowledge and intent elements of aiding and abetting liability should apply. (See generally People v. Beeman (84) 35 C3d 547, 560-61; see also FORECITE F 3.00 n6.) Hence, the above instruction requires “knowing and intentional” participation in the group attack.

D. Listing Of Elements

CJ 17.20 (¶ 2) fails to expressly set forth the required elements of vicarious liability for great bodily injury during a group attack. Hence, assuming the theory may properly be used (but see above), the instruction should be modified to set forth each required element which the jurors must find. (See generally Apprendi v. New Jersey, supra.)

CAVEAT

The above instruction should only be offered alternatively in the event the constitutional claim set forth in FORECITE F 17.20 n10 is rejected.