Under Penal Code section 12022.7, subdivision (d) (personal infliction of great bodily injury on a child under five years of age), defendant must be the direct rather than the proximate cause of the injury and directly, rather than through an intermediary, cause the injury.
Defendant, 18 years old, concealed her pregnancy and then, unassisted, gave birth to her son in her bedroom. The birth remained undiscovered for several hours until defendant’s mother entered the room and found the baby in distress. He had a low temperature, was in a coma, and in a life-threatening condition. At trial, prosecution witnesses testified that the infant’s condition was probably caused by a failure to swaddle him after birth which resulted in hypothermia. As a result, there was a possibility that he might experience behavioral or learning problems in the future. Appellant was convicted of felony child abuse and personal infliction of great bodily injury. The court rejected her claim that she did not personally inflict the injury. For the enhancement to apply, a defendant must be the direct cause of the injury and overwhelming evidence supported the conclusion that appellant’s inaction by not swaddling the baby caused the injuries. As to the requirement of personal infliction, it need only be shown that defendant, rather than an intermediary, caused the harm, and failure to act where action is required, is not precluded from the reach of the statute. Here, appellant failed to swaddle the baby and failed to avail herself of assistance from other family members. This directly resulted in the infant’s hypothermia so as to meet the definition of “personally inflicted” required by the statute. Because “personally inflicted” has a nonlegal meaning, as opposed to a technical, legal meaning requiring clarification, the court had no sua sponte duty to instruct on the definition, absent a request from defendant.