Rose Bird BACK


Pro   Con

Chief Justice Bird's position in People v. Caudillo, in which she concurred with the ruling that "rape does not constitute great bodily harm," has been taken out of context and distorted. Chief Justice Bird never used that language in her concurring opinion, and the case was much more complex than the quote suggested -- involving not only punishment for rape, but also punishment for the additional and legally separated crime of inflicting great bodily harm.1


Chief Justice Bird was remiss in concurring with a majority of the court's justices when, in People v. Caudillo, it was ruled that the language of the existing law indicated that "rape per se could not be deemed great bodily harm."2

AMA Commentary

In People v. Caudillo, a 5-2 court majority upheld the defendant's conviction on sexual assault and first degree burglary charges, but ruled that he was not guilty of inflicting "great bodily harm" as the term was written and defined by the California Legislature in Penal Code sections 461 and 12022.7. Chief Justice Bird concurred with the lead opinion in the case and added, "I have given this case considerable thought, and I find I am compelled to sign the opinion of the majority since the legislative history of Penal Code section 461 indicates that the Legislature intended that rape per se could not be deemed 'great bodily injury'...The offenses committed by appellant on the victim in this case were 'outrageous, shocking, and despicable,' as the majority state...However, personal repugnance towards these crimes cannot be a legitimate basis for rewriting the statute as it was adopted by the Legislature."3

1 Bergholz, op. cit., p. 104.
2 Republican Associates of Southern California, op. cit., campaign literature.
3 West's California Reporter, op. cit., People v. Caudillo, (1978) 21 Cal.3d (562)