Mariscal

*406 Prosecutors filed an information charging defendant and appellant, Omar Mariscal, with five counts of raping his daughter (Pen.Code, § 261, subd. (a)(2), counts 1-5) when she was 15 years old and three counts of committing lewd and lascivious conduct against her when she was 10 years old (§ 288, subd. (a), 1 counts 6-8). The last paragraph of the information, which appears under the heading and substantive offense allegation for the count 8 lewd conduct charge, alleged "in the commission of the above offense, the said defendant, OMAR MARISCAL, personally inflicted great bodily injury upon a person ... within the meaning of Penal Code section 667.61, subdivision (d)(6)."

At the preliminary hearing and at trial, the prosecution presented testimony that the victim had become pregnant and given birth to a child as a result of one of the rape offenses. At trial, the jury heard evidence the victim suffered extreme pain while giving birth. At the close of evidence, the trial court instructed the jury that if it found defendant guilty of one of the rape charges, it must decide whether it is also true defendant personally inflicted great bodily injury on the victim in committing the…