3161. Great Bodily Injury: Causing Victim to Become Comatose or Paralyzed

If you find the defendant guilty of the crime[s] charged in Count[s] [,] [or of attempting to commit (that/those) crime[s]][ or the lesser crime[s] of <insert name[s] of alleged lesser offense[s]>], you must then decide whether[, for each crime,] the People have proved the additional allegation that the defendant inflicted great bodily injury that caused <insert name of injured person> to become (comatose/ [or] permanently paralyzed). [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.]

To prove this allegation, the People must prove that:

1. The defendant personally inflicted great bodily injury on <insert name of injured person> during the commission [or attempted commission] of the crime;

[AND]

2. The defendant's acts caused <insert name of injured person> to (become comatose due to brain injury/ [or] suffer permanent paralysis)(./;)

<Give element 3 when instructing on whether injured person was an accomplice.>

[AND

3. <insert name of injured person> was not an accomplice to the crime.]

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

[Paralysis is a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism.]

<Group Assault>

[If you conclude that more than one person assaulted <insert name of injured person> and you cannot decide which person caused which injury, you may, but are not required to, conclude that the defendant personally inflicted great bodily injury on <insert name of injured person> if the People have proved that:

1. Two or more people, acting at the same time, assaulted <insert name of injured person> and inflicted great bodily injury on (him/her);

2. The defendant personally used physical force on <insert name of injured person> during the group assault;

AND

3. The amount or type of physical force the defendant used on <insert name of injured person> was enough that it alone could have caused <insert name of injured person> to suffer great bodily injury.]

[A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if:

1. He or she knew of the criminal purpose of the person who committed the crime;

AND

2. He or she intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime/ [or] participate in a criminal conspiracy to commit the crime).]

<If there is an issue in the case over whether the defendant inflicted the injury "during the commission of" the offense, see Bench Notes.>

The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction on the enhancement when charged. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)

The bracketed section beneath the heading "Group Assault" is designed to be used in cases where the evidence shows a group assault. (People v. Corona (1989) 213 Cal.App.3d 589, 594 [261 Cal.Rptr. 765].) However, there is currently a split in the Court of Appeal over whether a "group beating" instruction is proper and what form it should take. (Compare People v. Banuleos (2003) 106 Cal.App.4th 1332, 1336-1338 [131 Cal.Rptr.2d 639] [instruction on group beating approved] with People v. Modiri (2003) 112 Cal.App.4th 123, 136-137 [4 Cal.Rptr.3d 836] [reversed for erroneous instruction on group beating] REVIEW GRANTED AND DEPUBLISHED December 23, 2003, S120238.) The issue is currently pending before the Supreme Court. The trial court should review these decisions and any current law before giving the bracketed instruction on group beatings.

If the court gives bracketed element 3 instructing that the People must prove that the person assaulted "was not an accomplice to the crime," the court should also give the bracketed definition of "accomplice." (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1167-1168 [123 Cal.Rptr.2d 322].) Additional paragraphs providing further explanation of the definition of "accomplice" are contained in CALCRIM No. 334, Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice. The court should review that instruction and determine whether any of these additional paragraphs should be given.

The jury must determine whether an injury constitutes "great bodily injury." (People v. Escobar (1992) 3 Cal.4th 740, 750 [12 Cal.Rptr.2d 586, 837 P.2d 1100]; People v. Nava (1989) 207 Cal.App.3d 1490, 1498 [255 Cal.Rptr. 903] [reversible error to instruct that a bone fracture is a significant or substantial injury].)

If the case involves an issue of whether the defendant inflicted the injury "during the commission of" the offense, the court may give CALCRIM No. 3261, During Commission of Felony: Defined—Escape Rule. (See People v. Jones (2001) 25 Cal.4th 98, 109 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].)

Authority

Enhancement. Pen. Code, § 12022.7(b).

Great Bodily Injury Defined. Pen. Code, § 12022.7(f); People v. Escobar (1992) 3 Cal.4th 740, 749-750 [12 Cal.Rptr.2d 586, 837 P.2d 1100].

Must Personally Inflict Injury. People v. Lee (2003) 31 Cal.4th 613, 631 [3 Cal.Rptr.3d 402, 74 P.3d 176]; People v. Cole (1982) 31 Cal.3d 568, 571 [183 Cal.Rptr. 350, 645 P.2d 1182]; People v. Ramirez (1987) 189 Cal.App.3d 603, 627 [236 Cal.Rptr. 404] [Pen. Code, § 12022.8].

Group Beating Instruction. People v. Corona (1989) 213 Cal.App.3d 589, 594 [261 Cal.Rptr. 765]; People v. Banuleos (2003) 106 Cal.App.4th 1332, 1336-1338 [131 Cal.Rptr.2d 639] [instruction on group beating approved]; People v. Modiri (2003) 112 Cal.App.4th 123, 136-137 [4 Cal.Rptr.3d 836] [reversed for erroneous instruction on group beating] REVIEW GRANTED AND DEPUBLISHED December 23, 2003, S120238.

Accomplice Defined. See Pen. Code, § 1111; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1167-1168 [123 Cal.Rptr.2d 322]; People v. Stankewitz (1990) 51 Cal.3d 72, 90-91 [270 Cal.Rptr. 817, 793 P.2d 23].

"In Commission of" Felony. People v. Jones (2001) 25 Cal.4th 98, 109-110 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 288-291.

5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.35 (Matthew Bender).

Related Issues

Coma Need Not Be Permanent

In People v. Tokash (2000) 79 Cal.App.4th 1373, 1378 [94 Cal.Rptr. 2d 814], the court held that an enhancement under Penal Code section 12022.7(b) was proper where the victim was maintained in a medically induced coma for two months following brain surgery necessitated by the assault.

See the Related Issues section of CALCRIM No. 3160, Great Bodily Injury.

(New January 2006)