CALCRIM No. 3176. Sex Offenses: Sentencing Factors - Aggravated Mayhem (Pen. Code, § 667.61(d)(3))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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3176.Sex Offenses: Sentencing Factors - Aggravated Mayhem
(Pen. Code, § 667.61(d)(3))
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);
AND
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.
New January 2006
878
BENCH NOTES
Instructional Duty
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,
While Committing a 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].)
AUTHORITY
• One-Strike Sex Offense Statute - Aggravated Mayhem Factor. Pen. Code,
§ 667.61(d)(3).
• Factors Must Be Pleaded and Proved. Pen. Code, § 667.61(j); 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].
• “During 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].
RELATED ISSUES
See the Related Issues section of CALCRIM No. 800, Aggravated Mayhem.
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3176
879
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 459-463.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 727.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.102[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.16 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 13:9 (The Rutter
Group).
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