People v. Kimbrel

• Citation: 174 Cal.Rptr. 816,120 Cal.App.3d 869
• Decision Date: 24 June 1981
• Docket Number: Cr. 10689
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Calvin Kenneth KIMBREL, Defendant and Appellant.

Page 816

174 Cal.Rptr. 816

120 Cal.App.3d 869

The PEOPLE of the State of California, Plaintiff and Respondent, v. Calvin Kenneth KIMBREL, Defendant and Appellant.

Cr. 10689.

Court of Appeal, Third District, California.

June 24, 1981.

Quin Denvir, State Public Defender, and Julia Cline Newcomb, Deputy State Public Defender, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher and Wanda Hill Rouzan, Deputy Attys. Gen., for plaintiff and respondent.

BLEASE, Associate Justice.

Defendant appeals from a conviction of assault with a deadly weapon, the use of a "whip cord." ¹ (Pen.Code, § 245, subd. (a).) Noting that the trial court instructed the jury that a "deadly weapon" was "any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury " (emphasis added) he contends that the court erred in not defining "great bodily injury" sua sponte. We affirm the judgment.

FACTS

Paul Frasier said he encountered defendant on the afternoon of August 8, 1978, when he rode his motorcycle into the parking lot at Vista Point on Folsom Dam. He waved at him, though they were not acquainted, so he stopped to talk. About 20 minutes later, Frasier noticed two people he thought he knew passing by on a motorcycle and he waved. Defendant asked him if he was acquainted with the two and when Frasier replied that he was, defendant lashed him once about the head with a six-foot-long whip. The lash landed across his face, biting into his cheek, eye and nose, tearing the skin and leaving him with a black eye. When Frasier asked why he had hit him, defendant replied that the people on the motorcycle were members of a rival motorcycle club, the Sundowners, and that the members of his own club, the Misfits, did not like them or anyone associated with them.

Frasier also said that defendant took his motorcycle from him at knifepoint and drove away and that the motorcycle was never recovered. Defendant was, however, acquitted of the charges of robbery and an assault in connection therewith that depended on this testimony.

Defendant and a friend, the wife of one of his "brothers," offered a different version of the altercation. They testified that when defendant revealed his aversion to Sundowners and their friends, Frasier seemed to take offense and jumped up from his motorcycle and approached defendant in a threatening manner. Defendant pushed him away, but when Frasier started back toward him, he hit him in the face with his fringed leather jacket. A brief scuffle ensued, but was quickly broken up. Defendant apologized and they resumed talking and joking and, to make amends, defendant offered to purchase beer from a store nearby. Frasier gave defendant permission to use his motorcycle for the trip, but when defendant and his friend returned an hour or so later, he was gone. Defendant denied having either a whip or a knife, though he admitted some club members carried whip cords.

DISCUSSION

The trial court instructed the jury, in the language of CALJIC No. 9.03 (4th ed. 1979), that "a deadly weapon is any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury." The CALJIC definition of great bodily injury was not given. Relying on People v. Caudillo (1978) 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274 defendant contends that the term "great bodily injury" has acquired a restrictive technical legal meaning of which the jury was not apprised, resulting in prejudice to him and mandating reversal of his conviction. He suggests that either the omitted CALJIC definition or a definition modeled on former Penal Code section 12022.7 should have been given.

A trial court has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request where the terms used in the instructions given are "commonly understood by those familiar with the English language"; it does have such a duty where the terms have a "technical meaning peculiar to the law." (People v. Anderson (1966) 64 Cal.2d 633, 639-640, 51 Cal.Rptr. 238, 414 P.2d 366 (" 'force' " and " 'fear,' " as used in definition of offense of robbery, did not have "technical meaning(s)"); People v. Salazar (1977) 74 Cal.App.3d 875, 884, 141 Cal.Rptr. 753 ("intoxication" a common term); People v. Failla (1966) 64 Cal.2d 560, 564-565, 51 Cal.Rptr. 103, 414 P.2d 39 (failure to define "felony" in definition of burglary requiring intent to commit a felony was reversible error); People v. Smith (1978) 78 Cal.App.3d 698, 708-711, 144 Cal.Rptr. 330 (failure to instruct as to elements of "assault by means of force likely to produce great bodily injury" where jury was instructed that specific intent to commit said offense could support finding defendant guilty of burglary); People v. Burns (1948) 88 Cal.App.2d 867, 873-874, 200 P.2d 134 ("traumatic injury" has technical legal meaning); People v. Earnest (1975) 53 Cal.App.3d 734, 744-745, 126 Cal.App.3d 107 (" 'conspiracy' " has technical legal meaning, but error was harmless); see also Witkin, Cal. Criminal Procedure (1963), § 481, p. 487.) We conclude, however, that "great bodily injury" is a "commonly understood" phrase and we read Caudillo as supporting this conclusion.

The meaning of "great bodily injury" applies to the crime of assault with a deadly weapon in that it explains what is meant by a deadly weapon.

Juries have been instructed for almost a century that a deadly weapon is an object "capable of producing, and likely to produce, death or great bodily injury." (See People v. Rodrigo (1886) 69 Cal. 601, 603, 11 P. 481; People v. Leyba (1887) 74 Cal. 407, 408, 16 P. 200; People v. Lopez (1901) 135 Cal. 23, 25; People v. Pearson (1957) 150 Cal.App.2d 811, 820, 311 P.2d 142.) This acceptance strongly suggests that the phrase provides juries with a meaningful and workable standard for their decision-making. In fact, defendant does not argue that the term is too indefinite to be fairly applied by a jury (see In re Newbern (1960) 53 Cal.2d 786, 797, 3 Cal.Rptr. 364, 350 P.2d 116); he argues that the phrase by its "plain meaning" applies to a broader "range of injury" than is encompassed by the meaning ascribed to it in Caudillo.

In Caudillo, the Supreme Court held that the term "great bodily injury," in former Penal Code section 461 (as amended by Stats.1967, ch. 150, § 1, p. 1261 (relating to enhanced punishment for infliction of great bodily injury)) meant a " 'significant or substantial physical injury.' " (People v. Caudillo, supra, 21 Cal.3d at p. 581, 146 Cal.Rptr. 859, 580 P.2d 274.) Although defendant reads the holding as narrowing the definition of "great bodily injury," the opinion's repeated adherence to a construction of the term " 'according to the usual, ordinary import of (its) language" (id., at pp. 576, 577, 146 Cal.Rptr. 859, 580 P.2d 274), its "ordinary usage" (id., at p. 578, 146 Cal.Rptr. 859, 580 P.2d 274), and " ' "commonsense meaning" ' " (id., at p. 582, 146 Cal.Rptr. 859, 580 P.2d 274) is fatal to his interpretation.

However, he argues, Caudillo gave implicit sanction to the CALJIC No. 9.03 definition, which was adopted from People v. Wells (1971) 14 Cal.App.3d 348, 92 Cal.Rptr. 191, and People v. Richardson (1972) 23 Cal.App.3d 403, 100 Cal.Rptr. 251. (See also People v. Miller (1977) 18 Cal.3d 873, 883, 135 Cal.Rptr. 654, 558 P.2d 552.) It defines great bodily injury as a "significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury or moderate harm." ²

We do not find the CALJIC No. 9.03 definition helpful or necessary to the understanding of "great bodily injury." The substitution of "significant" or "substantial" for "great," in the context of bodily injury, makes no gains on meaning. The substitution of one general term for another results from a misappraisal of its semantic utility. At its best, the practice is an innocuous bit of loquacity. At its worst, it is a misleading refinement which introduces flab for leanness of meaning as with the use of the spongy word "substantial." "Substantial" is one of "the flexible words, the words which can be squeezed into any shape, or stuffed into any hole that needs plugging with a soft plug." (Mellinkoff, The Language of the Law (1963) p. 448. ³ )

Also misleading is the attempted negative definition of great bodily injury as "not refer(ring) to trivial or insignificant injury or moderate harm." It is, of course, trivially true that a great bodily injury is not a trivial or insignificant or moderate injury. The converse, however, is false. Not every non-trivial or insignificant or non-moderate injury is "great." ⁴ The irresistible impulse to define words of ordinary English is unfortunately pervasive. It should be curbed.

We can only conclude that the chief attraction for the defendant of the CALJIC No. 9.03 definition is that it was not given.

Defendant offers another instruction based upon Caudillo. Caudillo pointed out that the Legislature had defined " 'great bodily injury' " in Penal Code section 12022.7 by the use of examples representing generalized instances of great bodily injury (or standard examples). ⁵ The Legislature amended the provision before its effective date and replaced it with "a definition of 'great bodily injury' that requires that the injury constitute a 'significant or substantial physical injury.' " (21 Cal.3d at p. 581, 146 Cal.Rptr. 859, 580 P.2d 274.) The court said: "It is apparent, therefore, that the 1977 amendment to Penal Code section 12022.7 was not intended to lessen the magnitude of bodily injury required by the 1976 detailed definition of great bodily injury. Rather, it appears that the 1977 amendment to Penal Code section 12022.7 was designed to preclude the possibility that the 1976...