I respectfully dissent from the majority’s finding that the improper instruction which removed from the jury the question of whether appellants had the intent to inflict great bodily injury was harmless error on the ground that the facts of this case establish such intent as a matter of law. I also disagree with the majority’s conclusion that the trial court did not have a sua sponte duty to instruct on voluntary intoxication concerning specific intent to inflict great bodily injury with respect to appellant Simpson. Further, I disagree with the majority’s final conclusion that an instruction on the lesser related offense of battery was inconsistent with appellant Simpson’s theory in this case.
I
The majority correctly states, “Under People v. Garcia (1984) 36 Cal.3d 539, 554-555 [205 Cal.Rptr. 265, 684 P.2d 826], . . . instructions which deny a defendant his right to have the jury decide each element of a charged offense is reversible error. However, Garcia’s rule of per se reversal is subject to certain limited exceptions.” (Majority opn., pp. 1367-1368.) I feel *1372that the key words in the quoted statement are “limited exceptions.” (Majority opn., p. 1368.) Although the majority gives lip service to the fact that the Garcia exceptions are limited, the majority does not apply the applicable exception in a limited manner, but rather applies the exception in a very broad manner which includes a weighing of the evidence that was never contemplated by the applicable exception.
The majority applies the “so-called Cantrell-Thornton exception” which provides that where the parties recognized that intent was an issue, presented all evidence at their command on that issue, and the record not only establishes the necessary intent as a matter of law but shows the contrary evidence was not worthy of consideration, the conviction may be affirmed. (People v. Garcia, supra, at p.556, citing People v. Thornton (1974) 11 Cal.3d 738 [114 Cal.Rptr. 467, 523 P.2d 267], and People v. Cantrell (1973) 8 Cal.3d 672 [105 Cal.Rptr. 792, 504 P.2d 1256].)
As to the first element of the exception upon which it relies the majority states, “Intent to inflict great bodily injury was certainly recognized as an issue in the case and the parties did not withhold evidence pertinent to that issue.” (Majority opn., p. 1368.) This is a conclusionary statement and one not supported by the record. Indeed, the record, notably appellants’ attorneys’ closing argument, shows that neither counsel recognized that intent to inflict great bodily injury was an issue in the case. Before appellants’ attorneys made their closing argument, the court and counsels discussed the proposed jury instructions in chambers, where the court presumably ruled that a Bass (People v. Bass (1983) 147 Cal.App.3d 448 [195 Cal.Rptr. 153]) instruction would be given. Not surprisingly then, neither counsel argued lack of intent during closing argument. Counsel for Simpson argued that the question to be resolved by the jury was whether Simpson had gone too far to be entitled to the use of the defense of self-defense since he had kicked the victim after he was on the ground and not fighting. Counsel for Simpson argued that the jury should consider the fact that Simpson was intoxicated at the time, although he stated that intoxication was not a defense.1 It does not appear that counsel for Simpson recognized or at least did not argue to the jury that whether Simpson had the specific intent to inflict great bodily injury was an issue for the jury to resolve taking into consideration voluntary intoxication.
The second requirement of the Cantrell-Thornton exception is that the parties presented all evidence at their command on the issue. The record contains little evidence regarding the questions of appellants’ intents. In*1373deed, the record is silent on Williams’s intent. It cannot be said that the parties presented all evidence at their command on the issue. Under this circumstance, an appellate court cannot with certainty conclude that the evidence established intent as a matter of law.
The third element of the exception—that the record establishes intent as a matter of law without contrary evidence worthy of consideration—is also not satisfied here. In support of its argument on this point, the majority focuses on the evidence presented by the prosecution rather than the evidence presented by the defense. The majority discusses the evidence that clearly demonstrates that Norman suffered great bodily injury and states such evidence contributes “heavily to our conclusion that specific intent to inflict great bodily injury is established as a matter of law.” (Majority opn., p. 1368.) I do not dispute that in fact Norman did suffer great bodily injury, but I do dispute that this shows as a matter of law that appellants inflicted great bodily injury with the intent to inflict great bodily injury. For example, if two individuals are involved in a fight on the roof of a third-floor building and one exceeds the bounds of self-defense and inadvertently causes the other to fall to the ground, in all likelihood the person who falls to the ground will suffer great bodily injury, although the other person had no intent to cause great bodily injury. Severe injury does not necessarily establish that such injury was intentionally inflicted. It was Simpson’s testimony that he was acting in self-defense in warding off Norman’s attack, but that he kicked Norman several times after Norman was on the ground because “I just got caught up in the fight.” Simpson admitted that at this point Norman was not still engaged in fighting.
The majority also points to the testimony of the two eyewitnesses who observed Simpson kicking Norman while he was on the ground as well as Williams’s punches to his face. After discussing the injuries suffered by Norman and the testimony of the two eyewitnesses, the majority concludes “Simpson plainly admitted having a full cast on his leg and kicking Norman several times while he lay on the ground. We fail to see how the facts of this case establish anything less than intent to inflict great bodily injury as a matter of law.” (Majority opn., p. 1368.)
In my opinion the majority in reaching such a conclusion has done so by weighing the evidence in a manner not contemplated by Garcia. The majority has not considered the evidence presented by the defense. As noted earlier in this dissent and as set forth by the majority the “so-called Cantrell-Thornton exception” requires the record not only establish the necessary intent as a matter of law but shows the contrary evidence was not *1374worthy of consideration. There was evidence that both appellants were intoxicated at the time of the incident. Although Simpson’s own testimony may negate a self-defense theory because he kicked Norman after his right to self-defense had ceased, his testimony that he continued to kick Norman simply because he “got caught up in the fight” is consistent with a finding that he did not have the specific intent to inflict great bodily injury and is consistent with the evidence presented by the eyewitnesses. Therefore, as to Simpson I cannot say that the contrary evidence is not worthy of consideration.
As to Williams the majority states, “Williams’s denial of ever touching Norman’s body was plainly not worthy of consideration as demonstrated by the jury’s rejection of his story and conviction on the assault charge.” (Majority opn., p. 1368.) This conclusion overlooks the other requirements under the Cantrell-Thornton exception stated in Garcia which must apply to hold a failure of a jury to decide each element of the crime not be reversible per se. It cannot be said that the parties recognized that the specific intent to inflict great bodily injury was necessary for a finding of an enhancement under section 12022.7. This must be considered in light of the trial court’s instructions over the objections of attorneys for appellants. It cannot be said that the parties presented all evidence at their command on the issue. In addition, the record does not establish as a matter of law the necessary intent since it is silent on this matter. The fact that the jury rejected Williams’s defense that he did not participate in the incident does not mean that the jury must also have found that he had the specific intent to inflict great bodily injury. The function of this court is to determine if the record establishes as a matter of law that he possessed such an intent and the parties recognized specific intent to inflict great bodily injury was an issue to be considered. The court in Garcia demonstrated the limited nature of the Cantrell-Thornton exception with the following footnote: “We note, for example, that the issue of intent [to kill] may arise in connection with a prosecution attempt to prove first degree murder without reliance on the felony-murder rule, in connection with some special circumstance which expressly requires intent to kill, or at the penalty phase where lack of intent would be a mitigating factor.” (People v. Garcia, supra, 36 Cal.3d at p. 556, fn. 12.)
II
I disagree with the majority’s conclusion that the trial court did not have a sua sponte duty to instruct on voluntary intoxication as to Simpson. The majority is clearly wrong when it states there “is no suggestion in the record that Simpson was so intoxicated that he could not entertain a specific intent *1375to inflict great bodily injury” and “the record does not demonstrate substantial evidence supportive of the voluntary intoxication defense as to Simpson.” (Majority opn., p. 1370.) Before reaching such erroneous conclusions, the majority does recognize that a jury may consider voluntary intoxication where the crime charged or enhancement alleged requires a specific intent and the section 12022.7 enhancement plainly requires specific intent to inflict great bodily injury.
There is no question that appellants had been drinking and were intoxicated at the time of the incident. Simpson testified “I wasn’t completely blacked out but I was pretty drunk at the time.” Simpson’s only justification for kicking Norman after he was on the ground defenseless was “I just got caught up in the fight.” Intoxication is not inconsistent with Simpson’s theory of the case. As noted above counsel for Simpson argued that the jury should consider the fact that Simpson was intoxicated at the time, although he stated that intoxication was not a defense. What counsel failed to argue was that intoxication can be considered in determining whether a defendant formed the specific intent necessary for the enhancement. Be that as it may, intoxication was not inconsistent with his defense. The trial counsel’s failure to argue the importance of voluntary intoxication to the jury regarding the section 12022.7 enhancement may be explained by the instruction the trial court decided to give with regard to the enhancement which, as the majority admits, did not require specific intent to inflict great bodily injury.
The majority in resolving this issue goes beyond what an appellate court is to consider in determining whether such an instruction is proper. The majority has acted as if it were the jury; it has weighed the evidence of Simpson’s intoxication as it relates to specific intent and concluded that the lack of intoxication evidence is more substantial than the evidence of intoxication. Clearly, this is not the test on appeal and not an appellate function.
Another question presented is whether appellant Williams was entitled to a sua sponte instruction on voluntary intoxication since voluntary intoxication is irrelevant to his defense of nonparticipation. (People v. Sanchez (1982) 131 Cal.App.3d 718, 735 [182 Cal.Rptr. 671].) However, since the enhancement pursuant to Penal Code section 12022.7 must be reversed under part I of this dissent, appellant Williams should at any retrial be entitled to an instruction on the effect of voluntary intoxication as it relates to the section 12022.7 enhancement and any defense he may raise on retrial.
*1376III
At trial both appellants requested an instruction on battery as a lesser related offense, which the trial court refused. As noted by the majority, the court did give an instruction on simple assault as a lesser included offense.
In People v. Geiger (1984) 35 Cal.3d 510 [199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055], the California Supreme Court held that a defendant is entitled to an instruction on a lesser related offense provided (1) there is some basis, other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged; (2) the lesser offense is closely related to the charged offense; and (3) the instruction must be justified by the defendant’s reliance on a theory of defense that would be consistent with a conviction for a related offense. (Id., at p. 531.) In regard to the third criteria the instruction need not be given if the defense theory is a complete denial of culpability. (Ibid.)
Since appellant Williams’s defense was one of complete denial, under Geiger he was not entitled to an instruction on the lesser related offense of battery. The issue is not as simply resolved as to appellant Simpson. The majority dismisses this contention as to appellant Simpson as it has done throughout its opinion on the ground that Simpson’s defense of self-defense would “have supplied a legal justification for the use of force, albeit no more force than was reasonably necessary for Simpson to defend himself.” (Majority opn., p. 1371.) Such analysis as to appellant Simpson is an oversimplification of his theories of the case. Although appellant Simpson did present a defense of self-defense, he did so with reservation given his own testimony that he kicked Norman when he was on the ground defenseless and clearly after his right to self-defense had ceased. Therefore, contrary to the majority’s conclusion on this point, one of appellant Simpson’s theories of the case would have supported a finding that unlawful force was used, but that such force was of a lesser degree than that charged. Although it is clear that appellant Simpson inflicted great bodily injury upon Norman, it is not inconsistent with his testimony that said great bodily injury was inflicted when he was still acting within the bounds of his right to self-defense.
In conclusion I would reverse the enhancement under Penal Code section 12022.7 as to both appellants because the failure to instruct the jury that such an enhancement requires the infliction of great bodily injury with the intent to inflict said great bodily injury removed from the jury an element of the enhancement allegation. The Cantrell-Thornton exception to Garcia's rule of per se reversal is not applicable to the instant case as discussed *1377above. The enhancement under Penal Code section 12022.7 must be reversed as to appellant Simpson on the additional ground that the trial court failed to give a sua sponte instruction on the effect of voluntary intoxication on the specific intent required for an enhancement finding under Penal Code section 12022.7. I would also reverse appellant Simpson’s conviction of Penal Code section 245, subdivision (a)(1), on the ground that he was entitled to instructions on the lesser related offense of battery.
A petition for a rehearing was denied July 23, 1987, and the petition of appellant Simpson for review by the Supreme Court was denied October 22, 1987.
As noted in the majority opinion and later in this dissent, voluntary intoxication may negate the specific intent required for a crime or enhancement. Thus, voluntary intoxication was indeed relevant to the section 12022.7 enhancement.