PEOPLE v. TALARICO

Reset A A Font size: Print

Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. James Russell TALARICO, Defendant and Appellant.

Crim. C002478.

Decided: January 10, 1989

Richard H. Will and Albert W. Brodie, Sacramento, under appointment by the Central California Appellant Program, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., J. Robert Jibson, Supervising Deputy Atty. Gen. and Wanda Hill Rouzan, Deputy Atty. Gen., for plaintiff and respondent.

In this appeal we consider two related issues concerning the imposition of a great bodily injury enhancement under Penal Code section 12022.7.   The first is whether the three year enhancement for inflicting great bodily injury under that section may be imposed as an additional term when the defendant has been convicted of the crime of child beating.  (Pen.Code, § 273d [all further undesignated statutory references are to the Penal Code].)  By its terms, the enhancement does not apply when “infliction of great bodily injury is an element of the offense of which [the defendant] is convicted.”  (§ 12022.7.)   The question is whether great bodily injury is an element of the crime of child beating and that turns on whether the infliction of an injury resulting in a “traumatic condition” under section 273d necessarily constitutes great bodily injury within the meaning of the enhancement.   Because we conclude that the infliction of such a traumatic injury does not necessarily constitute great bodily injury, we hold that great bodily injury is not an element of the crime of child beating.

The second issue is whether the imposition of the enhancement violated either the double jeopardy clause of the Fifth Amendment or the proscription against double punishment contained in section 654.   We hold that imposition of the enhancement did not violate either provision.   Having rejected both challenges, we shall uphold the imposition of the enhancement.

Based upon separate incidents, a jury convicted defendant James Russell Talarico of child beating (§ 273d—count I) and of child endangerment (§ 273a, subd. (1)—count II).   The jury also found true, with respect to each count, allegations that defendant intentionally inflicted great bodily injury on the victim.  (§ 12022.7.)

Sentenced to state prison for an aggregate term of 11 years and 4 months, defendant appeals contending the trial court erred in refusing to strike the great bodily injury enhancement attached to the child beating count.   He makes two arguments.   He argues that the Legislature never intended the enhancement under section 12022.7 to apply to a charge of child beating under section 273d, and that imposition of the enhancement violates the prohibitions against double punishment for the same criminal conduct.   We find both contentions unpersuasive and shall affirm the judgment.

DISCUSSION

I

Since defendant does not challenge the sufficiency of the evidence relating to either his conviction for child beating or the enhancement for great bodily injury, we need note only briefly that his conviction rested upon evidence proving he intentionally broke the leg of his 19–day–old daughter.1

 Defendant contends that the enhancement for inflicting great bodily injury was not intended to be applied to the crime of child beating.   He argues that the language of section 273d reveals that the class of injuries it proscribes necessarily requires the infliction of “great bodily injury” as that phrase is defined in the enhancement section.

The crime of child beating is defined in section 273d as follows:  “Any person who willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for 2, 4, or 6 years, or in the county jail for not more than one year․”

The enhancement for great bodily injury is found in section 12022.7.   This section reads in pertinent part:  “Any person who, with the intent to inflict such injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of three years, unless infliction of great bodily injury is an element of the offense of which he is convicted.  [¶]  As used in this section, great bodily injury means a significant or substantial physical injury.”  (Emphasis added.)

As defendant sees it, the “physical injury” component of the enhancement corresponds to the “corporal punishment or injury” element of the crime of child beating.   Similarly, the “significant or substantial” component of the enhancement corresponds to the element of the crime that the inflicted corporal punishment or injury be “cruel or inhuman” and result in a “traumatic condition.”   Consequently, “corporal ․ injury resulting in a traumatic condition” as used in section 273d is the definitional equivalent of “great bodily injury” as the phrase is used in section 12022.7.   Since the two phrases mean the same thing, so the argument goes, it follows that great bodily injury is an element of the crime of child beating.   And because enhancement under section 12022.7 are by the very terms of the statute made inapplicable to offenses having great bodily injury as an element, imposition of the enhancement was improper.

 As we shall demonstrate, defendant's premise is faulty.   A traumatic condition is not necessarily synonymous with great bodily injury.   Since the two terms do not precisely overlap, the infliction of great bodily injury cannot be construed to be an element of the crime of child beating in violation of section 273d.

We begin our analysis with an examination of the elements of an offense.   A crime in California is defined as “an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, ․ [specified] punishments.”  (§ 15.)   In addition to an act or omission, in order to constitute a crime “there must exist a union, or joint operation of act and intent, or criminal negligence.”  (§ 20.)   For the purpose of our analysis in this case, the elements of a crime then consist of those acts or omissions forbidden or commanded by the defining statute coupled with the requisite intent.2  Thus it has been said that “[e]very crime consists of a group of elements laid down by the statute or law defining the offense and every one of these elements must exist or the statute is not violated.   This group of essential elements is known as the ‘corpus delicti,’ the body or the elements of the crime․   Generally the definition of a crime very clearly lists the elements of the corpus delicti of that crime․”  (Fricke, Cal.Crim.Law (Alarcon 10th rev. ed. (1970) p. 26;  see also 1 Witkin, Cal.Crimes (1963) Elements of Crime, § 88, p. 84.)

We turn then to the elements of the enhancement and the crime.   By statutory definition, great bodily injury under the enhancement “means a significant or substantial physical injury.”  (§ 12022.7.)   Thus in order for the infliction of great bodily injury to be an element of the crime of child beating, the crime must require proof that the inflicted physical injury was “significant or substantial” as opposed to one which is minor, insignificant or unsubstantial.   Stated another way, the question turns on whether the enhancement definition of great bodily injury means the same thing as the infliction of “any cruel or inhuman corporal punishment or injury resulting in a traumatic condition” under the crime of child beating.   If some condition less severe than a significant or substantial physical injury satisfies the statutory requirements of the crime of child beating, then great bodily injury cannot be said to be an element of that crime.   As we shall see, the crime of child beating may be proved by evidence that the inflicted injury was of a minor nature and thus did not amount to great bodily injury as defined in the enhancement.

As originally enacted in 1945, section 273d applied to both wives and children.   It then read:  “Any husband who wilfully inflicts upon his wife corporal injury resulting in a traumatic condition, but not constituting a felonious assault or attempted murder, and any person who wilfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition, but not constituting a felonious assault or attempted murder, is nevertheless guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the State prison for not more than two years or in the county jail for not more than one year.”  (Stats.1945, ch. 1312, § 1, p. 2462.)

Three years later, in People v. Burns (1948) 88 Cal.App.2d 867, 200 P.2d 134, the Court of Appeal ruled that the term “traumatic condition” as used in section 273d was a technical and legal phrase whose meaning was not within the presumptive knowledge of the jurors.   Consequently, the reviewing court went on to hold, the trial court committed reversible error in failing to define the phrase on its own motion.   Although the Burns court itself did not undertake to define the phrase, it did not that the terms “trauma,” “traumatic” and “traumatic condition” had been defined in various ways, including as “ ‘caused by or resulting from a wound or any external injury’ ” and as “ ‘an abnormal condition of the human body produced by external violence as distinguished from that produced by poisons, symotic infections, bad habits and other less evident causes.’ ”  (Id., at p. 874, 200 P.2d 134;  citations omitted.)   It further noted, not too helpfully, that an “examination of the cases cited in Corpus Juris and Words and Phrases reveals that there has been much controversy and litigation with respect to the meaning of ‘traumatic.’ ”   (Ibid.)

Since the Burns court did not undertake the task of defining the statutory phrase, that burden fell upon the Committee on Standard Jury Instructions, Criminal of the Los Angeles County Superior Court.   In 1953, the Committee promulgated its instruction defining a traumatic condition as “a bodily wound or an abnormal bodily condition, whether of a minor or serious nature, and whether internal or external, resulting, however, from contact with some external, physical force, influence or cause, such, for example, as a blow, cut, laceration, fall or other violence.  ( [It is distinguished from a condition resulting from disease, although a disease could result from or be aggravated by a traumatic condition.].)”  (CALJIC 610–C (1953 pocket pt.);   emphasis in original.) 3

This definition was continued in the revised (second) edition as CALJIC No. 612.   It was replicated without change in 1970 as CALJIC No. 9.37 in the Third Edition.   In the Fourth Edition, the instruction was renumbered and the definition truncated.   There a traumatic condition was defined as “a condition of the body caused by violence such as a wound or external injury.”  (CALJIC No. 9.36 (1979 rev.) [4th ed. 1979].)  The next year, the definition was expanded to its present form:  “A traumatic condition is a condition of the body such as a wound or external or internal condition, whether of a minor or serious nature, caused by a physical force.”  (CALJIC No. 9.36 (1980 rev.) [4th ed. 1987 pocket pt.].)  Thus, beginning as early as 1953 and continuing every year thereafter except during 1979, the CALJIC instructions on the crime of child beating have expressly included a minor injury within the definition of a traumatic condition.

In the meantime, without reference to the CALJIC definition and in reliance upon the Burns decision, the Court of Appeal in People v. Stewart (1961) 188 Cal.App.2d 88, 10 Cal.Rptr. 217, noted that for the purpose of section 273d, “traumatic condition has been defined as a wound or other abnormal bodily condition resulting from the application of some external force.  (People v. Burns, 88 Cal.App.2d 867 [200 P.2d 134].)”  (Id., at p. 91, 10 Cal.Rptr. 217.) 4

So the matter stood until 1977.   That year the Legislature removed wife beating from section 273d and made it a separate offense, renumbering it as section 273.5.  (Stats.1977, ch. 912, § 3, p. 2786.) 5  The CALJIC committee responded by adopting an instruction which defined a “traumatic condition” in the same manner as that fashioned for the crime of child beating:  “A traumatic condition is a condition of the body such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.”  (See CALJIC No. 9.35 (1979 rev.) [4th ed. 1979] and CALJIC No. 9.35 (1980 rev.) [4th ed. 1987 pocket pt.].)  Eight years later, the Legislature amended the new section and for the first time expressly defined the term “traumatic condition.”  “As used in this section, ‘traumatic condition’ means a condition of the body, such as a wound or external or internal condition, whether of a minor or serious nature, caused by a physical force.”  (§ 273.5, subd. (c);  Stats.1985, ch. 563, § 1.)   Both the Senate and Assembly committee reports on the amendment reveal that this definition “is adopted from the California Jury Instructions (CALJIC No. 9.35).”  (Assem.Com. on Public Safety, report on Assem.Bill No. 743 (1985–1986 Reg.Sess.);   Sen.Com. on Judiciary, report on Assem.Bill No. 743 (1985–1986 Reg.Sess.).)

The wrong proscribed in these bifurcated offenses, one involving a child and the other a spouse or cohabitant, remained the same:  the infliction of “injury resulting in a traumatic condition․”  (§§ 273d;  273.5.)   In the same year that the Legislature amended the wife beating statute to define the meaning of the phrase “traumatic condition,” the question of its correct construction arose in People v. Gutierrez (1985) 171 Cal.App.3d 944, 217 Cal.Rptr. 616.   There the defendant, convicted of wife beating under section 273.5, attacked the definition of traumatic condition given in the jury instructions.   The trial court had instructed the jury in the language of the 1980 revision of the CALJIC instruction:  “A traumatic condition is a condition of the body such as a wound or external or internal injury, whether of a minor or serious nature, caused by physical force.”  (CALJIC No. 9.35 (1980 rev.).)  Defendant argued that the 1980 addition of “minor” injuries to the CALJIC definition was not supported by law.6  Rejecting that contention, the court held that the instruction was a correct statement of the law because a traumatic condition included both serious and minor injuries by definition.   The reviewing court began its discussion by noting that the need for a definition of the term “arose from the holding in People v. Burns, supra, 88 Cal.App.2d 867, 873–874, 200 P.2d 134, that such words are technical and not within the knowledge of the jurors.”  (Gutierrez, 171 Cal.App.3d at p. 952, 217 Cal.Rptr. 616.)   Noting that the Burns court had set out various definitions of “trauma” and “traumatic” and that other courts later used some of them, the court ultimately relied upon the dictionary definition of trauma for the proper construction of the statutory phrase.   Under that definition, trauma is defined as “ ‘an injury or wound to a living body caused by the application of external force or violence (injuries ․ such as sprains, bruises, fractures, dislocation, concussion—indeed traumata of all kinds ․).’ ”  (Ibid.;   quoting Webster's Third New Internat. Dict. (1981) p. 2432.)   In the court's view, “[i]t is inherent in the definition that both serious and minor injury is embraced [in § 273.5]—‘traumata of all kinds.’ ”  (Ibid.;  emphasis in original.)

The reason for the inclusion of “minor” injury in the term “traumatic condition” was the Legislature's determination that persons of the opposite sex involved in intimate relationships should be clothed with greater protection by requiring less harm.   This special relationship, the Gutierrez court further held, evinced a rational distinction which has a substantial relation to the purpose of the statute.  (Id., at p. 952, 217 Cal.Rptr. 616.)   As we have recounted, this reading of legislative intent was confirmed that very year when the Legislature in 1985 adopted the CALJIC definition in subdivision (c) of section 273.5.

There is simply no reason to construe the phrase “traumatic condition” in section 273d differently from that given it in section 273.5 by the CALJIC committee, the courts, and the Legislature.   After all, the two statutes bear a common ancestry and use identical phraseology.   Moreover, since children are generally more vulnerable than spouses or cohabiting adults, they are entitled to at least as much protection from injury as adults.   It would thus be incongruous, if not outright ludicrous, to accord children less protection by requiring “serious” harm for a violation of the child beating statute but not the crime of wife beating.

Defendant counters that his construction of the crime of child beating as requiring a serious injury is consistent with the statutory hierarchy of offenses against children.   In his view, when the crime of child beating is read in context with its companion provision, section 273a, these sections reveal a graduated approach to dealing with increasingly harmful injuries to children.7  Compared to section 273d, section 273a sanctions a lower level of injury (“unjustifiable physical pain or mental suffering”) and distinguishes between injuries occurring under circumstances “likely to produce great bodily harm or death” (§ 273a, subd. (1)) and those occurring under other circumstances.  (§ 273a, subd. (2).)  The punishment reflects this rising level of harm:  when the probability of great bodily harm or death is not involved, the crime is only a misdemeanor (§ 273a, subd. (2)) but when it is involved the offense is classified as a felony.  (§ 273a, subd. (1).)  Section 273d, on the other hand, reflects a legislative intent to protect children from suffering not the probability but the reality of serious physical injury and is also a felony.   From this hierarchy defendant concludes that the actual infliction of great bodily injury is a necessary element of the crime of child beating.

Defendant misconstrues the statutory scheme.  Section 273a is directed against the infliction of “unjustifiable physical pain or mental suffering” upon a child.   For this part of the crime, no actual injury, great or small, serious or minor, is required.8  Child beating, on the other hand, requires an “injury resulting in a traumatic condition․”  (§ 273d.)   Rather than reflecting a hierarchy of more serious offenses based upon the severity of the physical injuries, these two criminal statutes are simply addressed to the suppression of different evils.   In any event, the Legislature's meaning can be more accurately gauged from its express definition of the phrase “traumatic condition” in the twin statute of wife beating than it can from a comparison of other but different crimes against children.

 We hold, therefore, that the phrase “traumatic condition” as used in the child beating statute has the same meaning as that ascribed to it in section 273.5 and consequently includes minor as well as serious injuries or wounds.9  Thus, while a minor injury is sufficient to constitute a “traumatic condition” under the child beating statute, only “a significant or substantial physical injury” meets the statutory definition of a “great bodily injury.”  (§ 12022.7.)   Hence, the two phrases are not congruent.

In sum, because physical injuries not amounting to great bodily injury under section 12022.7 are sufficient to sustain a conviction under section 273d, great bodily injury is not an element of section 273d.   Consequently, the trial court did not violate the same element restriction of the enhancement statute.

II

Defendant next contends the great bodily injury enhancement should be stricken because it violates the prohibitions against double punishment for the same offense.   The same fact relied upon for the imposition of the enhancement, namely the breaking of the infant's leg, was also the basis for defendant's conviction under section 273d.   In defendant's view, the double jeopardy clause of the Fifth Amendment and the prohibition against multiple punishment under section 654 bar the dual use of the same facts in these circumstances.   We disagree.

 The Fifth Amendment to the United States Constitution declares in relevant part:  “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”   The United States Supreme Court has explicitly held that the double jeopardy clause does not prohibit multiple punishments for a single act if the Legislature clearly intended to impose that punishment.  (Missouri v. Hunter (1983) 459 U.S. 359, 366–367, 103 S.Ct. 673, 678–679, 74 L.Ed.2d 535, 542–543;  Albernaz v. United States (1981) 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275, 284–285.)   Since the language of the enhancement mandates the imposition of an “additional term of three years” which is to be “in addition and consecutive to the punishment for the felony” (§ 12022.7), the Legislature indisputably intended to impose multiple punishment in this circumstance.

 Moreover, even if the double jeopardy clause were somehow applicable to great bodily injury enhancements, that clause would not control this case.   As the court explained in People v. Parrish (1985) 170 Cal.App.3d 336, 217 Cal.Rptr. 700, “[t]he double jeopardy clause of the Fifth Amendment forbids either multiple prosecutions or multiple punishment for the ‘same offense.’   To determine whether one is being punished twice for the ‘same offense,’ one looks to the statutory provisions to see if each provision requires proof of a fact which the other does not.”  (170 Cal.App.3d at pp. 343–344, 217 Cal.Rptr. 700;  citations omitted.)   Since the enhancement requires proof of a “significant or substantial physical injury” (§ 12022.7) while the “traumatic condition” element of the crime of child beating embraces minor injuries (People v. Gutierrez, supra, 171 Cal.App.3d at p. 952, 217 Cal.Rptr. 616), the proof requirements are not the same and the enhancement and the crime cannot be deemed the same offense within the meaning of the Fifth Amendment.   For both of these reasons, there was no violation of the double jeopardy clause of the Fifth Amendment in this case.

 Nor does defendant's multiple punishment argument fare any better.   Section 654 provides in relevant part that “[a]n act or omission which is punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one.”   The literal language of this statute has been enlarged by judicial construction “by including as an ‘act or omission’ a course of criminal conduct wherein multiple violations are incident to an accused's single criminal objective.”  (People v. Beamon (1973) 8 Cal.3d 625, 638, 105 Cal.Rptr. 681, 504 P.2d 905.)  “Decisions of this court,” the California Supreme Court recently noted, “have engrafted onto section 654 a judicial gloss interpreting ‘same act or omission’ to include multiple violations committed in an ‘indivisible’ or ‘single transaction.’ ”  (People v. Siko (1988) 45 Cal.3d 820, 822, 248 Cal.Rptr. 110, 755 P.2d 294;  citation omitted.)   Thus, the high court has “construed section 654 to be applicable to limit punishment for multiple convictions arising out of either an act or omission or a course of conduct deemed to be indivisible in time, in those instances wherein the accused entertained a principal objective to which other objectives, if any, were merely incidental.”  (People v. Beamon, supra, 8 Cal.3d at p. 639, 105 Cal.Rptr. 681, 504 P.2d 905, fn. omitted.)

 On the other hand, the proscription against multiple punishment for a single act derives solely from section 654 and not from the double jeopardy clause.  “By prohibiting multiple punishments for a single criminal act Penal Code section 654 affords protection beyond and different from that given by either the constitutional proscription of subsequent jeopardy or the implementation of that doctrine by Penal Code section 1023.”  (People v. Tideman (1962) 57 Cal.2d 574, 585, 21 Cal.Rptr. 207, 370 P.2d 1007.)   Since this proscription is not constitutionally compelled, the Legislature is free to create exceptions to the limitations of section 654.   Occasionally, the Legislature has explicitly declared that certain punishments are subject to the restrictions of section 654.  (See e.g., §§ 1170.1, subd. (a) [“Except as provided in subdivision (c) and subject to Section 654, ․”];  627.10 [“․ but no punishment shall be imposed contrary to Section 654.”].)  But for the most part the Legislature has not explicitly indicated whether a given multiple punishment scheme is subject to section 654.   In these cases, the question is whether the Legislature intended to create an exception to section 654 by allowing a single act to be punished twice.  (See e.g., People v. Siko, supra, 45 Cal.3d at p. 825, 248 Cal.Rptr. 110, 755 P.2d 294.)   And under the ordinary rules of statutory construction, “section 654, like any other statute, is presumed to govern every case to which it applies by its terms—unless some other statute creates an express exception.”  (Id., at p. 824, 248 Cal.Rptr. 110, 755 P.2d 294.)

Historically, most double punishment problems have involved cases of “the same act or omission” resulting in several crimes.  (See People v. Siko, supra, 45 Cal.3d at pp. 824–825, 248 Cal.Rptr. 110, 755 P.2d 294 [collecting cases].)  But with the advent of the determinate sentencing scheme came a new category of increased punishment:  an “enhancement.”  (See §§ 1170;  1170.1.)   As defined in the rules, an enhancement “means an additional term of imprisonment added to the base term.”  (Cal.Rules of Court, rule 405(c).)  Under this scheme, there are “two kinds of enhancements:  (1) those which go to the nature of the offender;  and (2) those which go to the nature of the offense.   Enhancements for prior convictions—authorized by sections 667.5, 667.6 and 12022.1—are of the first sort.   The second kind of enhancements—those which arise from the circumstances of the crime—are typified by sections 12022.5 and 12022.7:  was a firearm used or great bodily injury inflicted?”  (People v. Tassell (1984) 36 Cal.3d 77, 90, 201 Cal.Rptr. 567, 679 P.2d 1.)

From its definition it is apparent that an enhancement “does not define a crime or offense.”  (People v. Walker (1976) 18 Cal.3d 232, 243, 133 Cal.Rptr. 520, 555 P.2d 306 [construing § 12022.5].)  This distinction between a substantive crime on the one hand, and enhancements on the other, has proved to be troublesome when applying the proscription against multiple punishment contained in section 654.   Compounding this difficulty is the difference between what may be called conduct enhancements (those which go to the nature of the offense) and status enhancements (those which go to the nature of the offender).   Some appellate decisions have held that section 654 never applies to conduct enhancements because enhancements are not offenses.  (See e.g., People v. Parrish, supra, 170 Cal.App.3d at p. 344, 217 Cal.Rptr. 700 [§ 654 does not bar imposition of one great bodily injury enhancement under § 12022.7 for a single crime];  People v. Stiltner (1982) 132 Cal.App.3d 216, 229, 182 Cal.Rptr. 790 [§ 654 does not bar two enhancements under § 12022.3 for use of both knife and firearm during one sex offense];  People v. Boerner (1981) 120 Cal.App.3d 506, 511, 174 Cal.Rptr. 629 [§ 654 does not bar enhancements for both knife use under § 12022, subd. (b) and great bodily injury under § 12022.7 for single crime of robbery].)  These courts have reasoned that “section 654 generally does not apply to enhancements because they do not define a crime or offense but relate only to penalty imposed under certain circumstances.”  (People v. Parrish, supra, 170 Cal.App.3d at p. 344, 217 Cal.Rptr. 700, citations omitted.)

Still other courts have held that section 654 applies to acts and not just offenses and consequently have ruled that it applies to some but not all conduct enhancements, depending upon the language of the enhancing statute, its legislative history and other related statutes.  (See e.g., People v. Barker (1986) 182 Cal.App.3d 921, 941, 227 Cal.Rptr. 578 [§ 654 bars two enhancements for great bodily injury under § 12022.7 for two crimes against one victim committed during a single course of conduct];  People v. McElrath (1985) 175 Cal.App.3d 178, 192, 220 Cal.Rptr. 698 [§ 654 does not bar imposition of four great bodily injury enhancements under § 12022.8 for four sex crimes committed on one victim during indivisible transaction because enhancing statute mandates an enhancement “for each such violation”];  People v. Blevins (1984) 158 Cal.App.3d 64, 68, 204 Cal.Rptr. 124 [§ 654 does not bar three enhancements for deadly weapon use under § 12022.3 for three sexual offenses committed during a single, indivisible transaction because enhancement statute requires imposition of enhancement for “each violation”];  People v. Moringlane (1982) 127 Cal.App.3d 811, 818, 179 Cal.Rptr. 726 [§ 654 bars imposition of three great bodily injury enhancements under § 12022.7 where only one of the three victims suffered the injury].)

There has been a similar split of authority on status enhancements.   Some courts have held that section 654 prohibits the imposition of multiple status enhancements for a single offense, presumably on the ground that the “act” in this type of enhancement is the commission of the crime itself while in the condemned status.  (See e.g., People v. Carter (1983) 144 Cal.App.3d 534, 543, 193 Cal.Rptr. 193 [§ 654 bars one enhancement for a prior prison term under § 667.5 and another one for a prior conviction under § 667.6 for same prior offense].)  Still others have held that section 654 never applies to status enhancements because they prescribe increased punishment in certain circumstances rather than define an offense.  (People v. Warinner (1988) 200 Cal.App.3d 1352, 1355, 247 Cal.Rptr. 197.)   Presumably, the theory is that a status enhancement does not involve conduct and hence cannot be construed as an “act or omission” within the meaning of section 654.

 We need not resolve this last conflict because whatever may be the case with status enhancements, we think it apparent that conduct enhancements do involve “acts” within the meaning of section 654.   And since “section 654 proscribes double punishment for multiple violations of the Penal Code based on the ‘same act or omission’ ” (People v. Siko, supra, 45 Cal.3d at p. 822, 248 Cal.Rptr. 110, 755 P.2d 294), rather than upon the same offense, we conclude the line of cases holding that section 654 applies to all conduct enhancements unless the Legislature intended to authorize multiple enhancements is the correct one.   Consistent with that view, we therefore hold that section 654 applies to all multiple conduct enhancements for the same act except where the Legislature has expressly provided otherwise.   It follows then that section 654 applies to multiple great bodily injury enhancements imposed under section 12022.7 for the same act.  (Accord, People v. Dominick, supra, 182 Cal.App.3d at pp. 1209–1210, 227 Cal.Rptr. 849;  People v. Barker, supra, 182 Cal.App.3d at p. 941, 227 Cal.Rptr. 578;  People v. Moringlane, supra, 127 Cal.App.3d at p. 818, 179 Cal.Rptr. 726.)

But this does not mean that a single enhancement under section 12022.7 cannot be added to a single offense even when both the crime and the enhancement occurred, as they so often do, by the same act or during an indivisible course of conduct.   In our view the Legislature has expressly authorized increased punishment for great bodily injury in those circumstances.   As we have already noted, by the very terms of the enhancement, “in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, [the defendant shall] be punished by an additional term of three years, ․”  (§ 12022.7.)   The fact that the Legislature intended a great bodily injury enhancement to be added to single crime is further reflected in section 1170.1, subdivision (e).   This subdivision authorizes the imposition of two different enhancements for certain specified crimes and for all other crimes provides that “[w]hen two or more enhancements under Sections 12022, 12022.4, 12022.5, 12022.7, and 12022.9 may be imposed for any single offense, only the greatest enhancement shall apply․”   With these explicit commands, the Legislature has directed that the additional punishment under the enhancement is to be imposed when the terms of the enhancing statute have been met.   As the high court has noted, “[s]ection 12022.7 was added to the Penal Code as part of the Uniform Determinate Sentencing Act of 1976, supplanting the specific great bodily injury provisions of sections 213, 264, and 461, and is applicable to all felonies except those in which infliction of such injury is necessarily included as an element of the offense.”  (People v. Cole (1982) 31 Cal.3d 568, 578, 183 Cal.Rptr. 350, 645 P.2d 1182.)   By its enactment, the Legislature intended to subject those who directly perform the act that causes the physical injury to the victim to the enhanced penalty for the infliction of great bodily injury.  (31 Cal.3d at p. 579, 183 Cal.Rptr. 350, 645 P.2d 1182.)   Blithely ignoring this legislative directive, defendant would read the enhancement out of the Penal Code.   If defendant's construction were correct, an enhancement for great bodily injury could be applied only rarely because it would always violate the proscription of section 654 except in those unusual instances where the great bodily harm was inflicted as an afterthought in a separate, divisible transaction.   We reject such a contorted reading of the statute and its express legislative purpose.

 The fact that the Legislature expressly intended one great bodily injury enhancement to be added to a single crime against one victim for the same act or during an indivisible transaction notwithstanding the provisions of section 654 does not mean, however, that the proscription against double punishment never applies to multiple conduct enhancements under section 12022.7.   Quite the contrary.   When section 654 applies, the act which constitutes one conduct enhancement cannot be used for another enhancement and then punished a second time.   It also means that when it applies section 654 prohibits the repetitious use of one conduct enhancement for several crimes.   Thus it has been observed that a “substantial number of cases hold or otherwise indicate that Penal Code section 654 does in appropriate circumstances bar the imposition of multiple sentence enhancements for the commission of a single act.”  (People v. Moringlane, supra, 127 Cal.App.3d at p. 818, 179 Cal.Rptr. 726;  citations omitted.)   It follows, by way of illustration, that the single act of firearm use cannot be used to enhance a defendant's sentences for both attempted murder and attempted robbery of the same victim where those offenses constitute an indivisible transaction.  (People v. Cardenas (1982) 31 Cal.3d 897, 913–914, 184 Cal.Rptr. 165, 647 P.2d 569 [expressing views of three justices];  see also People v. Hernandez (1988) 46 Cal.3d 194, 205, 249 Cal.Rptr. 850, 757 P.2d 1013.)   What is prohibited then is the imposition of multiple enhancements.   Consequently, it has been held that “section 654 as interpreted prohibits the imposition of multiple enhancements for the single act of inflicting great bodily injury upon one person.”  (People v. Moringlane, supra, 127 Cal.App.3d at p. 817, 179 Cal.Rptr. 726.)   But no multiple enhancements were imposed in this case.   Instead the enhancement was applied only once for the crime committed when defendant broke the leg of his infant daughter.   Consequently, no violation of the proscription of section 654 occurred in this case.

The judgment is affirmed.

We concur:

FOOTNOTES

1.   The crime of child endangerment, charged in Count II and not challenged on appeal, was supported by evidence that prior to the date of breaking his infant daughter's leg defendant fractured her skull, her right arm, and caused injuries to the other arm and a knee.   Since this offense occurred at a different time and during an entirely separate incident, no double punishment issue under section 654 arose when a great bodily injury enhancement was also added to this count.  (People v. Dominick (1986) 182 Cal.App.3d 1174, 1209–1210, 227 Cal.Rptr. 849.)

2.   The Model Penal Code defines an element of an offense more broadly.   Under its definition, an “ ‘element of an offense’ means (i) such conduct or (ii) such attendant circumstances or (iii) such a result of conduct as (a) is included in the description of the forbidden conduct in the definition of the offense;  or (b) establishes the required kind of culpability;  or (c) negatives an excuse or justification for such conduct;  or (d) negatives a defense under the statute of limitations;  or (e) establishes jurisdiction or venue.”  (Model Pen.Code, § 1.13, subd. (9) [paragraphing deleted].)  As the Code commentary candidly concedes, “[w]hile this broad definition of ‘element’ is useful for the purpose of the procedural provisions, it is obviously too broad for the purpose of the culpability provisions.   Here what is needed is a concept that delineates the types of elements to which requirements of mens rea should be applied.   Paragraph (10), defining ‘material element of an offense,’ is designed to perform this function.”  (Model Pen.Code and Commentaries, com. to § 1.13, p. 210;  citation deleted.)Under paragraph (10), “ ‘material element of an offense’ means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct․”  (Model Pen.Code, § 1.13, subd. (10).)  For our purpose, we use the phrase “element of the offense” in this more limited and restricted sense.   In the broader context, what is or is not an element of a crime has important ramifications on questions of the burdens of proof, persuasion and producing evidence as well as for the proof of various defenses and excuses.   We have no occasion here to explore those broader questions because we are solely concerned with what the Model Code refers to as a “material element of an offense.”

3.   In its commentary, the Committee noted the Burns decision and for its definition of traumatic condition cited the sister state decisions in Crutcher Dental Depot, Inc. v. Miller (1933) 251 Ky. 201, 64 S.W.2d 466;  Great Atlantic & Pacific Tea Co. v. Sexton (1932) 242 Ky. 266, 46 S.W.2d 87, 89;  and Metcalf v. Dept. of Labor & Industries (1932) 168 Wash. 305, 11 P.2d 821.The instruction went on to define a corporal injury as “an injury to the body, as distinguished from a mental or emotional disturbance, injury or distress.”   It further stated that “[c]orporal punishment consists in delivering or applying to the body of a person some physical force in an effort to punish through the infliction of pain or discomfort.”  (Ibid.)

4.   A variation of this definition withstood a constitutional challenge for vagueness in (People v. Cameron (1975) 53 Cal.App.3d 786, 126 Cal.Rptr. 44.)   There the trial court defined a traumatic condition as “ ‘an abnormal condition of the living body produced by violence.’ ”   (Id., at p. 797, 126 Cal.Rptr. 44;  citation omitted.)   Approving this definition, the reviewing court mused, perhaps unduly optimistically, that the phrase “appears to pose no difficulty of interpretation.”  (Ibid.)  Citing the Cameron decision, the California Supreme Court later agreed that section 273d was not void for vagueness.  (People v. Smith (1984) 35 Cal.3d 798, 810, 201 Cal.Rptr. 311, 678 P.2d 886.)

5.   Penal Code section 273.5, subdivision (a) provides in relevant part:  “Any person who willingly inflicts upon his or her spouse, or any person who willfully inflicts upon any person of the opposite sex with whom he or she is cohabiting, corporal injury resulting in a traumatic condition, is guilty of a felony․”

6.   As we have noted earlier, except for the year 1979 the relevant CALJIC instructions have continuously defined a traumatic condition as including minor injuries since 1953.

7.   Section 273a reads:  “(1) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for 2, 4, or 6 years.  [¶]  (2) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is guilty of a misdemeanor.”

8.   The child abusing and endangering statute also prohibits the endangerment of a child's person or health.   But this portion of the crime applies only to persons “having the care or custody” of the child.  (§ 273a.)   The child beating statute, on the other hand, has no such restriction and applies to all persons without regard to their relationship to the child.   Thus as to this portion of the crime there is no hierarchical relationship between the two statutes.

9.   An example of minor injuries constituting a traumatic condition but not a great bodily injury can be found in People v. Thomas (1976) 65 Cal.App.3d 854, 135 Cal.Rptr. 644.   There defendant was convicted of child beating after striking a 15 year old girl with his fists.   The girl's left eye was terribly swollen and reddened, her lower lip cut and swollen and her neck scratched.   Although these injuries were held sufficient to satisfy the provisions of sections 273d, these injuries do not appear to constitute a “significant or substantial physical injury” under the great bodily injury enhancement.   A further illustration may be drawn from the facts in People v. Caudillo (1978) 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274.   There the defendant, by means of a carving knife, forced the victim to engage in a series of sexual acts.   After the victim's release, it was discovered that she sustained two cuts—a superficial cut of three inches on the front of her neck and another superficial cut of one and one-half inches on the back of her neck.   The court held that neither injury could be considered significant or substantial so as to justify imposition of a great bodily injury enhancement under section 12022.7.  (Id., at p. 588–589, 146 Cal.Rptr. 859, 580 P.2d 274.)   While these injuries are insufficient to establish great bodily injury under section 12022.7, we have no doubt that had they been inflicted upon a child they would have been sufficient to prove “injury resulting in a traumatic condition” under section 273d.

SPARKS, Associate Justice.

CARR, Acting P.J., and SIMS, J., concur.