People v. Cole

• Decision Date: 03 June 1982
• Docket Number: Cr. 22200
• Citation: 183 Cal.Rptr. 350,31 Cal.3d 568,645 P.2d 1182
• Court: California Supreme Court
• Parties: , 645 P.2d 1182 The PEOPLE, Plaintiff and Respondent, v. Eddie Ray COLE, Defendant and Appellant.

Page 350

183 Cal.Rptr. 350

31 Cal.3d 568, 645 P.2d 1182

The PEOPLE, Plaintiff and Respondent, v. Eddie Ray COLE, Defendant and Appellant.

Cr. 22200.

Supreme Court of California In Bank.

June 3, 1982.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Paul Bell, Deputy State Public Defender, and Joel Kriger, San Diego, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Patricia D. Benke and Peter Quon, Jr., Deputy Attys. Gen., for plaintiff and respondent.

BROUSSARD, Justice.

Penal Code section 12022.7 ¹ provides that "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...." (Emphasis added.) The issue in the present appeal is whether appellant, who blocked the victim's escape and directed the attack but did not physically strike the victim, may receive an enhanced sentence pursuant to this section. We have concluded that the Legislature intended to impose an additional penalty for causing great bodily injury only on those principals who perform the act that directly inflicts the injury, and that one who merely aids, abets, or directs another to inflict the physical injury is not subject to the enhanced penalty of section 12022.7.

Greg Johnson, a licensed gun dealer, fell asleep watching television on the couch of his living room after cleaning six firearms on the living room coffee table. He was awakened in the early hours of the morning by two individuals, identified as appellant Cole and his brother-in-law, Byron Jackson. They were holding weapons Johnson recognized as part of the collection he had been cleaning earlier. Johnson knew there was no ammunition in the living room and believed that the guns were not loaded. When he was slow to react to an order to turn around, Cole ordered Jackson to kill Johnson. In response to the command, Jackson swung a rifle at Johnson, hitting him three times in the arm and once in the head. The laceration to Johnson's scalp later required 15 stitches. Appellant did not strike Johnson, but during the attack he pointed an unloaded rifle at Johnson and blocked his escape. After receiving the blow to the head, Johnson "straight-armed" the assailants and ran past them into a bedroom. At that point, appellant apparently fled the house, but Jackson, still carrying the unloaded rifle, pursued Johnson into the bedroom. Johnson ran to a closet to attempt to grab and load a pistol, but before he could load the gun, Jackson seized Johnson. In the ensuing struggle Johnson disarmed Jackson and struck him with the butt of the rifle, causing Jackson's mouth to bleed. Jackson then grabbed the unloaded pistol, pulled the trigger four times, and fled the room.

Soon after the attack, police officers, led by a trail of blood splatters, arrested Jackson and Cole in Cole's apartment with the weapons.

Appellant was convicted of robbery (§ 211), burglary (§ 459), and grand theft (§ 487, subd. 3), with enhancements of the sentence pursuant to sections 12022.5 and 12022.7.

Cole appeals from the judgment of conviction. He contends that even if he directed the attack and blocked the victim's escape, he did not actually strike the victim, thus he cannot receive an enhanced sentence pursuant to section 12022.7. In addition, appellant contends that the trial court erred in permitting him to be impeached by evidence of a 1976 "theft" conviction; that the trial judge placed undue pressure on the jury to reach a verdict; and that the grand theft conviction must be reversed because it is a necessarily included lesser offense of the crime of robbery. First, we address appellant's claim that his conduct does not fall within the provisions of section 12022.7.

In our opinion, the meaning of the statutory language is clear: the enhancement applies only to a person who himself inflicts the injury. "When statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it." (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148.) It is doubtful that the Legislature could have enacted the statute in question more tersely to express the intended limitation on the class of individuals who may be exposed to an enhanced sentence for inflicting great bodily injury. Among the several dictionary definitions of "personally," we find the relevant meaning clearly reflecting what the Legislature intended: "done in person without the intervention of another; direct from one person to another." (Webster's New Internat. Dict. (3d ed. 1961).) No other expression could have more clearly and concisely expressed what we interpret to be the plain meaning of the Legislature: that the individual accused of inflicting great bodily injury must be the person who directly acted to cause the injury. The choice of the word "personally" necessarily excludes those who may have aided or abetted the actor directly inflicting the injury.

"We have declined to follow the plain meaning of a statute only when it would inevitably have frustrated the manifest purposes of the legislation as a whole or led to absurd results." (People v. Belleci (1979) 24 Cal.3d 879, 884, 157 Cal.Rptr. 503, 598 P.2d 473.) Neither reason for departing from the plain meaning of the statutory language exists in this case. The purpose of the statute is to deter the infliction of great bodily injury. (People v. Caudillo, 1978, 21 Cal.3d 562, 576, 146 Cal.Rptr. 859, 580 P.2d 274; People v. Johnson (1980) 104 Cal.App.3d 598, 608, 164 Cal.Rptr. 69; People v. Walls (1978) 85 Cal.App.3d 447, 453, 149 Cal.Rptr. 160.) A construction limiting its scope to the person who himself inflicts the injury serves that purpose; each member of a criminal undertaking will know that, regardless of the urgings of his confederates, if he actually inflicts the injury he alone will pay the increased penalty.

In a moral sense, one could argue that a person who directs infliction of injury is as culpable as the person who does the act. Thus it may well be that drawing a slightly different line--to include persons who direct the infliction of injury or who aid such acts--would also accomplish the legislative purpose. Such an expansion of the statutory language to include persons other than the one who actually inflicts the injury would, however, inevitably pose difficult questions in future cases in which the charged accomplice is further removed from the act causing the injury. In any event, the distinction between the person who actually inflicts the injury and the person who does not, is clearly consonant with the legislative purpose, and cannot be described as leading to absurd consequences. Expansion of the penalty to include those who merely aid in the infliction of the injury would frustrate the intent of the Legislature to impose the enhancement only on those who "personally" inflict great bodily injury.

To aid in our understanding of the legislative intent, we shall review the development of other enhancement statutes in pari materia with section 12022.7. As they read today, sections 12022, 12022.5 and 12022.7 each add enhanced penalties for the commission of certain types of aggravated conduct that threatens or results in injury to the victim of a felony. Section 12022, subdivision (a) ² provides an enhanced penalty of one year for a person convicted "who is armed with a firearm in the commission or attempted commission of a felony ... whether or not such person is personally armed with a firearm." Section 12022, subdivision (b) provides an added term of one year for "[a]ny person who personally uses a deadly or dangerous weapon in the commission or attempted commission of a felony...." Section 12022.5 ³ provides a two-year enhancement for "[a]ny person who personally uses a firearm in the commission or attempted commission of a felony...." Finally, section 12022.7 establishes a three-year additional term for "[a]ny 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...." Each of the sections is inapplicable to crimes in which the particular conduct prohibited is an element of the offense.

The courts and the Legislature have been confronted with two recurring problems regarding the scope of the enhancement statutes the first is the definition of the types of crimes to which the statute applies; the other, presented by this case, is the definition of the category of persons liable for the increased penalty. As we shall see, a brief history of the judicial decisions interpreting the enhancement statutes, and the legislative response to those decisions, supports our interpretation of the clear limitation on the class of individuals subject to the increased penalty of section 12022.7.

Cases dealing with the problem of the category of persons subject to the enhancement of section 12022 had limited its application to those who were themselves armed during the commission of the felony. (See People v. Hicks (1971) 4 Cal.3d 757, 765-766, fn. 4, 94 Cal.Rptr. 393, 484 P.2d 65; People v. Snyder (1969) 276 Cal.App.2d 520, 526-527, 80 Cal.Rptr. 822.) When this court in People v. Floyd (1969) 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862, held that section 12022 was not intended to apply to those cases where being armed was a necessary element of the crime, the Legislature responded by enacting section 12022.5 (Stats.1969, ch. 954, § 1), to...