Great Bodily Injury Enhancement for a Dislocated Finger?

What exactly constitutes a great bodily injury?  Does it have to be personally inflicted?  According to Penal Code § 12022.7 (f), the statute which permits the imposition of the three year sentence in addition, or consecutive to the underlying crime, defines “great bodily injury” as a “significant or substantial injury.”  Is a dislocated finger sufficient?  After all, such an injury involves no broken bones and no blood.  A dislocated finger may not even be painful.
Main Point:  Is a Three-Year  Great Bodily Injury Sentence Enhancement Proper for a Dislocated Finger Sustained by Victim during a Robbery and Kidnapping?
Moreover, does defendant have to intend to cause the injury in particular?  Can defendant order someone else to injure the victim?  Does defendant have to touch the victim or intentionally shoot or throw something, etc. at the victim?  What if the victim is trying to capture the defendant and the defendant struggles in self-defense, injuring the victim?

The Sacramento case of People v. Jeffrey Elder (2014 DJDAR 8267) asked the Third Appellate District to resolve whether such an enhancement for this injury in self-defense was proper.

In January, 2010, Elder entered an unlocked, unoccupied van in a parking lot while its owners were in a nearby store.  The van was loaded with empty boxes because the owners were moving.  Elder hid behind the boxes.

The owners of the van then returned to their van began driving.  Elder then emerged from behind the boxes carrying a BB gun and demanded they drive the van to West Sacramento.  The victims complied.  Elder demanded that the victims turn over their wallets, which they did.

A struggle ensured inside the van as the driver tried to injure Elder and to allow the passenger to escape.  During the struggle, the passenger “got pulled in the hoodie” of Elder “and the finger snapped,” said the victim, describing the dislocation of his finger.

The Sacramento County District Attorney’s office prosecuted Elder for two counts of kidnapping for robbery (Penal Code § 209), two counts of robbery (Penal Code § 211) and one count of assault with a deadly weapon (Penal Code § 245(a)(1)).  The jury found Elder guilty of all counts and the judge sentenced him to eighteen years to life.

The sentence was composed of a seven year term plus three years for the great bodily injury enhancement on one count of kidnapping for robbery for one of the kidnapping charges.  On the second kidnapping for robbery count, the judge sentenced him to seven years, but without the great bodily injury enhancement.  On the assault with a deadly weapon count, he was sentenced to one year, with a three year great bodily injury enhancement stayed under Penal Code § 654.

Elder appealed to the Third Appellate District, arguing that the great bodily injury (GBI) enhancements violated state law because there was no substantial evidence that he directly performed the act that caused injury to the victim’s finger.

The Third Appellate Court began its analysis by noting that since Elder challenged the sufficiency of the evidence, the appellate court’s job was to view the evidence in the light most favorable to the judgment to determine whether it disclosed “substantial evidence, i.e. evidence that is reasonable, credible and of solid value, such that a reasonable trier of fact could find the essential elements of the charged crime or allegation proven beyond a reasonable doubt.”  Jackson v. Virginia (1979) 433 U.S. 307, 319.

The issue, as the Third Appellate court approached the appeal, was whether the victim, in the course of resisting the perpetration of the crimes, injured his finger while Elder attempted to get free.  The court of appeals quickly concluded that by struggling to break free, he did inflict GBI within the meaning of Penal Code § 12022.7(a).

After all, the court of appeal noted, Elder was the direct (and not even just the proximate) cause of the injury.  The Court of Appeal looked to People v. Cole (1982) 31 Cal. 3d 568,572.  In Cole, defendant and an accomplice committed a residential robbery and burglary.  During the commission of the crime, defendant told the accomplice to kill the victim.  The defendant then held a gun on the victim while the accomplice beat the victim.  The defendant also blocked the victim’s escape.  The defendant never struck or even touched the victim.

The issue in Cole was whether one who merely aids and abets or directs another to inflict the injury was subject to the GBI enhancement.  The Cole court said such conduct was not subject to the sentence enhancement.

However, in People v. Cross (2008), 4 Cal. 4th 58, the defendant was convicted of non -forcible lewd acts on a child under 14 and a 12022.7(a) GBI enhancement was added to his sentence.  The defendant had non-forcible sexual intercourse with the minor, who then became pregnant.  On appeal, the California Supreme Court held that defendant had inflicted great bodily injury because he did so directly and not through an intermediary.

Here, even though Elder did not intend to inflict the injury, he did directly inflict it on the victim by his struggle.  Therefore, the GBI sentence enhancement was affirmed.   

For more information about sentence enhancements, click on the following articles:
  1. Drug Dealer Convicted of Manslaughter Can Be Sentenced for Other Charge for Great Bodily Injury Enhancement
  2. May a Sentence Enhancement Be Applied Twice on the Same Defendant for Acts on the Same Victim in the Same Day?
  3. What Is a Criminal Street Gang for Purpose of a Sentencing Enhancement?
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