P. v. Eison
Filed 9/12/12 P. v. Eison CA1/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT LEE
EISON,
Defendant and Appellant.
A134043
(Alameda
County
Super.
Ct. No. C163534)
Defendant
Robert Lee Eison appeals following his conviction by a jury of several sex
offenses including rape causing great bodily injury. His sole
pregnancy and subsequent abortion is insufficient to support the finding of
great bodily injury. We disagree and shall affirm.
Factual and Procedural
Background
The evidence at
trial presented the following facts. Defendant began molesting his stepdaughter
in November 2008, when she was 14 years old. After she turned 15, defendant
threatened to post nude photos of her on the internet if she did not have sex
with him. Defendant had sex with the stepdaughter for the first time in May
2009. There were approximately eight instances of sexual conduct taking place
in the home shared by the victim, her mother and defendant. In June 2009, the
stepdaughter discovered she was pregnant. She informed defendant of the
pregnancy, but he continued to have sex with her until July 2009. Then the
victim’s mother learned of her husband’s conduct and brought her daughter to
the hospital and to the police. The daughter underwent an abortion the next
day. DNA analysis and parentage testing confirmed defendant’s paternity of the
fetus.
Defendant
was charged by information with five counts of lewd acts on a child (counts 1,
2, 4, 6 and 8; Pen. Code,
name="_ftnref1" title="">[1]
§ 288, subd. (c)(1)), one count of sexual penetration by foreign
object (count 3; § 289, subd. (h)), and two counts of forcible rape
(counts 5 and 7; § 261, subd. (a)(2)). The fifth count charged
defendant with forcible rape between May 1 and July 25, 2009. The seventh count charged defendant with
forcible rape on or about July 26,
2009. Counts 6 and 8 charged defendant with lewd acts upon a child
as alternative charges to the forcible rape charges. The information further
alleged that defendant inflicted great bodily injury upon the victim in
connection with counts 5 and 6, between May 1 and July 25, 2009. (§ 12022.8.) A jury found defendant
guilty of counts 1 through 5 and 7, and found defendant not guilty of counts 6
and 8. Additionally, the jury found true the allegation that defendant
inflicted great bodily injury on the victim in connection with count 5, the
rape occurring between May 1 and July
25, 2009. The court sentenced defendant to the upper term of eight
years for the forcible rape conviction under count 5 and a consecutive
five-year term for the great bodily injury enhancement under section 12022.8.
In addition, the court sentenced defendant to a consecutive eight-year term for
the forcible rape conviction under count 7 and two consecutive eight-month
terms on counts 1 and 4, for an aggregate term of 22 years 4 months.
Defendant filed a timely notice of appeal.
Defendant’s
sole contention on appeal is that the
evidence of the victim’s pregnancy and abortion resulting from the rape is
insufficient to support the great bodily injury enhancement.
Section 12022.7, subdivision (f) defines “great bodily injury†as a
“significant or substantial physical injury.†Whether the physical harm
suffered by the victim constitutes a great bodily injury is a question of fact
for the jury. (People v. Escobar
(1992) 3 Cal.4th 740, 750.) Proof that a victim’s bodily injury is great is
commonly established by evidence of the severity of the victim’s physical
injury, the resulting pain, or the medical care required to treat the injury. (
“ ‘ “If there is sufficient evidence to sustain the jury’s finding of
great bodily injury, [the court] is bound to accept it, even though the
circumstances might reasonably be reconciled with a contrary
finding.†’ †(People v.
Escobar, supra, 2 Cal.4th at p. 750.)
The trial court fashioned a great
bodily injury jury instruction from CALJIC No. 17.20.1 and from the
Supreme Court’s opinion in People v.
Cross, supra, 45 Cal.4th 58.
name="_ftnref3" title="">[3]
The instruction advised the jury that “[a] pregnancy may constitute great bodily injury. You may consider the
circumstances and effects of the abortion of that pregnancy in determining
whether the pregnancy constituted great bodily injury in this case.†(Italics
added.) Although, as the instruction also stated, “[t]he commission of the
crime of forcible rape does not by itself constitute great bodily injury,†it
has long been recognized that pregnancy resulting from a forcible rape or
similar sex offense is sufficient to support a finding of great bodily injury (
148; People v. Superior Court (Duval)
(1988) 198 Cal.App.3d 1121). This conclusion has recently been emphatically
reaffirmed in the case of unlawful but nonforcible sexual conduct. (
In Cross the defendant impregnated his 13-year-old stepdaughter who
subsequently had an abortion. The prosecutor urged the jurors to rely on their
“common experiences†to find that the victim, a 13-year-old who had never given
birth before, had suffered great bodily injury in “carrying a baby†for 22
weeks. (People v. Cross,
concluded that a pregnancy without medical complications may constitute great
bodily injury. (Ibid.) The court
stated that it “need not decide that every pregnancy resulting from unlawful
sexual conduct . . . will invariably support a factual determination
that the victim has suffered a significant or substantial injury,†but that the
jury in that case could reasonably have found that the victim suffered a
significant or substantial physical injury “based solely on the evidence of the
pregnancy.†(Ibid.)
Statements appearing in some
appellate decisions suggest that impregnation necessarily constitutes great
bodily injury. (People v. Sargent,
[“Pregnancy resulting from rape is great bodily injury;†“ ‘the facts in
this case, i.e., a pregnancy followed by an abortion, clearly support a finding
of great bodily injury’ â€]; People
v. Superior Court (Duval), supra,
198 Cal.App.3d at p. 1131 [“Pregnancy, abortion, or venereal disease
constitute injury significantly and substantially beyond that necessarily
present in the commission of an act of unlawful sexual intercourse.â€].) Justice
Corrigan, joined by Chief Justice George, concurred in Cross to urge the adoption of such an unqualified rule. “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.†(People v. Cross, supra, 45 Cal.4th at p. 73 [concurring opn.
of Corrigan, J.].) Justice Corrigan quoted from the Sargent opinion: “ ‘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 woman’s body.’ †(Ibid.)
Justice Corrigan concluded, “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. . . . [T]he impact of any pregnancy on the physical
condition of the victim is never insignificant or insubstantial.†(
While the majority in
rule, it left no room to doubt that impregnation alone is sufficient to support
a finding that great bodily injury was inflicted. “[W]e conclude that here,
based solely on evidence of the pregnancy, the jury could reasonably have found
[the] 13-year-old . . . suffered a significant or substantial
physical injury.†(People v. Cross,
supra, 45 Cal.4th at p. 66.) Evidence regarding the weight of the fetus,
medical complication with the pregnancy, or specific details regarding the
abortion procedure is not required. (See People
v. Meneses (2011) 193 Cal.App.4th 1087, 1091.)
The
jury in this case unquestionably was presented with sufficient evidence of the
pregnancy and medical treatment obtained as a result of the sexual assault to
determine that the victim suffered a substantial physical injury. The victim
was impregnated at the age of 15 by her 48-year-old stepfather. This was her
first pregnancy. She learned that she was pregnant in June 2009 and was
pregnant for at least eight weeks. The pregnancy was terminated in July 2009.
No further evidence of pain, discomfort, or medical procedures was necessary
for the jury to have reasonably found
that defendant inflicted serious
bodily injury upon the victim.
The
judgment is affirmed.
_________________________
Pollak,
Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
All statutory references are to the Penal Code.
The court stayed the two 8-month sentences on counts 2 and 3 pursuant to
section 654.
