Return to CALJIC Part 9-12 – Contents
F 9.30 n1 Mayhem: Requirement Of Great Bodily Injury (PC 205).
In People v. Pitts (90) 223 CA3d 1547, 1559-60 [273 CR 389], the court held that great bodily injury is an element of mayhem. (See also People v. Keenan (91) 227 CA3d 26, 33-34, 36 [277 CR 687].) 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 (93) 15 CA4th 1373, 1375 [19 CR2d 434].)
F 9.30 n2 Mayhem: Requirement That Victim Be Alive.
(See People v. Jentry (77) 69 CA3d 615, 629 [138 CR 250].)
F 9.30 n3 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].)
F 9.30a
Mayhem: Victim Must Be Permanently Disabled Or Disfigured
(PC 205)
*Modify element 1 of CJ 9.30 to provide as follows [added language is capitalized; deleted language is between <<>>]:
1. One person unlawfully and by means of physical force CAUSED ANOTHER PERSON TO SUSTAIN PERMANENT DISABILITY OR DISFIGUREMENT <<of another person>>, and
Points and Authorities:
It is well established that mayhem “requires evidence showing that the disability or disfigurement in question is permanent. [Citation].” (People v. Dalton (62) 201 CA2d 396, 402 [20 CR 51]; see also People v. Hill (94) 23 CA4th 1566, 1571 [28 CR2d 783].) This is so even though PC 203 does not specifically mention this requirement. (Hill, 23 CA4th at 1574, n 4.) Hence, CJ 9.30 should be modified to require a jury finding upon this element. Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 9.30b
Definition Of Permanent Disfigurement
(PC 205)
*Add to CJ 9.30:
Not every visible scarring wound can be said to constitute the crime of mayhem. There must be serious permanent scarring. If you have a reasonable doubt whether the victim has suffered serious permanent scarring, you must give the defendant the benefit of that doubt and find [him] [her] not guilty of mayhem.
Points and Authorities:
“[N]ot every visible scarring wound can be said to constitute the felony crime of mayhem ….” (Goodman v. Superior Court (78) 84 CA3d 621, 625 [148 CR 799]; accord, People v. Pitts (90) 223 CA3d 1547, 1559 [273 CR 389]; People v. Newble (81) 120 CA3d 444, 453 [174 CR 637].) Because the disfiguring injury must be “permanent” (see FORECITE F 9.30a), 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 (91) 227 CA3d 26, 36 [mayhem supported by burning both breasts with cigarette, resulting in scars still visible three and one-half months later]; People v. Thomas (79) 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 (96) 46 CA4th 1767, 1774; People v. Hill (94) 23 CA4th 1566, 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”. Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
Relevance of Possible Alleviation By Medical Attention. In People v. Hill (94) 23 CA4th 1566, 1574, n 4 [28 CR2d 783], 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 (90) 229 CA3d 1417, 1442 [3 CR2d 747] [defendant cannot be denied an opportunity to disprove a requisite element of the charge]; but see FORECITE F 4.21 n11.)
F 9.30c
Modification When Crime Involves Fetal Victim
*Modify CJ 9.30 in paragraphs which include “human being(s)” as follows:
(See FORECITE 5.00b.)
