Gutierrez

We disagree with People v. Santos (1990) 222 Cal.App.3d 723 [ 271 Cal.Rptr. 811 ] and hold that the intent required in the use of “force . . . likely to produce great bodily injury” (Pen. Code, § 667.7, subd. (a)) is a general intent.

*1579 In a three-phase trial, a jury first found Vincent Gutierrez (appellant) guilty of second degree murder (Pen. Code, 1 § 187; count I), assault with a firearm (§ 245, subd. (a)(2); count III), and possession of a firearm by a felon (§ 12021, subd. (a); count IV) but not guilty of attempted murder (§§ 664/187; count II). Firearm use allegations were found true (§ 12022.5; counts I and III) but a great bodily injury allegation (§ 12022.7; count III) not true. In the second phase the jury found habitual offender allegations (§ 667.7) and a state prison prior murder allegation (§ 190.05) to be true. In the third phase, the jury found the appropriate penalty for the second degree murder conviction to be 15 years to life in state prison. Appellant was sentenced to two life terms, consecutive to a seventeen years to life term.

Appellant contends: (1) the trial court erred in giving a general intent instruction concerning the “use of force…

I agree with most of the majority’s analysis in resolving the issues raised in this appeal and agree the judgment of conviction should be affirmed. However, I diverge from my colleagues on the proper interpretation of the intent required for a finding of habitual offender status under Penal Code section 667.7. 1 Like the majority, I believe the language of the statute is key. However, I disagree with the *1592 majority’s conclusion general intent is sufficient under the second clause of section 667.7, subdivision (a). I would hold a finding of habitual offender .status under section 667.7, subdivision (a) requires a finding of specific intent to cause great bodily injury. Consequently, I would hold the trial court erred in instructing general intent was sufficient and reverse the finding of habitual offender status.

Section 667.7, subdivision (a) provides in pertinent part:

Our Supreme Court has declared a great bodily injury enhancement under section 12022.7 requires a finding a defendant both personally and intentionally inflicted such injury. 2 (People v. Cole (1982) 31 Cal.3d 568, 579 [ 183 Cal.Rptr. 350 , 645 P.2d 1182 ]; People v. Wolcott (1983) 34 Cal.3d 92, 109 [ 192…

WOODS (Fred), J.

We disagree with People v. Santos (1990) 222 Cal. App.3d 723 [ 271 Cal. Rptr. 811 ] and hold that the intent required in the use of "force ... likely to produce great bodily injury" (Pen. Code, § 667.7, subd. (a)) is a general intent.

In a three-phase trial, a jury first found Vincent Gutierrez (appellant) guilty of second degree murder (Pen. Code, [1] § 187; count I), assault with a firearm (§ 245, subd. (a)(2); count III), and possession of a firearm by a felon (§ 12021, subd. (a); count IV) but not guilty of attempted murder (§§ 664/187; count II). Firearm use allegations were found true (§ 12022.5; counts I and III) but a great bodily injury allegation (§ 12022.7; count III) not true. In the second phase the jury found habitual offender allegations (§ 667.7) and a state prison prior murder allegation (§ 190.05) to be true. In the third phase, the jury found the appropriate penalty for the second degree murder conviction to be 15 years to life in state prison. Appellant was sentenced to two life terms, consecutive to a seventeen years to life term.

Appellant contends: (1) the trial court erred in giving a general intent instruction concerning the…