CC 3149: Error to Omit the Requirement That the Defendant’s Act Caused Great Bodily Injury or Death of a Person “Who Was Not an Accomplice to the Crime”
December 8th, 2021

In People v. Morales (2021) 67 Cal.App.5th 326 the court gave a modified version of the CC 3149 which required the jury to decide whether defendant’s act caused great bodily injury to or the death of a person or fetus, but omitted the phrase “who was not an accomplice to the crime.”


Following People v. Flores (2005) 129 Cal.App.4th 174, the reviewing court agreed that this was prejudicial error.  PC 12022.53 (d) authorizes an enhancement when the defendant personally and intentionally discharges a firearm and causes great bodily injury or death, “to any person other than an accomplice.” The Attorney General in Flores argued it was harmless error because an “accomplice” means one “chargeable with the same offense as the defendant who is being tried,” and “one cannot be charged as an accomplice to one’s own murder.” The Flores court rejected this argument, noting that this would mean the accomplice exception would never apply to a count charging the accomplice’s murder.

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