‘Great Bodily Injury’ Under PC § 832.7: Navigating the Disclosure Debate in California’s Superior Courts, Part 2

DAVID E. MASTAGNI
Partner
Mastagni Holstedt, APC

Last month, in Part 1, we discussed the differing viewpoints on whether GBI should be interpreted narrowly or broadly. (If you would like to go back to read last month’s article, it can be found here: tinyurl.com
/2nk24dcu.) This article explains how agencies and courts are treating the issue and where we go from here.

Agency Interpretations and Superior Court Rulings

California law enforcement agencies have adopted varied interpretations of “great bodily injury” (GBI), further underscoring the need for a legislative fix or appellate court determination to provide uniformity. For example, the San Francisco Police Department defines GBI as a significant or substantial physical injury, excluding minor or moderate harm, consistent with section 12022.7(f) and related jury instructions. The San Diego County Sheriff’s Department incorporates elements of “serious bodily injury” (SBI), blending substantial risk of death with protracted impairment. Other agencies rely on statutory references without detailed elaboration or cite examples such as unconsciousness or bone fractures, which are consistent with the definition of SBI in section 243(f)(4).

No binding appellate authority has addressed the issue of how broadly to construe GBI as used in Penal Code section 832.7. Two nonprecedential superior court decisions rejected agency arguments for using a narrower interpretation of GBI to minimize disclosure. (See Richmond Police Officers’ Association v. City of Richmond, Case No. MSN19-0169 (Contra Costa Sup. Ct. July 31, 2020); The Sacramento Bee, et al., v. Sacramento Co. Sheriff’s Dept., No. 34-2019-80003062 [Sacramento Sup. Ct., Nov. 8, 2019.]) These courts interpreted GBI under section 832.7(b) broadly and purportedly consistently with Penal Code section 12022.7(f). Although frequently quoted by the FAC, those decisions cannot be cited in other litigation and appear at odds with a more recent California Supreme Court decision.

Our Supreme Court’s Guidance on Distinguishing GBI and SBI

Given the conflicting interpretations, the effect of replacing SBI with GBI will ultimately rest with the courts. Fortunately, the California Supreme Court recently weighed in on this question, though not in the context of section 832.7. In re Cabrera (2023) 14 Cal. 5th 476 (“Cabrera”), provides insight into the court’s view that GBI is a higher threshold than SBI. This analysis presents near conclusive support for the narrow interpretation of GBI, but has not yet been applied in the records disclosure debate.

Cabrera involved an altercation that resulted in injuries to the victim, including brief unconsciousness, a one-inch head laceration exposing the skull and requiring stitches, and minor lingering effects like dizziness and headaches. (Id. at p. 488.) Cabrera was charged with assault by means likely to produce GBI, battery with SBI, assault with a deadly weapon and gang participation, plus enhancements for personally inflicting GBI and prior serious felonies. (Id. at p. 481.) The jury instructions defined SBI and GBI consistent with their statutory definitions as set forth above. (Id.) The jury ultimately found that Cabrera inflicted SBI, but it deadlocked on whether he inflicted GBI. (Id. at p. 488.) Despite that verdict, the trial court imposed a sentence enhancement that required a jury finding of GBI, apparently agreeing with the prosecutor that GBI is inferred from the jury’s finding of SBI. (Id. at p. 482.) Cabrera appealed that sentencing decision. (Id.)

The California Supreme Court addressed whether a jury’s finding of SBI in a battery conviction necessarily implies GBI (i.e., whether the elements of GBI are lesser included elements of SBI, consistent with the arguments in favor of the broad construction of GBI). The court ultimately held that it does not, and provided important guidance on the interplay between the definitions.

The court did not dispute that SBI and GBI are “essentially equivalent” and did not call into question cases construing them as such. (Id. at pp. 484, 490–91.) At the same time, the court held the terms are “not interchangeable” and “not equivalent as a matter of law.” (Id. at pp. 485, 491.) Supporting this view, the court pointed to multiple cases where the jury found an injury constituted SBI, but did not reach the level of GBI. (Id. at pp. 487-88.) For example, in People v. Taylor (2004) 118 Cal. App. 4th 11:

“The jury convicted Taylor of battery with serious bodily injury but found not true several charged allegations of personal infliction of great bodily injury … the jury had correctly ‘focused on … whether the victim’s bone fracture was sufficiently serious to constitute anything more than a ‘moderate injury’ within the meaning of great bodily injury.” (Cabrera, 14 Cal.5th at pp. 487-488 [quoting Taylor at pp. 21, 25].)

Another example from People v. Thomas (2019) 39 Cal. App. 5th 930 reinforces GBI’s higher bar:

“The defendant punched the victim without warning twice in the jaw. The victim fell backward and ‘saw stars,’ and his jaw was broken in two places, requiring surgery, ‘during which screws and plates were inserted.’ … The attack ‘left him with permanent nerve damage’ … the jury convicted the defendant of battery with serious bodily injury but found that he had not inflicted great bodily injury.” (Cabrera, 14 Cal.5th at p. 488 [quoting Thomas at pp. 933-934, 93.])

Thus, while substantial overlap exists, these examples show GBI imposes a more demanding severity threshold than SBI.

The Cabrera decision also expressly disapproved two appellate cases to the extent they concluded that SBI always constitutes GBI. (Id. at p. 492.) In fact, the court expressed its own assumption of the inverse: “all great bodily injuries are serious bodily injuries.” (Id. at p. 491.) This further reinforces the narrower construction of GBI as necessitating a more severe injury than SBI.

The court’s specific reference to bone fractures provides an illustrative example of this concept. The definition of SBI under Penal Code section 243(f)(4) expressly includes “bone fracture.” This means a jury would likely find any injury labeled as a bone fracture to be an SBI. However, a bone fracture could fall anywhere “along a continuum from a small hairline fracture, needing no medical intervention, to the compound fracture of a major bone, requiring surgical repair.” (Cabrera at p. 485 [quoting People v. Cross (2008) 45 Cal. 4th 58, 73 (conc. opn. of Corrigan, J.).]) While a hairline fracture, by definition, would constitute an SBI, “[i]t is the jury’s responsibility to determine where along that continuum it believes the harm becomes a significant or substantial physical injury” to qualify as a GBI. (Id. [internal quotations omitted.])

Ultimately, our Supreme Court concluded that while SBI and GBI are nearly equivalent and have substantial overlap, they have distinct statutory definitions, and what meets those statutory standards is a factual question. While injuries may often satisfy both definitions, Cabrera indicates the court’s understanding that GBI is a higher threshold than SBI. While this decision was in the context of criminal sentencing, it strongly supports the narrower interpretation of GBI in the debate over Penal Code section 832.7 disclosure requirements.

Practical Guidance for Litigation and Advocacy

California courts will continue to interpret GBI under Penal Code section 832.7, which will give PORAC and law-enforcement-aligned groups the opportunity to cite Cabrera to promote the narrower construction of GBI. While the outcome of future appellate litigation is uncertain, PORAC and aligned groups should consider taking this issue up to the appellate level with the goal of obtaining a published decision limiting the scope of GBI disclosures. From a litigation perspective, identifying the right case to litigate can assist the profession by determining concrete disclosure benchmarks and a definitive ruling that GBI requires a higher showing than SBI.

PORAC and aligned groups can further argue that a broad interpretation of GBI is unduly burdensome and that public interest is served by reasonable limitations on the scope of disclosure. In Becerra v. Superior Court (2020) 44 Cal. App. 5th 897, 923, the court recognized that the CPRA permits records to be withheld if “on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Although Becerra set a high bar for withholding based on burden, the sheer volume of “moderate injury” incidents —potentially thousands annually per agency (far exceeding the number of records at issue in Becerra) — could tip the balance toward nondisclosure or limitations.

Evidence of such burdensomeness could support a narrow construction of the statute’s disclosure requirements regardless of the statutory definition of GBI under Becerra. The immense volume of low-severity incidents could justify limitations, while still serving Senate Bill 1421’s purpose of providing transparency around serious use-of-force incidents.

PORAC and other stakeholders could also seek a narrower interpretation of GBI through strategic advocacy by supporting legislation that defines GBI under Penal Code section 832.7 to specifically delineate the types of injuries triggering disclosures. Given that GBI is closely associated with use of deadly force in the statute, a reasonable definition would be: “bodily injury which involves (A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ or mental faculty.”

Tension between accountability and officer protections remains acute. PORAC stands committed to defending its members’ rights and advocating for interpretations that preserve confidentiality without undermining public trust. Members are encouraged to stay informed and proactive, ensuring a uniform application of the disclosure laws that reflects the nuanced demands of policing in the modern era.

About the Author

David Emilio Mastagni is a partner with the law firm of Mastagni Holstedt, APC, and an experienced panel attorney for the PORAC Legal Defense Fund. He also provides legal analysis and representation for PORAC at the California Legislature on bills affecting public safety employees, including Senate Bills 1421 and 16.