People v. HoltPeople v. Holt
Opinion
This isаn appeal by the People from an order of the trial court granting a limited new trial which in effect deleted a finding by the jury that defendant had caused bodily injury to the victim within the meaning of Penal Code section 1203.066, subdivision (a)(2), which finding would have rendered defendant ineligible for probation and subjected him to a mandatory state prison sеntence.
Facts
On October 29, 1982, Jamie R. was 13% years old. Tracy Holt, defendant’s sister, was a friend of Jamie’s. They attended the same school. October 29, 1982, was a Friday. On that date, Jamie went with Tracy, Tracy’s parents, and some other people to a Bluegrass Festival. They intended to stay at the festival all weekend.
On Saturday evening, around 8:30 p.m., defendant drove Jamie, his sister Tracy, and a boy named Mark to defendant’s house. After they had been there a short time, Jamie started to walk down the hallway to the bathroom. In the hallway, defendant bodily picked Jamie up and carried her into his bedroom. Jamie testified that, although she did not want to go with defendant, she did not do anything to indicate she objected.
Defendant set Jamie down on the bed. He took оff her sandals, her jeans and her underpants. Because Jamie was feeling the effects of the marijuana and alcohol, she just lay back with her eyes closed. She felt defendant’s bare chest on her chest, she felt “something heavy” pushing on her stomach, and she felt pain in her vaginal area. She felt this pain for about three to five minutes.
Then Tracy yelled out from the other room that someone was coming. Defendant got up and went to the door of the bedroom; Jamie saw that defendant had no clothes on. Jamie jumped up and ran into the bathroom. She was in such a hurry she put her jeans on inside out. She left her sandals and underwear in defendant’s bedroom.
It was defendant’s mother that had arrived at the house. She drove Jamie and Tracy back to the Bluegrass Festival. After she arrived back at the Bluegrass Festival, Jamie got into a fight with defendant’s girl friend, in the course of which defendant’s girl friend kicked Jamie between the legs with her cowboy boots, though “not real hard.”
Defendant’s mother drоve Jamie home. It was then about 10 p.m. Jamie took a shower and went to bed. Jamie’s mother noticed Jamie’s jeans were bloody on the outside of the crotch area. Jamie’s last menstrual period had been about two weeks before the incident with defendant. Before this incident, Jamie had never had sexual intercоurse with anyone and was a virgin.
Jamie’s mother took her to see Dr. Nanayakkara, a board-certified obstetrician and gynecologist, on November 5, 1982, six days after the incident took place. In his examination of Jamie, Dr. Nanayakkara found two linear lacerations to the hymen. The lacerations were each somewhat less than a
Two doctors testified on behalf of defendant. Dr. Dixon testified that the injury was minimal, and was not great bodily harm. He stated the laceratiоns were caused “by trauma,” which could have occurred in a number of ways. Dr. Hendrickson, a board-certified obstetrician and gynecologist, testified such lacerations could be caused by a kick to the crotch, or by other means. The lacerations would not constitute great bodily harm in his opinion. He did not recall his pаtients ever telling him it was painful for a virgin to have the hymen lacerated, although the hymen can be a sensitive area of the body. He testified some patients may have severe pain from a lacerated hymen, while others may not. He also testified that, because the hand and fingers have more pain-sensing nerves than the hymen, a simple laceration of the fingers would ordinarily produce more pain than the same type of cut of the hymen, but this would not necessarily be true if the hymen were torn.
The Motion for a New Trial
Defendant was convicted by a jury of a violation of Penal Code section 288, subdivision (b), a lewd and lascivious act with a child under the age of 14 by means of fоrce, violence, duress, menace, or threat of great bodily harm. 1 The jury returned a special finding defendant had committed the act by means of force, violence, duress, menace or threat of bodily harm within the meaning of Penal Code section 1203.066, subdivision (a)(1). It also returned special finding that defendant caused bodily injury to thе victim within the meaning of Penal Code section 1203.066, subdivision (a)(2). 2
The trial court granted the motion for a new trial, erroneously stated to be pursuant to Penal Code section 1186.6. In the course of argument on the motion, the trial court noted that “if it wasn’t charged under (b), if it were just charged as a 288(a), then he would be eligible for probation,” and also that the court “d[id]n’t like minimum sentences, I don’t think this defendant ought to be sentenced to State’s Prison .... It is just not a State Prison offense.” The trial court then went on to grant the motion for new trial “on the ground that I don’t think that the injury to the hymen in this case is the type of force that the Legislaturе intended, [f] . . . I don’t feel that a ruptured hymen, with the slight injuries we had here, is the type of violence that the Legislature intended when they put (b) in 288.”
The People moved for reconsideration of the ruling, and at the hearing on the motion, the court clarified its earlier ruling, stating it had intended under section 1181, subdivision 6, to grant a limited new trial, finding the defendant guilty of thе lesser offense of 288, subdivision (a), without necessity of an actual retrial. The trial court found there was no evidence defendant had used force, violence, duress, menace, or threat of any bodily harm in the commission of the offense. The evidence showed that defendant picked up Jamie and carried her uncоmplainingly into the bedroom where he undressed her without objection or resistance of any kind. The trial court stated it did not consider that conduct to be what the Legislature intended to require for a violation of section 288, subdivision (b).
Discussion
No issue is raised as to the propriety of the trial court’s granting the motion for new trial by modifying the judgment and finding defendant guilty of the lesser included offense of section 288, subdivision (a). Having found no evidentiary support for the finding the crime was committed by means of force, violеnce, duress, menace or threat of harm, the court was authorized to modify the verdict by striking the special finding under Penal Code section 1203.066, subdivision (a)(1). (
Penal Code section 1203.066, subdivision (a)(2), provides probation shall not be granted to: “A person who caused
bodily injury
on the child victim in committing a violation of Section 288.” (Italics added.) This standard of “bodily injury” is in sharp contrast to othеr statutes prescribing added penalties where the defendant has caused
great
bodily injury or
great
bodily harm to the victim. (See, e.g.,
In
People
v.
Caudillo, supra,
the victim was forcibly raped, sodomized, and orally copulated. The Supreme Court held there was no showing of “substantial or significant injury ‘in addition to that which must be present
If, however, the term “great bodily injury” means “a substantial or significant physical injury,” then the tеrm “bodily injury” must necessarily include a physical injury which is not necessarily unusually substantial or significant. Otherwise there would be no distinction between “great bodily injury” and plain “bodily injury.”
The Caudillo case supports this view. The Supreme Court, noting the cuts the victim suffered were “superficial,” nevertheless conceded such injuries as the victim suffered as a result of the rape itself could constitute “bodily harm.” (See id., at p. 586.)
The
Williams
case is also instructive. In that case the victim, who was forcibly raped, told the defendant she was a virgin, and complained of pain while the defendant raped her three times. She suffered a torn hymen, and blood accumulated in her vagina. The injuries in that case were charаcterized by the court as “significantly and substantially greater than that ordinarily experienced by a victim of forcible rape” and were found sufficient to support a finding of
great
bodily injury.
(People
v.
Williams, supra,
In the instant case, the act of intercourse was painful to the victim. Six days after the incident, the treating doctor found her hymen was lacerated and therе were contusions, consistent with bleeding, around the lacerations. The victim bled onto her clothing. The injuries this victim suffered were not different in kind from those suffered by the victim in Williams.
The physicians who testified on behalf of defendant characterized the injury to the victim as trivial and transitory, but no witness testified she was not injured. And we reject defense counsel’s misconceived and dehumanizing assertion on appeal that the victim’s ruptured hymen is not an injury, but is more akin to a design defect of the female body. What is specified by the statute is a “bodily injury” and the injury suffered by the victim in this case was a “bodily injury.”
The evidence was legally sufficient to sustain the jury finding the defendant caused bodily injury to the victim. Therе was therefore no basis for granting a new trial on that issue, nor was the court authorized to strike it
Disposition
Having so concluded, the question becomes what disposition is to be made of the case. Being aware of the trial court’s view that this was not an apрropriate case for imposition of a state prison sentence and the probation department’s report in which it was opined that if he were not statutorily ineligible because of the “bodily injury” finding, defendant should surely be placed on probation and the probation officer’s conclusion that the victim may have been an initiator, willing participant, aggressor or provoker of the incident, we requested the parties to submit supplemental briefs addressed to several questions, including whether imposition of even the three-year lower base prison term prescribed for a violation of Penal Code, section 288, subdivision (a), would have constituted cruel and unusual punishment under the particular circumstances of this case. (See
People
v.
Dillon
(1983)
The parties have complied with our request, but in the final analysis we have concluded we need not resolve the specific question asked by us. At the second oral argument of this appeal, granted so that the supplemеntally briefed issues might be argued, we were authoritatively advised that pending this appeal defendant completed service of the one-year term in county jail imposed as a condition of probation; is now returned to the community and his family, which the record indicates includes a child; is gainfully reemployed; and is coоperating and progressing satisfactorily on probation. If defendant were now sentenced to state prison for the lower base term of three years, he would be subject to only about eight to nine months of actual confinement after the application of credits, and in our view it would constitute cruel and unusual punishmеnt to subject him to a second deprivation of liberty and to subject him and his family to the trauma of a second separation from the general population with attendant probable loss of employment and family upheaval. (
Accordingly, the order granting the new trial is reversed only insofar as it purported to eliminate the special finding that defendant caused bodily
Morris, P. J., and McDaniel, J., concurred.
Notes
Penal Code section 288 reads in pertinent part as follows: “(a) Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or membеr thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six or eight years. [1] (b) Any person who commits an act described in subdivision (a) by use of fоrce, violence, duress, menace, or threat of great bodily harm, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six or eight years.”
Penal Code
Penal Code