Plaintiff and Respondent, ) Appeal #F016858
v. ) Kern County
JOHN DOE, ) No. 46078
P.O. Box 1324
V
THE COURT COMMITTED REVERSIBLE ERROR BY
FAILING TO DEFINE “GREAT BODILY INJURY.”
A. Introduction
Where the terms used in the jury instructions are commonly understood by persons familiar with the English language, the trial court has no sua sponte duty to define those terms. (People v. Pitmon (1985) 170 Cal.App.3d 38, 52; People v. McElheny (1982) 137 Cal.App.3d 396, 402.) The court does have such a duty, however, where an expression used in the jury instructions has a technical meaning peculiar to the law. (People v. Reynolds (1988) 205 Cal.App.3d 776, 779; People v. Valenzuela (1985) 175 Cal.App.3d 381, 393; People v. Pitmon, supra, 170 Cal.App.3d at 52; People v. McElheny, supra, 137 Cal.App.3d at 403.)
In the case at bar, the court repeatedly instructed the jury that Mr. Doe could be found to have acted in self defense if, at the time of the shooting, he had an honest and reasonable fear of death or “great bodily injury” from Mr. A. (RT 1370-1371; see CT 399, 401 and 402.) Similarly, the court repeatedly instructed the jury that Mr. Doe could be found guilty of voluntary manslaughter if, at the time of the shooting, he had an honest but unreasonable belief he would suffer death or “great bodily injury” from Mr. A. (RT 1361-1362, 1367-1368; see CT 380, 389 and 391.) At no time, however, did the court define “great bodily injury” for the jury. As will appear, this was reversible error.
B. The error
The expression “great bodily injury” is used in several different contexts in our state’s criminal law. Two of those contexts are relevant here. First, under Penal Code sections 12022.7 and 12022.8, a defendant may receive an enhanced sentence if he/she has intentionally inflicted “great bodily injury” on his/her victim. (1992 Edition.) Second, under Penal Code section 197, subdivision (3), a homicide defendant may be found to have acted in self-defense if, at the time he/she killed the decedent, he/she had a reasonable fear of death or “great bodily injury” from the decedent. (Ibid.) For present purposes, the first pertinent question is this: Does the expression “great bodily injury,” as used in sections 12022.7 and 12022.8, have the same meaning as it does in section 197?
Review of the relevant authorities reveals that “great bodily injury” does have the same meaning in the above two contexts. Under the express terms of section 12022.7, the expression “great bodily injury,” as used for enhancement purposes, means a “significant or substantial physical injury.” (Ibid.) Similarly, according to the foremost authority on California law, the expression “great bodily injury,” as used in the context of a homicide defendant’s claim of self-defense, also means a “significant or substantial physical injury.” (Witkin, “California Criminal Law,” 2nd Edition (1986); Vol. 1, sec. 243, p. 279.) Hence, the expression “great bodily injury” does have the same meaning in both of the above contexts, namely a “significant or substantial physical injury.”
Unfortunately, the expression “significant or substantial physical injury” is not exactly a model of clarity, either. Hence, the second pertinent question for present purposes is this: Precisely what sort of injury is required to constitute a “great bodily injury” and/or a “significant or substantial physical injury,” as those expressions are used in Penal Code section 12022.7? As will appear, the answer to this question may be found in a sizable body of case law.
In People v. Burroughs (1984) 35 Cal.3d 824, our Supreme Court held that the expression “great bodily injury,” as used in section 12022.7, is “essentially equivalent” to the expression “serious bodily injury,” as used in Penal Code section 243. (Id., at 831; accord, see People v. Villareal (1985) 173 Cal.App.3d 1136, 1141.) Under section 243, “serious bodily injury” includes, but is not limited to, the following types of physical injury: “loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” (1992 Edition.) Hence, under Burroughs and Villareal, the expression “great bodily injury” likewise includes, but is not limited to, the following types of physical injury: a loss of consciousness, a concussion, a bone fracture, etc., etc., etc.
Existing case law concerning enhancements for great bodily injury is consistent with the above rule of law. Hence, forcible sex offenses per se, absent additional physical injuries, do not constitute great bodily injury for enhancement purposes. (People v. Caudillo (1978) 21 Cal.3d 562, 575-589.) By contrast, where the victim’s assault resulted in extreme damage to her eye and said damage lasted four months, an enhancement for great bodily injury was proper. (People v. Muniz (1989) 213 Cal.App.3d 1508, 1520.) Similarly, a bone fracture could properly be found to constitute great bodily injury for enhancement purposes (People v. Villareal, supra, 173 Cal.App.3d at 1138-1141), as could a broken jaw (People v. Johnson (1980) 104 Cal.App.3d 598, 608-610). Finally, where the youthful victim of an assault sustained multiple contusions and severe discolorations, the trier of fact could properly find true an enhancement for great bodily injury. (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836; see also People v. Sanchez (1982) 131 Cal.App.3d 718, 734.)
Clearly a fine line exists–and, indeed, several courts have specifically said a “fine line” exists–between those injuries which are “significant or substantial” enough to constitute great bodily injury and those which are not. (People v. Muniz, supra, 213 Cal.App.3d at 1519; People v. Lopez (1986) 176 Cal.App.3d 460, 463-464; People v. Jaramillo, supra, 98 Cal.App.3d at 836.) Indeed, in view of the fact that forcible sex offenses do not constitute great bodily injury (People v. Caudillo, supra, 21 Cal.3d at 575-589) but multiple contusions and severe discolorations do so constitute (People v. Jaramillo, supra, 98 Cal.App.3d at 836; People v. Sanchez, supra, 131 Cal.App.3d at 734), a fairly sophisticated understanding of the law is obviously required before one can say on which side of the “fine line” any given physical injury falls.
Under the circumstances, it cannot fairly be denied that the expression “great bodily injury” is one which has a technical meaning peculiar to the law. Hence, where a homicide defendant claims he/she killed the decedent out of a fear of death or great bodily injury, it is not sufficient for the trial court to give the standard CALJIC instructions, as was done in this case. Rather, the court must also give an instruction providing a technical definition of “great bodily injury” which is consistent with the definition of “serious bodily injury” set forth in Penal Code section 243. The trial court in the instant case failed to give such an instruction. This was error. [Footnote 1]
C. Prejudice
As set forth in the previous argument, the defendant has a federal constitutional right to correct instructions on the theory of the defense. (See pp. 65-66, ante.) The trial court’s failure to define “great bodily injury,” as that expression was used in the jury instructions on self-defense, violated this right and thus constituted Chapman error.
The court’s error cannot survive Chapman review, nor can it survive any other standard of prejudice. There was abundant evidence of Mr. A’s propensity for violence, both generally speaking and toward Mr. Doe in particular. (See pp. 10-14 and 58-59, ante.) Moreover, there was evidence showing Mr. A was 30 years old, stood 6’2″ tall and weighed over 220 pounds, whereas Mr. Doe was 54 years old and weighed 60 to 75 pounds less. (RT 476, 880-881; PR 2-3.) Additionally, there was extensive evidence that Mr. A intended to inflict major injury on Mr. Doe on the afternoon in question, including: (1) Jerrise C’s testimony that Mr. A said he was going to “box [Mr. Doe] up a little” and “kick his ass” (RT 193-197, 1133); (2) Toni L’s testimony that Jerrise C told her Mr. A intended to attack Mr. Doe with a baseball bat (RT 811); and (3) Mr. Doe’s testimony that he believed (not unreasonably) that
Mr. A’s youth and size would have enabled him to make “mush” out of Mr. Doe (RT 881-882).
Had the jury been properly instructed, there is at least a reasonable probability they would have concluded Mr. Doe had a reasonable fear Mr. A would inflict injuries—such as a bone fracture or a wound requiring extensive suturing–which constituted “great bodily injury” under the above authorities. Hence, there is a reasonable probability Mr. Doe would have received a more favorable result, namely an acquittal, but for the court’s failure to define “great bodily injury.” The judgment must be reversed.
There are four pre-1984 cases holding there is no sua sponte duty to define “great bodily injury.” (People v. LaFargue (1983) 147 Cal.App.3d 878, 886; People v. Kimbrel (1981) 120 Cal.App.3d 869, 876; People v. Miller (1981) 120 Cal.App.3d 233, 236; and People v. Roberts (1981) 114 Cal.App.3d 960, 964-966.) At the time those cases were decided, however, “great bodily injury” merely meant a “significant or substantial physical injury”–something which, as noted above, is no more precise or technical an expression than “great bodily injury.” In 1984, however, as also noted above, the California Supreme Court held that “great bodily injury” means the same thing as “serious bodily injury”–an expression which is defined with great technical precision in Penal Code section 243. (People v. Burroughs, supra, 35 Cal.3d at 831.) In view of Burroughs and the painstakingly precise definition of “serious bodily injury” set forth in section 243, the above four cases are no longer good authority for the proposition that “great bodily injury” does not have a technical meaning which is peculiar to the law.
