Lead Opinion
Opinion
At a crowded neighborhood party, Shea Michael Modiri (defendant) started and joined a group attack that left the teenage victim with multiple serious injuries. The evidence showed that defendant personally applied physical force to the victim several times. However, chaos at the scene prevented witnesses from linking the victim’s injuries to a particular assailant, weapon, or blow.
Defendant was convicted of felony assault (Pen. Code, § 245, subd. (a)(1)),
In People v. Cole (1982)
Here, CALJIC No. 17.20 told the jury that defendant must personally have inflicted great bodily harm. The same instruction also said that if he participated in a group attack, and jurors could not decide which person inflicted which injury, the allegation could be sustained if defendant personally applied physical force to the victim either (1) of a nature that, “by itself,” could have caused great bodily injury, or (2) under such circumstances that the “cumulative effect” of the force used by all participants would have caused the injury. (See People v. Corona (1989)
The Court of Appeal held that CALJIC No. 17.20 prejudicially failed to require the personal infliction of great bodily harm under section 1192.7(c)(8). When defendant sought review on other grounds, we solicited briefing on whether the Court of Appeal was wrong. The issue presented is whether the group beating theories in CALJIC No. 17.20 satisfy the personal-infliction requirement of section 1192.7(c)(8), as construed in Cole, supra,
No instructional error occurred at trial. For 20 years, courts have upheld personal-infliction findings where the defendant physically joins a group attack, and directly applies force to the victim sufficient to inflict, or contribute to the infliction of, great bodily harm. Consistent with the statutory language and the manner in which it has been judicially construed, the defendant need not be the sole or definite cause of a specific injury. For reasons we explain, these group beating principles have been accepted by the Legislature. CALJIC No. 17.20 duly describes them. A contrary approach would mean that those who perpetrate mob violence and inflict gratuitous injury would often evade enhanced punishment. Thus, we will reinstate the section 1192.7(c)(8) finding vacated on appeal.
Facts
A. The Evidence
On July 22, 2000, Matthew Bour, who was 18 years old, held a party for his friends at the home he and his father shared. Bour’s father was out of town when it occurred.
Before the party, Bour’s father asked defendant, a 19-year-old neighbor and childhood friend of Bour’s, to watch the house and maintain order. Another invited guest was Bour’s friend, Darren Hitt.
About 100 people attended the party. They occupied the front and back yards, and filled the house. Bour provided beer from a keg. Guests also brought their own alcohol. Some marijuana use occurred.
Between 10:00 and 11:00 p.m., while Bour managed the crowd in the front yard, Ryan Schon arrived with Amy Jorgenson, John Cane, and another
Schon’s presence created a stir at the party. Bour expressed concern about it to defendant and other guests. One partygoer, Amber Oxley, tried to warn Schon that he should go. Oxley sensed that Bour and his friends might fight Schon.
As he approached Bour in the yard, Schon saw about 20 or 30 people nearby. Schon greeted Bour, who seemed friendly. Oxley thought Bour’s manner was feigned.
Moments later, Hitt confronted Schon. Hitt said that “somebody doesn’t like you.” Schon replied, “I don’t know anybody here.”
Defendant intervened by saying, “You know me.” According to Schon’s testimony at trial, defendant spoke in a hostile tone, and bumped Schon with his chest. Schon thought defendant was trying to provoke a fight. The crowd told Schon to leave and threatened him. Defendant began pushing Schon, telling him to leave or fight. Separated from his friends, Schon did not want to escalate matters.
Schon announced he would leave, and called for Jorgenson. Jorgensen approached and began walking with Schon to their car. Both Jorgensen and Cane saw the beating of Schon that ensued. Their testimony, along with Schon’s, formed the basis of the prosecution case, as follows.
Defendant pursued Schon as he headed toward the car, pushing and pulling Schon. Schon tried to brush defendant away. The crowd followed the pair as they entered a neighbor’s property. All of a sudden, defendant punched Schon with his fist. Schon recalled being hit on the left side of the face. Other witnesses saw the punch hit his jaw or cheek.
Schon testified that as he tried to defend himself, he looked sideways and saw “a big rush of people coming.” Defendant stepped back and let the crowd tackle Schon, who fell to his knees. Jorgensen and Cane saw 10 to 15 people swarm Schon.
Schon further testified that he tried to stand, but was hit over the back of his head with a bottle and knocked down. The same thing happened at least two more times. Schon also felt kicks and blows on all sides. He could not see the faces of most of his attackers. He was certain, however, that defendant “came in and hit [him].”
The attack dissipated when Jorgenson yelled and jumped into the fray. She pushed defendant away from Schon. As she did so, she felt a bottle in defendant’s hand press against her hipbone. Schon saw defendant standing next to him after Jorgenson intervened.
The beating lasted from 10 or 15 seconds to one minute. Schon rose to his feet, disoriented and bleeding profusely from the head. He and Jorgenson walked away. The crowd continued to taunt and threaten Schon. Cane watched as defendant pursued Schon while holding a bottle. Both Cane and Jorgenson, who looked back, saw defendant throw the bottle. It crashed near Jorgenson and Schon.
Immediately after the attack, defendant’s friend, Leslie LaBarbera, heard defendant ask for a beer. Defendant said he had “just broke the last [bottles] over the guy’s head.” LaBarbera could not recall whether defendant mentioned two or three bottles. Defendant’s girlfriend, Lynelle Rose, met Hitt and other partygoers at a nearby park. She testified that Hitt admitted striking Schon on the head with a Remy bottle, and that she saw Hitt holding a Remy bottle at the party.
Police officers arrived at Bour’s house around 11:00 p.m. They saw 60 teenagers outside, many of whom ran away. There were bloodstains and broken bottles on the ground, including bloody glass. Unbroken bottles littered the yard.
Schon’s blood was found on defendant’s shoes, socks, and pants. According to a prosecution expert, two stains on the left leg of the pants were likely made with a blood-drenched hand. One consisted of a bloody swipe, and the other was a heavy transfer stain.
Schon received treatment at the hospital the same night. Several cuts on his head were closed with staples—six on the side, and four on top. He also
Defendant testified at trial. He admitted ordering Schon to leave the party in the presence of Hitt and others. According to defendant, Schon first pushed him into the crowd, which pushed defendant back towards Schon. Defendant punched Schon in the face to protect himself. Defendant claimed the crowd tossed him into a rosebush, where he stayed until the attack on Schon stopped. Defendant then threw a full bottle of beer in Schon’s direction. Defendant denied saying that he hit Schon over the head with bottles.
B. The Proceedings
As pertinent here, defendant was charged and convicted of felony assault against Schon. (§ 245, subd. (a)(1) [assault with deadly weapon or by means of force likely to produce great bodily injury].) The jury also sustained two allegations that made the assault conviction a “serious felony” for purposes of punishment in a future prosecution. (See §§ 667, 1192.7.) First, the jury found that defendant personally used a dangerous and deadly weapon, a bottle, in assaulting Schon. (§ 1192.7, subd. (c)(23) (section 1192.7(c)(23)).) Second, and critical here, the jury found that defendant personally inflicted great bodily injury upon Schon during the assault. (§ 1192.7(c)(8).)
In obtaining this verdict, the prosecutor argued that defendant broke bottles over Schon’s head, thereby committing felony assault and personally using a bottle under section 1192.7(c)(23). He observed that defendant admitted such conduct in LaBarbera’s presence, and that blood from Schon’s head wounds landed on defendant’s hand and pants. The prosecutor also argued that defendant personally inflicted great bodily injury under section 1192.7(c)(8) because he participated in the group beating that caused Schon’s broken nose,
As noted, defendant’s jury received CALJIC No. 17.20. It stated that the section 1192.7(c)(8) allegation required them to find whether defendant personally inflicted great bodily injury on Schon in committing the charged crimes. The instruction explained that the People bore the burden of proving the allegation and that any reasonable doubt must be resolved in defendant’s favor.
CALJIC No. 17.20 further stated that if defendant “participate[d] in a group beating,” and it was “not possible to determine which assailant inflicted a particular injury,” defendant could be found to have personally inflicted great bodily injury on Schon under two alternative theories or scenarios. The first scenario occurred where “the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim.” The second group beating theory applied where, at the time defendant “personally applied unlawful physical force to the victim,” he “knew” that other participants in the same incident were applying similar force, and he “knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim.”
The Sixth District Court of Appeal accepted defendant’s claim of prejudicial instructional error concerning the personal infliction of great bodily injury on Schon. In doing so, the court invalidated the second group beating theory in CALJIC No. 17.20. However, the Court of Appeal declined to disturb the personal-use finding, concluding that the instructional error was harmless based on undisputed evidence that defendant threw a bottle at Schon. Hence, only the section 1192.7(c)(8) finding was reversed, and the matter was remanded for a limited retrial on that issue.
Defendant sought review. His petition renewed the instructional challenge to the personal-use finding, and criticized the Court of Appeal for using the bottle-throwing incident to uphold it. Having won on the issue below, defendant did not address the personal-infliction finding under section 1192.7(c)(8), the related instruction in CALJIC No. 17.20, or the group beating principles contained therein. The Attorney General did not file an answer or separately request review.
We granted defendant’s petition for review. In the process, we asked the parties to address whether the Court of Appeal properly vacated the section 1192.7(c)(8) finding. We now must decide whether the group beating principles routinely given to juries (CALJIC No. 17.20; see CALCRIM No. 3160), for present and future sentencing purposes, conflict with the requirement that the defendant “personally inflict[] great bodily injury” (§ 1192.7(c)(8); see § 12022.7(a)), as construed and applied by the courts. We turn to that issue.
Discussion
California has many sentencing statutes that increase the prison term otherwise available for the charged offense. Some of them apply if the
Other statutes impose longer sentences and greater punishment on repeat offenders, including those with prior serious felony convictions. (People v. Woodell (1998)
Defendant claims the standard instruction given at his trial omitted the section 1192.7(c)(8) requirement that he personally inflict great bodily injury on Schon. He argues that, to a greater or lesser extent, both of the group beating theories in CALJIC No. 17.20 erroneously substituted the harm inflicted by others for the serious harm that “he, himself’ must have caused. The instruction primarily did so, he claims, by not requiring the jury to find that he produced a particular grievous injury, or wielded a particular injury-causing weapon or blow. Defendant insists the error was prejudicial under any applicable standard, and violated his federal and state due process rights.
The Attorney General responds that CALJIC No. 17.20 satisfies section 1192.7(c)(8) by requiring a group assailant to apply physical force directly to
Our analysis begins, of course, with the statutory language. (See People v. Wutzke (2002)
The term “personally,” which modifies “inflicts” in section 1192.7(c)(8), does not mean exclusive here. This language refers to an act performed “in person,” and involving “the actual or immediate presence or action of the individual person himself (as opposed to a substitute, deputy, messenger, etc).” (9 Oxford English Diet., supra, p. 599.) Such conduct is “[c]arried on or subsisting between individual persons directly.” (Ibid., accord, Webster’s 3d New Internat. Dict., supra, p. 1686; Cole, supra,
In short, nothing in the terms “personally” or “inflicts,” when used in conjunction with “great bodily injury” in section 1192.7(c)(8), necessarily implies that the defendant must act alone in causing the victim’s injuries. Nor is this terminology inconsistent with a group melee in which it cannot be determined which assailant, weapon, or blow had the prohibited effect. By its own terms, the statute calls for the defendant to administer a blow or other force to the victim, for the defendant to do so directly rather than through an intermediary, and for the victim to suffer great bodily injury as a result.
The challenged instmetion reasonably conveys these statutory principles. CALJIC No. 17.20 requires jurors to first determine the defendant’s guilt of the charged crime. The instmetion applies if they then decide that he
It bears emphasis that CALJIC No. 17.20 contemplates acts that contribute substantially to the victim’s injured state. By definition, “force” involves “power, violence, compulsion, or constraint exerted upon or against a person.” (Webster’s 3d New Internat. Dict., supra, p. 887; accord, 6 Oxford English Diet., supra, p. 33; American Heritage Diet. (4th ed. 2000) p. 686.) Also, the instruction’s group beating theories preclude a section 1192.7(c)(8) finding where the defendant’s conduct “could [not] have,” or “would [not have],” caused or contributed to the requisite harm. (CALJIC No. 17.20.) In light of these qualifications, the defendant’s role in both the physical attack and the infliction of great bodily injury cannot be minor, trivial, or insubstantial. The instruction thus does not conflict with the statutory language in the manner defendant suggests.
Contrary to what defendant further claims, nothing in Cole, supra,
In Cole, the defendant and an accomplice broke into the home of a gun dealer, grabbed firearms that were on a table, and started issuing orders to the victim. Knowing the guns were unloaded, the victim was slow to respond. Hence, the defendant ordered his accomplice to kill the victim. The accomplice complied by swinging the rifle at the victim, hitting him several times and cutting his head. The defendant never touched the victim with a weapon or by any other means. At one point, the defendant aimed the victim’s unloaded rifle at him and tried to block his escape. When the victim tried to grab and load another gun, the defendant ran from the house, apparently taking one or more firearms with him. The accomplice struggled with the victim, and then also fled. The defendant was ultimately convicted of robbery, burglary, and grand theft. (Cole, supra,
In reaching this conclusion, Cole emphasized that the term “personally,” as used in former section 12022.7, describes an act performed directly from one person to another. (Cole, supra,
Thus, Cole stands for the modest proposition that a defendant personally inflicts great bodily harm only if there is a direct physical link between his own act and the victim’s injury. Under Cole, someone who does not strike or otherwise personally use force upon the victim does not qualify for enhanced punishment where the personal infliction of harm is required. As we have seen, CALJIC No. 17.20 follows this rule. However, consistent with the instruction, nothing in Cole precludes a person from receiving enhanced sentencing treatment where he joins others in actually beating and harming the victim, and where the precise manner in which he contributes to the victim’s injuries cannot be measured or ascertained.
The Courts of Appeal have adhered closely to Cole, supra,
Some courts have upheld personal-infliction findings where the force personally used by the defendant during a group attack was serious enough that it may, by itself,\ have caused great bodily injury, even though the evidence did not show for certain that the defendant’s acts alone perpetrated specific harm or that nobody else injured the victim. Under this approach, which is illustrated by Corona, supra,
Other group beating cases permit a personal-infliction finding where the physical force the defendant and other persons applied to the victim at the same time combined to cause great bodily harm. One early example is Dominick, supra,
Both lines of authority show that CALJIC No. 17.20—far from offending sections 1192.7(c)(8) and 12022.7(a)—prevents them from being rendered meaningless where more than one person perpetrates an attack. In such cases, the evidence is often conflicting or unclear as to which assailant caused particular injuries in whole or part. Thus, as CALJIC No. 17.20 recognizes, those who participate directly and substantially in a group beating
Defendant’s contrary view would mean that “[o]nly those whose foot could be traced to a particular kick, whose fist could be patterned to a certain blow or whose weapon could be aligned with a visible injury would be punished. The more severe the beating, the more difficult would be the tracing of culpability.” (Corona, supra,
Here, after initially punching Schon in the face, defendant was seen in the group of 10 to 15 people who swarmed and beat Schon after he had been knocked down. The evidence suggested that defendant also struck Schon on the head with bottles during the melee (e.g., bloody hand/pants, LaBarbera admission, and thrown bottle). However, the violence initiated by defendant and escalated by the group prevented any evidence or determination whether defendant’s blows were the exact ones that broke Schon’s nose, cut his head, or caused other trauma. Under CALJIC No. 17.20, a personal-infliction finding could nonetheless be made if defendant personally applied force to the victim, and such force was sufficient to produce grievous bodily harm either alone or in concert with others. Thus, use of the instruction in the present case followed statutory law, as applied by the courts.
For reasons we now explain, the history of section 1192.7(c)(8) confirms that it embraces the group beating scenarios described in both the appellate decisions and CALJIC No. 17.20. These materials, which defendant and the present Court of Appeal have overlooked, undermine their contrary view.
Section 1192.7(c)(8) was enacted by the voters in 1982 as part of Proposition 8, also known as “The Victims’ Bill of Rights.” (Ballot Pamp., Primary Elec. (June 8, 1982) text of Prop. 8, § 7, p. 56 (Pamphlet).) Together, section 1192.7(c)(8) and section 667, which was enacted at the same time, established a sentencing enhancement for any defendant convicted of a serious felony who was previously convicted of a serious felony. (Pamphlet, supra, text of Prop. 8, § 5, p. 33.) As originally enacted, section 1192.7(c)(8) defined a serious felony as one in which the defendant either “inflicts great bodily injury” or “uses a firearm.” (Pamphlet, supra, text of Prop. 8, § 7, p. 56, adding § 1192.7(c)(8).) The term “personally” appeared nowhere in the 1982 version of section 1192.7(c)(8).
While Piper, supra,
In limiting section 1192.7(c)(8) to defendants who “personally” inflict great bodily harm, the 1986 Amendment incorporated language that had existed in section 12022.7 since it became operative several years earlier. (See Stats. 1976, ch. 1139, § 306, p. 5162, operative July 1, 1977, as amended by Stats. 1977, ch. 165, § 94, p. 679, eff. June 29, 1977, operative July 1, 1977.) The history of the 1986 Amendment confirms that it was intended to “conform” the serious felony definition in former section 1192.7(c)(8) to the enhancement provision in former section 12022.7. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3733 (1985-1986 Reg. Sess.) as amended June 4, 1986, p. 2.) The purpose was to “correct drafting deficiencies” with respect to the personal infliction of bodily harm, and to “end any confusion caused by the differences in language.” (Ibid.; accord, Assem. Pub. Safety Com., 3d reading analysis of Assem. Bill No. 3733 (1985-1986 Reg. Sess.) as amended June 4, 1986, pp. 1-2.)
In conforming section 1192.7(c)(8) to former section 12022.7, the Legislature appears to have accepted the judicial construction of the latter statute. As noted, that construction includes the principles that now appear in CALJIC No. 17.20 for determining when a participant in a group attack has personally inflicted great bodily harm. Two historical developments support this view.
We have found no evidence that lawmakers believed Dominick, supra,
Second, the Legislature has never repudiated Dominick, supra,
In 1998, the Legislature did not amend the personal-infliction language in section 1192.7(c)(8) in response to these decisions. Nor has the Legislature since repudiated any of the other group beating cases that apply the principles now appearing in CALJIC No. 17.20. (See People v. Banuelos, supra,
Defendant starts with the instruction’s first group beating theory. As noted, it involves “the application of unlawful physical force upon the victim” that “could have caused’ great bodily injury “by itself.” (CALJIC No. 17.20, italics added.) Defendant claims the italicized phrase invited speculation as to whether he personally inflicted harm, and permitted a section 1192.7(c)(8) finding based solely on injuries caused by other assailants in the group.
Read in context, however, the challenged language “is not reasonably susceptible” to this interpretation. (People v. Jackson (1996)
Defendant also parses the second group beating theory. It allows the jury to sustain a section 1192.7(c)(8) allegation if the defendant “personally applied unlawful physical force” to the victim while he “knew” others were applying similar force at the same time, and while he “knew, or reasonably should have known, that the cumulative effect of all [such] force would result in
The asserted error did not occur. We have seen that section 1192.7(c)(8) requires the defendant to personally inflict, or contribute to the infliction of, great bodily harm while participating in a group attack. (See Dominick, supra,
Moreover, we have said that section 1192.7(c)(8) simply requires an intent to do the act the statute proscribes. (People v. Sargent (1999)
Conclusion
We conclude the Court of Appeal erred in determining that the second group beating theory in CALJIC No. 17.20 is invalid, and that the instruction
George, C. J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
Notes
All further statutory references are to the Penal Code.
The same expert found blood spatters on the right leg of defendant’s pants. They had traveled through the air from a source close by. No tests were run on these small stains.
The police saw scratches on defendant’s hands and leg. A criminalist found traces of defendant’s own blood on his pants. One defense witness, Gina Kottikas, testified that she saw defendant in the rosebush and thought he had “passed out” there. Another defense witness, lyier Folck, saw defendant fly backwards into the crowd, and then lost sight of him.
The jury also convicted defendant of simple battery, a misdemeanor, as a lesser included offense of battery with serious bodily injury. (§§ 242, 243, subds. (a) & (d).) Defendant was acquitted of the latter felony, which was alleged in the information. The jury made no finding on the related allegation that defendant personally inflicted great bodily injury in committing the charged battery. (§ 1192.7(c)(8).) Defendant received three years’ probation, including a nine-month jail term to be served in a work or education furlough program. In addition, the jury returned verdicts against Hitt, who was jointly charged with the same crimes as defendant. Hitt was convicted of simple assault (§§ 240, 241, subd. (a)), and acquitted of all other offenses. Hitt is not a party to proceedings in this court.
Defense counsel argued that defendant used no unlawful physical force against Schon. Counsel blamed Schon for attending the party, for staying when told to go, and for becoming aggressive with defendant. Any pushing or punching by defendant, counsel urged, occurred in self-defense—a theory on which the jury was instructed at trial. Counsel theorized that defendant fell into the rosebush, and stayed there while the group attacked Schon. Under this view, which the jury apparently rejected, defendant never struck Schon with a bottle or pummeled him with his fists.
As given at defendant’s trial, CALJIC No. 17.20 provided, in material part, as follows: “If you find [the] defendant guilty of [one or both felonies charged in the information], you must determine whether [he] personally inflicted great bodily injury on Ryan Schon in the commission or attempted commission of the crime. []Q ‘Great bodily injury,’ as used in this instruction, means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury, [fl When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim if (1) the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim', or (2) that at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim and the defendant then knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim, [f] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.”
Defendant also complained on appeal about the trial court’s response to the jury’s written request during deliberations for “clarification of ‘personal’ ” as used in section 1192.7(c)(8), and CALJIC No. 17.20. After consulting with counsel, the court directed the jury to certain instructions it had already received, including CALJIC No. 17.20. Having vacated the personal-infliction finding on other grounds, the Court of Appeal did not decide whether the trial court properly handled the jury note. The parties have not briefed the issue in this court. We do not address it and leave the issue to be resolved in the first instance by the Court of Appeal on remand. Among the questions the appellate court may confront are (1) whether defendant preserved a claim that the trial court responded improperly, and (2) in any event, whether the trial court abused its broad discretion in handling the matter.
Section 12022.7 provides, in part: “(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. H] . . . [f] (f) As used in this section, ‘great bodily injury’ means a significant or substantial physical injury. HQ (g) . . . Subdivision!] (a) . . . shall not apply if infliction of great bodily injury is an element of the offense.”
Section 1192.7(c) provides, in part: “As used in this section, ‘serious felony’ means any of the following: H] . . . (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm; . . . (23) any felony in which the defendant personally used a dangerous or deadly weapon.”
Defendant also complains because the first group beating theory mentions “the application of unlawful physical force,” instead of the defendant’s application of force. (CALJIC No. 17.20, italics added.) However, this language could not be understood as describing the acts of others. Both before and after the challenged phrase, CALJIC No. 17.20 asks jurors whether “defendant” personally inflicted great bodily injury or personally applied force to the victim. (Italics added.) Hence, the reference to “the application of unlawful physical force” logically describes defendant’s own acts. (See People v. Coddington (2000)
Voters recently rejected an attempt to amend section 1192.7(c)(8) to include a requirement that the defendant “specifically intend]] to” personally inflict great bodily injury. (Text of Prop. 66, proposing amend, of § 1192.7(c)(8) at Gen. Elec. (Nov. 2, 2004) 50D West’s Ann. Pen. Code (2005 supp.) foil. § 1192.7, p. 3; see Historical and Statutory Notes, 50D West’s Ann. Pen. Code (2006 supp.) foil. § 1192.7, p. 4 [noting rejection of amendment to this section].) The Legislature long ago removed from section 12022.7(a) a similar requirement that great bodily injury be personally inflicted “with the intent to inflict the injury.” (Stats. 1995, ch. 341, § 1, p. 1851.)
Defendant argues on review, as on appeal, that CALJIC No. 17.20 tainted both the finding that he personally inflicted great bodily harm (§ 1192.7(c)(8)) and that he personally used a dangerous and deadly weapon. (§ 1192.7(c)(23).) He also complains here about the harmless error analysis the Court of Appeal used to uphold the latter finding. Our conclusions that the group beating principles in CALJIC No. 17.20 are valid and that the instruction was properly given at trial foreclose any claim that such principles wrongly infected the personal-use finding. Hence, we do not address the issue.
Dissenting Opinion
I do not agree with the majority that the trial court here correctly instructed the jury on what is required, in a group beating context, for a finding under Penal Code section 1192.7, subdivision (c)(8), that a defendant personally inflicted great bodily injury. The instruction that the trial court read to the jury, CALJIC No. 17.20, presented two alternative theories under which the jury could find that defendant personally inflicted great bodily injury. As defendant persuasively argues, neither theory is correct. I agree with the Court of Appeal that the instruction was erroneous and that the error was prejudicial. Accordingly, I would affirm the Court of Appeal’s judgment setting aside the great bodily injury finding.
The majority correctly explains what is required for a finding that a defendant personally inflicted great bodily injury in a group beating context. The defendant must do more than merely aid or abet others who inflict great bodily injury; the defendant must physically participate' in the injury-producing conduct. On the other hand, the defendant need not have acted alone, and his conduct need not be the sole or even the predominate cause of the great bodily injury. The defendant’s physical participation need only be a
The trial court, however, did not accurately explain these requirements to the jury. The trial court gave this explanation: “When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim, if one, the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim; or two, that at the time that the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim and the defendant then knew or reasonably should have known that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim.” (Italics added.)
There was no need or justification for a jury instruction setting forth two theories. The majority succinctly summarizes the statute’s requirements in these terms: “[T]he statute calls for the defendant to administer a blow or other force to the victim, for the defendant to do so directly rather than through an intermediary, and for the victim to suffer great bodily injury as a result.” (Maj. opn., ante, at p. 493.) The majority adds the necessary qualification that the defendant’s conduct must “contribute substantially to the victim’s injured state.” (Id. at p. 494.) An instruction in these terms would have been accurate and sufficient.
The instruction’s first theory is that a defendant personally inflicts great bodily injury if “the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim.” (Italics added.) The majority concludes that the jury would have understood that the words “ ‘application of unlawful physical force’ ” referred to defendant’s own acts. (Maj. opn., ante, at p. 500, fn. 10.) Although this is questionable, the more serious defect in the instruction is its use of the words “could have caused.”
When we say that someone “could have” done something, we mean only that the person had the ability or potential to do that thing. We do not mean that the person actually did the thing, and often we mean the opposite. For example, in the film On the Waterfront (Columbia Pictures 1954), a former boxer portrayed by the actor Marlon Brando famously said: “I could have been a contender. I could have been somebody, instead of a bum—which is what I am.” With these words, the former boxer was expressing regret that he had never been a contender.
The instruction’s other theory is also wrong. The second theory is that a defendant personally inflicts great bodily injury if “at the time that the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim and the defendant then knew or reasonably should have known that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim.” In addition to the defendant’s application of force to the victim, this theory imposes two requirements: (1) the defendant must have known that others are also beating the victim; and (2) the defendant must have known that the cumulative effect of all the blows would result in great bodily injury. The second requirement includes within it a requirement that the cumulative effect of all the blows in fact results in great bodily injury.
As the majority cautiously observes, “the reference to what the defendant knew or should have known during the attack arguably imposes an additional evidentiary burden on the prosecution.” (Maj. opn., ante, at p. 501.) Although this aspect of the instruction’s second theory (the imposition of knowledge requirements) is almost certainly erroneous, it is not the aspect that misled the jury to defendant’s prejudice. Defendant was harmed by the instruction’s second theory insofar as it stated or implied that the causation requirement for a finding of personal infliction of great bodily injury may be satisfied by proof that defendant “personally applied unlawful physical force to the victim” during an incident in which others were also beating the victim and that “the cumulative effect of all the unlawful physical force . . . resulted] in great bodily injury to the victim.”
What the instruction should have explained, but did not, is that when an injury results from the cumulative effect of multiple blows, the defendant has personally inflicted that injury if, but only if, the blow or blows struck by the defendant were a substantial factor in causing the injury. (See People v. Catlin (2001)
The majority’s defense of the instruction is unpersuasive. In response to defendant’s argument that the instruction’s first theory—that defendant’s application of force “could have caused” the injury—“invited speculation as to whether he personally inflicted harm” and permitted a finding “based solely on injuries caused by other assailants in the group,” the majority asserts that the instruction told the jury “that the defendant must have (1) participated in the group beating and (2) applied physical force directly to the victim, who (3) suffered great bodily injury as a result.” (Maj. opn., ante, at p. 500, italics added.) But the instruction does not state that the victim must have suffered bodily injury “as a result” of the physical force that defendant applied. The instruction’s first theory does not require that the victim suffer any injury as a result of the defendant’s use of force. The instruction’s only reference to the victim’s injury being a “result” of physical force is in its description of the second theory, and there the instruction referred to the injury being the result of the “cumulative effect” of the physical force applied by all participants, not by the defendant. Thus, in asserting that the instruction required the jury to find that the victim suffered great bodily injury “as a result” of the physical force that defendant applied, the majority reads into the instruction a concept that simply is not there.
In response to defendant’s argument that the instruction’s second theory is defective because it “substituted his knowledge of the force applied by others for the injury that he was personally required to inflict” (maj. opn., ante, at p. 501), the majority asserts that the instruction “requires] the defendant to apply physical force directly to the victim to such a significant degree that he adds to the ‘cumulative’ injurious effect” (id. at p. 501). Here also, the majority claims to find in the instruction a concept that it nowhere expresses. Nothing in the instruction required the jury to assess defendant’s contribution to the cumulative effect of the multiple blows for the purpose of determining whether it was more than a trivial or insubstantial factor in producing the injury.
Appellant’s petition for a rehearing was denied September 20, 2006, and the opinion was modified to read as printed above. Kennard, J., was of the opinion that the petition should be granted.
Concurrence Opinion
I agree with the majority that CALJIC No. 17.20 does not misstate the law regarding allegations of personal infliction of great bodily injury. I also agree the trial court did not err by giving the instruction in this case, where the evidence showed defendant participated in a group attack and personally struck the victim with blows the jury could find caused his injuries, either by themselves or together with the blows of his coassailants. I do not understand the majority’s discussion of People v. Dominick (1986)