People v. Medellin (2020) 45 Cal.App.5th 519, 533- 535 concluded that the CALCRIM definition of “great bodily harm” [GBI] in CC 875 and CC 3160 erroneously allowed the prosecutor to argue and the jury to find GBI based on either greater than minor harm or greater than moderate harm. This “alternate theory error” resulted in reversal of both the underlying conviction and the GBI enhancement
PC 12022.7 was originally enacted in 1976 ….” (People v. Escobar (1992) 3 Cal4th 740, 746.) The Legislature defined great bodily injury as a “significant or substantial physical injury” as provided in the CALJIC instruction.’ ” (Id. at pp. 747-748.) At nearly the same time, the CSC separately acknowledged great bodily injury “has been defined as meaning significant or substantial bodily injury or damage as distinguished from trivial or insignificant injury or moderate harm” in People v. Miller (1977) 18 Cal3d 873, 883.)
The Supreme Court again confronted the meaning of “great bodily injury” in People v. Cross (2008) 45 Cal.4th 58. There, the court cited Miller, supra, 18 Cal.3d 873, with approval for its recognition that great bodily injury is more than moderate harm. (Cross, supra, at p. 64.) As illustrated, both the Legislature and judiciary agree that great bodily injury is more than both minor and moderate harms.
“”Effective January 1, 2006, the California Judicial Council withdrew its endorsement of the CALJIC instructions and adopted the CALCRIM instructions.” (People v. Reyes (2008)160 Cal.App.4th 246, 251.) The CALCRIM instructions now define great bodily injury as “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” (See CC 875, 3160.) This definition differs from the previous CALJIC definition on which the Legislature based the statute because under the plain language of the instruction, the jury can find great bodily injury based on either greater than minor harm or greater than moderate harm. (People v. Medellin, supra, (Feb. 20, 2020, F076022) *** Cal.App.5th *** [pp. 12].)
“The instruction’s ‘use of the word “or” … indicates an intention to use it disjunctively so as to designate alternative or separate categories.’ ” (People v. Stringer (2019) 41 Cal.App.5th 974, 983, see also People v. Medellin, supra.)
“In sum, the CALCRIM great bodily injury definition may impermissibly allow a jury to find great bodily injury based on less than moderate harm. (People v. Medellin, supra.)
Moreover, this same error is repeated in 40+ CALCRIM instructions on a multitude of issues such as Self Defense, Accident, Second Degree Murder, Manslaughter, Assault, Brandishing, Threats, Gangs and more. Our next post will contain a comprehensive list of these instructions.
Great bodily injury means significant or substantial physical injury. It is an injury that is greater than moderate harm.