People v. Olivas CA5

INTRODUCTION

Defendant was sentenced to four years in prison for committing a battery resulting in serious bodily injury. (Pen. Code,1 § 243, subd. (d).)2 His sentence was enhanced pursuant to section 12022.7, which provides for additional punishment when the defendant inflicts great bodily injury in the commission of a felony. (§ 12022.7, subd. (a).) Defendant contends the great bodily injury enhancement does not apply to the crime of battery resulting in serious bodily injury. We agree and order the enhancement stricken.

BACKGROUND

Defendant was charged with second degree robbery (count 1 - § 212.5, subd. (c)); battery resulting in serious bodily injury (count 2 - § 243, subd. (d)); threatening to commit a crime which would result in death or great bodily injury (count 3 - § 422); and dissuading a witness (count 4 - § 136.1, subd. (a)(1).) The information also alleged that in committing counts 1 and 2, defendant personally inflicted great bodily injury on the victim. (§ 12022.7.) As to each count, it was alleged that defendant had suffered one prior conviction described in sections 667, subdivisions (c)–(j) and 1170.12, subdivisions (a)–(e); and six prior convictions…