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Name: People v. Elder
Case #: C067983
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/25/2014

Sufficient evidence supported the personal infliction of great bodily injury (GBI) allegation where victim injured his finger during struggle to prevent defendant from escaping. A jury found Elder guilty of kidnapping for robbery, robbery, and assault with a deadly weapon based on evidence that Elder robbed a couple in their van. The jury also found true allegations that Elder personally inflicted GBI (Pen. Code, § 12022.7). During the robbery, the husband gained the upper hand and Elder attempted to escape. As he tried to exit the victims’ van, the husband grabbed Elder’s hooded sweatshirt and, during the struggle, the husband dislocated his finger. On appeal, Elder challenged the GBI enhancements, contending that there was no substantial evidence that he directly performed the act that caused the injury to the victim’s finger. Held: Affirmed. To be liable for an enhanced sentence under section 12022.7, the defendant must be the direct, rather than proximate, cause of the victim’s injuries, but the application of physical force is not required. A defendant may still be liable even if others are involved at the time the injury is inflicted. Here, Elder voluntarily engaged in a struggle with the victim and was a direct cause of the victim’s injury. The fact that the victim grabbed Elder as he struggled to get away does not absolve him from responsibility for the injury. Elder alternatively argued that injury did not occur “during the commission of the assault” because the assault was complete before the victim injured his finger. The court rejected this argument. An injury that occurs during an attempt to escape may be deemed to have occurred “in the commission of” a felony offense, even if the escape is after the technical completion of the crime.