Brief Bank # B-836 (Re: F 17.20c [Great Bodily Injury: Group Attack–Improper To Predicate Upon Knowledge Of Attacks Committed By Others].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant, and
ROBERT ROE,
Defendant
_______________________________________/
Excerpt from
APPELLANT’S OPENING BRIEF
Appeal From Final Judgment Of Conviction
Superior Court, County of Ventura
The Honorable Roland N. Purnell
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By appointment of the Court of Appeal
II. THE TRIAL COURT’S INSTRUCTIONS ON THE GREAT BODILY INJURY ALLEGATION WERE PREJUDICIALLY ERRONEOUS
A. Background; Reviewability
The People proposed and received an expanded instruction on the great bodily injury allegation, based on a “group attack” theory. (CT 184; RT 1364.) This expanded instruction was contrary to statute, and it was erroneous even if its underlying theory had been permitted by statute. The instruction was prejudicial, and the great bodily injury finding and any sentence imposed thereon should be reversed.
The error is reviewable, because the instruction was an erroneous statement of law. (Pen. Code, § 1259; People v. Hannon (1977) 19 Cal.3d 588, 600.) No objection is necessary for review of a legally erroneous instruction (Ibid.) A trial court has a duty not to give legally erroneous instructions. (People v. Malone (1988) 47 Cal.3d 1, 49.) The instruction is also reviewable because the trial court imposed a three-year sentence based on the great bodily injury finding (RT 1754); but if as appellant argues the finding was based on a statutorily nonexistent legal theory, then the three-year sentence is legally unauthorized. A legally unauthorized sentence is reviewable. (People v. Serrato (1973) 9 Cal.3d 753, 763; People v. McGee (1993) 15 Cal.App.4th 107, 117.)
In any event, both defense counsel clearly objected to the “group attack” expansion of the great bodily injury allegation (RT 1364), which the prosecution had proposed. (CT 184; RT 1364.) The court overruled the defendants’ objections. (RT 1364-1366.)
Roe’s counsel proposed an alternative form of the instruction in the event his objection was overruled (RT 1364), and that form was eventually adopted. (RT 1366.) This was Roe’s proposal and not Doe’s. (RT 1364.) It thus does not affect reviewability in Doe’s appeal.
In any event, such “defensive acts” by a defense attorney—trying to make the best of a bad situation after his objection to a trial court’s error is wrongly overruled—do not negate reviewability. (People v. Turner (1990) 50 Cal.3d 668, 704, fn. 18; 9 Witkin, Cal. Procedure (9th ed. 1997), Appeal, § 387 at pp. 437-439.) Our Supreme Court held this precise type of act—submitting an alternative form of instructions after losing a ruling on whether any such instructions would be given—not to be a waiver in Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-213 [discussed with approval in 9 Witkin, Cal. Proc., Appeal, supra, § 387 at pp. 437-438].)
B. Discussion
At the prosecutor’s request, and over objection of both defense counsel (RT 1364), the trial court gave the following instruction on the great bodily injury allegation appurtenant to Count 1:
As to the special allegation of the personal infliction of great bodily injury alleged in Count 1 of the information, when a person participates in a group attack and it is not possible to determine which assailant inflicted which injuries, the great bodily injury allegation may be found true if that person’s conduct was of a nature that could have caused the great bodily injury suffered by the victim. . . .
This instruction is erroneous for at least three different reasons, each independent of the other.
The instruction brings to mind our Supreme Court’s admonition that it is often ill advised to take instructions directly from appellate opinions:
[T]his case illustrates the danger of assuming that a correct statement of substantive law will provide a sound basis for charging the jury. [Citations.] The discussion in an appellate decision is directed to the issue presented. The reviewing court generally does not contemplate a subsequent transmutation of its words into jury instructions and hence does not choose them with that end in mind. We therefore strongly caution that when evaluating special instructions, trial courts carefully consider whether such derivative application is consistent with their original usage.
(People v. Colantuono (1994) 7 Cal.4th 206, 221, fn. 13.)
* * * * [Subsections (1) and (2) omitted]
1. This Instruction Is Completely Unsupported By Statute, And No Case Holds Otherwise; It Is Pure Judicial Legislation Based On Judicial Policymaking, Invades The Province Of The Legislature, And Is Not Based On A Proper Judicial Function
Finally, the theory on which the prosecutor received its expanded great bodily injury instruction was erroneous for the most basic reason: It is not authorized by any statute, and is contrary to statute.
Only the Legislature has the power to define criminal punishments, and that sole power is subject only to constitutional limitations. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631; see Cal. Const., Art. IV, sec. 1.) It is not within the power of a court to question the wisdom of legislation; that is solely a matter of public policy for the Legislature. (People v. Sipe (1995) 36 Cal.App.4th 468, 482-483.) The judiciary has no authority to judicially legislate its own criminal punishments, when the Legislature did not. That is prohibited by the state doctrine of separation of powers, which is “enshrined in the Constitution and fundamental to the preservation of our civil liberties” (Solberg v. Superior Court (1977) 19 Cal.3d 182, 191), as well as by the Fourteenth Amendment. (United States v. Bass (1971) 404 U.S. 336, 348 [92 S.Ct. 515, 30 L.Ed.2d 488].)
Neither Penal Code section 1192.7, subdivision (c)(8) nor Penal Code section 12022.7—the only possible sources of any great bodily injury allegation—include this expansion of criminal liability for great bodily injury. Both of the above statutes provide one and only one ground for a finding of great bodily injury: that a person personally inflicted great bodily injury on another person (other than an accomplice).
Our Supreme Court has clearly held that the requirement of personal infliction of great bodily injury means what it says: The defendant must personally inflict great bodily injury. (People v. Cole (1982) 31 Cal.3d 568, 572-573, 578-579.) This Supreme Court holding was expressly based on the language of the statutes, which require personal infliction of great bodily injury: “[T]he meaning of the statutory language is clear: the enhancement applies only to a person who himself inflicts the injury.”. (Id. at p. 572.) Even directing the injury doesn’t suffice. (Id. at p. 573.) The holding is also bolstered by the Supreme Court’s holding that enhancement-related allegations are not construed to be vicarious, unless the Legislature expressly so directs. (People v. Walker (1976) 18 Cal.3d 232, 241-242.) There is no such direction in either section 1192.7(c)(8) or section 12022.7.
In like manner, the Supreme Court held that a finding under a former version of section 1192.7(c)(8)—the statute under which the great bodily injury allegation in Count 1 was made—did not create vicarious liability even when the statute didn’t use the word “personally,” again because vicarious liability would require express statutory direction and there was none. (People v. Piper (1986) 42 Cal.3d 471, 477.) In the current version of section 1192.7(c)(8), the source of the great bodily injury allegation in the information (CT 52-53), the statute does use the word “personally” (unlike the statute in Piper). Piper is a fortiori here.
The People’s instruction, by contrast, was in substance: “This defendant can be found to have personally inflicted great bodily injury even if you don’t know whether he did, as long as there were multiple people involved, and this defendant’s conduct could have caused great bodily injury.” However, there is no statutory provision for what “might have” or “could have” been. The legal requirement is proof beyond a reasonable doubt. (See, e.g., People v. Tenner (1993) 6 Cal.4th 559, 566; Pen. Code, § 1096 [beyond a reasonable doubt standard applies in “criminal actions”].) What “could have been” is not proof beyond a reasonable doubt.
There is no possible argument that the plain language of either section 1192.7(c)(8) or section 12022.7 permits a great bodily injury finding without the jury finding, beyond a reasonable doubt, that the defendant himself personally inflicted great bodily injury on another. Criminal statutes must be construed in accordance with their plain language, as a matter of state law (Code Civ. Proc., § 1858; Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365-366), and the Fourteenth Amendment. (United States v. Lanier (1997) __ U.S. __ [117 S.Ct. 1219, 1224-1225, 65 U.S.L.W. 4232].) Any ambiguities in a criminal statute would have to be construed favorably to the defendant, under both state law (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530) and the Fourteenth Amendment. (United States v. Lanier, supra, __ U.S. at p. ___ [117 S.Ct. at p. 1225].) But sections 1192.7(c)(8) and 12022.7 are completely unambiguous; they unambiguously do not permit a true finding based on the “could have caused” instruction above.
People v. Ramirez (1987) 189 Cal.App.3d 603, expressly followed the Supreme Court’s Piper and Walker decisions (discussed above), in holding that a section 12022.8 enhancement (analogous to section 12022.7, in a sex offense) required personal infliction of great bodily injury—even when the defendants deliberately took steps that prevented the victims from identifying which defendant inflicted the injuries. (Ramirez, supra, 189 Cal.App.3d at pp. 624-625.) The reasoning of Ramirez was the same: Since the Legislature used the words “personally inflicted,” that express statutory language must be followed, and Walker and Piper require such a construction anyway. (Ramirez, supra, 189 Cal.App.3d at pp. 624-626.)
Appellant is aware that People v. Corona (1989) 213 Cal.App.3d 589, 594, created the “group attack” expansion of the great bodily injury laws that was the basis of this instruction; and that In re Sergio R. (1991) 228 Cal.App.3d 588, 601-602, followed Corona. These cases are contrary to the Ramirez opinion described above.
Corona, however, was pure judicial legislation, and Corona itself never held otherwise. Its rationale was that Cole “makes no sense” when there is a group attack. (Corona, supra, 213 Cal.App.3d at p. 593.) Whether a Supreme Court holding “makes sense” is not a matter for an intermediate appellate court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and whether legislation “makes sense” is not a matter for any court. (People v. Sipe, supra, 36 Cal.App.4th at pp. 482-483 [wisdom of statute for Legislature and not for courts to decide].) If it is believed the Legislature should enact a “group attack” exception to section 1192.7(c) or 12022.7, then the proper remedy is with the Legislature.
Corona was rejected in Division Four’s opinion in People v. Magana (1993) 17 Cal.App.4th 1371. Magana first held that even if one were to use the Corona standard, Magana’s case didn’t meet it. That was also the basis of Division Five’s subsequent holding in People v. Gutierrez (1996) 46 Cal.App.4th 804, 816.
Magana then made its alternative holding: “In any event, the record does not contain substantial evidence to sustain the required findings that defendant personally inflicted great bodily injury on the [victims].” (Id., 17 Cal.App.4th at p. 1381 [emphasis in original].) Magana’s alternative holding is what appellant argues: The statutes mean what they say, and thus require personal infliction of great bodily injury.
The basis of Corona was that our Supreme Court’s Cole opinion, and thus its Walker and Piper opinions, “make[] no sense when applied to a group pummeling.” (Corona, supra, 213 Cal.App.3d at p. 594.) That may be desirable social policy. But it also purports to overrule the plain language of a statute, and a Supreme Court opinion holding (Cole) that the statute is construed according to its plain language, and three Supreme Court holdings that vicarious enhancement liability requires express statutory direction. None of the above is permissible. (Code Civ. Proc., § 1858; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see ante, p. .)
Absent proof beyond a reasonable doubt of what the statute requires, there can be no great bodily injury finding. At the prosecution’s urging, the trial court’s instruction went well beyond the language of the statute. In so doing, it erred.
This error is one of federal constitutional law as well as state law, for the reasons set forth ante, p. . Thus, the error is measured under Chapman v. California, supra, 386 U.S. at pp. 23-24. The error is prejudicial under any standard for the reasons given ante, p. , incorporated by reference here. Without this vicarious liability instruction, and given the acquittal of mayhem in Count 2, the evidence that Doe personally inflicted great bodily injury was very weak.
Again, the judgment should be reversed as to the finding on the great bodily injury allegation, and any consequences of that allegation, including the three-year enhancement imposed thereon.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant, and
RPBERT ROE,
Defendant
_____________________________________/
Excerpt from
APPELLANT’S REPLY BRIEF
Appeal From Final Judgment Of Conviction
Superior Court, County of Ventura
The Honorable Roland N. Purnell
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By appointment of the Court of Appeal
II. THE TRIAL COURT’S INSTRUCTIONS ON THE GREAT BODILY INJURY ALLEGATION WERE PREJUDICIALLY ERRONEOUS [AOB, Part II, Pages 65-78]
A. Background; Reviewability [AOB, Part II(A), Pages 65-78]
The People’s “waiver” argument so misstates the law, and so badly ignores the governing law set forth by our Supreme Court which was clearly and distinctly presented in the AOB, that it should be strong evidence of the credibility of the People’s overall presentation.
The People agree that Doe and Roe both objected to the People’s proposed instruction on the judicially created “group attack” theory. (RB 35.) They claim, however, that when (i) the trial court overruled those objections and ruled that a “group attack” instruction would be given, (ii) Roe proposed his own modification in the event the Court were to give the objected-to “group attack” instruction, and (iii) Doe’s counsel didn’t object to the modification, that was somehow “invited error.” (RB 35-36.) That is three times meritless.
First. As appellant has clearly shown, a trial court has a legal duty not to give a legally erroneous instruction. (AOB 65, citing People v. Malone (1988) 47 Cal.3d 1, 49; accord People v. Montiel (1993) 5 Cal.4th 877, 942; People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1291. Thus, even if Doe’s counsel had failed to object to a legally erroneous instruction as the People claim, it would not be “invited error” barring review, because an instruction that misstates the law is reviewable on appeal. (See, e.g., AOB 65 and authority cited; authority cited ante; People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10; People v. Aguirre (1995) 31 Cal.App.4th 391, 399; People v. Hernandez (1991) 231 Cal.App.3d 1376, 1383.) “Respondent cites no authority that an alternative instruction must be proffered or that an objection must be made before the issue may be raised on appeal.” (People v. Henderson (1985) 163 Cal.App.3d 1001, 1009.)
Appellant cited to this line of authority clearly, at AOB 64. The People don’t even mention it. Appellant fails to understand how the People can so clearly ignore legal authority which is controlling in this jurisdiction.
There is no authority for the People’s claim that an alleged failure to object to an erroneous jury instruction is “invited error” barring review. The People string-cite four cases (RB 36, top), which are all irrelevant. None of those cases involved jury instructions, let alone erroneous jury instructions as existed here. The People’s four cases respectively involved advisory counsel status, self-representation, co-counsel status, and an advisory verdict. They are clearly irrelevant here.
Second. Roe’s proposed instruction was purely a defensive act. Roe’s counsel objected to there being any “group attack” instruction at all, and so did Doe’s counsel. (RT 1364.) (There was also a stipulation that an objection by one defense counsel was an objection by both. (RT 45.)) Doe’s counsel then said he didn’t object to Roe’s proposed instruction, after Roe’s counsel said he proposed it only “in the event that the court gives People’s 1” [the instruction with the erroneous “group attack” theory]. Thus, Doe’s counsel aligned himself with Roe’s effort to lessen the damage from an instruction on the prosecution’s erroneous legal theory, but only if the court actually instructed on the prosecution’s erroneous theory.
No case has ever held that to be “invited error,” barring review of an instruction on an erroneous legal theory.
Our Supreme Court clearly held this type of defensive act was not a waiver, in People v. Turner (1990) 50 Cal.3d 668, 704, fn. 18. The Supreme Court rested its holding on pragmatic principles of sound representation, that when faced with an adverse court ruling, “prudent defense counsel would be well advised to minimize [its] sting,” and it is not “waiver” to do so. (Id.) The principle was even more clearly stated in 9 Witkin, Cal. Procedure (9th ed. 1997), Appeal, § 387 at pp. 437-439. Appellant set forth both of those authorities, at AOB 66. The People ignore them.
The People’s four cases at the top of RB 36 are again wholly irrelevant. Each involved situations, unlike here, where the defendant got exactly what he requested. None involve situations where the opposing party requested that the trial court commit the error.
Having bypassed the first two of appellant’s authorities in this case, the People try to distinguish the third, Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 (discussed at RB 36-37). The distinction is legally nonexistent. The People, again, have failed to heed this Court’s admonitions in Harris v. Superior Court (1992) 3 Cal.App.4th 661, 666-667 [Gilbert, J.].
Appellant is doing exactly what the City did in Mary M., objecting to a jury instruction based on what he argues is an erroneous legal theory. The People don’t claim otherwise. Even if arguendo appellant were barred from challenging Roe’s specific wording—which he isn’t doing anyway, accord Mary M., supra, 54 Cal.3d at p. 213, fn. 5—he is not barred from doing what the City did in Mary M., challenging the court’s decision to give an instruction on the erroneous legal theory (here, the “group attack” theory) in the first place. Mary M. cited another Supreme Court decision, People v. Calio (1986) 42 Cal.3d 619, 623, where a similar “defensive” action was held not to be a waiver. (See also Schlessinger v. Rosenfeld, Mayer & Susman (1995) 40 Cal.App.4th 1096, 1102, fn. 1; People v. Woods (1991) 226 Cal.App.3d 1037, 1051, fn. 1.)
Even if arguendo appellant had been challenging the specific wording of Roe’s alternative instruction, he wasn’t the one who proposed the instruction. Again, mere failure to object would not waive a challenge to an erroneous instruction. (AOB 65-66, and authority cited; ante, p. , and authority cited.)
Furthermore, appellant notes the parties had already stated their full views in chambers the day before (RT 1364) (we know it was in chambers, because that conference isn’t on the record). If parties’ statements on the record were abridged from the prior chambers discussion, nonetheless, what the court and counsel did was perfectly permissible and doesn’t limit review. Our Supreme Court so stated in Mary M., supra, 54 Cal.3d at p. 213, fn. 4.
Third. Appellant argued that because the erroneous instructions dealt with a sentencing issue, they led to a legally unauthorized sentence (unauthorized because it did not include the required jury finding), which is reviewable. AOB 64-65. The People haven’t responded.
No matter how one looks at it, the People’s claim of “waiver” is without any conceivable merit.
B. Discussion [AOB, Part II(B), Pages 66-78]
Appellant saved the debate over the validity of the “group attack theory” in People v. Corona (1989) 213 Cal.App.3d 589 for the last section in order to simplify the Court’s task, out of time-honored norms of judicial restraint. (Cf. Loder v. City of Glendale (1997) 14 Cal.4th 846, 859.) But it shouldn’t matter, because there is no law to support the People’s request that this Court judicially legislate a new expansion of the Corona “group attack” theory far beyond its current boundaries.
* * * * [Subsections (1) and (2) omitted]
1. This Instruction Is Completely Unsupported By Statute, And No Case Holds Otherwise; It Is Pure Judicial Legislation Based On Judicial Policymaking, Invades The Province Of The Legislature, And Is Not Based On A Proper Judicial Function [AOB, Part II(B)(3), Pages 74-78]
The “group attack” theory is pure judicial legislation, judicial activism in a situation where the Legislature has not spoken. There may be sound policy reasons to have a “group attack” theory under section 12022.7, as stated by Corona. But judges cannot enact legislation; only the Legislature can. And particularly, only the Legislature can define crimes and punishments. That is state law, as well as a Fourteenth Amendment command. (AOB 74-75, and authority cited; ante, p. 25.)
The Corona theory is expressly based on the Court of Appeal’s view that a different result “makes no sense.” (Id., 213 Cal.App.3d at p. 593.) That is all the People support it with. (RB 42 [bottom par.].)
If an appellant raised an argument that the law should be based on what appellant believed “made sense,” this Court would reject the argument and say it was a policy matter for the Legislature. It would be right. (E.g., Estate of Damskog (1991) 1 Cal.App.4th 78, 82 [next-to-last par. of opinion]; see generally, e.g., People v. Sipe (1995) 36 Cal.App.4th 468, 483 [whether a law is wise policy is for the Legislature].) Courts might decide whether a legislative policy “makes sense” in order to uphold an existing legislative policy embodied in a statute. But they do not sit to create new laws not in any statute, based on what they think “makes sense.” Our Constitution vests sole legislative power in the Legislature (Cal. Const., Art. IV, § 1), and does not invite the courts to share that power.
Perhaps recognizing the problem of judicial legislation, the People also try statutory construction, on presumptions arising from legislative silence. (RB 43 [top].) However, “[i]t is a settled principle in California law that ‘When statutory language is . . . clear and unambiguous there is no need for construction, and courts should not indulge in it.’” (In re Lance W. (1985) 37 Cal.3d 873, 886 [citing Solberg v Superior Court (1977) 19 Cal.3d 182, 198]; accord, e.g., Delaney v. Superior Court (1990) 50 Cal.3d 785, 798; People v. Darnell (1990) 224 Cal.App.3d 806, 811 [Stone, J.].)
The language of section 12022.7 is clear and plain; it requires personal infliction of great bodily injury. That is how the statute is interpreted, by its plain language. (People v. Cole (1982) 31 Cal.3d 568, 572 [citing Webster’s New International Dictionary]; accord, e.g., People v. Piper (1986) 42 Cal.3d 471, 476-477 [interpreting language of statute, and also noting prior Supreme Court cases which interpreted “personally” in enhancement to mean what it said].) The plain language of section 12022.7 does not admit to the creation of a “group attack exception.” The trial court’s use of such an exception judicially redefined an essential element of the enhancement, thus invading the province of the Legislature. (See People v. Ross (1988) 205 Cal.App.3d 1548, 1554-1555 [Stone, J.].)
But if one were to use principles of statutory construction, the result would be the same.
First, our Supreme Court has held that the presumption on which the People rely is inapplicable when none of the statutory amendments relate to the subject matter at issue:
To be sure, where the Legislature amends a statute without altering a consistent and long-standing judicial interpretation of its operative language, courts generally indulge in a presumption that the Legislature has ratified that interpretation. [Citation.] Nevertheless, “[t]he presumption of legislative acquiescence in prior judicial decisions is not conclusive in determining legislative intent. As we have also stated: ‘Legislative silence after a court has construed a statute gives rise at most to an arguable inference of acquiescence or passive approval…. But something more than mere silence is required before that acquiescence is elevated into a species of implied legislation….’ [Citations.] In the area of statutory construction, an examination of what the Legislature has done (as opposed to what it has left undone) is generally the more fruitful inquiry. ‘Legislative inaction is “a weak reed upon which to lean.” ’ [Citations.]”
(People v. Escobar (1992) 3 Cal.4th 740, 750-751.)
Here, at best, there is nothing more than legislative silence on the Corona “group attack” theory; the amendments to section 12022.7 cited by the People have been on other matters. Thus as in Escobar, “the claim of legislative inaction is truly ‘a weak reed upon which to lean.’” (Accord Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 1002-1003.)
Second, the principle of statutory construction cited by the People requires a “consistent and long-standing judicial interpretation” of statutory language. (Snyder v. Michael’s Stores, Inc., supra, 16 Cal.4th at p. 1002.) Here, the “consistent and long-standing judicial interpretation” of section 12022.7 is the Supreme Court’s interpretation in Cole and People v. Walker (1976) 18 Cal.3d 232, 241-242, that the word “personal” in an enhancement which says “personally” means exactly what it says—that the defendant must himself commit the forbidden act.
By contrast, the Corona “group attack” theory is neither consistent nor long-standing. Two published opinions adopted it, then one (Magana) both limited and rejected it (by holding the evidence was insufficient to establish personal infliction, see id., 17 Cal.App.4th at p. 1381 [section V, next-to-last sentence]), and then another (Gutierrez) limited it as well. The Supreme Court’s only decisions in the area reiterate Cole and Walker: “Personally” means exactly what it says. (See, e.g., People v. Piper, supra.)
Finally, the People patently err in claiming “the special instruction given in this case did not remove the element of ‘personal infliction’ from the jury’s consideration.” (RB 43.) The Corona “group attack” instruction redefined the essential element “personally” to include vicarious liability under section 12022.7, without any proof of personal infliction of great bodily injury, as long as a legally erroneous criterion (“group attack”) is found to exist. The jury thus was not required to find personal infliction of great bodily injury, and was instead instructed in a manner that virtually guaranteed the enhancement would be found true.
Here, the jury found the great bodily injury allegation true, but under these instructions there is no way to know whether it found appellant personally inflicted any such injury. Instructional error of that nature, instructing the jury in a manner that permits it to make a required finding based on evidence that is legally insufficient for that finding, is reversible error. (See, e.g., People v. Brady (1987) 190 Cal.App.3d 124, 138-139 [disapr’d o.g. in People v. Montoya (1994) 7 Cal.4th 1027, 1040]; Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664, 668-670 [Fourteenth Amendment].)
That should be particularly so here. With the jury’s rejection of Mr. W’s testimony by its verdict acquitting Doe of mayhem (and in light of the fact that mayhem was the great bodily injury most clearly supported by the prosecution evidence), it is impossible to determine what if anything the jury would have found on the issue of personal infliction of great bodily injury, had the jury been required to make such a finding. The instructional error is thus reversible under any standard, including that of People v. Watson (1956) 46 Cal.2d 818, 836, for the reasons set forth at AOB 79.
