In the recent Fifth District Court of Appeal decision of People v. Medellin, the court held the prosecutor committed error in arguing the great bodily injury (“GBI”) enhancement only required proof that the injury was more than minor harm. The prosecutor told the jury: “What do you need? An injury that is greater than minor. That is all I need to prove.” People v. Medellin (2020) 45 Cal.App.5th 519. The trial court then gave the jury instruction for GBI, which states: “Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” The Court of Appeal in Medellin found that the use of the word “or” in the instruction created ambiguity. The court held that the instruction, and the prosecutor’s argument, constituted reversible error. The court wrote:
“Here, the prosecutor plainly misstated the law and the People concede as much. The cases defining great bodily injury have long required more than moderate harm but the prosecutor argued more than minor harm alone was sufficient. The prosecutor’s misstatement here rises to error because there was ‘a reasonable likelihood the jury understood or applied the [prosecutor’s argument] in an improper or erroneous manner.’ [Citation] … In sum, the CALCRIM great bodily injury definition ‘may impermissibly allow a jury to’ find great bodily injury means greater than minor harm alone is sufficient. [Citation] That possibility, however theoretical it may be in most cases, should be obviated by an appropriate modification of the language in CALCRIM’s great bodily injury definition.” Medellin, supra, at 534-535.
