Offense
Enhancement for inflicting GBI during commission of a felony
Aggravated Felony (AF)
Not COV per se but dangerous if the underlying offense requires intent See Advice.
Assume (f)(2) constitutes a “drug trafficking” AF if it involves a federally controlled substance, as there is no “offer to” language in the subsection. See HS 11377 for advice.
Crime Involving Moral Turpitude (CIMT)
Not CIMT per se; but dangerous.
See Advice
Other Removal Grounds
No other removal ground.
An (f)(2) conviction likely constitutes a CS offense. But see defenses at HS 11377.
Advice and Comments
This is a dangerous enhancement for immigrants. To try to avoid it, if a longer prison sentence is necessary consider options like pleading to additional immigration-neutral felonies or other alternatives; consult an expert. While immigration advocates can advance strong legal arguments that 12022.7 does not change most offenses into a COV or CIMT (because it does not require intent), most detained people are unrepresented and authorities are likely to hold that it does.
COV. The only intent required is intent to commit the underlying felony, or at most negligence.1See CALCRIM No. 3160 (“Penal Code section 12022.7 was amended in 1995, deleting the requirement that the defendant act with “the intent to inflict such injury.” (Stats. 1995, ch. 341, § 1; see also People v. Carter (1998) 60 Cal.App.4th 752, 756 [70 Cal.Rptr.2d 569] [noting amendment].”) But in light of the U.S. v. Perez ( which held that 243(d) is a COV), decision holding that PC 243(d) is a COV, as assume that any offense that involves intentional conduct, e.g., 243, 243.4, 207, 459, might be charged as COV with this enhancement. 2See, e.g., discussion at People v. Poroj (2010)190 Cal. App. 4th 165, 166 (holding no mens rea requirement, distinguishing other cases holding general intent requirement). See also U.S. v. Ramos-Perez, 572 Fed.Appx. 465 (9th Cir. 2013)(unpublished), distinguishing prior version of 12022.7, which requires specific intent with current version, which does not. However, in U.S. v. Perez, 932 F.3d 782 (9th Cir. 2019), a panel found that 243(d), battery that results in injury, could not be committed with an offensive touching, because only violent force can cause injury. See discussion at § 243(d). While this opinion appears to be in error because the panel did not consider precedent that would have proved the case, it may encourage ICE to charge that a burglary or other offense is a COV if combined with this enhancement.But offenses committed by negligence such as DUI with 12022.7 should not be.
CIMT: As with a COV, 12022.7 does not change the mens rea from that of the underlying felony and thus should not convert a non-CIMT into a CIMT. But where the underlying offense involves intent, it may be charged as such.
LRA Mandatory Detention: If D was not admitted to the U.S., a conviction or pending charge for this enhancement could possibly trigger mandatory detention without bond under LRA. See further discussion at Overview: Mandatory Detention. Immigration practitioners can argue that ‘serious bodily injury,’ defined in CA PC § 243(f)(4) is different from ‘great bodily injury’ which is defined in CA PC § 12022.7(f)(1), and that since the LRA only refers to ‘serious bodily injury,’ it does not apply to ‘great bodily injury’ as in § 12022.7. However, some lines of caselaw in California draw equivalences between these terms. 3The California Supreme Court in In re Cabrera (2023) 14 Cal.5th 476, a case about jury instructions for serious v. great bodily injury, rejected the idea that “similar” terms is sufficient for the Sixth Amendment or elements test under Apprendi. However, the court cited approvingly People v. Burroughs (1984) 35 Cal.3d 824, 831 (“serious bodily injury and great bodily injury are essentially equivalent elements”). And the jury instructions for CA PC § 243(d) also cite Burroughs on the equivalence of serious and great bodily injury. CALCRIM 925. In Cabrera, the Supreme Court found that the two are not equivalent because not all serious bodily injury per 243(d) amounts to great bodily injury for purposes of 12022.7. However, in the context of INA 236(c)(1)(E), this is of little help, because Cabrera implies that serious bodily injury is lesser than great bodily injury; thus a court could determine that all convictions of great bodily injury necessarily involve the element of serious bodily injury for purposes of mandatory detention.) (Note that people not admitted to U.S. also are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.)
SB54: Law enforcement is permitted to notify/transfer to ICE indefinitely. See SB 54 advisory at www.ilrc.org/crimes-summaries-summaries.