Criminal Law

891. Assault With Intent to Commit Mayhem

The defendant is charged [in Count ______] with assault with intent to commit mayhem.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant did an act that by its nature would directly and probably result in the application of force to a person;

2. The defendant did that act willfully;

3. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/ her) act by its nature would directly and probably result in the application of force to someone;

4. When the defendant acted, (he/she) had the present ability to apply force to a person;

AND

5. When the defendant acted, (he/she) intended to commit mayhem.

The defendant intended to commit mayhem if (he/she) intended to unlawfully and maliciously:

[1. Removed a part of someone's body(;/.)]

[OR]

[2. Disabled or made useless a part of someone's body and the disability was more than slight or temporary(;/.)]

[OR]

[3. Permanently disfigured someone(;/.)]

[OR]

[4. Cut or disabled someone's tongue(;/.)]

[OR]

[5. Slit someone's (nose[,]/ear[,]/ [or] lip) (;/.)]

[OR]

[6. Put out someone's eye or injured someone's eye in a way that so significantly reduced (his/her) ability to see that the eye was useless for the purpose of ordinary sight.]

Someone commits an act willfully when he or she does it willingly or on purpose.

Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else.

The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.

[The touching can be done indirectly by causing an object [or someone else] to touch the other person.]

[The People are not required to prove that the defendant actually touched someone.]

No one needs to actually have been injured by the defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault[, and if so, what kind of assault it was].

[A disfiguring injury may be permanent even if it can be repaired by medical procedures.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

Depending on the evidence, select the appropriate elements of mayhem. (See People v. May (1989) 213 Cal.App.3d 118, 129 [261 Cal.Rptr. 502] [in context of assault to commit rape].) See generally CALCRIM No. 801, Mayhem.

The last bracketed sentence may be given on request if there is evidence of a disfiguring injury that may be repaired by medical procedures. (See People v. Hill (1994) 23 Cal.App.4th 1566, 1574-1575 [28 Cal.Rptr.2d 783] [not error to instruct that injury may be permanent even though cosmetic repair may be medically feasible].)

Related Instructions

CALCRIM No. 915, Simple Assault.

Authority

Elements. Pen. Code, § 220.

Elements for Assault. Pen. Code, § 240; People v. Williams (2001) 26 Cal.4th 779, 790 [111 Cal.Rptr.2d 114, 29 P.3d 197].

Elements for Mayhem. Pen. Code, § 203.

Court Must Instruct on Elements of Intended Crime. People v. May (1989) 213 Cal.App.3d 118, 129 [261 Cal.Rptr. 502] [in context of assault to commit rape].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 28-34.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.11, 142.16 (Matthew Bender).

Lesser Included Offenses

Attempted Mayhem. Pen. Code, §§ 663, 203.

Simple Assault. Pen. Code, § 240; see People v. Greene (1973) 34 Cal.App.3d 622, 653 [110 Cal.Rptr. 160] [in context of charged assault with intent to commit rape].

There is no crime of attempted assault to commit an offense. (See People v. Duens (1976) 64 Cal.App.3d 310, 314 [134 Cal.Rptr. 341] [in context of assault to commit rape].)

Related Issues

Abandonment

An assault with intent to commit another crime is complete at any point during the incident when the defendant entertains the intent to commit the crime. "It makes no difference whatsoever that he later abandons that intent." (See People v. Trotter (1984) 160 Cal.App.3d 1217, 1223 [207 Cal.Rptr. 165]; People v. Meichtry (1951) 37 Cal.2d 385, 388-389 [231 P.2d 847] [both in context of assault to commit rape].)

(New January 2006)