Filed 4/30/13 P. v. Jafari CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B240109
                                                                            (Super. Ct. No. 1335506)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

SOUNNY A. JAFARI,

     Defendant and Appellant.



                   Sounny A. Jafari appeals his conviction, by jury, of assault by means of
force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)),1 a felony, and
resisting arrest (§ 148, subd. (a)(1)), a misdemeanor. The jury also found true the special
allegation that appellant personally inflicted great bodily injury on the victim. Appellant
was placed on three years' probation. He contends the trial court violated his right to a
jury trial when it provided, in response to a question from the jury, a supplemental
instruction defining the term "great bodily injury" as "essentially equivalent" to the
definition of "serious bodily injury" found in section 243, subdivision (f)(4). We affirm.
                                                          Facts
                   Appellant and his companion, Paul Tarvirian, got involved in a street fight
at about 2:00 a.m., near the campus of the University of California, Santa Barbara. After


1
    All statutory references are to the Penal Code unless otherwise stated.
                                                             1
the two exchanged words with Gabriel Mosse, appellant punched Mosse in the face,
breaking his jaw. Mosse's injuries required surgery. Following surgery, Mosse's jaw was
wired shut and he was restricted to a liquid diet for about six weeks. It took him another
six weeks to return to his normal diet.
              Appellant and Tarvirian were charged with assault by means likely to
produce great bodily injury. The jury was also asked to determine whether appellant
personally inflicted great bodily injury on Mosse. With respect to the assault charge, the
trial court instructed the jury in terms of CALCRIM No. 875, "To prove that the
defendants are guilty of this crime, the prosecution must prove that: [¶] 1. The force
used was likely to produce great bodily injury . . . ." The same instruction stated: "Great
bodily injury means significant or substantial injury. It is an injury that is greater than
minor moderate harm." It further instructed the jury in terms of CALCRIM No. 316: "If
you find [appellant] guilty of the crime of assault by means of force likely to produce
great bodily injury as charged in the Information, you must then decide whether the
prosecution has proved the additional allegation that [appellant] personally inflicted great
bodily injury on Gabriel Mosse during the commission of that crime. [¶] Great bodily
injury means significant or substantial physical injury. It is an injury that is greater than
minor or moderate harm."
              During deliberations, the jury asked, "Can we get more information on
what constitutes 'great bodily injury' beyond the definition in [the instructions]?" Over
defense objection, the trial court determined to instruct the jury with the definition of
"serious bodily injury" provided in Penal Code section 243,subdivision (f)(4). It
informed the jury: " 'Serious bodily injury' means a serious impairment of physical
condition, including, but not limited to, the following: loss of consciousness; concussion;
bone fracture; protracted loss or impairment of function of any bodily member or organ' a
wound requiring extensive suturing; and serious disfigurement. [¶] 'Great bodily injury'
and 'serious bodily injury' are essentially equivalent elements." The jury found appellant
guilty of assault and found true the special allegation.


                                              2
                                         Discussion
              Appellant contends the supplemental instruction deprived him of his right
to a jury trial because it defined "great bodily injury" to include a bone fracture and the
evidence was undisputed that Mosse's jaw was fractured. Thus, appellant contends, the
instruction relieved the jury of its duty to decide the factual question of whether a broken
jaw constitutes great bodily injury. We are not persuaded. The trial court did not abuse
its discretion when it provided the jury with a legally correct supplemental instruction.
              It is the primary duty of the trial court to "help the jury understand the legal
principles it is asked to apply." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) When the
jury asks a question during deliberations, even if the original instructions were complete,
the trial court has discretion "to determine what additional explanations are sufficient to
satisfy the jury's request for information." (Id.; § 1138.)
              Whether an assault caused "great bodily injury" is a question of fact.
(People v. Cross (2008) 456 Cal.4th 58, 64.) Section 12022.7, subdivision (f) defines
great bodily injury as "a significant or substantial physical injury." Another section of
the Penal Code defines serious bodily injury as "a serious impairment of physical
condition, including, but not limited to, the following: loss of consciousness; concussion;
bone fracture; protracted loss or impairment of function of any bodily member or organ; a
wound requiring extensive suturing; and serious disfigurement." (§ 234, subd. (f)(4).)
These two terms have "substantially the same meaning [,]"(People v. Hawkins (1993) 15
Cal.App.4th 1373, 1375), and are "essentially equivalent elements." (People v.
Burroughs (1984) 35 Cal.3d 824, 831, disapproved on another ground People v. Blakeley
(2000) 23 Cal.4th 82, 89.)
              Here, the trial court began by instructing the jury the great bodily injury
"means significant or substantial physical injury. It is an injury that is greater than minor
or moderate harm." (CALCRIM No. 3160.) During deliberations, the jury asked for
more information and the trial court responded with quotations from section 234 and our
Supreme Court's opinion in Burroughs, supra. The supplemental instruction directly


                                              3
responded to the jury's inquiry and was a correct statement of the law. There was no
abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)
             The judgment is affirmed.
             NOT TO BE PUBLISHED.



                                                      YEGAN, J.

We concur:


             GILBERT, P.J.


             PERREN, J.




                                            4
                                 George C. Eskin, Judge

                        Superior Court County of Santa Barbara

                           ______________________________


             Patricia A. Malone, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney
General, for Plaintiff and Respondent.




                                           5
