May Judge Find Great Bodily Injury if Jury Deadlocked?

In July 2006, Miguel Angel Cabrera met Curtis Barnum at a bar in Siskiyou County.  Mr. Barnum invited Mr. Cabrera and a few of his friends back to his home.

After they arrived at the house, Mr. Barnum and Mr. Cabrera got into an argument that culminated when Mr. Cabrera suddenly punched Mr. Barnum in the face.  According to a witness present at the time, this punch knocked out Mr. Barnum “out cold on contact.”  Mr. Barnum collapsed and hit his head on the cement.  Mr. Barnum was unconscious for several minutes in a pool of blood about twice the size of his head. 

Mr. Cabrera fled the scene and Mr. Barnum was taken to the hospital.  He received three stitches to close a one-inch laceration in the back of his head, which was necessary to control the bleeding.

Barnum recovered, but testified later in trial that he had dizzy spells and a “little bit” of a problem with headaches, but they were “not bad.”

Mr. Cabrera was charged with assault by means of force likely to produce great bodily injury, battery with serious bodily injury (Penal Code § 243); assault with a deadly weapon, and participating in a street gang.  He was also alleged that he personally inflicted great bodily injury (Penal Code § 12022.7) and that he had four prior convictions constituting serious felonies and strikes.

The case went to trial and the jury was instructed that serious bodily injury means “a serious impairment of physical condition,” which may include, but is not limited to “loss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing and serious disfigurement.”

The jury was instructed that great bodily injury means “significant or substantial physical injury” and that it is an injury that is greater than minor or moderate harm.”

The jury returned a verdict of guilty on the count of battery with serious bodily injury, assault and the charge of participating in a street gang.  It found true the four prior serious felonies.

The jury deadlocked on the charge of assault with a deadly weapon and on the allegation that Mr. Cabrera had inflicted great bodily injury.

 

Mr. Cabrera’s sentence depended in part on whether his convictions counted as “serious felonies;” if so, because of his prior serious felonies, he faced a five-year sentencing enhancement (Penal Code § 667(a)). 

The Penal Code defines serious felonies to include “any felony in which the defendant personally inflicts great bodily injury on any person other than an accomplice.”  Penal Code § 1192.7(c)(8).

The judge then determined that the battery charge and two related charges qualified as “serious felonies” – a finding that exposed Mr. Cabrera to an additional five-year term – because “there [was] great bodily injury.” 

Cabrera appealed this finding to the appellate court and then to the California Supreme Court, arguing that a judge making such a finding violated the Sixth Amendment principal announced in Apprendi v. New Jersey (2000) 530 U.S. 466.  Apprendi held, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id., at 490.

The California Supreme Court agreed with Mr. Cabrera that the judge violated Apprendi.  In other words, the facts must be reflected in the jury’s decision in order for sentencing courts to use it to increase the punishment. 

Here, the jury found that Mr. Cabrera inflicted serious bodily injury, but was deadlocked on the great bodily injury issue, therefore showing that the jury differentiated between the two types of injury.  As the jury’s finding of serious bodily injury did not necessarily establish that Mr. Cabrera inflicted great bodily injury, the judge’s imposition of the enhancement meant that the judge determined facts that had not been determined by the jury – that serious bodily injury was also great bodily injury.  Imposing that enhancement therefore violated Mr. Cabrera’s Sixth Amendment right.

The Supreme Court therefore reversed the Court of Appeal ruling and remanded the case for further proceedings.