Return to CALJIC Part 9-12 – Contents
F 9.32 n1 Can Imperfect Self-Defense Reduce Mayhem To Assault Or Battery? (PC 205)
See FORECITE F 5.17 n7.
F 9.32 n2 Aggravated Mayhem: Applicability Of Imperfect Self-Defense To Aggravated Mayhem (PC 205).
See FORECITE F 5.17 n8.
F 9.32 n3 “Engaged In” vs. “Committed.”
(See FORECITE F 2.23.1 n1.)
F 9.32a
Aggravated Mayhem: Must Intend To Maim*
(PC 205)
*See Subsequent History Below
*To be added at end of CJ 9.32:
Even if the defendant intended to kill, a specific intent to disable or disfigure as defined above must be found in addition to and independent of the intent to kill.
Points and Authorities
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 (90) 218 CA3d 828, 833 [267 CR 283].)
The requirement of an independent intent to maim was explained in People v. Lee (90) 220 CA3d 320 [269 CR 434], and the cases discussed therein. Relying on People v. Anderson (65) 63 C2d 351, 358-59 [46 CR 763]; People v. Sears (65) 62 C2d 737, 744-45 [44 CR 330]; and People v. Campbell (87) 193 CA3d 1653, 1653-68 [239 CR 214], 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.
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).]
SUBSEQUENT HISTORY
In July 1990, FORECITE proposed modification of CJ 9.32 based upon the Lee and Ferrell cases. In the November 1990 CALJIC supplement, CJ 9.32 was modified in light of Lee and Ferrell. However, this modification failed to make clear to the jury that the intent to disable or disfigure must be found in addition to and independent of the intent to kill. The revised CALJIC instruction also failed to inform the jury that the intent may not be inferred from the injuries alone and that an indiscriminate attack is insufficient for mayhem. Accordingly, the FORECITE proposed instructions in FORECITE F 9.32a, b and c should still be requested.
F 9.32b
Aggravated Mayhem: Intent Not To Be Inferred From Injuries Alone
(PC 205)
*See Subsequent History in FORECITE F 9.32a
*To be added at end of CJ 9.32 (and after FORECITE F 9.32a):
The necessary specific intent to maim, cannot be inferred solely from evidence that the injury inflicted constituted mayhem. There must be other facts and circumstances which prove an intent to maim.
Points and Authorities
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 (90) 220 CA3d 320, 325 [269 CR 434]; People v. Ferrell 218 CA3d 828, 832-33 [267 CR 283]; 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].)
CJ 9.32 does not clearly convey this requirement.
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).]
[See Opinion Bank # O-217 for an unpublished opinion on this issue.]
F 9.32c
Aggravated Mayhem: Indiscriminate Attack Insufficient For Mayhem*
(PC 205)
*Add to CJ 9.32:
*See Subsequent History in FORECITE F 9.32a
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. 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.
Points and Authorities
If the evidence shows an indiscriminate attack rather than a specific intent to maim, conviction of aggravated mayhem is unwarranted. (People v. Lee (90) 220 CA3d 320, 325 [269 CR 434].) 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 (88) 45 C3d 1126, 1137-41 [248 CR 600]; People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; see also People v. Tewksbury (76) 15 C3d 953, 963-64, fn 9 [127 CR 135].) [See also FORECITE PG III(A), “Pinpoint Instructions”.]
The due process clause of the 14th Amendment of the federal constitution requires the jury to find all elements of the offense beyond a reasonable doubt. (In re Winship (70) 397 US 358, 364 [25 LEd2d 368].)
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 9.32d
Modification When Crime Involves Fetal Victim
*Modify CJ 9.32 in paragraphs which include “human being(s)” as follows:
(See FORECITE 5.00b.)
