Willfully vs. Personally Inflicting GBI

I’ve handled a few serious cases involving allegations of driving under the influence causing great bodily injury. Recently, a question has come up in court (and with some other attorneys) about my client’s eligibility for probation. First, here’s a quick rundown of how probation eligibility generally works:

All defendants are eligible for probation, in the discretion of the sentencing court, unless a statute provides otherwise. One statute that provides otherwise is Penal Code § 1203, subdivision (e)(3). Except in unusual cases where justice would best be served, § 1203, subdivision (e)(3), precludes the granting of probation to those who willfully inflicted great bodily injury or torture in the perpetration of the crime resulting in conviction.

So the question that came up was this: does a defendant’s admission to personally inflicting great bodily injury within the meaning of 12022.7 subdivision (a) always make them ineligible for probation except in the unusual case?

A lot of people have told me that the answer is yes, always. But I’m not so sure about that. Here’s why: The 12022.7(a) GBI enhancement applies when you “personally” inflict GBI in the commission of a felony, whereas the 1203(e)(3) probation restriction applies when you “willfully” inflict GBI in the commission of a felony. What’s the difference between willfully and personally inflicting GBI? Is there one? Can you personally, but not willfully, inflict GBI?

The word “willfully” as generally used in the law is a synonym for “intentionally,” i.e., the defendant intended to do the act proscribed by the penal statute. As used in section 1203, subdivision (e)(3), "'willful' requires the defendant's intent to cause great bodily injury or torture, not merely that the crime resulted in great bodily injury or torture.” Section 12022.7(a) on focuses GBI resulting from the commission of a felony. Section 1203(e)(3) focuses on the intent underling the infliction of GBI. You can call 1203(e)(3) specific intent GBI and 12022.7(a) general intent GBI.

This all means that as far as I can tell, and I’m not certain about anything in life, a defendant can admit a 12022.7(a) enhancement and still be eligible for probation and not just in the unusual case.

Have a nice day everyone!