California Criminal Jury Instructions (CALCRIM) (2017)

801. Mayhem

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801.Mayhem (Pen. Code, § 203)
The defendant is charged [in Count ] with mayhem [in violation
of Penal Code section 203].
To prove that the defendant is guilty of mayhem, the People must prove
that the defendant 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 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.]
New January 2006; Revised August 2006, February 2014, March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
Whether the complaining witness suffered a serious bodily injury is a question for
the jury to determine. If the defendant disputes that the injury suffered was a
serious bodily injury, use the first bracketed paragraph. If the parties stipulate that
the injury suffered was a serious bodily injury, use the second bracketed paragraph.
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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].)
AUTHORITY
• Elements. Pen. Code, § 203.
Malicious Defined. Pen. Code, § 7, subd. 4; People v. Lopez (1986) 176
Cal.App.3d 545, 550 [222 Cal.Rptr. 101].
• No Serious Bodily Injury Requirement. People v. Santana (2013) 56 Cal.4th
999, 1010 [157 Cal.Rptr.3d 547, 301 P.3d 1157].
• Disabled. 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 in People v. Kimble (1988) 44 Cal.3d 480, 498 [244 Cal.Rptr. 148, 749
P.2d 803].
• General Intent Crime. People v. Villegas (2001) 92 Cal.App.4th 1217, 1226
[113 Cal.Rptr.2d 1]; People v. Sekona (1994) 27 Cal.App.4th 443, 453 [32
Cal.Rptr.2d 606].
• Permanent Disfigurement. People v. Hill (1994) 23 Cal.App.4th 1566, 1571
[28 Cal.Rptr.2d 783]; Goodman v. Superior Court (1978) 84 Cal.App.3d 621,
624 [148 Cal.Rptr. 799]; 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].
• Put Out Eye. People v. Dennis (1985) 169 Cal.App.3d 1135, 1138 [215
Cal.Rptr. 750]; People v. Green (1976) 59 Cal.App.3d 1, 3–4 [130 Cal.Rptr.
318] [addressing corrective lenses]; People v. Nunes (1920) 47 Cal.App. 346,
350 [190 P. 486].
• Slit Lip. People v. Caldwell (1984) 153 Cal.App.3d 947, 952 [200 Cal.Rptr.
508] [defendant bit through victim’s lower lip].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 84–88.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.16 (Matthew Bender).
LESSER INCLUDED OFFENSES
• Attempted Mayhem. Pen. Code, §§ 203, 663.
Assault. Pen. Code, § 240; see People v. De Angelis (1979) 97 Cal.App.3d
837, 841 [159 Cal.Rptr. 111] [mayhem occurred during continuing assault].
• Battery. Pen. Code, § 242.
Assault with force likely to produce great bodily injury (Pen. Code, § 245(a)(1)) is
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not a lesser included offense to mayhem. (People v. Ausbie (2004) 123 Cal.App.4th
855, 862–863 [20 Cal.Rptr.3d 371].)
Battery with serious bodily injury is not a lesser included offense of mayhem under
the statutory elements test. People v. Poisson (2016) 246 Cal.App.4th 121, 123–125
[200 Cal.Rptr.3d 542].
RELATED ISSUES
Disfigurement
Disfigurement constitutes mayhem “only when the injury is permanent.” (Goodman
v. Superior Court (1978) 84 Cal.App.3d 621, 624 [148 Cal.Rptr. 799]; People v.
Hill (1994) 23 Cal.App.4th 1566, 1571 [28 Cal.Rptr.2d 783].) However, the
“possibility that a victim’s disfigurement might be alleviated through reconstructive
surgery is no bar to a finding of ‘permanent’ injury.” (People v. Williams (1996) 46
Cal.App.4th 1767, 1774 [54 Cal.Rptr.2d 521].) “We . . . reject [the] contention that
evidence of medical alleviation may be used in a mayhem trial to prove an injury,
permanent by its nature, may be corrected by medical procedures.” (People v. Hill,
supra, 23 Cal.App.4th at p. 1574.) In addition, “[t]he fact that [disfiguring injuries]
are on a normally unexposed portion of [a] body does not render them any less
significant.” (People v. Keenan (1991) 227 Cal.App.3d 26, 36 [277 Cal.Rptr. 687]
[burns inflicted on victim’s breasts by a cigarette].)
Imperfect Self-Defense Not Available
“[A]part from the McKelvy lead opinion, there is no authority to support [the]
claim that the mere use of the term ‘malicious’ in section 203 requires a court to
instruct a jury that an actual but unreasonable belief will negate the malice required
to convict for mayhem . . . . [Mayhem] involves a different requisite mental state
and has no statutory history recognizing a malice aforethought element or the
availability of the Flannel defense.” (People v. Sekona (1994) 27 Cal.App.4th 443,
457 [32 Cal.Rptr.2d 606]; contra, People v. McKelvy (1987) 194 Cal.App.3d 694,
702–704 [239 Cal.Rptr. 782] (lead opn. of Kline, P.J.).)
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].)
802–809. Reserved for Future Use
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