P. v. Chi

Filed 2/5/04 P. v. Chi CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for
publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H024508
Plaintiff and Respondent, (Santa Clara County
Superior Court
v. No. CC116539)
NHAN VINH CHI,
Defendant and Appellant.
_____________________________________/
Defendant was convicted by jury trial of aggravated assault (Pen. Code, § 245,
subd. (a)(1)), and the jury found true allegations that he had personally used a
dangerous or deadly weapon (Pen. Code, §§ 667, 1192.7, subd. (c)(23)) and personally
inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) on the victim of the
assault. The jury also found true an allegation that defendant had committed the
assault while out of custody on bail (Pen. Code, § 12022.1). On appeal, defendant
claims that the trial court prejudicially erred in denying his motion to suppress his
statements to the police. He also asserts that the court’s instruction of the jury with the
“group beating” portion of CALJIC 17.20 was prejudicial error. We conclude that the
court did not err in denying the suppression motion, but we find that the instruction of
the jury with the group beating portion of CALJIC 17.20 was prejudicial error.

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Consequently, we reverse and remand for possible retrial of the enhancement
allegation.
I. The Prosecution’s Case At Trial
On May 11, 2001, Kien To and a group of his friends went to the Thien Thanh
Café.1 To’s friends Hoang and Vu saw defendant with another male and a female at
another table. 2 Hoang believed that defendant and/or the other male had previously
assaulted him, and he threw a glass of coffee at their table. After the incident, a friend
told To that defendant’s name was “Nhan.”
On the evening of June 22, 2001, To, his girlfriend and his friend Tin Nguyen
went the Quynh Lam Café. The inside of the Quynh Lam Café was “pretty dark” and
“dimly lit” but not so dim that a person could not recognize another person from 15
feet away. As To pulled out a chair to sit down at a table, he saw defendant, who was
about 15 feet away, stand up and throw a glass of coffee at him. The glass hit To in
the forehead. To noticed that defendant was with several other people including Tuan.
Defendant’s companions also threw glasses toward To’s table, but none of these
glasses hit To. To left the café, and the police were summoned.
When the police arrived, they found To with a bloody face and a hysterical
Nguyen who “kept yelling, ‘They attacked us, they attacked us, they attacked us.’”
To, who did not speak English well, told the police that he had been hit by a glass, but
he was “uncooperative” and told them he did not know any of the people who had
thrown the cups at him. To also said he had never seen his attackers before and would
not recognize them if he saw them again. To suffered “deep cuts” to his head,
including one on his forehead, “kind of in the shape of a cup,” that required 23
1 To was 17 years old at the time of trial, 8 months after the incident.
2 Defendant was 23 years old at the time of the incident.

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stitches. To also had a black eye, bruising and some other small cuts. Medical
personnel reported that the wounds appeared to have been caused by a glass bottle.
On June 27, To told the police that the person who had hit him with a cup was
named “Nhan.” On July 2, To identified defendant in a photo lineup as the person
who had hit him with a glass. Defendant was arrested on July 17 and interviewed by
San Jose police officers Shawny Williams and Jason Ta. Most of the interview was
conducted in English, but some of it was conducted in Vietnamese. Defendant told
Williams and Ta that he had been at the Thien Thanh Café on May 11, and To had
been with some people who assaulted defendant. Defendant was injured by a cup
thrown by To’s companions. Defendant also told Williams and Ta that he wanted to
“take revenge” for that incident if he saw those individuals again. Ta falsely told
defendant that the police had a videotape of the June 22 incident. Defendant admitted
that he had been at the Quynh Lam Café on June 22 with his friends Meo and Tuan,
and he told them that he had thrown five or six cups during that incident after his
friends said that To and his male companion “are the guys.” Defendant repeatedly
insisted that he had not thrown the first cup.
II. Procedural Background
Defendant was charged by information with aggravated assault (Pen. Code,
§ 245, subd. (a)(1)), and it was further alleged that he had personally used a dangerous
or deadly weapon (Pen. Code, §§ 667, 1192.7, subd. (c)(23)) and personally inflicted
great bodily injury (Pen. Code, § 12022.7, subd. (a)) on To. The information also
alleged that defendant had committed the assault while out of custody on bail (Pen.
Code, § 12022.1).
Defendant made an in limine motion to suppress the statements he made to the
police during the July 17 interview on the grounds that the statements were
involuntary and he had not waived his constitutional rights. After an Evidence Code

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section 402 hearing, the court denied the motion. It expressly found that defendant
had been properly advised of his rights and had acknowledged them before being
interrogated. The jury found defendant guilty and found the allegations true.
Defendant was committed to state prison for a term of six years, composed of the
three-year midterm for the aggravated assault count and a three-year term for the
personal infliction of great bodily injury enhancement. He filed a timely notice of
appeal.
III. Discussion
A. Admission of Statements
Defendant claims that the trial court prejudicially erred in admitting his
statements during the July 17 interview because he had not validly waived his
Miranda3 rights.
1. Background
At the hearing on defendant’s motion to suppress the statements, Williams
testified that the July 17 interview took place after defendant’s arrest for a probation
violation. Williams asserted that defendant never had any difficulty understanding
what Williams was asking him in English and had no difficulty communicating with
Williams in English. Williams did not understand Vietnamese, but Ta spoke
Vietnamese.
An audiotape and transcript of the July 17 interview was introduced at the
hearing. The transcript reflects that the interview began with Williams advising
defendant of his constitutional rights. Williams first told defendant “what I wanna talk
to you about involves that, that coffee shop.” Defendant said “Yeah.” Williams said:
“Okay? But let me explain your rights to you before I ask you about it. You have the
3 Miranda v. Arizona (1966) 384 U.S. 436.

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right to remain silent, do you understand? You speak English, right?” Defendant
replied “Not very much, but . . . .” Williams then said “Do you understand what I’m
saying though?” Defendant said “Yeah.”4 Williams said: “Okay. Anything you say
can and will be used against you in a court of law. Do you understand? You have the
right to talk to a lawyer and have one present with you while you’re being questioned.
Do you understand?” Defendant said “Yeah.” Williams said: “If you can’t afford to
hire a lawyer, one will be appointed to represent you at no expense. Do you
understand?” Defendant said “Yeah.” Williams said “Do, okay, do you understand
each of those rights? Okay, you, that’s a yes? You’re nodding your head.” Defendant
said “Yeah.” Williams said: “Okay. I know that you’re a victim, okay?” and then
questioned defendant extensively about the May 11 incident. Defendant responded to
all of Williams’s questions and told Williams that he and a female friend had been
struck and injured by cups or bottles during the May 11 incident. During this
interchange, defendant responded appropriately to Williams’s questions in English. Ta
also spoke to defendant in Vietnamese about the May 11 incident.
Eventually, Williams and Ta asked defendant about the June 22 incident. Much
of this interchange was between Ta and defendant in Vietnamese. Defendant told the
officers that there had been a fight and “cups were thrown.” Ta told defendant, in
English, “I need you to be honest about the fight, right? Who was involved in the
fight? I already know who was in the fight. You know why because there’s a
camera.” Defendant responded “Yeah.” Ta said: “It’s all on tape. Everything’s on
tape.” Defendant responded, in Vietnamese, “I know.” Ta then said “But on the tape
you see who throws the first cup. You see where the cup come from and you see
there’s four cups thrown.” Defendant fairly swiftly admitted that he had thrown five
or six cups, but he repeatedly insisted that he had not thrown the first cup. He claimed
4 At trial, defendant was provided with a Vietnamese interpreter.

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that someone behind him, possibly one of his friends, had thrown the first cup.
Defendant maintained that the subjects of the assault had thrown cups back at him and
his friends. Defendant admitted that he had wanted revenge against To for the earlier
incident.
At the conclusion of the hearing, defendant’s trial counsel asked the court to
exclude the statements “because my client was not given proper Miranda warnings and
we have some other problem as well.” The court excluded the tape and transcript of
the interview, but it allowed the prosecution to adduce testimony regarding
defendant’s admissions during the interview. The court expressly found that defendant
had been properly advised of his rights and had acknowledged them. Williams and Ta
testified at trial about defendant’s admissions during the interview.
2. Analysis
A waiver may be express or implied, and the prosecution bears the burden of
proving, by a preponderance of the evidence, that a knowing and voluntary waiver
occurred. (People v. Cortes (1999) 71 Cal.App.4th 62, 69; People v. Whitson (1998)
17 Cal.4th 229, 250.) “In determining whether a defendant waived his rights, the court
must consider the ‘totality of the circumstances surrounding the interrogation.’”
(Cortes at p. 69.) “First, the relinquishment of the right must have been voluntary in
the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception. Second, the waiver must have been made with a
full awareness of both the nature of the right being abandoned and the consequences of
the decision to abandon it. Only if the totality of the circumstances surrounding the
interrogation reveals both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the Miranda rights have been
waived.” (Cortes at pp. 69-70, citation and quotation marks omitted.) “On appeal, we
accept the trial court’s resolution of disputed facts and inferences, and its evaluation of
credibility, if supported by substantial evidence.” (Cortes at p. 70.) “Once the

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defendant has been informed of his rights, and indicates that he understands those
rights, it would seem that his choosing to speak and not requesting a lawyer is
sufficient evidence that he knows of his rights and chooses not to exercise them.”
(People v. Johnson (1969) 70 Cal.2d 541, 558.)
Defendant claims on appeal that the prosecution failed to prove that he was
aware of the nature of his rights and the consequences of waiving them. He points to
his statement that he did not understand “very much” English, Ta’s false statement that
he had a videotape of the June 22 incident and the fact that the advisements occurred at
the beginning of a lengthy interview that was at first concerned solely with an incident
in which defendant was an alleged victim. Defendant’s implied waiver of his rights,
evidenced by his willingness to answer questions about both incidents, occurred prior
to Ta’s false claim, so Ta’s deception could not have influenced defendant’s decision
to waive his rights. While defendant stated at the outset of the interview that he did
not know “very much” English, the transcript of the interview unambiguously displays
defendant’s ability to understand and communicate in English. Although it is true that
the discussion of the June 22 incident did not occur until after a lengthy discussion of
the May 11 incident, the record supports the trial court’s finding that defendant, who
had earlier acknowledged his understanding of his rights, remained aware of those
rights and nevertheless chose to speak with the officers about the June 22 incident.
We conclude that the totality of the circumstances indicates that defendant understood
the nature of his rights and the consequences of waiving them when he made the
statements to Williams and Ta that were admitted at trial. The trial court did not err in
admitting this evidence.

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B. “Group Beating” Instruction
Defendant contends that the trial court prejudicially erred in instructing the jury
with the “group beating” portion of CALJIC 17.20 as to the personal infliction of great
bodily injury allegation.
1. Background
The prosecutor told the jury during his opening argument that “guess what, to
find this guy guilty of 245 with personal use of a cup, you don’t have to have him
hitting him in the face. He has to be one of the individuals throwing the cup.” “Every
one of those persons has committed an assault with a deadly weapon. Anybody who
threw a cup at Mr. To, whether they hit him or not . . . .” The prosecutor also argued
that it was not necessary for there to be proof that defendant hit To with a glass to
permit the jury to find true the personal infliction of GBI allegation.
“Here’s the great thing about great bodily injury, because we get a lot of cases
like this, as you can imagine, where there are a lot of assailants assaulting one person
or two persons, and it’s very confusing sometimes. Not so much in this case because
we have eyewitness testimony that this is [the] individual that threw the cup. [¶] But
we have an exception of law that the Judge is going to instruct you on, and that’s in the
case of group beating situations when people assail people in groups like we have in
this case. . . . [¶] This is what it breaks down to. This is verbatim what the instruction
says, an instruction that you all have a duty to follow at this point of the trial.”
(Emphasis added.)
“‘When a person participates in a group beating and it is not possible to
determine which assailant inflicted a particular injury, the defendant may be found to
have personally inflicted upon the victim if’ -- now there are two exceptions here
because it’s an ‘or.’ It’s either this or that.” “‘The application of physical force upon
the victim was of such nature that by itself it could have caused the great bodily injury
suffered by the victim.’ [¶] What does that mean? Well, if you feel that by throwing

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five or six cups at Mr. To he could have caused great bodily injury, could have caused
great bodily injury, you can hold him responsible for the fact that he got great bodily
injury. [¶] Also, again, this is separate. So I think we’ve established that by throwing
five or six cups you can definitely create GBI on a person like we have in this case.”
“The other one is that at the time 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 on 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. [¶] What
does that mean? Well, at the time the defendant threw the five or six cups at the
victim, the defendant knew that the guys he was with were also attacking him. There
they are right. This is the way they work. They get them outnumbered and they attack
him, just like at the 5-11 episode. [¶] Did he reasonably know that the other people
were going to do the same thing? Of course he did. I think the evidence was that
somebody said, ‘There they are,’ based on a statement to Shawny Williams and Jason
Ta. And of course he knew they were going to throw cups too or whatever else, break
chairs up, throw objects, and the bottom line is whether the cumulative effect of that
assault was going to cause GBI, could you find him liable. [¶] I’m not telling you you
need to rely on this instruction because I think the evidence is pretty clear. . . . [¶]
. . . You don’t even need to get to this. [¶] But the defense is going to get up and
argue, [w]e don’t know for a fact or there may be question in your minds or there may
be reasonable doubt that he’s actually the one that threw the cup. Well, I don’t think
there is reasonable doubt. The evidence is pretty clear. The defendant’s statement
parallels. And the bottom line is you can fall back in this position, use this jury
instruction, and find him guilty and liable for the fact of the group beating, everyone is
throwing cups at him.” (Emphasis added.)

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At the end of his opening argument, the prosecutor repeated that the jury could
either find that defendant “hit him in the face with the cup . . . [o]r he was part of the
group under the group instruction . . . . Either way, he’s still liable for the great bodily
injury.”
The prosecutor returned to this issue in his closing argument. “Again, do we
have to show that to find him guilty of the great bodily injury under the 245 theory?
No. Because, like I talked about earlier, here’s the law. Group beatings. The defense
attorney is saying we don’t know who hit him in the face. My client threw five or six
cups, but we don’t know who hit him in the face. Great. Let’s accept that. . . . [¶]
Where it’s not possible to determine who inflicted a particular injury, you can still find
GBI if . . . the application of unlawful physical force upon the victim was of such
nature that by itself it could have caused great bodily injury suffered by the victim. [¶]
Five, six cups. Any one of those hit him in the face? Does it matter whether one of
them did? No. Because any one of them by themselves could have caused great
bodily injury, he’s liable for great bodily injury under the group beating instruction.
[¶] At the time 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
knew, or reasonably should have known, that the cumulative effect of all the unlawful
physical force would result in great bodily injury. And that’s the second theory you
can fall back on. Do we have the first? Of course we do. We have this one? Yeah,
we do too, because they’re going over to get this guy.” At the end of his closing
argument, the prosecutor reiterated his position. “He did it personally, he did it
himself. [¶] And I don’t believe you’re going to need to rely on the group beating
instruction, but it’s there for you if you need it. He’s liable either way. He’s guilty
either way.” (Emphasis added.)

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The jury was thereafter instructed with CALJIC 17.20 including the “group
beating” section of the instruction. “It is alleged in Count 1 that in the commission or
attempted commission of the crime therein described the defendant personally inflicted
great bodily injury on Kien To, not an accomplice to the crime. If you find defendant
guilty of that crime, you must determine whether the defendant personally inflicted
great bodily injury on Kien To, not an accomplice to the crime, in the commission or
attempted commission of that crime. [¶] ‘Great bodily injury’ as used in this
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 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 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 then 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.”
CALJIC 17.20 was on page 15 of the jury’s written instructions. The jury
deliberated for one hour at the end of the day on February 19. After another hour of
deliberations on the morning of February 20, the jury submitted a note reading:
“Members of the jury are unclear with the 2nd part of pg 15. Can we get the definition
on Penal Code sections 12022.7(a) and 1203(e)(3).” The court gave the following
response. “The second part of the instruction on page 15 says: ‘If you find defendant
guilty of that crime, you must determine whether defendant personally inflicted great

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bodily injury on Kien To, not an accomplice to the crime, in the commission or
attempted commission of that crime.’ [¶] Sections 12022.7(a) and 1203(e)(3) are
penal provisions, and you are reminded that you’re not to be concerned with penalty.
You’re limited to the factual determination of whether or not the defendant personally
inflicted great bodily injury on Kien To. [¶] Does that satisfy the requirement then?”
The jury foreman responded affirmatively but then asked “[s]o the jury instruction is
only on page 15. There is nothing else that we need to say?” The court responded:
“The jury instruction simply asks you to determine whether or not the defendant is
guilty of the crime and whether the defendant personally inflicted on Kien To. That is
your factual determination. If you find that factual determination, then what follows
from that is not your concern.” The jury foreperson said “Okay,” and the jury returned
to its deliberations. After an additional half hour of deliberations, the jury returned
with a guilty verdict and true findings on all of the allegations.
2. Analysis
Defendant claims that there is no authority for the “second prong” of the “group
beating” portion of CALJIC 17.20, and this portion of the instruction violated his right
to due process.
The personal infliction of great bodily injury (GBI) allegation at issue here was
alleged as an enhancement allegation under 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

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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
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. 572-573, 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,

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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
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.)

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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
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

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could have resulted in the injuries inflicted. The evidence was therefore sufficient to
support the finding he inflicted great bodily injury.”5 (Corona at pp. 594-595.)
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 GBI. 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.)
The California Supreme Court held in Cole that the words “personally inflicts”
are clear and unambiguous and apply only to “the person who himself inflicts the
injury.” (Cole at p. 572.) 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 inflicted which
injuries” and the defendant’s “conduct was of a nature that it could have caused the
great bodily injury suffered.”
5 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
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.)

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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 on 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
To. 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 physical force upon the victim was of such 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 on 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.”

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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
12022.7 requiring a finding that the defendant personally inflicted great bodily injury.
Neither 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.)
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.)
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

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personally inflicted great bodily injury but who knowingly joined in a group beating
that he or she knew 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 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
(1988) 45 Cal.3d 471, 487; accord People v. Kelly (1992) 1 Cal.4th 495, 525-526.)
The “relevant law” provides that a 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

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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.) The standard of review applicable to this inquiry is a stringent one. “[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.) The
Chapman6 standard is just as applicable to a “misinstruction” on an element as it is to a
failure to instruct on an element. (People v. Swain (1996) 12 Cal.4th 593, 607.)
Unless we are persuaded beyond a reasonable doubt that the jury’s true finding on the
personal infliction of GBI allegation was not premised on the erroneous second
alternative basis in CALJIC 17.20, we must reverse the jury’s finding.
“In determining whether there was prejudice, the entire record should be
examined, including the facts and the instructions, the arguments of counsel, any
communications from the jury during deliberations, and the entire verdict.” (Guiton at
p. 1130.) Here, the prosecutor repeatedly invited the jury during his opening and
closing arguments to “fall back” on the invalid second alternative basis. His opening
argument reiterated the instruction on the invalid basis and exhorted the jury to “use”
6 Chapman v. California (1967) 386 U.S. 18.

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that portion of the instruction. “[T]here may be question in your minds or there may
be reasonable doubt that he’s actually the one that threw the cup. . . . And the bottom
line is you can fall back in this position, use this jury instruction, and find him guilty
and liable for the fact of the group beating, everyone is throwing cups at him.”
(Emphasis added.) The prosecutor covered much of the same ground again in his
closing argument.
Nothing in the trial court’s instructions or the jury’s inquiry suggested that the
jury was not relying on the invalid second alternative basis. The trial court’s
instructions expressly permitted the jury to rely on the invalid second alternative basis,
and the jury’s inquiry specifically identifying CALJIC 17.20 as a concern did nothing
to rebut the possibility that the jury was relying on the second alternative basis.
The evidence produced at trial did not discount a reasonable possibility that the
jury had rejected the primary and first alternative bases and yet accepted the invalid
second alternative basis. Defendant repeatedly insisted that he had not thrown the first
cup but admitted that he had thrown several other cups after the first cup. It was
undisputed that To’s injury was suffered when he was struck by the first cup. The jury
could have reasonably credited defendant’s denial that he had thrown the first cup or at
least entertained a reasonable doubt about its truth thereby rejecting the primary basis
for a true finding on the allegation. And the jury could also have reasonably rejected
the first alternative basis on the ground that, because To’s injury had already occurred
before defendant threw any cups and To testified that he immediately left the café,
there was at least a reasonable doubt as to whether defendant’s cup throwing was of
“such a nature that by itself it could have caused” To’s injury. On the other hand, the
jury could have rationally concluded that the allegation was true under the second
alternative basis, as set forth in the court’s faulty instruction and as argued by the
prosecutor, because defendant’s cup throwing, after To’s injury by the first cup, had

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been done with knowledge that someone else had already thrown a cup at To and that
this cup had already caused To great bodily injury.
On the record before us, we cannot conclude that the trial court’s instructional
error was harmless beyond a reasonable doubt. Consequently, we must reverse the
judgment and remand for possible retrial of the personal infliction of GBI allegation.
IV. Disposition
The judgment is reversed and remanded for possible retrial of the personal
infliction of great bodily injury allegation. If the prosecution chooses not to retry the
allegation, defendant shall be resentenced.
_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Elia, Acting P.J.
_____________________________
Wunderlich, J.

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