IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S120238
v.
) Ct.App.
6
H023584
SHEA MICHAEL MODIRI,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. CC079647
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)),1 among other things. To enhance the sentence in any future prosecution,
the jury sustained an allegation that, in the course of the assault, defendant
“personally inflict[ed] great bodily injury” on the victim. (§ 1192.7, subd. (c)(8)
(section 1192.7(c)(8)).)
In People v. Cole (1982) 31 Cal.3d 568 (Cole), we construed similar
personal-infliction language authorizing a present sentencing enhancement under
1
All further statutory references are to the Penal Code.
1
what is now section 12022.7, subdivision (a) (section 12022.7(a)). Cole held that
this requirement covers persons who “directly acted to cause the injury,” and
excludes those who merely “aided or abetted the actor directly inflicting the
injury.” (31 Cal.3d at p. 572.)
Here, CALJIC No. 17.20 told the jury that defendant must personally inflict
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) 213
Cal.App.3d 589 (Corona), review den. Nov. 30, 1989; People v. Dominick (1986)
182 Cal.App.3d 1174 (Dominick), review den. Oct. 30, 1986; see also Judicial
Council of Cal. Crim. Jury Inst. (2006) CALCRIM No. 3160.)
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, 31 Cal.3d 568, and applied in
Corona, supra, 213 Cal.App.3d 589, and Dominick, supra, 182 Cal.App.3d 1174.
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
2
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 young
man. Schon knew both Bour and defendant from school and sports activities.
Years earlier, Bour and Schon had exchanged insults and threats. There had been
no animosity between Schon and defendant or Hitt.
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.
3
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].”
4
This account was corroborated. According to Jorgenson, defendant “just
ran on [Schon] and jumped on [him].” She saw defendant “in the group of guys
that were hitting [and] kicking” Schon. Cane likewise testified that defendant was
“the only face” in the crowd he recognized. However, he could not tell which
blows hit Schon. Cane pushed one unknown attacker off Schon. Both Jorgenson
and Cane heard bottles breaking. Jorgenson saw someone hit Schon with a bottle,
but she could not see who it was.
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.
5
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.2 Schon’s blood also was found on other
people’s clothes, including Hitt’s shoes.
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 suffered
facial trauma and a broken nose. Schon had surgery to repair his nose several days
later. The attack also left a large gash on his wrist, which was bandaged.
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.3
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
2
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.
3
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, Tyler Folck, saw defendant fly
backwards into the crowd, and then lost sight of him.
6
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).)4
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, head wounds,
and other injuries. According to the prosecutor, defendant pushed and punched
Schon, and hit him with fists and bottles.5
4
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.
5
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
(footnote continued on next page)
7
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 the 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.”6
(footnote continued from previous page)
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.
6
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. [¶] ‘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. [¶] When a person participates in a group beating and it is
not possible to determine which assailant inflicted a particular injury, he or she
(footnote continued on next page)
8
On appeal, defendant raised only sentencing issues under section 1192.7,
subdivision (c) (section 1192.7(c)). He argued that the group beating principles in
CALJIC No. 17.20 negated the requirement of true personal infliction, and
improperly allowed a section 1192.7(c)(8) finding based on injuries other
assailants had caused. Defendant also claimed the instruction tainted the section
1192.7(c)(23) finding that he “personally” used a bottle during the crime.
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.7
(footnote continued from previous page)
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. [¶] 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.”
7
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
(footnote continued on next page)
9
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 defendant
committed the crime under aggravated circumstances. For instance, section
12022.7(a) mandates an additional consecutive three-year term for a defendant
who, under certain conditions, “personally inflicts great bodily injury” while
committing or attempting a felony. This provision deters and punishes the
(footnote continued from previous page)
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.
10
infliction of gratuitous harm not inherent in the crime itself. (People v. Jefferson
(1999) 21 Cal.4th 86, 101; People v. Escobar (1992) 3 Cal.4th 740, 746-747.)8
Other statutes impose longer sentences and greater punishment on repeat
offenders, including those with prior serious felony convictions. (People v.
Woodell (1998) 17 Cal.4th 448, 452; People v. Dotson (1997) 16 Cal.4th 547,
553.) Examples include the habitual criminal statute (§ 667, subd. (a) [five-year
consecutive term]), and the three strikes law. (§ 667, subd. (e) [various sentencing
formulas].) These provisions incorporate the “serious felony” definition set forth
in section 1192.7(c). (§ 667, subds. (a)(4) & (d)(1).) Much like the enhancement
in section 12022.7(a), section 1192.7(c)(8) defines a serious felony to include one
in which “the defendant personally inflicts great bodily injury” on the victim.
(§ 1192.7(c)(8); see § 1192.7(c)(23) [serious felony involves personal use of
dangerous or deadly weapon].)9
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
8
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. [¶] . . . [¶] (f) As used in
this section, ‘great bodily injury’ means a significant or substantial physical injury.
[¶] (g) . . . Subdivision[ ] (a) . . . shall not apply if infliction of great bodily
injury is an element of the offense.”
9
Section 1192.7(c) provides, in part: “As used in this section, ‘serious
felony’ means any of the following: [¶] . . . [¶] (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.”
11
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 the
victim to such a degree that he contributes substantially to the overall grievous
effect. However, the Attorney General insists, the instruction properly does not
require the defendant, as a direct participant in a group beating or assault, to inflict
a particular injury, or to be the sole cause of great bodily harm, where no such
showing or finding can be made. We agree that CALJIC No. 17.20 conforms to
statutory law in this respect, and that no instructional error or constitutional
violation occurred.
Our analysis begins, of course, with the statutory language. (See People v.
Wutzke (2002) 28 Cal.4th 923, 933-934.) It seems plain that section 1192.7(c)(8)
is not limited in the manner defendant suggests. Commonly understood, the verb,
“to inflict,” means “to lay (a blow) on: cause (something damaging or painful) to
be endured: impose.” (Webster’s 3d New Internat. Dict. (2002) p. 1160; accord,
Oxford English Dict. (2d ed. 1989) p. 938.) A blow is “inflict[ed]” as long as it
hits or strikes its target, or is administered or delivered thereto. (West’s Legal
Thesaurus/Dict. (special deluxe ed. 1986) p. 406; Burton, Legal Thesaurus (deluxe
ed. 1980) p. 280; accord, People v. Gonzales (1994) 29 Cal.App.4th 1684, 1695-
1696, review den. Feb. 16, 1995 [defining “inflicts” under § 1192.7(c)(8)].) These
definitions suggest that section 1192.7(c)(8) contemplates physical contact of a
forceful nature.
12
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).”
(Oxford English Dict., supra, at 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, 31 Cal.3d 568, 572 [defining
“personally” in § 12022.7].) Framed this way, the requisite force must be one-to-
one, but does not foreclose participation by others.
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 instruction reasonably conveys these statutory principles.
CALJIC No. 17.20 requires jurors to first determine the defendant’s guilt of the
charged crime. The instruction applies if they then decide that he “participate[d]”
in a group beating, and that “it is not possible” to determine which assailant
inflicted a particular injury. (Ibid.) Both prongs of the instruction permit a
personal-infliction finding in this instance only if the defendant personally
“appli[es] unlawful physical force” to the victim. (Ibid.) CALJIC No. 17.20
makes clear that the physical force personally applied by the defendant must have
been sufficient to produce great bodily injury either (1) by itself, or (2) in
combination with other assailants. Both group beating theories exclude persons
13
who merely assist someone else in producing injury, and who do not personally
and directly inflict it themselves.
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, Oxford English Dict., supra, p. 33;
American Heritage Dict. (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, 31
Cal.3d 568, warrants a different result. Cole construed language in an earlier
version of section 12022.7, which, like the present one, authorizes an enhancement
for anyone who “personally inflicts great bodily injury” on the victim. (§ 12022.7,
as amended by Stats. 1979, ch. 145, § 17, p. 341 (former section 12022.7).) As we
later explain, section 1192.7(c)(8) was enacted after section 12022.7, and
incorporated similar language.
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
14
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. (Id. at p. 571.)
In reviewing the judgment, the Cole court agreed with the defendant that
his sentence could not properly be enhanced under former section 12022.7. (Cole,
supra, 31 Cal.3d 568, 572, 579.) The court held that the statute applies only to
persons who “actually” (id. at p. 573) and “directly perform the act that causes the
physical injury.” (Id. at p. 579.) The injury-producing act must be done by the
defendant “himself,” and not by someone who merely “aided or abetted the actor
directly inflicting the injury.” (31 Cal.3d at p. 572; see id. at p. 575, fn. 4.) The
Cole court observed that while the defendant directed the attack and moved to
block the victim’s escape, he never actually struck or injured the victim. Hence,
by its terms, the statute did not cover his acts. (Id. at pp. 572, 573.)
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, 31 Cal.3d 568, 572.) The court also relied on the
apparent purpose of the statute to impose increased penalties on those perpetrators
who do more than merely urge their confederates to inflict harm, and who actually
inflict such harm. (Id. at pp. 572-573.) The court recognized that the defendant in
Cole, who ordered the victim killed, was arguably as culpable as the accomplice
who actually performed the attack. (Id. at p. 573.) But, according to Cole, the
Legislature sought to deter persons from actually inflicting the prohibited harm by
enhancing their punishment, and by not imposing the same penalty on persons
who do not personally strike or injure the victim. (Ibid.) Cole further noted that
other statutes supported this view. For instance, the rules that define aiders and
abettors as principles in the commission of crimes, and that make those persons
15
derivatively liable for crimes they do not personally commit, “ ‘do not at the same
time impose a derivatively increased punishment by reason of the manner in which
a confederate commits the crime.’ ” (Id. at p. 576; see § 31.)
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, 31 Cal.3d 568.
Consistent with our view of the relevant statutory language here and in Cole, these
decisions have provided for 20 years that participation in a group attack may
satisfy sections 1192.7(c)(8) and 12022.7(a) where the defendant personally uses
force against the victim, and the precise injurious effect is unclear. Much like the
group beating theories expressed in CALJIC No. 17.20, two themes emerge.
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, 213 Cal.App.3d 589, 594, “the blows were delivered, [the
defendant] joined in that delivery and the victim suffered great bodily injury.”
(See id. at pp. 591-592, 594-595 [defendant joined other men in hitting and
kicking victim, defendant threw unopened beer cans at victim, and victim suffered
16
cuts and bruises on face and body]; accord, People v. Banuelos (2003) 106
Cal.App.4th 1332, 1334-1337, review den. June 11, 2003 [defendant joined other
men in punching victim, defendant struck victim on jaw and body with small bat,
and victim suffered bruises, broken jaw and head wounds]; In re Sergio R. (1991)
228 Cal.App.3d 588, 593-594, 601-602, review den. June 4, 1991 [defendant fired
three shotgun rounds, accomplice fired own shotgun at same time, and two victims
were struck].)
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,
182 Cal.App.3d 1174, which involved a forcible restraint scenario not implicated
in the present case. Critical here is Dominick’s reasoning, on which Corona,
supra, 213 Cal.App.3d 589, in part relied, that the defendant’s acts involved “more
than aiding and abetting,” and that he was “directly responsible” for the resulting
injuries. (Dominick, supra, 182 Cal.App.3d at p. 1211; see id. at pp. 1185, 1210-
1211 [defendant grabbed rape victim’s arms and pulled her head back to allow
accomplice to strike her throat with pole, causing victim to fall down hillside and
break shoulder]; accord, People v. Guzman (2000) 77 Cal.App.4th 761, 763-764,
review den. Apr. 12, 2000 [defendant, while driving drunk, collided with
oncoming traffic and injured passenger].)
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 should not be immune
17
from a personal-infliction finding for the sole reason that the resulting confusion
prevents a showing or determination of this kind.
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, 213 Cal.App.3d 589, 594.) Under such circumstances, all
participants in a group attack who personally caused or contributed to the
infliction of harm could conceivably escape enhanced punishment. Given the
apparent goal of deterring and punishing gratuitous violence, the drafters of
sections 1192.7(c)(8) and 12022.7(a) could not have intended that result.
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.
18
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).
Eventually, absence of the word “personally” to modify the conduct
described in the 1982 version of section 1192.7(c)(8) caused some confusion in
the courts. In People v. Piper (1986) 42 Cal.3d 471 (Piper), for example, an issue
arose whether a prior conviction of shooting at an occupied vehicle (see § 246)
qualified as a serious felony under the 1982 version of section 1192.7(c)(8), where
the record of conviction did not show that defendant personally used a firearm.
(Piper, supra, 42 Cal.3d at pp. 475-476.) The Piper court rejected any suggestion
that such a qualification could not reasonably be implied, and interpreted the
statute as requiring personal firearm use. (Id. at pp. 476, 478.) Piper relied,
among other things, on the lack of any explicit statutory language imposing
derivative punishment on someone who did not perform the proscribed act
himself. (Id. at pp. 476-477.)
While Piper, supra, 42 Cal.3d 471, was pending, the Legislature sought to
clarify the circumstances under which the 1982 version of section 1192.7(c)(8)
applied. Hence, it amended the definition of a serious felony contained therein to
include only those crimes in which the defendant “personally inflicts great bodily
19
injury” or “personally uses a firearm.” (§ 1192.7(c)(8), as amended by Stats.
1986, ch. 489, § 1, pp. 1808-1810 (1986 Amendment), italics added.) The
Governor signed the bill on July 24, 1986. (Assem. Bill No. 3733, approved by
Governor, July 24, 1986, 2 Assem. Final History (1985-1986 Reg. Sess.) p. 2354.)
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, oper. July 1, 1977, as amended by Stats. 1977, ch. 165,
§ 94, p. 679, eff. June 29, 1977, oper. 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., 3rd 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.
First, as suggested earlier, Dominick, supra, 182 Cal.App.3d 1174,
concluded that a defendant personally inflicts great bodily injury under section
12022.7, where he joins others in physically attacking the victim, and is “directly
responsible,” at least in substantial part, for the resulting harm. (Dominick, supra,
at p. 1211.) Dominick was filed on June 30, 1986. At that time, the Legislature
20
had not yet enacted the 1986 Amendment, which eventually added the word
“personally” to section 1192.7(c)(8). (See 2 Assem. Bill No. 3733 (1985-1986
Reg. Sess.), referred to Sen. Com. on Judiciary, June 12, 1986, and returned to
Assem. on July 11, 2006, Assem. Final History (1985-1986 Reg. Sess.) p. 2354.)
We have found no evidence that lawmakers believed Dominick, supra, 182
Cal.App.3d 1174, wrongly construed the personal-infliction enhancement in
former section 12022.7. The legislative record also fails to suggest that Dominick
conflicted with the serious felony definition in section 1192.7(c)(8), as originally
enacted. Indeed, we must assume that in reconciling the two statutes, the
Legislature knew about Dominick’s approach to group attacks, and incorporated
its view into the 1986 Amendment. (People v. Harrison (1989) 48 Cal.3d 321,
329 [presuming that where statutory amendment includes same language as earlier
law on similar subject, and earlier law has been judicially construed, Legislature is
aware of that construction and accepts it].)
Second, the Legislature has never repudiated Dominick, supra, 182
Cal.App.3d 1174, or its progeny, despite ample time and opportunity to do so.
Since 1986, section 1192.7(c)(8) has been amended once, in 1998, to delete an
extraneous term. (Stats. 1998, ch. 936, § 13 [deleting “other” preceding “felony”
in statute].) In the interim, the courts had decided Corona, supra, 213 Cal.App.3d
589, and In re Sergio, R., supra, 228 Cal.App.3d 588. Much like Dominick, these
cases do not limit the personal infliction of bodily harm to group beatings or
assaults in which the defendant was the sole or certain cause of specific grievous
harm.
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, 106 Cal.App.4th
21
1332; People v. Guzman, supra, 77 Cal.App.4th 761.) This history suggests that
the Legislature approves their construction of the statute, and that defendant’s
understanding of it is wrong. (People v. Martinez (1995) 11 Cal.4th 434, 446
[presuming that where statutory language has been judicially construed, and
Legislature amends statute but leaves such language intact, it is aware of that
construction and accepts it].)
Defendant nonetheless argues that CALJIC No. 17.20 offends section
1192.7(c)(8) in other ways. This claim involves certain words and phrases that, he
insists, removed the personal-infliction requirement from the jury’s consideration,
and lowered the prosecution’s burden of proof in violation of federal and state due
process guarantees. We address each point in turn.
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) 13 Cal.4th 1164,
1221-1222, fn. 11 [instruction on personal firearm use adequately advised jury to
rely on defendant’s own acts].) In deciding whether the section 1192.7(c)(8)
allegation is true beyond a reasonable doubt, the jury is told 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. As we have
seen, the reference to grievous harm that the defendant “could have caused” on his
own simply embraces the scenarios in which it is impossible to know which
assailant caused a particular injury. By implication, this part of the instruction
22
preserves the necessary causal link between the defendant’s use of force and the
victim’s injuries by foreclosing a section 1192.7(c)(8) finding where the defendant
could not have personally inflicted the requisite harm or contributed to it at all.
No reasonable juror would have viewed the challenged language in the manner
defendant suggests.10
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 great bodily
injury.” (CALJIC No. 17.20, italics added.) According to defendant, the italicized
language should not have appeared in the instruction, because it substituted his
knowledge of the force applied by others for the injury that he was personally
required to inflict. He claims this approach allowed “vicarious” liability under
section 1192.7(c)(8) in violation of controlling law.
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, 182
10
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 the defendant’s own acts. (See People v. Coddington (2000) 23 Cal.4th
529, 594 [assuming jurors adopt common sense meaning of instructions].) It did
not excuse jurors from finding that he personally attacked and harmed the victim.
23
Cal.App.3d 1174, 1210-1211.) The second group beating theory in CALJIC No.
17.20 follows this principle by requiring the defendant to apply physical force
directly to the victim to such a significant degree that he adds to the “cumulative”
injurious effect. Contrary to what defendant claims, this language does not define
the defendant’s personal infliction of great bodily harm primarily or solely in
terms of the harmful acts that others in the group commit.
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) 19 Cal.4th 1206,
1222 [describing § 1192.7(c)(8) as “general intent” statute], citing People v.
Gonzales, supra, 29 Cal.App.4th 1684, 1695-1698.)11 Instead of supplanting the
personal-infliction requirement, the reference to what the defendant knew or
should have known during the attack arguably imposes an additional evidentiary
burden on the prosecution. We see no basis on which defendant can complain.12
11
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. of Nov. 2, 2004, 50D West’s Ann. Pen. Code (2005 supp.) foll.
§ 1192.7, p. 3; see Historical and Statutory Notes, 50D West’s Ann. Pen. Code
(2006 supp.) foll. § 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.)
12
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.
24
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
should not have been given at defendant’s trial. The judgment of the Court of
Appeal is reversed insofar as it vacated the section 1192.7(c)(8) finding that
defendant personally inflicted great bodily injury in the commission of felony
assault.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
25
CONCURRING OPINION BY WERDEGAR, J.
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) 182 Cal.App.3d 1174 to constitute approval of the
application of personal-infliction enhancements in cases where (as in Dominick)
the defendant’s role was limited to restraining the victim while a coassailant struck
her (a factual scenario the majority correctly notes is “not implicated” here (maj.
opn., ante, at p. 17)), but only as endorsing the general principle that direct
participants in group attacks are not immune from personal-infliction findings. On
that basis I have signed the majority opinion.
WERDEGAR, J.
1
DISSENTING OPINION BY KENNARD, J.
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 substantial factor in producing
the great bodily injury, or, in other words, the effect of the defendant’s conduct in
producing the injury must be more than trivial or insignificant.
1
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. 13.) The majority adds the necessary qualification that the defendant’s conduct
must “contribute substantially to the victim’s injured state.” (Id. at p. 14.) 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 the
defendant’s own acts. (Maj. opn., ante, at p. 23, fn. 10.) Although this is
2
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.
Thus, to say that the defendant’s application of physical force “could have”
caused the victim’s great bodily injury is only to say that it had the capacity or
potential to cause such an injury, even though it may not actually have done so.
This is not a correct description of what must be proved to support a finding of
personal infliction of great bodily injury under Penal Code section 1192.7,
subdivision (c)(8). The defendant’s force must actually have caused the great
bodily injury in the sense that it contributed to the injury in a nontrivial way.
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
3
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. 24.) 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 . . . result[ed] 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) 26 Cal.4th 81, 155-156; In re M.S. (1995) 10 Cal.4th 698, 719-720.) The
“substantial factor” test is explained in a standard Judicial Council jury instruction.
As adapted to the situation here, the instruction reads: “There may be more than
one cause of [great bodily injury]. An act causes [great bodily injury] only if it is
a substantial factor in causing the [injury]. A substantial factor is more than a
trivial or remote factor. However, it does not have to be the only factor that causes
the [injury].” (See Judicial Council of Cal., Crim. Jury Instrs. (2006) CALCRIM
No. 240; see also CALJIC No. 3.41.) The instruction’s second theory is erroneous
because it does not explain the “substantial factor” requirement, that the
defendant’s own conduct be more than a trivial or remote factor in causing the
4
great bodily injury. A finding that the cumulative effect of multiple blows from
different individuals resulted in great bodily injury does not exclude the possibility
that the blow or blows inflicted by one of those individuals were only a trivial
factor and did not contribute substantially in producing the injury.
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. 22, 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. 23), the
majority asserts that the instruction “requir[es] the defendant to apply physical
force directly to the victim to such a significant degree that he adds to the
5
‘cumulative’ injurious effect” (id. at p. 24). 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.
Given the sharply conflicting evidence in this case, the instruction’s failure
to explain the substantial factor causation requirement resulted in prejudice to
defendant, requiring reversal of the finding under Penal Code section 1192.7,
subdivision (c)(8), that defendant personally inflicted great bodily injury. Because
the Court of Appeal correctly resolved this issue, I would affirm its judgment.
KENNARD,
J.
6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Modiri
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 112 Cal.App.4th 123
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S120238Date Filed: August 7, 2006
__________________________________________________________________________________
Court:
SuperiorCounty: Santa Clara
Judge: Alfonso Fernandez
__________________________________________________________________________________
Attorneys for Appellant:
Candace Hale, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bassand Gerald A. Engler, Assistant Attorneys General, René A. Chacón, Laurence K. Sullivan and Dorian
Jung, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Candace HaleP.O. Box 775
San Anselmo, CA 94979-0775
(415) 460-5428
Dorian Jung
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5849
Opinion Information
| Date: | Docket Number: |
| Mon, 08/07/2006 | S120238 |
Parties
| 1 | Modiri, Shea Michael (Defendant and Appellant) Represented by Candace Hale Attorney at Law P.O. Box 775 San Anselmo, CA |
| 2 | Modiri, Shea Michael (Defendant and Appellant) Represented by Sixth District Appellate Program 100 N. Winchester Boulevard 100 N. Winchester Boulevard Santa Clara, CA |
| 3 | The People (Plaintiff and Respondent) Represented by Laurence Keith Sullivan Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 4 | The People (Plaintiff and Respondent) Represented by Dorian Jung Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| Disposition | |
| Aug 7 2006 | Opinion: Reversed |
| Dockets | |
| Nov 5 2003 | Petition for review filed By counsel for appellant {Shea Michael Modiri}. / 40(K). |
| Nov 5 2003 | Record requested |
| Nov 7 2003 | Received Court of Appeal record file jacket/briefs/two accordian files |
| Dec 23 2003 | Petition for Review Granted (criminal case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ. |
| Jan 28 2004 | Counsel appointment order filed Candace Hale to represent aplt. The brief on the merits is due 30 days from this order. |
| Feb 25 2004 | Filed: "Motion for Clarification" by counsel for aplt |
| Mar 2 2004 | Extension of time granted to 3-31-04 for aplt to file the opening brief on the merits. |
| Mar 3 2004 | Order filed In the above-captioned matter, counsel for defendant has requested clarification of the issues on review. The issues include, and the parties are directed to address, whether the so-called "group beating exception" (see People v. Corona (1989) 213 Cal.App.3d 589), as embodied in CALJIC No. 17.20, to the requirement of a finding of personal infliction of great bodily injury for purposes of enhancing a present or future sentence (see Pen. Code, Sections 667, subds. (a), (c), (d)(1), 1170.12, subds. (a), (b)(1), 1192.7, subd. (c)(8), 12022.7) is inconsistent with People v. Cole (1982) 31 Cal.3d 568. (Cal. Rules of Court, rules 29(a)(1), (b)(1), (2).) |
| Mar 29 2004 | Request for extension of time filed for aplt to file the opening brief on the merits, to 5-15-04. |
| Apr 2 2004 | Extension of time granted to 4-30-04 (only) for aplt to file the opening brief on the merits. No further extensions of time are contemplated. |
| Apr 26 2004 | Request for extension of time filed for aplt to file the brief on the merits, to 5/30. |
| May 14 2004 | Extension of time granted to 5-30-04 for aplt to file the opening brief on the merits. No further extensions will be granted absent a showing of extraordinary and compelling circumstances, accompanied by a schedule acceptable to the court, indicating progress to date and a realistic estimate of the remaining time necessary for prompt filing of the brief. (5-30 is a weekend day, actual due date will be 6-1-04) |
| Jun 4 2004 | Opening brief on the merits filed by counsel for aplt (timely per CRC 40k) |
| Jun 16 2004 | Compensation awarded counsel Atty Hale |
| Jun 23 2004 | Request for extension of time filed for resp to file the answer brief on the merits, to Aug. 5. |
| Jun 30 2004 | Extension of time granted to 8-5-04 for resp to file the answer brief on the merits. |
| Aug 2 2004 | Answer brief on the merits filed by resp. |
| Aug 9 2004 | Filed: Resp's errata to the answer brief on the merits. |
| Aug 12 2004 | Request for extension of time filed for aplt to file the reply brief on the merits, to 9-13-04. **permission granted, order being prepared. |
| Aug 25 2004 | Extension of time granted to 9-13-04 for aplt to file the reply brief on the merits. No further extensions of time are contemplated. |
| Sep 14 2004 | Reply brief filed (case fully briefed) by appellant (40k) |
| May 2 2006 | Case ordered on calendar June 7, 2006, at 9:00 a.m., in Los Angeles |
| May 31 2006 | Received: appellants supplemental authorities. by Candace Hale, counsel |
| Jun 2 2006 | Received: received original Supplemental Authorities |
| Jun 7 2006 | Cause argued and submitted |
| Aug 7 2006 | Opinion filed: Judgment reversed insofar as it vacated the section 1192.7(c)(8) finding that defendant personally inflicted great bodily injury in the commission of felony assault. opinion by Baxter,J. -----joined by Geroge,C.J., Werdegar, Chin, Moreno, Corrigan,JJ concurring opinion by Werdergar,J. dissenting opinion by Kennard,J. |
| Aug 18 2006 | Rehearing petition filed Shea M. Modiri, appellant Candace Hale, counsel |
| Aug 23 2006 | Time extended to consider modification or rehearing to and including November 3, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Sep 20 2006 | Rehearing denied Opinion modified. Kennard, J., is of the opinion the petition should be granted. |
| Sep 20 2006 | Opinion modified - change in judgment |
| Sep 26 2006 | Order filed Due to clerical error, the remittitur issued on September 20, 2006, in the above entitled matter is hereby vacated. |
| Nov 3 2006 | Remittitur issued (criminal case) |
| Nov 7 2006 | Received: receipt for remittitur |
| Nov 14 2006 | Returned record CA to 6th District - (three volumes) |
| Mar 28 2007 | Compensation awarded counsel Atty Hale |
| Briefs | |
| Jun 4 2004 | Opening brief on the merits filed |
| Aug 2 2004 | Answer brief on the merits filed |
| Sep 14 2004 | Reply brief filed (case fully briefed) |
