People v. Modiri

CERTIFIED FOR PUBLICATION Defendant was convicted by jury trial of aggravated assault (Pen. Code, § 245, subd. (a)(1)) and simple battery (Pen. Code, § 242). The jury also found that defendant had personally inflicted great bodily injury (Pen. Code, §§ 667, 1192.7, subd. (c)(8)) and personally used a dangerous and deadly weapon (Pen. Code, §§ 667, 1192.7, subd. (c)(23)) in the commission of the assault. He was granted probation conditioned on serving nine months in jail. On appeal, defendant asserts that the personal infliction of great bodily injury (GBI) finding cannot be upheld because the trial court's instruction on that allegation did not require the jury to find that defendant personally inflicted that injury. 1 We conclude that the trial court's instruction erroneously described the ""personally inflicts"" element of the personal infliction of GBI allegation and that the error was prejudicial. Therefore, we reverse the judgment and remand for retrial of that allegation alone.