In this March 10, 2020 post FORECITE discussed the CALCRIM instructions which define great bodily injury as a “significant or substantial physical injury … that is greater than minor or moderate harm.” The post suggested, in reliance on People v. Medellin (2020) 45 Cal.App.5th 519, 533- 535 that — as argued by the prosecutor in Medellin — the plain language of the instruction permitted the jury to find great bodily injury based on either greater than minor harm or greater than moderate harm. In other words, the “ordinary, everyday meaning” of the term “or” — which the jurors are told to follow (CC 200) — “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 [internal citations and quotation marks omitted].)
The Medellin Court explained its concerns about the CC instruction as follows:
Medellin argues that CALCRIM Nos. 875 and 3160 define great bodily injury as “greater than minor or moderate harm [which] had the unfortunate consequence of inserting ambiguity into the definition of great bodily injury where none existed before.” We agree.
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As mentioned, the jury was instructed consistent with the CALCRIM definition that great bodily injury means “greater than minor or moderate harm.” “Under the plain language of the instruction, the jury could have convicted” Medellin if they believed either greater than minor harm or greater than moderate harm was sufficient. (Stringer, supra, 41 Cal.App.5th at p. 983.) “The instruction’s ‘use of the word “or” … indicates an intention to use it disjunctively so as to designate alternative or separate categories.’ ” (Ibid.)
This is not the first time a CALCRIM instruction’s “or” usage created ambiguity. Stringer, supra, is the latest example where “or” created alternative-theory error. The ambiguity there caused the court to “urge the Judicial Council of California to consider revising” the relevant CALCRIM instruction. (Stringer, supra, fn. 4.)
“Or” was also the culprit in People v. Brown (2012) 210 Cal.App.4th 1 (Brown). There, the charges involved a deadly weapon. The CALCRIM instructions defined deadly weapon as, in part, “inherently deadly or dangerous ….” (Id at p. 8.) The instruction’s “or” usage created an invalid legal theory as to what constituted a deadly weapon—inherently deadly, which is valid, and inherently dangerous, which is invalid. (Id. at pp. 8-9; see People v. Aledamat (2019) 8 Cal.5th 1, 13-15 (Aledamat) [finding similar problems in related instructions with disjunctive “or” usage].) Similarly, here, CALCRIM Nos. 875 and 3160’s “greater than minor or moderate harm” language created an invalid legal theory as to what constitutes great bodily injury—greater than minor harm, which is invalid, and greater than both minor and moderate harms, which is valid.
In sum, the CALCRIM great bodily injury definition “may impermissibly allow a jury to” find great bodily injury means greater than minor harm alone is sufficient. (Brown, supra, 210 Cal.App.4th at p. 11.) “That possibility, however theoretical it may be in most cases, should be obviated by an appropriate modification of the language in” CALCRIM’s great bodily injury definition. [footnote omitted.] (Ibid.) [Emphasis added]
Both the prosecutor’s argument and the ambiguity in the CALCRIM instructions were error.
People v. Medellin (2020) 45 CA5th 519, slip opn. pp. 14-16
It is true that People v. Quinonez (2020) 46 Cal.App.5th 457, 466 and the majority in People v. Sandoval (2020) 50 CA 5th 357 concluded that the CC language was not erroneous in the absence of improper prosecutorial argument. However, the dissenting opinion in Sandoval explained why the language may confuse the jurors even without improper prosecutorial argument:
In [Medellin] this court held the CALCRIM “greater than minor or moderate” language erroneous because it is reasonably interpreted to mean harm either greater than minor or greater than moderate is sufficient proof. The majority opinion follows People v. Quinonez (2020) 46 Cal.App.5th 457 (Quinonez), where a different panel of this court found the instruction appropriate. I remain unconvinced.
CALCRIM defines great bodily injury as “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” (CALCRIM No. 3160.) In [Quinonez ]the court found the instruction proper because placing focus on the “greater than minor or moderate” language impermissibly takes “one phrase out of context of the entirety of the instructions.” (Quinonez, supra, 46 Cal.App.5th at p. 466.) The problem with that analysis is the “greater than minor or moderate” language supplies the sole relevant context. Because it further defines “significant or substantial physical injury,” focus on its language is necessary and within context.
The error with the instruction is its usage of “or” in “greater than minor or moderate.” “[T]he word ‘or’ has more than one meaning. Although ‘or’ is used to indicate ‘an alternative between different or unlike things, states, or actions,’ the word ‘or’ can also be used to indicate ‘the synonymous, equivalent, or substitutive character of two words or phrases,’ such as in the example ‘lessen or abate.’ ” (People v. Harper (2020) 44 Cal.App.5th 172, 194.) Based on Penal Code section 12022.7’s statutory history, including the evolution of its accompanying jury instructions, there is no doubt “minor or moderate” evinces distinct, not synonymous, descriptions. (See Medellin, supra, 45 Cal.App.5th at pp. 530-531 [describing statutory history and evolving jury instructions].)
Accordingly, ” ‘[t]he instruction’s “use of the word ‘or’ … indicates an intention to use it disjunctively so as to designate alternative or separate categories.” ‘ ” (Medellin, supra, 45 Cal.App.5th. at p. 534.) Because “greater than minor or moderate” injury is reasonably read to mean either greater than minor or greater than moderate suffices, the instruction misdescribes great bodily injury because greater than both minor and moderate injury is necessary. (See People v. Cross (2008) 45 Cal.4th 58, 64.)
(People v. Sandoval, supra, 50 CA 5th at 362-63, Snauffer, J., dissenting and concurring opn.)
However, from the standpoint of the CALCRIM committee it did not need to resolve the issue one way or the other. CALCRIM’s primary mission is to make the standard jury instructions as unambiguous and understandable as possible:
Our charge was to write instructions that are both legally accurate and understandable to the average juror … for instructions written in plain English. (Preface to CALCRIM instruction (2005), by Corrigan, J.)
Based on the fact that a prosecutor actually misconstrued the instructional language in Medellin and the fact that two appellate justices concluded that the instructional language is potentially ambiguous, the committee should have asked themselves: is there a way to eliminate any potential ambiguity and retain the same meaning? The answer to this question is yes.
To find great bodily injury, the jury must find that the injury is “greater than moderate,” Whether or not the injury was more than minor is totally irrelevant — if the injury is greater than moderate then it is “great bodily injury” — if it is moderate or less then it is not “great bodily injury.” Whether or not it is greater than minor has nothing to do with it. Thus, the reference to “minor injury” is irrelevant and can simply be deleted. (People v. Saddler (1979) 24 Cal.3d 671, 681[Courts should not instruct on matters “which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues. [Citation]”]
Alternatively, the reference to minor injury could be retained so long as the instruction made it clear that the ultimate question was whether the injury was “greater than moderate.” (See sample below.)
Accordingly, there simply is no reason not to modify the CALCRIM instructions to ensure that the jurors will correctly understand what must be shown to prove great bodily injury. Nevertheless, instead of correcting the instructional language in its September 2020 revisions, the CALCRIM committee merely added a BENCH NOTE alerting users about Medellin and Quinonez warning that the instruction’s definition of great bodily injury could result in reversal if the prosecutor improperly argues that great bodily injury is anything that is more than minor injury alone.
In sum, there are now some 40+ problematic CALCRIM instructions on a multitude of issues such as Self Defense, Accident, Second Degree Murder, Manslaughter, Assault, Brandishing, Threats, Gangs and more:
Instructions that define Great Bodily Injury (CC 505, CC 508, CC 511, CC 524, CC 525, CC 571, CC 580, CC 581, CC 582, CC 590, CC 592, CC 604, CC 810, CC 820, CC 860, CC 862, CC 863, CC 875, CC 970, CC 982, CC 983, CC 1300, CC 1402, CC 1501, CC 1530, CC 1551, CC 2501, CC 2503, CC 2514, CC 2578, CC 2720, CC 2721, CC 2745, CC 2746, CC 2747, CC 3130, CC 3145, CC 3149, CC 3150, CC 3160, CC 3161, CC 3162, CC 3163, CC 3177, and CC 3477)
Sample Instruction 1 [delete reference to “minor injury”]:
Great bodily injury means significant or substantial physical injury. It is an injury that is greater than moderate harm.
Sample Instruction 2 [retain reference to “minor injury”]:
Great bodily injury means significant or substantial physical injury. It is an injury that is greater than both minor and moderate harm.
Sample Instruction 3 [retain reference to “minor injury”]:
Great bodily injury means significant or substantial physical injury. If the harm from the injury is greater than minor harm but not greater than moderate harm then the injury is not great bodily injury.
Sample Instruction 4 [defense theory; CC 3400 format]
The prosecution must prove that the defendant personally inflicted a significant or substantial injury to __________(name of alleged victim) which injury caused greater than moderate harm.
The defendant contends that any injury to ______________ [while causing minor or moderate harm] did not cause greater than moderate harm. However, the defendant does not need to prove the degree of harm caused by the injury. Instead the prosecution must prove that the harm was greater than moderate. If you have a reasonable doubt that the prosecution has met this burden, or are unsure whether they have met that burden, you must find the great bodily injury allegation untrue.
