CALCRIM No. 3163. Great Bodily Injury: Domestic Violence (Pen. Code, § 12022.7(e))

Judicial Council of California Criminal Jury Instructions (2022 edition)

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3163.Great Bodily Injury: Domestic Violence (Pen. Code,
§ 12022.7(e))
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, 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 persons 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.]
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[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
<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 person who was injured does not have to be a person with whom
the defendant had a relationship.]
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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, September 2020
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.
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, 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
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
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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. Modiri (2006) 39 Cal.4th 481, 500-501
[46 Cal.Rptr.3d 762].
“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
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.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 350-354.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.35 (Matthew Bender).
3164-3174. Reserved for Future Use
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