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The People v. Jasinto Duran Meneses

March 24, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JASINTO DURAN MENESES, DEFENDANT AND APPELLANT.



Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. (Super. Ct. No. 08WF1790)

The opinion of the court was delivered by: Rylaarsdam, Acting P. J.

CERTIFIED FOR PUBLICATION

OPINION

Affirmed.

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 cruel and unusual. We affirm.

FACTS

The 12-year-old victim lived in a two-bedroom apartment with her parents, and 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 open-mouthed on her mouth.

One night the victim, who was 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 the child was subsequently born.

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.) 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 ...


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