Otterstein

—Penal Code section 12022.7 authorizes additional punishment for crimes in which great bodily injury is intentionally inflicted except those crimes in which “infliction of great bodily injury is an element of the offense of which [defendant] is convicted.” In this appeal we hold defendant may waive the exception to the application of section 12022.7 in the context of a plea bargain.

Defendant was charged with battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). These two charges were “different statements of the same offense” (Pen. Code, § 954). The information also alleged that in the commission of the “above offense” defendant intentionally inflicted great bodily injury upon the victim (Pen. Code, § 12022.7) and that defendant had suffered a prior conviction of a serious felony (Pen. Code, § 667, subd. (a)).

Pursuant to a plea bargain defendant pled guilty to battery with serious bodily injury and admitted the allegation he intentionally inflicted great bodily injury. The bargain provided defendant was to receive a sentence of no more than six years and…