Opinion
G054043
03-19-2018
THE PEOPLE, Plaintiff and Respondent, v. DEMETRIO ROJAS PEREZ, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CF2460) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant was convicted of four counts of aggravated sexual assault of a child under age 14 (Pen. Code, § 269, subds. (a)(5); counts 1 & 2 [sexual penetration], (a)(1); counts 3 & 4 [rape]), and one count of forcible lewd act on a child under age 14 (§ 288, subd. (b)(1); count 5). Count 5 was charged as sexual intercourse resulting in pregnancy. The jury found it to be true that defendant inflicted great bodily harm pursuant to count 5.
All statutory references are to the Penal Code unless otherwise stated.
The court sentenced defendant to state prison for life without the possibility of parole on count 5. (See § 667.61, subd. (j)(1).) As to all remaining counts, the court imposed consecutive prison terms of 15 years to life, for a total sentence of life without the possibility of parole, plus consecutive 60 years to life.
On appeal, defendant challenges an evidentiary ruling, the voir dire process, and a jury instruction; he also asserts prosecutorial misconduct. We conclude the trial court was free of prejudicial error and affirm the judgment.
FACTS
The minor victim is the oldest of three children. Defendant is her stepfather and the natural father of her two younger siblings. Defendant and mother met while she was pregnant with minor. They moved in together shortly after minor's birth and continued living together until, in late 2012, after a domestic violence incident, defendant moved out. However, he moved back in approximately six months later.
They lived in a three-bedroom, two-bathroom house shared with another family (mother's cousin, the cousin's husband, and their three children). Mother, defendant, and the three children shared the master bedroom, which had a bathroom attached. There was also a bathroom in the hallway. Minor would sleep with one sibling on the bottom level of a bunk bed, and the other sibling slept on top. Defendant and mother slept on a mattress on the floor. Minor would occasionally sleep with mother and defendant, on the edge nearest mother, if her sister was bothering her in bed.
The family had a bedtime routine. The children would fall asleep between 9:00 and 10:00 p.m. Mother would take a shower in the master bathroom from 11:00 to 11:20 or 11:25 p.m.
It was during mother's shower time that defendant's abuse of minor began when she was 12 years old. Defendant pulled minor to the floor, overcoming her resistance. He inserted his finger into her vagina and rubbed her breasts. Minor tried to resist but defendant was on top of her and she could not push him off. Defendant threatened to kill her and her family if she told anyone what he did. He also covered her mouth with a blanket to prevent her from crying out. The first incident lasted at most 20 to 30 minutes, ending when mother's shower water turned off. At that point, he pushed minor toward the hallway and told her to clean up in the hallway bathroom. Minor did not tell anyone what happened out of fear.
Over the next two or three months, defendant did the same thing "more than 10, 20 times." Each incident followed the same pattern as the first.
Then defendant began raping her (she was 13 years old at this point). As before, minor tried to resist him but was unable. Defendant repeated his threats to kill her and her family if she told anyone. Defendant went on to rape her approximately 10 to 20 more times, following the same pattern as before. Defendant stopped raping minor a few months later when she told him "no."
Approximately one-month later, minor began suffering nausea and vomiting. After one to two weeks of sickness, minor's mother took her to the emergency room. She was pregnant. When minor was told, she curled into a fetal position and began weeping.
Minor decided not to keep the baby and had an abortion the following month. The fetus was 12 weeks old, which made her ineligible for an abortion using pills, and instead made her eligible for a D&C (dilation and curettage) procedure. This involves the stretching of the cervix and the insertion of a suction device to empty out the uterus. The patient is placed under general anesthesia for this procedure. Afterwards, minor was in pain, describing it as "[m]y bones would just hurt and I couldn't really walk." DNA analysis of the fetus confirmed that defendant was the father.
Defendant did not put on any evidence, but instead argued the People's evidence was inconsistent with minor's account of force and duress. Defense contended it was implausible that forcible rape would be regularly happening with 10 people in a relatively small house with no one hearing anything. Defendant further argued that minor's account of defendant lifting up her sister's legs and dragging minor out of bed under the legs was implausible in its own right, but particularly implausible that the sister never woke up. Minor had testified she was "screaming" for help from her sister, which defense argued was implausible given the close quarters with others in the room, since no one ever woke up. Finally, defendant argued that the manner in which the sex came to a stop was inconsistent with force. It stopped when minor said "no."
Defendant conceded that he had sex with minor and that she could not legally consent. Had this case been charged under section 288, subdivision (a) that would be the end of the case. However, because the People sought the more severe punishments of section 269 (aggravated sexual assault of a minor), subdivisions (a)(1) (rape) and (a)(5) (penetration), and section 288, subdivision (b), they were required to prove the sex acts were perpetrated "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . ."
DISCUSSION
The Domestic Violence Incident
Defendant contends the court erred in two ways in connection with admitting evidence of a prior domestic violence incident. First, he contends the evidence was erroneously admitted. Second, having been admitted, he contends the court should have granted a mistrial because he had no opportunity to voir dire the jurors on that issue.
Before addressing the merits of those contentions, we begin with some background. Prior to trial, the People sought a ruling admitting a prior incident of domestic violence in which minor observed defendant punch and kick her mother. The People argued this was relevant to show minor's reasonable fear as part of their showing of duress. Both the defense and the court acknowledged that the evidence was relevant, but defendant argued it was unduly prejudicial under Evidence Code section 352. The court adopted that reasoning, stating, "Any reasonable person hearing [the] evidence would never believe that a 12 year old would consent to having sex with a grown man; a stepfather no less." "The evidence that you are seeking to introduce is cumulative of all of the evidence that you already have in your case." "[I]t creates a danger that the jury would be convicting [defendant] based on some improper character trait. And in this case the improper character trait that I see that would be brought out by this evidence would be a character for violence in general."
The court emphasized, however, that its ruling was preliminary and subject to being revisited: "This will apply to all of my 402 rulings; which is, that either side can renew their motions if I were to rule adversely against you at this time. So at any time during the trial either side can revisit any issue that we are discussing during this 402 motion."
After opening statements (which were not transcribed, and thus not in our record), the People moved to revisit the issue. The People argued, "In 402's [defense counsel] told us what [the] jury is going to believe that there was no force in this case. What jury is going to believe that this was not consensual. Then he gets up here and says the exact opposite to the jury." The court agreed: "I remember that, [defense counsel]. You specifically said, I don't know how the issue of consent came up during the argument in 402's. It's not about consent. You said that specifically.
Given the logic of the People's argument, we believe the word "not" was either a misstatement or an erroneous transcription.
"[Defense counsel]: Right, because it's not about consent.
"The Court: You just got up in opening and said it was consensual.
"[Defense counsel]: It's legal consent, your honor. It is not about legal consent."
The court, unmoved by defense counsel's distinction, reversed its ruling: "[I]n light of what I anticipate the defense is going to be, the court is re-evaluating the episode of the domestic violence incident under [Evidence Code section] 352, and the court finds that the probative value does outweigh the prejudicial affect because it does explain the additional element that will not be provided by any other evidence in this case, which is the alleged victim's fear of the defendant which not only is based on what the defendant said and did during the incidents themselves, but also based on what he had done in the past to the alleged victim's mother in her presence."
Defense counsel then moved for a mistrial, arguing, "my client is going to be severely prejudiced in the way that the court made its ruling, and not given an opportunity to voir dire the jury on this material. And the remedy I believe would be to strike the panel and start again." The court denied the motion.
At trial, both minor and mother testified concerning the domestic violence incident. Approximately one year before the sexual abuse began, mother told defendant she wished to leave him. Later, mother was on the phone and defendant was outside drinking. Defendant came inside, took the phone from mother, and asked if she was leaving him for another man. He then punched mother twice and kicked her once. The children witnessed the event and ran over to try to stop him. Defendant pushed the kids out of the way and then punched himself in the face. Mother called 911 and the police arrived.
Defendant contends this evidence was erroneously admitted under Evidence Code section 352. Evidence Code section 352 affords a trial court the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual[,] which has very little effect on the issues'" (People v. Karis (1988) 46 Cal.3d 612, 638), and which "tends to cause the trier of fact to decide the case on an improper basis" (People v. Walker (2006) 139 Cal.App.4th 782, 806). "We apply the deferential abuse of discretion standard when reviewing a trial court's ruling under Evidence Code section 352." (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
We conclude there was no abuse of discretion here. We recognize there was some danger the jury would use the domestic violence incident for an improper purpose—namely, that defendant's propensity for violence was evidence he in fact made the threats attributed to him by minor. However, the probative value of the evidence was significant. Defendant's case was entirely circumstantial and depended largely on arguing that minor's conduct was inconsistent with someone acting under duress. For example, defense counsel argued that her uncle, who was living in the same house, was "taller and stronger than [defendant]. Wouldn't that give her some comfort between her, her mom, and her cousin? You mean to tell me none of those folks could help protect her if she needed their protection. Her mom who was constantly telling her come to me and let me know if someone's touching you, come to me. [Minor] wasn't worried about any protection because she didn't need it. That's what that means." The evidence of domestic violence was an important part of the prosecution's case rebutting this inference. The jury could infer she did not appeal to her bigger uncle, or tell her mother, because the vivid memory of defendant beating her mother made defendant's threats too vivid and credible to risk telling anyone.
Different judges may have decided this evidentiary issue differently. Indeed, in this very case, the trial judge initially excluded the evidence. But to find an abuse of discretion, we have to find that no reasonable judge would have admitted the evidence. We cannot find that here. Accordingly, there was no error.
Next, we consider defendant's argument that, having ruled the evidence admissible after opening statement, the court erred in denying his mistrial motion. "The trial court should grant a mistrial if it is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] It is 'vested with considerable discretion' to determine whether the incident is incurably prejudicial. [Citation.] It should grant a mistrial only when a party's chance of receiving a fair trial has been irreparably damaged. [Citation.] We review an order denying a motion for mistrial for abuse of discretion." (People v. Campbell (2017) 12 Cal.App.5th 666, 672.)
Defendant relies on two cases: People v. Chapman (1993) 15 Cal.App.4th 136 (Chapman), and State v. Doll (1985) 214 Mont. 390, a decision by the Montana Supreme Court.
In Chapman, defendant was charged with being a felon in possession of a firearm. Before trial, he stipulated to having committed the predicate felony. As a result, the court told defense counsel, "the jury will not be told of the element that on August 7, 1990, he was convicted of possession of narcotics. The jury will be asked to make a finding . . . that . . . he did . . . have in his possession and under his custody and control a firearm, to wit, a rifle." (Chapman, supra, 15 Cal.App.4th at p. 139.) When the court informed the jury of the nature of the case, it did not mention the prior felony, and defense counsel did not ask questions during voir dire about the jurors' ability to maintain fairness if a prior felony were shown. (Id. at pp. 139-140.) Subsequently, the court stated the jury would be told the defendant had been convicted of a felony, but not told the nature of the felony. (Id. at p. 140.) Defense counsel vigorously objected, stating his understanding was the jury would not be told of a felony at all. (Ibid.) The defendant moved for a mistrial on the grounds he was not able to voir dire the jurors concerning the prior felony, but the court denied the motion, stating he would not have allowed voir dire questions on that topic anyway. (Ibid.)
The court of appeal reversed, stating, "The barring of any questions concerning possible prejudice or bias toward [the defendant] due to his prior felony conviction resulted in a failure to test the jury for impartiality and constituted an abuse of discretion. The denial of any examination in this area prevented the court from fulfilling its obligation to remove any prospective jurors who may have been unable to follow the court's instruction and impartially view the evidence. The trial court failed to guarantee [the defendant] his Sixth Amendment right to an impartial jury. The court had no knowledge of whether the potential jurors had prejudices toward an individual convicted of a felony which would prevent them from being fair and impartial in deciding the case. The trial court's omission in this regard constituted an error necessitating our reversal of the judgment." (Chapman, supra, 15 Cal.App.4th at p. 141.)
Chapman is distinguishable for two important reasons:
First, unlike the ruling before us, the pretrial ruling in Chapman was not tentative. It was a definitive ruling that the jury would not be told of the element of the prior felony. That ruling understandably led defense counsel to omit any mention of the prior felony during voir dire. Here, by contrast, the prosecutor expressly asked whether the domestic violence incident could be revisited during trial, and the court responded by saying all of its rulings were tentative. Thus, defense counsel proceeded through voir dire knowing there was a possibility the jury would hear of the domestic violence incident. To be sure, this presented counsel with a difficult judgment call: to raise the issue with the jury to weed out potential biases at the risk of disclosing harmful evidence, or omit it on the hope the court's ruling would not change. But that is not a fundamentally unfair predicament. Rather, it is inherent in the nature of tentative rulings. In a perfect world, all pretrial rulings would be made with certainty. But that is not the world we live in, and, thus, a defendant is guaranteed a fair trial, not a perfect trial.
Second, here, unlike in Chapman, defense counsel apparently provoked the change in ruling. During the argument on the evidentiary hearing, defense counsel played down the importance of consent. According to the court, defense counsel's opening statement then placed a heavy emphasis on consent. We do not have a record of the opening statement, and thus we presume the court's impression was accurate. This shift in emphasis is why pretrial evidentiary rulings are often tentative. The court is not yet fully versed in the parties' evidence and theories at trial. Particularly when the ruling is based on Evidence Code section 352, and thus depends on the relative probative value of the evidence, the court cannot know with certainty whether circumstances during trial will alter the equation. Where, as here, defense counsel emphasizes a theory of the case that was not clear before trial, and that enhances the probative value of the excluded evidence, the court is not required to grant a mistrial upon properly admitting the evidence. Any other rule would invite gamesmanship.
Defendant also relies on State v. Doll. There, the defendant was charged with deliberate homicide against his wife. (State v. Doll, supra, 214 Mont. at p. 392.) The prosecution sought to admit a previous incident in which the defendant threatened to kill his prior wife who sought a divorce (it is unclear in the opinion what the basis for admitting the evidence was). (Id. at p. 393.) Pre-trial, the court excluded the evidence, but then reversed itself during the trial. (Ibid.) The Montana Supreme Court held this was reversible error: "The prejudice in this case is found in that the defendant was assured that evidence of other crimes would not be admitted. . . . [T]he defendant lost his opportunity to voir dire the jury regarding the effect evidence of prior crimes would have on their decision." (Id. at p. 397 (italics added).) We find this decision distinguishable because, here, the defendant was not assured the evidence would be excluded; rather, he was expressly informed the ruling was subject to being revisited during trial. Moreover, there is no indication the trial court's change in ruling was due to a shift in the defendant's trial strategy.
Instructional Error
Next, defendant contends the court erred in giving both CALCRIM No. 301 and CALCRIM No. 1190. CALCRIM No. 301, as given here, stated, "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." CALCRIM No. 1190, as given here, stated, "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone." Defendant contends the instructions were redundant and, because they highlighted the prosecution's evidence, argumentative. Defendant cites several out-of-state cases where giving similar instructions was held to be prejudicial error.
We hold the failure to object to these instructions forfeited any error. "Generally, a party may not complain on appeal about a given instruction that was correct in law and responsive to the evidence unless the party made an appropriate objection." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) Here, there is no question that these were legally correct instructions that were responsive to the evidence. Defendant's only response is, "an argumentative instruction is for that reason an erroneous instruction." While that may be true, an argumentative instruction is not necessarily a legally incorrect instruction.
Defendant asks us to review the issue pursuant to section 1259, which grants us discretion to excuse a forfeiture in cases where defendant's substantial rights are at issue, but we decline to do so. We deem the forfeiture rule to serve important policies of judicial economy, and the error complained of here is not sufficiently substantial to make an exception to that rule.
Prosecutorial Error
Next, defendant contends the prosecutor erred in two aspects of closing argument. First, the prosecutor admonished the jury, "It's time for you to do your job and find him guilty." Second, the prosecutor denigrated defense counsel. On both counts, we agree the prosecutor erred, but conclude the error was harmless.
"'A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it "infects the trial with such unfairness as to make the conviction a denial of due process." [Citations.] In other words, the misconduct must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'" (People v. Clark (2011) 52 Cal.4th 856, 960.) "A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury." (People v. Crew (2003) 31 Cal.4th 822, 839.)
The discussion about the jury's job began with defense counsel's closing argument. Defense counsel repeatedly exhorted the jury that its job was to dispassionately assess the evidence. In response, the prosecutor stated, "When we talk about emotion yes, yes, your job, I think we talked about this, is to make a cold-hearted decision. You're to take your emotion out, but you're not to take her emotion out." The prosecutor concluded, "We talk about jobs respectfully. I submit to you that I've done my job and I've proved this case. I didn't have to do anything special. It's nothing I did. [Defense counsel] has done his job, which he says is to test the credibility of the witness. He did that. Her emotion, I submit to you, the truth overcame all of those questions. Now it's time for you to do your job. It's time for you to do your job to do justice and make sure that he does not get away with the despicable acts that he did. That he does not get away with what he did to [minor]. It's time for you to do your job and find him guilty on counts one, two, three, four, and five, and of the two findings on count five. Thank you."
Defendant did not object to this line of argument and thus forfeited the issue. But even if he had not forfeited it, we would not find prejudicial error.
Defendant relies principally on United States v. Young (1985) 470 U.S. 1, 18, where the Supreme Court stated, "The prosecutor was also in error to try to exhort the jury to ' do its job'; that kind of pressure, whether by the prosecutor or defense counsel, has no place in the administration of criminal justice." There, however, the Supreme Court concluded the error was harmless. (Ibid.)
In the context of this case, we likewise conclude any error was harmless. Defense counsel initiated a robust discussion of the jury's job. The prosecutor should not have suggested in response that the jury's job was to convict defendant. That said, we do not believe the jury would interpret the prosecutor's statement literally. The entire process of being selected for a jury and then sitting on a jury reinforces to the jury its actual job: to impartially weigh the evidence. Defense counsel repeatedly reinforced that role in his closing argument. We do not believe that the prosecutor's one statement in closing argument is enough to change the jury's view of its role in the process. Rather, any reasonable juror would conclude the prosecutor was simply expressing the view that the evidence left only one reasonable conclusion: guilt. We admonish prosecutors to avoid language that could suggests the jury's job is to convict, but we do not believe it is reasonably probable the defendant would have obtained a better result in the absence of the prosecutor's error.
Next, defendant contends the prosecutor erred by denigrating defense counsel in closing argument. "Prosecutorial argument that denigrates defense counsel directs the jury's attention away from the evidence and is therefore improper. [Citation.] In evaluating a claim of such misconduct, we determine whether the prosecutor's comments were a fair response to defense counsel's remarks." (People v. Young (2005) 34 Cal.4th 1149, 1189.)
We do not interpret some of the statements defendant complains about as attacks on counsel. For example, "The defense has gone from being farfetched to now being an absolute joke." This is a comment on the defendant's theory of the case, not on counsel. The prosecutor is, of course, free to describe the defendant's argument as absurd. The prosecutor also stated defense counsel had misstated the law and the facts several times. Again, this is commentary on the evidence and the law, not an attack on counsel per se. Moreover, as general statements, the prosecutor's comments were harmless.
There is one comment the prosecutor made, however, that is certainly in error: "You wonder why you hear about this also why [victims] are so afraid to testify in court is because of this victim blaming. We just saw 45 minutes of absolute victim blaming. . . . He basically called [minor] a slut." Defense counsel objected, but the court overruled the objection stating the jury had already been admonished.
The prosecutor's argument improperly placed the blame for a societal problem on defense counsel's legal strategy. Undoubtedly, society has struggled to create a legal system that encourages more victims of sex crimes to come forward. And it is certainly the case that litigation over the issue of consent can be difficult for victims of sex crimes. However, in a case such as this, the People have the burden to prove the sex acts were perpetrated by force or duress, and by the same token, defendant has a constitutional right to rebut the charges against him by arguing the acts were consensual. The prosecutor's argument encouraged the jury to reject defendant's consent argument, not on the merits, but because it contributes to a larger societal problem. This would improperly relieve the prosecution of the burden of proving an essential element of the charged crimes. The broader societal implications of litigation over consent are for the Legislature to consider, not a jury.
This is serious misconduct, and had the evidence been closer in this case, we may well have deemed it prejudicial. After carefully reviewing the evidence, however, it simply was not close enough for us to conclude there was a reasonable probability that defendant would have achieved a better result. Defendant put on no evidence, and thus all of the direct evidence in this case pointed towards guilt. Defendant's argument that minor consented was entirely circumstantial, and the circumstance that he placed most emphasis on was that they never made enough noise to alert the other members of the household what was going on. But minor's testimony was that defendant had threatened to kill minor and her family, and that minor took that threat seriously. It stands to reason that minor would keep quiet. In our view, defendant's best evidence was that the sexual abuse stopped when minor said no, but that evidence, standing alone, is not enough to significantly impeach minor's consistent testimony of force and threats of force. Defendant's circumstantial case simply did not add up to much, and thus we cannot conclude there is a reasonable probability that the prosecutor's errors affected the outcome.
Great Bodily Injury
Next, defendant contends the evidence was insufficient to establish the enhancement of great bodily injury on count 5 (§ 288, subd. (b)(1) [forcible lewd act]). The term great bodily injury is described as "a substantial injury beyond that inherent in the offense . . . ." (People v. Escobar (1992) 3 Cal.4th 740, 746.) "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. Cross (2008) 45 Cal.4th 58, 66 (Cross).)
Cross is closely on point. There, a defendant had intercourse with his 13-year old stepdaughter and impregnated her. The stepdaughter had an abortion at 22 weeks with no medical complications. (Cross, supra, 45 Cal.4th at pp. 61-62.) A jury convicted the defendant of a lewd act (§ 288, subd. (a)) and found it to be true that he inflicted great bodily harm. (Cross, at p. 63.) The defendant argued a pregnancy without complications or other injuries cannot support a great-bodily-harm enhancement, but the California Supreme Court rejected that position: "a pregnancy without medical complications that results from nonforcible but unlawful intercourse can . . . support a finding of great bodily injury." (Id. at p. 65-66.) The court concluded, "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 [the minor] suffered a significant or substantial physical injury." (Id. at p. 66.)
Justice Corrigan, in her concurring opinion, would have gone further: "Pregnancy is categorically different. By its nature it will always impose on the victim a sufficient impact to meet the great bodily injury standard." (Cross, supra, 45 Cal.4th 58 at p. 73.) Quoting People v. Sargent (1978) 86 Cal.App.3d 148, Justice Corrigan reasoned: "'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.' . . . [I]t is impregnation, necessarily causing one of three consequences, that is the basis for the injury. 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." (Cross, at p. 73 (conc. opn. of Corrigan, J.), fn. omitted.)
As applied to the facts of this case, we agree with the majority opinion in Cross and Justice Corrigan's concurrence. Defendant impregnated minor, and that pregnancy reached a stage where minor was forced to choose between two possible consequences of defendant's act: child birth or a surgical abortion, either of which constitutes a substantial injury beyond the mere act of rape. Defendant counters that he did not personally inflict the abortion. (See § 667.61, subd. (d)(6); People v. Cole (1982) 31 Cal.3d 568, 572 ["the individual accused of inflicting great bodily injury must be the person who directly acted to cause the injury. The choice of the word 'personally' necessarily excludes those who may have aided or abetted the actor directly inflicting the injury."].) However, he did personally and directly cause the pregnancy, which, after 12 weeks, necessarily entailed a substantial injury. That was sufficient to support the jury's finding.
We need not decide whether the same reasoning could be applied to a pregnancy terminated at an earlier stage with less invasive means. Our holding is limited to the facts of this case. --------
Prescreening Potential Jurors
Defendant's final argument is that the court erred in permitting the bailiff to prescreen potential jurors for any language issues. He relies on a single entry in the minutes, which states, "Off the record: The clerk and deputy stepped into the public hallway to take roll and assign numbers to prospective jurors. Deputy inquired with prospective jurors regarding any possible language issues. No jurors answered in the affirmative." From this, defendant concludes the court delegated to the bailiff the task of screening out jurors for language issues, which only the court is empowered to do, and which, therefore, constitutes structural error requiring reversal.
As the People astutely point out, however, "The minute order states only that the bailiff inquired as to any potential language issues. This does not support an assertion that the court had authorized the bailiff to dismiss or excuse any juror who informed the bailiff of possible language barriers. [Defendant] cannot demonstrate that the mere fact that the bailiff asked about potential language issues equates to a finding that the trial court improperly delegated his authority to screen the jurors' qualifications. A more probable explanation is that the bailiff (if he or she actually identified a potential language barrier) would have informed the court so that the court and counsel could address the issue with the prospective juror."
We agree. "On appeal, we presume that a judgment or order of the trial court is correct, "'"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."'" (People v. Giordano (2007) 42 Cal.4th 644, 666.) Here, the record simply does not demonstrate that the court did what defendant suggests.
Moreover, any error was apparently harmless. According to the minutes, no one responded in the affirmative to the bailiff's inquiry, and thus the bailiff apparently took no action at all.
Sealed Records
Lastly, defendant requests that we independently review the sealed records that were subpoenaed from minor's school. School records are confidential material that may not be released without a court order or parental consent. (Ed. Code, § 49076, subd. (a).) In such cases, the court reviews the records in camera to determine if they contain relevant material. (People v. Webb (1993) 6 Cal.4th 494, 518.) The court did so here and determined the records did not contain relevant material. Upon request, we may independently review the materials to ensure the trial court did not abuse its discretion. (See, e.g., People v. Myles (2012) 53 Cal.4th 1181, 1209.) The People do not object to us reviewing the materials. Having reviewed the materials, we agree with the trial court that they contain nothing relevant.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. MOORE, J.