Opinion
G030841.
7-1-2003
THE PEOPLE, Plaintiff and Respondent, v. VICTOR RUBEN MARTIN, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Victor Ruben Martin was convicted by a jury of continuous sexual abuse of a child (Pen. Code, § 288.5). The jury also found Martin inflicted great bodily injury on the child in the course of committing that offense (& sect; 12022.7). On appeal, Martin contests only the sufficiency of the evidence to support the great bodily injury finding.
All further statutory references are to the Penal Code.
We affirm.
BACKGROUND
Martin began sexually abusing his 11-year-old daughter Tiffany L. in July 2000. The abuse lasted about six months. Tiffany testified she had sexual intercourse or oral sex with her father "more than 15" times, or "just about every day" her mother was not at home. Sometimes Martin gave Tiffany money for sex, or let her off restriction and allowed her to play outside if she had sex with him first.
In August 2001, Tiffany, then 12, gave birth to a baby boy. Before coming to the hospital, Tiffany did not know she was pregnant; she came because she had "really, really bad pains" in her side. A doctor examined Tiffany in the emergency room. She found the young girl "laying on a gurney writhing in pain with an obviously distended abdomen." Tiffany "was screaming quite loudly . . . and rocking back and forth in the gurney." The doctor quickly determined Tiffany was in active labor and "about to crown the baby." She performed an episiotomy on Tiffany and delivered the baby. There was no time for administering an epidural or any other form of anesthesia. The baby was healthy but underweight (five pounds, 13 ounces).
After the birth, the doctor questioned Tiffany about who had impregnated her. Tiffany initially denied ever having sex with anyone, but ultimately admitted she had had sexual intercourse with her father. A police detective interviewed Martin the next day. He waived his Miranda rights and admitted having sex with Tiffany. At trial, a DNA expert testified that, based on DNA testing conducted on Martin, Tiffany, and the baby, it was 20,000 times more likely than not that Martin was the babys father.
Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
The prosecutions theory supporting the great bodily injury enhancement was that Tiffanys pregnancy and delivery of the baby constituted great bodily injury. The jury found the enhancement allegation true. Martin appeals from that finding.
DISCUSSION
Martin argues there was insufficient evidence he inflicted great bodily injury on Tiffany by making her pregnant and causing her to give birth to a baby. He contends "pregnancy is a natural occurrence which routinely results from consensual sexual intercourse and thus, can not be considered great bodily injury within the meaning of [] section 12022.7." We disagree.
Section 12022.7 provides in pertinent part as follows: "(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. [P] . . . [P] (f) As used in this section, `great bodily injury means a significant or substantial physical injury." In People v. Escobar (1992) 3 Cal.4th 740, 837 P.2d 1100, the California Supreme Court explained that the Legislature intended great bodily injury to mean "a substantial injury beyond that inherent in the offense itself[.]" (Id. at pp. 746-747.)
Case law holds that pregnancy resulting from unlawful sexual intercourse constitutes great bodily injury. In People v. Sargent (1978) 86 Cal. App. 3d 148, 150 Cal. Rptr. 113, the court explained at length the reasons for this holding: "A pregnancy resulting from a rape (and, in this case, a resulting abortion) are not injuries necessarily incidental to an act of rape. The bodily injury involved in a pregnancy . . . is significant and substantial. Pregnancy cannot be termed a trivial, insignificant matter. It amounts to significant and substantial bodily injury or damage. . . . Major physical changes begin to take place at the time of pregnancy. It involves a significant bodily impairment primarily affecting a womans health and well being. . . . [P] Pregnancy can have one of three results — childbirth, abortion or miscarriage. Childbirth is an agonizing experience. An abortion by whatever method used constitutes a severe intrusion into a womans body. A miscarriage speaks for itself." (Id. at pp. 151-152.) The court concluded that "a pregnancy followed by an abortion" is an "injury significantly and substantially beyond that necessarily present in the commission of rape." (Id. at p. 152, fn. omitted.)
Martin tries to distinguish Sargent on the ground that the victim in that case suffered a forcible rape rather than the "consensual" continuous sexual abuse heaped on Tiffany. The distinction is a false one. The court in Sargent was explicitly mindful of the then recent Supreme Court pronouncement that forcible rape, "in and of itself," without additional physical manifestations or consequences, does not constitute great bodily injury. (People v. Caudillo (1978) 21 Cal.3d 562, 585-587, 146 Cal. Rptr. 859, 580 P.2d 274, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 237, fn. 6, 973 P.2d 512.) TheSargent court thus focused on the significance of pregnancy as an injury separate from the rape. Consequently, the courts authoritative comments concerning the hazards and "significant bodily impairment" of pregnancy, not to mention "the agony of childbirth," are applicable to any pregnancy resulting from unlawful sexual intercourse, whether or not the intercourse was forcible rape.
Despite his characterization of the sexual abuse here as "consensual," Martin concedes a 12 year old cannot lawfully consent to intercourse.
In People v. Superior Court (Duval) (1988) 198 Cal. App. 3d 1121, 244 Cal. Rptr. 522, the court likewise concluded that pregnancy resulting from unlawful sexual intercourse constitutes great bodily injury. Significantly, Duval involved an act of unlawful sexual intercourse that was not forcible rape ( § 261.5, subd. (a) [unlawful sexual intercourse with a minor not the perpetrators spouse]). The court stated, "Pregnancy, abortion, or venereal disease constitute injury significantly and substantially beyond that necessarily present in the commission of an act of unlawful sexual intercourse. [Citations.]" (People v. Superior Court (Duval), supra, 198 Cal. App. 3d at pp. 1131-1132, citing People v. Sargent, supra, 86 Cal. App. 3d at pp. 151-152.)
We are not persuaded by Martins argument that because pregnancy is "the almost inevitable result" of the sort of continuous sexual abuse that occurred in this case, it cannot constitute "a substantial injury beyond that inherent in the offense itself[.]" (People v. Escobar, supra, 3 Cal.4th at pp. 746-747.) First of all, pregnancy is not an injury inherent in continuous sexual abuse; it is an inherent risk of that offense. Second, the logic of the argument leads to absurd results. Under Martins reasoning, one act of unlawful sexual intercourse leading to pregnancy merits a great bodily injury enhancement but not the pregnancy-causing continuous sexual abuse of a child. Put another way, Martin would have the punishment decrease as the inherent riskiness of the conduct increases. This cannot be the law.
Applied to a different criminal offense, Martins argument would hold that because a shooting is "the almost inevitable result" of engaging in a string of armed robberies, the shooter cannot be liable for inflicting great bodily injury.
"It is well settled that the determination of great bodily injury is essentially a question of fact, not of law. "Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jurys finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding." [Citations.]" (People v. Escobar, supra, 3 Cal.4th at p. 750, fn. omitted.)
The evidence here is more than sufficient to sustain the jurys finding of great bodily injury. There is, of course, the piercing fact that Tiffany was just 11 when the sexual abuse began, and 12 when the injury inflicted by that abuse (pregnancy) culminated in an agonizing childbirth without any anesthesia. Her attending physician testified Tiffany was writhing in pain on the gurney. Moreover, the doctor explained childbirth is considered in the medical literature to be "a dangerous procedure. Women die in childbirth and during pregnancy every year." She further opined that "pregnancy and the resulting birth of a child is a significant injury to a womans body[.]" Finally, the doctor explained there is an increased risk of "complications associated with the birth of children to younger females[.]" Based on this evidence, the jury could reasonably find Martin inflicted great bodily injury on Tiffany by impregnating her in the course of his continuous sexual abuse.
DISPOSITION
The judgment is affirmed.
We Concur: SILLS, P.J., and MOORE, J.