People v. Meneses , 123 Cal. Rptr. 3d 387 ( 2011 )

BEDS WORTH, J., Concurring.

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 address, a pregnancy will always result in physical consequences we should recognize as sufficient to qualify under the statute without having to put our hands in the wounds.

The defendant in this case argued insufficiency of the evidence. He argued there was no evidence of the baby’s size or weight, no evidence of the size of the victim, no showing of a difficult delivery or the necessity of unusual procedures. He contended her testimony that delivery of the baby “hurt a lot”—the testimony of a 13-year-old girl about the pain of childbirth—was inadequate. That is what we have been reduced to by our efforts to evaluate childbirth, abortion, and miscarriage as if they were indistinguishable from abrasions, lacerations, and broken bones.

And there is nothing unique about this case. The present state of the law will require 13 year olds to continue to take the stand and tearfully relive the end of their pregnancies. It will require defense attorneys to cross-examine on the point, and judges and juries to try to decide how much pain is enough and just how to go about trying to separate physical pain from emotional torment. It will make us all accessories after the fact.

It is hard for me to imagine how we can require the victim of a rape to come to court and try to persuade us the physical suffering of her childbirth or abortion was sufficient to meet the statutory standard. To my mind, there is no adequate explanation for the continued existence of a rule that requires a teenager to sit on the witness stand and convince us her miscarriage was painful enough to qualify as great bodily injury. But as long as we keep writing opinions that base a finding of great bodily injury upon the relative size of the victim vis-a-vis the baby she delivered, or testimony about how painful the miscarriage was, or how her 19th hour of labor felt, that is what we will have. We will perpetuate a heartless spectacle that is both unseemly and unnecessary.

Someone—be it the Legislature or our Supreme Court—has to address the unutterable cruelty of forcing the revictimization of these women. And the longer we delay, the more suffering we force upon them.