People v. Cross

CORRIGAN, J., Concurring.

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 [ 12 Cal.Rptr.2d 586 , 837 P.2d 1100 ].) 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. *73 opn., ante, at pp. 63-64.) 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 Instas. (2008) CALCRIM No. 3160; CALJIC No. 17.20.1.)

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 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 [ 150 Cal.Rptr. 113 ], 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 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.

*74 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 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.

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 or organ, protracted impairment of a bodily member or bone, wounds requiring extensive suturing and serious disfigurement. (People v. Escobar, supra, 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 physical 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.

*75 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 injury, within the language of section 12022.7.” (Maj. opn., ante, at p. 66.) 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 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 *76 defendant committed 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 defendant inflicted a great bodily injury by impregnating K. during a criminal assault.

George, C. J., concurred.

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, at p. 65.) 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.

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 punish more severely sexual crimes that entail such harm or injury. (See Mich. Comp. Laws, § 750.520a, subd. (n) [“ ‘Personal injury’ means bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ.”]; Neb. Rev. Stat. § 28-318 , subd. (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. Stat. § 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. (720 111. Comp. Stat. 5/12-14.)

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. Stat. § 940.225 , subd. (l)(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. Stat. § 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 that results in personal injury to the victim. ( N.M. Stat. Ann. § 30-9 -ll(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. Stat. Ann. § 30-9-10 (D).)