Metropolitan News-Enterprise


Friday, August 29, 2008


Page 3


State Supreme Court Says Pregnancy May Be ‘Great Bodily Injury’


By SHERRI M. OKAMOTO, Staff Writer


A pregnancy without medical complications that results from unlawful, but not forcible, sexual conduct with a minor may support a finding of great bodily injury, the California Supreme Court held yesterday.

The state high court unanimously affirmed Gary Cross’ 15-year-to-life sentence based on a jury’s finding that he had personally inflicted great bodily harm on his 13-year-old stepdaughter who became pregnant by him and underwent an abortion with his assistance.

Cross repeatedly molested his stepdaughter, identified only as K., over the course of several months. After K. told him she thought she was pregnant, Cross took her to a local clinic which confirmed the pregnancy.

After K.’s mother commented on K’s weight gain, Cross took K to San Francisco General Hospital for an abortion. He directed K. to claim her age as 14 on the hospital admission forms, to use his last name, and describe him as her father.

Because the fetus was already at 22 weeks/ gestation, the abortion required surgical intervention, but the abortion resulted in no medical complications. Cross resumed sexual activity with K. until K.’s mother discovered documents related to the abortion nearly seven months later and confronted K., who disclosed Cross’ ongoing abuse.

Cross was charged with the felony of committing a lewd and lascivious act on a child under the age of 14 by force, violence, duress, menace, or fear, with inflicting great bodily injury on the victim in the course of that felony, and other sex offenses.

Santa Clara Superior Court Judge Alden E. Danner instructed the jury that either the pregnancy or abortion could constitute a great bodily injury, but did not instruct the jury on the meaning of “personally inflict.”

The jury found Cross guilty of the lesser included offense of a non-forcible lewd act on a child under 14 and also found true the enhancement that Cross had personally inflicted great bodily injury. 

The Sixth District Court of Appeal affirmed the judgment.

 Determining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law, but a factual inquiry to be resolved by the jury, Justice Joyce L. Kennard wrote in her opinion for the Supreme Court majority.

“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 or repair the injury,” Kennard wrote.

Despite court precedent finding great bodily injury in instances of forcible rape and the transmission of venereal disease, Kennard reasoned the jury’s great bodily injury determination in those cases were based on the facts as presented at trial in the context of a particular crime and the particular injuries suffered by the victim, not the application of physical force to the victim or medical complications.

Under the facts of this case, she concluded a jury could reasonable have found that K. suffered a significant injury based solely on evidence of her pregnancy.

Kennard further concluded that the trial court had erred in instructing the jury that the pregnancy or the abortion could constitute personal infliction of great bodily injury, even though the statement was legally accurate, because Cross did not perform the abortion.

Nonetheless, Kennard reasoned that because the phrase “personally inflicts” does not differ from its nonlegal meaning, the instruction would not have misled the jury into finding that Cross had personally inflicted great bodily injury on K. by facilitating her in obtaining the abortion, so the error was not prejudicial.

Justices Marvin R. Baxter, Kathryn Mickle Werdegar, Ming W. Chin and Carlos R. Moreno joined Kennard in her opinion.

Baxter wrote separately, joined by Chin, agreeing that the trial court’s instructional error was harmless.

“Any juror who found that the abortion constituted great bodily injury under an erroneous understanding of the requirement of personal infliction could not have failed to find that K. suffered great bodily injury under the valid theory that the gravity of the pregnancy injury,” Baxter reasoned, because any juror who relied on the abortion to find Cross had personally inflicted great bodily injury would have also had to have found that Cross personally inflicted the pregnancy which became a significant or substantial physical injury in light of the abortion.

Justice Carol A. Corrigan also concurred in the result, but wrote separately, joined by Chief Justice Ronald M. George, advocating that pregnancy resulting from a sexual assault should always constitute great bodily injury.

“Because pregnancy must result in childbirth, miscarriage or abortion, its infliction during a sexual assault is, by definition, a substantial or significant injury,” she wrote.

The case is People v. Cross, 08 S.O.S. 5252.


Copyright 2008, Metropolitan News Company