3163. Great Bodily Injury: Domestic Violence
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 on <insert name of injured person> during the commission [or attempted commission] of that crime, under circumstances involving domestic violence. [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.
Domestic violence means abuse committed against (an adult/a fully emancipated minor) who is a (spouse[,]/ [or] former spouse[,]/ [or] cohabitant[,]/ [or] former cohabitant[,]/ [or] person with whom the defendant has had a child[,]/ [or] person with whom the defendant is having or has had a dating relationship[,]/ [or] person who was or is engaged to the defendant).
Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.
[The term dating relationship means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.]
[The term cohabitants means two unrelated adults living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties' holding themselves out as (husband and wife/ domestic partners), (5) the continuity of the relationship, and (6) the length of the relationship.]
[A fully emancipated minor is a person under the age of 18 who has gained certain adult rights by marrying, being on active duty for the United States armed services, or otherwise being declared emancipated under the law.]
[Committing the crime of <insert sexual offense charged> is not by itself the infliction of great bodily injury.]
[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;
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;
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 person who was injured does not have to be a person with whom the defendant had a relationship.]
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.
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. (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.
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].)
Enhancement. Pen. Code, § 12022.7(e).
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].
Dating Relationship Defined. Fam. Code, § 6210; Pen. Code, § 243(f)(10).
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].
General Intent Only Required. People v. Carter (1998) 60 Cal.App.4th 752, 755-756 [70 Cal.Rptr.2d 569].
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. 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.
"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].
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).
Person Who Suffers Injury Need Not Be "Victim" of Domestic Abuse
Penal Code section 12022.7(e) does not require that the injury be inflicted on the "victim" of the domestic violence. (People v. Truong (2001) 90 Cal.App.4th 887, 899 [108 Cal.Rptr.2d 904].) Thus, the enhancement may be applied where "an angry husband physically abuses his wife and, as part of the same incident, inflicts great bodily injury upon the man with whom she is having an affair." (Id. at p. 900.)
See also the Related Issues section of CALCRIM No. 3160, Great Bodily Injury.
(New January 2006)