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Name: People v. Glass
Case #: F041380
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/06/2004
Subsequent History: 1/14/04 rehrg. den.; 3/24/04 rev. den.

Appellant was convicted of numerous offenses for raping his 12-year-old stepdaughter on two occasions, including two violations of Penal Code section 269, aggravated sexual assault of a child under 14 involving the commission of specified sex offenses. The jury also found that he inflicted great bodily injury on each occasion. Section 12022.8 requires imposition of a five-year enhancement if the defendant causes great bodily injury during specified sex crimes. Penal Code section 269 is not one of those specified offenses listed. The issue presented in the published portion of this opinion is whether a defendant convicted of violating section 269 is also subject to a section 12022.8 enhancement if he inflicts great bodily injury during the assault. The court concludes that appellant was subject to the five-year enhancement because violation of section 269 necessarily includes commission of one of the sex crimes listed in section 12022.8. In order for the jury to have convicted appellant of violating section 269, it must necessarily have determined that he committed one of the sex crimes listed in 12022.8. It would “seem injudicious” to allow a defendant to escape the 12022.8 enhancement simply because the victim was under 14.