California, United States of America
The following excerpt is from People v. Smith, A138710 (Cal. App. 2014):
Defendant also cites People v. Pitts (1990) 223 Cal.App.3d 1547, decided under an earlier version of section 12022.7. Pitts, which was not a domestic violence case, held the enhancement for great bodily injury could not be applied to mayhem because great bodily injury was an element of mayhem. (Id. at pp. 1559-1560.) Former section 12022.7 read in relevant part as follows: "Any person, with the intent to inflict such injury, who personally inflicts great bodily injury . . . in the commission . . . of a felony shall, in addition and consecutive to the punishment prescribed for the felony . . . 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." (Italics added; now subds. (a), (g).) Former section 12022.7 thus contained a blanket prohibition against imposition of the enhancement if great bodily injury was an element of the underlying offense. The version of the statute in effect during the commission of the offense in issue herespecifically the language now found in subdivision (g)excludes enhancements based on subdivision (e) from the prohibition on double use of the fact of personal infliction of great bodily injury. Pitts is unpersuasive.
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