Riverside County Super. Ct. No. RIF139207, Ct. App. 4/1 D059013 Mark E. Johnson, Judge.
Carl Fabian, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Steven T. Oetting, Andrew S. Mestman, Gil Gonzalez and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Penal Code section 203, which defines the offense of simple mayhem, provides that “[e]very person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.” Though the provision makes no mention of “serious bodily injury, ” the pattern jury instruction on mayhem (CALCRIM No. 801) requires the prosecution to prove that the defendant caused the victim “serious bodily injury.” The issue here is whether CALCRIM No. 801 properly includes this requirement as a necessary clarification of section 203.
For reasons that follow, we hold that the instruction improperly requires proof of a “serious bodily injury.”
Factual and Procedural Background
On the evening of August 12, 2007, defendant Serafin Santana and his friends attended a party given by his coworker, Juan Gomez, in Moreno Valley. Around 2:00 a.m., Bryan Vallejo, a 15-year-old neighbor who lived three houses down from Gomez, was in his front yard with his friend, Andrew Ortiz. Defendant and several men approached Vallejo and Ortiz. One of the men with defendant asked Vallejo about the possibility of getting marijuana. Vallejo said he would try to get some. When Vallejo later told the men he would not be able to get the drugs, they threw trash on Vallejo’s lawn and an argument ensued. After exchanging some words, the group moved up the street.
Several men from defendant’s group — but not defendant — began to fight Vallejo. When Ortiz started to move towards Vallejo, defendant pointed a gun at Ortiz’s head and said, “This bitch ain’t gonna do nothin’.” Defendant struck Ortiz with his gun on the back of the head and on the forehead, and then ran towards Vallejo. Ortiz yelled, “He has a gun.” After being struck with an object that felt like metal, Vallejo fell to the ground. The men continued to beat Vallejo and then ran off and got into a white Cadillac parked nearby. Defendant walked towards Vallejo, who was still lying on the ground. Standing three to four feet from Vallejo, defendant shot him in the leg three times with a small black revolver. Defendant then ran across the street and got into another car, which drove away. Vallejo was taken to the hospital and treated for his injuries. He had been shot three times in his left leg and buttock area. The wounds were “through and through, ” i.e., all with exit points, and required no stitches. Vallejo, however, felt pain when he changed the bandages and whenever he walked or sat. Also, for a period of time, he had to walk with a cane and wear slippers. He was unable to play football when he returned to school. Both Vallejo and Ortiz identified defendant as the shooter.
Defendant was charged with one count of attempted mayhem based on a disabling injury as to Vallejo (§§ 203, 664, subd. (a); count 1), and two counts of assault with a firearm with respect to Vallejo and Ortiz (§ 245, subd. (a)(2); counts 2 & 3). The amended information alleged that defendant personally and intentionally used a firearm resulting in great bodily injury (§ 12022.53, subd. (d)) as to count 1; that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) as to counts 1 and 2; and that he personally used a firearm (§ 12022.5, subd. (a)) as to counts 2 and 3. After the jury was unable to reach a verdict, the first trial ended in a mistrial. A second jury found defendant guilty on all three counts and found true all the enhancement allegations. The trial court sentenced defendant to 25 years to life, plus four years four months in state prison.
Defendant appealed. With respect to his conviction for attempted mayhem, he asserted the trial court erred by instructing the jury that “a gunshot wound” may constitute a “serious bodily injury” for purposes of the offense. (See CALCRIM No. 801.) The Court of Appeal majority agreed with defendant that the instruction was unfairly argumentative and created an imbalance in the prosecution’s favor: “The court’s erroneous instruction essentially suggested to the jury that it could find Santana guilty of attempted mayhem if it found merely that he intended to inflict a gunshot wound. The instruction thus removed from the jury’s consideration the key question whether Santana intended to inflict a wound that would seriously impair Vallejo’s physical condition by disabling him.” The majority found the error prejudicial and reversed the attempted mayhem conviction.
Acting Presiding Justice Benke dissented. She found no instructional error, but also concluded any error would be harmless: “I am at a loss to understand how this court can say the trial court’s instruction, whether deficient or not, had any bearing on the verdict when Santana put three bullets into the same limb.”
We granted review to decide whether CALCRIM No. 801 correctly requires the prosecution to prove that a defendant caused “serious bodily injury.”
A. Origins of Mayhem and Section 203
First codified in 1850, the crime of mayhem originated in the English common law. (Stats. 1850, ch. 99, § 46, pp. 233-234; People v. Sekona (1994) 27 Cal.App.4th 443, 453-456 (Sekona) [discussing origins of mayhem]; see People v. Keenan (1991) 227 Cal.App.3d 26, 33 (Keenan) [the word “mayhem” is “older form of the word ‘maim’ ”].) The early common law crime of mayhem prohibited a person from dismembering or disabling another person, causing “an injury which substantially reduced the victim’s formidability in combat.” (Goodman v. Superior Court (1978) 84 Cal.App.3d 621, 623 (Goodman); see LaFave, Substantive Criminal Law (2d ed. 2003) Physical Harm & Apprehension, § 16.5, p. 598 (LaFave).) Though not displacing the common law definition, England’s Coventry Act, enacted in 1670, later expanded the crime of mayhem to include “mere disfigurement without an attendant reduction in fighting ability, ” if the injury was intentionally inflicted. (Goodman, supra, 84 Cal.App.3d at p. 624; see Perkins & Boyce, Criminal Law (3d ed. 1982) Other Offenses Against the Person, § 8, p. 240.)
Following two previous statutory enactments in 1850 and 1856, the crime of mayhem was codified as section 203 as part of the original Penal Code enacted in 1872. (Sekona, supra, 27 Cal.App.4th at pp. 454-455.) After a minor amendment in 1874, section 203 currently provides: “Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.” (See Code Amends. 1873-1874, ch. 614, § 17, p. 427 [replacing “cuts out” with “cuts”]; see also Stats. 1989, ch. 1360, § 106, p. 5864 [no change after routine code maintenance].) Section 203 generally prohibits six injurious acts against a person, three that specify a particular body part and three that do not: (1) dismembering or depriving a part of someone’s body; (2) disabling or rendering useless a part of someone’s body; (3) disfiguring someone; (4) cutting or disabling the tongue; (5) putting out an eye; and (6) slitting the nose, ear or lip. (See CALCRIM No. 801 [delineating six types of injuries].) California remains one of only a few jurisdictions ...