Filed 9/22/22 P. v. Montgomery CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

REGINALD MONTGOMERY,

Defendant and Appellant.

 H049134

 (Santa Clara County

 Super. Ct. No. C2012448)

A jury convicted defendant Reginald Montgomery of inflicting corporal injury on 

a partner while having a prior conviction for the same crime within seven years and 

found true an allegation that Montgomery personally inflicted great bodily injury under 

circumstances involving domestic violence. The trial court sentenced Montgomery to 

eight years in state prison.

On appeal, Montgomery contends the trial court erred when it refused his 

requested modification to CALCRIM No. 3163, the instruction on the great bodily injury 

allegation.

For the reasons explained below, we affirm the judgment.
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I. FACTS AND PROCEDURAL BACKGROUND

A. Procedural History

On October 14, 2020, the Santa Clara County District Attorney filed an 

information charging Montgomery with one count of inflicting corporal injury upon Julie

Doe, a person with whom Montgomery had a dating relationship, while having a

specified prior conviction within seven years (Pen. Code, § 273.5, subds. (a), (f)(1);

1

count 1).2 The information further alleged that Montgomery had inflicted great bodily 

injury (GBI) upon Julie Doe under circumstances involving domestic violence

(§§ 12022.7, subd. (e), 1203, subd. (e)(3)) (hereafter, GBI allegation).

In March 2021, a jury found Montgomery guilty as charged and found true the 

GBI allegation. 

In May 2021, the trial court sentenced Montgomery to eight years in prison,

comprising the upper term of five years for count 1 and a three-year sentence 

enhancement for the GBI allegation. 

B. Evidence Presented at Trial

1. Prosecution Evidence

Julie and Montgomery dated “off and on” for about one year prior to September 

20, 2020.

3

 On that date, Julie and Montgomery were staying at his cousin’s home in San 

Jose. 

Early on September 20, Julie and Montgomery argued while driving and Julie 

jumped out of the vehicle when they were at a stoplight. Later that day, while Julie was

getting ready for a trip to Santa Cruz, Montgomery became upset because he believed 

Julie’s ex-boyfriend had repeatedly called her cell phone. They argued again. 

1 Unspecified statutory references are to the Penal Code.

2 The information stated the victim’s name using the pseudonym “Jane Doe.” At 

trial, the victim was called “Julie Doe.” We use the latter nomenclature in this opinion. 

3 Unless otherwise indicated, all dates occurred in 2020. 
3

Montgomery grabbed Julie, clamping his palm around the front of her neck. He asked

her, “ ‘Who the fuck are you talking to?’ ” After Montgomery released his hand from 

Julie’s neck, a heated argument ensued over their prior relationships. Julie began packing 

her things because Montgomery told her to get out. He also made a comment about some 

bottles of personal lubricant, which irritated Julie. She picked up one of the bottles,

tossed it over her shoulder (but not in Montgomery’s direction), and turned her back to 

him. He then hit her with what felt like his fist in her ribs on the right side of her back. 

Julie “heard [her] bones crack.” 

Montgomery’s punch caused Julie “[e]xcruciating” pain in her back, side, and 

stomach. She fell to the floor and asked Montgomery for help. She was scared and could 

not breathe. Montgomery first looked at Julie, and then he shook her while telling her to 

get up. Julie told Montgomery to go outside and calm down. She called 911 but did not 

speak to the dispatcher because she was scared Montgomery would come back inside. It 

took Julie about five minutes to get up off the floor. 

Julie exited the home, spoke to her sister, and sat in Montgomery’s SUV (at his 

request) for about two minutes. Julie next called her sister and walked away from 

Montgomery. He followed her. She eventually called 911 again and requested an 

ambulance. She still could not breathe and “was in so much pain.”

When San Jose Police Officer Miguel Lopez arrived at Julie’s location, he saw her

leaning against a vehicle crying, acting a little bit erratic, and putting pressure on her ribs. 

She repeatedly said “ ‘I cannot breathe’ ” and appeared to be in pain. Before Julie was 

transported by ambulance to a hospital, Officer Lopez observed redness on her back and 

rib area.

At the hospital, Julie told the emergency room physician, Dr. Daniel Nelson, that 

she was in severe pain that worsened when she took a deep breath. Dr. Nelson did not 

observe any redness or bruising on Julie’s chest or back. He ordered X-ray imaging of

Julie’s ribs, which revealed no obvious rib fracture. Dr. Nelson diagnosed a rib contusion 
4

but did not rule out a fracture. He prescribed Julie over-the-counter pain medication and

provided her discharge instructions that included a direction to return to the emergency 

department if she had increased pain or trouble breathing. 

Two days later, Julie flew to Minnesota. The following day (September 23), she

“could feel [her] ribs moving” and her pain worsening. She had a lot of swelling and

some bruising. She could not perform personal hygiene activities and had a hard time 

eating, breathing, or “do[ing] anything.” Sleeping, lying down, and sitting were painful. 

She went to a hospital. A CT scan of her ribs revealed a “mildly displaced right posterior 

9th rib fracture,” which was consistent with the information that Dr. Nelson had obtained 

during his evaluation of Julie three days earlier. Julie testified that nothing happened to 

her after the incident on September 20 and before she went to the hospital again on 

September 23 that would have injured her ribs. Additionally, a subsequent X-ray report 

from the hospital in Minnesota, dated October 3, described fractures on Julie’s 9th and 

10th posterior ribs, but Dr. Nelson testified that he could not see the latter fracture on the 

associated X-ray image. 

Dr. Nelson opined at trial that Julie “almost certainly had a rib fracture” when he 

examined her on September 20. He stated that a broken bone is a significant injury and a 

broken rib is “extremely painful,” “not easy for the patient,” and generally takes about 

four to six weeks to heal. On cross-examination, Dr. Nelson acknowledged that an 

uncomplicated rib fracture is not particularly dangerous, of little consequence, and a 

relatively minor, though very painful injury. 

Julie testified that due to her pain, it took a few months for her to return to 

working and performing all of her usual day-to-day activities. Julie’s pain was most 

severe for a “good four months.” At the time of her trial testimony in March 2021, she 

still occasionally felt pain. 

In addition, the prosecution presented evidence about Montgomery’s prior 

criminal history. 
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2. Defense Evidence

Montgomery called three witnesses in his defense. Dr. Eric Wang, an expert in 

radiology, testified that Julie’s September 20 X-ray images indicated a recent “super, 

super subtle” rib fracture (possibly on the 11th rib), which understandably could have 

been missed on the treatment date. Dr. Wang said Julie’s subsequent CT scan clearly 

showed a mildly displaced rib fracture with no complication. Dr. Wang opined that the 

rib fracture could have occurred up to one week before the CT scan was performed. 

Dr. Wang considered the rib fracture, medically speaking, to be a minor (but painful)

injury and declined to characterize the injury as greater than a moderate injury or as a 

serious or substantial injury. 

Montgomery’s cousin Vernon McKinney testified that he had been around Julie 

four of five times during her and Montgomery’s relationship, but he was not with them 

on September 20. McKinney witnessed Julie argue with Montgomery three to four times

about calls from Montgomery’s ex-girlfriend. McKinney described Julie’s behavior 

during these arguments as “[v]ery violent.” He observed Julie call Montgomery names, 

get in his face, spit in his face, and try to chase him down when he attempted to leave the 

argument. Based on McKinney’s interactions with Julie, he considered her “not very 

truthful.” 

Police Officer Miguel Lopez was recalled to the witness stand by the defense. 

Officer Lopez said that he first contacted Julie on September 20 at a location that was at 

least a mile or two from Montgomery’s cousin’s home. When Officer Lopez took Julie’s

statement in the ambulance, she said that Montgomery had accused her of cheating, but 

she did not mention receiving phone calls that Montgomery believed came from her exboyfriend. Julie said that she threw some lubricant and then Montgomery punched her 

while she was seated. Julie did not say that Montgomery put his hands on her neck. She 

also did not say she was scared of Montgomery or request a protective order. When 
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making her statement in the ambulance, Julie did not appear frightened, in excruciating 

pain, or unable to breathe or move. 

II. DISCUSSION

Montgomery contends the trial court erred when it refused to use his requested 

instruction defining GBI and instead instructed the jury on the GBI allegation using 

CALCRIM No. 3163 (CALCRIM 3163). He asserts that CALCRIM 3163 improperly 

suggested the jury needed to find only that Julie suffered more than minor injuries to find 

the GBI allegation true.

1. Background

Before the trial court gave its final instructions to the jury, Montgomery’s defense 

counsel asked the court to modify a portion of CALCRIM 3163 that defines GBI as 

follows: “ ‘Great bodily injury means significant or substantial physical injury. It is an 

injury that is greater than minor or moderate harm.’ ” Relying on People v. Medellin

(2020) 45 Cal.App.5th 519 (Medellin), counsel requested that the second sentence of the 

definition not include the word “minor” and instead state the following: “ ‘It is [an injury 

that is] greater than moderate harm.” (Italics added.) The prosecutor provided the trial 

court two other cases relevant to Montgomery’s request—People v. Sandoval (2020) 50 

Cal.App.5th 357 (Sandoval) and People v. Quinonez (2020) 46 Cal.App.5th 457 

(Quinonez).

The trial court stated that it had reviewed the precedent provided and rejected 

Montgomery’s request to modify CALCRIM 3163. The court concluded that CALCRIM 

3163 “is a correct statement of the law.” 

In accord with its ruling, the trial court instructed the jury on the GBI allegation

with CALCRIM 3163, in relevant part, as follows: “If you find the defendant guilty of 

the crime charged in Count 1, Penal Code [s]ection 273.5[, subd.] (f)(1), you must then 

decide whether the People have proved the additional allegation that the defendant 

personally inflicted great bodily injury on Julie Doe during the commission of that crime, 
7

under circumstances involving domestic violence. A violation of Penal Code section 

12022.7[, subd.] (e). [¶] Great bodily injury means significant or substantial physical 

injury. It is an injury that is greater than minor or moderate harm. [¶] . . . [¶] The 

People have the burden of proving each allegation beyond a reasonable doubt. If the 

People have not met this burden, you must find that the allegation has not been proved.”

In closing argument, the prosecutor read the definition of GBI provided in the jury 

instruction and repeatedly addressed the term “minor or moderate.” The prosecutor said, 

“In other words, greater than minor or moderate harm, it’s not just a trivial injury. It is 

not insignificant. It is not moderate. So anymore than that bruise . . . to get greater than a 

minor or moderate harm . . . . [¶] . . . And you, as jurors, need to determine where you 

draw the line on what is greater than minor or moderate harm.” The prosecutor also said, 

“When assessing whether or not the injuries in this case are great bodily injury, well, of 

course they are. That amount of injury is far more substantial and greater than any minor 

or moderate harm. It’s significant.” 

2. Legal Principles

“The trial court has a sua sponte duty to give correct instructions on the basic 

principles of the law applicable to the case that are necessary to the jury’s understanding 

of the case. [Citation.] That duty requires the trial court to instruct on all the elements of 

the charged offenses and enhancements.” (People v. Williams (2009) 170 Cal.App.4th 

587, 638–639.) Moreover, “a criminal defendant is entitled to pinpoint instructions that 

relate particular facts to an element of the charged offense and highlight or explain a 

theory of the defense if the instructions are supported by substantial evidence.” (People 

v. Nelson (2016) 1 Cal.5th 513, 542.) “But where standard instructions fully and 

adequately advise the jury upon a particular issue, a pinpoint instruction on that point is 

properly refused.” (People v. Canizalez (2011) 197 Cal.App.4th 832, 857; see also 

People v. Thomas (2012) 53 Cal.4th 771, 826; People v. Avila (2009) 46 Cal.4th 680, 

708.)
8

We review de novo a trial court’s refusal to give a requested instruction. (See 

People v. Waidla (2000) 22 Cal.4th 690, 733.) “ ‘In considering a claim of instructional 

error we must first ascertain what the relevant law provides, and then determine what 

meaning the instruction given conveys.’ ” (People v. Lopez (2011) 199 Cal.App.4th 

1297, 1305.) 

Under section 12022.7, subdivision (f), “ ‘great bodily injury’ means a significant 

or substantial physical injury.” (§ 12022.7, subd. (f).) That is, “not insignificant, trivial 

or moderate.” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) “[D]etermining 

whether a victim has suffered physical harm amounting to great bodily injury is not a 

question of law for the court but a factual inquiry to be resolved by the jury. [Citations.] 

‘ “A fine line can divide an injury from being significant or substantial from an injury 

that does not quite meet the description.” ’ [Citations.] Where to draw that line is for the 

jury to decide.” (People v. Cross (2008) 45 Cal.4th 58, 64.) “Proof that a victim’s bodily 

injury is ‘great’—that is, significant or substantial within the meaning of section 

12022.7—is commonly established by evidence of the severity of the victim’s physical 

injury, the resulting pain, or the medical care required to treat or repair the injury.” (Id. at 

p. 66.)

“When an appellate court addresses a claim of jury misinstruction, it must assess 

the instructions as a whole, viewing the challenged instruction in context with other 

instructions, in order to determine if there was a reasonable likelihood the jury applied 

the challenged instruction in an impermissible manner.” (People v. Wilson (2008) 44 

Cal.4th 758, 803; see also People v. Rivera (2019) 7 Cal.5th 306, 326; People v. Smithey

(1999) 20 Cal.4th 936, 963.) “We of course presume ‘that jurors understand and follow 

the court’s instructions.’ ” (Wilson, at p. 803.)

3. Analysis

Relying principally on the majority opinion in Medellin, supra, 45 Cal.App.5th 

519, Montgomery argues that the “ ‘greater than minor or moderate harm’ ” language in 
9

CALCRIM 3163 “was improperly ambiguous because it permitted the jury to sustain a 

GBI allegation based on the ‘invalid legal theory’ that only ‘more than minor’ injuries 

were required.” Montgomery further contends that the alleged instructional error violated 

his federal constitutional rights. 

In Medellin, the trial court instructed the jury using the same CALCRIM language 

defining GBI that the trial court used in the present case.4 (Medellin, supra, 45 

Cal.App.5th at p. 532.) However, in Medellin the prosecutor misstated the law by 

arguing to the jury that “more than minor harm alone was sufficient” to find GBI. (Id. at 

p. 533; see also id. at p. 531 [prosecutor argued, “ ‘An injury that is greater than minor. 

That is all I need to prove.’ ”].) The majority in Medellin concluded that the prosecutor’s 

misstatement of the law, alone, was not sufficient to reverse the defendant’s convictions, 

but when combined with ambiguity in the CALCRIM instruction, reversal was required. 

(Id. at pp. 533, 535–536.) Regarding the ambiguity in the instruction, the Medellin

majority focused on the instruction’s use of the word “ ‘ “or” ’ ” in the phrase “ ‘an injury 

that is greater than minor or moderate harm’ ” (id. at p. 531) and explained “the 

CALCRIM great bodily injury definition ‘may impermissibly allow a jury to’ find great 

bodily injury means [that] greater than minor harm alone is sufficient.” (Id. at p. 534.) 

The dissenting justice disagreed, concluding that the instruction correctly stated the law 

without ambiguity. (Id. at p. 538 (conc. & dis. opn. of Detjen, J.).)

Since the opinion in Medellin was issued, two different panels of the Fifth District 

Court of Appeal have revisited the GBI instruction in Quinonez, supra, 46 Cal.App.5th 

457 and in Sandoval, supra, 50 Cal.App.5th 357. 

In Quinonez, the court concluded that the standard CALCRIM definition of GBI 

was not ambiguous or erroneous and the prosecutor’s closing argument was consistent 

with the proper legal definition and the instructions. (Quinonez, supra, 46 Cal.App.5th at 

4 The instructions at issue in Medellin (CALCRIM Nos. 875 and 3160) define GBI 

in the same way as CALCRIM 3163. 
10

pp. 466, 467.) The Quinonez court explained that the “instructions did not allow the jury 

to find defendant guilty and the enhancements true upon the determination that [the 

victim’s injury] only constituted ‘moderate’ harm. Instead, the instructions expressly 

stated the jury had to find [the] injuries were ‘significant or substantial,’ consistent with 

the well-recognized definition of great bodily injury.” (Id. at p. 466.)

Similarly, in Sandoval, the majority explicitly disagreed with the reasoning of the 

majority in Medellin and concluded that CALCRIM’s GBI definition “d[id] not permit a 

reasonable finding of ambiguity.” (Sandoval, supra, 50 Cal.App.5th at p. 360.) The 

majority in Sandoval explained: “ ‘[A] jury instruction cannot be judged on the basis of 

one or two phrases plucked out of context . . . .’ [Citations.] Thus, it is improper to 

assess the correctness of the instructional definitions of great bodily injury by focusing 

exclusively on the use of ‘or’ in the phrase ‘minor or moderate harm.’ Rather, that phrase 

cannot be divorced from the one that immediately precedes it: ‘injury that is greater 

than’ (italics added). ‘[I]njury that is greater than minor or moderate harm’ cannot 

reasonably be read to mean injury that is more than minor but less than moderate. Such 

an interpretation simply does not make sense, legally or grammatically, particularly when 

the phrase is preceded by the explanation that great bodily injury means physical injury 

that is ‘significant or substantial.’ ” (Id. at p. 361.)

As in Quinonez and Sandoval, we decide that no error occurred in Montgomery’s 

trial with respect to the great bodily injury instruction. When read as a whole and in 

context, the definition of GBI in CALCRIM 3163 as given to Montgomery’s jury is 

neither erroneous nor ambiguous. The instruction “clearly informed jurors that great 

bodily injury meant significant or substantial physical injury, i.e., injury that was greater 

than moderate harm.” (Sandoval, supra, 50 Cal.App.5th at p. 362.) Further, the 

prosecutor’s closing argument to the jury here accorded with the correct definition of 

GBI and the jury instruction. Considering the entire trial record, we conclude there is no 

reasonable likelihood the jurors misapplied the instruction to find GBI based on more 
11

than minor harm alone. As CALCRIM 3163 fully and adequately defined GBI, 

Montgomery’s requested modification to the instruction was unnecessary. The trial court 

did not err in refusing to give it. We discern no instructional error or constitutional 

violation and reject Montgomery’s claims of error.

III. DISPOSITION

The judgment is affirmed.
______________________________________

Danner, J.

WE CONCUR:

____________________________________

Bamattre-Manoukian, Acting P.J.

____________________________________

Wilson, J.

H049134

People v. Montgomery