3176. Sex Offenses: Sentencing Factors - Aggravated Mayhem
If you find the defendant guilty of the crime[s] charged in Count[s] <insert counts charging sex offense[s] from Pen. Code, § 667.61(c)>, you must then decide whether[, for each crime,] the People have proved the additional allegation that, while committing that crime, the defendant also committed aggravated mayhem. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.]
To prove this allegation, the People must prove that:
1. During the commission of the crime, the defendant unlawfully and maliciously (disabled or disfigured someone permanently/ [or] deprived someone else of a limb, organ, or other part of (his/her) body);
2. When the defendant acted, (he/she) intended to (permanently disable or disfigure the other person/ [or] deprive the other person of a limb, organ, or other part of (his/her) body);
3. Under the circumstances, the defendant's act showed extreme indifference to the physical or psychological well-being of the other person.
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.
[A disfiguring injury may be permanent even if it can be repaired by medical procedures.]
[The People do not have to prove that the defendant intended to kill.]
<If there is an issue in the case over whether the mayhem was committed "during the commission of" the offense, see Bench Notes.>
The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.
The court has a sua sponte duty to give this instruction on the sentencing factor when charged. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
The bracketed sentence about the permanency of "disfiguring injury" may be given on request if there is evidence that the injury may be repaired by medical procedures. (People v. Hill (1994) 23 Cal.App.4th 1566, 1574- 1575 [28 Cal.Rptr.2d 783] [not error to instruct that an injury may be permanent even though cosmetic repair may be medically feasible].)
The final bracketed sentence may be given on the prosecution's request when there is no evidence or conflicting evidence that the defendant intended to kill someone. (See Pen. Code, § 205.)
If the case involves an issue of whether the defendant committed the mayhem "during the commission of" the offense, the court may give CALCRIM No. 3261, During Commission of Felony: Defined—Escape Rule. (See People v. Jones (2001) 25 Cal.4th 98, 109 [104 Cal.Rptr.2d 753]; People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].)
One-Strike Sex Offense Statute—Aggravated Mayhem Factor. Pen. Code, § 667.61(d)(3).
Factors Must Be Pleaded and Proved. Pen. Code, § 667.61(i); People v. Mancebo (2002) 27 Cal.4th 735, 743 [117 Cal.Rptr.2d 550, 41 P.3d 556].
Elements of Aggravated Mayhem. Pen. Code, § 205.
Permanent Disability. See, e.g., People v. Thomas (1979) 96 Cal.App.3d 507, 512 [158 Cal.Rptr. 120] [serious ankle injury lasting over six months].
Permanent Disfigurement. See People v. Hill (1994) 23 Cal.App.4th 1566, 1571 [28 Cal.Rptr.2d 783]; see also People v. Newble (1981) 120 Cal.App.3d 444, 451 [174 Cal.Rptr. 637] [head is member of body for purposes of disfigurement].
Specific Intent to Cause Maiming Injury. People v. Ferrell (1990) 218 Cal.App.3d 828, 833 [267 Cal.Rptr. 283]; People v. Lee (1990) 220 Cal.App.3d 320, 324-325 [269 Cal.Rptr. 434].
"In Commission of" Felony. People v. Jones (2001) 25 Cal.4th 98, 109-110 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 386-389.
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 644.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.102[a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.16 (Matthew Bender).
See the Related Issues sections of CALCRIM No. 3175, Sex Offenses: Sentencing Factors—Aggravated Kidnapping, and CALCRIM No. 800, Aggravated Mayhem.
(New January 2006)