THE PEOPLE, Plaintiff and Respondent, v. GARY W. CROSS, Defendant and Appellant, 45 Cal. 4th 58

Opinion KENNARD, J. Anyone who in the commission of a felony “personally inflicts great bodily injury . . . shall be punished by an additional and consecutive term of imprisonment.” (Pen. Code, § 12022.7, subd. (a), italics added.) Under the “One Strike” law (§ 667.61), when a defendant is convicted of a specified sex offense and the jury finds true a

section 12022.7 allegation, the trial court must sentence the defendant to a prison term of 15 years to life. Here, defendant was so sentenced based on the jury’s finding that he had inflicted great bodily injury on his 13-year-old stepdaughter, who after defendant had sexual intercourse with her became pregnant and underwent an abortion that defendant encouraged her to have. First, can a pregnancy without medical complications that results from unlawful but nonforcible sexual conduct with a minor support a finding of great bodily injury?

It can, and here evidence of the pregnancy was sufficient to support such a finding. Second, did the trial court err by not instructing on the meaning of personal infliction? No. Third, was it error for the trial court to instruct the jury that an abortion may constitute great bodily injury, a legally correct statement that did not apply to the facts here, because defendant did not personally perform the surgical abortion? Yes, giving the instruction was erroneous; but it did not mislead the jury. I In July 1995, defendant, who is not the biological father of victim K., married K.’s mother.

During the summer of 2002, then 13-year-old K. took care of her younger sister and brother while their parents were away at work. The mother’s evening shift began at 9:00 or 10:00 p.m. The shifts of defendant, then 39 years old, varied, and he was often home at night. One night in early June 2002, after K. and her siblings were asleep in their bedroom, defendant awakened K. and told her to follow him. In the master bedroom, he undressed her and had sexual intercourse with her. He then threatened that if she told her mother, she would be taken away by the police and not allowed to see her family.

Defendant continued to have intercourse with K. regularly while her mother was at work. Once, defendant held K. by the head and placed his penis in her mouth. Although K. occasionally objected to these sex acts, she was reluctant to do so for fear defendant would not allow her to go out with her friends or would take away her cell phone. In August 2002, K. told defendant she might be pregnant. On September 25, her suspicion was confirmed by a positive pregnancy test performed at a local clinic to which defendant had taken her.

In December 2002, after K.’s mother commented on K.’s weight gain, defendant took the girl back to the clinic for an abortion. The advanced stage of the pregnancy, five and a half months, required a surgical procedure that could not be performed at the clinic, which then referred K. to San Francisco General Hospital. The abortion required certain medical procedures at the hospital on two successive days. Each day, without her mother’s knowledge, defendant kept K. out of school to take her to the hospital.

On December 17, 2002, their first visit to the hospital, K., at defendant’s direction, falsely filled out the admission forms, giving her age as 14 years, using defendant’s last name as her own, and describing him as her father. An ultrasound image of the fetal head indicated that the fetus was 22 weeks two days old—near the end of the second trimester of pregnancy. Such a late-stage pregnancy required a surgical abortion. That day, hospital staff inserted dilators into K.’s cervix. The next day, defendant brought K. back to the hospital.

K. was given anesthesia and, after additional dilation of her cervix, the fetus was removed from her uterus. Measurement of the fetal foot confirmed a 22-week pregnancy. The abortion lasted 13.1 minutes, resulted in no medical complications, and the hospital released K. to defendant. DNA analyses introduced at trial of tissue samples from the fetus, from K., and from defendant indicated a 99.99 percent probability that defendant had fathered the fetus. After the abortion, defendant resumed sexual activity with K. until July 9, 2003, when her mother came across documents relating to the abortion.

The next day, K. reported her sexual molestation to the police, who arrested defendant.

Defendant was charged with, in count 1, the felony of committing a lewd and lascivious act on a child under the age of 14 by force, violence, duress, menace, or fear (§ 288, subd. (b)(1)), with an allegation that he inflicted great bodily injury on the victim (§§ 12022.7, 12022.8); in count 2, the felony of aggravated sexual assault by oral copulation of a child under the age of 14 and 10 or more years younger than defendant (§ 269, former subd. (a)(4) as enacted by Stats. 1994, ch. 48X, p. 8761); and in counts 3 and 4, two charges of felony aggravated sexual assault by rape of a child under the age of 14 and 10 or more years younger than defendant (§ 269, former subd. (a)(2) as enacted by Stats. 1994, ch. 48X, p. 8761).

In closing argument at trial, the prosecutor told the jury that the charge of lewd and lascivious conduct with a child alleged in count 1 was based on the act of sexual intercourse that resulted in K.’s pregnancy, and that the jury could consider either the pregnancy or the abortion, or both, as a basis for the allegation of personal infliction of great bodily injury. Arguing that “[a]ny pregnancy can count” so long as “you find it’s substantial or significant,” the prosecutor urged the jurors to ask themselves if “carrying a baby for 22 weeks ... in a 13-year-old body” was significant or substantial.

Comparing the invasiveness of the abortion to that of a heart transplant, the prosecutor argued the abortion “was substantial” and “significant,” because it was an operation requiring anesthesia and drugs to control bleeding.

Turning to the statutory requirement of “personally” inflicting great bodily injury, the prosecutor argued that defendant “only needs to do the act of getting her pregnant or having an abortion.” After being instructed that the pregnancy or the abortion could be great bodily injury, the jury found defendant guilty of committing a lewd act on a child under the age of 14 (§ 288, subd. (a)), a lesser offense of the forcible crime alleged in count 1, and it found that defendant personally inflicted great bodily harm in committing the offense (§ 12022.7).

The jury also found defendant guilty of oral copulation with a person under 14 years of age and more than 10 years younger than himself (§ 288a, subd. (c)(1)), a lesser offense of the forcible oral copulation offense (§ 269, former subd. (a)(4)) that was charged in count 2. Defendant was found not guilty of the remaining charges. For the nonforcible oral copulation (§ 288a, subd. (c)(1)), the trial court sentenced defendant to a determinate prison term of six years.

Under the One Strike law, for the lewd act offense with the great bodily injury finding, the trial court sentenced defendant to an indeterminate prison term of 15 years to life to be served consecutively to the determinate six-year term. (§ 667.61, subds. (b), (c)(4), (e)(3).) Defendant appealed. The Court of Appeal affirmed the trial court’s judgment. We granted defendant’s petition for review. n Defendant argues that a pregnancy without medical complications that results from unlawful but nonforcible intercourse, as occurred here, can never support a finding of great bodily injury. We disagree.

Great bodily injury “means a significant or substantial physical injury.” (§ 12022.7, subd. (f); see § 12022.8; People v. Escobar (1992) 3 Cal.4th 740, 749-750 [12 Cal.Rptr.2d 586, 837 P.2d 1100] (Escobar); see also People v.

Miller (1977) 18 Cal.3d 873, 883 [135 Cal.Rptr. 654, 558 P.2d 552] [construing great bodily injury in former §§ 213 and 461 to mean “significant or substantial bodily injury or damage as distinguished from trivial or insignificant injury or moderate harm”].) This court has long held that determining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury. (Escobar, supra, 3 Cal.4th at p. 750; People v.

Wolcott (1983) 34 Cal.3d 92, 109 [192 Cal.Rptr. 748, 665 P.2d 520].) “ ‘A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.’ ” (Escobar, supra, 3 Cal.4th at p. 752, quoting People v. Jaramillo (1979) 98 Cal.App.3d 830, 836 [159 Cal.Rptr. 771]; People v. Clay (1984) 153 Cal.App.3d 433, 460 [200 Cal.Rptr. 269].) Where to draw that line is for the jury to decide. Defendant here maintains that only a pregnancy resulting from forcible rape can result in great bodily injury.

Pointing to the jury’s verdict of not guilty on the charge of forcible rape, defendant contends that neither Escobar, supra, 3 Cal.4th 740, nor People v. Sargent (1978) 86 Cal.App.3d 148 [150 Cal.Rptr. 113] (Sargent), each involving forcible rape, is authority for the proposition that when, as here, a victim of unlawful but nonforcible sexual conduct becomes pregnant she has suffered great bodily injury. In Escobar, this court described great bodily injury as “substantial injury beyond that inherent in the offense.” (Escobar, supra, 3 Cal.4th at p. 746; see also People v.

Modiri (2006) 39 Cal.4th 481, 492 [46 Cal.Rptr.3d 762, 139 P.3d 136]; People v.

Jefferson (1999) 21 Cal.4th 86, 101 [86 Cal.Rptr.2d 893, 980 P.2d 441].) But Escobar went on to observe that to be significant or substantial the injury need not be so grave as to cause the victim “ ‘permanent,’ ‘prolonged,’ or ‘protracted’ ” bodily damage. (Escobar, supra, at p. 750.) In Escobar, the victim’s repeated efforts to escape were prevented by her captor, who struck her, dragged her by the hair over pavement, pushed his finger into her eye, and otherwise physically abused and restrained her. (Escobar, supra, 3 Cal.4th at p. 744.) We concluded that evidence of the “extensive braises and abrasions over the victim’s legs, knees and elbows, injury to her neck and soreness in her vaginal area of such severity that it significantly impaired her ability to walk” provided a sufficient “quantum of evidence” to support the jury’s finding of great bodily injury. (Id. at p. 750; see also People v.

Le (2006) 137 Cal.App.4th 54, 59-60 [39 Cal.Rptr.3d 741] [soft-tissue gunshot wound that prevented the victim from walking unaided for seven weeks qualified as great bodily injury under § 12022.53, subd. (d)].) In Escobar, the injuries of the rape victim reflected “a degree of brutality and violence substantially beyond that necessarily present” in a forcible rape. (Escobar, supra, at p. 750.) In Sargent, supra, 86 Cal.App.3d 148, a neighbor broke into the home of a 17-year-old girl, forced her at knifepoint to orally copulate him, and forcibly raped her, causing her to become pregnant and to undergo an abortion. (Id. at p. 150.) Citing a dissent from a Court of Appeal decision involving a forcible rape (People v.

McIlvain (1942) 55 Cal.App.2d 322, 334 [130 P.2d 131] (dis. opn. of Schauer, P.

J.)), the Court of Appeal in Sargent stated that “[pregnancy resulting from rape is great bodily injury.” (Sargent, supra, at p. 151, italics added.) Pointing to the “[mjajor physical changes” that take place in a woman’s body during pregnancy, Sargent observed that “[pjregnancy cannot be termed a trivial, insignificant matter” and is “all the more devastating when imposed on a woman by forcible rape.” (Ibid.) It further stated that “[a]n abortion by whatever method used constitutes a severe intrusion into a woman’s body.” (Id. at p. 152.) The Court of Appeal’s holding in Sargent was confined to the circumstances presented: “We merely find that the facts in this case, i.e., a pregnancy followed by an abortion, clearly support a finding of great bodily injury.” (Sargent, supra, 86 Cal.App.3d at p. 152, italics added.) The egregious facts in Sargent involved the forcible rape of a virgin who pleaded in vain with her attacker not to rape her and who suffered more than minor physical injuries, including vaginal “excoriation and inflammation” and scratch wounds to her neck. (Id. at p. 150.) Those injuries, coupled with the pregnancy and abortion, provided evidence of physical injury that was “significantly and substantially beyond that necessarily present” in the commission of a forcible rape. (Id. at p. 152.) Citing Sargent, supra, 86 Cal.App.3d 148, the Court of Appeal in People v.

Johnson (1986) 181 Cal.App.3d 1137 [225 Cal.Rptr. 251] reasoned that if, as in Sargent, a woman who became pregnant after a forcible rape can be found to have suffered great bodily injury, then surely, as occurred in Johnson, a forcible rape victim infected by her attacker with herpes, an incurable venereal disease, can be found to have sustained great bodily injury. (Id. at pp. 1140-1141.) Escobar, Sargent, and Johnson each acknowledges that a great bodily injury determination by the jury rests on the facts as presented at trial in the context of the particular crime and the particular injuries suffered by the victim. (Escobar, supra, 3 Cal.4th at p. 750; Sargent, supra, 86 Cal.App.3d at p. 152; People v.

Johnson, supra, 181 Cal.App.3d at p. 1140.) None holds that medical complications or the use of force is required to support a finding of great bodily injury. And

section 12022.7 makes no mention of any such limitation. Accordingly, we reject the contention of defendant here that a pregnancy without medical complications that results from nonforcible but unlawful intercourse can never support a finding of great bodily injury. Proof that a victim’s bodily injury is “great”—that is, significant or substantial within the meaning of

section 12022.7—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. (People v. Harvey (1992) 7 Cal.App.4th 823, 827-828 [9 Cal.Rptr.2d 17] [second degree bums requiring treatment for “at least a month”]; People v. Beltran (1989) 210 Cal.App.3d 1295, 1308 [258 Cal.Rptr. 884] [five surgeries, including a bone graft]; People v.

Jaramillo, supra, 98 Cal.App.3d at p. 836 [contusions, swelling, “severe discoloration,” and look of anguish on child’s face coupled with pain from casual touching of shoulder].) Thus, when victims of unlawful sexual conduct experience physical injury and accompanying pain beyond that “ordinarily experienced” by victims of like crimes (People v. Williams (1981) 115 Cal.App.3d 446, 454 [171 Cal.Rptr. 401]), such additional, “gratuitous injury” will support a finding of great bodily injury (Escobar, supra, 3 Cal.4th at p. 746).

Here, with respect to K.’s pregnancy, the prosecutor urged the jurors to rely on their “common experiences” to find that she had suffered great bodily injury by “carrying a baby for 22 weeks or more than 22 weeks ... in a 13-year-old body.” There was also testimony that K., who had never given birth before, was carrying a fetus “the size of two-and-a-half softballs.” We need not decide in this case whether every pregnancy resulting from unlawful sexual conduct, forcible or otherwise, will invariably support a factual determination that the victim has suffered a significant or substantial injury, within the language of

section 12022.7. But we conclude that here, based solely on evidence of the pregnancy, the jury could reasonably have found that 13-year-old K. suffered a significant or substantial physical injury. Ill At the prosecution’s request, over defendant’s objection, the trial court modified a standard jury instruction on great bodily injury (CALJIC No. 17.20) by adding these two sentences: “A pregnancy or an abortion may constitute great bodily injury.

You are the exclusive judges whether the defendant personally inflicted great bodily injury in this case.” (Italics added.) In challenging the modified jury instruction, defendant does not contend that an abortion can never constitute great bodily injury; thus, he does not assert that the instruction misstated the law. Instead, he argues that the first added sentence was improper because he did not personally inflict the surgical abortion, and that therefore the abortion could not support a great bodily injury finding under

section 12022.7, which requires “personally” inflicting the injury. Defendant is correct that there was no evidence he personally performed the abortion. For that reason the modified instruction, insofar as it stated that an abortion can be great bodily injury, was “an ‘abstract’ instruction, i.e., ‘one which is correct in law but irrelevant.’ ” (People v. Rowland (1992) 4 Cal.4th 238, 282 [14 Cal.Rptr.2d 377, 841 P.2d 897]; see also People v.

Guiton (1993) 4 Cal.4th 1116, 1129 [17 Cal.Rptr.2d 365, 847 P.2d 45] [“It is error to give an instmction which, while correctly stating a principle of law, has no application to the facts of the case.”].) Giving an instmction that is correct as to the law but irrelevant or inapplicable is error. (People v.

Rowland, supra, at p. 282.) Nonetheless, giving an irrelevant or inapplicable instmction is generally “ ‘only a technical error which does not constitute ground for reversal.’ ” (Ibid.) Here, in addition to the modified great bodily injury instmction, the jury was given this standard instmction (CALJIC No. 17.31): “The purpose of the court’s instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some of the instructions apply will depend upon what you find the facts to be.

Disregard any instruction which applies to facts determined by you not to exist.’’'’ (Italics added.) Viewing the instructions as a whole, as a reviewing court must (People v. Burgener (1986) 41 Cal.3d 505, 538 [224 Cal.Rptr. 112, 714 P.2d 1251]; see People v. Lewis (2001) 25 Cal.4th 610, 649 [106 Cal.Rptr.2d 629, 22 P.3d 392]), we conclude the jury in this case would have understood that its duty was to determine not only whether great bodily injury occurred but also whether, as required by

section 12022.7, subdivision (a), defendant “personally” inflicted it. The evidence shows that on two successive days defendant kept his 13-year-old stepdaughter out of school to drive her to the hospital where he told her to use his last name and to identify him as her father. The modified instmction did not in any way suggest to the jury that those acts of facilitation would constitute personal infliction of the abortion.

Defendant nonetheless contends that because the trial court did not explain the meaning of the statutory phrase “personally inflicts,” jurors might have mistakenly concluded that his acts of facilitating the abortion satisfied the statutory requirement of personally inflicting the injury. A defendant challenging an instmction as being subject to erroneous

interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. (Boyde v. California (1990) 494 U.S. 370, 380 [108 L.Ed.2d 316, 110 S.Ct. 1190]; People v. Clair (1992) 2 Cal.4th 629, 663 [7 Cal.Rptr.2d 564, 828 P.2d 705].) “ ‘A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning.’ [Citations.]” (People v.

Hudson (2006) 38 Cal.4th 1002, 1012 [44 Cal.Rptr.3d 632, 136 P.3d 168].) Here, the meaning of the statutory requirement that the defendant personally inflict the injury does not differ from its nonlegal meaning. Commonly understood, the phrase “personally inflicts” means that someone “in person” (Webster’s 7th New Collegiate Dict. (1970) p. 630), that is, directly and not through an intermediary, “cause[s] something (damaging or painful) to be endured” (id. at p. 433). Applied to this case, that definition does not encompass defendant’s facilitative acts in connection with the abortion.

Maintaining to the contrary, defendant points to the prosecutor’s argument to the jury that defendant “only needs to do the act of getting her pregnant or having an abortion.” (Italics added.) Defendant argues that even though the abortion was done by medical personnel at a hospital, and thus did not satisfy the personal infliction requirement of

section 12022.7, subdivision (a), the prosecutor’s argument to the jury could have misled it into concluding that by facilitating the abortion defendant personally inflicted the harm. We disagree. The prosecutor’s statement at issue was immediately preceded by these comments: “There is a requirement he personally inflict the injury, and that’s easy in this case; yes, he personally inflicted, he has sexual intercourse with her and he testified to that. He said I remember the time I got her pregnant. Did he have to specifically intend that she get pregnant at that time?

No.” It was then that the prosecutor said: “The judge will instruct you he only needs to do the act of her getting pregnant or having an abortion; he doesn’t have to specifically intend when having sex with her she is going to get pregnant or have an abortion.” From these comments, the jury would have understood the prosecutor to be arguing (1) that defendant personally inflicted the pregnancy by having sexual intercourse with the victim, and (2) that there was no requirement that defendant specifically intended the victim to become pregnant or have an abortion.

On their face, or in the abstract, these statements by the prosecutor were correct, including the comment that great bodily injury can be established by either a pregnancy or an abortion, a comment the trial court incorporated in a sentence it added to the standard instruction on great bodily injury. Although legally correct in theory, the latter statement, as embodied in the court’s instruction to the jury, was factually inapplicable because defendant did not personally perform the surgical abortion.

The error, however, would not have misled a rational jury into concluding that by facilitating the abortion (by, among other things, taking his 13-year-old stepdaughter to hospital appointments on two successive days), defendant personally performed the abortion; therefore, the error did not violate defendant’s state or federal constitutional rights. (People v. Clair, supra, 2 Cal.4th at p. 663.) Disposition The judgment of the Court of Appeal is affirmed. Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred. All further statutory references are to the Penal Code.

Section 12022.7, subdivision (a), imposes a sentence enhancement of three years for great bodily injury caused in the commission of felonies in general, but

section 12022.8 imposes a sentence enhancement of five years for great bodily injury inflicted in the commission of enumerated sexual felonies. (Several of the crimes with which defendant was charged are listed in § 12022.8, but the lesser included offenses of which he was actually convicted are not specified in that statute.)

Section 12022.8 adopts by reference the definition of great bodily injury contained in

section 12022.7, subdivision (f), but it does not use the latter provision’s adjective “personally,” instead speaking of “[a]ny person who inflicts great bodily injury.” (§ 12022.8.) Nonetheless,

section 12022.8 has been construed to require personal infliction. (People v. Ramirez (1987) 189 Cal.App.3d 603, 627 [236 Cal.Rptr. 404].) To the extent defendant argues that great bodily injury invariably requires the application of physical force to the victim in order to cause great bodily injury, we reject that view. “A plain reading of Penal Code

section 12022.7 indicates the Legislature intended it to be applied broadly” (People v. Sainz (1999) 74 Cal.App.4th 565, 574 [88 Cal.Rptr.2d 203]), and therefore the statute itself sets out the only criminal offenses—murder, manslaughter, arson, and unlawfully causing a fire, each of which incorporates enhanced sentencing for such injury— that are not subject to a finding of great bodily injury (§ 12022.7, subd. (g)).