CALCRIM No. 3160. Great Bodily Injury (Pen. Code, §§ 667.5(c)(8), 667.61(d)(6), 1192.7(c)(8), 12022.7, 12022.8)

Judicial Council of California Criminal Jury Instructions (2022 edition)

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E. GREAT BODILY INJURY
3160.Great Bodily Injury (Pen. Code, §§ 667.5(c)(8), 667.61(d)(6),
1192.7(c)(8), 12022.7, 12022.8)
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 personally
inflicted great bodily injury on <insert name of injured
person> during the commission [or attempted commission] of that crime.
[You must decide whether the People have proved this allegation for
each crime and return a separate finding for each crime.]
[The People must also prove that <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.
[Committing the crime of <insert sexual offense charged> is
not by itself the infliction of great bodily injury.]
<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 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
[3A. 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(;/.)]
[OR]
[3B. The physical force that the defendant used on
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<insert name of injured person> was sufficient in combination with
the force used by the others to cause <insert name of
injured person> to suffer great bodily injury.]
The defendant must have applied substantial force to
<insert name of injured person>. If that force could not have caused or
contributed to the great bodily injury, then it was not substantial.]
[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.
New January 2006; Revised June 2007, February 2015, September 2020, March
2022
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].)
Give the bracketed sentence that begins with “Committing the crime of” if the
defendant is charged with a sexual offense. (People v. Escobar (1992) 3 Cal.4th 740,
746 [12 Cal.Rptr.2d 586, 837 P.2d 1100] [injury must be more than that which is
present in every offense of rape].)
The bracketed section beneath the heading “Group Assault” is designed to be used
in cases where the evidence shows a group assault.
If the court gives the bracketed sentence 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
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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 there is an issue in the case over whether the defendant inflicted the injury
“during the commission of” the offense, the court may give CALCRIM No. 3261,
While Committing a 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].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533-535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutors erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
Enhancements. Pen. Code, §§ 667.5(c)(8), 667.61(d)(6), 12022.7, 12022.8.
Great Bodily Injury Enhancements Do Not Apply to Conviction for Murder or
Manslaughter. People v. Cook (2015) 60 Cal. 4th 922, 924 [183 Cal.Rptr.3d
502].
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].
Great Bodily Injury May Be Established by Pregnancy or Abortion. People v.
Cross (2008) 45 Cal.4th 58, 68 [82 Cal.Rptr.3d 373, 190 P.3d 706].
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].
Sex Offenses - Injury Must Be More Than Incidental to Offense. People v.
Escobar (1992) 3 Cal.4th 740, 746 [12 Cal.Rptr.2d 586, 837 P.2d 1100].
Group Beating Instruction. People v. Modiri (2006) 39 Cal.4th 481, 500-501
[46 Cal.Rptr.3d 762, 139 P.3d 136].
This Instruction Is Correct In Defining Group Beating. People v. Dunkerson
(2007) 155 Cal.App.4th 1413, 1418 [66 Cal.Rptr.3d 795].
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)
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51 Cal.3d 72, 90-91 [270 Cal.Rptr. 817, 793 P.2d 23].
“During 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].
RELATED ISSUES
Specific Intent Not Required
Penal Code section 12022.7 was amended in 1995, deleting the requirement that the
defendant act with “the intent to inflict such injury.” (Stats. 1995, ch. 341, § 1; see
also People v. Carter (1998) 60 Cal.App.4th 752, 756 [70 Cal.Rptr.2d 569] [noting
amendment].)
Instructions on Aiding and Abetting
In People v. Magana (1993) 17 Cal.App.4th 1371, 1378-1379 [22 Cal.Rptr.2d 59],
the evidence indicated that the defendant and another person both shot at the
victims. The jury asked for clarification of whether the evidence must establish that
the bullet from the defendant’s gun struck the victim in order to find the
enhancement for personally inflicting great bodily injury true. (Id. at p. 1379.) The
trial court responded by giving the instructions on aiding and abetting. (Ibid.) The
Court of Appeal reversed, finding the instructions erroneous in light of the
requirement that the defendant must personally inflict the injury for the enhancement
to be found true. (Id. at p. 1381.)
Sex Offenses - Examples of Great Bodily Injury
The following have been held to be sufficient to support a finding of great bodily
injury: transmission of a venereal disease (People v. Johnson (1986) 181 Cal.App.3d
1137, 1140 [225 Cal.Rptr. 251]); pregnancy (People v. Sargent (1978) 86
Cal.App.3d 148, 151 [150 Cal.Rptr. 113]); and a torn hymen (People v. Williams
(1981) 115 Cal.App.3d 446, 454 [171 Cal.Rptr. 401]).
Enhancement May be Applied Once Per Victim
The court may impose one enhancement under Penal Code section 12022.7 for each
injured victim. (Pen. Code, § 12022.7(h); People v. Ausbie (2004) 123 Cal.App.4th
855, 864 [20 Cal.Rptr.3d 371].)
Furnishing Drugs
In People v. Ollo (2021) 11 Cal.5th 682 [279 Cal.Rptr.3d 668, 487 P.3d 981], the
defendant was charged with personally inflicting great bodily injury on a victim who
had voluntarily ingested the drugs furnished by the defendant. The court held:
“[T]he act of furnishing is not by itself sufficient to establish personal infliction.
Whether a defendant who furnishes drugs personally inflicts such injury depends on
the facts of the particular case. To determine whether a defendant personally inflicts
such injury, fact finders and courts must examine the circumstances of the
underlying offense and the defendant’s role in causing the injury that followed.” (11
Cal.5th at p. 685.)
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SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 350-351.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.35 (Matthew Bender).
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