Opinion

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 removed her clothing, frightened, the victim tried to push him away. Defendant touched her breasts, put his finger in her vagina, and then put his penis in her vagina, moving up and down. After several minutes “white stuff came out of his penis.”

The next morning defendant told the victim not to tell her parents and she did not because she was afraid he might harm her or her family. Several months later, defendant told her not to tell her parents if she was pregnant; if her parents asked she should say her boyfriend was the father.

Thereafter when the victim’s mother asked her if she was pregnant, she said she did not know. A visit to the doctor confirmed her pregnancy and a child was subsequently bom.

DISCUSSION

1. Great Bodily Injury

Great bodily injury is defined as “a significant or substantial physical injury.” (§ 12022.7, subd. (f).) Its occurrence is a fact question for the jury. (People v. Cross (2008) 45 Cal.4th 58, 64 [ 82 Cal.Rptr.3d 373 , 190 P.3d 706 ].) Defendant contends the prosecution did not prove great bodily injury because, other than the pregnancy, there was no evidence the victim suffered any physical harm other than the lewd act itself and the pregnancy was not burdensome.

People v. Cross, supra, 45 Cal.4th 58 is instructive. There the defendant was convicted, among other things, of committing a lewd act on a child under 14 when he had intercourse with his 13-year-old stepdaughter, who became pregnant. The jury found true the great bodily injury allegation and for that crime the defendant was sentenced to 15 years to life. He made a similar argument to the one defendant makes here, i.e., that a victim who is impregnated by unlawful, but not forcible, intercourse never suffers great bodily injury. (Id. at p. 63.) The court rejected this claim but also declined to hold the opposite. It did not decide whether a victim always suffers great bodily injury when impregnated by nonconsensual intercourse. (Id. at p. 66.) But it did uphold the finding the 13-year-old victim had suffered great bodily injury “based solely on evidence of the pregnancy.” (Ibid.)

*1091 In so doing it pointed out that the usual proof of great bodily injury is evidence of pain or necessary medical care. “Thus, when victims of unlawful sexual conduct experience physical injury and accompanying pain beyond that ‘ordinarily experienced’ by victims of like crimes [citation], such additional . . . ‘gratuitous injury’ will support a finding of great bodily injury [citation].” (People v. Cross, supra, 45 Cal.4th at p. 66 .)

Defendant argues Cross is different from this case. He points to evidence adduced in that case that the victim, who had never delivered a baby, “was carrying a fetus ‘the size of two-and-a-half softballs’ ” (People v. Cross, supra, 45 Cal.4th at p. 66 ) while here there was no evidence of either the victim’s or the baby’s size or weight. He also asserts the victim was unaware of her pregnancy until a few months before the baby’s birth and because no one else mentioned it, it must not have been visible. He argues there was nothing extraordinary about the delivery—no extended hospital stay or unusual procedures. Finally, he maintains the jury’s failure to convict him of rape shows it “apparently rejected]” the claim the intercourse was accompanied by force.

This does not persuade. Defendant’s act resulted in the impregnation of the victim when she was 12. She endured the self-evident trauma and suffering that accompanies a pregnancy until she delivered, at age 13. She was in labor from 5:00 a.m. until sometime the next day. And delivery hurt “a lot.”

Lack of evidence of the size of the fetus or that the victim did not immediately realize she was pregnant are not dispositive; at most this presents conflicting evidence for the jury to determine and which we do not reweigh. (People v. Smith (2005) 37 Cal.4th 733, 738-739 [ 37 Cal.Rptr.3d 163 , 124 P.3d 730 ].) “ ‘[I]f the circumstances reasonably justify the . . . findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129 [ 40 Cal.Rptr.3d 118 , 129 P.3d 321 ], disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151 [ 74 Cal.Rptr.3d 454 , 180 P.3d 224 ].)

In reaching our conclusion that it was reasonable for the jury to find the victim suffered great bodily injury, we are influenced by, although do not rely on, Justice Corrigan’s concurring opinion in People v. Cross, supra, 45 Cal.4th 58 at pages 72-77. In evaluating pregnancy within the scope of great bodily injury she stated that it is “categorically different” from other types of injuries. (Id. at p. 73.) “By its nature it will always impose on the victim a sufficient impact to meet the great bodily injury standard. . . . ‘Pregnancy can have one of . . . three results—childbirth, abortion or miscarriage. Childbirth *1092 is an agonizing experience. [T]he impact of any pregnancy on the physical condition of the victim is never insignificant or insubstantial.” (Ibid.) While pregnancy is difficult for any woman, here the pregnancy forced on this 12-year-old victim significantly exacerbated her injury.

2. Cruel and Unusual Punishment

Defendant claims his 15-year-to-life sentence violates the federal and state prohibition against cruel and unusual punishment because it is disproportionate to the severity of the offense. Before sentencing he made the same objection, asserting that the great bodily injury finding was based solely on the victim’s pregnancy, the probability of which was small, and not on use of a weapon or the method by which the crime was committed. He noted that for the same crime, where the victim does not become pregnant, the sentence can be as low as three years. He also relied on the probation report’s finding of a slight risk of recidivism and “lack of a significant prior record.” He asserted some more serious crimes are not punished as harshly and finally emphasized it was not likely he would be paroled. The court overruled his objection, stating the sentence was not so rare or so disproportionate as to shock the conscience.

The Eighth Amendment to the United States Constitution “contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ [Citations.]” (Ewing v. California (2003) 538 U.S. 11, 20 [ 155 L.Ed.2d 108 , 123 S.Ct. 1179 ].) “A punishment violates the Eighth Amendment if it involves the ‘unnecessary and wanton infliction of pain’ or if it is ‘grossly out of proportion to the severity of the crime.’ [Citation.]” (People v. Retanan (2007) 154 Cal.App.4th 1219, 1230 [ 65 Cal.Rptr.3d 177 ].) The United States Supreme Court noted this principle is “applicable only in the ‘exceedingly rare’ and ‘extreme’ case. [Citations.]” (Lockyer v. Andrade (2003) 538 U.S. 63, 73 [ 155 L.Ed.2d 144 , 123 S.Ct. 1166 ].)

“ ‘ “A tripartite test has been established to determine whether a penalty offends the prohibition against cruel . . . [or] unusual punishment. First, courts examine the nature of the offense and the offender, ‘with particular regard to the degree of danger both present to society.’ Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. [Citations.] In undertaking this three-part analysis, we consider the ‘totality of the circumstances’ surrounding the commission of the offense. [Citations.]” [Citation.]’ [Citations.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 569 [ 59 Cal.Rptr.3d 876 ].) A defendant has a “considerable burden” to show a punishment is cruel and unusual (People v. Wingo (1975) 14 Cal.3d 169, 174 [ 121 Cal.Rptr. 97 , *1093 534 P.2d 1001 ]), and “[o]nly in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive . . . [citations]” (People v. Martinez (1999) 76 Cal.App.4th 489, 494 [ 90 Cal.Rptr.2d 517 ]).

Examination of the evidence in light of the three factors shows this is not one of those rare cases. As to the nature of the offense and offender, defendant, while admitting the crime was serious, argues the “non-forcible intercourse” occurred only once during a state of intoxication, suggesting the attack was not planned. He also repeats his argument that the pregnancy which led to the sentence is not the type of bodily injury that generally triggers an enhancement. He complains that he is being punished more harshly than a defendant who commits the same act where the victim does not become pregnant, who receives only an eight-year term, emphasizing the disparity between those two punishments. But he fails to acknowledge that the trauma of the pregnancy, as discussed above, caused the victim more serious consequences, a valid basis for the higher sentence. That a pregnancy might not be the usual type of bodily injury does not change the analysis; it was still bodily injury to the victim and she will be burdened with that for the remainder of her life. While his alleged remorse would be appropriate it does not override other facts.

And defendant’s reliance on his drunken state is weakened by his two prior convictions for driving under the influence, one of which resulted in injury. While the probation report might have reported there was a small risk he would commit another sexual offense, his documented problems with alcohol during which he commits crimes, suggest his alcohol abuse is more likely than not to recur. His “modest background” does not mitigate against that.

Nor does the comparison of his sentence to those for other crimes in California persuade us the sentence is cruel or unusual. In his sentencing brief defendant listed 24 examples of crimes with lesser sentences. But, as the Attorney General points out, the lower sentences for listed sex crimes such as rape (§ 261, subd. (a)(1)), forcible oral copulation of a minor under age 14 (§ 288a, subd. (c)(2)), and forcible child molestation (§ 288, subd. (b)(1)) would be increased to the life sentence meted out here if the defendant were also found to have committed great bodily injury. (§ 667.61.)

Finally, defendant’s comparison of his sentence to sentences in other jurisdictions is unavailing. Although he seems to suggest California’s sentences are harsher for these types of offenses than in most other jurisdictions, he cites statutes from only two states, Iowa and Idaho, and neither of these is for the crime committed here.

*1094 In sum, although the sentence is significant, so was the crime. It was not “so disproportionate to the crime for which it [was] inflicted that it shocks the conscience and offends fundament notions of human dignity” (In re Lynch (1972) 8 Cal.3d 410, 424 [ 105 Cal.Rptr. 217 , 503 P.2d 921 ], fn. omitted) and was not cruel or unusual.

DISPOSITION

The judgment is affirmed.

Bedsworth, J., concurred.