ARONSON, J., Concurring. I concur in the judgment, and agree there is ample evidence to support the jury’s great bodily injury finding; indeed, given the victim’s description of the childbirth, no rational jury could conclude otherwise. I write separately to express my disagreement with my colleague’s concurrence. Adopting Justice Corrigan’s concurrence in People v. Cross (2008) 45 Cal.4th 58, 72-76 [82 Cal.Rptr.3d 373, 190 P.3d 706] (Cross), my colleague urges the Legislature or the Supreme Court to declare that criminally imposed pregnancies constitute great bodily injury. In my view, any change in the law should come from the Legislature, not the courts.1 The concurrence implicitly embraces Justice Corrigan’s suggestion “that a properly instructed jury would have been told that a sexual assault that impregnates the victim constitutes great bodily injury.” (Cross, at p. 75.) No [1096]doubt this proposal is well-intentioned, but an instruction along these lines would violate basic constitutional rights.
The majority in Cross did not adopt Justice Corrigan’s proposal. Rather our Supreme 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.” (Cross, supra, 45 Cal.4th at p. 64.) This basic principle stems from due process guarantees and the accused’s right to a jury trial. Due process requires the state to prove beyond a reasonable doubt every fact necessary to constitute the crime (In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 90 S.Ct. 1068]), and a defendant has the constitutional right to have a jury make this determination (Sullivan v. Louisiana (1993) 508 U.S. 275, 277 [124 L.Ed.2d 182, 113 S.Ct. 2078] [right to a jury trial includes “as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty’ ”]). “If a judge were permitted to instruct the jury on the basis of assertedly ‘undisputed’ evidence that a particular element had been established as a matter of law, the right to a jury trial would become a hollow guarantee.” (People v. Figueroa (1986) 41 Cal.3d 714, 730 [224 Cal.Rptr. 719, 715 P.2d 680]; see People v. Lawson (1987) 189 Cal.App.3d 741, 747 [234 Cal.Rptr. 557] [“[n]o matter how conclusive the evidence, the court may not directly inform the jury an element of the crime charged has been established”].)
United States v. Gaudin (1995) 515 U.S. 506 [132 L.Ed.2d 444, 115 S.Ct. 2310] illustrates the point. There, section 1001 of title 18 of the United States Code proscribed knowingly making any false material declaration under oath. The trial judge instructed the jury that, as a matter of law, the defendant’s statements were material. (Gaudin, at p. 508.) In an opinion authored by Justice Scalia, the Supreme Court affirmed the Court of Appeals’ decision reversing the defendant’s conviction. After determining materiality was a mixed question of law and fact, the Supreme Court concluded that “the jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.” (Id. at p. 514.) Thus, the trial court’s instruction violated the defendant’s “right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.” (Id. at pp. 522-523.)
Gaudin and numerous other authorities make clear that courts may not declare as a matter of law that all pregnancies constitute great bodily injury. Removing this issue from the jury by judicial fiat would violate a defendant’s [1097]right to due process and trial by jury. As is often the case, the Constitution restrains our own policy preferences. Whether to make all criminally imposed pregnancies subject to a great bodily injury enhancement should be a legislative decision.
Appellant’s petition for review by the Supreme Court was denied June 15, 2011, S192263.
The Legislature, rather than the judicial branch, is in the best position to determine whether all criminally imposed pregnancies result in great bodily injury, a proposition not at all clear. According to a leading medical text, symptoms of early spontaneous miscarriages may involve abdominal pain and bleeding, which “can vary from being life-threateningly severe ... to the smallest brown spotting. Occasionally there may be no symptoms at all....” (Magowan et al., Clinical Obstetrics and Gynaecology (2d ed. 2009) pp. 98-99.) The Legislature has the means to gather the relevant evidence and weigh the policy implications of any proposed change. (People v. Farley (2009) 46 Cal.4th 1053, 1119 [96 Cal.Rptr.3d 191, 210 P.3d 361] [“ ‘ “ ‘the power to define crimes and fix penalties is vested exclusively in the legislative branch’ ” ’ ”].) For instance, the Legislature could consider whether it would advance the state’s penological policy to apply a great bodily injury enhancement to an 18 year old who impregnates his 17-year-old girlfriend and is therefore charged with unlawful sexual intercourse. (Pen. Code, § 261.5.)