P. v. Modiri
Defendant was convicted by jury trial of aggravated assault (Pen. Code, 245, subd. (a)(1)) and misdemeanor battery (Pen. Code, 242). The jury also found true allegations that defendant had personally inflicted great bodily injury (Pen. Code, 667, 1192.7, subd. (c)(8)) and personally used a dangerous or deadly weapon (Pen. Code, 667, 1192.7, subd. (c)(23)) in the commission of the assault. He was granted probation conditioned on serving a jail term. On appeal, defendant asserted that the personal infliction of great bodily injury (GBI) finding could not be upheld because the trial court, by using CALJIC 17.20, failed to require the jury to find that defendant personally inflicted that injury. He also claimed that the personal use of a weapon finding was tainted by the same instruction. This court agreed with defendant that CALJIC 17.20 was infirm and constituted prejudicial error with respect to the GBI finding, but the California Supreme Court granted review and upheld the validity of CALJIC 17.20. It remanded the case to this court to consider defendants remaining contention.
Defendant contends that the trial courts response to a jury inquiry regarding CALJIC 17.20 was inadequate and prejudiced him with respect to both the GBI finding and the personal use of a weapon finding. Court conclude that the trial courts response was inadequate, but that defendant was not prejudiced by the courts error. Court therefore affirm the trial courts probation order.
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