Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC643818
ELIA, J.Following a jury trial, appellant was convicted of one count of violating Penal Code section 288, subdivision (a) (lewd act on a person under 14). The jury also found true a great bodily injury allegation. (Pen. Code, §§ 12022.53, 12022.7, 12022.8.) The trial court sentenced appellant to a state prison term of 15-years-to-life. Appellant contends that the trial court erred in instructing the jury concerning the great bodily injury allegation, which was based on his impregnation of his victim and her subsequent abortion. We affirm.
Evidence at Trial
When R. was 12 years old, she lived with her mother, Ms. K., Ms. K.'s sister, and other related children in San Jose. Appellant, who was Ms. K's sister's husband, lived with them in late 2004 and early 2005. R.'s best friend testified that in March 2005, when she and R. were in sixth grade, R. was "not feeling well." R. was drained of energy and the physical education teacher "let her out of a lot of things." The friend found a letter in R.'s backpack that described "something that had happened to [R.]." The friend took the letter to a school counselor because she believed R. needed help. After talking to R., the school counselor called the police.
A detective spoke to R., and R. made "some sexual allegations regarding her uncle." A counselor from the Department of Family and Children's Services became involved and, over a period of time, arranged for and transported R. to three medical examinations in preparation for an abortion.
Dr. Marek Klem testified that when he first saw R. in April 2005 she was 18-and-a-half to 19 weeks pregnant. Because this was a "more advanced pregnancy" he inserted laminarias into R.'s cervical canal to cause the cervix to dilate in preparation for an abortion. R. was placed under a general anesthetic for the high risk procedure which involved the use of clamps and suction devices. After the abortion, R. had two weeks of post-operative bleeding. The counselor testified that R. was at the hospital for the procedure for several hours and afterwards was "physically exhausted" and in pain for four days.
Dr. Klem provided a sample of the fetal tissue for the San Jose police. The parties stipulated at trial that DNA testing established that appellant was the biological father of R.'s fetus. The police began trying to contact appellant in March 2005. He was eventually located in Canada.
R. testified at trial that she was 14 years old and in eighth grade. She said that she did not want to testify and refused to answer any more questions.
Discussion
People v. Cross
Appellant contends that the trial court erred in instructing the jury on the great bodily injury (GBI) allegation. Appellant recognizes that, after his opening brief was filed, the California Supreme Court decided People v. Cross (2008) 45 Cal.4th 58, which "rejected several, but not all, of the arguments" which appellant made in his opening brief. Cross held that a pregnancy without medical complications that results from unlawful but non-forcible intercourse may support a GBI finding. Appellant asserts that Cross "largely overlooked" the arguments that the defendant could not have personally inflicted the abortion because it was performed by medical personnel, that the jury should have been given an instruction defining "personally inflicts," and that instructing the jury that it could find GBI from either the pregnancy or the abortion was instructing on one legally valid theory and one legally invalid theory. Appellant argues that "the specific facts of this case, including the prosecutor's jury argument, are significantly different than the facts upon which the Supreme Court decided Cross."
Appellant maintains that the prosecutor "repeatedly urged the jury to find GBI because appellant 'personally inflicted' the abortion." Appellant argues that because the prosecutor argued that appellant personally inflicted the abortion, Cross should not apply here. In Cross, the jury was specifically instructed, over defense objection, that pregnancy or abortion could be GBI. The prosecutor argued to the jury the defendant "only needs to do the act of getting her pregnant or having an abortion." (Cross, supra, 45 Cal.4th 58, 68.) The defendant argued on appeal "that even though the abortion was done by medical personnel at a hospital, and thus did not satisfy the personal infliction requirement of section 12022.7, subdivision (a), the prosecutor's argument to the jury could have misled it into concluding that by facilitating the abortion defendant personally inflicted the harm." (Ibid.)
The Cross court held that any error was harmless. The court said that any error "would not have misled a rational jury into concluding that by facilitating the abortion (by, among other things, taking his 13-year-old stepdaughter to hospital appointments on two successive days), defendant personally performed the abortion; therefore, the error did not violate defendant's state or federal constitutional rights." (Id. at p. 69.) Here, the jury was not instructed that pregnancy or abortion could constitute GBI. Rather the trial court instructed the jury, "If you find the defendant guilty of the crime[s] charged in Count 2, you must then decide whether the People have proved the additional allegation that the defendant personally inflicted great bodily injury on [R.] during the commission of that crime. [¶] 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 lewd or lascivious act on a child under fourteen is not by itself the infliction of great bodily injury."
In closing here, the prosecutor argued, "I don't think any of us would say that pregnancy is ever or can ever be trivial or insignificant. We talk about the serious physical changes happening to a woman during pregnancy and then think about an 11 or 12 year old girl and the changing that would be going through your body in pregnancy, that is not normal for a girl that young to be pregnant like this. Are there significant bodily impairments during a pregnancy that affect the woman's health and well-being undoubtedly, yes. That equals GBI. Again, it is all the more devastating to impose it upon a girl by molestation. We talk about the possible endings to a pregnancy and any of them would be GBI. There is childbirth, which of course we know is extremely painful for a woman, abortion which is a severe intrusion of a woman's body or miscarriage which speaks for itself. . . . [¶] Again abortion would never be termed trivial or insignificant. And abortion which – whatever method used can constitute severe intrusion into a woman's body. Now, abortion is not an injury in the classic sense, but the defendant is still responsible for that abortion. Did he wield the knife? No. Did he perform the abortion? No. But he is still responsible for it. . . . [¶] Abortion just has to do with the level of harm caused to [R.] and that just makes it more, more evidence in this case that GBI was, in fact, inflicted." Thus, the prosecutor did not argue that appellant had some vicarious liability for the infliction of the abortion, but rather that the medical procedure was relevant to assessing the degree of injury suffered by the impregnation. This was proper.
Appellant states that the court in Cross "largely ignored" the argument that the trial court instructed on a legally invalid theory based "on the assumption that the jury in that case must have understood the term 'personally inflicts' in the correct way. That could not be the case here. The prosecutor here, repeatedly, but incorrectly, urged the jury to understand the term 'personally inflicts' to apply to Appellant's role in causing the abortion." Actually, the factual differences between Cross and this case would support the view that the jury would not have considered appellant to have inflicted the abortion. That the prosecutor argued that appellant was "responsible" for the harm caused by the abortion must be taken in the context in which the comment was made. The prosecutor was arguing that the abortion should be considered in determining that the pregnancy was not a trivial or insignificant injury. Unlike in Cross, in which the defendant took an active part in helping his victim procure the abortion, appellant here had no part in arranging it. The prosecutor's argument here would not have misled the jury about the meaning of personal infliction.
Appellant asserts that he "stands by his argument . . . that there was no GBI here, because GBI requires force and injury. . . . If California wishes to include pregnancy within the definition of GBI, that is the job of the Legislature, not the courts." We are bound to follow the holding in Cross that a pregnancy without medical complications that results from nonforcible unlawful sexual misconduct with a minor can support a GBI finding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant contends, "Great bodily injury is not inflicted without the use of force; thus the trial court erred in instructing the jury so as to allow it to find that pregnancy arising from non-forcible sexual intercourse with an underage girl could constitute GBI." The Cross court said, "To the extent defendant argues that great bodily injury invariably requires the application of physical force to the victim in order to cause great bodily injury, we reject that view." (Cross, supra, 45 Cal.4th 58, 66, fn. 3.) We must as well. (Auto Equity Sales, Inc. supra, 57 Cal.2d 450, 455.)
Unanimity
Appellant contends, "The trial court erred when it failed to instruct the jury upon request that the jury must be unanimous as to which condition, the pregnancy, or the abortion, constituted GBI."
"In a criminal case, a jury verdict must be unanimous. [Citation.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) However, "[a] requirement of jury unanimity typically applies to acts that could have been charged as separate offenses." (People v. Maury (2003) 30 Cal.4th 342, 422.) Where "the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty. [Citation.]" (People v. Russo, supra, 25 Cal.4th at p. 1132.) The jury here was not required to agree on a theory underlying the finding supporting the enhancement. There was no room for disagreement that appellant's single discrete crime, committing the lewd act which impregnated R., was the act that inflicted the injury. An individual juror could determine that the length of the pregnancy, or the surgical abortion, or both, sufficed to fulfill the requirement of substantial or significant injury. The unanimity requirement demands only that the jury unanimously find that the injury sustained by R. was significant or substantial. (People v. Robbins (1989) 209 Cal.App.3d 261.) Due process was served by the requirement that the jury render a unanimous verdict on the penalty enhancement provision, whether or not it agreed on the theory underlying that finding. (People v. McPeters (1992) 2 Cal.4th 1148, 1184; People v. Briscoe (2001) 92 Cal.App.4th 568, 591-592.) The trial court did not err in declining appellant's request to instruct the jury that it must be unanimous as to which condition constituted GBI.
CALCRIM Nos. 3160 and 3261
Appellant contends, "The trial court erred in refusing to instruct upon request that the GBI must be inflicted during the commission of the offense." Appellant asked the trial court to instruct the jury pursuant to CALCRIM Nos. 3160 and 3261 that it must find when the lewd act was completed and that it must find that the GBI was inflicted "during the commission of" the lewd act. Counsel argued, "I think that they should be told when a lewd act is completed pursuant to [CALCRIM No.] 3261 to address any concerns they have, just because we have an incident, an abortion that occurred some months after the actual lewd act."
CALCRIM No. 3160 would have informed the jury,"If you find the defendant guilty of the crime charged . . . you must then decide whether the People have proved the additional allegation that the defendant personally inflicted great bodily injury on R. during the commission of that crime." CALCRIM No. 3261 provides in part, "The People must prove that in the commission [or attempted commission] of . . . . [The crime of [or attempted ] continues until the perpetrator[s] (has/have) actually reached a temporary place of safety. The perpetrator[s] (has/have) reached a temporary place of safety if (he/she/they) (has/have) successfully escaped from the scene[,] [and] (is/are) no longer being chased[, and (is/are) no longer in continuous physical control of the person who was the target of the crime].]"
Citing People v. Jones (2001) 25 Cal.4th 98, appellant observes that, with respect to sex crimes, the offense continues as long as the assailant maintains control over the victim. He argues that because "[p]enetration of an egg by a sperm does not occur until many hours later. . . . there [is] a question as to whether this pregnancy occurred 'in the commission of,' rather than after, the charged lewd and lascivious act."
In Jones, the defendant forced the victim into his car, committed various sex crimes, and then when the victim reached for her clothing and started to get out of the car, the defendant produced a knife that had been hidden in the car and held it to her face. Our Supreme Court said that the jury's finding that the defendant had personally used a deadly weapon during the commission of the sex crimes was proper because the defendant had used the knife to threaten or maintain control over his victim. (Jones, supra, 25 Cal.4th 98, 109.) The court discussed Penal Code section 12022.3, subdivision (a), and said, "In the case of a weapons-use enhancement, such use may be deemed to occur 'in the commission of' the offense if it occurred before, during, or after the technical completion of the felonious sex act. The operative question is whether the sex offense posed a greater threat of harm-i.e., was more culpable-because the defendant used a deadly weapon to threaten or maintain control over his victim." (Id. at pp. 109-110.)
We believe that the trial court was correct when it said, "I think the facts in this case are different than what the instruction was designed for. I think we can draw an inference the pregnancy did not occur exactly at the moment of the molest if the jury finds that. But the inference is that if Mr. Singh somehow molested the victim, caused her to be pregnant, even if fertilization of the egg did not occur at the moment of molest, this instruction does not seem to fit with the fact of this case." We agree that CALCRIM No. 3261 and Jones have no applicability in the context of this GBI enhancement where appellant had completed all of the acts necessary to cause the injury even though the extent of the injury was not immediately apparent.
Vagueness
Appellant contends, "The GBI instruction was so vague as to violate due process; the jury's discretion on whether to find GBI was so unguided that its decision was arbitrary." Appellant argues that the instruction was vague because "it did not tell the jury how to determine whether pregnancy or abortion constituted an 'injury' at all" and because "it did not tell the jury how to determine whether any such injury was 'significant or substantial,' as opposed to 'minor or moderate,' so as to constitute GBI." Appellant argues that "the ordinary definition of 'injure' is to inflict hurt or pain. This definition does not apply to [R.]'s pregnancy or an abortion, because there is no evidence that either involved 'substantial or significant' pain."
The argument that a jury instruction is vague is different from an argument that a statute is void for vagueness. "[A]n instruction does not establish the elements of a crime, but merely attempts to explain a statutory definition." (People v. Raley (1992) 2 Cal.4th 870, 901.) "[W]hen it is argued the instruction is so vague and confusing as to violate fundamental ideas of fairness, 'we inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' (Estelle v. McGuire, supra, 502 U.S. at p. 72, 112 S.Ct. at 482 [116 L.Ed.2d at p. 399].)" (Ibid.)
The GBI instruction here was not vague. The jury was told, "Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." This instruction directed the jury to apply the common definition of injury to appellant's impregnation of R. and its physical consequences. The instruction given does not lead us to conclude that the jury was reasonably likely to determine, even if it did not consider R. to have been injured within the ordinary definition by the pregnancy and resulting abortion, that a true finding on the enhancement would nevertheless be an appropriate verdict.
Appellant points out that the jury sent a note asking for an explanation of GBI and argues, "This shows that the jury was confused by the GBI instruction which it was given." The record does not reflect confusion by the jury. The record shows that the jury retired to deliberate and, a half an hour later, sent a note asking "Define great bodily injury in the legal sense." After notifying counsel, the court "enter[ed] the jury deliberations room to give [the] jury [a] copy of [the] instructions." The court then directed the jury to the page of the written instructions that defined GBI. It appears that the jury simply wanted the exact language of the instruction, which had previously not been provided in written form.
Civil Litigation
Appellant contends, "If this court were to define 'injury' to include pregnancy, then under John B. v. Superior Court (Bridget B.) (2006) 38 Cal.4th 1177 a cause of action in tort would arise every time there was an unwanted pregnancy." Appellant argues that "[f]loodgates would open to litigation every time there was an unwanted pregnancy [or] a one-night stand went too well."
In John B., a wife sued her husband on the theory that he had negligently infected her with the human immunodeficiency virus (HIV). Our Supreme Court said that the wife was entitled to discovery of her husband's medical records and that the tort of negligent transmission of HIV does not depend solely on actual knowledge of HIV infection, but instead extends to those situations where the actor, under the totality of the circumstances, has reason to know of the infection.
To the extent the holdings in Cross and John B. might be used to provide for the compensation of tort victims, we note that criminal cases and tort cases share the concern of deterring harmful acts. In any event, appellant does not cite any authority for the proposition that the future impact on civil litigation should dictate the result of an appeal from a criminal conviction. Accordingly, we are not persuaded that this concern should bring about a different result here.
Right to Privacy
Appellant contends, "The instruction which allowed the jury to return a GBI finding based on the abortion improperly criminalized appellant's role in such a medical procedure, in violation of federal and state constitutional rights to privacy." Citing Roe v. Wade (1973) 410 U.S. 113, the Fifth and Fourteenth Amendments to the United States Constitution and Article I, section 1 of the California Constitution, appellant argues, "Because a girl's right to terminate a pregnancy by having an abortion is constitutionally protected, the right of privacy extends to medical providers who perform the abortion, and to those who play a part in the process which leads to the abortion. . . . Increasing Appellant's punishment . . . because [R.] had an abortion violated the state and federal constitutional rights to privacy, because it criminalized Appellant's role in causing [R.] to exercise her constitutional right to privacy." Appellant argues that "no crime is committed when an adult arranges a hospital abortion for an underage girl, or when the adult drives the underage girl to the hospital. Accordingly, Appellant's acts in bringing about the abortion cannot carry criminal liability."
We first set aside issues as to whether appellant could personally assert a reasonable expectation of privacy in information concerning his impregnation of a minor through the commission of a lewd act and her subsequent abortion and whether appellant would have standing to vicariously assert R.'s privacy rights to avoid the penal consequences of his conduct. We disagree with appellant that sentencing appellant under the GBI enhancement here "criminalized Appellant's role" in "bringing about the abortion." Appellant had no role in arranging the abortion, and most likely had fled to Canada by the time R. arranged to terminate the pregnancy. Thus, his criminal liability here does not result from R.'s exercise of her right to obtain an abortion or her right to privacy. Rather, appellant was sentenced for the lewd conduct with R. and his sentence was enhanced because of the injury he inflicted on R. during its commission.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.