3162 . Great Bodily Injury: Age of Victim (Pen. Code, § 12022.7(c)
If you find the defendant guilty of the crime[s] charged in Count[s]
[,] [or of attempting to commit (that/those) crime[s]][ or the lesser
crime[s] of
must then decide whether[, for each crime,] the People have pr oved the
additional allegation that the defendant personally inflicted great bodily
injury on someone who was (under the age of 5 years/70 years of age or
older). [Y ou must decide whether the People have pr oved this allegation
for each crime and return a separate finding for each crime.]
T o prove this allegation, the People must prove that:
1. The defendant personally inflicted great bodily injury on
commission [or attempted commission] of the crime;
2. At that time,
(under the age of 5 years/70 years of age or older)(./;)
accomplice.>
3.
accomplice to the crime.]
Great bodily injury means significant or substantial physical injury . It is
an injury that is greater than minor or moderate harm.
[Committing the crime of
not by itself the infliction of great bodily injury .]
[If you conclude that more than one person assaulted
caused which injury , you may conclude that the defendant personally
inflicted great bodily injury on person> if the People have proved that: 1. Two or more people, acting at the same time, assaulted bodily injury on (him/her); 2. The defendant personally used physical force on [3A. The amount or type of physical for ce the defendant used on alone could have caused person> to suf fer great bodily injury(;/.)] [3B. The physical force that the defendant used on the force used by the others to cause injur ed person> to suf fer great bodily injury .] The defendant must have applied substantial force to contributed to the great bodily injury , then it was not substantial.] [A person is an accomplice if he or she is subject to pr osecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if: 1. He or she knew of the criminal purpose of the person who committed the crime; 2. He or she intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime/ [or] participate in a criminal conspiracy to commit the crime).] [Under the law , a person becomes one year older as soon as the first minute of his or her birthday has begun.] injury “during the commission of” the offense, see Bench Notes.> The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved. New January 2006; Revised June 2007, December 2008, September 2020, Mar ch * Denotes changes only to bench notes and other commentaries. BENCH NOTES Instructional Duty The court has a sua sponte duty to give this instruction on the enhancement when charged. ( Appr endi v . New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 ENHANCEMENTS AND SENTENCING F ACT ORS CALCRIM No. 3162 Give the bracketed sentence that begins with “Committing the crime of” if the defendant is charged with a sexual o ffense. ( People v . Escobar (1992) 3 Cal.4th 740, 746 [12 Cal.Rptr .2d 586, 837 P .2d 1 100] [injury must be more than that which is present in every of fense of rape].) The bracketed section beneath the heading “Group Assault” is designed to be used in cases where the evidence shows a group assault. If the court gives bracketed element 3 instructing that the People must prove that the person assaulted “was not an accomplice to the crime,” the court should also give the bracketed definition of “accomplice.” ( People v . V erlinde (2002) 100 Cal.App.4th 1 146, 1 167-1 168 [123 Cal.Rptr .2d 322].) Additional paragraphs providing further explanation of the definition of “accomplice” are contained in CALCRIM No. 334, Accomplice T estimony Must Be Corr oborated: Dispute Whether W itness Is Accomplice . The court should review that instruction and determine whether any of these additional paragraphs should be given. Give the bracketed paragraph about calculating age if requested. (Fam. Code, § 6500; In r e Harris (1993) 5 Cal.4th 813, 849-850 [21 Cal.Rptr .2d 373, 855 P .2d The jury must determine whether an injury constitutes “great bodily injury .” ( People v . Escobar , supra, 3 Cal.4th at p. 750; People v . Nava (1989) 207 Cal.App.3d 1490, 1498 [255 Cal.Rptr . 903] [reversible error to instruct that a bone fracture is a significant or substantial injury].) A jury’ s finding of serious bodily injury is not equivalent to a finding of great bodily injury . ( In r e Cabr era (2023) 14 Cal.5th 476, 491 [304 Cal.Rptr .3d 798, 524 P .3d 784].) If the case involves an issue of whether the defendant inflicted the injury “during the commission of” the of fense, the court may give CALCRIM No. 3261, While Committing a Felony: Defined - Escape Rule . (See People v . Jones (2001) 25 Cal.4th 98, 109 [104 Cal.Rptr .2d 753, 18 P .3d 674]; People v . Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr .2d 760, 920 P .2d 705]; People v . T aylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr .2d 127].) The second sentence of the great bodily injury definition could result in error if the prosecution improperly argues great bodily injury may be shown by greater than minor injury alone. (Compare People v . Medellin (2020) 45 Cal.App.5th 519, 533-535 [258 Cal.Rptr .3d 867] [the definition was reasonably susceptible to prosecutor ’ s erroneous argument that the injury need only be greater than minor] with People v . Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr .3d 86] [upholding instructions containing great bodily injury definition as written].) • Enhancements. Pen. Code, § 12022.7(c) & (d). • “Great Bodily Injury” Defined. Pen. Code, § 12022.7(f); In r e Cabr era, supra, 14 Cal.5th at p. 484 [not equivalent to serious bodily injury]; People v . Escobar , supra, 3 Cal.4th at pp. 749-750 [greater than minor or moderate harm]. • Must Personally Inflict Injury . People v . Lee (2003) 31 Cal.4th 613, 631 [3 CALCRIM No. 3162 ENHANCEMENTS AND SENTENCING F ACT ORS Cal.Rptr .3d 402, 74 P .3d 176]; People v . Cole (1982) 31 Cal.3d 568, 571 [183 Cal.Rptr . 350, 645 P .2d 1 182]; People v . Ramirez (1987) 189 Cal.App.3d 603, 627 [236 Cal.Rptr . 404] [Pen. Code, § 12022.8]. • Sex Of fenses - Injury Must Be More Than Incidental to O ffense. People v . Escobar , supra, 3 Cal.4th at p. 746. • Group Beating Instruction. People v . Modiri (2006) 39 Cal.4th 481, 500-501 [46 Cal.Rptr .3d 762]. • “Accomplice” Defined. See Pen. Code, § 1 1 1 1; People v . V erlinde, supra, 100 Cal.App.4th at pp. 1 167-1 168; People v . Stankewitz (1990) 51 Cal.3d 72, 90-91 [270 Cal.Rptr . 817, 793 P .2d 23]. • “During Commission of” Felony . People v . Jones, supra, 25 Cal.4th at pp. 109-1 10; People v . Masbruch, supra, 13 Cal.4th at p. 1014; People v . T aylor , supra, 32 Cal.App.4th at p. 582. RELA TED ISSUES See the Related Issues section of CALCRIM No. 3160, Gr eat Bodily Injury . SECONDAR Y SOURCES 3 W itkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, 5 Millman, Sevilla & T arlow , California Criminal Defense Practice, Ch. 91, Sentencing, § 91.35 (Matthew Bender). ENHANCEMENTS AND SENTENCING F ACT ORS CALCRIM No. 3162 Page last reviewed May 2024 Kathryn Robb, National Director of the Children’s Justice Campaign at Enough Abuse, discusses Vice President Kamala Harris’s unusual mention of child sexual abuse during her Democratic National Convention speech and its broader implications for addressing this issue in America. Lawyers - Get Listed Now! Get a free directory profile listing
