8 Cal. App. 5th 137
Cal. Ct. App.2017Background
- On March 23, 2013 defendant Travis Lamb struck Richard Gilroy in a parking lot; Gilroy fell, fractured his skull, went into a coma, and died after life support was withdrawn.
- A jury convicted Lamb of felony assault by means of force likely to produce great bodily injury (count 2), battery causing great bodily injury (count 3), and involuntary manslaughter (count 4, lesser included of second-degree murder).
- The jury found true a personal great bodily injury enhancement (Pen. Code § 12022.7) for the assault, alleging the victim became comatose from brain injury.
- In bifurcated proceedings the court found prior strike and serious-felony enhancements true; sentence totaled 16 years (assault doubled for strike, plus enhancement and prior serious felony); sentences for battery and manslaughter were stayed under Penal Code § 654.
- On appeal Lamb argued (1) the § 12022.7 enhancement could not attach to his assault conviction because the great bodily injury occurred during a battery, and (2) § 12022.7(g) barred the enhancement because he was also convicted of involuntary manslaughter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a § 12022.7 great bodily injury enhancement may attach to an assault conviction when the injury occurred immediately after the assault | The enhancement applies broadly to felonies where the injury occurred "in the commission of" the felony; assault is not an excluded offense | The great bodily injury occurred during the completed battery, not the assault, so it cannot attach to the assault conviction | Court held enhancement may attach to assault where injury occurred in close temporal/proximate sequence to the assault; “in the commission of” construed broadly |
| Whether § 12022.7(g) (which excludes murder/manslaughter) bars applying the enhancement to a nonexcluded felony (assault) when the defendant is also convicted of manslaughter for the same victim | The statutory text excludes only enhancements applied to the enumerated offenses themselves or to offenses whose elements include great bodily injury; it does not bar enhancements to other contemporaneous nonexcluded felonies | Because manslaughter is an excluded offense, the enhancement cannot attach to any conviction based on the same underlying injury (double punishment) | Court held § 12022.7(g) does not automatically bar enhancements to nonexcluded felonies tried in the same proceeding; double punishment is avoided here by the trial court’s stay under § 654, so the enhancement on assault was permissible |
Key Cases Cited
- People v. Cook, 60 Cal.4th 922 (2015) (§ 12022.7 enhancements do not apply to murder or manslaughter convictions)
- People v. Jones, 25 Cal.4th 98 (2001) ("in the commission of" construed broadly for weapon-use enhancements; temporal proximity can suffice)
- People v. Martinez, 226 Cal.App.4th 1169 (2014) (pre-Cook decision holding § 12022.7 does not bar enhancements to other nonexcluded offenses in same proceeding)
- People v. Arzate, 114 Cal.App.4th 390 (2003) (declining to attach enhancements logically inconsistent with the completed passive offense)
- People v. Valdez, 189 Cal.App.4th 82 (2010) (struck § 12022.7 enhancement where felony occurred after injury; temporal sequence mattered)
- People v. Hawkins, 15 Cal.App.4th 1373 (1993) (§ 12022.7 inapplicable where great bodily injury is an element of the underlying offense)
- People v. Mixon, 225 Cal.App.3d 1471 (1990) (§ 12022.7 may attach to offenses that do not require physical touching)
Disposition: Judgment affirmed; abstract of judgment to be amended to cite the correct subdivision for the assault conviction (§ 245, subd. (a)(4)).