55 Cal.App.5th 787
Cal. Ct. App.2020Background
- Defendant Michael Barber drove his car in reverse, northbound in a bike lane against the flow of traffic, through two crosswalks to reach an eastbound turn; he struck pedestrian S.H. in a crosswalk.
- S.H. sustained catastrophic traumatic brain injuries (skull fractures, hemorrhages), loss of consciousness, fractures, memory and language loss, and required further surgery/rehabilitation.
- A jury convicted Barber of reckless driving (Veh. Code §23103(a)); the jury found true that he proximately caused a loss of consciousness (Veh. Code §23105(a)) and that he personally inflicted great bodily injury (Pen. Code §12022.7).
- The trial court imposed three years’ formal probation (no prison) and declined to strike the great-bodily-injury allegation.
- On appeal Barber argued (1) the court erred in refusing his proposed pinpoint instruction defining “wanton” and that CALCRIM No. 2200 misstates the law; (2) the §12022.7 great-bodily-injury finding must be stricken because such injury is an element of reckless driving; and (3) alternatively the matter should be remanded so the trial court can consider striking the enhancement under Penal Code §1385. The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by refusing defendant’s proposed special instruction defining “wanton” and whether CALCRIM No. 2200 misstates the law | People: the requested instruction was duplicative or confusing; CALCRIM No. 2200 correctly states the elements and jurors can apply ordinary meanings | Barber: "wanton" requires awareness that serious injury is probable; CALCRIM 2200 omits "probable" and misstates the necessary mental state | Court: no reversible error — refusal proper because proposed instruction was potentially confusing/duplicative; CALCRIM No. 2200 adequately and correctly states the law and jurors can apply its plain-language terms |
| Whether Penal Code §12022.7 enhancement (personal infliction of great bodily injury) must be stricken because great bodily injury is an element of reckless driving under Vehicle Code §23105 | People: §23105 is a sentencing provision and does not make great bodily injury an element that bars §12022.7; also no Sixth Amendment violation because jury found enhancement beyond reasonable doubt | Barber: §12022.7(g) bars the enhancement if great bodily injury is an element of the offense; §23105 makes great bodily injury an element of reckless driving | Court: follows People v. Escarcega — §23105 is a sentencing provision; §12022.7 is not barred on that basis; Apprendi does not compel a different result where jury found the enhancement beyond a reasonable doubt |
| Whether remand is required under Penal Code §1385 so trial court can consider striking the §12022.7 enhancement in furtherance of justice | People: trial court knew its discretion and balanced factors; it expressly declined to strike while granting probation; remand unnecessary | Barber: court should be required to reconsider striking the enhancement | Court: remand unnecessary — record shows the court was aware of discretion and made a reasoned choice (denied reductive relief but granted probation), so outcome would not differ |
Key Cases Cited
- People v. Young, 20 Cal.2d 832 (Cal. 1942) (equates willful misconduct with reckless driving; frames wanton as either knowledge that serious injury is probable or intentional act with wanton/reckless disregard of possible result)
- People v. Schumacher, 194 Cal.App.2d 335 (Cal. Ct. App. 1961) (explains reckless-driving proof may be shown either by knowledge injury is probable or by wanton/reckless disregard)
- People v. Nowell, 45 Cal.App.2d Supp. 811 (Cal. Ct. App. 1941) (holds reckless driving can be proved by reckless disregard even without defendant’s awareness that injury is probable)
- People v. Escarcega, 32 Cal.App.5th 362 (Cal. Ct. App. 2019) (concludes Veh. Code §23105 is a sentencing provision and does not convert great bodily injury into an element that bars Penal Code §12022.7 enhancement)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (Sixth Amendment requires jury finding beyond a reasonable doubt for facts that increase statutory maximum punishment)