Filed 6/10/13




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                                S198324
           v.                        )
                                     )                         Ct.App. 4/1 D059013
SERAFIN SANTANA,                     )
                                     )                          Riverside County
           Defendant and Appellant.  )                       Super. Ct. No. RIF139207
____________________________________)


         Penal Code1 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.”


1        All further statutory references are to the Penal Code unless otherwise
noted.



                                            1
                   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.

                                          2
       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.”

                                           3
       We granted review to decide whether CALCRIM No. 801 correctly
requires the prosecution to prove that a defendant caused “serious bodily injury.”
                                     DISCUSSION

       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.



                                           4
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 that have retained mayhem as a distinct crime. (See LaFave, supra, §
16.5(b), p. 599 & fn. 6; see, e.g., Cole v. Young (7th Cir. 1987) 817 F.2d 412, 417
[“mayhem has become something of an anachronism in Wisconsin‟s criminal law,
largely superseded by more „modern‟ crimes”].)
       Though section 203 contains “verbal vestiges” of the common law and the
Coventry Act of 1670, “ „the modern rationale of the crime may be said to be the
preservation of the natural completeness and normal appearance of the human face
and body, and not, as originally, the preservation of the sovereign‟s right to the
effective military assistance of his subjects.‟ ” (People v. Newble (1981) 120
Cal.App.3d 444, 451; see Keenan, supra, 227 Cal.App.3d at p. 34 [describing
cases that “have expanded mayhem to include acts not within the original
definition of the crime”].) In other words, section 203 “protects the integrity of
the victim‟s person.” (People v. Page (1980) 104 Cal.App.3d 569, 578 (Page);
see People v. Green (1976) 59 Cal.App.3d 1, 3; see also Keenan, supra, 227
Cal.App.3d at p. 34 [recognizing cases as “practical and proper applications of an
old statute to modern-day reality”].)
       For example, although “not every visible scarring wound” may establish
mayhem under section 203 (Goodman, supra, 84 Cal.App.3d at p. 625), the
following disfiguring injuries have given rise to a conviction: cigarette burns to

                                          5
both breasts (Keenan, supra, 227 Cal.App.3d at p. 29); a breast nearly severed by
a box cutter (People v. Pitts (1990) 223 Cal.App.3d 1547, 1559 (Pitts)); a three-
inch facial laceration from a fingernail file (People v. Newble, supra, 120
Cal.App.3d at p. 448); forcible tattoos on the breast and abdomen (Page, supra,
104 Cal.App.3d at p. 576); and a five-inch facial wound from a knife (Goodman,
supra, 84 Cal.App.3d at p. 623). Other injuries constituting mayhem under
section 203 include blinding of an eye from a kick (Sekona, supra, 27 Cal.App.4th
at p. 457); severe facial trauma requiring metal plates and wires to keep the facial
bones together (People v. Hill (1994) 23 Cal.App.4th 1566, 1570 (Hill)); a bitten-
through lower lip (People v. Caldwell (1984) 153 Cal.App.3d 947, 952); a broken
ankle that had not completely healed after six months (People v. Thomas (1979)
96 Cal.App.3d 507, 512 (Thomas)); and an eye “put out” by a machete (People v.
Green, supra, 59 Cal.App.3d at p. 4).

       B. CALCRIM No. 801
       The issue here involves CALCRIM No. 801, the standard jury instruction
defining mayhem.2 As unmodified, CALCRIM No. 801 provides in full:
       “The defendant is charged [in Count _____] with mayhem [in violation of
Penal Code section 203].
       “To prove that the defendant is guilty of mayhem, the People must prove
that the defendant caused serious bodily injury when (he/she) unlawfully and
maliciously:
       “[1. Removed a part of someone‟s body(;/.)]


2      Because defendant was charged with attempted mayhem, the trial court also
instructed with a modified version of CALCRIM No. 460, defining attempt with
respect to the offense of mayhem. The parties do not dispute the propriety of that
instruction as given; thus, we do not discuss it here.



                                          6
        “[OR]
        “[2. Disabled or made useless a part of someone‟s body and the disability
was more than slight or temporary(;/.)]
        “[OR]
        “[3. Permanently disfigured someone(;/.)]
        “[OR]
        “[4. Cut or disabled someone‟s tongue(;/.)]
        “[OR]
        “[5. Slit someone‟s (nose[, ]/ear[,]/ [or] lip) (;/.)]
        “[OR]
        “[6. Put out someone‟s eye or injured someone‟s eye in a way that so
significantly reduced (his/her) ability to see that the eye was useless for the
purpose of ordinary sight.]
        “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.
        “[A serious bodily injury means a serious impairment of physical condition.
Such an injury may include[, but is not limited to]: (protracted loss or impairment
of function of any bodily member or organ/ a wound requiring extensive suturing/
[and] serious disfigurement).]
        “[_________________ <Insert description of injury when appropriate; see
Bench Notes> is a serious bodily injury.]
        “[A disfiguring injury may be permanent even if it can be repaired by
medical procedures.]” (CALCRIM No. 801; see also CALJIC No. 9.30 [defining
mayhem].)
        In this case, the Court of Appeal majority concluded the trial court erred by
modifying the instruction as follows: “To prove that the defendant is guilty of

                                             7
mayhem, the People must prove that the defendant caused serious bodily injury
when he unlawfully and maliciously disabled or made useless a part of someone‟s
body and the disability was more than slight or temporary. [¶] 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. [¶] A serious
bodily injury means a serious impairment of physical condition. Such an injury
may include a gunshot wound.” (Italics added.)
       The majority below concluded that, by including “a gunshot wound” as an
example — while omitting other offered examples — of what may constitute a
serious bodily injury, the modified instruction “failed to inform the jury
concerning the defining characteristic of the offense of attempted mayhem, i.e.,
the nature and severity of the type of injury that the defendant intended to inflict.”
The majority also found the instruction argumentative because it invited the jury to
focus on the prosecution‟s evidence that defendant shot Vallejo, and, based on that
evidence, to infer that defendant had the requisite specific intent to commit the
completed offense of mayhem. In general, the majority found the instruction
“offered no guidance as to the main issue with respect to what may be deemed a
serious bodily injury for purposes of the offense of mayhem.”
       Defendant maintains that the Court of Appeal majority was correct in
criticizing the modified instruction. The People respond that it does not matter
whether or how the trial court erred in instructing on the serious bodily injury
requirement; any error was harmless because the pattern instruction should not
have included this requirement in the first place. Further, the People maintain that
“requiring the proof of a „serious bodily injury‟ over and above the statutory
language creates an increased burden on the prosecution and could lead to jury
confusion and unintended consequences.” Defendant, however, counters that
except for dismembering someone or putting out someone‟s eye, the injurious acts

                                          8
listed in section 203 are not self-explanatory; thus, any jury instruction must
explain the requisite degree of severity for an injury to qualify as a mayhem
injury. In his case, he argues that the trial court added to the confusion by, among
other things, failing to include the pattern instruction‟s offered examples of serious
bodily injuries (“protracted loss or impairment of function of any bodily member
or organ,” “a wound requiring extensive suturing,” “serious disfigurement”)
(CALCRIM No. 801); these examples would have directed the jury to focus on the
nature and severity of the victim‟s wounds. Relying on People v. Ausbie (2004)
123 Cal.App.4th 855, 861 (Ausbie), defendant adds that because a mayhem injury
necessarily includes “a serious impairment of physical condition,” CALCRIM No.
801 properly includes this as a definition of a serious bodily injury.
       As both parties recognize, section 203 does not mention “serious bodily
injury” or “serious impairment of physical condition.” Although section 203 has
remained unchanged since 1874, cases have periodically clarified the statutory
requirements for mayhem. For instance, with respect to a disabling injury, the
victim‟s disability must be more than “slight and temporary.” (Thomas, supra, 96
Cal.App.3d at p. 512.) Similarly, case law has “grafted” on to section 203 the
requirement that a disfiguring injury be permanent (People v. Newby (2008) 167
Cal.App.4th 1341, 1347; see Hill, supra, 23 Cal.App.4th at p. 1574, fn. 4); in that
regard, “an injury may be considered legally permanent for purposes of mayhem
despite the fact that cosmetic repair may be medically feasible.” (Hill, supra, 23
Cal.App.4th at pp. 1574-1575; see Keenan, supra, 227 Cal.App.3d at p. 36, fn. 6.)
And finally, as used in section 203, the word “maliciously” “imports an intent to
vex, annoy, or injure another person, or an intent to do a wrongful act.” (People v.
Bryan (1961) 190 Cal.App.2d 781, 787; see People v. Lopez (1986) 176
Cal.App.3d 545, 550.) These clarifications have made their way into the jury
instructions defining the mayhem offense, including the current version of

                                          9
CALCRIM No. 801 at issue here.3 (See CALJIC No. 9.30; CALCRIM No. 801.)
While a jury instruction should typically track the language of a statute when
feasible under the circumstances (see People v. Failla (1966) 64 Cal.2d 560, 565),
an “instruction that clarifies the application of statutory language in a particular
context does not „add to the words of a statute.‟ ” (Torres v. Parkhouse Tire
Service, Inc. (2001) 26 Cal.4th 995, 1003-1004.)
       Here, the “serious bodily injury” language first appeared in CALCRIM No.
801 in August 2006. This language — which was added months after the original
CALCRIM instruction was approved in January 2006 — was not part of an earlier
instruction, CALJIC No. 9.30. The “Authority” section following CALCRIM No.
801 indicates that the instruction‟s definition of “serious bodily injury” came from
the 1990 Pitts decision, which held that “great bodily injury is an element of
mayhem.” (Pitts, supra, 223 Cal.App.3d at p. 1558, italics added; see 1 Judicial
Council of Cal., Crim. Jury Instns. (2012) Authority for CALCRIM No. 801, p.
589.) While the definition appears drawn from Pitts, the instruction does not
explain what authority compelled insertion of the “serious bodily injury”
requirement in the first place. Not surprisingly, the parties disagree on the
requirement‟s genesis in CALCRIM No. 801. We must determine whether the
pattern instruction‟s addition of a “serious bodily injury” requirement properly
clarifies section 203. (See Torres v. Parkhouse Tire Service, Inc, supra, 26
Cal.4th at pp. 1003-1004.) We begin with a discussion of Pitts.
       As noted, CALCRIM No. 801 explains that the definition of “serious
bodily injury” is drawn from Pitts, supra, 223 Cal.App.3d 1547, in which the

3      We do not express any view on whether these particular cases correctly
interpret section 203.




                                          10
defendant was convicted of mayhem (§ 203) for nearly severing the victim‟s left
breast with a box cutter. The Pitts Court of Appeal reversed the defendant‟s great
bodily injury enhancement (§ 12022.7, subd. (f)) because it concluded that great
bodily injury is an element of mayhem. (Pitts, supra, 223 Cal.App.3d at pp. 1558-
1559; § 12022.7, subd. (f) [defining “great bodily injury” as “a significant or
substantial physical injury”].) Explaining that mayhem is a “cruel and savage
crime,” it rejected the People‟s claim that “it is possible in some cases to commit
mayhem without inflicting great bodily injury.” (Pitts, supra, 223 Cal.App.3d at
p. 1559.) Subsequent cases have accepted Pitts‟s holding that great bodily injury
is an element of mayhem. (See, e.g., People v. Brown (2001) 91 Cal.App.4th 256,
272 [“Mayhem cannot be committed without the infliction of great bodily
injury.”]; Hill, supra, 23 Cal.App.4th at p. 1575 [“Great bodily injury is
unquestionably an element of mayhem”]; Keenan, supra, 227 Cal.App.3d at p. 36,
fn. 7 [“We agree mayhem requires great bodily injury”].) There is no mention in
Pitts or its progeny of “serious bodily injury” as it applies to mayhem.
       We recognize that the terms “serious bodily injury” and “great bodily
injury” have been described as “ „ “essential[ly] equivalent” ‟ ” (People v. Sloan
(2007) 42 Cal.4th 110, 117) and as having “substantially the same meaning”
(People v. Beltran (2000) 82 Cal.App.4th 693, 696). (See, e.g., People v. Hawkins
(1993) 15 Cal.App.4th 1373, 1375 [great bodily injury is element of felony battery
with serious bodily injury (§ 243, subd. (d)].) However, the terms in fact “have
separate and distinct statutory definitions.” (People v. Taylor (2004) 118
Cal.App.4th 11, 24 [“Unlike serious bodily injury, the statutory definition of great
bodily injury does not include a list of qualifying injuries”].) This distinction may
make a difference when evaluating jury instructions that provide different
definitions for the two terms. (See id. at p. 25 [“In these circumstances, the jury‟s
finding of serious bodily injury cannot be deemed equivalent to a finding of great

                                         11
bodily injury.”].) Thus, in this context where we must consider a jury instruction‟s
precise language, we cannot conclude that the offense of mayhem includes a
serious bodily injury requirement simply based on cases holding that mayhem
includes a great bodily injury component. Defendant nonetheless maintains that
the definition of “serious bodily injury” is required to give necessary guidance to
the jury.
       As both parties note, the instruction‟s definition of “serious bodily injury”
is apparently drawn from section 243, subdivision (f)(4) (§ 243(f)(4)), which
defines “serious bodily injury” for purposes of felony battery.4 CALCRIM No.
801 specifies that the six injurious acts giving rise to mayhem under section 203
must also be shown to rise to the level of serious bodily injury. Pursuant to
section 243(f)(4), the instruction defines “serious bodily injury” as a “serious
impairment of physical condition,” and then illustrates such injuries by a
nonexclusive list of qualifying examples. (See ante, at pp. 6-7 [setting out
instruction in full].) However, as we explain below, CALCRIM No. 801‟s
inclusion of a “serious bodily injury” requirement is problematic and inconsistent
with section 203.
       For instance, the instruction provides that the People must prove a
defendant “caused serious bodily injury when (he/she) unlawfully and
maliciously: [¶] . . . [¶] Permanently disfigured someone.” (CALCRIM No. 801,
italics added.) Yet the instruction also adds that a “serious bodily injury” includes

4       This provision states: “ „Serious bodily injury‟ means a serious impairment
of physical condition, including, but not limited to, the following: loss of
consciousness; concussion; bone fracture; protracted loss or impairment of
function of any bodily member or organ; a wound requiring extensive suturing;
and serious disfigurement.” (§ 243(f)(4); see also § 417.6, subd. (b) [same
definition of “serious bodily injury”].) Loss of consciousness, concussion, and
bone fracture, however, are not included as examples in CALCRIM No. 801.



                                         12
“serious disfigurement.” (Ibid., italics added.) These two modifiers, however, are
not synonymous or interchangeable. (See Silvers v. State (Ga.Ct.App. 2000) 538
S.E.2d 135, 136 [“ „To constitute the crime of aggravated battery, there is no
requirement that, in addition to being “serious,” the disfigurement of a victim be
permanent‟ ”]; see also Ohio Rev. Code Ann., § 2901.01, subd. (A)(5)(d)
[“ „Serious physical harm to persons‟ ” includes “[a]ny physical harm that
involves some permanent disfigurement or that involves some temporary, serious
disfigurement”]; cf. Keenan, supra, 227 Cal.App.3d at pp. 35-36 [cigarette burns
to breasts “clearly involved a serious permanent disfigurement” under § 203 (fn.
omitted)].) Thus, a juror could reasonably be confused as to whether a
disfigurement must be serious, permanent or both.
       Also, CALCRIM No. 801‟s examples of “serious bodily injury”
(“protracted loss or impairment of function of any bodily member or organ,” “a
wound requiring extensive suturing,” “serious disfigurement”) are inconsistent
with section 203. As explained above (see ante, at p. 5), section 203 includes
among the injurious acts constituting mayhem, cutting or disabling the tongue and
slitting the nose, ear or lip. Nothing suggests that these injuries must involve
protracted loss or impairment of function, require extensive suturing, or amount to
serious disfigurement. While these examples are merely illustrative and do not
constitute serious bodily injuries as a matter of law (see People v. Nava (1989)
207 Cal.App.3d 1490, 1497-1498), they underscore how imprecise and ill-fitting
the definition is for the statutory offense of mayhem.
       In sum, we see no basis — compelled either by case law or by the need to
give jurors further guidance — to superimpose a wholesale definition of “serious
bodily injury” from section 243(f)(4) in the instruction. By delineating the type of
injuries that will suffice for mayhem, the Legislature itself established an injury‟s
requisite level of seriousness in section 203, and when needed, subsequent cases

                                          13
have given further amplification. (See People v. Newby, supra, 167 Cal.App.4th
at p. 1347 [disfiguring injury must be permanent]; Thomas, supra, 96 Cal.App.3d
at p. 512 [disabling injury must more than “slight and temporary”].) To add a
serious bodily injury requirement to the specific injuries listed in section 203 is
more confusing than elucidating.
       We also conclude that Ausbie, supra, 123 Cal.App.4th 855, on which
defendant relies, does not support instructing the jury on a separate “serious bodily
injury” requirement for mayhem. In Ausbie, which addressed what offenses were
necessarily included in mayhem, the Court of Appeal accepted the People‟s
concession that “battery with serious bodily injury is a necessarily included
offense of mayhem . . . .” (123 Cal.App.4th at p. 859; see id. at p. 860, fn. 2;
People v. Reed (2006) 38 Cal.4th 1224, 1227 [discussing necessarily included
offenses].) In rejecting the defendant‟s claim that assault by means of force likely
to produce great bodily injury (§ 245, former subd. (a)(1), amended by Stats. 1993,
ch. 369, § 1, p. 2168) is a necessarily included offense of mayhem, the court
repeatedly explained that section 203 “itself does not define the nature of force
required but focuses instead on the nature of the injuries inflicted.” (Ausbie,
supra, 123 Cal.App.4th at p. 861.) Defendant maintains this language compels
inclusion of a “serious bodily injury” requirement, namely, its definition as a
“serious impairment of physical condition,” in the mayhem instruction. Likewise,
although the Court of Appeal majority here did not discuss the specific elements
of mayhem (because the issue was not before it), it repeatedly cited Ausbie and
referred to what it considered the “defining characteristic” of the mayhem offense,
i.e., “the nature and severity of the type of injury that the defendant intended to
inflict,” when discussing the specific intent required to find defendant guilty of
attempted mayhem.



                                          14
       We first note that apart from accepting the People‟s concession that battery
with serious bodily injury is a necessarily included offense of mayhem, the Ausbie
court did not hold that serious bodily injury is a separate element of mayhem.
Rather than setting out a specific requirement of mayhem, the Ausbie court
emphasized the nature and severity of the mayhem injuries because it sought to
distinguish mayhem from assault by means of force likely to produce great bodily
injury (§ 245, former subd. (a)(1), amended by Stats. 1993, ch. 369, § 1, p. 2168).
(Ausbie, supra, 123 Cal.App.4th at pp. 861-862.) More to the point, even if
Ausbie is correct that section 203 emphasizes the “nature of the injuries inflicted”
(123 Cal.App.4th at p. 861), this does not mean that the listed injuries necessarily
constitute serious bodily injuries as defined, or that the instruction should include
serious bodily injury as a separate requirement in addition to instructing on the six
specific injuries. 5 Based on the foregoing, we conclude that Ausbie does not stand
for the proposition that proof of serious bodily injury as a separate element is
required under CALCRIM No. 801.6

       C. Instructional Error and Prejudice
       Notwithstanding the erroneous addition of a “serious bodily injury”
requirement, the modified instruction did not prejudice defendant in that regard
because the prosecution was held to an arguably higher burden of proof. (See
People v. Dayan (1995) 34 Cal.App.4th 707, 717 [“Defendant cites no authority


5        Defendant nonetheless contends that among the cases discussing the
severity of various mayhem injuries (see ante, at pp. 5-6), there is not “a single
case where the injury could not be regarded as a „serious impairment of physical
condition.” Whether this observation is true or not, it does not answer the question
whether such a serious impairment must be proven in a mayhem case.
6        We disapprove People v. Ausbie, supra, 123 Cal.App.4th 855, to the extent
it is inconsistent with this opinion.



                                          15
for the startling proposition that if a court‟s instruction erroneously adds an
element to an offense, a conviction must be reversed when there is insufficient
evidence to support the added, but legally unnecessary, element.”].) However, the
instruction explained that a serious bodily injury “may include a gunshot wound,”
which raises the question whether the instruction was argumentative. Defendant
maintains that it was argumentative because it improperly directed the jury to the
prosecution‟s evidence and “direct[ed] the jury to find a mayhem injury by virtue
of finding a firearm injury.” The People, however, contend that because the
instruction stated an injury “may” include a gunshot wound, the instruction did not
thereby “direct a verdict in favor of the prosecution” or otherwise relieve the
prosecution of the burden of proving the necessary elements for mayhem. In
addition, they contend that any error was harmless.
       A jury instruction is improperly argumentative if “it would invite the jury to
draw inferences favorable to the defendant [(or the prosecution)] from specified
items of evidence on a disputed question of fact, and therefore properly belongs
not in instructions, but in the arguments of counsel to the jury.” (People v. Wright
(1988) 45 Cal.3d 1126, 1135; see People v. Mincey (1992) 2 Cal.4th 408, 437.)
“In a proper instruction, „[what] is pinpointed is not specific evidence as such, but
the theory of the defendant‟s [(or the prosecution‟s)] case.‟ ” (People v. Wright,
supra, 45 Cal.3d at p. 1137.) We review an argumentative instruction for
harmless error under People v. Watson (1956) 46 Cal.2d 818, 836. (People v.
Earp (1999) 20 Cal.4th 826, 887.) “[U]nder Watson, a defendant must show it is
reasonably probable a more favorable result would have been obtained absent the
error.” (People v. Mena (2012) 54 Cal.4th 146, 162.)
       We need not decide whether the instruction was argumentative because
even assuming error, we conclude it was harmless under People v. Watson, supra,
46 Cal.2d at page 836. Because defendant was charged with attempted mayhem,

                                          16
the issue was not whether defendant actually inflicted a disabling injury, but
whether he intended to do so. (See People v. Kipp (1998) 18 Cal.4th 349, 376
[“An attempt to commit a crime requires a specific intent to commit the crime and
a direct but ineffectual act done toward its commission.”]; see also CALCRIM No.
460; People v. Nolan (1932) 126 Cal.App. 623, 638.)
       The record here shows that defendant stood at close range and fired three
shots with a .38-caliber revolver into the leg and buttock area of Vallejo, who lay
unresisting on the ground. Defense counsel did not dispute Vallejo suffered
gunshot wounds, telling the jury the case was about “one question: Identity.
Nothing else.” Moreover, with respect to Vallejo, the jury found true the
allegations that defendant personally and intentionally used a firearm resulting in
great bodily injury (§ 12022.53, subd. (d)), and personally inflicted great bodily
injury (§ 12022.7, subd. (a)). This evidence strongly supports a finding that
defendant intended to inflict a disabling injury. We see no reasonable probability
the result would have been more favorable to defendant had the court not given an
instruction highlighting the victim‟s gunshot wound.

                                   CONCLUSION

       We reverse the judgment of the Court of Appeal and remand the case to
that court for further proceedings consistent with our opinion.

                                                                  CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.


                                         17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Santana
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 200 Cal.App.4th 182
Rehearing Granted

__________________________________________________________________________________

Opinion No. S198324
Date Filed: June 10, 2013
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Mark E. Johnson

__________________________________________________________________________________

Counsel:

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.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Carl Fabian
3232 Fourth Avenue
San Diego, CA 92103
(619) 692-0440

Stacy Tyler
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2458
