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Great Bodily Injury Defined

People v. Medellin (Cal. Ct. App., Feb. 20, 2020, No. F076022) 2020 WL 830758

The Court of Appeal reversed Samuel Medellin’s convictions for assault with force likely to cause great bodily injury, and their accompanying enhancements for inflicting great bodily injury. The Court found that the prosecutor prejudicially misstated the law during closing arguments. The Court found fault in the CALCRIM instructions defining great bodily injury and reversed the convictions

The incident and the injuries to the vcitims

Medellin and his friends were at a brewery restaurant one evening. A brawl erupted between his friends and the restaurant staff. During the fight, Medellin hit two different staff members, one time each.

The first victim suffered a quarter-to half-inch-long cut along his jaw requiring three stitches to close. Thee victim testified he previously had experienced “worse injuries,” and he described this injury as “hurt[ing] for a few days,” resulting in “a little scar,” and his “false tooth … [feeling] a little bit loose after” the impact.

The second victim sustained a quarter-inch-long cut on his lip requiring seven stitches to close. The injury caused his lip to be “swollen for about a week and a half,” “hurt[ing] a lot,” and scarring. A witness described the injury as “fairly deep” and “bleeding pretty severely.”

Verdict and Sentence

The jury found Medellin guilty of two counts of felony assault (Pen. Code, § 245, subd. (a)(4)),2 each with a great bodily injury enhancement found true (§ 12022.7). The trial court placed Medellin on probation and ordered him to serve one year in county jail, suspended on the condition he successfully completes probation.

Definition of GBI

The Supreme Court addressed the meaning of “great bodily injury” in People v. Cross (2008) 45 Cal.4th 58,82. The Court endorsed that great bodily injury requires more than moderate harm. (Cross, supra, at p. 64.) Both the Legislature and judiciary agree that great bodily injury is more than both minor and moderate harms.

“Effective January 1, 2006, the California Judicial Council withdrew its approval  of the CALJIC instructions and adopted the CALCRIM instructions.” (People v. Reyes (2008) 160 Cal.App.4th 246, 251, 72 Cal.Rptr.3d 586.) The CALCRIM instructions now define great bodily injury as “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” (CALCRIM Nos. 875, 3160.) This definition differs from the previous CALJIC definition on which the Legislature based the statute.

Ambiguity of Jury Instruction on GBI

Medellin argued that CALCRIM Nos. 875 and 3160 define great bodily injury as “greater than minor or moderate harm [which] had the unfortunate consequence of inserting ambiguity into the definition of great bodily injury where none existed before.” The Court agreed.

Instructional error claims are reviewed de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210, 17 Cal.Rptr.3d 532, 95 P.3d 811.) “The challenged instruction is considered ‘in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 326, 247 Cal.Rptr.3d 363, 441 P.3d 359.)

The jury was instructed consistent with the CALCRIM definition that great bodily injury means “greater than minor or moderate harm.” “Under the plain language of the instruction, the jury could have convicted” Medellin if they believed either greater than minor harm or greater than moderate harm was sufficient. (Stringer, supra, 41 Cal.App.5th at p. 983, 254 Cal.Rptr.3d 678.) “The instruction’s ‘use of the word “or” … indicates an intention to use it disjunctively so as to designate alternative or separate categories.’ ” (Ibid.)

CALCRIM GBI Definition improperly allows for finding GBI with greater than minor harm

The CALCRIM great bodily injury definition may impermissibly allow a jury to find great bodily injury means greater than minor harm alone is sufficient.

Alternative-Theory Error Requires Reversal

The Court presumes the legally invalid theory infected the verdict because jurors are not “ ‘ “equipped to determine whether a particular theory of conviction submitted to them is contrary to law ….” ’ ” (In re Martinez (2017) 3 Cal.5th 1216.)  The Court must reverse unless the error is harmless beyond a reasonable doubt.

Here, the error is not harmless beyond a reasonable doubt because it is possible the jury believed only that “more than minor” harm was sufficient to prove the elements. The evidence was that the injuries were not overwhelmingly severe. The prosecutor specifically highlighted the instructions’ ambiguity and adopted it as his theory to prove guilt. He repeatedly emphasized an injury “more than minor” was sufficient, and chose not to argue the injuries were more than moderate.

A reasonable jury could find the injuries were more than minor, but not more than moderate. The prosecutor’s erroneous argument that “more than minor” harm is sufficient and the ambiguous instructions defining great bodily injury apply equally to both the assault and the enhancement. It is also reasonably possible the jury evaluated the force necessary to prove each assault with reference to whether it was likely to cause “more than minor” harm as the prosecutor defined the standard. The Court reversed not only the enhancement findings but also the underlying convictions.

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