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Name: People v. Cross
Case #: S139791
Court: CA Supreme Court
District CalSup
Opinion Date: 08/28/2008

A pregnancy without medical complications that results from unlawful but nonforcible sexual conduct with a minor can support a finding of great bodily injury, depending on the facts of the case. The 13-year-old victim in this case became pregnant after sexual molestation by appellant, her stepfather. Late into her second trimester, appellant took her to have an abortion. Due to the advanced stage of the pregnancy, a surgical abortion was required. Appellant was subsequently convicted of, inter alia, lewd and lascivious acts with a child, with an allegation that he inflicted great bodily injury. The appellate court affirmed the conviction. In his petition for review, appellant argued that a pregnancy without medical complications that results from unlawful, but nonforcible. intercourse can never support a finding of great bodily injury. The Supreme Court disagreed. A great bodily injury determination will depend on the facts presented at trial in the context of the particular crime and the particular injuries suffered by the victim. Further, neither medical complications nor the use of force is required to sustain a great bodily injury enhancement. The evidence in this case was sufficient to support the finding. The prosecutor here urged the jurors to rely on their common experience to find that the victim had suffered great bodily injury by carrying a fetus the size of two and a half softballs for 22 weeks in her 13-year old body. Although every pregnancy resulting from nonforcible sexual conduct may not support a factual determination that the victim suffered great bodily injury, here, the jury could reasonably have found that the victim suffered a significant and substantial physical injury. (Editor’s note: Justice Corrigan would hold that any pregnancy resulting from sexual assault is great bodily injury as a matter of law.)
The trial court erred when it instructed the jury that an abortion could support a section 12022.7 enhancement under the facts of this case, but the error was harmless. Over appellant’s objection the court modified CALJIC No. 17.20 and instructed the jury that a pregnancy or an abortion may constitute great bodily injury. Appellant argued the modification was improper because he did not personally inflict the surgical abortion and therefore, the abortion could not support a great bodily injury finding under section 12022.7, which requires personal infliction. The Court found that the instruction was an “‘abstract’ instruction, that is, ‘one which is correct in law, but irrelevant.'” Since the instruction was inapplicable, it was error to give it. However, the error was harmless. The modified instruction did not suggest to the jury that appellant’s acts in taking the victim for an abortion would constitute personal infliction of the abortion. The erroneous instruction would not have misled a rational jury into concluding that by facilitating the abortion, appellant performed the abortion.