Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF122429, W. Charles Morgan, Judge.
David M. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Hollenhorst, J.
Defendant Darrell Eugene Harris appeals from judgment entered following jury convictions for rape (Pen. Code, § 261, subd. (a)(2) ; (counts 1 and 4) and incest (counts 3 and 6; § 285). The jury also found true, as to counts 1 and 4, enhancement allegations that during the commission of the offenses, defendant inflicted great bodily injury (GBI) on the victim, Jane Doe (§ 12022.8). Defendant was acquitted of counts 2 and 5, penetration by a foreign object (§ 289), but was found guilty on count 2 of the lesser included offense of battery (§§ 242, 309). The court sentenced defendant to 19 years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends there was insufficient evidence to support the GBI enhancements, which were based on Jane Doe’s pregnancy. Defendant also argues the jury instruction defining GBI was unconstitutionally vague since it failed to adequately guide the jury in assessing whether Jane Doe’s pregnancy constituted GBI.
We conclude evidence of Jane Doe’s pregnancy was sufficient to support the GBI enhancements attaching to defendant’s rape convictions, and the jury instruction defining GBI was not unconstitutionally vague. We affirm the judgment.
1. Facts
During the summer of 2003, when Jane Doe was 15 years old, she went to visit her father, defendant, for two weeks. At the time, Jane Doe lived with her mother in San Bernardino. Defendant lived in an apartment in San Diego with his wife, a son, and a stepdaughter, who was a little younger than Jane Doe. Jane Doe had rarely seen defendant while growing up.
During the morning of June 25, 2003, defendant’s wife was at work and Jane Doe was alone with defendant at his apartment in San Diego. After waking up, Jane Doe went to the living room and watched television with defendant. At defendant’s invitation, she joined him on the couch and shared his blanket with him. While defendant lay behind Jane Doe on the couch under the blanket, he reached for Jane Doe’s genitals, turned her over, got on top of her, and started kissing her. Jane Doe tried to push him off her but she was unable to get away because defendant was holding her down. Defendant placed his mouth on Jane Doe’s left breast and had sexual intercourse with her. When defendant stopped, defendant was crying. He told her he was sorry but also said not to tell anyone or something bad would happen.
Ten days later, on July 5, 2003, at the end of Jane Doe’s visit with defendant, she, defendant, and his son spent the night at the home of defendant’s older daughter, Lakisha, in Moreno Valley. That night, defendant raped Jane Doe a second time while defendant was alone with Jane Doe at Lakisha’s home. While Lakisha was gone and Jane Doe was sleeping on the living room couch, defendant asked Jane Doe to “do it again, ” “please, please.” Jane Doe said no. She feared defendant as he moved closer. Defendant got on top of her, with his pants down, and had intercourse with her. Afterward, she went to sleep and pretended everything was normal. She was too afraid to tell anyone. The following morning she was dropped off at the YWCA, and her mother picked her up a couple hours later.
A couple of weeks later, Jane Doe began feeling sick and “really nauseous.” She told defendant. Defendant took Jane Doe to an abortion clinic for a pregnancy test. She did not have an abortion at that time. Later that day, Jane Doe told a YWCA staff member that defendant had raped her. When Jane Doe’s mother picked her up at the YWCA, she also told her mother. That day or the next, on August 19, 2003, Jane Doe’s mother took her to the police station to report the rapes. Jane Doe underwent an abortion on August 23, 2003.
The parties stipulated at trial that the DNA analysis performed on Jane Doe’s unborn fetus showed that defendant was the father.
Sergeant Erickson of the Riverside County Sheriff’s Department interviewed defendant on May 25, 2005. The videotaped interview was played for the jury. During the interview, defendant initially denied having sexual intercourse with Jane Doe but, after being confronted with the fetal DNA results, defendant admitted he had sexual intercourse with Jane Doe. Defendant insisted, however, that it was consensual and Jane Doe initiated the intercourse, which he was unable to stop. Defendant claimed he was half-drunk and had been sleeping at the time.
A prior rape victim of defendant, D.T., testified that in 2001 defendant took her and a friend to a house and forced D.T. to orally copulate him and have intercourse with him in the garage while her friend was in the house. Afterwards, D.T. ran to a nearby gas station, reported the incident to the police, and underwent a medical examination, which revealed injuries consistent with forced intercourse.
2. Sufficiency of Evidence of GBI Enhancements
Defendant contends there was insufficient evidence to support the section 12022.8, GBI enhancements attaching to defendant’s rape convictions (counts 1 and 4; § 261, subd. (a)(2)). The GBI enhancements were based on defendant impregnating Jane Doe when he raped her. Defendant argues the prosecution failed to establish that Jane Doe’s pregnancy constituted GBI since there was no evidence as to the details of her pregnancy or abortion.
In order to establish a GBI enhancement under section 12022.8, the prosecution must prove that the defendant personally inflicted GBI, as defined in section 12022.7, during the commission of one of the sexual felonies enumerated in section 12022.8. Such felonies include rape “by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (§ 261, subd. (a)(2); see also § 12022.8 and People v. Cross (2008) 45 Cal.4th 58, 64, fn. 2 (Cross).)
GBI is defined in section 12022.7, subdivision (f) as “a significant or substantial physical injury.” The victim need not have suffered a permanent or prolonged injury, disfigurement, or impairment. (People v. Escobar (1992) 3 Cal.4th 740, 750; Cross, supra, 45 Cal.4th at p. 64.) The GBI must be “‘beyond that inherent in the offense’” of rape. (Cross, at p. 64.)
The question of whether a victim has suffered physical harm amounting to GBI is a factual inquiry to be resolved by the jury. (Cross, supra, 45 Cal.4th at p. 64.) The jury’s finding must be upheld so long as substantial evidence supports it. (People v. Escobar, supra, 3 Cal.4th at p. 750.)
Courts, including this court, have held that a pregnancy may qualify as GBI. In People v. Sargent (1978) 86 Cal.App.3d 148 [Fourth Dist., Div. Two] (Sargent), the defendant forcibly raped a 17-year-old girl at knifepoint. The girl became pregnant and had an abortion. In Sargent, this court held that, “[p]regnancy resulting from rape is great bodily injury.” (Id. at p. 151, citing People v. McIlvain (1942) 55 Cal.App.2d 322, 334 (conc. & dis. opn. of Schauer, J.).)
We explained in Sargent that a pregnancy resulting from rape is not necessarily incidental to the rape itself. Also, a pregnancy cannot be described as a trivial or insignificant injury. It does not involve merely psychological or emotional distress. Rather, it is a significant and substantial physical injury. A pregnancy involves major physical changes and bodily impairment which affect a woman’s health and well-being. (Sargent, supra, 86 Cal.App.3d at p. 151.) The possible results of a pregnancy i.e., childbirth, abortion, and miscarriage involve additional traumatic physical experiences. (Id. at p. 152.) We further noted in Sargent that “[a]n abortion by whatever method used constitutes a severe intrusion into a woman’s body.” (Ibid.) In Sargent, we thus concluded that the victim clearly suffered GBI from being impregnated during forcible rape. (Ibid.)
The court in People v. Superior Court (Duval) (1988) 198 Cal.App.3d 1121, 1134, agreed. In Duval, a high school vice-principal was charged with various sex crimes, including statutory rape with two students. One of the students, a 15-year-old sophomore, became pregnant and had an abortion. In addition to the allegations for the substantive offenses, the People alleged that the defendant intentionally inflicted great bodily injury under a former version of section 12022.7. The trial court dismissed this allegation and the People filed a petition for writ of mandate. Although the appellate court affirmed the trial court’s dismissal based on a lack of specific intent to impregnate the victim, required under former section 12022.7, the court agreed with Sargent that pregnancy constituted GBI. (Duval, at pp. 1132, 1134.) The court in Duval specifically held, “[p]regnancy, abortion, or venereal disease constitute injury significantly and substantially beyond that necessarily present in the commission of an act of unlawful sexual intercourse.” (Id. at p. 1131.)
While Duval involved a former section 12022.7 GBI enhancement requiring specific intent, the current sections 12022.7 and 12022.8 GBI enhancements are otherwise essentially identical to each other and to the former section 12022.7 enhancement, with the exception that a section 12022.8 enhancement is based on enumerated sexual felonies, with a longer prison term. (§§ 12022.7, 12022.8; Cross, supra, 45 Cal.4th at p. 64, fn. 2.)
In Cross, supra, 45 Cal.4th at page 60, our high court addressed the issue of whether a pregnancy without medical complications that results from unlawful but nonforcible sexual conduct with a minor supported a GBI enhancement under section 12022.7. The victim in Cross ultimately underwent a surgical abortion at the advanced stage of pregnancy of 22 weeks. (Cross, at p. 62.)
The underlying sexual crimes did not qualify for a section 12022.8 GBI enhancement.
The court in Cross held there was sufficient evidence to support a GBI enhancement under section 12022.7 based solely on evidence of the particular circumstances of the pregnancy. (Cross, supra, 45 Cal.4th at p. 66.) The Cross court found it unnecessary, however, to decide “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.” The court in Cross limited its holding to the factual circumstances of the victim’s pregnancy, in which the victim’s pregnancy resulted in a late term abortion requiring an intrusive surgical abortion, requiring hospitalization for two days.
Since the underlying crime in Cross involved a nonforcible sexual offense, the court did not consider whether forcible rape, resulting in pregnancy, invariably supports a factual determination of GBI under sections 12022.7 and 12022.8. However, Justice Corrigan’s concurring opinion, concludes it does: “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 [Sargent, supra, ] 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. [Fn. omitted.] 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 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.” (Cross, supra, 45 Cal.4th at p. 73.)
While we recognize that Justice Corrigan’s concurring opinion does not constitute binding authority, we agree with its sound reasoning supporting the proposition that pregnancy arising from rape constitutes GBI. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.)
Justice Corrigan further explains in her concurring opinion in Cross that, “The Legislature intended that a Penal Code section 12022.7 enhancement be imposed on a defendant who personally inflicts a ‘significant or substantial’ injury. (§ 12022.7, subd. (f).) 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.” (Cross, supra, 45 Cal.4th at p. 74.)
In applying this reasoning to the instant case, and consistent with our holding in Sargent, we conclude pregnancy arising from rape constitutes GBI, regardless of the particular circumstances of the pregnancy and outcome of the pregnancy. Evidence that Jane Doe was a victim of forcible rape, which led to Jane Doe becoming pregnant and having an abortion, was sufficient to support a section 12022.8 GBI enhancement. (Duval, supra, 198 Cal.App.3d at pp. 1132, 1134.) The determination of whether a feloniously inflicted pregnancy constitutes GBI “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.” (Cross, supra, 45 Cal.4th at p. 74.)
Furthermore, even if forcible rape that impregnates the victim does not constitute GBI as a matter of law, there was sufficient evidence supporting a finding of GBI. Such evidence included testimony defendant first raped Jane Doe on June 25, 2003. Ten days later, he raped her again during the evening of July 5, 2003. Jane Doe underwent an abortion on August 23, 2003.
A couple weeks after defendant raped Jane Doe, she began experiencing physical signs of her body’s transformation from pregnancy, including feeling sick and “really nauseous.” Several weeks later, on August 23, 2003, she had an abortion.
Depending on whether Jane Doe was impregnated during the first or second rape, she was pregnant for between 49 and 59 days before undergoing an abortion. By that time, her body had undergone significant physical changes caused by pregnancy and the consequential abortion.
Because a pregnancy and abortion under these circumstances constitute GBI within the meaning of section 12022.7, subdivision (f), we conclude there was sufficient evidence to support defendant’s section 12022.8 GBI enhancements attached to defendant’s rape convictions (counts 1 and 4).
3. Constitutional Challenge to Jury Instruction on GBI
Defendant contends the jury instruction on GBI was unconstitutionally vague and ambiguous because it did not provide guidance on how to assess whether a particular pregnancy qualified as GBI for purposes of imposing a section 12022.8 enhancement.
A section 12022.8 enhancement requires a finding of GBI as defined in section 12022.7. Section 12022.7, subdivision (f) defines GBI as “a significant or substantial physical injury.” The trial court instructed the jury consistent with this statutory definition of GBI, by giving CALCRIM No. 3160 as follows: “If you find the defendant guilty of the crimes charged in Counts 1 & or 4 [rape], you must then decide whether, the People have proved the additional allegation that the defendant personally inflicted great bodily injury on [Jane Doe] in the commission of that crime. You must decide whether the People have proved this allegation and return a separate finding. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Committing the crime of rape is not by itself the infliction of great bodily injury.” (CALCRIM No. 3160; italics added.)
A trial court has a sua sponte duty to instruct on all general principles of law that are closely and openly connected with the facts of the case. (People v. Ervin (2000) 22 Cal.4th 48, 90.) In a criminal case, the general principles of the law include all the elements of the charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) Also, if the elements of the offense include a term that has a technical legal meaning that is different from its common meaning, the court has a sua sponte duty to define that term. (People v. Elam (2001) 91 Cal.App.4th 298, 307.)
While the trial court in the instant case defined GBI for the jury, courts have held that GBI is not a technical term requiring the court to sua sponte define the term. The parties did not request a definition but the trial court chose to give one nevertheless, and counsel did not object. (People v. Maciel (2003) 113 Cal.App.4th 679, 686.)
As noted in People v. Maciel, supra, 113 Cal.App.4th at page 686, “the phrase ‘great bodily injury’ standing alone is not vague. ‘The term “great bodily injury” has been used in the law of California for over a century without further definition and the courts have consistently held that it is not a technical term that requires further elaboration.’ [Citation.] The phrase ‘great bodily injury’ means ‘a significant or substantial physical injury.’ (See Pen. Code, § 12022.7, subd. (f).) The phrase ‘great bodily injury’ is ‘sufficiently certain and definite to meet the constitutional requirements’ and avoid vagueness. [Citation.]”
Here, the trial court provided an adequate definition of the term “GBI.” The jury instruction explains that the injury must be “significant or substantial physical injury, ” which is “greater than minor or moderate harm.” As our high court noted in Cross, normally, “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. [Citations.] ‘“A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.”’ [Citations.] Where to draw that line is for the jury to decide.” (Cross, supra, 45 Cal.4th at p. 64.)
The definition of GBI provided in section 12202.7 and the statute’s legislative history, make it clear the Legislature did not intend to provide a bright-line, narrow definition of the term GBI. Rather, the jury was to be given relatively broad discretion in determining whether an injury qualifies as GBI. Such definition is reasonably broad, without being unconstitutionally vague and ambiguous.
As Justice Corrigan explained, when discussing GBI, as defined in section 12022.7: “When the Legislature originally enacted Penal Code 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. [Citation.] 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.’ [Citation.] 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. [Citation.] 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.” (Cross, supra, 45 Cal.4th at p. 74.)
Not only do we conclude the jury instruction definition of GBI is not unconstitutionally vague and or ambiguous but, in addition, any deficiency in the jury instruction definition of GBI constitutes harmless error since, as discussed above, pregnancy, by its very nature, “will always impose on the victim a sufficient impact to meet the great bodily injury standard.” (Cross, supra, 45 Cal.4th at p. 73; see also Sargent, supra, 86 Cal.App.3d at p. 151.) It thus appears “‘“beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”’” (Cross, supra, 45 Cal.4th at p. 71, quoting Neder v. United States (1999) 527 U.S. 1, 15.)
4. Disposition
The judgment is affirmed.
We concur: Ramirez, P.J., McKinster, J.