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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Craig O'Dale POLK, Defendant and Appellant.

Cr. 42571.

Decided: August 02, 1982

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, David Y. Stanley, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Anthony L. Dicce, Deputy Attys. Gen., for plaintiff and respondent.

Defendant Craig Polk was brought to trial in the Superior Court of Fresno County on December 8, 1980, on one count of rape (Pen.Code, § 261, subd. (2);  count 1) committed with the infliction of great bodily injury (Pen.Code, § 12022.8), three counts of burglary (Pen.Code, § 459;  counts 2, 4, 5), one count of robbery (Pen.Code, § 211;  count 3), and one count of attempted rape (Pen.Code, §§ 261, 664;  count 6).   The jury returned verdicts of guilty on all counts and, on January 16, 1981, defendant was sentenced to state prison for a 17-year term.

Defendant bases his appeal on two grounds.


Defendant contends that the trial court committed reversible error when it denied his pretrial motion under People v. Nation (1980) 26 Cal.3d 169, 161 Cal.Rptr. 299, 604 P.2d 1051 to dismiss counts 1 through 4.   Defendant theorizes that the state failed to use reasonable care to preserve the material evidence related to the charges and therefore violated his constitutional right to due process.

A review of the salient facts discloses:

On August 7, 1980, Mrs. T. reported to Officer Rabbon of the Fresno Police Department that she had been raped.   Officer Rabbon advised Mrs. T. to seek immediate treatment at Valley Medical Center, a hospital routinely recommended by the Fresno Police Department for such examinations.   However, Mrs. T., at her insistence, was taken to Fresno Community Hospital where a rape examination was undertaken.   Dr. Shay, the examining physician, had vaginal specimens sent to the hospital laboratory.   Further testing revealed the presence of fresh sperm.   After testing by the hospital staff was completed, the specimens were destroyed with the exception of a non-refrigerated dry slide.

All other pertinent evidence from the examination was compiled into a “rape kit” and given to Officer Rabbon, who signed a receipt which stated that the contents included vaginal specimens.   Officer Rabbon immediately delivered the kit to the Department of Justice Criminalistics Laboratory.   The absence of vaginal specimens was not noticed until the kit was opened for testing in mid-October.   At that time, laboratory personnel so advised the prosecutor, who in turn informed defense counsel.

Defendant contends that since he was deprived of the opportunity to conduct laboratory testing on the vaginal specimens for possible exoneration, his due process rights, guaranteed under the 14th Amendment to the United States Constitution, were violated.

As controlling authority for his proposition, defendant cites People v. Nation, supra, 26 Cal.3d 169, 161 Cal.Rptr. 299, 604 P.2d 1051.   In that case, a semen sample retained by the police was not tested to determine whether it could have come from the defendant, nor were measures taken to assure its preservation for future identification analysis.   In People v. Hitch (1974) 12 Cal.3d 641, 652–653, 527 P.2d 361, the court had held that where government investigative officials intentionally but nonmaliciously destroy evidence material to a determination of guilt or innocence, due process requires that sanctions be applied unless the prosecution demonstrates that the governmental agencies involved made a good faith attempt to preserve the evidence.   In Nation, the court held that “evidence lost to the defense because of its destruction by the authorities will be deemed material for the purpose of triggering the due process concerns of Hitch if there is a reasonable possibility that it would be favorable to the defendant on the issue of guilt or innocence.  [Citation.]”

 It is entirely appropriate to impose a duty on the police to preserve potentially material evidence where they have received such evidence.  (See ibid.;   People v. Hitch (1974) 12 Cal.3d 641, 527 P.2d 361;  People v. Swearingen (1978) 84 Cal.App.3d 570, 574, 148 Cal.Rptr. 755;  People v. Goss (1980) 109 Cal.App.3d 443, 454, 167 Cal.Rptr. 224.)   On the other hand, it is entirely inappropriate to impose such a duty on the police when there is neither receipt of the material evidence by them nor participation or acquiescence by the police in its destruction.   In the case at bench, the police never received the destroyed evidence.   The destruction of the evidence defendant contends may have exonerated him was done by personnel at a hospital not recommended by the police, and further, there was neither participation by the police in its destruction nor acquiescence therein.   Consequently, the motion to dismiss was properly denied.


Defendant next contends that the finding that he inflicted great bodily injury under Penal Code section 12022.8 1 must be reversed because it is not supported by substantial evidence.

The record shows that during his commission of the rape defendant inflicted upon Mrs. T. the following injuries:  perforation of the vaginal and intestinal walls, causing hemorrhaging and requiring surgery;  laceration of the forehead;  and bruises on the face, neck, upper chest, and arms.

Defendant readily concedes that the vaginal and intestinal injuries constitute great bodily injury.   However, he contends that there should be no enhancement under section 12022.8 because the evidence fails to show that, at the time of the rape, defendant possessed the specific intent to inflict great bodily injury.

Section 12022.8 states in pertinent part:  “Any person who inflicts great bodily injury, as defined in Section 12022.7, on any victim in a violation of subdivision (2) or (3) of Section 261 ․ shall receive a five-year enhancement for each such violation in addition to the sentence provided for the felony conviction.” 2

Section 12022.7 defines great bodily injury as follows:  “As used in this section, great bodily injury means a significant or substantial physical injury.” 3

People v. Caudillo (1978) 21 Cal.3d 562, 585, 146 Cal.Rptr. 859, 580 P.2d 274, held that “[I]n the context of Penal Code section 264 (rape), the Legislature intended the term great bodily injury to refer to substantial or significant injury ‘in addition to that which must be present in every case of rape.’  [Citation.]”  It is apparent that section 12022.8 was enacted in response to the Caudillo decision.   The crime of rape often involves the infliction of great bodily injury on the victim.  Section 12022.8 reflects an intent by the Legislature to provide a five-year enhancement in such circumstances regardless of whether the defendant intended to cause great bodily injury to the victim of the rape.

 Defendant's assertion that section 12022.8 requires a finding of specific intent to inflict great bodily injury simply cannot be sustained.   If specific intent has not expressly been made an element of a statutory offense, such proof may not be required by the courts.  (See Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, 875, 34 Cal.Rptr. 251.)   As section 12022.8 contains no express requirement of specific intent, we hold that a finding of specific intent to inflict great bodily injury is not required for imposition of the five-year enhancement provided by that section.   Thus, we need not address defendant's contention that the evidence was insufficient to support the jury's finding that defendant intended to inflict great bodily injury.

There is no question that perforation of the vaginal and intestinal walls constitutes great bodily injury as defined by section 12022.7.   Indeed, as previously mentioned, defendant has conceded the point.

The judgment is affirmed.


1.   All statutory references are to the Penal Code.

2.   Section 12022.8 provides:  “Any person who inflicts great bodily injury, as defined in Section 12022.7, on any victim in a violation of subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or sodomy or oral copulation by force, violence, duress, menace or threat of great bodily harm as provided in Section 286 or 288a shall receive a five-year enhancement for each such violation in addition to the sentence provided for the felony conviction.”

3.   Section 12022.7 provides:  “Any person who, with the intent to inflict such injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of three years, unless infliction of great bodily injury is an element of the offense of which he is convicted.  [¶]  As used in this section, great bodily injury means a significant or substantial physical injury.  [¶]  This section shall not apply to murder or manslaughter or a violation of Section 451 or 452.   The additional term provided in this section shall not be imposed unless the fact of great bodily injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact.”

DALSIMER, Associate Justice.

SPENCER, P. J., and LILLIE, J., concur.

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