California Criminal Jury Instructions (CALCRIM) (2017)

3162. Great Bodily Injury: Age of Victim

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3162.Great Bodily Injury: Age of Victim (Pen. Code, § 12022.7(c)
& (d))
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 someone who was (under the age of 5
years/70 years of age or older). [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. At that time, <insert name of injured person> was
(under the age of 5 years/70 years of age or older)(./;)
<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.
[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
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<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
<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).]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
<If there is an issue in the case over whether the defendant inflicted the
injury “in 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, December 2008
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].)
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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 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.
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
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 “in the
commission of” the offense, the court may give CALCRIM No. 3261, In
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
• Enhancements. Pen. Code, § 12022.7(c) & (d).
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].
• 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].
• 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
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(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
See the Related Issues section of CALCRIM No. 3160, Great Bodily Injury.
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