People v. Escobar

MOSK, J.

I concur in the judgment. The Court of Appeal did indeed err in holding the evidence insufficient to support the jury’s finding that defendant inflicted “great bodily injury” on the victim within the meaning of Penal Code section 12022.7. Its judgment in that part must accordingly be reversed.

I write separately, however, because I see no reason to reconsider, less still to disapprove, any aspect of our decision in People v. Caudillo (1978) 21 Cal.3d 562 [580 P.2d 274].

I

Penal Code section 12022.7 provides in its entirety as follows.

“Any person who, with the intent to inflict such injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of three years, unless infliction of great bodily injury is an element of the offense of which he is convicted.

“As used in this section, great bodily injury means a significant or substantial physical injury.

“This section shall not apply to murder or manslaughter or a violation of [Penal Code] Section 451 or 452. The additional term provided in this section shall not be imposed unless the fact of great bodily injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact.” (Italics added.)

In Caudillo, we observed that “the Legislature [had] addressed itself to the problem of defining what constitutes ‘great bodily injury.’ As part of the Uniform Determinate Sentencing Act of 1976, made to become effective *754July 1, 1977, section 12022.7 was added to the Penal Code. Section 12022.7 supplants the specific great-bodily-injury provisions of Penal Code sections 213, 264 and 461 with their great-bodily-injury enhancement provisions, and is made applicable to all felonies which do not necessarily involve such injury. Under the statutory scheme of section 12022.7, as originally enacted in 1976, the level of injury necessary to trigger the additional penalty of three years in prison was spelled out in some detail: ‘As used in this section, “great bodily injury” means a serious impairment of physical condition, which includes any of the following: [f] (a) Prolonged loss of consciousness, ffl] (b) Severe concussion. [][] (c) Protracted loss of any bodily member or organ. [*][] (d) Protracted impairment of function of any bodily member or organ or bone. [1] (e) A wound or wounds requiring extensive suturing. [1] (f) Serious disfigurement, [f] (g) Severe physical pain inflicted by torture.’

“Penal Code section 12022.7 was amended in 1977 to strike out the detailed definition of ‘great bodily injury’ and substitute the following definition: ‘As used in this section, great bodily injury means a significant or substantial physical injury.’ (Italics added.)

“Thus it may be seen that the Legislature, while changing its mind with respect to a detailed definition of ‘great bodily injury’ before that definition became effective, has now adopted a definition of ‘great bodily injury’ that requires that the injury constitute a ‘significant or substantial physical injury,’ the definition approved in [People v.] Wells [(1971) 14 Cal.App.3d 348 (92 Cal.Rptr. 191)] and [People v.] Richardson [(1972) 23 Cal.App.3d 403 (100 Cal.Rptr. 251)].” (People v. Caudillo, supra, 21 Cal.3d at pp. 580-581, citations and fn. omitted.)

In Caudillo, we examined Wells and Richardson: “Noting that a burglary is escalated from the second to the first degree when it involves an assault upon an occupant of the premises, the [Wells] court reasoned that the great-bodily-injury provision ‘was designed to impose a higher punishment on the perpetrator if he inflicts injuries more serious than those incurred in a simple assault.’

“The Wells court approved an instruction which advised the jury that great bodily injury ‘refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury,’ and held that evidence that the victim had been knocked unconscious and had suffered numerous cuts, with scars still evident at time of trial, and intense headaches for several days, was sufficient to support such a finding.

“In [Richardson], the court construed the great-bodily-injury provision of Penal Code section 213 (robbery). Reviewing the instruction approved in *755Wells, the court stated that ‘[i]t seems that it would be correct to exclude “moderate harm” as well.’ ” (People v. Caudillo, supra, 21 Cal.3d at pp. 578-579, citation and fn. omitted.)

In Caudillo, we concluded: “Th[e] definition of great bodily injury” adopted by the Legislature in Penal Code section 12022.7 “requires that the injury constitute a ‘significant or substantial physical injury,’ the definition approved in Wells and Richardson. This definition of great bodily injury uses the exact language found in CALJIC Instruction No. 17.20 (1973 Revision) .... In the CALJIC authors’ Comment to Instruction No. 17.20, reference is made to Wells and Richardson as authority to support the instruction. It is apparent, therefore, that the 1977 amendment to Penal Code section 12022.7 was not intended to lessen the magnitude of bodily injury required by the 1976 detailed definition of great bodily injury. Rather, it appears that the 1977 amendment to Penal Code section 12022.7 was designed to preclude the possibility that the 1976 detailed definition of great bodily injury be construed as all inclusive, leaving no latitude to the trier of fact to find a bodily injury of equal magnitude to the categories specified in the detailed definition but not coming literally within any category set forth therein.” (People v. Caudillo, supra, 21 Cal.3d at pp. 581-582, fn. omitted.)

II

I now turn to the case at bar. In my view, the evidence is indeed sufficient to support the finding that defendant inflicted “great bodily injury” on the victim within the meaning of Penal Code section 12022.7, and the Court of Appeal erred in concluding to the contrary.

There is much evidence bearing on the harm defendant did to the victim. His attack was unquestionably brutal. For purposes here, I need note only that there was testimony to the effect that a full six days after the incident, the victim could not walk without a very heavy limp and required the assistance of persons at each side to hold her arms as she took her steps. True, a causal link between defendant’s acts and the victim’s condition is not proved by direct evidence. But it does indeed arise as a reasonable inference from the facts in their entirety.

Viewing the evidence, as I must, in the light most favorable to the People, I believe that a rational trier of fact could certainly have found beyond a reasonable doubt that the victim suffered a “physical injury” that was both “significant” and “substantial” within the meaning of Penal Code section 12022.7. Indeed, such a trier of fact could have determined to the requisite degree of certainty that the victim—in the provision’s original wording— *756experienced a “serious impairment of physical condition,” specifically, “[p]retracted impairment of function of’ her legs.

Ill

As the law manifestly requires, the majority recognize, and correct, the Court of Appeal’s error. In their result, I follow.

But then, inexplicably, the majority proceed to reconsider and disapprove Caudillo to some uncertain extent. With their analysis, I cannot agree.

There is no reason to reconsider Caudillo. The case was decided 14 years ago. Up until today, it has not met with any criticism in any published judicial decision. I note that accompanying the opinion of the court in Caudillo are two separate opinions. Neither disagreed with the court’s interpretation of Penal Code section 12022.7, including the definition of “great bodily injury.” Nor has the Legislature. Plainly, it has had the opportunity to do so if it wished. It has had the time. As noted, 14 years have passed since the decision was handed down. It has also had the occasion. Twice during that 14-year period, it amended the statutory provision. (Stats. 1978, ch. 579, § 40, pp. 1996-1997; Stats. 1979, ch. 145, § 17, p. 341.) Each time, it declined to modify the definition. Indeed, each time it reenacted the language in ipsissimis verbis. There can be no more convincing indication of legislative acquiescence. The majority attempt to deny the fact of reenactment by citing a mere rule of statutory construction. Their attempt is patently unsuccessful.

If there is no reason for reconsideration of Caudillo, there is less reason still for disapproval.

Caudillo’s discussion of Penal Code section 12022.7, which is quoted at length above, is manifestly broad and detailed. It fully described the Legislature’s amendment of the definition of “great bodily injury” from the original “serious impairment of physical condition” with certain examples to the current “significant or substantial physical injury.” That it did not note that the amendment proceeded through a stage at which the definition was “serious impairment of physical condition” without the examples does not in any way undermine its analysis.

One question is simple and trivial. Did the Legislature intend to change the words of the definition of “great bodily injury” when it made its amendment? The answer is indisputably yes.

Caudillo expressly recognized the point. The majority make a suggestion to the contrary. They are not persuasive.

*757Another question is more difficult and significant. Did the Legislature intend to change the substance of the definition? The answer is apparently no. True, it removed the phrase, “serious impairment of physical condition.” But in its place, it inserted, “significant or substantial physical injury”— which it impliedly defined through the words of the 1973 revision of CALJIC No. 17.20 as excluding not only “trivial or insignificant injury” but even “moderate harm.” As noted, Wells and Richardson are the sources of the current definition. Their facts disclose its meaning. The Wells court upheld a great-bodily-injury finding on evidence that the victim suffered numerous cuts and bruises on her head, face, and arms; was knocked unconscious; experienced severe headaches for several days; and carried scars at least until the time of trial. (People v. Wells, supra, 14 Cal.App.3d at pp. 352-353, 356-360.) By contrast, the Richardson court held that a similar finding was not sustainable even though there was evidence that the victim suffered a single “terrific” blow on her back and neck that may have knocked her unconscious. (People v. Richardson, supra, 23 Cal.App.3d at pp. 409-410.)

Caudillo concluded that the Legislature’s amendment of the definition of “great bodily injury” “was not intended to lessen the magnitude of bodily injury [it had originally] required . . . .” (People v. Caudillo, supra, 21 Cal.3d at p. 582.) The majority assert that this holding was plain error. They apparently assume that “significant or substantial physical injury” is not as great as “serious impairment of physical condition.” As shown above, that assumption is unfounded.

IV

In conclusion, although the majority are wrong to reconsider and disapprove Caudillo, they are right to conclude that the Court of Appeal erred by striking the great-bodily-injury finding. Therefore, I concur in the judgment.