California Criminal Jury Instructions (CALCRIM) (2017)

800. Aggravated Mayhem

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A. MAYHEM
800.Aggravated Mayhem (Pen. Code, § 205)
The defendant is charged [in Count ] with aggravated mayhem
[in violation of Penal Code section 205].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant unlawfully and maliciously (disabled or disfigured
someone permanently/ [or] deprived someone else of a limb,
organ, or 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 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.]
New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
In element 1, give the first option if the defendant was prosecuted for permanently
disabling or disfiguring the victim. Give the second option if the defendant was
prosecuted for depriving someone of a limb, organ, or body part. (See Pen. Code,
§ 205.)
The bracketed sentence regarding “permanent 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
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instruct that an injury may be permanent even though cosmetic repair may be
medically feasible].)
The bracketed sentence stating that “The People do not have to prove that the
defendant intended to kill,” may be given on request if there is no evidence or
conflicting evidence that the defendant intended to kill someone. (See Pen. Code,
§ 205.)
AUTHORITY
• Elements Pen. Code, § 205.
Malicious Defined Pen. Code, § 7, subd. 4; People v. Lopez (1986) 176
Cal.App.3d 545, 550 [222 Cal.Rptr. 101].
• 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],
overruled on other grounds People v. Kimble (1988) 44 Cal.3d 480, 498 [244
Cal.Rptr. 148, 749 P.2d 803].
• 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].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person §§ 89–91.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.16[2] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Simple Mayhem People v. Robinson (2014) 232 Cal.App.4th 69, 77–80 [180
Cal.Rptr.3d 796].
• Attempted Aggravated Mayhem Pen. Code, §§ 205, 663.
• Assault Pen. Code, § 240.
• Battery with Serious Bodily Injury Pen. Code, § 243(d); People v. Ausbie
(2004) 123 Cal.App.4th 855 [20 Cal.Rptr.3d 371].
• Battery Pen. Code, § 242.
Assault with force likely to produce great bodily injury (Pen. Code, § 245(a)(1)) is
not a lesser included offense to mayhem. (People v. Ausbie (2004) 123 Cal.App.4th
855, 862–863 [20 Cal.Rptr.3d 371].
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RELATED ISSUES
Victim Must Be Alive
A victim of mayhem must be alive at the time of the act. (People v. Kraft (2000)
23 Cal.4th 978, 1058 [99 Cal.Rptr.2d 1, 5 P.3d 68]; see People v. Jentry (1977) 69
Cal.App.3d 615, 629 [138 Cal.Rptr. 250].)
Evidence of Indiscriminate Attack or Actual Injury Constituting Mayhem
Insufficient to Show Specific Intent
“Aggravated mayhem . . . requires the specific intent to cause the maiming injury.
[Citation.] Evidence that shows no more than an ‘indiscriminate attack’ is
insufficient to prove the required specific intent. [Citation.] Furthermore, specific
intent to maim may not be inferred solely from evidence that the injury inflicted
actually constitutes mayhem; instead, there must be other facts and circumstances
which support an inference of intent to maim rather than to attack indiscriminately.
[Citation.]” (People v. Park (2000) 112 Cal.App.4th 61, 64 [4 Cal.Rptr.3d 815].)
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