Modiri

I do not agree with the majority that the trial court here correctly instructed the jury on what is required, in a group beating context, for a finding under Penal Code section 1192.7, subdivision (c)(8), that a defendant personally inflicted great bodily injury. The instruction that the trial court read to the jury, CALJIC No. 17.20, presented two alternative theories under which the jury could find that defendant personally inflicted great bodily injury. As defendant persuasively argues, neither theory is correct. I agree with the Court of Appeal that the instruction was erroneous and that the error was prejudicial. Accordingly, I would affirm the Court of Appeal’s judgment setting aside the great bodily injury finding.

The majority correctly explains what is required for a finding that a defendant personally inflicted great bodily injury in a group beating context. The defendant must do more than merely aid or abet others who inflict great bodily injury; the defendant must physically participate' in the injury-producing conduct. On the other hand, the defendant need not have acted alone, and his conduct need not be the sole or even the predominate cause of the great bodily…

At a crowded neighborhood party, Shea Michael Modiri (defendant) started and joined a group attack that left the teenage victim with multiple serious injuries. The evidence showed that defendant personally applied physical force to the victim several times. However, chaos at the scene prevented witnesses from linking the victim’s injuries to a particular assailant, weapon, or blow.

Defendant was convicted of felony assault (Pen. Code, § 245, subd. (a)(1)), 1 among other things. To enhance the sentence in any future prosecution, the jury sustained an allegation that, in the course of the assault, defendant “personally inflict[ed] great bodily injury” on the victim. (§ 1192.7, subd. (c)(8) (section 1192.7(c)(8)).)

In People v. Cole (1982) 31 Cal.3d 568 [ 183 Cal.Rptr. 350 , 645 P.2d 1182 ] (Cole), we construed similar personal-infliction language authorizing a present sentencing enhancement under what is now section 12022.7, subdivision (a) (section 12022.7(a)). Cole held that this requirement covers persons who “directly acted to cause the injury,” and excludes those who merely “aided or abetted the actor directly inflicting the injury.” ( 31 Cal.3d at p. 572 .)

Here,…

At a crowded neighborhood party, Shea Michael Modiri (defendant) started and joined a group attack that left the teenage victim with multiple serious injuries. The evidence showed that defendant personally applied physical force to the victim several times. However, chaos at the scene prevented witnesses from linking the victim's injuries to a particular assailant, weapon, or blow.

Defendant was convicted of felony assault (Pen.Code, § 245, subd. (a)(1)), [1] among other things. To enhance the sentence in any future prosecution, the jury sustained an allegation that, in the course of the assault, defendant "personally inflict[ed] great bodily injury" on the victim. (§ 1192.7, subd. (c)(8) (section 1192.7(c)(8)).)

In People v. Cole (1982) 31 Cal.3d 568 , 183 Cal.Rptr. 350 , 645 P.2d 1182 ( Cole ), we construed similar personal-infliction language authorizing a present sentencing enhancement under what is now section 12022.7, subdivision (a) (section 12022.7(a)). Cole held that this requirement covers persons who "directly acted to cause the injury," and excludes those who merely "aided or abetted the actor directly inflicting the injury." ( 31 Cal.3d at p. 572 , 183…

I agree with the majority that CALJIC No. 17.20 does not misstate the law regarding allegations of personal infliction of great bodily injury. I also agree the trial court did not err by giving the instruction in this case, where the evidence showed defendant participated in a group attack and personally struck the victim with blows the jury could find caused his injuries, either by themselves or together with the blows of his coassailants. I do not understand the majority’s discussion of People v. Dominick (1986) 182 Cal.App.3d 1174 [ 227 Cal.Rptr. 849 ] to constitute approval of the application of personal-infliction enhancements in cases where (as in Dominick) the defendant’s role was limited to restraining the victim while a coassailant struck her (a factual scenario the majority correctly notes is “not implicated” here (maj. opn., ante, at p. 496)), but only as endorsing the general principle that direct participants in group attacks are not immune from personal-infliction findings. On that basis I have signed the majority opinion.