Meneses

I am in complete agreement with my colleague that there is abundant evidence to support the great bodily injury allegation in this case. I write merely to express my personal conviction Justice Corrigan and Chief Justice George were right in their concurring opinion in People v. Cross (2008) 45 Cal.4th 58, 73 [ 82 Cal.Rptr.3d 373 , 190 P.3d 706 ]: “By its nature [pregnancy] will always impose on the victim a sufficient impact to meet the great bodily injury standard.”

Justice Corrigan has already said all that should be necessary on this point, so I can be brief. There are only three possible results of a pregnancy, and none of them can fairly be described as trivial or insignificant in terms of bodily injury. In addition to the “ ‘agon[y]’ ” of childbirth (People v. Cross, supra, 45 Cal.4th at p. 73 , quoting People v. Sargent (1978) 86 Cal.App.3d 148, 152 [ 150 Cal.Rptr. 113 ]), the two other potential results are equally traumatic. “ ‘An abortion by whatever method used constitutes a severe intrusion into a woman’s body. A miscarriage speaks for itself.’ ” (People v. Cross, at p. 73, quoting- Sargent , at p. 152.) Quite apart from the emotional issues the statute does not…

I concur in the judgment, and agree there is ample evidence to support the jury’s great bodily injury finding; indeed, given the victim’s description of the childbirth, no rational jury could conclude otherwise. I write separately to express my disagreement with my colleague’s concurrence. Adopting Justice Corrigan’s concurrence in People v. Cross (2008) 45 Cal.4th 58, 72-76 [ 82 Cal.Rptr.3d 373 , 190 P.3d 706 ] (Cross), my colleague urges the Legislature or the Supreme Court to declare that criminally imposed pregnancies constitute great bodily injury. In my view, any change in the law should come from the Legislature, not the courts. 1 The concurrence implicitly embraces Justice Corrigan’s suggestion “that a properly instructed jury would have been told that a sexual assault that impregnates the victim constitutes great bodily injury.” (Cross, at p. 75.) No *1096 doubt this proposal is well-intentioned, but an instruction along these lines would violate basic constitutional rights.

The majority in Cross did not adopt Justice Corrigan’s proposal. Rather our Supreme Court “has long held that determining whether a victim has suffered physical harm amounting to great bodily injury…

A jury convicted defendant Jasinto Duran Meneses of committing a lewd act with a child under the age of 14 (Pen. Code, § 288, subd. (a); all further statutory references are to this code unless otherwise stated) and found true he had substantial sexual conduct with a child (§ 1203.066, subd. (a)(8)) and inflicted great bodily injury (§§ 667.61, subds. (b), (e), 12022.8). The court sentenced him to 15 years to life based on the finding of great bodily injury. (§ 667.61, subds. (b), (e).) He contends there was insufficient evidence to support the great bodily injury allegation and that the sentence was cmel and unusual. We affirm.

FACTS

The 12-year-old victim lived in a two-bedroom apartment with her parents, defendant, her male cousin, who was in his late 20’s, and his wife and children. On several occasions he tripped her, threw her to the ground, and kissed her openmouthed on her mouth.

*1090 One night the victim, who had been sleeping, arose to get some water, after which she went into the bathroom, closed the door, and turned on the light. She then saw defendant, who smelled of alcohol. Defendant threw her to the floor and covered her mouth with his hand. As he…