P v. Cunningham (4th Dist., Div.2) PC 12022.7(b) Enhancement Affirmed Where Doctors Sedated the Victim to Save Her Life

Mr. Cunningham robbed a tobacconist and crushed part of her skull with a mallet.  The neurology team at the hospital determined that it was necessary to place the victim on a ventilator, which requires heavy sedation to avoid complications that arise when a large tube is placed down one's throat into one's lungs.  She was on the ventilator during surgery and for 11 days following surgery.

Cunningham went down for attempted murder and robbery, with an enhancement for each crime under PC 12022.7(b), a five year enhancement for "infliction of great bodily injury which caused the victim to become comatose due to brain injury."  It is this enhancement that Cunningham appeals.

The Fourth District panel affirms the enhancement.  Upon the facts in this case, the decision seems a no-brainer.  But, reading the decision over a few times, it does illustrate a broader issue, the schism between legal language and science.

At best, most attorneys, judges, and legislators, possess the scientific literacy of a high school sophomore from 1985.  Science and technology (thankfully) progress at a dizzying pace.  Law is limacine.   What happens when the state of an art renders legislative language useless?

The PC 12022.7(b) enhancement uses the word "coma" (Greek for "sleep), a word that has limited meaning in modern medicine.  Science has progressed beyond this general word and, instead, has a much more complex rubric to describe states of unconsciousness.  Depths of sedation and anesthesia are now measured using what is called a bispectral index. A vegetative state, something most of us laymen would call a coma, is no coma.  It is an Appallic Syndrome.

So when a prosecutor asked the physician in this case if the victim was placed in a medically induced coma, he honestly had to say that medicine no longer uses such a term.  Which means it is up to judges and lawyers to give legal meaning to the word "coma" in 12022.7(b).  A task most of us are not up to.  My evidence?  The panel here assigns the following definition to the word "coma":

"a state resembling a coma characterized by profound unconsciousness"

So, coma is a state resembling a coma?  If my second grade grammar teacher is alive, she's fuming.  I agree with the panel that whatever the legislature meant when they used the word "coma", it applies to Cunningham's case.  But looking at the macro-view, the legal-scientific schism is not going away.