People v. Kimbrel, Cr. 10689

CourtCalifornia Court of Appeals
Writing for the CourtBLEASE; REGAN, Acting P. J., and REYNOSO
Citation174 Cal.Rptr. 816,120 Cal.App.3d 869
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Calvin Kenneth KIMBREL, Defendant and Appellant.
Docket NumberCr. 10689
Decision Date24 June 1981

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.

[120 Cal.App.3d 870]

Page 817

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.

120 Cal.App.3d 871

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 [120 Cal.App.3d 872] 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

Page 818

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 [120 Cal.App.3d 873] 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...

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45 practice notes
  • People v. Schade, No. H009896
    • United States
    • California Court of Appeals
    • June 15, 1994
    ...a duty where the terms have a 'technical meaning peculiar to the law.' [Citation.]" (Latter emphasis added; People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, 174 Cal.Rptr. 816; see also People v. Dasher (1988) 198 Cal.App.3d 28, 36, 243 Cal.Rptr. 486; People v. Jones (1971) 19 Cal.App.3d 43......
  • People v. Montero
    • United States
    • California Court of Appeals
    • September 10, 1986
    ...it does have such a duty where the terms have a 'technical meaning peculiar to the law.' [Citations.]" (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, 174 Cal.Rptr. Montero did not request an amplifying or clarifying instruction. Rather he contends Cicero and Kusumoto hold force has take......
  • People v. Aston, Cr. 11261
    • United States
    • California Court of Appeals
    • December 13, 1984
    ...238, 414 P.2d 366.) Their meanings are fixed by the way the language is commonly used by the lay public. (See People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, 174 Cal.Rptr. 816.) The jury, being a part of that public, can be expected to understand and correctly apply the language and may b......
  • People v. Bush, A140589
    • United States
    • California Court of Appeals
    • January 11, 2017
    ...Cal.Rptr. 228, citing People v. Miller (1981) 120 Cal.App.3d 233, 236, 174 Cal.Rptr. 479 ; 213 Cal.Rptr.3d 617People v. Kimbrel (1981) 120 Cal.App.3d 869, 876, 174 Cal.Rptr. 816 ; People v. Roberts (1981) 114 Cal.App.3d 960, 964–966, 170 Cal.Rptr. 872.) In three of those cases, the courts h......
  • Request a trial to view additional results
44 cases
  • People v. Schade, No. H009896
    • United States
    • California Court of Appeals
    • June 15, 1994
    ...a duty where the terms have a 'technical meaning peculiar to the law.' [Citation.]" (Latter emphasis added; People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, 174 Cal.Rptr. 816; see also People v. Dasher (1988) 198 Cal.App.3d 28, 36, 243 Cal.Rptr. 486; People v. Jones (1971) 19 Cal.App.3d 43......
  • People v. Montero
    • United States
    • California Court of Appeals
    • September 10, 1986
    ...it does have such a duty where the terms have a 'technical meaning peculiar to the law.' [Citations.]" (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, 174 Cal.Rptr. Montero did not request an amplifying or clarifying instruction. Rather he contends Cicero and Kusumoto hold force has take......
  • People v. Aston, Cr. 11261
    • United States
    • California Court of Appeals
    • December 13, 1984
    ...238, 414 P.2d 366.) Their meanings are fixed by the way the language is commonly used by the lay public. (See People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, 174 Cal.Rptr. 816.) The jury, being a part of that public, can be expected to understand and correctly apply the language and may b......
  • People v. Bush, A140589
    • United States
    • California Court of Appeals
    • January 11, 2017
    ...Cal.Rptr. 228, citing People v. Miller (1981) 120 Cal.App.3d 233, 236, 174 Cal.Rptr. 479 ; 213 Cal.Rptr.3d 617People v. Kimbrel (1981) 120 Cal.App.3d 869, 876, 174 Cal.Rptr. 816 ; People v. Roberts (1981) 114 Cal.App.3d 960, 964–966, 170 Cal.Rptr. 872.) In three of those cases, the courts h......
  • Request a trial to view additional results

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