People v. Hawkins

Opinion

NOTT, J.

As a result of a trial by jury, appellant Jeffrey Hawkins was convicted of battery with serious bodily injury, in violation of Penal Code section 243, subdivision (d). The jury also found true an enhancing allegation that appellant intentionally inflicted great bodily injury on the victim, within the meaning of Penal Code section 12022.7.

The trial court sentenced appellant to the low term of two years plus an additional three years under section 12022.7.

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We hold that by imposing an enhancement which is an element of the battery charge, the trial court ordered an improper sentence.

Facts

As the facts are not in issue on appeal, they will be only briefly stated. Appellant was a vagrant, sitting outside a restaurant diagonally across from the restaurant of the victim. When the victim asked him to leave the area, appellant responded by hitting her in the nose with his fist. The damage was severe enough to cause emergency medical treatment and subsequent reconstructive surgery.

[1375]

Discussion

Section 243, subdivision (d) provides that when a battery is committed against a person which results in serious bodily injury,

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the battery may be punished either as a misdemeanor (by incarceration in county jail for up to one year), or as a felony (by incarceration in state prison for two, three or four years).

Section 12022.7 states, in pertinent part: “Any person who, with the intent to inflict such injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of three years,

unless infliction of great bodily injury is an element of the offense of which he is convicted.