California Criminal Jury Instructions (CALCRIM) (2017)

891. Assault With Intent to Commit Mayhem

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891.Assault With Intent to Commit Mayhem (Pen. Code, § 220(a))
The defendant is charged [in Count ] with assault with intent to
commit mayhem [in violation of Penal Code section 220(a)].
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. Remove a part of someone’s body(;/.)]
[OR]
[2. Disable or make useless a part of someone’s body by inflicting a
more than slight or temporary disability(;/.)]
[OR]
[3. Permanently disfigure someone(;/.)]
[OR]
[4. Cut or disable someone’s tongue(;/.)]
[OR]
[5. Slit someone’s (nose[,]/ear[,]/ [or] lip) (;/.)]
[OR]
[6. Put out someone’s eye or injure someone’s eye in a way that
would so significantly reduce (his/her) ability to see that the eye
would be useless for the purpose of ordinary sight.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
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0095
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.]
New January 2006; Revised April 2010
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
Do not use this instruction if defendant is charged with having committed this
crime during the commission of a first degree burglary. Use CALCRIM No. 890,
Assault With Intent to Commit Specified Crimes [While Committing First Degree
Burglary] instead.
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.
CALCRIM No. 891 ASSAULTIVE AND BATTERY CRIMES
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0096
• 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].)
892–899. Reserved for Future Use
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 891
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