Supreme Court of California Justia
Citation 45 Cal. 4th 58, 190 P.3d 706, 82 Cal. Rptr. 3d 373

People v. Cross

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


Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. This case includes the following issues: (1) Can a legal, surgical abortion support an enhancement under Penal Code section 12022.7 for the defendant's personal infliction of great bodily injury in committing the offense that led to the victim's pregnancy? (2) Can the pregnancy itself constitute such great bodily injury?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 08/28/200845 Cal. 4th 58, 190 P.3d 706, 82 Cal. Rptr. 3d 373S139791Review - Criminal Appealclosed; remittitur issued

PEOPLE v. BERGARA (S162896)


Parties
1Cross, Gary Wendell (Defendant and Appellant)
Represented by Stephen B. Bedrick
Attorney at Law
1970 Broadway, Suite 1200
Oakland, CA

2The People (Plaintiff and Respondent)
Represented by Christopher J. Wei
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

3The People (Plaintiff and Respondent)
Represented by Michael D. O'Reilley
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA


Disposition
Aug 28 2008Opinion: Affirmed

Dockets
Dec 21 2005Received premature petition for review
  Appellant, Gary Cross.
Dec 29 2005Petition for review filed
  Appellant, Gary W. Cross by counsel, Stephen B. Bedrick.
Dec 29 2005Record requested
 
Dec 30 2005Received Court of Appeal record
  file jacket/briefs/accordian file
Feb 21 2006Time extended to grant or deny review
  to and including March 29, 2006 or the date upon which review is either granted or denied.
Mar 1 2006Petition for review granted; issues limited (criminal case)
  Petition for Review GRANTED. The issues to be briefed and argued are limited to the following: Did the court prejudicially err in instructing the jury that the victim's pregnancy or subsequent abortion could constitute great bodily injury within the meaning of Penal Code section 12022.7 and in failing to instruct the jury on the meaning of "personal infliction"? Votes: George, C.J., Kennard, Werdegar, Moreno, and Corrigan, JJ.
Mar 14 2006Counsel appointment order filed
  Stephen B. Bedrick is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Apr 3 2006Request for extension of time filed
  counsel for appellant requests extension of time to 5-13-06, to file the opening brief on the merits.
Apr 6 2006Extension of time granted
  appellant's time to serve and file the opening brief is hereby extended to and including May 13, 2006.
May 5 2006Request for extension of time filed
  asking to June 12, 2006 to file appellant's opening brief on the merits, Gary W. Cross, Appellant by Stephen B. Bedrick, counsel
May 9 2006Extension of time granted
  Appellant's time to serve and file the opening brief on the merits is extended to and including June 12, 2006.
Jun 6 2006Opening brief on the merits filed
  Counsel for aplt. (Cross)
Jun 21 2006Compensation awarded counsel
  Atty Bedrick
Jun 21 2006Request for extension of time filed
  Counsel for resp. requests extension of time to August 6, 2006, to file the answer brief on the merits.
Jun 27 2006Extension of time granted
  Respondent's time to serve and file the answer brief on the merits is extended to and including August 6, 2006.
Aug 3 2006Request for extension of time filed
  Counsel for respondent requests extension of time to August 26 2006, to file the answer brief on the merits.
Aug 7 2006Extension of time granted
  Respondent's time to serve and file the answer brief on the merits is extended to and including August 26, 2006.
Aug 28 2006Answer brief on the merits filed
  counsel for respondent.
Sep 13 2006Request for extension of time filed
  by appellant requesting a 30-day extension to and including October 18, 2006, to file appellant's reply brief on the merits.
Sep 14 2006Extension of time granted
  Appellant's time to serve and file the reply brief on the merits is extended to and including October 18, 2006.
Oct 17 2006Reply brief filed (case fully briefed)
  counsel for aplt
Apr 9 2008Supplemental briefing ordered
  The court requests the parties to file supplemental briefs directed to the following questions: If a general verdict could have rested on two theories, one of which described a legally invalid theory of liability and one of which described a legally valid theory of liability, can the error in the instructions be deemed harmless if it is "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; see People v. Guiton (1993) 4 Cal.4th 1116, 1130-1131; Chrones v. Pulido, No. 07-544, cert. gr. Feb. 25, 2008.) If so, was any error in the instructions harmless in this case? The parties are directed to file simultaneous supplemental letter briefs on these questions in the San Francisco office of the Supreme Court on or before Tuesday, April 29, 2008. Simultaneous reply briefs may be filed in the San Francisco office of the Supreme Court on or before Monday, May 12, 2008.
Apr 29 2008Letter brief filed
  counsel for aplt.
Apr 29 2008Supplemental brief filed
  counsel for respondent.
Apr 30 2008Case ordered on calendar
  to be argued on Tuesday, June 3, 2008, at 2:00 p.m., in Los Angeles
May 12 2008Supplemental brief filed
  REPLY Gary Cross, Appellant by Stephen B. Bedrick, counsel
May 12 2008Supplemental brief filed
  REPLY People, resp. Michael D. O' Reilley, DAG
Jun 3 2008Cause argued and submitted
 
Aug 27 2008Notice of forthcoming opinion posted
 
Aug 28 2008Opinion filed: Judgment affirmed in full
  OPINION BY: Kennard, J. ---- joined by: Baxter, Werdegar, Chin, and Moreno, JJ. CONCURRING OPINION BY: Baxter, J. ---- joined by: Chin, J. CONCURRING OPINION BY: Corrigan, J. ---- joined by : George, C.J.
Sep 30 2008Remittitur issued (criminal case)
 
Oct 1 2008Compensation awarded counsel
  Atty Bedrick
Oct 2 2008Received:
  receipt for remittitur from CA/6

Briefs
Jun 6 2006Opening brief on the merits filed
 
Aug 28 2006Answer brief on the merits filed
 
Oct 17 2006Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jan 5, 2009
Annotated by diana teasland

Written by Mariya Kupershmidt

Summary of Facts:
In July 1995, Gary Cross became a step-father to the victim, K, a thirteen-year old girl. One night during the summer of 2002, when K’s mother was at work, defendant awakened K to have sex with her, threatening that the police would take her away and prevent her from seeing her family if she told her mother about what had happened. He continued to have regular intercourse with her, including using verbal threats to make her perform oral sex on him. Defendant, age 39 at the time, employed verbal and mental threats rather than physical force. Then, in August 2002, K found out that she was pregnant. After her mother began noticing the weight gain, defendant took her to get a surgical abortion since she was five and a half months along by December 2002. He took her out of school on two different days for the procedure and directed her to fill out admission forms in which she had to lie about her age and pretend that the defendant was her father. After the ultrasound revealed it was a 22-week pregnancy, the fetus was removed from K’s uterus. The abortion lasted 13.1 minutes and resulted in no medical complications. Tests showed that there was a 99.99 percent probability that defendant was the fetus’s father.
After the abortion, defendant continued having sex with K up until K’s mother discovered papers relating to the procedure on July 9, 2003. K reported her sexual molestation to the police the next day and defendant was arrested.

Charges:
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 under Penal Code Section 288, with an additional allegation that he inflicted great bodily injury on the victim under Penal Code Sections 12022.7 and 12022.8; in count 2, the felony of aggravated sexual assault by oral copulation of a child under the age of 14 and 10 or more years younger than defendant (section 269); 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 (section 269).
The prosecutor told the jury that they could consider either the pregnancy or the abortion, or both, as a basis for the allegation of personal infliction of great bodily injury as long as they found the pregnancy to be “substantial or significant.” The prosecutor argued that resorting to anesthesia and drugs to control bleeding constituted a significant procedure.

Jury’s Findings at Trial Court:
• Defendant found guilty of committing a lewd act on a child under the age of 14, which is a lesser offense than the forcible crime alleged in count one.
• Defendant also found guilty of personally inflicting great bodily harm in committing the offense above.
-Under the One Strike Law for the above two offenses, defendant was sentenced to an indeterminate prison term of 15 years to life to be served consecutively with the determinate six-year term below.
• Defendant also found guilty of oral copulation with a person under age 14 and more than 10 years younger than himself, a less offense of the forcible copulation offense charged in count 2.
-Defendant was sentenced to a determinant prison term of six years for the oral copulation finding.
• Defendant found not guilty of the remaining charges.

Relevant Law:
• Penal Code § 12022.7: Anyone who in the commission of a felony “personally inflicts great bodily injury….shall be punished by an additional and consecutive term of imprisonment.”
• Penal Code § 667.61 (“One Strike Law”): 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.
• Penal Code § 269
• Penal Code § 288

Issue(s) on Appeal:
(1) Can a pregnancy without medical complications that results from unlawful but nonforcible sexual conduct with a minor support a finding of great bodily injury?
(2) Did the trial court err by not instructing on the meaning of personal infliction?
(3) 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?

Holding(s):
(1) Yes, it can, and here evidence of the pregnancy was sufficient to support such a finding.
(2) No.
(3) Yes; giving the instruction was erroneous; but it did not mislead the jury.

Analysis on Appeal/Justice Kennard’s Majority Opinion:

Issue 1:
Great bodily injury “means a significant or substantial physical injury.” This is a question of fact to be decided by the jury. In Sargent, the court found that the pregnancy itself that followed a rape, constituted a great bodily injury based on the severe intrusion into a woman’s body. In fact, none of the cases cited by the defendant suggested that medical complications or the use of force is required to support a finding of great bodily injury. Each of the cases instead acknowledges that a great bodily injury determination is to be made by the jury based on the facts as presented at trial in the context of the particular crime and the particular injuries suffered by the victim. Furthermore, Section 12022.7 does not make any such limitation. Therefore, the court rejects defendant’s argument here that a pregnancy without medical complications that results from nonforcible but unlawful intercourse can never support a finding of great bodily injury. 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. The prosecutor argued that carrying a baby for 22 weeks or more in a 13-year-old body caused K great bodily injury. Based on the evidence of this specific pregnancy, and not any pregnancy from unlawful sexual conduct, the court concluded that the jury could reasonably have found that 13-year-old K suffered a significant or substantial physical injury.

Issues 2 and 3:
The trial court modified instructions to the jury by adding two sentences which stated that a pregnancy or an abortion may constitute great bodily injury and that the jury was the exclusive arbiter of whether the defendant personally inflicted great bodily injury in this case. Defendant argues that the first portion of the instructions 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.
Therefore, the jury instruction may have been correct in law, but irrelevant to the facts of this case since defendant did not personally inflict the abortion. Giving an instruction that is irrelevant or inapplicable is still error. However, such an instruction is generally only a technical error and not a ground for reversal. Since the instructions included a statement that the jury must decide if all of the instructions are applicable given the facts before it and that the jury must disregard any instruction which does not apply to the facts in this case, the court found that the jury understood its duty to determine, not only whether great bodily injury occurred, but also whether the defendant “personally” inflicted it as required by section 12022.7.
Since the commonly understood meaning of “personally inflicted” is not different from its legal meaning, a rational jury would not be misled into concluding that by facilitating the abortion (such as taking his 13-year-old stepdaughter to hospital appointments on two successive days), that the defendant personally performed the abortion; therefore, the error did not violate any of the defendant’s federal constitutional rights.

Jan 8, 2009
Annotated by diana teasland

Written by: Erica Ross

Legal Background

Under California law, anyone who in the commission of a felony “personally inflicts great bodily injury. . . shall be punished by an additional and consecutive term of imprisonment.” Ca. Pen. Code § 12022.7(a). In addition, under California’s “One Strike Law,”§ 667.61, if a defendant is convicted of a specified sex offense and the jury finds a § 12022.7 violation, the trial court is obligated to sentence the defendant to a prison term of 15 years to life. In the lower court, the jury found that the defendant had inflicted great bodily injury on his 13-year-old stepdaughter, who became pregnant and had an abortion under the defendant’s encouragement after the defendant had sexual intercourse with her.

Factual Background

During the summer of 2002, defendant repeatedly had sexual intercourse with his 13-year-old step-daugther, K., while her mother was at work. Once, defendant held K. by her head and placed his penis in her mouth. While K. occasionally objected to the sexual acts, she was afraid that defendant would punish her. Defendant warned K. that if she told her mother, the police would take her away.

In August, 2002, K. informed the defendant that she might be pregnant. On September 25, defendant took her to a local clinic, which confirmed the pregnancy. In December 2002, after K.’s mother had noticed the weight gain, defendant took K. to the clinic to have an abortion. The five and a half month pregnancy required a surgical abortion procedure that could not be done at the clinic. Thus, on December 17 and 18, 2002, defendant signed his stepdaughter out of school and took her to a hospital – without her mother’s knowledge – to have the abortion procedure. Defendant instructed K. to lie on the hospital admission forms, stating that he was her father, that she was 14 years old, and using his last name as her own. The 22 week pregnancy was terminated with no medical complications. DNA analyses offered at trial indicated a 99.9 percent probability that defendant fathered the fetus.

After the abortion, defendant continued sexual activity with K., until her mother came across documents related to the abortion on July 9, 2003. K. reported her sexual molestation to the police, and defendant was arrested, the following day.

Procedural Posture

Defendant was charged with 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(b)(1), with an allegation that he inflicted great bodily injury on the victim (§§ 120222.7, 12022.8) (count 1); the felony of aggravated sexual assault by oral copulation of a child under the age of 14 and 10 or more years younger than defendant (§ 269(a)(4)) (count 2); and 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(a)(2)) (counts three and four). He was tried in Superior Court, Santa Clara County.

The prosecutor stated in closing argument – and the jury was instructed – that the pregnancy or abortion could be the basis for the personal infliction of great bodily injury enhancement. The jury found defendant guilty of committing a lewd act on a child under the age of 14 (§ 288(a)), a lesser included offense of the forcible crime alleged in count 1, and found that defendant personally inflicted great bodily harm, qualifying defendant for the § 12022.7 enhancement. The jury also found defendant guilty of the oral copulation charge, although again, without the force element (§ 269(a)(4)). Defendant was acquitted of the other charges.

The trial court sentenced defendant to a determinate prison term of six years for the nonforcible oral copulation charge, and, under the One Strike Law, to an intermediate prison term of 15 years to life for the lewd act offense with great bodily injury. The terms were to be served consecutively.

Defendant appealed. The Court of Appeal affirmed. Defendant petitioned for review. The Supreme Court granted review, superseding the opinion of the Court of Appeal.

Issues

1. Can a pregnancy without medical complications that results from unlawful but nonforcible sexual conduct with a minor support a finding of great bodily injury?

2. Did the trial court err by not instruction the jury on the meaning of personal infliction?

3. Was it error for the trial court to instruct the jury that an abortion may constitute great bodily injury, where that statement was legally correct but did not apply to the facts here because defendant did not personally perform the surgical abortion?

Relevant Statutes and Charges

Index Issues

1. Great Bodily Injury
a. Pregnancy Without Medical Complications
i. A pregnancy without medical complications that results from unlawful but nonforcible intercourse may, under certain circumstances, support a finding of great bodily injury. Majority opinion page 5.

1. Great Bodily Injury
b. Definition
i. Great bodily injury “means a significant or substantial physical injury.” Majority opinion page 5.

1. Great Bodily Injury
c. Question of Fact
i. Resolved by Jury: 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. Majority opinion page 6.

1. Great Bodily Injury
c. Question of Fact
ii. Facts Presented at Trial: 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. Majority opinion page 8.

1. Great Bodily Injury
d. Use of Force Not Required
i. Medical complications or the use of force is not required to support a finding of great bodily injury under previous case law. Majority opinion page 8.

1. Great Bodily Injury
e. Evidence
i. Proof that a victim’s bodily injury is “great” 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. Majority opinion page 9.

1. Great Bodily Injury
f. Sexual Offense Victims
i. When victims of unlawful sexual conduct experience physical injury and accompanying pain beyond that “ordinarily experienced” by victims of like crimes, such additional, “gratuitous injury” will support a finding of great bodily injury. Majority opinion page 9.

1. Great Bodily Injury
g. Pregnancy Only
i. Based solely on evidence of the pregnancy, a jury could reasonably have found that a 13-year-old victim suffered a significant or substantial injury. Majority opinion page 9.

2. Jury Instructions
a. Correct as to Law but Inapplicable
i. Error: Giving an instruction that is correct as to the law but irrelevant or inapplicable is error. Majority opinion page 10.

2. Jury Instructions
a. Correct as to Law but Inapplicable
ii. Technical Error: Giving an irrelevant or inapplicable instruction is
generally “‘only a technical error which does not constitute ground for reversal.’” Majority opinion page 10.

2. Jury Instructions
b. Reviewed as a Whole
i. The reviewing court must review the instructions as a whole. Majority opinion page 10.

2. Jury Instructions
c. Burden of Proof on Defendant Challenging
i. 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. Majority opinion page 11.

2. Jury Instructions
d. Error Does Not Violate Defendant’s State or Federal Constitutional Rights
i. Where instruction error would not have misled a rational jury into concluding that facilitation of abortion meant defendant had personally performed the abortion, as required by the great bodiy injury enhancement, the error does not violate the defendant’s state or federal constitutional rights. Majority opinion pages 12-13.

3. Requirement that Defendant Personally Inflict the Injury
a. Meaning
ii. The statutory requirement that the defendant personally inflict the injury does not differ from its nonlegal meaning, that someone “in person” – directly and not through an intermediary – causes something damaging or painful to be endured. Majority opinion page 11.

Summary of Opinions

Majority Opinion:

After describing the legal and factual background of the case, the majority examined defendant’s primary argument that a pregnancy without medical complications resulting from unlawful but nonforcible intercourse can never support a finding of great bodily injury. After noting that the determination as to whether a victim suffered great bodily injury is a factual inquiry for the jury, the majority rejected defendant’s argument. Instead, it found that great bodily injury “means a significant or substantial physical injury,” and that here, the victim’s pregnancy was sufficient to meet that standard.

The majority discussed other cases, such as Escobar, Sargent, and Johnson, which found great bodily injury in the context of forcible rape. Escobar stated that great bodily injury is “substantial injury beyond that inherent in the offense,” but noted that to meet this standard the injury need to cause the victim “permanent” bodily damage. Sargent found that pregnancy, followed by an abortion, clearly supported a finding of great bodily injury on the particular facts of a forcible rape case. Finally, Johnson extended the logic of Sargent to hold that a forcible rape victim infected by her attacker with herpes had also suffered great bodily injury.

The majority reasoned that these cases did not hold that forcible rape or medical complications were required for a finding of great bodily injury. Instead, these cases focused on the nature of the particular injuries suffered by the victim, leaving the determination to the jury based on the facts as presented at trial. Proof that bodily harm is great, the majority noted, is usually established by evidence of the severity of the injury, resulting pain, or required medical care. When victims of unlawful sexual conduct suffer physical injury and pain that is greater than that “ordinarily experienced” by victims of like crimes, this additional injury supports a finding of great bodily injury. Examining the facts of this case – a 13-year-old carrying a fetus for 22 months – the majority concluded that the jury could reasonably have found that the victim suffered great bodily injury.
The majority then examined the jury instructions given at trial. The judge modified a standard jury instruction on great bodily injury (CALJIC No. 17.20), by adding that “a pregnancy or an abortion may constitute great bodily injury,” and that members of the jury are “the exclusive judges whether the defendant personally inflicted great bodily injury.” Defendant argued that the instruction was abstract, meaning correct in law but irrelevant. While the majority agreed that the instruction was abstract – because there was no allegation that defendant personally performed the abortion – the majority found that the error was only technical and did not constitute grounds for reversal. This was particularly true because the jury was given an additional instruction, CALJIC No. 17.31, which informs jurors that some instructions given may not apply to the facts of the case. Viewing the instructions as a whole, the majority held that they did not in any way suggest that defendant’s acts of facilitating the abortion would constitute personally inflicting it for purposes of the great bodily injury determination.

Defendant also challenged the instruction as subject to erroneous interpretation by the jury, because the judge did not explain the meaning of the statutory phrase “personally inflicts.” The majority rejected this challenge, finding that there was no reasonable likelihood that the jury would misunderstand the technical, legal meaning of that phrase, which is the same as its nonlegal one.

Finally, defendant argued that the prosecutor’s statement at trial that defendant “only needs to do the act of getting her pregnant or having an abortion” to qualify for the great bodily injury enhancement could have misled the jury. Again the majority disagreed, finding that the prosecutor had made clear the requirement of personal infliction of injury, and that there was no substantial likelihood of jury confusion. Thus, the instructions did not violate defendant’s state or federal constitutional rights, and the judgment of the Court of Appeals (affirming the conviction) was upheld.

Concurring Opinion of Baxter, J.:

Justice Baxter concurred in the majority opinion, but wrote separately to explain that even if jurors considered the abortion in determining whether the victim suffered great bodily injury, any resulting error would have been harmless. According to Justice Baxter, this is true because the jury could consider the abortion in assessing the magnitude of the injury caused by the pregnancy, which defendant admitted he personally inflicted. Therefore, any juror who mistakenly relied on the abortion to find that defendant personally inflicted the requisite injury would also have found that defendant personally inflicted the pregnancy, which constituted significant or substantial physical injury, particularly in light of the abortion. Any error would therefore be harmless under Chapman v. California, which instructs that an error is harmless if it appears “beyond a reasonable doubt that the error complained of do not contribute to the verdict obtained.”

Defendant argued that he suffered prejudice because the verdict did not say whether the jury found great bodily injury based on a valid legal theory (that defendant personally inflicted the pregnancy) and not an invalid one (that defendant personally inflicted the abortion).

Defendant relied on Guiton for this theory of prejudice. Justice Baxter noted, however, that that case did not involve a jury being instructed with both a legally adequate and illegally inadequate theory; thus, the case did not answer the question. Justice Baxter further noted that a similar issue is currently before the Supreme Court, but stated that, until that Court ruled, the existing authority suggested applying the Chapman standard.

Finally, Justice Baxter stated that the Chapman standard does not depend on proof that the jury actually rested its verdict on the proper grounds, but instead on proof beyond a reasonable doubt that a jury would have found the defendant guilty even without the error. Therefore, even if defendant could show that some jurors relied on the abortion, this would only be the beginning of the harmless error analysis. Under this analysis, the error was clearly harmless as the defendant admitted he got K. pregnant, and there was substantial evidence that the pregnancy itself was sufficient to constitute great bodily injury. Thus, Justice Baxter concurred in upholding the conviction.

Concurring Opinion of Corrigan, J.:

Justice Corrigan also concurred, urging the court to resolve the broader issue of whether any pregnancy resulting from a sexual assault constitutes a great bodily injury. Noting that rape is the quintessential violation of the self, Justice Corrigan argued that this violation is exacerbated if it also results in pregnancy. Justice Corrigan argued that pregnancy is categorically different from other injuries, and that by its nature it always imposes a sufficient impact on the victim to meet the standard for great bodily injury. She argued that this is true because a pregnancy results in one of three things: an abortion, a miscarriage, or childbirth, all of which are incredibly painful in different ways. While some rape-induced pregnancies maybe worse than others based, for example, on the age of the victim, Justice Corrigan argued it is illogical to consider any pregnancy resulting from rape to be a minor injury. Justice Corrigan also noted that a defendant’s criminal culpability should not depend on the decisions of others, for example the timing and circumstances of an abortion, or on the decision to carry a fetus to term.

Turning to the text and legislative history of the great bodily injury enhancement, Justice Corrigan noted that the legislature decided not to include a list of illustrative examples of such injuries. This omission, she argued, suggests the legislature did not want the specific examples to suggest that other types of injuries did not qualify. Justice Corrigan suggested that the Legislature clarify and reaffirm its intent by amending section 12202.7 or creating a new enhancement for pregnancy itself. Finally, Justice Corrigan stated that under either the majority’s approach or her own analysis, any instructional error was harmless. She too, would affirm the conviction.