Filed 10/9/20

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL ARTHUR BARBER,

Defendant and Appellant.

 D076070

 (Super. Ct. No. SCN387263)

APPEAL from a judgment of the Superior Court of San Diego County, 

Bradley A. Weinreb, Judge. Affirmed.

George L. Schraer, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. 

Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff 

and Respondent.

A jury convicted Michael Arthur Barber of reckless driving (Veh. Code, 

§ 23103, subd. (a)). The jury also found true that Barber personally inflicted 

great bodily injury (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) and 

proximately caused a loss of consciousness of another (Veh. Code, § 23105, 

subd. (a)). The court placed Barber on formal probation for three years.
2

Barber appeals, contending the trial court prejudicially erred when it 

refused to give a special jury instruction he proposed, the great bodily injury 

enhancement finding must be stricken because it is an element of reckless 

driving, and, in the alternative, the matter should be remanded with 

instructions to the trial court to determine whether to strike the great bodily 

injury finding in furtherance of justice. Additionally, while this matter was 

pending, we granted Barber’s motion to file a supplemental opening brief. In 

that brief, he argues CALCRIM No. 2200 incorrectly defines one of the 

elements of reckless driving. We conclude none of Barber’s claims has merit. 

As such, we affirm.

FACTUAL BACKGROUND

Prosecution

Carlsbad Boulevard runs north to south along the coastline. At the 

intersection of Carlsbad Boulevard and Avenida Encinas in Carlsbad, the 

north and southbound lanes are separated by a wide landscaped median. 

The southbound lanes run closest to the beach, and, just south of the 

intersection, there is a dirt parking lot, which abuts the bike lane. The area 

is a corridor for surfers and beachgoers to get to the beach.

On March 5, 2018, Barber parked his car in the dirt lot just south of the 

intersection of Carlsbad Boulevard and Avenida Encinas and went for a run.

Afterward, he needed to pick up his son. To do so, he wanted to go east on 

Avenida Encinas, which from the parking lot he could not directly access 

because it was north of his car, and the lanes abutting the parking lot only 

went southbound. Rather than continuing southbound on Carlsbad 

Boulevard, making a U-turn, and accessing Avenida Encinas from 

northbound Carlsbad Boulevard, Barber put his car in reverse and drove 

northbound backward in the bike lane against the flow of traffic on 
3

southbound Carlsbad Boulevard. He had hoped to enter the traffic lanes and 

make a left turn onto Avenida Encinas. When he looked behind, he did not 

see any cars, bikes, or pedestrians. He was driving at about 25 miles per 

hour and proceeded backward through the intersection. In doing so, he drove 

backward through two crosswalks.

Around that same time, S.H. had been walking along Avenida Encinas 

and was preparing to cross the intersection at southbound Carlsbad 

Boulevard. When the light was red for southbound traffic, S.H. proceeded 

into the crosswalk at the intersection. A motorist who was stopped at the red 

light saw Barber speeding toward S.H. as she continued through the 

crosswalk; so, the motorist honked her horn. The honking did not stop 

Barber from colliding into S.H. as she entered the bike lane area of the 

crosswalk. The impact of the collision threw S.H. about 10 feet away. Barber

felt the impact and looked in the rearview mirror to see a pedestrian bounce 

off the back of his car. He stopped the car, got out, and saw a woman lying on 

the ground.

A lifeguard and an off-duty paramedic were in the vicinity when the 

collision occurred and rendered aid. S.H. was struggling to breathe, coughing 

up blood, and bleeding profusely from her mouth, nose, ears, and scalp. She 

displayed symptoms of severe traumatic brain injury.

Barber remained on the scene. He was cooperative, forthright, and 

very upset about what had happened. A test at the scene revealed that 

Barber had no alcohol in his system. The rear left area of Barber’s car was 

dented where he hit S.H.

An ambulance arrived and transported S.H. to the hospital. Upon 

admission to the hospital, it was discovered that S.H. suffered from traumatic 

brain injury, which included hemorrhages in the brain and skull fractures.
4

As a result of the brain injury, she had difficulty breathing on her own.

Given S.H.’s inability to perform simple tasks, her brain injury was 

considered severe. In addition to her brain injury, her collarbone, shoulder 

blade, and three bones in her back were fractured. Once S.H.’s acute 

symptoms were treated, she was referred to a rehabilitation facility. She had 

no memory from the day of the collision until she was in the ambulance on 

the way to the rehabilitation center. As a result of her injuries, she suffered 

severe memory loss, loss of language, and ongoing physical issues, which 

continued to require additional surgeries.

Defense

Barber is a retirement planner for teachers and seniors and has a 15-

year-old son. On the day of the incident, Barber picked up his son from 

school at 2:45 p.m. and dropped him off at an athletic training class at 

4:00 p.m. The class lasted for an hour; thus, Barber went for a run on the 

coast. Barber got back to his car at about 4:45 p.m.

To pick up his son, Barber could go south on Carlsbad Boulevard for

three-quarters of a mile and make a U-turn at a cross street. Or he could 

back up against traffic to Avenida Encinas and use it to get to northbound 

Carlsbad Boulevard. Barber decided to do the latter.

Barber looked for pedestrians and did not see any. He checked his 

mirrors before he started driving. Barber got into his car and backed up, 

looking over his shoulder as he drove. Barber estimated that he was going 15 

miles per hour as he backed up. He went straight back and did not see 

anyone or hear any horns. He was shocked when he felt an impact. Barber

got out of the car and saw S.H. lying on the ground. Barber asked if she was 

okay and took out a towel and placed it under her head.
5

Barber testified that if he had seen anyone in the area, he would not

have driven in reverse against traffic. Barber did not believe he was posing a 

risk of danger to anyone. Barber knew it was against the law to drive against 

the direction of traffic and to drive through a crosswalk if there is a 

pedestrian in it.

DISCUSSION

I

JURY INSTRUCTIONS

A. Barber’s Contentions

Barber makes two assertions regarding the jury instructions the trial 

court provided to the jury. First, he claims the court prejudicially erred in 

refusing to give a special instruction further defining the term “wanton.” 

Second, Barber insists that CALCRIM No. 2200, which was given to the jury, 

misstates the law. We reject both of these contentions.

B. Background

Before trial, Barber filed a motion asking the trial court to give two 

special jury instructions. Barber proposed these special instructions because 

he believed they were necessary to properly explain the mental state needed 

to commit reckless driving.

The first requested special instruction stated: “The term ‘wanton’

means the intentional doing of something with the knowledge that serious 

injury is a probable result. [¶] Negligence, even though it be gross 

negligence, is not willful misconduct and does not amount to wantonness.”

The second requested instruction provided: 

“Gross Negligence involves more than ordinary 

carelessness, inattention, or mistake in judgment. A 

person acts with gross negligence when: 1. He [acts] in a 

reckless way that creates a high risk of death or great 

bodily injury; [¶] AND [¶] 2. A reasonable person would 
6

have known that acting in that way would create such a 

risk. [¶] In other words, a person acts with gross 

negligence when the way he acts is so different from how 

an ordinarily careful person would act in the same

situation that his act amounts to disregard for human life 

or indifference to the consequences of that act.”

During hearings on in limine motions, the parties and the court

discussed the instructions Barber had requested. After entertaining 

argument from the parties, the court tentatively ruled that it would not give 

either of the requested instructions, but it said defense counsel could revisit 

the issue depending on the evidence and the arguments defense counsel 

intended to present to the jury.1

During the trial, before the parties rested, the matter of the special 

instructions was raised again. The trial court allowed the parties to argue 

the merits of the special instructions, but, ultimately, the court said it was 

not inclined to provide the special instructions to the jury.

The court, however, instructed the jury on the elements of reckless 

driving under CALCRIM No. 2200. As such, the court instructed the jury, as 

to the crime of reckless driving, as follows:

“The defendant is charged in Count 1 with reckless 

driving in violation of Vehicle Code Section 23103.

“To prove the defendant is guilty of this crime, the 

People must prove the following elements: One, the 

defendant drove a vehicle on a highway; and two, the 

defendant intentionally drove with wanton disregard for 

the safety of persons or property.

1 Here, we are only concerned with the first proposed special instruction. 

Further, because the parties only address the first sentence of that 

instruction, we limit our analysis accordingly.
7

“A person acts with wanton disregard for safety when, 

one, he or she is aware that his or her actions present a 

substantial and unjustifiable risk of harm; and two, he or 

she intentionally ignores that risk. The person does not, 

however, have to intend to cause damage.”

During his closing argument, defense counsel acknowledged that by 

taking a shortcut, Barber “caused a horrendous accident.” Counsel argued, 

however, that Barber “did not commit this serious crime of reckless driving.”

Defense counsel focused the jury on Barber’s state of mind. He then 

attempted to define wanton disregard for the safety of others, which he 

explained, “means that Mr. Barber was aware that his actions presented a 

substantial and unjustifiable risk of harm and that he intentionally ignored 

that risk. [¶] To put it in ordinary language, what that means is that, injury 

was probable.”

The prosecutor objected that Barber’s trial counsel had misstated the 

law. Before the court could rule on the objection, defense counsel countered

“[i]t absolutely states the law.” The court sustained the prosecutor’s 

objection, stating: “I will admonish the jury that the definitions and the 

instructions concerning the definition of reckless driving and the definition 

for acting with wanton disregard for safety has been provided to you in the 

instructions that I’ve given you.”

The parties then participated in a lengthy sidebar, again discussing the 

need to define wanton for the jury as set forth in Barber’s first special 

instruction. Nevertheless, the court remained unpersuaded by defense 

counsel’s assertion. 

When resuming his closing argument, Barber’s trial counsel focused on 

reckless driving. Defense counsel explained that willful and wanton required 

“a more aggravated mental state” that was “beyond” merely thinking “if I 

drive a car through a farmer’s market, somebody is probably going to get 
8

hurt[,] [b]ut . . . I don’t care.” He also emphasized that “[w]illful and wanton 

requires a specific mental state appreciating that . . . there is a substantial 

risk of harm. Somebody is going to get hurt if I do this. And yet the person 

acts with indifference, indifference. Intentionally ignores that risk. That’s 

the standard.” 

The jury began deliberations on the afternoon of February 28, 2019. 

Slightly before noon the next morning, the court stated it had received a

motion from defense counsel to suspend jury deliberations and allow

supplemental argument. In the motion, Barber asked the court to allow 

supplemental closing argument discussing the phrase “willful and wanton 

disregard for persons or property” as set forth in CALCRIM No. 2200. After 

allowing the parties to address the possibility of holding supplemental closing 

arguments, the trial court denied defense counsel’s request as untimely. It 

also rejected on its merits Barber’s contention that an instruction on

“probability” of injury was proper.

During deliberations, the jury sent the court a note asking: “Does the

term ‘substantial risk’ as used to define ‘wanton disregard’ mean the jury is

to define what we consider ‘substantial’ or are we to consider what the

accused would define as ‘substantial?’ ”

The court held a hearing on the jury’s note. Defense counsel said he 

believed the test was the state of mind of Barber, not the jury. The 

prosecutor suggested the court should tell the jury to use the ordinary 

meaning of the term. The court said the jury’s note did not ask for a 

definition of what the term substantial risk means, but rather whose 

perspective the jury should consider when determining if there was a 

substantial risk. The court said it believed the jury had to decide if Barber

was aware of the risk.
9

Barber’s trial counsel agreed that substantial risk should be viewed 

from Barber’s point of view. Nevertheless, defense counsel insisted that,

under relevant caselaw, Barber further had to be aware that his conduct

created a probability of injury. 

After further discussion, the court expressed the view that the jury 

must define the meaning of substantial risk and, in addition, must find that 

Barber was aware of that substantial risk before it could find him guilty of 

reckless driving. The court proposed that it answer the jury’s question by 

saying that the jury must define the term substantial risk and must then 

determine whether Barber was aware that his “actions present[ed] a 

substantial and unjustifiable risk as set forth in CALCRIM 2200.” The court 

explained: “The only thing we’re doing is simply telling the jury they get to 

decide what they think substantial risk means and apply it to what he’s 

aware of and what he intentionally does.”

The court stated it would instruct the jury: “You, the jury, determine 

what substantial risk means and apply that definition to the defendant’s 

mental state and intent as set forth in CALCRIM 251 and 2200.”

The jury sent a second note to the court, requesting the transcript of 

Barber’s testimony. The court provided the following response to the jury’s 

request: “The court reporter will prepare the record for read back. You are to 

continue to deliberate until the testimony is ready.” The bailiff delivered 

both of the court’s responses to the jury at 3:12 p.m. Less than 20 minutes 

later, the bailiff notified the court that the jury had reached a verdict.

C. Legal Principles

We review a claim of instructional error de novo. (People v. Posey

(2004) 32 Cal.4th 193, 218.) “Review of the adequacy of instructions is based 

on whether the trial court ‘fully and fairly instructed on the applicable law.’ ” 
10

(People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining 

whether error has been committed in giving jury instructions, we consider 

the instructions as a whole and assume jurors are intelligent persons, 

capable of understanding and correlating all jury instructions which are 

given. (Ibid.) “ ‘Instructions should be interpreted, if possible, so as to 

support the judgment rather than defeat it if they are reasonably susceptible 

to such interpretation.’ ” (Ibid.) “The crucial assumption underlying our 

constitutional system of trial by jury is that jurors generally understand and

faithfully follow instructions.” (People v. Mickey (1991) 54 Cal.3d 612, 689, 

fn. 17.)

Generally, the trial court is required to instruct the jury on the general 

principles of law that are closely and openly connected with the evidence and 

that are necessary to the jury’s understanding of the case. (People v. Barker

(2001) 91 Cal.App.4th 1166, 1172 (Barker).) It also has a duty to refrain from 

giving incorrect instructions or instructions on principles of law that are 

irrelevant and that would have the effect of confusing the jury or relieving it 

from making findings on the relevant issues. (Ibid.; see People v. Saddler

(1979) 24 Cal.3d 671, 681 (Saddler).) 

Here, Barber refers to his suggested special instruction as a pinpoint 

instruction. The law on pinpoint instructions is established. Our high court

has “suggested that ‘in appropriate circumstances’ a trial court may be 

required to give a requested jury instruction that pinpoints a defense theory 

of the case by, among other things, relating the reasonable doubt standard of 

proof to particular elements of the crime charged. [Citations.] But a trial 

court need not give a pinpoint instruction if it is argumentative [citation], 

merely duplicates other instructions [citation], or is not supported by 

substantial evidence [citation]. An instruction that does no more than affirm 
11

that the prosecution must prove a particular element of a charged offense 

beyond a reasonable doubt merely duplicates the standard instructions 

defining the charged offense and explaining the prosecution’s burden to prove 

guilt beyond a reasonable doubt.” (People v. Bolden (2002) 29 Cal.4th 515, 

558-559; see People v. Harrison (2005) 35 Cal.4th 208, 253.) A trial court 

may refuse a proffered instruction if it is duplicative. (People v. Bacon (2010) 

50 Cal.4th 1082, 1112; People v. Hartsch (2010) 49 Cal.4th 472, 511; People v. 

Gurule (2002) 28 Cal.4th 557, 659.) Any error in refusing to give a requested 

pinpoint instruction is reviewed under the standard enunciated in People v. 

Watson (1956) 46 Cal.2d 818, 836: is it reasonably probable that a result 

more favorable to defendant would have been reached in the absence of the 

error? (People v. Wharton (1991) 53 Cal.3d 522, 571.)

D. Analysis

Barber’s central point here relates to the meaning of the term 

“wanton.” Relying on a variety of cases decided some 60 to 80 years ago, 

stating that wanton involves a disregard of probable injury, Barber insists his 

first proposed special instruction was necessary to correctly define the term 

“wanton.” To this end, Barber argues that the jurors needed the proposed 

special instruction so they would properly understand that he could only be 

convicted of reckless driving if he knew that his actions would probably lead 

to injury, but engaged in those actions nonetheless. (See People v. McNutt

(1940) 40 Cal.App.2d.Supp 835, 837 (McNutt), citing Albers v. Shell Oil Co. 

(1930) 104 Cal.App.733, 750 [“The term ‘wantonness’ is thus defined: 

‘Wantonness includes the elements of consciousness of one’s conduct, intent 

to do or omit the act in question, realization of the probable injury to another, 

and reckless disregard of consequences.’ ”]; People v. Young (1942) 20 Cal.2d 

832, 837 (Young) [citing McNutt with approval for the proposition that 
12

reckless driving and willful misconduct as specified by the Vehicle Code were 

the same]; People v. Schumacher (1961) 194 Cal.App.2d 335, 338

(Schumacher) [“To establish the offense of reckless driving (Veh. Code, 

§ 23103), it must be shown that the defendant in the management of his 

automobile at the time and place in question intentionally did something 

with knowledge that injury to another was probable or acted with a wanton 

and reckless disregard for the safety of others and in reckless disregard of the 

consequences of his acts.”].)

Acknowledging that McNutt, Young, and Schumacher could not be 

described as contemporary, Barber points out that more recent cases have 

reiterated the older cases’ definitions of wanton. (See People v. Taylor (2018) 

19 Cal.App.5th 1195, 1202 [“As the reckless driving statute has never defined 

driving with ‘willful or wanton disregard for the safety of persons or 

property,’ courts have determined that it targets driving manifesting a 

particular state of mind [citation], namely, ‘consciousness of the results with 

intent to omit or do an act, realizing the probable injury to another; or acting 

in reckless disregard of the consequences; or conduct exhibiting reckless 

indifference as to the probable consequences with knowledge of likely 

resulting injury.’ ”]; People v. Dewey (1996) 42 Cal.App.4th 216, 221 [relying 

on CALJIC No. 16.840 to define wantonness as having “ ‘consciousness of 

conduct, intent to do or omit the act in question, realization of probable injury 

to another, and reckless disregard of the consequences’ ”].)

The People describe the caselaw Barber provides as “muddy” and claim 

it merely presents an alternative definition of the word “wanton” that the 

trial court had no obligation to provide. They also argue the proposed special 

instruction was substantially similar to CALCRIM No. 2200. In this sense, 

they essentially concede what Barber’s trial counsel contended during closing 
13

argument that his definition of wanton was simply the ordinary meaning of a 

substantial and unjustifiable risk. However, they argue the additional 

instruction would have only confused the jury, and, as such, the trial court 

did not err in refusing to give it. (See People v. Hovarter (2008) 44 Cal.4th 

983, 1021 [court may properly refuse instructions that are confusing].) As we 

will explain, we agree with the People.

As the People point out, many of the cases on which Barber relies are 

older, and it possibly would be helpful if a court more recently addressed the 

proper jury instruction for reckless driving. However, although many of the 

cases Barber cites are older, none of those cases has been overruled, and they 

all remain good law. Also, it is not surprising that there is not a lot of 

caselaw discussing reckless driving. Typically, that crime is prosecuted as a 

misdemeanor when there is no resulting great bodily injury. 

Vehicle Code section 23103, subdivision (a) provides, “A person who 

drives a vehicle upon a highway in willful or wanton disregard for the safety 

of persons or property is guilty of reckless driving.” The statue does not 

define “wanton disregard for the safety of persons or property.”

Barber is correct in noting that some cases have defined wanton, at 

least in part, as disregarding that an act will probably lead to injury. For 

example, in McNutt, supra, 40 Cal.App.2d.Supp. 835, the court examined 

whether sufficient evidence supported the defendant’s conviction for reckless 

driving. (Id. at p. 836.) In examining the subject statute, the court 

determined that “ ‘wantonness’ ” included, “ ‘the elements of consciousness of 

one’s conduct, intent to do or omit the act in question, realization of the 

probable injury to another, and reckless disregard for the consequences.’ ” 

(Id. at p. 837.) However, the court did not end its analysis with that 

definition. Instead, it discussed an alternative definition as follows:
14

“ ‘Where the conduct of defendant exhibits reckless 

indifference to the probable consequences, with knowledge 

of facts and circumstances likely to result in injury, it 

becomes wanton negligence.’ ” (Ibid.)

The court in McNutt continued to conclude that the requirements of 

reckless driving were not substantially different than the concept of willful 

misconduct contained in another statute, which rendered a driver responsible 

for injuries to his passengers. (McNutt, supra, 40 Cal.App.2d Supp. at 

pp. 838-839.) In doing so, the court considered a number of different 

definitions from other cases supporting the conclusion that willful misconduct 

was synonymous with reckless driving. (Ibid.) An alternative definition that 

the court discussed included not only acting with knowledge that serious 

injury was probable, but also, the intentional doing of an act with wanton and 

reckless disregard of its possible result. (Id. at p. 838.)

Therefore, although McNutt provides some support for Barber’s 

requested special instruction, it does not establish that the special instruction 

was required or correctly stated the only definition of wanton recognized by 

caselaw. Neither does any of the other cases cited by Barber as we discuss 

below. Alternatively stated, caselaw does not support the conclusion that 

Barber’s proposed special instruction is the only way reckless driving could be 

proved or that the sole definition of wanton is the intentional doing of an act 

with the knowledge that serious injury is a probable result. In this sense, 

Barber’s proposed special instruction could have confused the jury because it 

presented only one means by which reckless driving could be proved; yet, it 

implied that it was the only way that reckless driving could be proved. 

Although portions of caselaw support Barber’s definition, other portions of 

those same cases, as well as other caselaw, offer alternative definitions. 

Indeed, one case explicitly stated that a defendant could not avoid a reckless 
15

driving offense simply by claiming he did not know his conduct would 

probably lead to injury. (See People v. Nowell (1941) 45 Cal.App.2d Supp. 

811, 815 (Nowell) [“But it does not follow that if he does not know that an 

accident is probable, that he is for that reason to be freed from the charge of 

reckless driving.”].) As such, we conclude the trial court did not err in 

refusing to provide Barber’s proposed special instruction defining wanton 

because it was likely to confuse the jury. (Saddler, supra, 24 Cal.3d at p. 681; 

Barker, supra, 91 Cal.App.4th at p. 1172; see People v. Cavitt (2004) 33 

Cal.4th 187, 202 [“ ‘[I]t is dangerous to frame an instruction on isolated 

extracts from the opinions of the court.’ ”].)

Having determined that the trial court did not err in refusing to 

provide Barber’s proposed special instruction defining wanton, we next turn 

to Barber’s argument that CALCRIM No. 2200 incorrectly defined the 

elements required to convict Barber of reckless driving. To this end, Barber 

points out that CALCRIM No. 2200 informs a jury that a defendant can be 

convicted of reckless driving if he shows a wanton disregard for the safety of 

persons and property. The instruction further provides: “A person acts with 

wanton disregard for safety when (1) he or she is aware that his or her 

actions present a substantial and unjustifiable risk of harm, and (2) he or she 

intentionally ignores that risk.” (CALCRIM No. 2200.) Barber notes that 

CALCRIM No. 2200 relies on Schumacher, supra, 194 Cal.App.2d 335 and 

Young, supra, 20 Cal.2d 832 for its definition of wanton disregard, but he 

argues neither case refers to a substantial and unjustifiable risk of harm.

We agree with Barber that neither Schumacher nor Young contain the 

exact verbiage that is found in CALCRIM No. 2200. Nevertheless, our 

analysis of this issue requires more than a mere search for similar language. 

We therefore turn our focus onto Schumacher and Young. 
16

In Schumacher, following a bench trial, the court found the defendant, 

who was accused of felony drunk driving in violation of former Vehicle Code 

section 23101, guilty of reckless driving in violation of former Vehicle Code 

section 23103 as a lesser offense necessarily included in the charged offense. 

(Schumacher, supra, 194 Cal.App.2d at pp. 337-338.) The applicable reckless 

driving statute, former Vehicle Code section 23103, provided in part: “Any 

person who drives any vehicle upon a highway in willful or wanton disregard 

for the safety of persons or property is guilty of reckless driving.”

On appeal, the defendant in Schumacher challenged the reckless 

driving conviction on the ground reckless driving was not necessarily 

included in the offense of felony drunk driving. (Schumacher, supra, 

194 Cal.App.2d at p. 338.) The Court of Appeal agreed and reversed the 

conviction, holding that reckless driving is not a lesser offense necessarily 

included in the felony drunk driving offense defined in former Vehicle Code 

section 23101. (Schumacher, at p. 339.) The appellate court explained that 

felony drunk driving “can be committed without the presence of an element 

essential to the offense of reckless driving, namely, a ‘wilful or wanton 

disregard for the safety of persons or property.’ ” (Ibid.) The court also 

indicated that the term “ ‘wilful’ ” used in the statutory phrase “ ‘ “wilful or 

wanton disregard for the safety of persons or property” ’ ” meant 

“intentional,” and thus “ ‘[t]he intention . . . referred to relate[d] to the 

disregard of safety, etc., not merely to the act done in disregard thereof.’ ” 

(Id. at pp. 339-340.)

Moreover, as pertinent here, the court explained:

“To establish the offense of reckless driving (Veh. Code, 

§ 23103), it must be shown that the defendant in the 

management of his automobile at the time and place in 

question intentionally did something with knowledge that 

injury to another was probable or acted with a wanton and 
17

reckless disregard for the safety of others and in reckless 

disregard of the consequences of his acts.” (Schumacher, 

supra, 194 Cal.App.2d at p. 338.)

However, later in the opinion, the court further defined wantonness to 

“ ‘ “include[] the elements of consciousness of one’s conduct, intent to do or 

omit the act in question, realization of the probable injury to another, and 

reckless disregard of consequences.” ’ ” (Schumacher, supra, 194 Cal.App.2d 

at p. 340, citing McNutt, supra, 40 Cal.App.2d.Supp. at p. 837.) The court’s 

definition of wantonness seems to muddle its previous statement regarding 

what must be established to prove reckless driving. It provided elements in 

the disjunctive: Either the defendant did something intentionally with 

knowledge that injury was probable or the defendant acted with wanton and 

reckless disregard for the safety of others. (Schumacher, at p. 338.) Yet, in 

further defining wanton to include the realization of probable injury and the 

intentional doing or omitting of an act, the court appears to conflate the two 

separate approaches it articulated regarding how reckless driving could be 

proved. To try to better understand the court’s reasoning in Schumacher, we 

therefore consider another case the Schumacher court cited in discussing the 

definition of wanton: Nowell, supra, 45 Cal.App.2d Supp. 811. (See 

Schumacher, at p. 340.) 

In Nowell, the appellate court considered “the meaning of the words 

‘wilful and wanton disregard for the of safety of persons or property,’ as 

employed to define ‘reckless driving.’ ” (Nowell, supra, 45 Cal.App.2d Supp. 

at p. 812.) Although the court acknowledged the importance of the word 

“ ‘probable’ ” as part of the definition of willful misconduct (id. at pp. 814-

815), it explained that a charge of reckless driving is not only reserved for a 

defendant who knows that his conduct will probably cause harm, but also for 
18

a defendant who was reckless as to the consequences of his actions even if he 

was not aware that the risk of harm was probable (id. at p. 815). The court 

further expounded:

“We conclude, therefore, that one may be found guilty of 

reckless driving if he drives so as to show a wanton and 

reckless disregard of the possible consequences to persons 

or property of his manner of driving, even though it may 

not be a fact, and so he may not know, that the possible 

result of his driving will be to injure a person or property.” 

(Id. at p. 816.) 

Moreover, to provide an example that a defendant need not know his 

conduct will probably result in harm, the court in Nowell suggested, a person 

who “deliberately drive[s] at a high rate of speed, on the left-hand side of the 

road, around a blind curve” is guilty of reckless driving, regardless of whether 

there is any traffic coming in the opposite direction not visible to the driver. 

(Nowell, supra, 45 Cal.App.2d Supp. at pp. 814-815.)

Accordingly, both Schumacher and Nowell suggest a more fluid, less 

mechanical definition of the elements of reckless driving. Indeed, both cases 

imply that a defendant can be convicted of reckless driving without knowing 

that his actions would lead to probable injury. (See Schumacher, supra, 194 

Cal.App.2d at pp. 338-339; Nowell, supra, 45 Cal.App.2d Supp. at p. 816.)

In Young, supra, 20 Cal.2d 832, our high court cited McNutt with 

approval for the proposition that reckless driving and willful misconduct as 

specified in the Vehicle Code were the same. (Young, at p. 837.) While 

finding multiple definitions acceptable, the California Supreme Court 

determined that the “most acceptable definition of willful misconduct” was as 

follows:

“ ‘Wilful misconduct implies at least the intentional 

doing of something either with a knowledge that serious 

injury is a probable (as distinguished from a possible) 
19

result, or the intentional doing of an act with wanton and 

reckless disregard of its possible result.’ ” (Id. at pp. 836-

837, quoting Howard v. Howard (1933) 132 Cal.App.124, 

129.)

The court also explained that “[r]eckless disregard of the safety of 

others . . . is doing an act while recklessly ignoring the safety of others.” 

(Young, supra, 20 Cal.2d at p. 837.) In stating there was no “substantial 

difference” in describing “the character of the disregard” as “ ‘wilful or 

wanton’ rather than ‘reckless,’ ” the court cited to the Restatement of Torts 

with approval:

“ ‘The actor’s conduct is in reckless disregard of the 

safety of another if he intentionally does an act or fails to 

do an act which it is his duty to the other to do, knowing or 

having reason to know of facts which would lead a 

reasonable man to realize that the actor’s conduct not only 

creates an unreasonable risk of bodily harm to the other 

but also involves a high degree of probability that 

substantial harm will result to him.’ ” (Ibid.)

As such, our high court referred to wanton in terms of probable injury, but 

also discussed wanton and reckless disregard of a possible result as well as 

reckless disregard for the safety of others. In other words, nothing in Young

leads us to conclude that reckless driving can only be proved if the defendant 

was aware that injury was probable.

In addition, we observe that the predecessor to CALCRIM No. 2200 

(CALJIC No. 16.840), changed how it set forth the elements of reckless 

driving over time. According to the 1979 revision of that instruction, reckless 

driving was defined as follows:

“Every person who drives a vehicle upon a [street or] 

highway in willful or wanton disregard for the safety of 

persons or property, is guilty of reckless driving, a 

misdemeanor.
20

“The word ‘willful’, as used in this instruction, means an 

intentional disregard for the safety of others. It is not 

necessary to establish an intent to injure some person or 

property.

“The word ‘wanton’, as uses in this instruction, includes 

the elements of consciousness of conduct, intent to do or 

omit the act in question, realization of the probable injury 

to another, and reckless disregard of the consequences.” 

(CALJIC No. 16.840 (1979 Revision).)

Thus, we see that the Committee on Standard Jury Instructions 

adopted, at least at one point, a definition of wanton that was substantially 

similar to the one proposed by Barber in his first special instruction. 

Nonetheless, in 1996, CALJIC No. 16.840 was modified to omit the previous 

version’s definition of willful and wanton. The new version of the instruction 

read in part:

“Every person who drives a vehicle upon a [street] [or] 

[highway] in willful or wanton disregard for the safety of

persons or property is guilty of a violation of Vehicle Code 

section 23013, subdivision (a), a misdemeanor.

“ ‘Willful or wanton disregard’ means an intentional or 

conscious disregard for the safety of persons or property.

“In order to prove this crime, each of the following 

elements must be: proved:

“1. A person drove a vehicle upon a [street] [highway]; 

and

“2. At the time, the driver did so with an intentional or 

conscious disregard for the safety of persons or property.” 

(CALJIC No. 16.840 (1996 Edition).)

Thus, the form jury instruction abandoned the probable language as to 

the definition of wanton and adopted a more amorphous definition of willful 
21

or wanton disregard. Our independent research has not uncovered any 

explanation for the change or any caselaw that involves the interpretation of 

CALJIC No. 16.840. Further, the comments to both versions of CALJIC 

No. 16.840 indicate that the Committee on Standard Jury Instructions relied 

on Schumacher, supra, 194 Cal.App.2d 335 for its respective definitions of 

willful or wanton as they relate to reckless driving, despite the fact that the 

definitions are different. 

CALJIC No. 16.840 remained unchanged until it was replaced by 

CALCRIM No. 2200, which is the instruction provided to the jury in the 

instant matter. Again, that instruction states in part:

“To prove the defendant is guilty of this crime, the 

People must prove the following elements: One, the 

defendant drove a vehicle on a highway; and two, the 

defendant intentionally drove with wanton disregard for 

the safety of persons or property.

“A person acts with wanton disregard for safety when, 

one, he or she is aware that his or her actions present a 

substantial and unjustifiable risk of harm; and two, he or 

she intentionally ignores that risk. The person does not, 

however, have to intend to cause damage.” (See CALCRIM 

No.2200.) 

So, we observe that in drafting CALCRIM No. 2200, the Judicial 

Council of California Advisory Committee on Criminal Jury Instructions 

(Committee) did not revive the probable injury language of the earlier version 

of CALJIC No. 16.840 and did not keep the more general statement defining 

willful or wanton disregard as an intentional or conscious disregard for the 

safety of persons or property found in the final version of CALJIC No. 16.840. 

Instead, the Committee opted for new language, defining “wanton disregard 

for safety” as a defendant being “aware that his or her actions present a 

substantial and unjustifiable risk of harm” and “ignor[ing] that risk.” 
22

(CALCRIM No. 2200.) We agree with Barber that the substantial and 

unjustifiable risk language is not found in either Schumacher, supra, 194 

Cal.App.2d 335, or Young, supra, 20 Cal.2d 832, on which the Committee 

relied to draft the form instruction. That said, we are less concerned whether 

the identical language is contained in those cases than if the subject 

instruction correctly instructs the jury, consistent with applicable law, what 

it must find to convict a defendant of reckless driving.

We assume that jurors exercise common sense in construing 

instructions and deliberating. “ ‘We credit jurors with intelligence and 

common sense [citation] and do not assume that these virtues will abandon 

them when presented with a court’s instructions.’ ” (People v. Sanchez (2013) 

221 Cal.App.4th 1012, 1024.) 

In the context of CALCRIM No. 2200, the word “substantial” does not 

have a technical meaning peculiar to the law. Merriam-Webster’s dictionary 

defines “substantial” in the following ways: “1 a: consisting of or relating to 

substance [¶] b: not imaginary or illusory: real, true [¶] c: important, 

essential [¶] 2: ample to satisfy and nourish: full [¶] 3 a: possessed of 

means: well-to-do [¶] b: considerable in quantify: significantly great [¶] 

4: firmly constructed: sturdy [¶] 5: being largely but not wholly that which 

is specified”.2 Further, synonyms for “substantial” include big, 

consequential, considerable, extraordinary, large, massive, meaningful, 

serious, significant, and sizable.3

2 (<https://www.merriam-webster.com/dictionary/substantial> [as of 

October 9, 2020], archived at <https://perma.cc/5737-2JX6>.)

3 (<https://www.thesaurus.com/browse/substantial?s=t> [as of October 9, 

2020], archived at <https://perma.cc/9NXS-SSY8>.)
23

Merriam-Webster’s dictionary defines “unjustifiable” as “unable to be 

justified: not excusable or justifiable.”4 Moreover, synonyms for 

“unjustifiable” include baseless, groundless, indefensible, inexcusable, 

unconscionable, and unforgivable.5

Neither the term “substantial” nor the term “unjustifiable” is 

uncommon. To the contrary, these are words that are easily understood. 

Regarding using those words to describe a type of risk, considering the 

applicable definitions and synonyms, a commonsense understanding of a 

“substantial and unjustifiable risk” would be a risk that is significant, large, 

or extraordinary and is indefensible. In other words, a substantial and 

unjustified risk is not one that a person would feel comfortable ignoring. In 

fact, he or she would be reckless to do so. 

In applying this understanding of “substantial and unjustifiable risk”

to the pertinent caselaw, we are satisfied that CALCRIM No. 2200 accurately 

states the elements of reckless driving. For example, in Young, supra, 20 

Cal.2d 832, our high court concluded that willful misconduct and reckless 

driving were the same. It then provided alternative definitions for willful

misconduct to include intentionally performing an act with knowledge that 

serious injury is probable or intentionally doing an act with wanton and 

reckless disregard of its possible result. (Id. at pp. 837-838.) The court 

further explained that “[r]eckless disregard of the safety of others . . . is doing 

an act while recklessly ignoring the safety of others.” (Id. at p. 837.) We are 

satisfied that the phrase “substantial and unjustifiable risk” captures the 

4 (<https://www.merriam-webster.com/dictionary/unjustifiable> [as of 

October 9, 2020], archived at <https://perma.cc/MC89-72A8>.)

5 (<https://www.thesaurus.com/browse/unjustifiable> [as of October 9, 

2020], archived at <https://perma.cc/4377-QHFV>.)
24

mental state for reckless driving set forth in Young. Ignoring such a risk, 

would show the defendant had a reckless disregard for the safety of others.

Similarly, we determine CALCRIM No. 2200 is consistent with 

Schumacher, supra, 194 Cal.App.2d 335. In that case, the appellate court 

held that to establish the offense of reckless driving, the prosecutor must 

prove the defendant, in driving his vehicle, intentionally did something with 

knowledge that injury to another was probable or acted with a wanton and 

reckless disregard for the safety of others and in reckless disregard of the 

consequences of his acts. (Id. at p. 338.) Certainly, if a defendant was aware 

his or her conduct created a probable risk of injury, that risk would be 

“substantial and unjustifiable.” In the alternative, a “substantial and 

unjustifiable risk” is one that a defendant would be wanton and reckless to 

ignore as it would jeopardize the safety of others. Thus, the form instruction 

satisfies both ways in which the court in Schumacher suggests reckless 

driving could be shown.6

In addition, the case before us presents a very egregious set of facts 

that clearly establish reckless driving in any event. Barber backed out of a 

parking lot in an area he knew could be crowded with bikers and pedestrians. 

When he backed out of the parking lot, he then proceeded to drive in reverse 

in the bike lane traveling in the opposite direction of oncoming traffic. He 

testified that he decided to drive in reverse, against traffic, because the bike 

6 We are mindful that the term “probable” and the phrase “substantial 

and unjustifiable” are not necessarily synonymous. Nonetheless, we struggle 

to contemplate a situation where a probable risk of injury would not be a 

“substantial and unjustifiable risk of harm.” Although the counter might not 

be true (a substantial and unjustifiable risk might not necessarily be 

probable), we note there is no caselaw that establishes reckless driving can 

only be proved if the defendant was aware that injury was probable. (See, 

e.g., Nowell, supra, 45 Cal.App.2d Supp. at pp. 815-816.) 
25

lane was big enough to accommodate his car. Barber further insisted that he 

would not have decided to travel in reverse, against traffic if the bike lane 

was narrower and his car would not have fit. Thus, it appears Barber knew 

traveling the wrong way in a bike lane could be dangerous, but based his 

evaluation of danger on whether his car would fit in the lane, apparently not 

considering that bicyclists and joggers could use the bike lane in a busy 

pedestrian area near the beach. In fact, Barber admitted that “lots of people”

go jogging, biking, and travel to the beach in the area he was driving through. 

He drove in this dangerous fashion for a substantial distance, from the 

lot, on the street, through a crosswalk, a busy intersection, and another 

crosswalk. Although Barber tried to look behind him as he drove against 

traffic, he admitted he was aware that his car had blind spots and he could 

not see everything while traveling in reverse.

As Barber proceeded through the intersection, he was not sure if the 

light was red at Carlsbad Boulevard, but he saw a car stopped at the light 

and knew it was dangerous to drive through a crosswalk when pedestrians 

had the right of way. However, without knowing who had the right of way, 

he crossed through the crosswalk. When he collided with the victim while 

driving in reverse, he hit her with such force that the car was dented and 

caused her to fly 10 feet away, producing catastrophic injuries.

Simply put, Barber engaged in this incredibly dangerous course of 

action to avoid going an extra three quarters of a mile away to make a Uturn, which would have placed him on the right side of the road to turn onto 

Avenida Encinas. We cannot contemplate how any reasonable juror would 

not find Barber intentionally drove with wanton disregard for the safety of 

other people. In other words, the evidence proved beyond a reasonable doubt 

that Barber was aware that his actions presented a substantial and 
26

unjustifiable risk of harm, and he ignored that risk. In this sense, the 

instant action presents a much more severe set of facts of reckless driving 

than the hypothetical driver in Nowell, who drove at a high rate of speed 

around a blind curve. (See Nowell, supra, 45 Cal.App.2d Supp. at p. 814.)

In short, on the record before us, we do not find any error associated 

with the jury instructions the court provided the jury.

II

GREAT BODILY INJURY

Barber argues that the jury’s finding that he personally inflicted great 

bodily injury within the meaning of Penal Code section 12022.7 must be 

stricken because great bodily injury is an element of felony reckless driving. 

We disagree.

Barber’s claim raises a question of law that we review de novo. 

(People v. Prunty (2015) 62 Cal.4th 59, 71.) 

Vehicle Code section 23103 prohibits driving a “vehicle upon a highway 

in willful or wanton disregard for the safety of persons or property.” Vehicle 

Code section 23105 sets forth the penalties that apply when reckless driving 

proximately causes specified injuries to a person other than the driver. 

Subdivision (a) of that section states, “A person convicted of reckless driving 

in violation of Section 23103 that proximately causes one or more of the 

injuries specified in subdivision (b) to a person other than the driver, shall be 

punished by imprisonment pursuant to subdivision (h) of Section 1170 of the 

Penal Code, or by imprisonment in a county jail. . . .”

The injuries described in subdivision (b) include a loss of consciousness, 

a concussion, bone fracture, loss or impairment of the function of a body part 

or organ, a wound requiring extensive suturing, a serious disfigurement, 

brain injury, or paralysis. (See Veh. Code, § 23105 , subd. (b).) 
27

Subdivision (c) of Vehicle Code section 23105 states the statute does not 

preclude or prohibit prosecution under any other provision of law.

At trial, the jury found true that Barber personally inflicted great 

bodily injury during the commission of a felony under Penal Code 

section 12022.7. Subdivision (a) of that section states in relevant part, “Any 

person who personally inflicts great bodily injury on any person other than 

an accomplice in the commission of a felony or attempted felony shall be 

punished by an additional and consecutive term of imprisonment in the state 

prison for three years.”

Subdivision (g) of Penal Code section 12022.7 further specifies that the 

section does not apply if “infliction of great bodily injury is an element of the 

offense.”

Barber argues that the trial court should have stricken the great bodily 

injury enhancement under Penal Code section 12022.7 because it was an 

element of the offense of reckless driving. The People counter that we need 

not reach this issue because the court granted Barber probation; thus, it did 

not impose the great bodily injury enhancement. To this end, the People 

emphasize that Penal Code section 12022.7, subdivision (g) states that the 

additional prison term should not “apply” when great bodily injury is an 

element of the offense. They further maintain that subdivision (g) does not 

indicate that the enhancement must be stricken, simply that it cannot be 

applied. Because an enhancement under Penal Code section 12022.7 was not 

applied here, the People urge this court to reject Barber’s argument for this 

reason alone.

Barber contends the People misread the statute. He asserts that 

subdivision (g) of Penal Code section 12022.7 is not limited to situations 

where the enhancement itself was applied to a defendant’s sentence. Instead, 
28

according to Barber, subdivision (g) restricts even the allegation of a great 

bodily enhancement under Penal Code section 12022.7 if great bodily injury 

is an element of the underlying offense. We agree with Barber’s reading of 

the statute.

Penal Code section 12022.7, subdivision (g) provides: “This section 

shall not apply to murder or manslaughter or a violation of Section 451 or 

452. Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great 

bodily injury is an element of the offense.” Here, the jury found true that 

Barber personally inflicted great bodily injury, under Penal Code 

section 12022.7, subdivision (a), during the commission of reckless driving. 

However, subdivision (a) does not apply if great bodily injury is an element of 

the underlying offense. (See Pen. Code, § 12022.7, subd. (g).) Therefore, 

under the plain terms of the statute, it is the statute that does not apply in 

the first instance if subdivision (g) is triggered. We therefore reach the 

merits of Barber’s argument that great bodily injury is an element of reckless 

driving under Vehicle Code section 23105.

As the parties admit, there is a published opinion directly addressing 

the issue Barber raises here. In People v. Escarcega (2019) 32 Cal.App.5th 

362 (Escarcega), review granted May 15, 2019, S254865, the appellate court 

rejected the argument Barber advances in the instant action. In that case, 

the court determined that Penal Code section 12022.7, subdivision (g) did not 

bar a great bodily injury enhancement for reckless driving. (Escarcega, at 

p. 383.) The court determined that Vehicle Code “section 23105 is not a 

substantive offense because it does not define a criminal act.” (Escarcega, at 

p. 373.) Instead, the court concluded “it is a sentencing provision that allows 

particularly serious forms of reckless driving to be punished a felonies rather 

than misdemeanors.” (Id. at pp. 373-374.)
29

The opinion in Escarcega, supra 32 Cal.App.5th 362, review granted, 

was thoroughly reasoned. The appellate court analyzed the difference 

between substantive crimes and punishment statutes, engaged in statutory 

analysis, considered legislative history, and evaluated whether its 

interpretation of the subject statute would lead to absurd results. (Id. at pp. 

375-383.) However, Barber does not directly address the court’s reasoning in 

Escarcega. Instead, he argues “the fundamental premise that lies at the 

heart of the analysis in Escarcega is incorrect.” He claims that the court in 

Escarcega was mistaken in its conclusion that Vehicle Code section 23105 is 

not a substantive crime but a sentencing provision.

To support his conclusion, Barber relies heavily on Apprendi v. New 

Jersey (2000) 530 U.S. 466 (Apprendi). He claims that because Vehicle Code 

section 23105 increased punishment beyond the statutory minimum of a 

specific crime (reckless driving), under Apprendi, it must be considered “the 

same as an element of a new and more serious offense.” However, Barber’s 

reliance on Apprendi is misplaced. Neither what occurred below nor the 

appellate court’s conclusion in Escarcega runs afoul of Apprendi.

In Apprendi, supra, 530 U.S. 466, the United States Supreme Court 

determined that, with the sole exception of facts relating to a prior conviction, 

“any fact that increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury, and proved beyond a 

reasonable doubt.” (Id. at p. 490.) The court explained that “the relevant 

inquiry is one not of form, but of effect—does the required finding expose the 

defendant to a greater punishment than that authorized by the jury’s guilty 

verdict?” (Id. at p. 494.) If so, regardless of whether a state labels the fact a 

sentencing factor or an element of an offense, the Sixth Amendment requires 
30

that it be proven to a jury beyond a reasonable doubt. (Apprendi, at pp. 494-

495.) Thus, the high court reasoned, “when the term ‘sentence enhancement’

is used to describe an increase beyond the maximum authorized statutory 

sentence, it is the functional equivalent of an element of a greater offense 

than the one covered by the jury’s guilty verdict.” (Id. at p. 494, fn. 19.)

Below, Vehicle Code section 23105 was presented as a sentencing 

enhancement to the jury. The jury found the enhancement true beyond a 

reasonable doubt. Thus, Barber’s Sixth Amendment rights were not violated. 

(See Apprendi, supra, 530 U.S. at pp. 494-495.) Apprendi does not mandate 

that we conclude Vehicle Code section 23105 is a criminal statute rather than 

a sentencing provision. It simply provides that if a statute purports to 

increase a defendant’s sentence beyond the maximum permitted for the 

underlying crime, the jury must find the elements of the enhancement 

statute proved beyond a reasonable doubt. We therefore follow the wellreasoned Escarcega, supra 32 Cal.App.5th 362, review granted, and reject 

Barber’s argument here.

In an alternative argument, Barber asserts that a great bodily injury 

enhancement under Penal Code section 12022.7 cannot apply to a reckless 

driving offense, which caused injury under Vehicle Code section 23105. To 

this end, Barber analogizes Vehicle Code section 23105 to the offense of 

battery with serious bodily injury (Pen. Code, § 243, subd. (d)). Barber notes 

that Penal Code section 243, subdivision (f)(4) lists the following examples of 

“serious bodily injury”: “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.” (Pen. Code, 

§ 243, subd. (f)(4).) Barber further points out that the list of injuries under 

Vehicle Code section 23105, subdivision (b) lists the same injuries as under 
31

Penal Code section 243, subdivision (f)(4) with the addition of brain injury 

and paralysis. (See Veh. Code, § 23105, subd. (b).) Barber then argues that 

California courts have recognized for analytical purposes, serious bodily 

injury in Penal Code section 243 is the same as great bodily injury in Penal 

Code section 12022.7. (See People v. Hawkins (1993) 15 Cal.App.4th 1373, 

1375.) As such, Barber contends that because a great bodily injury 

enhancement cannot apply to a conviction for battery with serious injury, it 

cannot apply to reckless driving causing injury under Vehicle Code 

section 23105.

As a threshold matter, we observe that Barber’s argument assumes 

that Vehicle Code section 23105 is a substantive crime, not a sentencing 

provision. In following Escarcega, supra 32 Cal.App.5th 362, review granted, 

we rejected that premise above. Thus, Barber’s argument relying on 

analogizing Vehicle Code section 23105 to Penal Code section 243, 

subdivision (d) fails for the same reasons as his Apprendi argument.7

7 To the extent it can be implied that Barber is arguing that a Vehicle 

Code section 23105 enhancement and a Penal Code section 12022.7 

enhancement cannot both be imposed because they essentially are based on 

the same injury, we need not reach this issue. Here, although the jury found 

true both enhancements, the court did not impose either enhancement on 

Barber. Therefore, we need not weigh in on this issue.
32

III

REMAND TO ALLOW THE TRIAL COURT TO CONSIDER STRIKING 

THE GREAT BODILY INJURY ENHANCEMENT

Barber’s final argument is that we must remand this matter to the trial 

court to allow it to consider striking the great bodily injury enhancement in 

furtherance of justice under Penal Code section 1385. We disagree.

Before sentencing, Barber filed a motion requesting that the court 

strike the great bodily injury enhancement and reduce the offense to a 

misdemeanor. In denying the motion to reduce the offense to a misdemeanor, 

the court provided the parties a detailed explanation why it would not reduce 

the offense. In doing so, the court noted “there were multiple [vehicle] 

violations that occurred,” the injuries to the victim were “significant and 

severe,” and “the perfect storm . . . was required to save the life of [the 

victim].” In declining to strike the great bodily enhancement, the court 

indicated it was not inclined to do so because it was not going to impose a 

prison term.

Penal Code section 1385 permits a court to strike or dismiss an 

enhancement. (Pen. Code, § 1385; In re Varnell (2003) 30 Cal.4th 1132, 

1137.) A defendant is entitled to a sentencing decision made with the 

“ ‘informed discretion’ ” of the sentencing court. (People v. Gutierrez (2014) 

58 Cal.4th 1354, 1391.) When a court is unaware of its discretion, the 

remedy is to remand for resentencing unless the record clearly indicates that 

the trial court would have reached the same conclusion if it had been aware 

of its discretion. (Ibid; People v. Chavez (2018) 22 Cal.App.5th 663, 713.)

Here, the record shows that the trial court was aware that it could 

strike the great bodily enhancement, but chose not to do so because it was

granting probation. In considering the entire record, the court clearly tried to 
33

strike a balance between holding Barber responsible for his reckless driving 

and the serious injuries he caused against his remorse and lack of criminal 

history. By refusing to reduce the offense or strike the enhancement, but 

granting Barber probation, the court believed it struck the proper balance. 

Moreover, to the extent the record is ambiguous, the court is presumed to 

have properly performed its official functions in the absence of evidence to the 

contrary. Under that presumption, the court is presumed to have been aware 

of and followed the applicable law. (Evid. Code, § 664; People v. Stowell

(2003) 31 Cal.4th 1107, 1114.)

Finally, even if the trial court was not aware it had the discretion to 

strike the great bodily injury enhancement, remand is unnecessary because 

the record indicates that the trial court would have reached the same 

conclusion had the trial court exercised its discretion. The trial court made a 

thorough record detailing the reasons behind its sentencing decision. In 

doing so, it decided to maintain the serious charge and allegation, yet forego 

custody and grant probation. Given the detailed reasoning the court put into 

its decision, which is reflected in the record, we see no purpose in remanding 

this matter for the court to again exercise its discretion. Simply put, remand 

is not necessary.
34

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

IRION, J.