In this post, I will explain great bodily injury which is a penalty enhancement to an existing charge.
Let’s get started…
But first, watch this video to understand to which types of cases a great bodily injury enhancement can be applied.
Definition of Great Bodiy Injury
The California Penal Code refers to great bodily injury as a significant or substantial physical injury1.
Unfortunately, the definition is very broad and therefore it is left in the hands of the jury to decide what qualifies as a great bodily injury in each case.
How Does The Jury Determine GBI?
There is no mathematical equation or bright line rule for the determination of GBI.
Although GBI is determined on a case-by-case basis, the jury considers several factors in making their determination.
- Such as the pain caused to the victim
- The severity of the injuries
- Any medical care that was required2.
The question of whether the harm to the victim constitutes great bodily injury is a question of fact for the jury, not a question of law3.
What Is The Sentencing Enhancement For GBI
The standard enhancement for GBI is 3 to 6 years in state prison.
It applies to anyone who causes GBI during the commission of a felony or an attempted felony4.
A GBI Enhancement Is In Addition To Other Penalties
The enhancement adds 3 to 6 years to a defendant’s sentence for the underlying felony committed, and it runs in addition to and consecutively to that sentence.
Shooting a Firearm From a Car Triggers a Potentially Longer Enhancement
There is a harsher enhancement applied when GBI results from shooting a firearm from a car.
An example is a drive-by shooting.
In this case, the enhancement can be 5, 6, or 10 years however it is limited to cases where it is proven the defendant had the intent to cause GBI or death.
How Does The Prosecutor or Jury Determine 3, 4, 5 or 6 Years?
Whether you receive an additional 3, 4, 5, or 6 years depends on the following:
- Age of the victim
- The severity of the injury
- Circumstances of the offense
Cases that involve a victim who is a senior over 70 or a child under 5 usually receive a harsher sentencing enhancement.
In cases involving domestic violence or sexual crimes, there are also greater penalties sanctioned5.
Is Great Bodily Injury A Strike?
Under California’s 3 strikes law, GBI offenses count as a strike on your criminal record for three strikes purposes.
Image Credit: https://sfbayview.com/2015/12/choose1-files-new-initiative-to-reform-californias-three-strikes-law/
In short, the three strikes law is a sentencing scheme that adds additional prison sentences on certain repeat offenders convictions for serious or violent felonies.
Can an Emotional Injury Count as Great Bodily Injury?
GBI must be an actual physical injury not emotional or financial.
Specific Examples Of GBI
Injuries that qualify as GBI in one case may not constitute the same in another. Each jury may evaluate the injuries in every case differently.
Therefore, GBI is determined on a case-by-case basis, and the examples listed may not qualify in every case depending on the circumstances.
Examples of Great Bodily Injury Include:
- Broken bones6
- A black eye7
- Vaginal soreness, abrasions and a painful neck from a rape8
- Gunshot wounds9
- A dog bite10
Difference Between Great Bodily Injury & Serious Bodily Injury
Under the Penal Code there is a punishable offense for battery involving “serious bodily injury”11.
This raises the obvious question:
What is The Difference Between Serious Bodily Injury And Great Bodily Injury?
First of all, the crime of battery causing serious bodily injury – PC 243(d) does not qualify for a sentencing enhancement because the crime itself requires proof of serious bodily injury as an element.
Is Serious Bodily Injury Or Great Bodily Injury More Serious?
Serious bodily injury is a lower standard than great bodily injury. However, because the determination is left to the jury to decide what qualifies as GBI, it is possible that a jury could find that the serious bodily injury rises to GBI thus triggering a sentencing enhancement.
When California’s great bodily injury statute was originally written in 1976, specific types of GBI were listed that qualified according to the California Legislature.
- Prolonged loss of consciousness
- Severe concussion
- protracted loss of any bodily member or organ,
- protracted impairment of function of any bodily member or organ or bone,
- A wound or wounds requiring extensive suturing,
- Serious disfigurement, and severe physical pain inflicted by torture.12
However, before the law was enacted in 1977, the Legislature removed this language and amended the definition of GBI from a “serious impairment of physical condition” to “a substantial or significant injury”, which is how the code currently reads. The prior listed conditions made their way into the definition used for “serious bodily injury” (a lesser standard than GBI used in assault inflicting serious bodily injury charges.), however in reality the two terms are used interchangeably.
Examples where there is no sentencing enhancement
In cases where a defendant is in a car accident due to intoxication and which causes another to suffer GBI, he/she could face a conviction for driving under the influence causing injury ((California Vehicle Code 23153)).
While one won’t be charged with this enhancement in conjunction with killing another in a DUI manslaughter case, one can receive this enhancement for any surviving victims who sustained GBI.
Again this is the example when “great bodily injury” isn’t used as a sentencing enhancement because death is a necessary element of the offense. When someone is killed and a defendant is charged with homicide, sentencing already takes that death into consideration.
As a result, murder, manslaughter, and arson are the only crimes exempt from the GBI sentencing enhancement, as each already incorporates its own enhanced penalty due to the nature and severity of the crimes.
Hiring An Attorney
If you are facing a great bodily injury sentencing enhancement contact our office for a free confidential consultation at 818-351-9555.
We can discuss your options and how to approach your case.
- California Penal Code 12022.7(f) as used in this section, “great bodily injury” means a significant or substantial physical injury [↩]
- People v. Cross (2008) 45 Cal.4th 58, 66 [↩]
- People v. Escobar (1992) 3 Cal.4th 740, 750. [↩]
- California Penal Code 12022.7(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years [↩]
- See California Penal Code 12022.8. [↩]
- People v. Villarreal (1985) 173 Cal.App.3d 1136, 1141. [↩]
- People v. Muniz (1989) 213 Cal.App.3d 1508, 1520. [↩]
- People v. Escobar (1992) 3 Cal.4th 740. “Nothing in the statutory definition precludes a jury from finding great bodily injury based on precisely the quantum of evidence presented here: extensive neck bruises and abrasions over the victim’s legs, knees and elbows, injury to her neck and soreness in her vaginal area of such severity that it significantly impaired her ability to walk…. These are not the type of injuries ‘routinely associated with rape,’ but reflect a degree of brutality and violence substantially beyond that necessarily present in the offense.” (Escobar, supra, 3 Cal.4th at p. 750. In the Escobar decision the Supreme Court overruled People v. Caudillo (1978) 21 Cal.3d 562. which held that great bodily injury must be “protracted,” or “permanent,” as opposed to “transitory and short-lived. [↩]
- People v. Mendias (1993) 17 Cal.App.4th 195. The appellate court found this evidence sufficient, under Escobar, to support the jury’s finding of great bodily injury. [↩]
- People v. Frazier (2009) 173 Cal. App. 4th 613, 618. [↩]
- California Penal Code 243(d) – When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years [↩]
- See Above People v. Escobar (1992), Footnote 2. [↩]
If I went to the hospital and got diagnosed with a concussion will the DA used that as a GBI charge?
Hi Isis: If the only injury is to you, and you are the arrestee, then no. A GBI allegation can only be filed if your conduct seriously injured another party.
My 14 year old son got in a fight with a 17 year old boy who had been bullying him and now the DA wants to charge my son with Felony assault. There is video but the only video was recorded once the fight was in progress. Can they really use the video to charge my son?
Yes. The video and any corroborating witness information may be used against your son in a criminal prosecution. However, if the video shows something that is helpful to his defense, it can also be used as a tool for the defense attorney.
If a victim of great bodily harm was never offered or informed of victim services for a case that happened in 2005 in CA can they get restitution still when the GBH was caused by a person punching the victim in the ear leaving the inner eardrum to complete be disruptive and to the very day have hearing loss from that ear,daily liquid waxy blood that needs to be cleaned out more then once a day,unable to have water in that ear,not being able to submerge their head in water like swimming or taking a bath cause it is too painful? Along with that having a newborn infant in there arms while that crime took place, had to go to a hospital, then never heard from police authorities,the DA, or was offer nor informed of any victim services?