P. v. Benitez
Filed 7/3/12 P.
v. Benitez CA2/2
OFFICIAL REPORTS
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
GREGORIO
BENITEZ,
Defendant and Appellant.
B236454
(Los Angeles County
Super. Ct. No.
VA116956)
APPEAL from a
judgment of the Superior Court of
County. Dewey Lawes
Falcone, Judge. Affirmed.
Vanessa Place,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey,
Blythe J. Leszkay and Taylor Nguyen, Deputy Attorneys General, for Plaintiff
and Respondent.
* *
* * * *
Appellant
Gregorio Benitez appeals from the judgment following a jury trial in which he
was convicted of four felony counts of lewd acts upon a child under 14 years
(counts 1, 2, 3, and 5) (Pen. Code, § 288, subd. (a)).
allegation that appellant personally inflicted great bodily injury upon the victim,
his stepdaughter who became pregnant (§ 667.61, subds. (b) & (e)). The trial court sentenced appellant to a
total of 21 years to life, consisting of 15 years to life on count 5 (principal
count), and consecutive terms of two years each on the remaining three
counts. Appellant contends there was
insufficient evidence to support the finding of great bodily
FACTS
Appellant
began living with A.C. and her mother (mother) when A.C. was about seven years
old. A.C. called him “Daddy,†and he and
mother had a son when A.C. was eight or nine years old.
Appellant first
sexually abused A.C. when she was 10 years old and in the fifth grade. During this first incident, A.C. was wrapped
in a towel after having taken a shower when appellant asked her if she wanted
to have sex with him. Appellant followed
A.C. into her bedroom and told her that she had a nice body. A.C. told appellant that she did not want to
have sex with him, but appellant proceeded to put his penis inside her
vagina. A.C. put a pillow over her face
during the incident because she did not want to see him. A.C. testified that she did not want to have
sex with appellant and felt that it was wrong.
Appellant had
sexual intercourse with A.C. a second time while she was still in the fifth
grade and a third time while she was in the sixth grade, both times putting his
penis inside her vagina. Both times she
told him she did not want to have sex.
The final
incident occurred around Christmas in 2009 when A.C. was 13 years old. Appellant told A.C. they were going to have
sex, but A.C. said, “I don’t want to.â€
She had sex with appellant after he offered to buy her an “iPod†and
threatened to tell mother about A.C.’s boyfriend, with whom she was not having
sex.
A.C. became
pregnant after this last incident. She
told appellant she was not menstruating, and he responded that he might have
gotten her pregnant. A.C. did not tell
mother about the sexual incidents or being pregnant because she was afraid of
mother knowing and was also afraid mother would send her to Mexico. On the evening of September 21, 2010, A.C. had “bad stomachaches†and thought she might have urinated on
herself. A.C. had “no idea†what was
happening. Mother noticed A.C. going
back and forth to the bathroom and took her to the doctor the next morning, who
discovered she was in labor. A.C. was
transferred to the hospital where she delivered a healthy boy without any
painkillers at 11:33 a.m. on September 22, 2010. She was 14 years old when she gave birth and
found the delivery a “little†traumatic.
Appellant later
admitted to the police that he had sexual relations with A.C. four times, he
knew she was pregnant, and he knew he was the baby’s father. Appellant was 36 years old at the time of the
police interview. DNA testing revealed
there is a 99.9999 percent chance that appellant is the baby’s father.
DISCUSSION
Appellant
contends there was insufficient evidence
to support the jury’s finding that he personally inflicted great bodily
injury. We disagree.
Great
bodily injury is defined by section 12022.7, subdivision (f), as “significant
or substantial physical injury.†(See
also People v. Cross (2008) 45
Cal.4th 58, 63 (Cross).) The determination of whether a victim has
suffered physical harm which amounts to great bodily injury is a question of
fact to be resolved by the jury. (
On appeal, we must view the evidence in the light most favorable to the
judgment below, and draw all reasonable inferences in support of the
judgment. (People v. Snow (2003) 30 Cal.4th 43, 66; People v. DePriest (2007) 42 Cal.4th 1, 44.)
In
Cross, the defendant impregnated his
13-year-old stepdaughter, who had an abortion with the defendant’s
encouragement at 22 weeks. (
61–62.) A jury convicted the defendant
of a lewd act on a child under age 14 and found that he personally inflicted
great bodily injury. (
medical complications that results from unlawful, but not forcible, intercourse
can never constitute great bodily injury.
(Ibid.) Our Supreme Court rejected this
argument: “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. But we conclude that
here, 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.†(Id. at p. 66.)
Justice
Corrigan elaborated in her concurring opinion:
“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. . . . 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. [Citation.] 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.†(Cross,
supra, 45 Cal.4th at p. 73.) Justice
Corrigan further stated: “Because
pregnancy must result in childbirth, miscarriage or abortion, its infliction
during a sexual assault is, by definition, a substantial or significant
injury.†(Id. at p. 74.)
Some
courts of appeal have stated that a pregnancy in and of itself may qualify as a
great bodily injury. (See
148, 151 [“Pregnancy resulting from rape is great bodily injuryâ€];
[“Pregnancy, abortion, or venereal disease constitute injury significantly and
substantially beyond that necessarily present in the commission of an act of
unlawful sexual intercourseâ€].) Recently
in People v. Meneses (2011) 193
Cal.App.4th 1087, a 12-year-old victim was impregnated by her cousin in his
late 20’s. The jury convicted the
defendant of a lewd act on a child under age 14 and found that he had inflicted
great bodily injury. In challenging the
great bodily injury finding, the defendant argued the evidence showed the
victim was unaware of her pregnancy until a few months before giving birth, and
that she had a normal pregnancy and delivery.
(Id. at p. 1091.) The appellate court was not persuaded,
finding the defendant’s “act resulted in the impregnation of the victim when
she was 12,†and that she “endured the self-evident trauma and suffering that
accompanies a pregnancy until she delivered, at age 13.†(Ibid.) The court found the fact that the victim did
not immediately realize she was pregnant was simply conflicting evidence for
the jury to weigh. (Ibid.) In reaching its
conclusion that it was reasonable for the jury to find the victim suffered great
bodily injury, the court was influenced by Justice Corrigan’s concurring
opinion in Cross. (People
v. Meneses, supra, at pp. 1091–1092.)
Likewise
here, we reject appellant’s attempts to minimize A.C.’s injury by labeling her
pregnancy as “a fact (or facet) of human existence, and a relatively normal
state of human embodiment,†and by pointing out that her pregnancy and delivery
did not have complications. An
involuntarily impregnated child who carried and went through the pain of labor
to give birth to another child is no trivial matter. We are satisfied the jury could reasonably
have found that A.C. suffered great bodily injury when she experienced the
inherent trauma of a pregnancy and childbirth at the age of 14.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_______________________,
Acting P. J.
DOI TODD
We concur:
_______________________,
J.
ASHMANN-GERST
_______________________, J.
CHAVEZ
name="_ftn1" title="">[1] All statutory references shall be to the Penal Code unless
otherwise noted.
