Friday, August 29, 2008

Only in California - Pregnancy is Great Bodily Injury

So California has a rule which says that if you commit a crime against someone and cause them great bodily injury, then you get an enhancement. The law says that it has to be a significant injury, and has to be intentionally caused. Here's the rub, while it only adds 3 years to a sentence in most circumstances, in the last 14 years, it has also made any crime a "strike" (you all have heard of 3 strikes, right?). It also forces people to serve 85% of their time if the allegation is found true.

So, as you can probably guess, prosecutors love this enhancement. And when they love something, they misuse it. Now, let's think of the way in which they can misuse this one: it requires GREAT bodily injury, so perhaps they could stretch the meaning of great so that every minor injury now constitutes great bodily injury; and it requires that the injury be caused intentionally, so perhaps they could try to extend accidents to "intentionally.

If that sounds absurd, or insidious, or something else, you are right, it is. It's also what's happened.

Just about every injury, no matter how minor, when blood is drawn, is now charged as great bodily injury. Get into a fight with someone and give them a bloody nose? Great bodily injury. Scratch someone and cut them? Great bodily injury. It used to be that the injury had to be significant. Now, no matter how minor it is, it is charged. And, since it is almost always a factual determination, no judge will ever dismiss a great bodily injury allegation based on insufficient evidence, so everyone charged with this must go to trial for it, no matter how minor a case it really is. Or, the prosecution can squeeze a plea out of someone in a bullshit case out of fear of going to trial. Very effective.

The other aspect, that it must be willfully and intentionally caused, has also been under assault. The best example of that is in the area of DUI accidents. Now, I'm no big fan of drunk drivers, but if you get into an accident, someone is likely to get injured. Can anyone say that this is an intentional causing of great bodily injury like stabbing someone? Do we really call these people violent offenders and give them strikes? And think about it, more than one person is likely to be injured in this situation, so while someone who shoots at a person may come out with only one strike, a person who gets into a car accident while drunk and where no one is significantly hurt can walk out with multiple strikes (meaning he gets a life sentence if he picks up a forgery or drug possession in the future) and a very long prison sentence. Again, I'm not saying I have some great love for drunk drivers, but let's call a spade a spade - unless there's some evidence they do it serially in some manner, it's hardly violent (potentially dangerous, sure, but violent?).

Now the California Supreme Court has just validated the latest absurdity - pregnancy is great bodily injury. I did realize that I caused great bodily injury to my wife when I got her pregnant for our two kids, but evidently I'm a violent felon worth of 25 to life. In the case at bar, some dude raped his step-daughter (not an action I advocate, by the way, I'm even willing to go out on a limb and call it evil), and got her pregnant. Now, if he is convicted of this, he faces 16 years in prison (and he has to do 85%), but if he causes great bodily injury (of course, this was originally intended to mean something like pistol whipping the person, or stabbing them, or beating them to a pulp) in a case like this, it turns into a life case. Now, again, I have no sympathy for those who bang their 13 year old stepdaughters, and if he really did cause her great bodily injury, and this is the law, the fine, give him life.

But, let's face it, these prosecutors basically said "I want to give this guy life even though the law doesn't call for it, so I'm going to make up some bullshit to get him a life sentence." And the Cal Supreme Court went along with it - absolutely incredible. Once again, it just blows me away the extent to which California Courts will go along with whatever absurdity some idiotic prosecutor comes up with.

The funny thing is if this was a civil lawsuit, where someone was claiming great bodily injury for becoming pregnant, the lawsuit would be thrown out as frivolous (especially if it was against some big business or corporate interest). But, if the only sanction is not money, but someone merely spending the rest of their life in prison, then whatever, let's suspend critical thinking.


Dennis Wilkins said...

I'll go you one better, Dude (if I may be so bold as to call you 'Dude'). PC 261.5 is the unlawful sexual intercourse with a minor statute. It is a wobbler. You can have a guy who is 20 have sex with a 17 year old (has to be at least 3 years age difference, or else it's a misdemeanor). They can even get married later. But the DA in SB can (and does) prosecute regardless. If there was a pregnancy as a result, then this adds 3 years prison, makes it into a strike, and makes probation extremely difficult.

Worser (sic - see Keith Olberman) still: 17+ 1/2 year old juvenile has sex with and impregnates his 14 year old girlfriend. He can be prosecuted, AS A MINOR NO LESS, and convicted of 261.5 w/ GBI enhancement, thus resulting in a strike if he gets sent to CYA (or whatever it's called now). Thus, he can have a strike for having sex with his girlfriend and getting her pregnant, all without having a jury trial.

The real problem for most people reading these posts is that they seem to think that "calmer heads will prevail" and "the DA won't charge something like that." But most people don't understand, like your post about drus and the stupid prosecutions, is that the DA OFTEN GOES AHEAD WITH THE UNFAIR AND CRUEL PROSECUTIONS, leaving it to some courageous judge or awesome jury to stop the injustice, both of which are in short supply these days. People do not understand that yes, there really, truly, yes-indeedy-do, are people in California prisons right now doing 25 to life for using meth. Or selling it, or whatever.

Thanks for the post, Dude.

Dennis Wilkins
The Guest PD Blogger

Anonymous said...

Do either of you libs have a daughter?

Dennis Wilkins said...

As a matter of fact, con (I guess I'll call you that as you call me lib), I do. I gather from your statement that you don't agree, and I'll expand on (what I think) your objection is.

If either myself or PD Dude had a daughter, we wouldn't say what we said. I guess, because we wouldn't want harm to come to our daughter. Fair enough. But your objection comes not because you so want to protect little girls, as from the fact that you don't understand the law in California.

You see, any sex with an underage girl in California is a crime, the vast majority are felonies. Consent is not a defense in most of these crimes because the child is underage. Molestation, depending on what jurisdiction the prosecution takes place in and how many counts and/or victims are invoilved, will often result in multi-decade sentencing. Rape is a very serious and terrible crime that usually ends up in long sentences. If a weapon is used in concert with the rape, it becomes a life sentence. If a gun, a really LONG life sentence.

The overlapping nature of enhancements in California because of the various initiatives and the piecemeal enactments of various "tough on crime" legislation leads to foolish outcomes, like that in the PC 12022.7 GBI enhancement. You see, in the old days (before 1996, I think?) the 12022.7 GBI (great bodily injury) enhancement required the defendant to specifically intend to commit great bodily injury. This added 3 years to the crime, and the outcome became a strike. No big deal in the overall scheme of things, because personal infliction of GBI is a strike anyway.

But then the legislature changed 12022.7 to no longer require specific intent. You see, juries were getting hung up on the idea that the person had to actually WANT to cause GBI and that the DA had to PROVE that element. Well, the DAs didn't like that, so they called the legislature and changed the law. Or something like that. Point is, that specific intent "loophole" disappeared, and now ANY infliction of GBI, whether personal or not, now became subject to the enhancement.

What does this mean? Well, in older cases when a boy got a girl pregnant during underage sex, the GBI enhancement could not apply. This never applied to actaul rape - the intent of the rape was sufficient for GBI to be proven. If a defendant wanted to rape victim, it was presumed that he wanted to impregnate victim. But the underage (and otherwise consensual, except for the fact that she cannot consent by law) preganancy was never treated as GBI UNLESS the DA could prove that the pregnancy was deliberate, something that was usually very difficult to prove.

Now, con, let me open your eyes just a little. You see, in California the age of consent is 18. In a growing number of states, like New York, the age of consent is 16. In 37 states (and D.C.), the age of consent is less than 18. South Carolina's is 14. Imagine, if you will, that boyfriend and girlfriend from, oh, let's say Utah, a very conservative state with an age of conent of 16, move to California and have sex. In California that's a crime (unless they are married). But, in addition, if the guy is three or more years older, it's a felony. And if he gets her preganant, it's a strike. Which means prison, unless the kind-hearted judge decides to strike the strike.

Absolutely real hypo: conservative Republican Bill, 19 years old, and his conservative Republican girlfriend Hillary, 16 years old, are both having a monogomous sexual relationship in Utah. They are deeply in love. But they are evangelical Christians, and so they want to move away from the terrible grips of the Mormon church and move to California to stop those dumb liberals from ruining that beautiful state. The move to California forthwith. The continue their sexual relationship in beautiful San Bernardino County, where they are close to other Conservative Republicans. Times are tough, however, and when the baby comes, they cannot pay for the birth, so Medical gets involved. Bill is on the birth certificate as the proud father.

Then along comes a mean 'ole DA who prosecutes Bill for PC 261.5 as a felony. Bill and Hillary immediately get married, but this is not a defense. The DA won't dismiss and the court won't reduce it to a misdemeanor. The DA tries to force Bill to plead guilty because he knows he is morally upright and did nothing wrong, and he hates his liberal public defender who is, in his opinion, a DFH (dirty fucking hippy). Bill goes to trial.

And the jury convicts. Now conservative Republican Bill has a strike on his record and, according to the sentencing laws, MUST GO TO PRISON AT SENTENCING UNLESS THE JUDGE FINDS UNUSUAL CIRCUMSTANCES. Angry old judge is facing re-election this year, so he throws the book at poor old Bill and sends him to the joint for 6 years (three years for the PC 261.5 + 3 years for the PC 12022.7).

So, con, hopefully you see now that I don't want my daughter to grow up in a place with irrational, unfair and cruel sentencing laws. Because I love her that much.

Dennis Wilkins
The Guest PD Blogger

Anonymous said...

I'm a DA in s small in California. I can't wait to charge someone with GBI for a pregnancy. Should get the death penalty, but that's why I'm doing god's work and not a PD.

Dennis Wilkins said...

Thanks for that classy comment, "Anonymous." And I'm sure that Jesus is going make sure that you get extra attention for your compassion and zeal in helping your brothers and sisters.

You heard it here first, folks: A District Attorney in a small county can't wait to give someone the death penalty for getting an under-18 girl pregnant, because, in his/her own words: "[he's/she's] doing God's work."

You're a real piece work, you know? Like I'm not doing God's work, and you are? I'm defending those who are outcasts of society and you're advocating for their death for the most foolish and self-centered of reasons. I got news for you - if Jesus came to the USA tomorrow, he wouldn't be looking for you over at the temple. He'd be looking for those in the prisons and those unjustly punished. Thus, you're much more in league with the thick-skulled priests who couldn't get past their dogma that he scorned, than with the pariahs I represent.

And the most offensive part is that you enjoy talking cavalierly about the death penalty at the same time as God. Shame on you, you hypocrite.

Dennis Wilkins
The Guest PD Blogger

Unknown said...

The real problem for most people reading these posts is that they seem to think that "calmer heads will prevail" and "the DA won't charge something like that."
California DUI

Anonymous said...

I resent the fact that your comment is gender biased. You quote the law properly, however, you state that sex with an underaged girl in California is a crime. Nothing in the law says that it has to be a girl. And the law is just as twisted (if not more so) against women who are now being outed as "statutory rapists" for the same exact reasons you have given.

Anonymous said...

No doubt, sounds like this is something that a accident defense lawyers in Los Angeles should start looking in to. Right? :-)

The Christian Man said...

I was laughing about this with some Los Angeles injury lawyers earlier. At least they are watching out for the pregnant women in a way.

InjuriesBostonMA said...

Maybe the law should be more gray than black and white. I can definitely see why you've made this case. However, rape is definitely not a light issue and I think there does constitute an avenue where one could consider this as excessive body harm.