45 Cal. 4th 58, 190 P.3d 706, 82 Cal. Rptr. 3d 373
Filed 8/28/08
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S139791
v.
) Ct.App.
6
H027519
GARY W. CROSS,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. CC319761
Anyone who in the commission of a felony ?personally inflicts great bodily
injury . . . shall be punished by an additional and consecutive term of
imprisonment.? (Pen. Code, ? 12022.7, subd. (a), italics added.)1 Under the ?One
Strike Law? (? 667.61), when a defendant is convicted of a specified sex offense
and the jury finds true a section 12022.7 allegation, the trial court must sentence
the defendant to a prison term of 15 years to life. Here, defendant was so
sentenced based on the jury?s finding that he had inflicted great bodily injury on
his 13-year-old stepdaughter, who after defendant had sexual intercourse with her
became pregnant and underwent an abortion that defendant encouraged her to
have.
First, can a pregnancy without medical complications that results from
unlawful but nonforcible sexual conduct with a minor support a finding of great
1
All further statutory references are to the Penal Code.
1
bodily injury? It can, and here evidence of the pregnancy was sufficient to support
such a finding. Second, did the trial court err by not instructing on the meaning of
personal infliction? No. Third, was it error for the trial court to instruct the jury
that an abortion may constitute great bodily injury, a legally correct statement that
did not apply to the facts here, because defendant did not personally perform the
surgical abortion? Yes, giving the instruction was erroneous; but it did not
mislead the jury.
I
In July 1995, defendant, who is not the biological father of victim K.,
married K.?s mother. During the summer of 2002, then 13-year-old K. took care
of her younger sister and brother while their parents were away at work. The
mother?s evening shift began at 9 or 10 p.m. The shifts of defendant, then 39
years old, varied, and he was often home at night. One night in early June 2002,
after K. and her siblings were asleep in their bedroom, defendant awakened K. and
told her to follow him. In the master bedroom, he undressed her and had sexual
intercourse with her. He then threatened that if she told her mother, she would be
taken away by the police and not allowed to see her family. Defendant continued
to have intercourse with K. regularly while her mother was at work. Once,
defendant held K. by the head and placed his penis in her mouth. Although K.
occasionally objected to these sex acts, she was reluctant to do so for fear
defendant would not allow her to go out with her friends or would take away her
cell phone.
In August 2002, K. told defendant she might be pregnant. On September
25, her suspicion was confirmed by a positive pregnancy test performed at a local
clinic to which defendant had taken her.
In December 2002, after K.?s mother commented on K.?s weight gain,
defendant took the girl back to the clinic for an abortion. The advanced stage of
2
the pregnancy, five and a half months, required a surgical procedure that could not
be performed at the clinic, which then referred K. to San Francisco General
Hospital.
The abortion required certain medical procedures at the hospital on two
successive days. Each day, without her mother?s knowledge, defendant kept K.
out of school to take her to the hospital.
On December 17, 2002, their first visit to the hospital, K., at defendant?s
direction, falsely filled out the admission forms, giving her age as 14 years, using
defendant?s last name as her own, and describing him as her father. An ultrasound
image of the fetal head indicated that the fetus was 22 weeks and two days old ?
near the end of the second trimester of pregnancy. Such a late-stage pregnancy
required a surgical abortion. That day, hospital staff inserted dilators into K.?s
cervix.
The next day, defendant brought K. back to the hospital. K. was given
anesthesia and, after additional dilation of her cervix, the fetus was removed from
her uterus. Measurement of the fetal foot confirmed a 22-week pregnancy. The
abortion lasted 13.1 minutes, resulted in no medical complications, and the
hospital released K. to defendant. DNA analyses introduced at trial of tissue
samples from the fetus, from K., and from defendant indicated a 99.99 percent
probability that defendant had fathered the fetus.
After the abortion, defendant resumed sexual activity with K. until July 9,
2003, when her mother came across documents relating to the abortion. The next
day, K. reported her sexual molestation to the police, who arrested defendant.
Defendant was charged with, in count 1, the felony of committing a lewd
and lascivious act on a child under the age of 14 by force, violence, duress,
menace, or fear (? 288, subd. (b) (1)), with an allegation that he inflicted great
bodily injury on the victim (?? 12022.7, 12022.8); in count 2, the felony of
3
aggravated sexual assault by oral copulation of a child under the age of 14 and 10
or more years younger than defendant (? 269, former subd. (a)(4) as enacted by
Stats. 1994, ch. 48X, p. 8761); and in counts 3 and 4, two charges of felony
aggravated sexual assault by rape of a child under the age of 14 and 10 or more
years younger than defendant (? 269, former subd. (a)(2) as enacted by Stats.
1994, ch. 48X, p. 8761).
In closing argument at trial, the prosecutor told the jury that the charge of
lewd and lascivious conduct with a child alleged in count 1 was based on the act of
sexual intercourse that resulted in K.?s pregnancy, and that the jury could consider
either the pregnancy or the abortion, or both, as a basis for the allegation of
personal infliction of great bodily injury. Arguing that ?[a]ny pregnancy can
count? so long as ?you find it?s substantial or significant,? the prosecutor urged the
jurors to ask themselves if ?carrying a baby for 22 weeks . . . in a 13-year-old
body? was significant or substantial. Comparing the invasiveness of the abortion
to that of a heart transplant, the prosecutor argued the abortion ?was substantial?
and ?significant,? because it was an operation requiring anesthesia and drugs to
control bleeding. Turning to the statutory requirement of ?personally? inflicting
great bodily injury, the prosecutor argued that defendant ?only needs to do the act
of getting her pregnant or having an abortion.?
After being instructed that the pregnancy or the abortion could be great
bodily injury, the jury found defendant guilty of committing a lewd act on a child
under the age of 14 (? 288, subd. (a)), a lesser offense of the forcible crime alleged
in count 1, and it found that defendant personally inflicted great bodily harm in
committing the offense (? 12022.7). The jury also found defendant guilty of oral
copulation with a person under 14 years of age and more than 10 years younger
than himself (? 288a, subd. (c)(1)), a lesser offense of the forcible oral copulation
4
offense (? 269, former subd. (a)(4)) that was charged in count 2. Defendant was
found not guilty of the remaining charges.
For the nonforcible oral copulation (? 288a, subd. (c)(1)), the trial court
sentenced defendant to a determinate prison term of six years. Under the One
Strike Law, for the lewd act offense with the great bodily injury finding, the trial
court sentenced defendant to an indeterminate prison term of 15 years to life to be
served consecutively to the determinate six-year term. (? 667.61, subds. (b),
(c)(4), (e)(3).)
Defendant appealed. The Court of Appeal affirmed the trial court?s
judgment. We granted defendant?s petition for review.
II
Defendant argues that a pregnancy without medical complications that
results from unlawful but nonforcible intercourse, as occurred here, can never
support a finding of great bodily injury. We disagree.
Great bodily injury ?means a significant or substantial physical injury.?
(? 12022.7, subd. (f); see ? 12022.8;2 People v. Escobar (1992) 3 Cal.4th 740,
749-750 (Escobar); see also People v. Miller (1977) 18 Cal.3d 873, 883
[construing great bodily injury in former ?? 213 and 461 to mean ?significant or
2
Section 12022.7, subdivision (a), imposes a sentence enhancement of three
years for great bodily injury caused in the commission of felonies in general, but
section 12022.8 imposes a sentence enhancement of five years for great bodily
injury inflicted in the commission of enumerated sexual felonies. (Several of the
crimes with which defendant was charged are listed in section 12022.8, but the
lesser included offenses of which he was actually convicted are not specified in
that statute.) Section 12022.8 adopts by reference the definition of great bodily
injury contained in section 12022.7, subdivision (f), but it does not use the latter
provision?s adjective ?personally,? instead speaking of ?[a]ny person who inflicts
great bodily injury.? (? 12022.8.) Nonetheless, section 12022.8 has been
construed to require personal infliction. (People v. Ramirez (1987) 189
Cal.App.3d 603, 627.)
5
substantial bodily injury or damage as distinguished from trivial or insignificant
injury or moderate harm?].) This court has long held that determining 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.
(Escobar, supra, 3 Cal.4th at p. 750; People v. Wolcott (1983) 34 Cal.3d 92, 109.)
? ?A fine line can divide an injury from being significant or substantial from an
injury that does not quite meet the description.? ? (Escobar, supra, 3 Cal.4th at
p. 752, quoting People v. Jaramillo (1979) 98 Cal.App.3d 830, 836; People v.
Clay (1984) 153 Cal.App.3d 433, 460.) Where to draw that line is for the jury to
decide.
Defendant
here
maintains that only a pregnancy resulting from forcible rape
can result in great bodily injury. Pointing to the jury?s verdict of not guilty on the
charge of forcible rape, defendant contends that neither Escobar, supra, 3 Cal.4th
740, nor People v. Sargent (1978) 86 Cal.App.3d 148 (Sargent), each involving
forcible rape, is authority for the proposition that when, as here, a victim of
unlawful but nonforcible sexual conduct becomes pregnant she has suffered great
bodily injury.
In
Escobar, this court described great bodily injury as ?substantial injury
beyond that inherent in the offense.? (Escobar, supra, 3 Cal.4th at p. 746; see also
People v. Modiri (2006) 39 Cal.4th 481, 492; People v. Jefferson (1999) 21
Cal.4th 86, 101.) But Escobar went on to observe that to be significant or
substantial the injury need not be so grave as to cause the victim ? ?permanent,?
?prolonged,? or ?protracted? ? bodily damage. (Escobar, supra, at p. 750.)
In
Escobar, the victim?s repeated efforts to escape were prevented by her
captor, who struck her, dragged her by the hair over pavement, pushed his finger
into her eye, and otherwise physically abused and restrained her. (Escobar, supra,
3 Cal.4th at p. 744.) We concluded that evidence of the ?extensive bruises and
6
abrasions over the victim?s legs, knees and elbows, injury to her neck and soreness
in her vaginal area of such severity that it significantly impaired her ability to
walk? provided a sufficient ?quantum of evidence? to support the jury?s finding of
great bodily injury. (Id. at p. 750; see also People v. Le (2006) 137 Cal.App.4th
54, 59-60 [soft-tissue gunshot wound that prevented the victim from walking
unaided for seven weeks qualified as great bodily injury under ? 12022.53, subd.
(d)].) In Escobar, the injuries of the rape victim reflected ?a degree of brutality
and violence substantially beyond that necessarily present? in a forcible rape.
(Escobar, supra, at p. 750.)
In
Sargent, supra, 86 Cal.App.3d 148, a neighbor broke into the home of a
17-year-old girl, forced her at knifepoint to orally copulate him, and forcibly raped
her, causing her to become pregnant and to undergo an abortion. (Id. at p. 150.)
Citing a dissent from a Court of Appeal decision involving a forcible rape (People
v. McIlvain (1942) 55 Cal.App.2d 322, 334 (dis. opn. of Schauer, P.J.)), the Court
of Appeal in Sargent stated that ?[p]regnancy resulting from rape is great bodily
injury.? (Sargent, supra, at p. 151, italics added.) Pointing to the ?[m]ajor
physical changes? that take place in a woman?s body during pregnancy, Sargent
observed that ?[p]regnancy cannot be termed a trivial, insignificant matter? and is
?all the more devastating when imposed on a woman by forcible rape.? (Ibid.) It
further stated that ?[a]n abortion by whatever method used constitutes a severe
intrusion into a woman?s body.? (Id. at p. 152.)
The Court of Appeal?s holding in Sargent was confined to the
circumstances presented: ?We merely find that the facts in this case, i.e., a
pregnancy followed by an abortion, clearly support a finding of great bodily
injury.? (Sargent, supra, 86 Cal.App.3d at p. 152, italics added.) The egregious
facts in Sargent involved the forcible rape of a virgin who pleaded in vain with her
attacker not to rape her and who suffered more than minor physical injuries,
7
including vaginal ?excoriation and inflammation? and scratch wounds to her neck.
(Id. at p. 150.) Those injuries, coupled with the pregnancy and abortion, provided
evidence of physical injury that was ?significantly and substantially beyond that
necessarily present? in the commission of a forcible rape. (Id. at p. 152.)
Citing
Sargent, supra, 86 Cal.App.3d 148, the Court of Appeal in People v.
Johnson (1986) 181 Cal.App.3d 1137 reasoned that if, as in Sargent, a woman
who became pregnant after a forcible rape can be found to have suffered great
bodily injury, then surely, as occurred in Johnson, a forcible rape victim infected
by her attacker with herpes, an incurable venereal disease, can be found to have
sustained great bodily injury. (Id. at pp. 1140-1141.)
Escobar, Sargent, and Johnson each acknowledges that a great bodily
injury determination by the jury rests on the facts as presented at trial in the
context of the particular crime and the particular injuries suffered by the victim.
(Escobar, supra, 3 Cal.4th at p. 750; Sargent, supra, 86 Cal.App.3d at p. 152;
People v. Johnson, supra, 181 Cal.App.3d at p. 1140.) None holds that medical
complications or the use of force is required to support a finding of great bodily
injury. And section 12022.7 makes no mention of any such limitation.
Accordingly, we reject the contention of defendant here that a pregnancy without
medical complications that results from nonforcible but unlawful intercourse can
never support a finding of great bodily injury.3
3
To the extent defendant argues that great bodily injury invariably requires
the application of physical force to the victim in order to cause great bodily injury,
we reject that view. ?A plain reading of Penal Code section 12022.7 indicates the
Legislature intended it to be applied broadly? (People v. Sainz (1999) 74
Cal.App.4th 565, 574), and therefore the statute itself sets out the only criminal
offenses ? murder, manslaughter, arson, and unlawfully causing a fire, each of
which incorporates enhanced sentencing for such injury ? that are not subject to a
finding of great bodily injury (? 12022.7, subd. (g)).
8
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. (People v. Harvey (1992) 7
Cal.App.4th 823, 827-828 [second degree burns requiring treatment for ?at least a
month?]; People v. Beltran (1989) 210 Cal.App.3d 1295, 1308 [five surgeries,
including a bone graft]; People v. Jaramillo, supra, 98 Cal.App.3d at p. 836
[contusions, swelling, ?severe discoloration,? and look of anguish on child?s face
coupled with pain from casual touching of shoulder].) Thus, when victims of
unlawful sexual conduct experience physical injury and accompanying pain
beyond that ?ordinarily experienced? by victims of like crimes (People v. Williams
(1981) 115 Cal.App.3d 446, 454), such additional, ?gratuitous injury? will support
a finding of great bodily injury. (Escobar, supra, 3 Cal.4th at p. 746.)
Here, with respect to K.?s pregnancy, the prosecutor urged the jurors to rely
on their ?common experiences? to find that she had suffered great bodily injury by
?carrying a baby for 22 weeks or more than 22 weeks . . . in a 13-year-old body.?
There was also testimony that K., who had never given birth before, was carrying
a fetus ?the size of two-and-a-half softballs.? We need not decide in this case
whether every pregnancy resulting from unlawful sexual conduct, forcible or
otherwise, will invariably support a factual determination that the victim has
suffered a significant or substantial injury, within the language of section 12022.7.
But we conclude that here, based solely on evidence of the pregnancy, the jury
could reasonably have found that 13-year-old K. suffered a significant or
substantial physical injury.
III
At the prosecution?s request, over defendant?s objection, the trial court
modified a standard jury instruction on great bodily injury (CALJIC No. 17.20) by
9
adding these two sentences: ?A pregnancy or an abortion may constitute great
bodily injury. You are the exclusive judges whether the defendant personally
inflicted great bodily injury in this case.? (Italics added.)
In challenging the modified jury instruction, defendant does not contend
that an abortion can never constitute great bodily injury; thus, he does not assert
that the instruction misstated the law. Instead, he argues that the first added
sentence was improper because he did not personally inflict the surgical abortion,
and that therefore the abortion could not support a great bodily injury finding
under section 12022.7, which requires ?personally? inflicting the injury.
Defendant is correct that there was no evidence he personally performed the
abortion. For that reason the modified instruction, insofar as it stated that an
abortion can be great bodily injury, was ?an ?abstract? instruction, that is, ?one
which is correct in law but irrelevant.? ? (People v. Rowland (1992) 4 Cal.4th 238,
282; see also People v. Guiton (1993) 4 Cal.4th 1116, 1129 [?It is error to give an
instruction which, while correctly stating a principle of law, has no application to
the facts of the case.?].) Giving an instruction that is correct as to the law but
irrelevant or inapplicable is error. (People v. Rowland, supra, at p. 282.)
Nonetheless, giving an irrelevant or inapplicable instruction is generally ? ?only a
technical error which does not constitute ground for reversal.? ? (Ibid.)
Here, in addition to the modified great bodily injury instruction, the jury
was given this standard instruction (CALJIC No. 17.31): ?The purpose of the
court?s instructions is to provide you with the applicable law so that you may
arrive at a just and lawful verdict. Whether some of the instructions apply will
depend upon what you find the facts to be. Disregard any instruction which
applies to facts determined by you not to exist.? (Italics added.) Viewing the
instructions as a whole, as a reviewing court must (People v. Burgener (1986) 41
Cal.3d 505, 538; see People v. Lewis (2001) 25 Cal.4th 610, 649), we conclude the
10
jury in this case would have understood that its duty was to determine not only
whether great bodily injury occurred but also whether, as required by section
12022.7, subdivision (a), defendant ?personally? inflicted it. The evidence shows
that on two successive days defendant kept his 13-year-old stepdaughter out of
school to drive her to the hospital where he told her to use his last name and to
identify him as her father. The modified instruction did not in any way suggest to
the jury that those acts of facilitation would constitute personal infliction of the
abortion.
Defendant nonetheless contends that because the trial court did not explain
the meaning of the statutory phrase ?personally inflicts,? jurors might have
mistakenly concluded that his acts of facilitating the abortion satisfied the
statutory requirement of personally inflicting the injury. A defendant challenging
an instruction as being subject to erroneous interpretation by the jury must
demonstrate a reasonable likelihood that the jury understood the instruction in the
way asserted by the defendant. (Boyde v. California (1990) 494 U.S. 370, 380;
People v. Clair (1992) 2 Cal.4th 629, 663.) ? ?A word or phrase having a
technical, legal meaning requiring clarification by the court is one that has a
definition that differs from its nonlegal meaning.? [Citations.]? (People v. Hudson
(2006) 38 Cal.4th 1002, 1012.) Here, the meaning of the statutory requirement
that the defendant personally inflict the injury does not differ from its nonlegal
meaning. Commonly understood, the phrase ?personally inflicts? means that
someone ?in person? (Webster?s 7th New Collegiate Dict. (1970) p. 630), that is,
directly and not through an intermediary, ?cause[s] something (damaging or
painful) to be endured.? (Id. at p. 433.) Applied to this case, that definition does
not encompass defendant?s facilitative acts in connection with the abortion.
Maintaining to the contrary, defendant points to the prosecutor?s argument
to the jury that defendant ??only needs to do the act of getting her pregnant or
11
having an abortion.? (Italics added.) Defendant argues that even though the
abortion was done by medical personnel at a hospital, and thus did not satisfy the
personal infliction requirement of section 12022.7, subdivision (a), the
prosecutor?s argument to the jury could have misled it into concluding that by
facilitating the abortion defendant personally inflicted the harm. We disagree.
The
prosecutor?s
statement at issue was immediately preceded by these
comments: ?There is a requirement he personally inflict the injury, and that?s easy
in this case; yes, he personally inflicted, he has sexual intercourse with her and he
testified to that. He said I remember the time I got her pregnant. Did he have to
specifically intend that she get pregnant at that time? No.? It was then that the
prosecutor said: ?The judge will instruct you he only needs to do the act of her
getting pregnant or having an abortion; he doesn?t have to specifically intend when
having sex with her she is going to get pregnant or have an abortion.? From these
comments, the jury would have understood the prosecutor to be arguing (1) that
defendant personally inflicted the pregnancy by having sexual intercourse with the
victim, and (2) that there was no requirement that defendant specifically intended
the victim to become pregnant or have an abortion.
On their face, or in the abstract, these statements by the prosecutor were
correct, including the comment that great bodily injury can be established by
either a pregnancy or an abortion, a comment the trial court incorporated in a
sentence it added to the standard instruction on great bodily injury. Although
legally correct in theory, the latter statement, as embodied in the court?s
instruction to the jury, was factually inapplicable because defendant did not
personally perform the surgical abortion. The error, however, would not have
misled a rational jury into concluding that by facilitating the abortion (by, among
other things, taking his 13-year-old stepdaughter to hospital appointments on two
successive days), defendant personally performed the abortion; therefore, the error
12
did not violate defendant?s state or federal constitutional rights. (People v. Clair,
supra, 2 Cal.4th at p. 663.)
DISPOSITION
The judgment of the Court of Appeal is affirmed.
KENNARD,
J.
WE CONCUR:
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
13
CONCURRING OPINION BY BAXTER, J.
I concur fully in the majority opinion, which finds that the instruction?s
solitary reference to abortion as a potential candidate for great bodily injury in the
abstract was not reasonably likely to have caused this jury to overlook or
misapprehend the plainly stated requirement that defendant have personally
inflicted the injury in the commission of the charged felony.1 I write separately to
explain that even if it were otherwise, any error was harmless.
Defendant?s theory of prejudice rests entirely on the possibility that a juror
might have found the great bodily injury enhancement true by considering only the
abortion, which defendant did not personally inflict. Yet, as the majority opinion
makes clear (see maj. opn., ante, p. 9), the jury could properly have considered the
abortion, a medical procedure the victim selected in response to her pregnancy, in
assessing the magnitude of the injury occasioned by her pregnancy?which
defendant unquestionably inflicted. Any juror who found that the abortion
constituted great bodily injury under an erroneous understanding of the
requirement of personal infliction could not have failed to find that K. suffered
great bodily injury under the valid theory that the gravity of the pregnancy injury,
which defendant admitted he had inflicted, could be measured by considering the
1
However, the point might be clarified in future cases by instructing the jury
along these lines: ?A pregnancy may constitute great bodily injury. You may
consider the circumstances and effects of the abortion of that pregnancy in
determining whether the pregnancy constituted great bodily injury in this case.?
1
circumstances of the abortion. Hence, any juror who erroneously relied on the
abortion to find that defendant personally inflicted great bodily injury would also
have found (1) that defendant personally inflicted the pregnancy and (2) that the
pregnancy constituted significant or substantial physical injury in light of the
abortion. It is thus ?clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error? (Neder v. United States (1999)
527 U.S. 1, 18 (Neder)), which is the harmless-error inquiry under Chapman v.
California (1967) 383 U.S. 18 (Chapman). (Neder, supra, 527 U.S. at pp. 15, 18.)
Defendant does not deny that any error was harmless under this analysis or
otherwise claim that the record ?contains evidence that could rationally lead to a
contrary finding.? (Neder, supra, 527 U.S. at p. 19.) Indeed, defendant does not
actually apply the Chapman standard at all but divines prejudice nonetheless on
the ground that the verdict is silent as to whether the jury necessarily found the
great bodily injury enhancement true on a valid legal theory (i.e., that defendant
personally inflicted the pregnancy) rather than on an invalid legal theory (i.e., that
defendant personally inflicted the abortion). For this theory of prejudice,
defendant relies on People v. Guiton (1993) 4 Cal.4th 1116.2 Although Guiton
observed that reliance on other portions of the verdict is ?[o]ne way? of finding an
instructional error harmless (id. at p. 1130), we have never intimated that this was
the only way to do so. Indeed, Guiton noted that we were not then presented with
the situation of a jury having been instructed with a legally adequate and a legally
inadequate theory and that we therefore ?need not decide the exact standard of
review? in such circumstances?although we acknowledged that ?[t]here may be
additional ways by which a court can determine that error in [this] situation is
harmless. We leave the question to future cases.? (Id. at pp. 1130, 1131.)
2
Defendant also cites People v. Morgan (2007) 42 Cal.4th 593, 613, but
Morgan does nothing other than cite Guiton.
2
Because this case only now presents that issue, Guiton does not provide a
dispositive answer to the question.
I note that a related issue is currently pending before the United States
Supreme Court in Chrones v. Pulido, No. 07-544, cert. granted Feb. 25, 2008.
Although the high court will obviously have the last word, I agree with the weight
of existing authority, which applies the Chapman harmless-error standard in
determining whether the submission to the jury of two legal theories, one valid and
one invalid, requires reversal. The high court has already applied the Chapman
framework where the instructions omit an element (Neder, supra, 527 U.S. at pp.
4, 15) or misdescribe an element (California v. Roy (1996) 519 U.S. 2, 5-6). In
both situations, the sole theory submitted to the jury is legally defective, yet the
error is amenable to harmless-error analysis. (Accord, People v. Cole (2004) 33
Cal.4th 1158, 1208 [?Under state law, instructional error that withdraws an
element of a crime from the jury?s consideration is harmless if there is ?no
reasonable probability that the outcome of defendant?s trial would have been
different had the trial court properly instructed the jury? ?]; People v. Breverman
(1998) 19 Cal.4th 142, 165 [misdirection of the jury under state law ?is not subject
to reversal unless an examination of the entire record establishes a reasonable
probability that the error affected the outcome?].) In my view, an instructional
error with respect to an element does not become more problematic simply
because the jury may potentially have relied on an alternative theory that was
entirely error free. Defendant?s argument ?reduces to the strange claim that,
because the jury here received both a ?good? charge and a ?bad? charge on the
issue, the error was somehow more pernicious than in Rose [v. Clark (1986) 478
U.S. 570]?where the only charge on the critical issue was a mistaken one. That
assertion cannot possibly be right, so it is plainly wrong.? (Quigley v. Vose (1st
Cir. 1987) 834 F.2d 14, 16; accord, Becht v. U.S. (8th Cir. 2005) 403 F.3d 541,
3
548 [it would be ?anomalous? to preclude harmless-error review under Chapman
?because the jury also was given the option to convict based on a constitutionally
valid theory?]; cf. U.S. v. Edwards (5th Cir. 2002) 303 F.3d 606, 641 [holding that
the standard of harmlessness set forth in Griffin v. U.S. (1991) 502 U.S. 46 applies
?where a disjunctive instruction with a factually insufficient component is given,
even if that component is also legally insufficient?].)
To the extent defendant has simply assumed that his reading of Guiton is
merely an application of the Chapman harmless-error standard, he is plainly
mistaken, as the high court made clear in rejecting a similar argument made by the
defendant in Neder, supra, 527 U.S. 1. Neder argued that an instructional error
could be harmless in only three situations?(1) the defendant is acquitted of the
offense on which the jury was improperly instructed, (2) the defendant admitted
the element on which the jury was improperly instructed, or (3) other facts
necessarily found by the jury are the functional equivalent of the omitted,
misdescribed, or presumed element?but the high court flatly rejected this
construct. (Neder, supra, 527 U.S. at pp. 13-15.) The proper test, as the court
explained, ?is whether it appears ?beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.? ? (Id. at p. 15, quoting
Chapman, supra, 386 U.S. at p. 24.) This test does not depend on proof that the
jury actually rested its verdict on the proper ground (Neder, supra, at pp. 17-18),
but rather on proof beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error. (Id. at p. 18.) Although the former
can be proof of the latter (see id. at p. 26 (conc. opn. of Stevens, J.)), the Neder
majority made clear that such a determination is not essential to a finding of
harmlessness (id. at p. 16, fn. 1), which instead ?will often require that a reviewing
court conduct a thorough examination of the record.? (Id. at p. 19.) Accordingly,
an inability to show that the jurors unanimously found great bodily injury based on
4
defendant?s act of impregnating the victim, and that no juror relied solely on the
abortion, is properly understood as a predicate for the application of the Chapman
harmless-error standard, not (as defendant mistakenly believes) the harmless-error
analysis itself.
Under the proper analysis, it is obvious that any error was harmless. There
was overwhelming and uncontradicted evidence, including DNA evidence, that
defendant personally inflicted the pregnancy that was subsequently aborted.
Indeed, defendant conceded he personally inflicted the pregnancy and even
testified that he remembered which night K. became pregnant. The evidence that
the pregnancy by itself was of sufficient magnitude to constitute great bodily
injury was substantial. Any juror who failed to make such a finding and who
relied instead on the abortion to establish great bodily injury would plainly have
found, under correct instructions, that the pregnancy, when considered in light of
that same abortion, established great bodily injury. The record here thus shows
beyond a reasonable doubt that a rational jury would have found the great bodily
injury enhancement true even in the absence of any asserted instructional error.
For this additional reason, I would affirm the judgment, including the jury?s
finding that defendant personally inflicted great bodily injury on the 13-year-old
victim when he impregnated her, the pregnancy proceeded nearly to the end of the
second trimester, and the abortion terminating the pregnancy required a surgical
dilation and extraction over two days. On this record, no rational juror could have
found otherwise.
BAXTER, J.
I CONCUR:
CHIN, J.
5
CONCURRING OPINION BY CORRIGAN, J.
I concur in the result reached by the majority. I write separately to urge
that we resolve the broader issue. This case squarely presents a direct question:
Does any pregnancy resulting from a sexual assault constitute a great bodily
injury?
We have described a rape as ?the quintessential ?violation of the self.? ?
(People v. Escobar (1992) 3 Cal.4th 740, 743.) That violation is surely
exacerbated if it also results in pregnancy. A victim who is raped and made
pregnant experiences a different degree of injury than the victim who is not
impregnated. The rapist who impregnates his victim imposes a greater injury than
is inflicted by the rape alone. It is reasonable for the Legislature to provide for an
enhanced degree of punishment under that circumstance. The same is true if a
child is impregnated by a defendant?s lewd and lascivious conduct.
By statute, ? ?great bodily injury? means a significant or substantial
physical injury.? (Pen. Code, ? 12022.7, subd.(f).) As the majority notes, we have
distinguished such an injury from one which is trivial or insignificant. (Maj. opn.,
ante, at p. 5.) Jurors determine whether an injury is ?great? in light of instructions
explaining that a ?significant or substantial physical injury? is one that is not
?moderate? or ?minor.? (Judicial Council of Cal. Crim. Jury Instns. (2008)
CALCRIM No. 3160; CALJIC No. 17.20.5.)
In order to constitute a great bodily injury, the harm inflicted must exceed a
certain threshold. Some injuries may not be sufficiently serious to satisfy that
1
standard. For example, in the case of a broken bone, laceration, or
unconsciousness, the existence of an injury in the sense of physical harm is self-
evident. Once a jury determines that the defendant personally inflicted the injury
while committing the charged offense, the only remaining question is whether the
injury is great. A broken bone, for example, may be evaluated along a continuum
from a small hairline fracture, needing no medical intervention, to the compound
fracture of a major bone, requiring surgical repair.
Pregnancy is categorically different. By its nature it will always impose on
the victim a sufficient impact to meet the great bodily injury standard. Pregnancy
as an injury, a physical impact imposed by a crime, cannot be parsed out along a
continuum. A woman is either pregnant or she is not. In People v. Sargent (1978)
86 Cal.App.3d 148, the Court of Appeal concluded that the victim, impregnated by
her rapist, suffered great bodily injury. Justice Gardner wrote: ?Pregnancy can
have one of the three results ? childbirth, abortion or miscarriage. Childbirth is
an agonizing experience. An abortion by whatever method used constitutes a
severe intrusion into a woman?s body. A miscarriage speaks for itself.? (Id. at p.
152.) Under Justice Gardner?s reasoning, it is impregnation, necessarily causing
one of three consequences, that is the basis for the injury.1 Because the impact of
any pregnancy is so great, it is illogical to treat some pregnancies as trivial, or to
suggest that juries could, somehow, determine that any criminally imposed
pregnancy can be considered minor. Factors such as the age of the victim, as well
as the outcome, duration, or problems associated with a pregnancy may make its
impact even more substantial. The fact remains, however, that the impact of any
pregnancy on the physical condition of the victim is never insignificant or
1
The majority accurately points out that the court in People v. Sargent,
supra, 86 Cal.App.3d at page 152, concluded that the great bodily injury standard
was satisfied under the circumstances of that case. (Maj. opn., ante, p. 7.) Of
course, any case establishes precedent under the facts it involves. That the
circumstances in Sargent may have involved additional facts does not undermine
the logical force of the observations noted above.
2
insubstantial. Normally, the determination of great bodily injury is a question of
fact for the jury. (People v. Escobar, supra, 3 Cal.4th at p.750.) Unlike other
potential injuries, however, there is no additional factual calculus for the jury to
perform when a criminally imposed pregnancy is the basis for the injury.
Moreover, a defendant?s criminal culpability should not depend on the
decisions made by others, days or months after his criminal conduct. In most
instances, it is unlikely the defendant will have any role in the victim?s choice
regarding her pregnancy. Likewise, the timing and circumstances of an abortion
will usually be beyond the defendant?s ability to influence. An example may
elucidate. Two rapists break into a college dormitory and each rapes a student.
Both victims are impregnated by the assault. The first victim, A, spontaneously
miscarries after a few weeks. The second victim, B, carries the fetus to term and
delivers a child after an extended labor. The conduct of the rapists is the same:
each raped a victim and impregnated her. Surely the injury to each victim, at the
threshold level, is the same. Neither can be said to have suffered only a trivial
injury. It makes no sense to reward A?s rapist for the fortuity of the early
miscarriage. And B?s rapist would argue that he should not be punished more
severely based on choices B made and over which he had no control.
Pregnancy is a sui generis condition that cannot fairly be described as
trivial or insignificant. The Legislature intended that a section 12022.7
enhancement be imposed on a defendant who personally inflicts a ?significant or
substantial? injury. (? 12022.7.) Thus, interpretation of any criminally imposed
pregnancy as constituting great bodily injury is necessarily true to the language of
section 12022.7 and implements the Legislature?s intent.
When the Legislature originally enacted section 12022.7, it considered
whether to include a list of qualifying injuries. Those examples included
prolonged loss of consciousness, severe concussion, protracted loss of a bodily
member of organ, protracted impairment of a bodily member or bone, wounds
requiring extensive suturing and serious disfigurement. (People v. Escobar, supra,
3
3 Cal.4th at p. 747.) As the list itself makes plain, the examples contained
gradations of injury that would require jury evaluation along a continuum of
seriousness. As such, the list of examples would have been illustrative, but not
dispositive. In People v. Escobar we opined that the Legislature?s decision to
omit the list ?was to preclude the possibility that the specific examples set forth
therein would be construed as exclusive of other types of injury not expressly
enumerated.? (Ibid.) Thus, rather than add a list that might be considered as more
exacting and that would, in the end, still require jury parsing, the Legislature
simply defined ?great bodily injury? as ? ? ?significant or substantial bodily
injury,? ? ? adopting the language of the standard jury instruction then in use. (Id.
at pp. 747-748.) Pregnancy, however, requires no jury parsing. Because
pregnancy must result in childbirth, miscarriage or abortion, its infliction during a
sexual assault is, by definition, a substantial or significant injury.
The majority states: ?We need not decide in this case whether every
pregnancy resulting from unlawful sexual conduct, forcible or otherwise, will
invariably support a factual determination that the victim has suffered a significant
or substantial bodily injury, within the language of section 12022.7.? (Maj. opn.,
ante, p. 9.) The majority then concludes that ?based solely on evidence of the
pregnancy, the jury could reasonably have found that 13-year-old K. suffered a
significant or substantial physical injury.? (Ibid.) The majority does not resolve
the question of whether a feloniously inflicted pregnancy constitutes great bodily
injury as a matter of law under the statute. Thus, it falls to the Legislature to
clarify and reaffirm its intent. At least two approaches are available. The
Legislature could amend Penal Code section 12022.7 to define impregnation
during a felonious sexual assault as great bodily injury.2 Alternatively, the
2
Several states including Michigan, Nebraska, Minnesota and Illinois define
the concepts of ?bodily harm,? ?personal harm,? or ?serious personal injury? by
way of a list of enumerated injuries that includes pregnancy, and to punish more
severely sexual crimes that entail such harm or injury. (See Mich. Stats.
4
Legislature could create a new enhancement, imposing an additional penalty for
impregnating a victim during a sexual assault. Either alternative would relieve
future juries from attempting to distinguish among pregnancies in ways that are
logically unsound.
I conclude that a properly instructed jury would have been told that a sexual
assault that impregnates the victim constitutes great bodily injury, when that
impregnation is personally inflicted by the defendant. Thus, under either the
approach of the majority or the analysis urged here, any instructional error was
inarguably harmless. The jury unanimously concluded that defendant committed
? 750.520a, subd. (n) [? ?Personal injury? ? means bodily injury, disfigurement,
mental anguish, chronic pain, pregnancy, disease, or loss of impairment of a
sexual or reproductive organ.]; Neb. Rev. Stats. ? 28-318, (4) [?Serious personal
injury means great bodily injury or disfigurement, extreme mental anguish or
mental trauma, pregnancy, disease, or loss or impairment of a sexual or
reproductive organ.?]; Minn. Crim. Code, Stats. ? 609.341, subd. 8 [Personal
injury defined as ?bodily harm . . . or severe mental anguish or pregnancy.?].)
Illinois Compiled Statutes, chapter 720, article 12, section 12-12,
subdivision (b), defines ?Bodily harm? to mean ?physical harm? that ?includes,
but is not limited to, sexually transmitted disease, pregnancy and impotence.? An
accused who commits sexual assault that causes bodily harm has committed an
aggravated offense. (Ill. Comp. Stat., ? 12-14.)
Wisconsin follows a different route, defining first degree sexual assault to
include nonconsensual ?sexual contact or sexual intercourse? that causes
?pregnancy or great bodily harm.? (Wis. Stats. ? 940.225, subd. (1)(a).) It then
defines ?great bodily harm? to mean ?bodily injury which creates a substantial risk
of death, or which causes serious permanent disfigurement, or which causes a
permanent or protracted loss or impairment of the function of any bodily member
or organ or other serious bodily injury.? (Wis. Stats. ? 939.22, subd. (14).)
In New Mexico, criminal sexual penetration of the first and second degree
may be perpetrated by the use of force or coercion resulting that results in personal
injury to the victim. (N.M. Stats. Ann., ? 30-9-11(D), (E). ?Personal injury? is
defined as ?bodily injury to a lesser degree than great bodily harm, and includes,
but is not limited to, disfigurement, mental anguish, chronic or recurrent pain,
pregnancy or disease or injury to a sexual or reproductive organ.? (N.M. Stats.
Ann., ? 30-9-10(D).)]
5
lewd and lascivious conduct, and defendant admitted that his act of intercourse
resulted in the pregnancy. Based on the jury?s finding and defendant?s concession,
the only result available is that the defendant inflicted a great bodily injury by
impregnating K. during a criminal assault.
CORRIGAN, J.
I CONCUR:
GEORGE, C. J.
6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Cross
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 134 Cal.App.4th 500
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S139791
Date Filed: August 28, 2008
__________________________________________________________________________________
Court:
Superior
County: Santa Clara
Judge: Alden E. Danner
__________________________________________________________________________________
Attorneys for Appellant:
Stephen B. Bedrick, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Donald E. de Nicola, Deputy State Solicitor
General, Robert R. Anderson, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General,
Gerald A. Engler, Assistant Attorney General, Stan Helfman, Christopher J. Wei, Laurence K. Sullivan and
Michael D. O?Reilley, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Stephen B. Bedrick
1970 Broadway, Suite 1200
Oakland, CA 94612
(510) 452-1900
Michael D. O?Reilley
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5965