People v. Otterstein

Opinion

PUGLIA, P. J.

—Penal Code section 12022.7 authorizes additional punishment for crimes in which great bodily injury is intentionally inflicted except those crimes in which “infliction of great bodily injury is an element of the offense of which [defendant] is convicted.” In this appeal we hold defendant may waive the exception to the application of section 12022.7 in the context of a plea bargain.

Defendant was charged with battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). These two charges were “different statements of the same offense” (Pen. Code, § 954). The information also alleged that in the commission of the “above offense” defendant intentionally inflicted great bodily injury upon the victim (Pen. Code, § 12022.7) and that defendant had suffered a prior conviction of a serious felony (Pen. Code, § 667, subd. (a)).

[1550]

Pursuant to a plea bargain defendant pled guilty to battery with serious bodily injury and admitted the allegation he intentionally inflicted great bodily injury. The bargain provided defendant was to receive a sentence of no more than six years and the charge of felony assault and allegation of prior conviction of serious felony were to be dismissed. Defendant was sentenced to a six-year prison term consisting of the three-year midterm for felony battery plus three years consecutive for the great bodily injury enhancement. The felony assault charge and the prior serious felony enhancement were dismissed.

On appeal, defendant contends the court committed sentencing error in that a sentence for battery with serious bodily injury cannot be enhanced for intentional infliction of great bodily injury. Considered as a general proposition, he is right. As applied to this case, he is wrong.

Penal Code section 12022.7 provides for an additional three-year term for one who in the commission of a felony intentionally inflicts “great bodily injury” unless “infliction of great bodily injury” is an element of the offense of which he is convicted. Infliction of “serious bodily injury” is an element of violation of Penal Code section 243, subdivision (d) of which defendant was convicted on his plea of guilty. “Serious bodily injury” is the essential equivalent of “great bodily injury”