California v. Mariscal
Annotate this CaseDefendant-appellant Omar Mariscal was charged with five counts of raping his daughter when she was 15 years old and three counts of committing lewd and lascivious conduct against her when she was 10 years old. The last paragraph of the information, alleged defendant inflicted great bodily injury upon a person "within the meaning of Penal Code section 667.61, subdivision (d)(6)." At the preliminary hearing and at trial, the prosecution presented testimony that the victim had become pregnant and given birth to a child as a result of one of the rape offenses. At trial, the jury heard evidence the victim suffered extreme pain while giving birth. At the close of evidence, the trial court instructed the jury that if it found defendant guilty of one of the rape charges, had to decide whether it was also true defendant personally inflicted great bodily injury on the victim in committing the crime. The court instructed the jury that committing rape does not by itself constitute inflicting great bodily injury and great bodily injury “may or may not be established by pregnancy.” The jury found defendant guilty on all counts and found he did personally inflict great bodily injury on the victim in committing a rape offense. The trial court sentenced defendant to a term of 25 years to life in state prison on count 1 under the version of the “One Strike” law that took effect in 2010, after the offenses occurred. The court also imposed consecutive upper term sentences of eight years for the other four rape counts (counts 2-5) and consecutive two-year terms (one-third the midterm) for each of the lewd conduct counts (counts 6-8). Defendant’s total prison term was a determinate term of 38 years plus an indeterminate term of 25 years to life. On appeal, defendant challenged the sentence on count 1. After review, the Court of Appeal concluded the trial court did not err by sentencing defendant under the One Strike law, but defendant had to be resentenced on count 1 to a term of 15 years to life.
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