PEOPLE v. DIXON

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Irwin DIXON, Defendant and Appellant.

Cr. 13847.

Decided: June 07, 1983

Quin A. Denvir, State Public Defender, under appointment by the Court of Appeal, and Jeffrey J. Stuetz, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

People v. Caudillo, 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274 held the “great bodily injury” concept (Pen.Code, § 12022.7) 1 was designed by the Legislature to trigger enhanced sentences and must be based upon evidence of injury substantially beyond that necessarily present in the commission of the crime or inherent in the act itself.  (Caudillo, at p. 587, 146 Cal.Rptr. 859, 580 P.2d 274.)   In order to impose enhanced punishment the injuries must be “significant or substantial” in contrast to injuries “that can logically only be described as constituting transitory and short-lived bodily distress.   They do not fall within the contours of injuries that are severe or protracted in nature.”  (Id., at p. 588, 146 Cal.Rptr. 859, 580 P.2d 274.)   In this legal backdrop, Dixon pled guilty to infliction upon a child of cruel and inhuman corporal punishment and injury (§ 273d) and admitted to inflicting great bodily injury on a 10 1/212-month-old child.2  (§ 12022.7.)

Dixon's guilty plea and admission were received with this shocking evidence of child abuse:  The Oceanside Fire Department responded to an emergency call from Dixon's home.   The Dixons' 10 and 1/212-month-old daughter Renae had stopped breathing.   The child was comatose and taken immediately to a hospital where an Oceanside police officer, trained in child abuse investigation, observed several large bruises on her body, teeth marks on her abdomen and cheeks and lash marks on her buttocks and back.   The child suffered several seizures while being examined by an emergency room doctor.   X-rays revealed no broken or fractured bones;  however, the doctor believed the child was bleeding in her center brain area.   The doctor also found three round bruises on the child's lower jaw, a small bruise at the base of her skull, many long bruises on her upper arms and armpits (perhaps caused by hands pressing on her body) and many small bruises and round, bluish-tinted “Mongolian blue spots” on her back.   There was a laceration bruise almost two inches long on the child's right hip and the perfect imprint of a hand on her right buttock.   The child's buttocks were a “mass of hematomas.”

Later that evening as her seizures continued, the child was flown to another hospital for further diagnosis and treatment.   Doctors there concluded the child suffered a brain contusion.   The doctors also discovered two rectal tears and extensive retinal bleeding.   The doctors feared the child would suffer partial blindness and permanent paralysis of the left side of her body.

Renae remained in intensive care for a week, spent about a month at a rehabilitation center and then received several months of bi-weekly physical therapy following placement in a foster home.   The doctors initially feared for Renae's life;  she improved, and by the time of Dixon's sentencing she was expected to make almost a complete recovery.   It is too soon, however, to assess the psychological and emotional damage the child has suffered.

 Oceanside police officers questioned Dixon and his wife separately.   Dixon first denied knowing how the child had been injured, but later said:

“I hit her with my hand on the butt.   She cried.   I picked her up by the arms to make her stand up, learn how to walk.   She sat down.   I yanked her up by the upper arms, I threw her on the bed, she bounced and wound up on the floor.   I then told my wife to get help.   I blew into her mouth to make her breathe.   She was unconscious.   I've had a little bit of First Aid, and I thought maybe cold water would revive her.   I put her into the shower to get her wet.”

Dixon also admitted biting the child on her face and chest.   After examining impressions made of Dixon's mouth, an odontologist concluded Dixon's teeth caused the bite marks on the child's body.   Around midnight on August 26, 1981, Dixon wrote and signed a confession describing his mistreatment of the child.3

Dixon's wife corroborated his statements to the police.   She told the police:

“He hits her with his fist all the time, slaps her face, hits her in the head with his fists, he whips her with the belt.   He threw her on the bed and shakes her.   He told me not to go into the room with that little ‘bitch’ and to slam the door and leave her cry.   He does this all the time, he's been doing it for about two weeks, ever since they got married.”

On appeal Dixon seeks to have the enhancements stricken and at the same time maintain the benefits of having the charges of attempted murder, assault with a deadly weapon and other charges dismissed under the plea bargain.

Dixon argues the elements of section 273d—cruel or inhuman corporal punishment resulting in a traumatic condition or a cruel or inhuman injury resulting in a traumatic condition—are necessarily included, the equivalent of a “significant or substantial” injury within the meaning of section 12022.7.   In brief, Dixon claims his section 273d sentence cannot be enhanced as a matter of law;  the infliction of great bodily injury is an element of the offense charged (§ 273d).

DISCUSSION

I

Dixon's no enhancement argument must be weighed and found wanting in light of People v. Caudillo, supra, 21 Cal.3d 562, 580–581, 146 Cal.Rptr. 859, 580 P.2d 274).  Caudillo discusses in great detail the legislative intent in its definition of “great bodily injury” in the context of section 12022.7.   (Id., at p. 581, 146 Cal.Rptr. 859, 580 P.2d 274.)   The Supreme Court points out when section 12022.7 was first enacted in 1976 the species of injury necessary to trigger the three year enhancement was most specific:

“As used in this section, ‘great bodily injury’ means a serious impairment of physical condition, which includes any of the following:

“(a) Prolonged loss of consciousness.

“(b) Severe concussion.

“(c) Protracted loss of any bodily member or organ.

“(d) Protracted impairment of function of any bodily member or organ or bone.

“(e) A wound or wounds requiring extensive suturing.

“(f) Serious disfigurement.

“(g) Severe physical pain inflicted by torture.”  (Italics added.)

Even before the 1976 law became effective section 12022.7 was amended (1977) by striking the detailed definition of great bodily injury recited above and substituting:  “As used in this section, great bodily injury means a significant or substantial physical injury.”   In contrast section 273d provides:

“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, 3, or 4 years, or in the county jail for not more than one year.”

Factually and facially there is no requirement in section 273d the injury be significant or substantial or physical.   Only a “traumatic condition” fulfills the statutory element.   Dixon argues an injury which is significant and substantial within the meaning of section 12022.7 is the legal equivalent to an injury resulting in a traumatic condition within the meaning of section 273d.   It is true that a significant and substantial physical injury may also result from cruel or inhuman corporal punishment resulting in a traumatic condition.   However, the converse does not follow.   An injury resulting in a traumatic condition need not be either physical in nature or significant or substantial within the meaning of section 12022.7.

The conclusion the Legislature did not intend to equate the concept of “great bodily injury” with the elements of the crime defined by section 273d is supported not just by pure logic but also by consideration of and contrasting the language in the two sections.   We must accept the legislative intent as expressed by the plain words of the statute.   A “traumatic condition” has been defined as a wound or other abnormal bodily condition resulting from the application of some external force.  (People v. Thomas, 65 Cal.App.3d 854, 857, 135 Cal.Rptr. 644;  People v. Stewart, 188 Cal.App.2d 88, 91, 10 Cal.Rptr. 217.)  “Traumatic” is defined in Black's Legal Dictionary as caused by or resulting from a wound or external injury.   In Webster's New International Dictionary the term trauma is defined as a wound or injury and traumatic as pertaining to or due to a wound or injury.  (People v. Burns, 88 Cal.App.2d 867, 873–874, 200 P.2d 134.)   This definition is so broad as to encompass any injury to the body caused by external violence.  (Id., at p. 873, 200 P.2d 134.)

 From this broad definition encompassing any wound or abnormal bodily condition resulting from the application of external force the Legislature has in section 12022.7 carved out those physical injuries which are significant or substantial for enhancement purposes.   The injury must be more than merely transitory, trivial, insignificant or moderate.   The injury must be visually disfiguring, cause significant pain or require considerable time to heal.  (People v. Caudillo, supra, 21 Cal.3d at p. 587, 146 Cal.Rptr. 859, 580 P.2d 274;  People v. Lopez, 131 Cal.App.3d 565, 573, 182 Cal.Rptr. 563.)   We conclude the occurrence of great bodily injury is not a necessary precondition to violation of section 273d.   Therefore, great bodily injury is not an element of the latter offense.  (Cf., People v. Jaramillo, 98 Cal.App.3d 830, 837, 159 Cal.Rptr. 771.)

The 1977 Penal Code section 12022.7 amendment in striking out the specific detailed definition of great bodily injury and substituting the more general definition, “significant or substantial physical injury,” was not intended to lessen the magnitude of bodily injury needed to trigger enhancement.   The legislative intent was to preclude the possibility the 1976 detailed definition might be construed as all-inclusive, leaving no latitude to the trier of fact to find a bodily injury of equal magnitude to the category specified in the detailed definition but not coming literally within any category set forth.   Thus, the definition of “great bodily injury” requires the injury constitute a “significant or substantial physical injury.”  (Caudillo, 21 Cal.3d at p. 581, 146 Cal.Rptr. 859, 580 P.2d 274.)

In applying the Caudillo standard, People v. Johnson, 104 Cal.App.3d 598, 164 Cal.Rptr. 69, held a fractured jaw was a significant and substantial physical injury because the injury caused significant pain and required considerable time to heal.  (Johnson, at p. 609, 164 Cal.Rptr. 69.)   In People v. Lopez, supra, 131 Cal.App.3d 565, 573, 182 Cal.Rptr. 563, this court readily found gunshot wounds requiring hospitalization met the Caudillo section 12022.7 criteria and approved the great bodily injury enhancement upon an assault with a deadly weapon conviction.

 People v. Jaramillo, supra, 98 Cal.App.3d 830, 159 Cal.Rptr. 771, 4 discussed and applied the Caudillo definitions at length and found substantial evidence of great bodily injury.   The child had suffered “multiple contusions over various portions of her body and the injuries caused swelling and left severe discoloration on parts of her body.   The injuries were visible the day after infliction to at least two lay persons ․  [The child] suffered pain as a result of her injuries and a day later she still had a ‘look of anguish’ on her face and she flinched or turned away from a simple guiding touch on the shoulder․”  (Id., at p. 836, 159 Cal.Rptr. 771.)   The Jaramillo court explained a fine line can divide an injury from being significant or substantial from an injury which does not meet that description.  “Clearly it is the trier of fact that must in most situations make the determination.”  (Ibid.;  italics added.)

The defendant himself has made that determination for us.   By his admitting to the specific great bodily injury charge in face of the most specific offer of proof of substantial and significant physical injuries inflicted on the child, Dixon makes unnecessary a search for that “fine line.”

Renae's wounds included prolonged loss of consciousness, a severe concussion, internal bleeding of the brain and retina, two rectal tears, temporary paralysis and blindness.   These injuries meet the more rigorous, most specific definition found in the 1976 language of section 12022.7.   That these injuries are physical and are encompassed within the term “significant and substantial” belies argument and Dixon makes no such argument in face of these injuries.

 A dispassionate and common sense reading of section 273d and section 12022.7 in pari materi—as we are required to read statutes—reveals not two sections intended to deal with the same injuries but rather a graduated system for dealing with different levels of harm.   When the traumatic wound inflicted is no longer trivial, transitory, moderate or insignificant, and where especially as here the wounds are of such nature as to bring them within the now-deleted specified wounds encompassed by the terms “significant or substantial,” then such wounds upon conviction or a plea of guilty warrant the imposition of a three-year enhancement.   While Jaramillo points out it is clearly the trier of fact that must in most situations make the determination as to whether a traumatic injury is of such nature to be substantial and significant, here the facts do not in any way appear to be in the environs of that fine line.   The injuries committed on this child warrant not merely the charge pleaded to, plus enhancement, but the greater charge dismissed as part of the plea bargain, attempted murder.  (Pen.Code, § 664/187.)   Dixon's plea and admission are factually supported beyond any reasonable doubt.   There is no basis in law or in fact for striking the enhancement.

II

 Dixon next contends the probation report violated rule 419 of the California Rules of Court because it did not include an adequate discussion of his suitability and eligibility for probation.   The report discusses thirteen of the criteria effecting probation listed in rule 414 and its comments.   Rule 414(a) includes statutory provisions as criteria effecting the grant of probation.   The report, based on rule 414(a), says:

“Pursuant to section 1203e(3)—The defendant is not eligible to [sic] Probation.”

The report then concludes “defendant is ineligible to [sic] probation unless the court finds special circumstances exist.”   In the record on appeal there does not appear to be any special circumstances of sufficient weight to warrant granting probation.   However, if the court finds otherwise (after an examination of factors listed in rule 414) a psychological examination, pursuant to section 1203h, may be authorized before sentencing.  (People v. Glover, 111 Cal.App.3d 914, 169 Cal.Rptr. 12.) 5

Conspicuous by its absence in the present probation report is any discussion of the criteria effecting probation in unusual cases under section 1203, subdivision (e).  (Rule 416.)   The record here suggests at least three of rule 416's criteria are relevant to the facts of this case.  (Rule 416(b), (e) and (f).) 6

The present probation report recommended probation be denied and a maximum sentence be imposed without discussing the rule 416 criteria.   This omission violated rule 419(a)(8) requiring a reasonable discussion of defendant's suitability and eligibility for probation.   If a prison sentence is recommended or likely to be imposed, a reasonable discussion of factors effecting sentence length must be included.

We assume the harmless error standard applies in evaluating the deficiencies in the probation report (People v. Wright, 30 Cal.3d 705, 714, 719, 180 Cal.Rptr. 196, 639 P.2d 267) but conclude it is impossible to say even with hindsight that it is reasonably probable this violation did not prejudice Dixon.   We are unable to discern whether the probation officer's consideration of rule 416's criteria would have produced a recommendation of probation or less than the aggravated sentence should be imposed.   We do not speculate what a proper presentence report will recommend.  (People v. Mancheno, 32 Cal.3d 855, 866, 187 Cal.Rptr. 441, 654 P.2d 211.)   Since remand is required for resentencing only in this matter, to assist the court in considering Dixon's suitability and eligibility for probation in light of rule 416 criteria, a new probation report should include the results of psychological evaluations now permitted (not required) by section 1203, subdivision (h), in child abuse cases.   We further find it unnecessary to address Dixon's arguments regarding the trial court's alleged improper use of aggravating circumstances in imposing the upper term on his 273d conviction, for we assume upon resentencing in this matter, the trial court will comply with all applicable statutes and court rules.

Judgment of conviction affirmed;  cause remanded for resentencing only.

I agree this case should be remanded for resentencing (see Part II, maj.opn., ante, at pp. 922–923);  I disagree, however, that “[t]here is no basis in law or in fact for striking the [section 12022.7] enhancement.”  (See Part I, maj. opn., ante, at p. 922.)   On two independent grounds I conclude the enhancement imposed on Dixon under section 12022.7 is unauthorized and void as a matter of law.   I discuss each ground separately.

I

The majority's conclusion a section 12022.7 enhancement is not an element of a section 273d offense is tied to its analysis of the respective statutes.   I believe the correct starting point should be the allegations which Dixon admitted when he entered his guilty plea.  (See People v. Stanworth (1974) 11 Cal.3d 588, 604–605, 114 Cal.Rptr. 250, 522 P.2d 1058.)   The yardstick for measuring offenses which are necessarily included in a charge (§ 1159) is not limited to the language of the statute defining the offense charged, but extends to the language of the accusatory pleading.   (People v. St. Martin (1970) 1 Cal.3d 524, 536, 83 Cal.Rptr. 166, 463 P.2d 390.)

Here, the amended information did not charge Dixon in the language of section 273d, but substituted “and” for “or,” alleging Dixon inflicted “cruel and inhuman corporal punishment and injury resulting in a traumatic condition.”  (Italics supplied.)   The information also charged Dixon “․ in the commission of the above [section 273d] offense ․ personally inflicted great bodily injury ․ within the meaning of ․ section 12022.7.”   By incorporating conjunctive allegations Dixon's guilty plea admitted all the elements of section 273d rather than only the single element of “traumatic condition” selected by the majority as fulfilling that section's requirements.  (See maj. opn., ante, at p. 920.)   Furthermore, Dixon's admission he inflicted “great bodily injury” in committing his section 273d offense is also at odds with the majority's theoretical statement that “[a]n injury resulting in a traumatic condition need not be either physical in nature or significant or substantial within the meaning of section 12022.7.”   (Ibid.)  Therefore, whether my following analysis of the statutes is correct, the unique pleadings in this case compel the conclusion that the section 12022.7 enhancement is included within Dixon's conviction under section 273d.

II

The majority interprets section 273d as not requiring the infliction of “great bodily injury” under section 12022.7.  (Cf. People v. Jaramillo (1979) 98 Cal.App.3d 830, 837, 159 Cal.Rptr. 771; 1  see maj. opn., ante, at pp. 920–921.)   This conclusion apparently rests on the majority's view of “great bodily injury” as a subset of the class of injuries whose infliction is punishable under section 273d.  (See ibid.)   This view, in turn, seems to rest on two erroneous interpretations of section 273d's language noted above.   First, that the “injury” required by section 273d need not be physical;  and second, that section 273d can be satisfied by simply causing a “traumatic condition” rather than by inflicting a “cruel or inhuman corporal punishment or injury resulting in a traumatic condition.”   (See maj. opn., ante, at p. 920.)   I analyze sections 273d and 12022.7 somewhat differently.

When enacted in 1976 section 12022.7 defined “great bodily injury” as “․ a serious impairment of physical condition, which includes any of the following:  [¶] (a) Prolonged loss of consciousness.  [¶] (b) Severe concussion.  [¶] (c) Protracted loss of any bodily member or organ.  [¶] (d) Protracted impairment of function of any bodily member or organ or bone.  [¶] (e) A wound or wounds requiring extensive suturing.  [¶] (f) Serious disfigurement.  [¶] (g) Severe physical pain inflicted by torture.”   (Stats.1976, c. 1139, § 306, pp. 5162–5163.)   In 1977 the Legislature amended the section by replacing this detailed definition with the more general statement that “great bodily injury” means a “significant or substantial physical injury.”  (Stats.1977, c. 165, § 94, p. 679.)   The 1977 amendment was not intended to dilute the meaning of section 12022.7.   Instead, it was designed to preclude the 1976 definition from being construed as all inclusive.  (People v. Caudillo (1978) 21 Cal.3d 562, 581–582, 146 Cal.Rptr. 859, 580 P.2d 274.) 2  Thus, since 1977, “great bodily injury” includes all severe or protracted physical injuries comparable to those listed in the 1976 definition.  (Id., at pp. 582, 588–589, 146 Cal.Rptr. 859, 580 P.2d 274.) 3

A definitional analysis of section 273d's language indicates the class of injuries it proscribes necessarily requires the infliction of “great bodily injury” as defined in section 12022.7.  Section 273d injuries are products of “[1] cruel or inhuman [2] corporal [3] punishment or injury [4] resulting in a traumatic condition.”   The two components of “great bodily injury” correspond to these four elements in the following manner.

First, the “physical injury” component of “great bodily injury” corresponds to the “corporal punishment or injury” required by section 273d.  “The term ‘corporal’ is defined as ‘affecting, related to, or belonging to the body.’   (Webster's New Internat. Dict. (3d ed. 1961) p. 510.)   The term ‘punishment’ is defined as ‘the act of punishing ․ retributive suffering, pain, or loss ․ severe, rough, or disastrous treatment․’  (Webster's New Internat. Dict. (3d ed. 1961) p. 1843.)   Together, these words mean, ‘any kind of punishment of or inflicted on the body․’  (Black's Law Dict. (4th ed. 1968) p. 408.)”  (Kate's School v. Department of Health (1979) 94 Cal.App.3d 606, 614, 156 Cal.Rptr. 529.)   As shown above, the term “corporal” in section 273d modifies “injury” as well as “punishment.”  “Corporal injury” has substantially the same meaning as “corporal punishment.”  (See People v. Burns (1948) 88 Cal.App.2d 867, 873, 200 P.2d 134.)   Thus, the term “corporal punishment or injury” is definitionally equivalent to “physical injury.”

Second, the “significant or substantial” component of “great bodily injury” corresponds to section 273d's requirement that the corporal punishment or injury inflicted be “cruel or inhuman” and result in a “traumatic condition.”   “Cruel” is defined as “ ‘[d]isposed to give pain to others;  willing or pleased to hurt or afflict;  savage, inhuman, merciless.’ ”  (People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 802, 183 Cal.Rptr. 800, 647 P.2d 76;  see also People v. McCaughan (1957) 49 Cal.2d 409, 415, 317 P.2d 974.)   “Inhuman” is defined as “lacking the qualities of mercy, pity, kindness, or tenderness:  CRUEL, BARBAROUS, SAVAGE ․” (Webster's Third New Internat. Dict. (1968) p. 1163.)  “Traumatic condition” is defined as a “ ‘wound or other abnormal bodily condition resulting from the application of some external force’ ” (People v. Thomas (1976) 65 Cal.App.3d 854, 857, 135 Cal.Rptr. 644;  People v. Stewart (1961) 188 Cal.App.2d 88, 91, 10 Cal.Rptr. 217), or as an “ ‘abnormal condition of the living body produced by violence.’ ”   (People v. Cameron (1975) 53 Cal.App.3d 786, 797, 126 Cal.Rptr. 44;  People v. Burns, supra, 88 Cal.App.2d at p. 873, 200 P.2d 134.)   Thus, by definition, any corporal punishment or injury which is “cruel or inhuman” and results in a “traumatic condition” must necessarily be “significant or substantial.” 4

An examination of section 273d in context with its companion provision, section 273a,5 supports this definitional analysis.   Read together, sections 273a and 273d comprise a graduated approach to dealing with increasingly harmful injuries to children.6  Compared to section 273d, section 273a sanctions a lower level of injury (“unjustifiable physical pain or mental suffering”) and requires less culpability to apply.  (Compare People v. Peabody (1975) 46 Cal.App.3d 43, 48–49, 119 Cal.Rptr. 780 (273a requires criminal negligence) with People v. Atkins, supra, 53 Cal.App.3d at p. 358, 125 Cal.Rptr. 855 (273d requires general intent to injure).)   Furthermore, section 273a distinguishes between injuries occurring under circumstances “likely to produce great bodily harm or death” (§ 273a, subd. (1), fn. 5, ante, italics supplied) and injuries occurring under circumstances “other than those likely to produce great bodily harm or death․”  (§ 273a, subd. (2), fn. 5, ante, italics supplied.)  Section 273d makes no such distinction, presumably because of the greater level of injury required for a violation.   As for punishment, violations of section 273a, subdivision (2) are misdemeanors punishable by a maximum sentence of six months in county jail or a $500 fine, or both.  (§ 19.)   Violations of section 273a, subdivision (1) may be either misdemeanors punishable by up to one year in county jail or felonies punishable by 2, 3 or 4 years in state prison.  (§ 17, subds. (a), (b)(1);  see People v. Wright (1976) 60 Cal.App.3d 6, 10, fn. 3, 131 Cal.Rptr. 311.)   Violations of section 273d, though punishable in like manner as violations of section 273a, subdivision (1), are always felonies because they are expressly characterized as such.  (See In re Wilson (1925) 196 Cal. 515, 520–524, 238 P. 359;  1 Witkin, Cal.Crimes (1963) § 39, p. 42.) 7

Thus, as the level of injury increases, the punishment which can be imposed becomes more severe and the characterization of the offense becomes more serious.   The possibility of greater punishment and felony rather than misdemeanor status for section 273a, subdivision (1) violations is appropriate because such violations, compared to those under section 273a, subdivision (2), occur in more threatening and dangerous circumstances.   The certainty of felony status for section 273d violations also is appropriate due to the greater level of injury inflicted.

In my view there is a logical progression in the elements required by the Legislature and the sanctions which can be imposed from section 273a, subdivision (2) through section 273a, subdivision (1) and finally up to section 273d.  Section 273a, subdivision (1), for example, does not require the infliction of “great bodily injury.”  (People v. Jaramillo, supra, 98 Cal.App.3d at p. 835, 159 Cal.Rptr. 771.)   Instead, that subdivision “․ is intended to protect a child from an abusive situation in which the probability of serious injury is great.”  (Ibid.)  Section 273d reflects a legislative intent to protect children from suffering not the probability but the reality of serious physical injury.   Accordingly, the actual infliction of “great bodily injury” necessarily is a requirement for a violation of the statute.8  Therefore, I conclude the infliction of “great bodily injury” as defined in section 12022.7 is an element of a section 273d offense.   Consequently, the three-year enhancement imposed on Dixon under section 12022.7 is unauthorized and void as a matter of law.

The conclusion I reach is also consistent from a temporal perspective.   The crimes defined in sections 273a and 273d were enacted in more or less their present form about 20 years ago.  (Stats. 1965, c. 697, § 1;  Stats. 1957, c. 1342, § 1.)   Depending on the nature of a defendant's conduct, he or she would be charged with the appropriate crime under one section or the other.   The enactment of section 12022.7 in 1976 added a complicating factor to determining the proper charging allegations.   For example, while the majority's holding in this case would permit punishment for either a section 273a, subdivision (1) or a section 273d offense plus a section 12022.7 enhancement, I would limit imposition of the enhancement to the former offense.   In this manner the distinction between the two offenses can be maintained rather than concluding, as the majority effectively does, that sections 273a, subdivision (1) and 273d are identical as applied.   The alternative position which I take is to conclude the Legislature intended to deal with like injuries in sections 273d and 12022.7.  (Contra, maj. opn., ante, at pp. 920, 921–922.)   This intent appears from the Legislature's failure to amend section 273d to reflect its enactment of section 12022.7.  (Compare People v. Caudillo, supra, 21 Cal.3d at pp. 580–581, 146 Cal.Rptr. 859, 580 P.2d 274.)

III

A void enhancement cannot stand, even when agreed to by the parties.   (People v. Harvey (1980) 112 Cal.App.3d 132, 139, 169 Cal.Rptr. 153;  see also In re Blessing (1982) 129 Cal.App.3d 1026, 1030, 181 Cal.Rptr. 590;  People v. Cree (1981) 123 Cal.App.3d 1013, 1016, 177 Cal.Rptr. 54.)   However, striking the section 12022.7 enhancement in this case would reduce Dixon's sentence from seven years to a maximum of four.   Such a reduction would substantially deprive the People of the benefits of their plea bargain with Dixon.  (See People v. Collins (1978) 21 Cal.3d 208, 214–215, 145 Cal.Rptr. 686, 577 P.2d 1026.)   Unfortunately, the record indicates that simply reversing the judgment in this case and returning the parties to the status quo ante might unfairly prejudice the People.  (Compare In re Blessing, supra, 129 Cal.App.3d at p. 1031, fn. 3, 181 Cal.Rptr. 590.)   I would resolve this dilemma by reversing the judgment in its entirety and remanding the matter for repleading to the six counts and enhancements charged in the amended information unless the People, within 30 days after this opinion becomes final, notify the lower court they will accept its striking of the section 12022.7 enhancement.   In the latter case, I would reverse the judgment only with respect to the section 12022.7 enhancement and remand the matter for resentencing on the section 273d conviction after preparation of a new probation report and a psychological evaluation of Dixon.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise specified.

2.   The pleas and admission were entered as part of a plea bargain dismissing the greater charges of attempted murder (§ 664/187), assault with a deadly weapon and other felonies.

3.   In his confession Dixon wrote:  “On 8/18/81 I punch Renae Dixon on the Legs.   Two days later I bit her on the stomach, 5 days later I beat her buttock with a belt and grab her and threw her on bed which she roll an hit her head on the Floor.”

4.   People v. Jaramillo involves a 273(a) violation.   The Jaramillo court clearly delineates the elements of that offense and finds great bodily injury is not an element of such crime.  (P. 837, 159 Cal.Rptr. 771.)  Jaramillo is significant here for its definitional language as applied to specific injuries inflicted on a child.

5.   The Legislature has recently amended 1203h removing the mandatory requirement for the psychological study.  (Stats.1982 ch. 282, § 1;  No. 3 Deerings Adv.Legis.Service p. 390.)   Such study “may” be included in the probation officer's report.

6.   “(b) If the defendant inflicted great bodily injury or used or attempted to use a deadly weapon in the perpetration of the crime, the fact that the crime was committed without advance planning or under circumstances of great provocation and the defendant has no recent record of committing crimes of violence.“․“(e) The fact that the crime was committed because of psychological problems not amounting to a defense, that psychological or psychiatric treatment will be required as a condition of probation, and that the court is convinced that the treatment has a high likelihood of being successful and that the defendant will not be a danger to others.“(f) The fact that the defendant is youthful or aged, and has no significant record of prior criminal offenses.”

1.   Jaramillo stands for the proposition that the infliction of “great bodily injury” is not an element of a section 273a offense.  (98 Cal.App.3d at p. 837, 159 Cal.Rptr. 771.)   In my view sections 273a and 273d serve distinctly different purposes in sanctioning child abuse.  (See post.)   Consequently, Jaramillo provides no support for the majority's conclusion that the infliction of “great bodily injury” is not an element of a section 273d offense.

2.   In light of Caudillo 's interpretation of the 1977 amendment, I do not understand the majority's reference to the “more rigorous” definition of “great bodily injury” in the 1976 enactment.  (Maj. opn., ante, at p. 921.)

3.   Examples of such injuries include a broken hand (People v. Kent (1979) 96 Cal.App.3d 130, 136, 158 Cal.Rptr. 35), a fractured jaw (People v. Johnson (1980) 104 Cal.App.3d 598, 609, 164 Cal.Rptr. 69) and shotgun wounds (People v. Lopez (1982) 131 Cal.App.3d 565, 573, 182 Cal.Rptr. 563).   In a recent case involving injuries inflicted on a six-year-old girl less serious than those inflicted on Renae, the appellate court upheld a finding that the girl's mother inflicted “great bodily injury” within the meaning of section 12022.7 where the evidence showed the girl had suffered multiple contusions causing swelling, severe discoloration and pain when touched.  (People v. Jaramillo, supra, 98 Cal.App.3d at p. 836, 146 Cal.Rptr. 859, 580 P.2d 274.)

4.   Appellate courts have upheld section 273d convictions in several cases, including People v. Thomas, supra, 65 Cal.App.3d 854, 135 Cal.Rptr. 644;  People v. Atkins (1975) 53 Cal.App.3d 348, 125 Cal.Rptr. 855;  and People v. Gentry (1969) 270 Cal.App.2d 462, 76 Cal.Rptr. 336.   In Thomas the defendant beat and choked his 15-year-old stepdaughter to the point that she “․ was extremely upset, her left eye was ‘terribly swollen’ and reddened, her lower lip was cut and swollen and her neck was scratched from the choking.”  (65 Cal.App.3d at p. 856, 135 Cal.Rptr. 644.)   In Atkins a jury convicted a defendant under sections 273d, 187 and 189 for the abuse and second degree murder of his girlfriend's two and one-half-year-old son.   The appellate court held the defendant had not been punished twice for the same act (§ 654) where the record showed the victim had suffered injuries in addition to those from which he died.   The additional injuries included “․ a cut on his lip and dried blood in his nose․  There were also several bruises of varying ages and a scar on his gum.”  (53 Cal.App.3d at p. 359, 125 Cal.Rptr. 855.)   In Gentry the defendant beat his girlfriend's one and one-half-year-old daughter “almost to the point of death.”  (270 Cal.App.2d at p. 475, 76 Cal.Rptr. 336.)   Doctors later discovered “[t]he child had a bloody nose.   Two ribs had been broken which had impaired her breathing.   A lung was collapsed.”  (Id., at p. 465, 76 Cal.Rptr. 336.)   There can be no question the injuries in these cases, and in the case at bar, necessarily required the infliction of “great bodily injury” within the meaning of section 12022.7.  (Compare People v. Jaramillo, supra, 98 Cal.App.3d at p. 836, 146 Cal.Rptr. 859, 580 P.2d 274.)

5.   Section 273a provides:“(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, 3 or 4 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 may be endangered, is guilty of a misdemeanor.”

6.   Criminal sanctions for child abuse under sections 273a and 273d complement civil sanctions for parental mistreatment of children under Civil Code section 203 and common law tort doctrines.  (See Gibson v. Gibson (1971) 3 Cal.3d 914, 921–923, 92 Cal.Rptr. 288, 479 P.2d 648;  see also 4 Markey, Cal.Family Law Practice and Procedure (1983) § 60.04[4], pp. 60–15 to 60–16;  6 Witkin, Summary of Cal.Law (8th ed. 1974) Parent and Child, § 97, p. 4621.)

7.   The Uniform Crime Charging Manual (rev. 1/80) prepared and published by the California District Attorneys Association describes section 273d offenses as alternative felony-misdemeanors.  (Id., at pp. 307–2, 307–4.)   As the above discussion would suggest, I disagree with that characterization.

8.   The concept of “great bodily injury” as defined in section 12022.7 is substantially the same as the concepts of “serious injury” used by the Jaramillo court (see People v. Kent, supra, 96 Cal.App.3d at pp. 136–137, 158 Cal.Rptr. 35) and “great bodily harm” used in the language of section 273a (see People v. Caudillo, supra, 21 Cal.3d at pp. 582–584, 146 Cal.Rptr. 859, 580 P.2d 274).

 STANIFORTH, Associate Justice.

COLOGNE, Acting P.J., concurs.