The opinion
IN THE SUPREME COURT OF
CALIFORNIA
In re MIGUEL ANGEL CABRERA
on Habeas Corpus.
S271178
Third Appellate District
C091962
March 2, 2023
Justice Liu authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Kruger, Groban,
Jenkins, and Cantil-Sakauye* concurred.
*
Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
In re CABRERA
S271178
Opinion of the Court by Liu, J.
During an argument at the home of a man he had met
earlier that day, petitioner Miguel Angel Cabrera punched his
new acquaintance in the face, causing the man to lose
consciousness, fall down, and strike his head on the driveway
where they stood. Cabrera was charged with a number of
offenses, among them battery with “serious bodily injury” in
violation of Penal Code section 243 and allegations of inflicting
“great bodily injury” in violation of Penal Code section 12022.7.
The jury returned a guilty verdict on the count of battery with
serious bodily injury, but it struggled to decide whether Cabrera
had inflicted great bodily injury. The jury submitted questions
to the court about the differences between serious bodily injury
and great bodily injury, asking whether a finding of serious
bodily injury necessarily required a finding that great bodily
injury occurred. Ultimately, the jury was unable to reach a
verdict on the great bodily injury allegations, and the court
declared a mistrial on them.
At Cabrera’s sentencing, the trial court determined that
the battery charge and two related charges qualified as “serious
felonies” — a finding that exposed Cabrera to an additional
five-year term — because “ ‘there [was] great bodily injury.’ ”
(People v. Cabrera (2018) 21 Cal.App.5th 470, 474 (Cabrera).)
Cabrera argued that this finding of great bodily injury by the
trial court violated the Sixth Amendment principle announced
in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi):
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“Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Id. at p. 490.) The sentencing court
disagreed and imposed the five-year enhancement.
We granted review to consider whether the sentencing
court’s finding that Cabrera inflicted great bodily injury violates
Apprendi in light of the jury’s failure to reach a verdict on the
great bodily injury allegations. We hold that the court’s finding
did violate Apprendi and remand this case for further
proceedings consistent with this opinion.
I.
Cabrera met Curtis Barnum in July 2006 at a bar in
Siskiyou County. Barnum invited Cabrera and a few of
Cabrera’s friends back to his home. After they arrived at the
house, Cabrera and Barnum got into an argument, which
culminated in Cabrera suddenly punching Barnum in the face
while they were standing in the driveway next to Barnum’s
truck. According to the testimony of a witness present at the
time, this punch knocked Barnum “out cold on contact.”
Barnum collapsed and struck his head on the cement. He was
unconscious for several minutes in a pool of blood about twice
the size of his head. Cabrera fled, and Barnum was taken to the
hospital. He received three stitches to close a one-inch
laceration in the back of his head, which was necessary to
control the bleeding. His treating physician testified that the
wound was larger than the length of the laceration because of
swelling around it, and that Barnum’s skull was “easily visible
within the wound.” Barnum testified that he had experienced
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some dizzy spells since the injury. He said he had a “little bit”
of problems with headaches and they were “not bad.”
Cabrera was charged with assault by means of force likely
to produce great bodily injury, battery with serious bodily
injury, assault with a deadly weapon, and participating in a
street gang. (Cabrera, supra, 21 Cal.App.5th at p. 473.) He was
also charged with gang allegations on several of the counts,
allegations that he had personally inflicted great bodily injury,
and having four prior convictions constituting serious felonies
and strikes. (Ibid.)
The jury was instructed that serious bodily injury means
“a serious impairment of physical condition,” which “may
include but is no [sic] limited to loss of consciousness,
concussion, bone fracture, protracted loss or impairment of
function of any bodily member or organ, a wound requiring
extensive suturing and serious disfigurement.” The instructions
specifically stated that “[l]oss of consciousness and a wound or
cut requiring extensive suturing is a serious bodily injury.” The
jury was also instructed that great bodily injury means
“significant or substantial physical injury” and that it is “an
injury that is greater than minor or moderate harm.”
During its deliberations, the jury asked the court for
“specific definitions of mild and moderate injury” as those terms
were used in the instructions on great bodily injury. The court
informed the jury that “there really are no specific definitions,”
and it directed the jurors to the definition in the instruction it
had given. The court declined “to try to fine-tune that or define
it any further,” explaining that “we know of no legal definition”
other than the instruction.
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Two days later, the jury sent another question to the court.
The jurors explained that they were “having problems
reconciling the differences between great bodily injury and
serious bodily injury.” They asked, “If we agree the injury was
severe, are we bound to agree that great bodily injury occurred?”
The court referred the jurors back to the instructions defining
great bodily injury and serious bodily injury, noting that
“serious bodily injury is not defined exactly the same as great
bodily injury” but “they are not necessarily mutually exclusive.”
Later that day, the jury indicated that it had reached
verdicts on the first assault charge, the battery charge, and the
charge of participating in a street gang. It found Cabrera guilty
of each of those counts, but it found the gang allegations not
true. It found true the allegations of four prior serious felonies.
The jury deadlocked on the charge of assault with a deadly
weapon and on the allegations that Cabrera had inflicted great
bodily injury. The court declared a mistrial on the deadlocked
counts.
Cabrera’s sentence depended in part on whether his
convictions counted as “serious felon[ies]”; if so, because of his
prior serious felonies, he faced a five-year sentencing
enhancement. (Pen. Code, § 667, subd. (a)(1).) The Penal Code
defines serious felonies to include “any felony in which the
defendant personally inflicts great bodily injury on any person,
other than an accomplice.” (Id., § 1192.7, subd. (c)(8).) The
relevant provisions of the Penal Code are unchanged from the
time of Cabrera’s sentencing.
At sentencing, the prosecutor argued that Cabrera’s
charges were serious felonies because “[t]he evidence was that
when the defendant swung, [the victim] went down, his knees
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buckled, his head . . . hit the cement and resulted in a
concussion.” The prosecutor said this showed that “in fact, the
defendant inflicted great bodily injury.” The prosecutor also
argued that great bodily injury could be inferred from the jury’s
finding of serious bodily injury, citing People v. Burroughs
(1984) 35 Cal.3d 824 (Burroughs) and People v. Hawkins (1993)
15 Cal.App.4th 1373 (Hawkins) for the proposition that “battery
with serious bodily injury is great bodily injury.” Defense
counsel responded that Cabrera was “entitled to a jury finding
on anything that would have had the effect of making his
punishment more severe.” He argued that a finding by the court
that Cabrera inflicted great bodily injury would “invade[] the
province of the jury.”
The court concluded that Cabrera’s charges were serious
felonies because “there is great bodily injury,” citing Burroughs
and Hawkins, and imposed a five-year enhancement.
On appeal, Cabrera’s conviction for participating in a
street gang was reversed, but he did not challenge the
sentencing court’s finding of great bodily injury. (Cabrera,
supra, 21 Cal.App.5th at p. 474.) Cabrera later sought a writ of
habeas corpus in the Court of Appeal, arguing that his appellate
counsel’s failure to challenge the great bodily injury finding
constituted ineffective assistance. The Court of Appeal denied
his petition in an unpublished opinion. We granted review to
consider whether the sentencing court’s finding of great bodily
injury violated Cabrera’s Sixth and Fourteenth Amendment
rights under Apprendi.
II.
In Apprendi, the United States Supreme Court held that
except for “the fact of a prior conviction, any fact that increases
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the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) This
“statutory maximum,” the high court later explained, “is the
maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the
defendant.” (Blakely v. Washington (2004) 542 U.S. 296, 303
(Blakely), italics omitted.) The elevation of a defendant’s
sentence based on facts that “are neither inherent in the jury’s
verdict nor embraced by the defendant’s plea” violates “a
defendant’s right to trial by jury safeguarded by the Sixth and
Fourteenth Amendments.” (Cunningham v. California (2007)
549 U.S. 270, 274 (Cunningham).)
Under this principle, a judge may not find facts that
increase the defendant’s punishment beyond what is authorized
by the “guilty verdict standing alone.” (Ring v. Arizona (2002)
536 U.S. 584, 605 (Ring).) This is so even if the evidence clearly
demonstrates the existence of the judge-found fact. In Ring, for
example, where the crime involved the murder of the driver of
an armored bank van and the theft of more than $800,000 from
the van, the sentencing court violated Apprendi when it found
that the crime was committed “in expectation of receiving
something of ‘pecuniary value.’ ” (Ring, at pp. 589, 594–595.)
And it is so even if the evidence supporting the fact was
presented to the jury, as long as finding the fact was not
essential to the jury’s verdict. For instance, when both the
charging instrument and verdict form specified that a
company’s conduct bearing a per-day criminal fine occurred “ ‘on
or about’ ” a particular range of dates, a court’s calculation of the
total fine based on a finding that those dates were exact violated
Apprendi even though evidence of the dates was presented to
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the jury. (Southern Union Co. v. United States (2012) 567 U.S.
343, 346 (Southern Union Co.); see also U.S. v. Southern Union
Co. (D.R.I., July 9, 2009, Cr. No. 07–134 S) 2009 WL 2032097,
p. *2 [discussing evidence of daily work logs and testimony
about start and end dates of conduct].) Sentencing courts may
not peer behind the verdict to assess whether the evidence
supports a fact not reflected in the jury’s decision.
The Attorney General does not dispute that this rule
applies to the finding of great bodily injury that increased
Cabrera’s sentence. He argues instead that the jury’s finding of
serious bodily injury necessarily establishes great bodily injury.
He asserts that the two require the same severity of injury, with
great bodily injury covering a wider range of injuries.
Serious bodily injury is defined in the Penal Code as “a
serious impairment of physical condition,” with further
specification given in the statute by the same nonexclusive list
of injuries with which Cabrera’s jury was instructed: “loss of
consciousness; concussion; bone fracture; protracted loss or
impairment of function of any bodily member or organ; a wound
requiring extensive suturing; and serious disfigurement.” (Pen.
Code, § 243, subd. (f)(4).) Great bodily injury is not defined in
the sections of the Penal Code that specify Cabrera’s serious
felony enhancement. (See id., §§ 667, 1192.7.) But it is defined
elsewhere as “a significant or substantial physical injury.” (Id.,
§ 12022.7, subd. (f).) This provision codified the standard
definition of great bodily injury and is consistent with both
standard jury instructions and the instructions given in this
case. (See People v. Escobar (1992) 3 Cal.4th 740, 748 (Escobar);
CALCRIM No. 3160.) Accordingly, we find the definition of
great bodily injury provided in Penal Code section 12022.7
appropriate here. No further specification is given in the
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statute, and the standard jury instructions add only that great
bodily injury is “greater than minor or moderate harm.”
(CALCRIM No. 3160; see also CALJIC No. 17.20 [“[m]inor,
trivial or moderate injuries do not constitute great bodily
injury”].)
Great bodily injury and serious bodily injury are similar
terms; we have more than once called them “ ‘essentially
equivalent.’ ” (Burroughs, supra, 35 Cal.3d at p. 831; People v.
Knoller (2007) 41 Cal.4th 139, 143, fn. 2.) But we have also
acknowledged that “there are some differences in the statutory
definitions.” (Knoller, at p. 143, fn. 2.) Notwithstanding their
substantial overlap, “the terms in fact ‘have separate and
distinct statutory definitions.’ ” (People v. Santana (2013) 56
Cal.4th 999, 1008 (Santana), quoting People v. Taylor (2004) 118
Cal.App.4th 11, 24 (Taylor).) That much is apparent from the
Penal Code’s language: “ ‘[T]he statutory definition of great
bodily injury does not include a list of qualifying injuries’ ” like
the statutory definition of serious bodily injury does. (Santana,
at p. 1008.) For that reason, we have held that when great
bodily injury is an element of an offense, a jury instruction that
the crime requires serious bodily injury is erroneous. (Id. at
pp. 1008–1010.)
Consistent with the generality of the definition of great
bodily injury, we have declined invitations in the past to decide
whether a particular type of injury amounts to great bodily
injury as a matter of law. (People v. Wolcott (1983) 34 Cal.3d 92,
107.) What meets the statutory standard is a factual question
for the jury. (People v. Cross (2008) 45 Cal.4th 58, 64 (Cross);
see Escobar, supra, 3 Cal.4th at p. 750 [“[T]he determination of
great bodily injury is essentially a question of fact, not of law.”].)
There is a “ ‘ “fine line” ’ ” between injuries that qualify as great
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bodily injury and those “ ‘ “that do[] not quite meet the
description,” ’ ” and “[w]here to draw that line is for the jury to
decide.” (Cross, at p. 64.) For instance, juries may evaluate a
broken bone “along a continuum from a small hairline fracture,
needing no medical intervention, to the compound fracture of a
major bone, requiring surgical repair.” (Id. at p. 73 (conc. opn.
of Corrigan, J.).) It is the jury’s responsibility to determine
where along that continuum it believes the harm becomes a
“ ‘significant or substantial physical injury’ ” rather than a
“ ‘moderate’ or ‘minor’ ” one. (Ibid.; see People v. Quinonez
(2020) 46 Cal.App.5th 457, 464–465 [“ ‘every bone fracture’ is
not great bodily injury as a matter of law” but instead may be
found by a jury to be great bodily injury “as a matter of fact”].)
The Attorney General argues that serious bodily injury
necessarily establishes great bodily injury because the two
terms “require the same threshold severity of injury” — that is,
they “describe levels of physical injury that are virtually
identical.” The Attorney General says this follows from the
language of the statutory definitions, in which “the relevant
modifiers — serious, significant, and substantial — are closely
analogous.” But comparing the statutory text at this level of
generality does not resolve whether every kind of injury that
qualifies as a serious bodily injury necessarily amounts to great
bodily injury. Nor is it sufficient that serious bodily injury and
great bodily injury both “increase criminal punishment based on
the level of injury suffered by the victim,” as the Attorney
General argues. A jury’s finding of one fact does not authorize
the sentencing court to find all others that serve a similar
function in the Penal Code.
Our decision in Santana does not demonstrate otherwise.
In Santana, we considered the jury instructions for the crime of
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mayhem, which courts have held to include great bodily injury
as an element. (Santana, supra, 56 Cal.4th at p. 1008.) We held
it was improper to instruct a jury that serious bodily injury is
an element of mayhem. (Id. at p. 1010.) After considering many
of the differences between the definitions of great bodily injury
and serious bodily injury that we discuss today, we reasoned
that these distinctions “may make a difference when evaluating
jury instructions that provide different definitions for the two
terms,” and we concluded that the definition of serious bodily
injury was “imprecise and ill fitting” for the crime of mayhem.
(Id. at pp. 1008–1009, 1010.)
Our conclusion that serious bodily injury and great bodily
injury are not interchangeable in the context of the jury
instructions on mayhem shows that the two terms are not
equivalent as a matter of law. Indeed, Santana’s refusal to
“conclude that the offense of mayhem includes a serious bodily
injury requirement simply based on cases holding that mayhem
includes a great bodily injury component” (Santana, supra, 56
Cal.4th at p. 1009) confirms that great bodily injury does not
establish serious bodily injury and says nothing about whether
serious bodily injury establishes great bodily injury.
The history of the enactment of the great bodily injury
definition does not support the view that a finding of serious
bodily injury necessarily establishes great bodily injury. We
discussed this history at length in Escobar, noting that the
original version of the section of the Penal Code describing great
bodily injury defined it differently than the current law. That
version of the statute declared great bodily injury to mean “ ‘ “a
serious impairment of physical condition” ’ ” — the same
language the Penal Code uses to define serious bodily injury —
and provided a list of specific injuries that generally paralleled
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the injuries listed in the serious bodily injury provision.
(Escobar, supra, 3 Cal.4th at p. 747.) However, several of the
listed injuries were more restrictive, requiring, for example,
“ ‘ “[p]rolonged loss of consciousness” ’ ” or “ ‘ “[s]evere
concussion,” ’ ” and the statute did not include the language
from the serious bodily injury provision that makes the list of
injuries in that section nonexclusive. (Ibid., italics added.)
Before this version went into effect, the law was amended
twice to make “a number of significant alterations to the
definition of great bodily injury.” (Escobar, supra, 3 Cal.4th at
p. 747.) The list of qualifying injuries was deleted and the
remainder of the definition was changed “from a ‘serious
impairment of physical condition’ to ‘a significant or substantial
physical injury,’ ” the phrasing that appears today. (Ibid.) We
determined in Escobar that these amendments were meant “to
discard the original, detailed definition of great bodily injury
and substitute the more general standard” that was drawn from
jury instructions on great bodily injury in use at the time the
law passed. (Id. at p. 748, italics omitted; cf. People v.
Richardson (1972) 23 Cal.App.3d 403, 411 [approving
“ ‘ “significant or substantial” ’ ” instruction]; id. at p. 409
[finding that great bodily injury did not occur when victim
experienced “one blow on her back and neck, which she
described as ‘terrific’ ” and which may have caused brief loss of
consciousness].)
The Legislature thus replaced a definition narrower than
serious bodily injury with more general language. The Attorney
General argues from this history that “the Legislature intended
great bodily injury to cover a broader range of injuries than
serious bodily injury.” Escobar makes clear that the Legislature
intended the amended great bodily injury statute to cover a
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broader range of injuries than the previous version of the law.
(See Escobar, supra, 3 Cal.4th at p. 750 [the amended “standard
contains no specific requirement that the victim suffer
‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement,
impairment, or loss of bodily function”].) But amending the
definition of great bodily injury to use more generic terms does
not show that the Legislature must have intended it to be
equivalent in severity to the injuries that might constitute
serious bodily injury, such that a finding of serious bodily injury
necessarily establishes great bodily injury. Indeed, even under
the original version of the bill — which defined great bodily
injury in a manner similar to serious bodily injury — the
Legislature saw the two terms as distinct. The original version
would have imposed the enhancement on any person who
“intentionally inflicts serious or great bodily injury on any
person other than an accomplice.” (Assem. Bill No. 476 (1977–
1978 Reg. Sess.) § 94, as introduced Feb. 10, 1977, italics added.)
The use of both terms suggests they had different meanings.
That great bodily injury and serious bodily injury are
distinct is also consistent with the history of the definition of
serious felony provided in Penal Code section 1192.7,
subdivision (c). The current definition of serious bodily injury
was added to the battery statute in 1975. (Sen. Bill No. 554
(1975–1976 Reg. Sess.).) Battery with serious bodily injury was
thus an established crime at the time section 1192.7 was added
to the Penal Code seven years later in 1982 through a voter
initiative. We have previously noted that the “list of serious
felonies enumerated in section 1192.7 appears to be based
largely upon” a provision enacted that same year that “included
a list of 26 ‘violent offenses.’ ” (People v. Jackson (1985) 37
Cal.3d 826, 831.) Yet despite the fact that the definition of
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serious felony provides a long list of qualifying offenses, battery
with serious bodily injury was never designated as one. (See
Pen. Code, § 1192.7, subd. (c)(1)–(42).) Moreover, the definition
of serious felony at issue here — “any felony in which the
defendant personally inflicts great bodily injury on any person,
other than an accomplice” — does not use the phrase “serious
bodily injury,” even though the phrase had been defined years
before section 1192.7 was added to the Penal Code. (Pen. Code,
§ 1192.7, subd. (c)(8).) These omissions do not support the
Attorney General’s assertion that a finding of serious bodily
injury necessarily establishes great bodily injury.
Whether an injury satisfies the current definition of great
bodily injury — i.e., whether the injury is “significant or
substantial” (Pen. Code, § 12022.7, subd. (f)) — is for the jury to
determine case by case. What matters here is whether a jury
could reasonably apply the statutory definitions of great bodily
injury and serious bodily injury and find that an injury was
serious but not great bodily injury.
Juries have so found. In Taylor, the victim suffered,
among other things, a fracture of the bone around one of her
eyes, and her treating physician opined that the fracture “would
normally heal itself without treatment.” (Taylor, supra, 118
Cal.App.4th at p. 17.) The jury convicted Taylor of battery with
serious bodily injury but found not true several charged
allegations of personal infliction of great bodily injury. (Id. at
p. 21.) The court nonetheless imposed the same five-year
enhancement at issue in this case on the same ground urged by
the Attorney General here: that a finding of serious bodily
injury is “legally equivalent to a finding of ‘great bodily injury.’ ”
(Id. at p. 22.)
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The Court of Appeal reversed. It reviewed the record and
found the jury had correctly “focused on . . . whether the victim’s
bone fracture was sufficiently serious to constitute anything
more than a ‘moderate’ injury within the meaning” of great
bodily injury. (Taylor, supra, 118 Cal.App.4th at p. 25; see
Cross, supra, 45 Cal.4th at p. 73 (conc. opn. of Corrigan, J.)
[suggesting this is the appropriate inquiry for the jury when
deciding whether a bone fracture amounts to great bodily
injury].) The court in Taylor concluded that the verdict made
clear the jury had found that the fracture did not amount to
great bodily injury. (Taylor, at p. 25.) It held that “the
conviction for battery with serious bodily injury is not legally or
factually equivalent to a finding of great bodily injury.” (Id. at
p. 24; see also id. at pp. 24–25.)
Another example is People v. Thomas (2019) 39
Cal.App.5th 930, where the defendant punched the victim
without warning twice in the jaw. The victim fell backward and
“ ‘saw stars,’ ” and his jaw was broken in two places, requiring
surgery “during which screws and plates were inserted.” (Id. at
pp. 933, 934.) “His jaw was wired shut after the surgery,” and
he received stitches for a gash on his face. (Id. at p. 934.) The
attack “left him with permanent nerve damage.” (Ibid.) In that
case, as in Taylor, the jury convicted the defendant of battery
with serious bodily injury but found that he had not inflicted
great bodily injury. (Id. at p. 933.)
Here, the jury found that Cabrera inflicted serious bodily
injury, but it deadlocked on whether he inflicted great bodily
injury. On these facts, a jury could have found that Cabrera
inflicted “a significant or substantial physical injury” (Pen.
Code, § 12022.7, subd. (f)): He knocked Barnum unconscious
and caused an inch-long laceration on his head that exposed his
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skull and required stitches to stop the bleeding. A jury also
could reasonably have found that the injury was not more than
“minor or moderate harm” by its understanding of those terms.
(CALCRIM No. 3160.) Barnum was unconscious for only a few
minutes, his treating physician testified that the wound was not
one that “would take a long period of time to repair,” and the
lingering effects to which Barnum testified were not especially
severe. Ultimately, whether Barnum suffered great bodily
injury is a factual issue for the jury. The facts of this case, like
those of Taylor and Thomas, illustrate that not all jury findings
of serious bodily injury necessarily entail a finding of great
bodily injury.
This is true regardless of whether the jury was instructed
in a manner suggesting that any injury listed in Penal Code
section 243, subdivision (f)(4) is a serious bodily injury,
regardless of its severity. In Taylor, the jury instructions and
closing arguments “may have misled the jury by erroneously
suggesting that any bone fracture constitutes serious bodily
injury, no matter how minor.” (Taylor, supra, 118 Cal.App.4th
at p. 25, fn. 4.) The instructions here may have created a similar
implication; the jury was instructed that “[l]oss of consciousness
and a wound or cut requiring extensive suturing is a serious
bodily injury.” These instructions might lead a jury to perceive
a wider gap between serious bodily injury and great bodily
injury, and thus more readily find serious bodily injury without
finding great bodily injury. But even if a jury was not instructed
in such a manner, serious bodily injury and great bodily injury
remain distinct.
The jury in this case found only that Cabrera inflicted
serious bodily injury. It did not find that Cabrera inflicted great
bodily injury. Instead, the jury deadlocked on the great bodily
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injury allegations, resulting in the court declaring a mistrial on
those allegations. So long as a jury could reasonably apply the
statutory definitions and find a serious bodily injury not to be a
great bodily injury, the jury’s finding of serious bodily injury in
this case did not necessarily establish that Cabrera inflicted
great bodily injury; such a determination was not “inherent in
the jury’s verdict.” (Cunningham, supra, 549 U.S. at p. 274.)
Instead, it was the court that found “an additional fact to impose
the longer term” (id. at p. 290) — namely, that the particular
serious bodily injury Cabrera inflicted was one that also
constituted great bodily injury. Imposing an enhancement
based on that finding violated Cabrera’s “Sixth Amendment
right to have essential facts found by a jury beyond a reasonable
doubt.” (Dillon v. United States (2010) 560 U.S. 817, 828.) Even
if most juries would find most serious bodily injuries to be great
bodily injuries as well, a court’s assessment of the evidence to
find that a specific serious bodily injury in fact falls within the
overlap between those terms is precisely what Apprendi forbids:
judicial factfinding that increases the penalty for the
defendant’s crime “beyond what the jury’s verdict or the
defendant’s admissions allow.” (Southern Union Co., supra, 567
U.S. at p. 352.)
III.
The Court of Appeal here distinguished Taylor on the
ground that the jury there made a “determination contrary to a
finding of” great bodily injury, while “[t]here was no such
determination in this case.” Other courts considering this issue
since Taylor have done the same. (See People v. Johnson (2016)
244 Cal.App.4th 384, 395–396; People v. Arnett (2006) 139
Cal.App.4th 1609, 1615.) But this purported distinction gets the
Apprendi inquiry backwards. What matters is whether the jury
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has found that the defendant inflicted great bodily injury, not
whether it has rejected such a finding. As the Attorney General
acknowledges, quoting Yaeger v. United States (2009) 557 U.S.
110, 125, “ ‘the fact that a jury hangs is evidence of nothing.’ ”
Whether the jury in this case rejected great bodily injury or
simply failed to find it, judicial factfinding to fill the gap violated
Cabrera’s right to have a jury find every fact increasing the
penalty for his offense.
Burroughs is not to the contrary. That case addressed a
felony murder conviction based on the felonious practice of
medicine without a license, a crime requiring a “ ‘risk of great
bodily harm.’ ” (Burroughs, supra, 35 Cal.3d at pp. 827, 830.)
The question was whether the great bodily harm element of the
unlicensed practice of medicine made that crime “inherently
dangerous to human life” for purposes of the felony-murder rule.
(Id. at p. 831.) In answering no, we analogized “great bodily
harm” to the terms “serious bodily injury” and “great bodily
injury,” whose definitions include injuries that “do not, by their
nature, jeopardize the life of the victim.” (Ibid.) It was in that
context — i.e., assessing whether “serious bodily injury,” “great
bodily injury,” and “great bodily harm” denote an injury that
“rise[s] to the level of being inherently life-threatening” — that
we said “[t]here is no indication the Legislature intended to
ascribe a different meaning to ‘great bodily harm’ . . . than is
signified by ‘great bodily injury,’ or, for that matter, ‘serious
bodily injury’ . . . .” (Ibid.) We had no occasion to consider
whether “great bodily injury” and “serious bodily injury” are
identical for purposes of the Sixth Amendment. (See B.B. v. City
of Los Angeles (2020) 10 Cal.5th 1, 11 [“ ‘ “cases are not authority
for propositions not considered” ’ ”].)
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In re CABRERA
Opinion of the Court by Liu, J.
The holding in this case does not call into question our
assertion in Burroughs that serious bodily injury and great
bodily injury are “ ‘essentially equivalent elements.’ ”
(Burroughs, supra, 35 Cal.3d at p. 831.) Nor do we express an
opinion on cases that have relied on that assertion in other
contexts. For example, the Courts of Appeal have long
construed Penal Code section 12022.7, subdivision (g)’s bar on
imposing the great bodily injury enhancement when “infliction
of great bodily injury is an element of the offense” to mean that
the enhancement may not be imposed where serious bodily
injury is an element of the underlying offense. (See, e.g., People
v. Beltran (2000) 82 Cal.App.4th 693, 696–697; Hawkins, supra,
15 Cal.App.4th at pp. 1375–1376.) In Hawkins, the court stated
that great bodily injury and serious bodily injury have
“substantially the same meaning” and on that basis concluded
that “great bodily injury is indeed an element of battery under
section 243, subdivision (d).” (Hawkins, at p. 1375.) Hawkins
was decided before Apprendi, and the degree of similarity that
Hawkins assigned to these terms in reaching its conclusion says
nothing about the degree of similarity they must have to satisfy
Apprendi. Even if it is sufficient for serious bodily injury and
great bodily injury to be “substantially the same” (Hawkins, at
p. 1375, italics added) for purposes of applying Penal Code
section 12022.7, more is required to satisfy Apprendi’s strict
allocation of roles between judge and jury under the Sixth
Amendment.
Further, nothing we say here undermines our suggestion
in dicta in People v. Sloan (2007) 42 Cal.4th 110 that if we were
to consider a great bodily injury enhancement as part of the
underlying offense for the purpose of either constitutional
double jeopardy protections or the judicially created rule
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In re CABRERA
Opinion of the Court by Liu, J.
prohibiting multiple convictions for necessarily included
offenses, a conviction for willful infliction of corporal injury on a
spouse with such an enhancement “would effectively establish
the elements of . . . battery with serious bodily injury.” (Id. at
p. 117.) Our statement in Sloan rested on the assumption that
all great bodily injuries are serious bodily injuries. Here we are
considering the converse question of whether all serious bodily
injuries are great bodily injuries. If anything, we would seem to
cast doubt on our dicta in Sloan if we were to agree with the
Attorney General that serious bodily injury necessarily
establishes great bodily injury.
Our opinion today is also consistent with cases holding
that a broken bone can constitute great bodily injury (People v.
Johnson (1980) 104 Cal.App.3d 598, 608–610 (Johnson)) and
that an injury need not require medical treatment in order to
qualify as serious bodily injury or great bodily injury (People v.
Wade (2012) 204 Cal.App.4th 1142, 1149–1150). The severity of
injury may often amount to both great and serious bodily injury.
In addition, our decision does not disturb other cases cited by
the Attorney General, which hold that the jury instructions on
great and serious bodily injury may stand on their own without
further instruction distinguishing them (People v. Kent (1979)
96 Cal.App.3d 130, 136–137) and that battery with serious
bodily injury does not, without more, qualify as a violent felony
(People v. Hawkins (2003) 108 Cal.App.4th 527, 531) or a serious
felony (People v. Roberts (2011) 195 Cal.App.4th 1106, 1119;
People v. Bueno (2006) 143 Cal.App.4th 1503, 1508 & fn. 5).
In sum, we do not question Burroughs’s statement that
great bodily injury and serious bodily injury are “ ‘essentially
equivalent elements.’ ” (Burroughs, supra, 35 Cal.3d at p. 831.)
But in the specific context of Apprendi, “ ‘essentially
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In re CABRERA
Opinion of the Court by Liu, J.
equivalent’ ” (Burroughs, at p. 831) or “substantially the same”
(Hawkins, supra, 15 Cal.App.4th at p. 1375) or “substantially
similar” (Johnson, supra, 104 Cal.App.3d at p. 610) is not
enough. The maximum sentence a defendant can receive is the
sentence “a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.”
(Blakely, supra, 542 U.S. at p. 303, italics omitted.) Apprendi
demands that we consider only what was necessarily
established by the “guilty verdict standing alone,” not what the
evidence otherwise demonstrated. (Ring, supra, 536 U.S. at
p. 605; see People v. Gallardo (2017) 4 Cal.5th 120, 136 [a court
“may not determine the ‘nature or basis’ of [a] prior conviction
based on its independent conclusions about what facts or
conduct ‘realistically’ supported the conviction” but is instead
“limited to identifying those facts that were established by
virtue of the conviction itself”]; see also Gallardo at pp. 124–125,
134.) Near equivalence does not mean that a finding of serious
bodily injury necessarily entails great bodily injury, and the
Sixth Amendment bars sentencing courts from looking beyond
the verdict to find that a particular serious bodily injury in fact
constituted great bodily injury. We disapprove of People v.
Villareal (1985) 173 Cal.App.3d 1136 and People v. Moore (1992)
10 Cal.App.4th 1868 to the extent they conclude that a serious
bodily injury always constitutes a great bodily injury.
This case comes to us on review of the denial of Cabrera’s
petition for a writ of habeas corpus, in which he argued that he
was provided ineffective assistance of appellate counsel. The
Court of Appeal did not reach a conclusion as to whether
counsel’s performance was deficient, instead holding that
Cabrera “failed to show prejudice in the form of a reasonable
probability of a different outcome had appellate counsel raised
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In re CABRERA
Opinion of the Court by Liu, J.
an Apprendi issue.” Because our opinion today bears directly on
that holding, we remand this case for reconsideration of
Cabrera’s ineffective assistance claim.
CONCLUSION
The sentencing court’s finding of great bodily injury
violated Cabrera’s Sixth Amendment jury trial rights under
Apprendi. We reverse the judgment of the Court of Appeal and
remand for further proceedings consistent with this opinion.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
CANTIL-SAKAUYE, J.*
*
Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
21
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re Cabrera
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 8/25/21 – 3d Dist.
Rehearing Granted
__________________________________________________________
Opinion No. S271178
Date Filed: March 2, 2023
__________________________________________________________
Court: Superior
County: Siskiyou
Judge: Robert F. Kaster
__________________________________________________________
Counsel:
Andrew J. Marx, under appointment by the Supreme Court, for
Petitioner Miguel Angel Cabrera.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Darren K. Indermill, Michael A. Canzoneri, Eric L.
Christoffersen and Rachelle A. Newcomb, Deputy Attorneys General,
for Respondent the People.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Andrew J. Marx
Law Office of Andrew J. Marx
P.O. Box 1225
Mt. Shasta, CA 96067
(530) 925-1291
Eric L. Christoffersen
Deputy Attorney General
1300 I Street
Sacramento, CA 95814
(916) 210-7686