SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
F 3160 Great Bodily Injury (PC 667.5(c)(8), 667.61(e)(3), 1192.7(c)(8), 12022.7, 12022.8) (Case Law Discussing This Instruction)
TABLE OF CONTENTS
F 3160.1 Titles And Identification Of Parties
F 3160.1 Inst 1 Great Bodily Injury—Title
F 3160.1 Inst 2 Identification Of Prosecution And Defendant
F 3160.2 Great Bodily Injury—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3160.3 Great Bodily Injury—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 3160.4 Great Bodily Injury—Burden Of Proof Issues
F 3160.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 3160.5 Great Bodily Injury—Elements And Definitions
F 3160.5 Inst 1 Great Bodily Injury: Must Be In Addition To That Present In The Offense Itself (PC 12022.7)
F 3160 Notes
F 3160 Note 1 Great Bodily Injury—CALCRIM Cross-References And Research Notes
F 3160 Note 2 Great Bodily Injury: When Unintended Victim Injured (PC 12022.7)
F 3160 Note 3 Great Bodily Injury: Specific Intent Required (PC 12022.7)
F 3160 Note 4 Great Bodily Injury: Ex Post Facto Limitation To Escobar Definition Of GBI (PC 12022.7)
F 3160 Note 5 Application Of “Temporary Safety” Rule To Enhancements
F 3160 Note 6 Great Bodily Injury: Does Not Require Intent To Inflict The Specific Type Of Injury Actually Sustained By The Victim
F 3160 Note 7 Constitutional Challenge To Elimination Of Specific Intent For GBI
F 3160 Note 8 Enhancement For Great Bodily Injury Or Death By Discharging Firearm From Motor Vehicle: Great Bodily Injury As Lesser Included Enhancement
F 3160 Note 9 Group Attack: Constitutional Claim—Failure To Require Finding Of Personal Infliction
F 3160 Note 10 Propriety Of Multiple GBI Enhancements For Single Count Alleging Two Victims
F 3160 Note 11 No Sentencing Enhancement For Great Bodily Injury Where The Offense Includes Great Bodily Injury As An Element (PC 12022.7)
F 3160 Note 12 Infliction of Great Bodily Injury: Sex Crimes—Specific Intent Not Required (PC 12022.8)
F 3160 Note 13 Infliction of GBI: Sex Crimes—Is Specific Intent Required? (PC 12022.8)
F 3160 Note 14 Personal Use of Firearm Causing Great Bodily Injury: Requirement of Personal Use
F 3160 Note 15 Pregnancy Resulting In Abortion As GBI
F 3160 Note 16 PC 12022.95 Does Not Supplement PC 12022.7
Return to Series 3100 Table of Contents.
F 3160.1 Titles And Identification Of Parties
F 3160.1 Inst 1 Great Bodily Injury—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 3160.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 3160.2 Great Bodily Injury—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3160.3 Great Bodily Injury—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 3160.4 Great Bodily Injury—Burden Of Proof Issues
F 3160.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 3160.5 Great Bodily Injury—Elements And Definitions
F 3160.5 Inst 1 Great Bodily Injury: Must Be In Addition To That Present In The Offense Itself (PC 12022.7)
*Modify CC 3160 ¶ 3, first sentence, to provide as follows [added language is underlined]:
“Great bodily injury” 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—In People v. Escobar (1992) 3 C4th 740, 752, 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 [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 CC 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 (1985) 170 CA3d 38, 52 [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]; see also Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531].)
See also FORECITE PG VII(C)(32).
CALJIC NOTE: See FORECITE F 17.20a.
F 3160 NOTES
F 3160 Note 1 Great Bodily Injury—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 3161 [Great Bodily Injury: Causing Victim To Become Comatose Or Paralyzed]
CALCRIM 3162 [Great Bodily Injury: Age Of Victim]
CALCRIM 3163 [Great Bodily Injury: Domestic Violence]
Research Notes:
See CLARAWEB Forum, Enhancements and Sentencing Factors —Series 3100.
F 3160 Note 2 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 (1991) 232 CA3d 930, 937; see also People v. Troung (2001) 90 CA4th 887, 896-900 [GBI inflicted during domestic violence incident triggered sentencing enhancement even though it was inflicted on third person].)
CALJIC NOTE: See FORECITE F 17.20 n1.
F 3160 Note 3 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 (1988) 205 CA3d 514, 517-518.) 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 (1998) 60 CA4th 752, 755.)
In People v. Santos (1990) 222 CA3d 723, 742, 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 (1983) 147 CA3d 448, 454; People v. Martinez (1985) 171 CA3d 727, 735) and adopted the reasoning of People v. Phillips (1989) 208 CA3d 1120, 1123, 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 (1995) 39 CA4th 1182, 1191-92; see also People v. Ramirez DEPUBLISHED (1997) 54 CA4th 888, 902-905 [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.]
CALJIC NOTE: See FORECITE F 17.20 n2.
F 3160 Note 4 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 (1978) 21 C3d 562, 580-83, defining “great bodily injury.” The Supreme Court abandoned Caudillo, insistent 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 (1976) 17 C3d 330, 332-35) 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).
CALJIC NOTE: See FORECITE F 17.20 n3.
F 3160 Note 5 Application Of “Temporary Safety” Rule To Enhancements
See FORECITE F 8.21.1 n4.
CALJIC NOTE: See FORECITE F 17.20 n4.
F 3160 Note 6 Great Bodily Injury: Does Not Require Intent To Inflict The Specific Type Of Injury Actually Sustained By The Victim
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 (1988) 205 CA3d 514, 517-518.) 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].
This requirement did not encompass an intent to cause the exact great bodily injury actually sustained by the victim. (People v. O’Connell (1995) 39 CA4th 1182, 1191-92.)
[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.]
CALJIC NOTE: See FORECITE F 17.20 n5.
F 3160 Note 7 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.
CALJIC NOTE: See FORECITE F 17.20 n6.
F 3160 Note 8 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 (1999) 76 CA4th 759.) Thus, because both enhancements punish the intentional infliction of great bodily injury (see, e.g., In re Sergio R. (1991) 228 CA3d 588, 599 [“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 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).)
CALJIC NOTE: See FORECITE F 17.20 n8.
F 3160 Note 9 Group Attack: Constitutional Claim—Failure To Require Finding Of Personal Infliction
See FORECITE F 17.20 n10.
F 3160 Note 10Propriety 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].
CALJIC NOTE: See FORECITE F 17.20 n11.
F 3160 Note 11 No Sentencing Enhancement For Great Bodily Injury Where The Offense Includes Great Bodily Injury As An Element (PC 12022.7)
When the substantive offense includes an element of serious bodily injury or great bodily injury (e.g., PC 243(d)), a great bodily injury enhancement per PC 12022.7 may not properly be charged or imposed. (People v. Hawkins (1993) 15 CA4th 1373, 1375-76; see also People v. Valencia (2000) 82 CA4th 139 [PC 12022.7(f), which expressly precludes the imposition of a great bodily injury enhancement to the sentence of a murder conviction]; but see People v. Chaffer (2003) 111 CA4th 1037, 1044 [because serious injury is not an essential component of the definition of the crime serious bodily injury is not a necessary element of PC 273.5 and the PC 12022.7 GBI enhancement applies].)
NOTE: The terms “serious bodily injury” and “great bodily injury” have substantially the same meaning. (Hawkins 15 CA4th at 1375; People v. Kent (1979) 96 CA3d 130, 136.)
CALJIC NOTE: See FORECITE F 17.19 n3.
F 3160 Note 12 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 (1993) 13 CA4th 23, 28-29.)
CALJIC NOTE: See FORECITE F 17.20.1 n1.
F 3160 Note 13 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 (1988) 205 CA3d 514, 517-18.) 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 (1989) 208 CA3d 1120, 1123-25.) However, litigation persists over whether other enhancement statutes for “great bodily injury” also require that specific intent. People v. Santos (1990) 222 CA3d 723, 742, 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 (1993) 13 CA4th 23, 28-29; People v. Wallace (1993) 14 CA4th 651, 663-65.) 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 (1990) 222 CA3d 760, 763-65.)
CALJIC NOTE: See FORECITE F 17.20.1 n2.
F 3160 Note 14 Personal Use of Firearm Causing Great Bodily Injury: Requirement of Personal Use
(See People v. Cobb (2004) 124 CA4th 1051 [no “group shooting” exception to ban on imposition of PC 12022.53(d) and PC 12022.53(e)(1) [personal use and vicarious use when there was only one victim]; cf., People v. Oates (2004) 32 C4th 1048, 1066 [multiple victims].)
CALJIC NOTE: See FORECITE F 17.19 n13.
F 3160 Note 15 Pregnancy Resulting In Abortion As GBI
See People v. Cross (2008) 45 C4th 58.
F 3160 Note 16 PC 12022.95 Does Not Supplement PC 12022.7
See People v. Corban (2006) 138 CA4th 1111.