SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 800 Aggravated Mayhem (PC 205)
TABLE OF CONTENTS
F 800.1 Aggravated Mayhem: Titles And Identification Of Parties
F 800.1 Inst 1 Aggravated Mayhem—Title
F 800.1 Inst 2 Identification Of Prosecution And Defendant
F 800.2 Aggravated Mayhem: Tailoring To Facts: Persons, Places, Things And Theories
F 800.2 Inst 1 Tailoring To Facts
F 800.3 Aggravated Mayhem: Language That Is Argumentative, Confusing, Etc.
F 800.3 Inst 1 Deletion Of Argumentative Language
F 800.4 Aggravated Mayhem: Burden Of Proof Issues
F 800.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 800.4 Inst 2 (a & b) Aggravated Mayhem: Indiscriminate Attack Insufficient For Mayhem (PC 205)
F 800.4 Inst 3 Aggravated Mayhem: Intent Not To Be Inferred From Injuries Alone (PC 205)
F 800.5 Aggravated Mayhem: Elements And Definitions
F 800.5 Inst 1 Concurrence Of Act And Intent
F 800.5 Inst 2 Separate Enumeration Of Malice And Unlawful Elements
F 800.5 Inst 3 Definition Of Permanent Disfigurement (PC 205)
F 800.5 Inst 4 Aggravated Mayhem: Requirement That Victim Be Alive
F 800.6 Aggravated Mayhem: Defense Theories
F 800.6 Inst 1 (a & b) Aggravated Mayhem: Intent To Kill Not Sufficient
F 800.7 Aggravated Mayhem: Preliminary Fact Issues [Reserved]
F 800.8 Aggravated Mayhem: Unanimity/Duplicity/Multiplicity [Reserved]
F 800.9 Aggravated Mayhem: Lesser Offense Issues [Reserved]
F 800 NOTES
F 800 Note 1 Aggravated Mayhem: CALCRIM Cross-References And Research Notes
F 800 Note 2 Aggravated Mayhem: Requirement Of Great Bodily Injury (PC 205)
F 800 Note 3 Aggravated Mayhem: Unlicensed Practice Of Medicine And Intent
F 800 Note 4 Aggravated Mayhem: Applicability Of Imperfect Self-Defense To Aggravated Mayhem (PC 205)
Return to Series 800 Table of Contents.
F 800.1 Aggravated Mayhem: Titles And Identification Of Parties
F 800.1 Inst 1 Aggravated Mayhem—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 800.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 800.2 Aggravated Mayhem: Tailoring To Facts: Persons, Places, Things And Theories
F 800.2 Inst 1 Tailoring To Facts
*Modify CC 800, Element 1, as follows [added language is underlined; deleted language is stricken]:
1. The defendant unlawfully and maliciously (disabled or disfigured someone permanently/ [or] deprived someone else ____________ <name of alleged victim> of a limb, organ, or part of (his/her) body);
*Modify Element 2, as follows:
2. When the defendant acted, (he/she) intended to (permanently disable or disfigure the other person ____________ <name of alleged victim> / [or] deprive the other person ____________ <name of alleged victim> of a limb, organ, or part of (his/ her) body);
*Modify Element 3, as follows:
3. Under the circumstances, the defendant’s act showed extreme indifference to the physical or psychological well-being of the other person ____________ <name of alleged victim>.
Points and Authorities
See FORECITE F 400.2 Inst 2.
F 800.3 Aggravated Mayhem: Language That Is Argumentative, Confusing, Etc.
F 800.3 Inst 1 Deletion Of Argumentative Language
*Modify CC 800, paragraph 5, as follows [deleted language is stricken]:
[The People do not have to prove that the defendant intended to kill.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 800.4 Aggravated Mayhem: Burden Of Proof Issues
F 800.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 800.4 Inst 2 (a & b) Aggravated Mayhem: Indiscriminate Attack Insufficient For Mayhem (PC 205)
Alternative a [Pinpoint]:
It is the prosecution’s burden to establish that the wounds were inflicted with the [specific] intent to maim rather than as a result of an indiscriminate attack. The defendant contends that the evidence at most shows an indiscriminate attack and not an intent to [permanently disfigure] [__________]. However, the defendant does not need to prove this contention. If you have a reasonable doubt as to whether the prosecution has met this burden, you may not convict the defendant of the charged offense.
Alternative b [Element]:
*Add to CC 800, Element 2, as follows [added language is underlined]:
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). An indiscriminate attack does not satisfy this requirement;
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Indiscriminate Attack Not Sufficient—If the evidence shows an indiscriminate attack rather than a specific intent to maim, conviction of aggravated mayhem is unwarranted. (People v. Lee (1990) 220 CA3d 320, 325.) Therefore, an instruction which relates “the specific evidence on which the theory of defense focuses … to reasonable doubt” should be given upon request. (See People v. Wright (1988) 45 C3d 1126, 1137-41; People v. Hall (1980) 28 C3d 143, 159; see also People v. Tewksbury (1976) 15 C3d 953, 963-64, fn 9.) [See also FORECITE PG III(A), “Pinpoint Instructions.”]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 9.32c.
F 800.4 Inst 3 Aggravated Mayhem: Intent Not To Be Inferred From Injuries Alone (PC 205)
*Add to CC 800:
The necessary [specific] intent to [permanently disfigure] [__________], cannot be inferred solely from evidence that the injury inflicted constituted mayhem. There must be other facts and circumstances which prove the required intent.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Intent Not To Be Inferred From Injuries Alone—The specific intent necessary for aggravated mayhem cannot be inferred solely from evidence that the injury inflicted constitutes mayhem. Instead, there must be other facts and circumstances which give rise to an inference of intent to maim rather than an indiscriminate attack. (People v. Lee (1990) 220 CA3d 320, 325; People v. Ferrell (1990) 218 CA3d 828, 832-33; see also People v. Park (2003) 112 CA4th 61, 69-70 [specific intent to maim can be demonstrated by mode of attack, whether victim was attacked in an extremely vulnerable portion of the body (i.e., face and head), and whether the attack was the product of deliberation and planning].)
CALCRIM 800 does not clearly convey this requirement.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
[See Opinion Bank # O-217 For an unpublished opinion on this issue.]
CALJIC NOTE: See FORECITE F 9.32b.
F 800.5 Aggravated Mayhem: Elements And Definitions
F 800.5 Inst 1 Concurrence Of Act And Intent
*Modify CC 800, Element 2, as follows [added language is underlined; deleted language is stricken]:
2. When The defendant acted, (he/she) intended did so with the intent to (permanently disable or disfigure the other person/ [or] deprive the other person of a limb, organ, or part of (his/ her) body);
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Necessity Of Instruction On Concurrence Of Act And Intent—See FORECITE F 251 Inst 3.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 800.5 Inst 2 Separate Enumeration Of Malice And Unlawful Elements
*Modify CC 800, Element 1, as follows:
[Delete “unlawfully” and “maliciously” from Element 1 and add as separate enumerated elements]
Points and Authorities
See FORECITE F 3500.2 Inst 1.
F 800.5 Inst 3 Definition Of Permanent Disfigurement (PC 205)
*Add to CC 800, paragraph 4 [added language is underlined]:
[Not every visible scarring wound is a disfiguring injury. There must be a wound that would not heal on its own without leaving serious permanent scarring. A disfiguring injury may be permanent even if it can be repaired by medical procedures.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Permanent Disfigurement Defined—“[N]ot every visible scarring wound can be said to constitute the felony crime of mayhem …” (Goodman v. Superior Court (1978) 84 CA3d 621, 625; accord, People v. Pitts (1990) 223 CA3d 1547, 1559; People v. Newble (1981) 120 CA3d 444, 453.) Because the disfiguring injury must be “permanent” (People v. Hill (1994) 23 CA4th 1566), a wound which will heal “without serious scarring” is not mayhem even if the wound required several stitches. (See Goodman v. Superior Court, 84 CA3d at 624; compare People v. Keenan (1991) 227 CA3d 26, 36 [mayhem supported by burning both breasts with cigarette, resulting in scars still visible 3 ½ months later]; People v. Thomas (1979) 96 CA3d 507, 512 [rape victim who suffered broken ankle and was seriously disabled for over six months suffered disability sufficient to support charge of mayhem].) However, an injury that is severe when it is inflicted constitutes mayhem even if reconstructive surgery saves the victim from permanent injury. (People v. Williams (1996) 46 CA4th 1767, 1774; People v. Hill, 23 CA4th at 1572-1574; People v. Keenan, supra, 227 CA3d 26, 36, fn. 6.) Accordingly, the jury should be required to make the determination as to whether the wound and scarring is sufficiently serious to constitute “permanent disfigurement.”
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
Relevance of Possible Alleviation By Medical Attention—In People v. Hill (1994) 23 CA4th 1566, 1574, n 4, the Court of Appeal held that the defendant may not avoid conviction for mayhem based on the availability of “extraordinary medical efforts” which might in the future mitigate the disfigurement. (Hill, 23 C4th at 1574.) Hence, the court approved the prosecution’s instruction which informed the jury that mayhem may be committed “notwithstanding the possibility that alleviation of the injury is medically possible.” However, this holding could implicate federal constitutional due process and compulsory process/right to defend principles (5th, 6th and 14th Amendments) if it is read to preclude the defense from presenting evidence of, and obtaining a jury resolution of, the requisite element of permanence. (See People v. Bobo (1990) 229 CA3d 1417, 1442 [defendant cannot be denied an opportunity to disprove a requisite element of the charge]; but see FORECITE F 4.21 n11.)
CALJIC NOTE: See FORECITE F 9.30b.
F 800.5 Inst 4 Aggravated Mayhem: Requirement That Victim Be Alive
*Add to CC 800, Element 4, as follows:
4. ____________________ <name of alleged victim> was alive when the alleged [disfiguring] [_______________] occurred.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Victim Must Be Alive—See CC 800, Related Issues; see also People v. Kraft (2000) 23 C4th 978, 1058; People v. Jentry (1977) 69 CA3d 615, 629.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 9.30 n2.
F 800.6 Aggravated Mayhem: Defense Theories
F 800.6 Inst 1 (a & b) Aggravated Mayhem: Intent To Kill Not Sufficient
Alternative a [Element]:
*Add to CC 800 as final paragraph:
However, even if the defendant intended to kill, an intent to [permanently disfigure] [__________] as defined above must be found in addition to and independent of the intent to kill.
Alternative b [Pinpoint CC 3400 adaption]:
*Add to CC 800:
The defendant contends that he intended to kill but not to permanently [disfigure] [_____________] __________________ <name of alleged victim>. The defendant does not need to prove this contention. The prosecution must prove beyond a reasonable doubt that the defendant had the required intent to permanently [disfigure] [_____________] in addition to and independent of any intent to kill.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Intent To Kill Not Sufficient—PC 205 is a specific intent offense which imposes liability upon one who “intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body.” (PC 205; People v. Ferrell (1990) 218 CA3d 828, 833.)
The requirement of an independent intent to maim was explained in People v. Lee (1990) 220 CA3d 320, and the cases discussed therein. Relying on People v. Anderson (1965) 63 C2d 351, 358-59; People v. Sears (1965) 62 C2d 737, 744-45; and People v. Campbell (1987) 193 CA3d 1653, 1653-68, Lee reasoned that an “indiscriminate attack” on the body of the victim is insufficient to prove specific intent to commit mayhem. Hence, even though the indiscriminate attack might clearly indicate an intent to kill as in Anderson, such an attack would not be sufficient to establish specific intent to maim.
Therefore, when the evidence might be interpreted by the jury to show an intent to kill, but not necessarily an intent to maim, the jury should be instructed that intent to permanently disable or disfigure must be found independent of the intent to kill.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 9.32a.
F 800.7 Aggravated Mayhem: Preliminary Fact Issues [Reserved]
F 800.8 Aggravated Mayhem: Unanimity/Duplicity/Multiplicity [Reserved]
F 800.9 Aggravated Mayhem: Lesser Offense Issues[Reserved]
F 800 NOTES
F 800 Note 1 Aggravated Mayhem: CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 801 [Mayhem]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 800 Note 2 Aggravated Mayhem: Requirement Of Great Bodily Injury (PC 205)
In People v. Pitts (1990) 223 CA3d 1547, 1559-60, the court held that great bodily injury is an element of mayhem. (See also People v. Keenan (1991) 227 CA3d 26, 33-34, 36.) Therefore, it could be argued that the definition of great bodily injury (CJ 17.20) should be included in the definition of mayhem in CJ 9.30 and CJ 9.32. Moreover, because GBI is an element of mayhem, a GBI enhancement (PC 12022.7) cannot be added to a mayhem charge. (People v. Hawkins (1993) 15 CA4th 1373, 1375.)
See also CALCRIM 3160.
CALJIC NOTE: See FORECITE F 9.30 n1.
F 800 Note 3 Aggravated Mayhem: Unlicensed Practice Of Medicine And Intent
(See People v. Pirnia DEPUBLISHED (2003) 113 CA4th 120 [the unlicensed practice of medicine can satisfy the wrongful act element of mayhem].)
CALJIC NOTE: See FORECITE F 9.30 n3.
F 800 Note 4 Aggravated Mayhem: Applicability Of Imperfect Self-Defense To Aggravated Mayhem(PC 205)
See FORECITE F 571 Note 7; but see CALCRIM 801, Related Issues re: PC 203.
