Filed 9/24/03
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
H023584
Plaintiff and Respondent,
(Santa Clara County
Superior Court
No. CC079647)
v.
SHEA MICHAEL MODIRI,
Defendant and Appellant.
_____________________________________/
Defendant was convicted by jury trial of aggravated assault (Pen. Code, § 245,
subd. (a)(1)) and simple battery (Pen. Code, § 242). The jury also found that
defendant had personally inflicted great bodily injury (Pen. Code, §§ 667, 1192.7,
subd. (c)(8)) and personally used a dangerous and deadly weapon (Pen. Code, §§ 667,
1192.7, subd. (c)(23)) in the commission of the assault. He was granted probation
conditioned on serving nine months in jail. On appeal, defendant asserts that the
personal infliction of great bodily injury (GBI) finding cannot be upheld because the
trial court’s instruction on that allegation did not require the jury to find that defendant
personally inflicted that injury.1 We conclude that the trial court’s instruction
erroneously described the “personally inflicts” element of the personal infliction of
1
In an accompanying petition for a writ of habeas corpus, defendant asserts that his
trial counsel was prejudicially deficient. We dispose of his petition by separate order.
1
GBI allegation and that the error was prejudicial. Therefore, we reverse the judgment
and remand for retrial of that allegation alone.
I. Background
On the evening of July 22, 2000, defendant’s longtime friend 18-year-old
Matthew Brendon Bour had a party at his home. About 100 people attended the party.
Bour had obtained a keg of beer that was placed in the backyard, and other attendees
also brought alcohol. Defendant lived on the same street as Bour just ten houses down
from Bour. Because Bour’s parties had a tendency to “get out of hand,” Bour’s father,
who was away for the weekend, had asked that defendant keep an eye on the house.
Defendant and Bour were acquainted with, but not friends with, 18-year-old
Ryan Schon. Defendant and Schon had played sports with and against each other in
junior high school. They had not seen each other since junior high school. Schon and
Schon’s friends had a history of intimidating and threatening Bour both in person and
by means of telephone calls. Six-foot, two-inch tall Schon was very athletic and
weighed over 200 pounds.2 Both defendant and Bour were a bit shorter, and neither of
them weighed over 160 pounds.
Schon arrived at Bour’s party with Schon’s girlfriend Amy Jorgenson and two
male friends. They walked into Bour’s front yard where Bour was standing. Bour was
highly intoxicated from both alcohol and marijuana to the point that he was incoherent.
When Bour saw Schon, he asked Amber Oxley “if that was Ryan Schon.” Oxley
replied “yes.” Oxley heard Bour tell a few people “hey, that is Ryan Schon” and then
2
It was unclear from Schon’s testimony if Schon might have weighed less in July
2000 or if he weighed less at the time of trial. He testified at trial, in response to a
question as to whether he weighed 210 pounds, “Yes, at that time. I am about 180. I
lost about 20 pounds over the course of the month.”
2
“they start to take off their jewelry.”3 Bour said to defendant “Ryan is here, why.”4
Oxley thought that Bour and his companions were “getting ready to fight.” On his
way through the yard, Schon heard Oxley say “does Ryan kn[o]w he shouldn’t be
here . . . .” Schon ignored Oxley and walked up to Bour and greeted him. Bour shook
Schon’s hand in a friendly manner and appeared to welcome Schon to the party.
Schon and Bour did not show any signs of animosity to each other.5 Jorgenson
proceeded to walk into Bour’s house.
Schon “only took two steps” past Bour before he encountered Darren Hitt. Hitt
said “who is Ryan Schon.” Schon said “that is me.” Hitt told Schon “[y]ou are not
wanted here.” Schon told Hitt that Bour “said we could go in.” Hitt said to Schon
“you shouldn’t be here,” “someone here doesn’t like you.” Schon responded “I don’t
know anybody here. What are you talking about.” At this point, defendant intervened
in an aggressive manner and said “you know me.” Schon did not recognize defendant
and said so. Defendant insisted that Schon knew him. Defendant repeatedly told
Schon to leave and then he “bumped” Schon with his chest. The other people standing
in the immediate vicinity of Schon and defendant were also telling Schon to leave.
Schon perceived that defendant was trying to provoke him and start a fight. Schon
was not intimidated by defendant, but he was “scared” because his friends had gone
inside, and there were “30 guys around telling me they are going to beat the crap out of
me.”6 Defendant pushed Schon several times. Schon said “[y]ou are pretty tough here
3
4
5
6
The “jewelry” was apparently “bracelets.”
Defendant testified that Bour said “Dude, Ryan Schon is here.”
Bour could not remember the rest of the evening due to his intoxication.
All of the other witnesses quantified the number of people as around ten.
3
with all your buddies around.”7 He also said to defendant “I am not going to fight all
your friends.”8
After defendant and others had repeatedly told him to leave, Schon said “fine, I
am leaving” and “somebody get my ride.” He looked around for Jorgensen (his
“ride”) and said “somebody go get her.” Then he began walking back toward
Jorgenson’s car, and Jorgenson came with him. Defendant followed Schon “pushing
[Schon] and pulling, let’s go, come on, let’s fight . . . .” Schon pushed defendant
away. Defendant, who had nothing in his hands, responded by punching Schon in the
left side of his face or jaw. Schon faced defendant, moved toward him and tried to
grab and hit him and throw him to the ground, but Schon was immediately “tackled”
from behind “by a big mob of people.” The “mob” came from behind Schon, and
someone “just tackled me or something.” Schon could not tell how many people were
in the “mob” or discern their identities. Schon did not see defendant during the melee
after Schon was tackled. When Schon tried to get up from the ground, he was hit from
behind over the back of the head with a bottle. Several more times he tried to get up
and was hit again. Schon perceived at least three blows to his head.
Jorgenson saw defendant punch Schon. When Schon turned to defend himself,
Schon was engulfed by “a swarm of guys” “behind” defendant. Jorgenson, who was
about ten feet away, watched as defendant “just ran on him and jumped on [Schon].”
She “heard bottles being broken.” She saw someone hit Schon with a bottle, but she
did not see defendant hit Schon with a bottle. Jorgenson testified that defendant “was
in the group of guys that were hitting, kicking [Schon].” She screamed and
“confronted” defendant. Defendant “turned around,” and she pushed him off of
7
Defendant testified that Schon said “why are you acting all bad in front of your
friends.”
8
Defendant testified that Schon also said “but I will fight you.”
4
Schon. Jorgenson felt a bottle in defendant’s hand when she separated him from
Schon.
The entire altercation had taken no more than ten to fifteen seconds.9 Schon got
up, and he and Jorgenson began walking away. Schon heard someone say “let’s get
him again.” Jorgenson looked back and saw defendant, who was about 15 feet away,
throw a bottle at them. The bottle “hit behind our feet” about five feet away from
them.
The police arrived within a couple of minutes, and many of the party-goers ran
away. Defendant remained at Bour’s house and spoke to the police. Several
partygoers had blood on their clothing. One of them was Michael Scharland. Schon’s
blood was found on Scharland’s shoes and shirts. Schon’s blood was found on
defendant’s shoes, socks and pants. Schon’s blood was also found on Hitt’s shoes.
Hitt told the police that he “never got near the fight.” Schon went to the hospital. The
wounds on the side and top of his head required a total of ten staples to close, and he
had a broken nose that required surgery.
Defendant was charged by information with battery with serious bodily injury
(Pen. Code, §§ 242, 243, subd. (d)) and aggravated assault (Pen. Code, § 245, subd.
(a)(1)). It was further alleged that defendant had personally inflicted great bodily
injury (Pen. Code, §§ 667, 1192.7, subd. (c)(8)) and personally used a dangerous and
deadly weapon (“a bottle”) (Pen. Code, §§ 667, 1192.7, subd. (c)(23)) in the
commission of these offenses.
At trial, Leslie LaBarbera, who lived on the same street as Bour and defendant
and had known defendant for many years, testified that she did not observe the
altercation at the party because she was inside the house. LaBarbera had also been
friends with Schon and Jorgenson for many years, and she had attended the same high
9
Defendant testified that the altercation lasted “a minute.”
5
school as Schon. She stated that she had no “animosity toward” defendant. LaBarbera
denied that she had any problems with defendant.10 When she heard that Schon had
“been in a fight,” she went outside the house. She saw defendant standing near the
front door of the house, and she heard him “pretty loud[ly]” say “give me another beer.
I just broke the last . . . two . . . over the guy’s head.” Although there were many other
people around, no one else apparently heard this remark.
Defendant’s girlfriend Lynelle Rose testified that she had not seen the
altercation. However, after the party, she went to a park where a number of other
people from the party had gathered. She claimed that Hitt told her that he “hit [Schon]
on the head with a Remy bottle.” Rose had seen Hitt with a Remy bottle at the party
prior to the altercation.
Defendant testified on his own behalf. At the time of the altercation with
Schon, the only person defendant recognized other than Schon among the people in
Bour’s front yard was Hitt. Bour had told defendant of Schon’s presence, and
defendant was concerned that Bour and Schon might have an altercation because he
knew that Schon had threatened Bour in the past.11 Defendant saw Schon and Hitt
conversing. He heard Hitt tell Schon to leave and Schon respond “no, I could be
here.” Defendant also heard Schon say “I don’t know anybody here.” Defendant
walked up and said “you know me, Ryan.”12 Schon said “who are you.” Defendant
identified himself and told Schon to leave because “you are not welcome here” and
“not liked.” Schon again said “no, I can be here.” Defendant raised his voice, “got in
10
LaBarbera became upset during her testimony because “I have just known
[defendant and Schon] both very well, so it is kind of really hard.”
11
Defendant testified that he did not have any personal problems with or animosity
toward Schon prior to the altercation on July 22, 2000.
12
Defendant testified that he had drunk three beers and smoked some marijuana prior
to the altercation, but he was not intoxicated. It was stipulated at trial that his blood
alcohol level was .04.
6
[Schon’s] face” and told Schon “[g]et the fuck out of here. Stop being a fag.” Schon
“pushed” defendant. Defendant fell back into the crowd, but the crowd pushed him
back toward Schon.
Defendant then punched Schon in the face. Defendant testified that he did not
know that anyone else would “jump in and help” him in a fight.13 Schon and
defendant were grabbing each other and trying to punch each other when the crowd
“tackled” them. Defendant’s impression was that “everyone from the front yard ran
and got in the fight.” He was “getting tossed around” by the crowd. Defendant
testified that he did not have a bottle in his hand during the altercation and that he did
not hit Schon over the head.
Eventually, defendant felt himself get pushed out of the melee into a bush. He
got up and saw Schon nearby. Defendant noticed a full bottle of beer on the ground by
his foot. He picked up the bottle and threw it at Schon. The bottle landed ten feet
away from Schon and shattered in the street. Defendant admitted that it was “kind of
dangerous throwing a bottle at somebody.”
Defendant then returned to Bour’s house. He encountered LaBarbera. She
grabbed his arm and said “why did you do that.” Defendant said “do what? He started
to fight with me.” He did not say anything to LaBarbera or anyone else about hitting
Schon over the head or breaking a bottle over anyone’s head. Defendant testified that
he had known LaBarbera for many years and had never had any problems with her
“face to face.” His only explanation for her testimony was that she “might have been
mistaken” or “[s]omeone else might have said it.”
In his opening argument, the prosecutor relied heavily on LaBarbera’s
testimony about defendant’s post-altercation statement to prove the GBI enhancement.
13
Defendant testified that he knew some but not all of the people who were in the
front yard when the altercation occurred but only recognized Hitt.
7
“You saw Leslie testify. You saw Leslie talk about how long she has known Shea
Modiri. You could see the conflict that Leslie had. One point, she knows both of
these guys. On the other hand, she is going to have to see Shea Modiri, they live on
the same street, she is going to continue to see Shea Modiri. . . . Not that many people
came forward. Leslie LaBarbera did. Would have been a lot, lot easier for her not to.
And you saw the torment that caused, you saw her crying on the stand of what she had
to say, what she heard the defendant Shea Modiri say . . . . [¶] The fact when Mr.
Modiri took the stand, he couldn’t come up with the reason for why Leslie LaBarbera
would make this up about him. . . . It seems pretty darn clear, she was absolutely
positive that that is what he said. And it caused her a lot of grief in doing that.
Because she was acting responsibly . . . no matter how much that pained her, and it
did.”
The injuries specified as the GBI were the staples in Schon’s head and the
broken nose. The prosecutor explicitly relied on the “group beating” language in
CALJIC 17.20. “How do I know which hit the defendant Mr. Modiri did and which
hit the defendant Mr. Hitt did. You know, which cut, which broken nose. How do I
know who caused the broken nose? The thing is you don’t have to make that decision,
because in this sort of group beating, this sort of attack, when it is going on all at the
same time and the people who are involved are there and they know what is going on,
and they are causing part of the injuries, and they know this was likely to know that
others are hitting and attacking this Ryan Schon are also causing those kinds of
injuries, they are all guilty. This fact is true. You just need to find that it is true this
attack to Ryan Schon caused this great bodily injury. [¶] Now, the personal use of the
dangerous weapon. Well for this finding you do, you do need specifically to place the
bottle in Mr. Hitt’s or Mr. Modiri’s hands. And we will get to that a little bit later.
And we can do that, we can put the bottle in their hands.” “[Defendant] knows
8
everybody else is going to back him up. So Ryan says, you know I will fight you, but
not all your friends.”
In the prosecutor’s closing argument, he again relied on the “group beating”
language in CALJIC 17.20. “And again, that other instruction, don’t know if Shea hit
him the first time, Shea hit him third, don’t know if Shea Modiri hit him in the exact
place as open wound before. What we do know, that he hit him over the head with the
bottle or two or three times. We know that because Leslie LaBarbera told us that.
And again, kind of hard to discredit Miss LaBarbera. Again, she has known Mr.
Modiri a lot longer. There is no history, there is no bad blood between the two of
them.”
The jury instructions described the assault count as “an assault upon the person
of Ryan Schon with a deadly weapon and instrument other than a firearm, a bottle, and
by means of force likely to produce great bodily injury.”
The jury was instructed with CALJIC 17.20 on the personal infliction of GBI
allegation and, separately, on the personal use of a dangerous or deadly weapon
allegation. “If you find the defendant guilty of either Count 1 and/or Count 2 as
charged, you must determine that defendant personally inflicted great bodily harm on
Ryan Schon in the commission or attempted commission of the crime. [¶] ‘Great
bodily injury’ as used in the 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 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
9
apply unlawful physical force upon the victim and the defendant 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. [¶] Include a special finding on that question in your verdict, using a
form that will be supplied for that purpose. [¶] It is alleged in Count 2 that in the
commission or attempted commission of the crime charged, the defendants personally
used a deadly or dangerous weapon. [¶] If you find a defendant guilty of the crime
thus charged, you must determine whether the defendant personally used a dangerous
or deadly weapon in the commission or attempted commission of the crimes. [¶] ‘A
deadly or dangerous weapon’ means any weapon, instrument or object that is capable
of being used to inflict great body [sic] injury or death. [¶] The term ‘personally used
a deadly or dangerous weapon’ as used in this instruction means the defendant must
have intentionally displayed a weapon in a menacing manner or intentionally fired it or
intentionally struck or hit a human being with it. [¶] The People have the burden of
proving the truth of this allegation.” Defendant’s trial counsel did not object to these
instructions.
The jury deliberated for about two and a half days. Halfway through the jury’s
second full day of deliberations, it submitted two separate inquiries. The court met
with counsel that afternoon, and the court then responded to the jury’s inquiries during
an unreported session. The first inquiry read: “Our question regards Cal JIC 17.20
[¶] We understand that we are judging the facts/evidence for each defendant
separately. Does any level of participation in the group directly doing the assault
constitute personal use of physical force. (This is asking for clarification of
‘Personal’) [¶] If the defendant was found to be in the core of individuals inflicting
the beating regardless of there being proof as to whether or not they personally used
physical force . . . [¶] Can they be found guilty of [¶] Count 1 - yes or no [¶] and/or
10
[¶] Count 2 - yes or no.” The court’s response to this inquiry was “you were to look
at CALJIC 3.00 and CALJIC 3.01 with regard to the charges that are alleged in Counts
1 and 2 and lesser charge you are to look at CALJIC 17.20 with regard to the
enhancement or allegation.”
The second inquiry read: “Our question regards Cal JIC 3.00 and 3.01 [¶] We
understand that we are judging the facts/evidence for each defendant seperately [sic].
Does ‘Aids and Abets’ only apply to the lessor [sic] charge of (Simple Assault) or
does it also apply to ‘uses physical force’ element in the greater charge (Assault with a
deadly weapon or by means of force likely to produce great bodily injury).” The
court’s response to this inquiry was “aiding and abetting also applies to the greater
charges.” The jury returned its verdicts the next morning.
Defendant was acquitted of battery with serious bodily injury but convicted of
the lesser included offense of simple misdemeanor battery.14 He was convicted of the
aggravated assault count and both the personal use of a deadly or dangerous weapon
and the personal infliction of GBI allegations were found true. Defendant’s request
that the court strike the GBI and personal use allegations was denied, and the court
refused to reduce the assault conviction to a misdemeanor. The court suspended
imposition of sentence. It placed defendant on probation for three years conditioned
on his serving nine months in jail. Defendant filed a timely notice of appeal.
II. Analysis
Defendant does not challenge his convictions on appeal. His appellate
contentions concern only the allegations that he personally inflicted GBI and
personally used a deadly or dangerous weapon. His primary challenge is to the
14
Hitt was convicted of the lesser included offense of simple assault and acquitted of
battery. The jury apparently disbelieved both Rose’s testimony and Hitt’s statement to
the police.
11
validity of the “group beating” language is currently part of CALJIC 17.20. He claims
that this instruction “lowered the prosecution’s burden of proof” by failing to require
the jury to find that he personally inflicted the injury. Defendant maintains that this
error was “structural” and therefore reversible per se. Alternatively, he asserts that this
error violated his federal constitutional right to a jury trial and therefore must be
reviewed under the “harmless beyond a reasonable doubt” standard. Defendant also
contends that the trial court reversibly erred in its response to the jury’s inquiry
regarding the “group beating” language in the instruction. Finally, he argues that the
“group beating” language in the court’s instruction on the personal infliction of GBI
allegation prejudicially infected the court’s proper instructions on the personal use of a
deadly or dangerous weapon allegation.
The personal infliction of GBI allegation at issue here was that defendant’s
aggravated assault on Schon was a serious felony under Penal Code section 1192.7,
subdivision (c) because the assault was a “felony in which the defendant personally
inflicts great bodily injury on any person, other than an accomplice . . . .” (Pen. Code,
§ 192.7, subd. (c)(8).) This language is identical to that in Penal Code section
12022.7, which specifies that a three-year sentence enhancement is applicable where a
person “personally inflicts great bodily injury on any person other than an accomplice
in the commission of a felony or attempted felony . . . .” (Pen. Code, § 12022.7, subd.
(a).)
The “personally inflicts” language in Penal Code section 12022.7 was
construed by the California Supreme Court in 1982 in People v. Cole (1982) 31 Cal.3d
568. During a burglary and robbery, Cole ordered his accomplice to kill the victim.
Cole did not strike the victim, but he pointed an unloaded rifle at the victim and
blocked the victim’s escape while his accomplice repeatedly struck the victim. (Cole
at p. 571.) Cole challenged the enhancement of his sentence under Penal Code section
12022.7. (Cole at p. 572.) The California Supreme Court found the “personally
12
inflicts” statutory language clear and unambiguous. (Cole at p. 572.) “No other
expression could have more clearly and concisely expressed what we interpret to be
the plain meaning of the Legislature: that the individual accused of inflicting great
bodily injury must be the person who directly acted to cause the injury. The choice of
the word ‘personally’ necessarily excludes those who may have aided or abetted the
actor directly inflicting the injury.” (Cole at p. 572, emphasis added.) The court also
concluded that this interpretation was consistent with the statute’s aim of “deter[ring]
the infliction of great bodily injury.” (Cole at p. 572.) “A construction limiting its
scope to the person who himself inflicts the injury serves that purpose; each member of
a criminal undertaking will know that, regardless of the urgings of his confederates, if
he actually inflicts the injury he alone will pay the increased penalty.” (Cole at pp. 72573, emphasis added.)
Cole noted that People v. Collins (1975) 44 Cal.App.3d 617 and People v. Mills
(1977) 73 Cal.App.3d 539 were no longer good law because they were based on
predecessors to Penal Code section 12022.7 that did not contain the word “personally.”
In Collins, a bank robbery was committed by four masked men who were
indistinguishable to the witnesses. One of the four robbers shot a bank employee, and
the robbers also struck several persons with their pistols and a shotgun. Defendant,
one of the robbers, challenged the enhanced sentence imposed on him for intentionally
inflicting great bodily injury. The Collins court reasoned that “[s]eldom will a victim
be able to identify which of several masked robbers inflicted physical injury. A rigid
statutory demand for proof of personal assaultive action would permit each defendant
to use the other as a foil. The augmented penalty would be frustrated by impossibility
of proof.” (Collins at p. 623.) It held that the statute in question did not require that
the defendant “personally inflict” the injury. (Collins at p. 623.) In People v. Mills,
supra, 73 Cal.App.3d 539, the defendant and an accomplice attacked the victim and, at
defendant’s urging, his accomplice slashed the victim’s throat. Defendant’s sentence
13
was enhanced for his infliction of great bodily injury. It was upheld under the
authority of Collins. (Mills at pp. 541-544.)
Cole explicitly rejected the rationale of Collins and Mills. “Because [the statute
now] contain[s] the requirement that the defendant act ‘personally,’ the rationale of
Collins and Mills can no longer support the proposition that an aider and abettor who
does not personally inflict the great bodily injury can be held liable for the enhanced
penalty. Indeed, the legislative changes express an intent to reject enhancement
liability even in cases where the defendant directs the attack, or otherwise manifests
the specific intent to cause the injury.” (Cole at pp. 578-579.) “[I]n enacting section
12022.7, the Legislature intended the designation ‘personally’ to limit the category of
persons subject to the enhancement to those who directly perform the act that causes
the physical injury to the victim. The language of the statute is clear and
unambiguous, our reading neither frustrates its purpose nor does it lead to absurd
results.” (Cole at p. 579, emphasis added.)
In 1989, the Fourth District Court of Appeal, in People v. Corona (1989) 213
Cal.App.3d 589, rejected a challenge to the sufficiency of the evidence to support the
enhancement of Corona’s sentence under Penal Code section 12022.7. Corona and
two or three other men had attacked the victim. The victim “was hit, fell to the ground
and was hit and kicked repeatedly.” Corona was seen kicking the victim and throwing
unopened beer cans at him during the attack. The victim suffered numerous injuries,
primarily to his head, including cuts, bruises and a severely swollen jaw. (Corona at
pp. 591-592.) Corona testified that he had not been involved in the attack at all.
(Corona at p. 592.) He was convicted of assaulting the victim, and a Penal Code
section 12022.7 allegation was found true. (Corona at p. 593.)
The Fourth District acknowledged Cole but posited that Cole did not apply to a
“group pummelling.” (Corona at p. 594.) “While Cole has logical application with
regard to the section 12022.7 culpability of an aider and abettor who strikes no blow, it
14
makes no sense when applied to a group pummeling. Central to Cole is the conclusion
that the deterrent intent of section 12022.7 is served by directing its increased
punishment at the actor who ultimately inflicts the injury. Applying Cole uncritically
in the context of this case does not create a deterrent effect. Rather it would lead to the
insulation of individuals who engage in group beatings. Only 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. Thus, while it is
true the evidence fails to directly attribute any particular injury suffered by [the victim]
to any particular blow struck by [Corona], still, the blows were delivered, Corona
joined in that delivery and the victim suffered great bodily injury.” (Corona at
pp. 594-595, emphasis added.)
“We do not attempt to set forth a universally applicable test for when an
individual ceases to be an accomplice and becomes a direct participant to the infliction
of great bodily injury. We conclude only that when a defendant participates in a group
beating and when it is not possible to determine which assailant inflicted which
injuries, the defendant may be punished with a great bodily injury enhancement if his
conduct was of a nature that it could have caused the great bodily injury suffered. [¶]
As we have noted, the evidence was sufficient to convict Corona of the assault on
Golden. Moreover, the conduct of Corona during the attack was of a nature that it
could have resulted in the injuries inflicted. The evidence was therefore sufficient to
support the finding he inflicted great bodily injury.”15 (Corona at pp. 594-595.)
15
Corona was followed with the following analysis by the Second District in In re
Sergio R. (1991) 228 Cal.App.3d 588. “We hold that where, as here, more than one
assailant discharges a firearm into a group of people and ‘it is not possible to
determine which assailant inflicted which injuries, the defendant may be punished with
a great bodily injury enhancement if his conduct was of a nature that it could have
caused the great bodily injury suffered.’ (People v. Corona (1989) 213 Cal.App.3d
15
A decade after Corona, a new version of CALJIC 17.20 was devised that
purported to incorporate Corona’s holding into a jury instruction for use when there is
an allegation that a defendant personally inflicted great bodily injury. The issue before
us is whether the new language added to CALJIC 17.20 is consistent with the statutory
element limiting the scope of such an allegation to a defendant who “personally
inflicts” great bodily injury. We are necessarily bound by Cole’s interpretation of the
“personally inflicts” language in Penal Code section 12022.7. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455.) As the word “personally” was actually
added to Penal Code section 1192.7, subdivision (c)(8) in 1986, after Cole interpreted
the meaning of the “personally inflicts” language in Penal Code section 12022.7, Cole
governs not only an interpretation of the language in Penal Code section 12022.7 but
also the identical language in Penal Code section 1192.7, subdivision (c)(8).16 (Stats.
1986, ch. 489.)
The California Supreme Court held in Cole that the words “personally inflicts”
are clear and unambiguous and apply only to “a person who himself inflicts the
injury.” (Cole at p. 572, italics added.) The Fourth District reasoned in Corona that
proof that a defendant personally “joined” in the “delivery” of “blows” by a group of
attackers that caused great bodily injury to the victim could be sufficient to uphold a
jury’s true finding on a GBI enhancement allegation against a sufficiency of the
evidence challenge on appeal if it was “not possible to determine which assailant
589, 594.) It is beyond dispute that the discharge of a loaded 12-gauge shotgun by
Sergio into a crowd of people was the type of conduct which could have caused the
great bodily injury and death here which resulted from shotgun pellets.” (Sergio at pp.
601-602.)
16
Penal Code section 1192.7, subdivision (c)(8) had previously applied to “‘any other
felony in which the defendant inflicts great bodily injury on any person, other than an
accomplice.’” (See People v. Piper (1986) 42 Cal.3d 471, 476.)
16
inflicted which injuries” and the defendant’s “conduct was of a nature that it could
have caused the great bodily injury suffered.” (Corona at p. 594.)
Assuming arguendo that the Fourth District’s holding in Corona does not
violate Cole, it does not resolve the issue before us in this case. In Corona, the jury
had not been given any special instructions on the enhancement allegation that
permitted it to return a true finding on any basis other than a conclusion beyond a
reasonable doubt that Corona had personally inflicted great bodily injury on the
victim. The evidence demonstrated that Corona kicked the prone victim and threw full
beer cans at him. The victim suffered injuries that were wholly consistent with
Corona’s blows. Although there was at least one other participant in the beating, a
rational jury could have concluded beyond a reasonable doubt that Corona had
personally inflicted great bodily injury to the victim by his kicks and thrown cans.
Here, on the other hand, the question is whether a jury instruction that provided
two additional alternative bases for a true finding by the jury on the personal infliction
of great bodily injury allegation erroneously obviated the need for the jury to find
beyond a reasonable doubt that defendant personally inflicted great bodily injury on
Schon. The jury in Corona did not receive any instruction of this type. We proceed
then to consider whether the instruction is consistent with the statutory requirements.
The challenged portion of the instruction given by the trial court told the jury
that it could find the allegation that defendant had personally inflicted great bodily
injury true if (a) defendant “participate[d] in a group beating,” (b) “it is not possible to
determine which assailant inflicted a particular injury,” and (c) either (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) “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
17
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 first alternative basis for finding the allegation true tracks language in
Corona. The second alternative basis does not find any basis in the holding of Corona
and is not facially consistent with the statutory language of Penal Code section 1192.7,
subdivision (c)(8) requiring a finding that the defendant personally inflicted great
bodily injury. Neither Penal Code section 1192.7, subdivision (c)(8) nor Penal Code
section 12022.7 nor any other section of the Penal Code applicable to great bodily
injury allegations permits a knowledge finding to obviate the need for a finding that
defendant “himself inflict[ed] the injury.” (Cole at p. 572.) Instead, the “clear and
unambiguous” statutory language “limit[s] the category of persons subject to the
enhancement to those who directly perform the act that causes the physical injury to
the victim.” (Cole at p. 579, italics added.)
We encounter no difficulty in concluding that the second alternative basis in
CALJIC 17.20 is erroneous to the extent that it permits the jury to substitute a
knowledge finding for a finding that the defendant “directly perform[ed] the act that
cause[d] the physical injury to the victim” as required by the plain and unambiguous
language of the statute as construed by the California Supreme Court in Cole. (Cole at
p. 579.) Neither this court nor the CALJIC authors have the “power to rewrite the
statute so as to make it conform to a presumed intention which is not expressed. This
court [and the CALJIC authors are] limited to interpreting the statute, and such
interpretation must be based on the language used.” (Seaboard Acceptance Corp. v.
Shay (1931) 214 Cal. 361, 365.) “In interpreting statutes, we follow the Legislature’s
intent, as exhibited by the plain meaning of the actual words of the law, whatever may
be thought of the wisdom, expediency, or policy of the act.” (California Teachers
Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632.)
18
The authors of CALJIC instructions lack the authority of the Legislature or the
California Supreme Court.
There may well be good policy reasons for legislative action to enlarge the
scope of the statute so that it extends to a person who cannot be proven to have
personally inflicted great bodily injury but who knowingly joined in a group beating
that he or she should have known would result in great bodily injury. Nevertheless,
we lack the power to diverge from clear and unambiguous language used by the
Legislature in the statute and construed by the California Supreme Court in Cole in
order to achieve a policy objective that might otherwise be quite appropriate and
warranted.
We are mindful of the fact that the Fourth District has recently upheld the
validity of this instruction in People v. Banuelos (2003) 106 Cal.App.4th 1332.
However, Banuelos fails to address the portion of the instruction with which we find
fault, but instead relies solely on the validity of Corona. (Banuelos at pp. 1337-1338.)
As we have explained, the instruction is invalid even if Corona is correct because the
second alternative basis in the instruction finds no support in either the statute or
Corona. Therefore, we must respectfully disagree with Banuelos to the extent that it
upholds a version of CALJIC 17.20 that includes the second alternative basis that we
find invalid.
We next consider whether the trial court prejudicially erred in giving this faulty
instruction. “In deciding whether an instruction is erroneous, we ascertain at the
threshold what the relevant law provides. We next determine what meaning the charge
conveys in this regard. Here the question is, how would a reasonable juror understand
the instruction. In addressing this question, we consider the specific language under
challenge and, if necessary, the charge in its entirety. Finally, we determine whether
the instruction, so understood, states the applicable law correctly.” (People v. Warren
19
(1988) 45 Cal.3d 471, 487, internal citations omitted; accord People v. Kelly (1992) 1
Cal.4th 495, 525-526.)
The “relevant law” provides that a personal infliction of GBI allegation may not
be found true unless the defendant personally inflicted great bodily injury on the
victim. The instruction given by the trial court obviated any need for the jury to make
such a finding by providing a legally erroneous alternative basis (the second
alternative basis) for a true finding. A reasonable juror would have readily understood
from the court’s instruction that it was not necessary to a true finding that the
defendant personally inflicted the injury if the jury utilized the second alternative basis
in CALJIC 17.20. By eliminating the need for a jury finding on the statutorily
required elements of the allegation, the instruction misstated the law and therefore was
erroneous. When a jury is instructed on alternate theories, one of which is legally
inadequate, reversal is required unless the record reflects that the jury’s finding was
not based on the legally invalid theory. (People v. Guiton (1993) 4 Cal.4th 1116,
1128-1130.)
Nothing in the record before us indicates that the jury’s true finding was not
based on the legally invalid second alternative basis theory. The appropriate standard
of review here is that appropriate to a state law error. “[A] trial court’s failure to
instruct the jury on an element of a sentence enhancement provision (other than one
based on a prior conviction), is federal constitutional error if the provision ‘increases
the penalty for [the underlying] crime beyond the prescribed statutory maximum.’
Such error is reversible under Chapman, unless it can be shown ‘beyond a reasonable
doubt’ that the error did not contribute to the jury’s verdict.” (People v. Sengpadychith
(2001) 26 Cal.4th 316, 325-326, citations omitted.) Here, the personal infliction of
GBI allegation was not alleged as an enhancement under Penal Code section 12022.7
and therefore did not increase the penalty for the underlying aggravated assault count.
Consequently, any instructional error was not of federal constitutional dimension and
20
merits reversal only if it is reasonably probable that a result more favorable to
defendant would have resulted in the absence of error. (Sengpadychith at p. 326;
People v. Watson (1956) 46 Cal.2d 818, 836.)
The Attorney General does not argue that the instructional error was harmless.
It was clearly prejudicial. It was undisputed that defendant punched Schon in the side
of his face, but it was equally undisputed that this blow did not result in the cuts and
broken nose that constituted great bodily injury. The only evidence that defendant was
responsible for these injuries was LaBarbera’s testimony that, shortly after the
altercation, defendant said that he had broken a couple of bottles over Schon’s head
and Jorgenson’s testimony that defendant had a bottle in his hand at the end of the
altercation. Defendant testified that he had not hit Schon with a bottle and had not
made any such statement.
The resolution of this credibility contest was not so clear that it is not
reasonably probable that a juror would entertain a reasonable doubt about defendant’s
personal involvement in the causation of the injury yet rely on the second alternative
basis as the basis for finding that defendant knew that others would cause Schon great
bodily injury when he initiated the altercation. The trial court’s erroneous instruction
regarding the second alternative basis obviated the need for the jury to resolve this
credibility contest, and the prosecutor’s argument reinforced the erroneous instruction.
Indeed, the jury verdicts as a whole suggested that the jury substantially credited
defendant’s testimony. Defendant admitted punching Schon and throwing a full beer
bottle at him that did not hit him. The jury found that defendant had committed simple
battery (the punch) and aggravated assault (throwing the beer bottle). It also
concluded that defendant had personally used a bottle in the commission of the assault.
Since defendant had admitted personally throwing a bottle at (but missing) Schon, the
21
jury’s finding on this point was obviously supported by defendant’s testimony.17 The
erroneous instruction on the second alternative basis permitted the jury to improperly
base its true finding on the personal infliction of GBI allegation on evidence that
defendant knew that the altercation would cause Schon great bodily injury.
Consequently, we must reverse the judgment and remand for retrial of the
personal infliction of GBI allegation. This disposition obviates the need to consider
defendant’s contention that the trial court erred in responding to the jury’s inquiry.
III. Disposition
The judgment is reversed, and the matter is remanded for retrial of the personal
infliction of great bodily injury allegation.
_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Bamattre-Manoukian, Acting P.J.
_____________________________
Wunderlich, J.
17
For this reason, we cannot accept defendant’s contention that the erroneous
instruction infected the personal use finding. Both the prosecutor’s argument and the
trial court’s instructions noted that the personal use allegation required a finding that
defendant had actually personally used a bottle. He indisputably did so. The
erroneous instruction does not necessitate a retrial of the personal use allegation.
22
Trial Court:
Santa Clara County Superior Court
Trial Judge:
Honorable Alfonso Fernandez
Attorney for Appellant:
Candace Hale
Under Appointment by the Sixth District
Appellate Program
Attorneys for Respondent:
Bill Lockyer
Attorney General
Robert R. Anderson
Chief Assistant Attorney General
Ronald A. Bass
Senior Assistant Attorney General
Rene A. Chacon
Supervising Deputy Attorney General
Laurence K. Sullivan
Supervising Deputy Attorney General
23
