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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Travis MANUEL, Defendant and Appellant.

No. F042927.

Decided: June 23, 2004

Sandra Uribe, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Jeffrey D. Firestone and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant Travis Manuel appeals from a conviction of mayhem.   He argues that the trial court erred in failing to give, sua sponte, a jury instruction on battery with serious bodily injury as a lesser-included offense of mayhem and aggravated mayhem.   He also contends that the trial court abused its discretion in sentencing him to the upper term of imprisonment.

In the published portion of this opinion, we hold that battery with serious bodily injury is a lesser-included offense of mayhem and aggravated mayhem, but the evidence nevertheless did not warrant the instruction.   In the unpublished portion, we hold that the court did not err in sentencing.   We affirm.


While living at the home of his father, Rudy Manuel, defendant became embroiled in an argument with his father and his father's girlfriend, the victim Sundra Ironshield.   The argument concerned defendant's girlfriend, of whom Rudy and Ironshield disapproved.   During the argument, Rudy asserted that defendant was acting crazy.   Defendant said, “I'll show you crazy,” went to his bedroom, and returned with two weapons described as samurai swords.   Defendant brandished one sword.   Ironshield grabbed the blade and made defiant statements.

A melee ensued in which Ironshield sustained severe injuries.   She was taken to a hospital where emergency surgery was performed to repair lacerations to her right hand, left arm, forehead, cheek, and chest.   The main artery in her left arm was severed and its repair required a graft of tissue from her leg.   The muscles of the left arm were also severed.   The tendons of the pinky and ring finger of her right hand were severed and had to be surgically repaired.   The facial lacerations left scars that were still visible at the time of trial, more than nine months later.

The District Attorney filed an information charging four counts:  1) attempted murder (Pen.Code, §§ 664/187) 1 ;  2) aggravated mayhem (§ 205);  3) making criminal threats (§ 422);  and 4) preventing or dissuading a witness from testifying by threats of force or violence (§ 136.1, subd. (c)(1)).   The information included special allegations that the attack was committed with a deadly or dangerous weapon (§ 12022, subd. (b)(1)) and caused great bodily injury (§ 12022.7, subd. (a)).  After a jury trial, the jury acquitted defendant of all the charged offenses.   On count two, however, it convicted him of the lesser-included offense of simple mayhem (§ 203).   The weapon allegation was found true.   The court sentenced defendant to the upper term of imprisonment of eight years and imposed a one-year enhancement for the use of a deadly weapon.


I. Jury instructions

 The court gave the jury an instruction on simple mayhem as a lesser-included offense of the charged offense of aggravated mayhem.   Defendant argues that the court erred in failing also to give, on its own motion, an instruction on battery with serious bodily injury (§ 243, subd. (d)) as a lesser-included offense of aggravated and simple mayhem.   We agree that battery with serious bodily injury was a lesser-included offense of aggravated and simple mayhem, but the evidence did not warrant an instruction on that offense.   Consequently, the court did not err.

 A trial court must give an instruction, sua sponte, on a lesser-included offense “ ‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.’ ”   (People v. Barton (1995) 12 Cal.4th 186, 194-195, 47 Cal.Rptr.2d 569, 906 P.2d 531.)   The court must give the lesser-included offense instruction only if the evidence that the offense was less than charged is substantial enough to merit consideration by the jury.  (Id. at p. 195, fn. 4, 47 Cal.Rptr.2d 569, 906 P.2d 531.) In other words, if a reasonable finder of fact could conclude both that the evidence supported the lesser offense and that it did not support the greater, the instruction on the lesser offense must be given.   Instructions must be given on all lesser-included offenses of which this is true.  (People v. Breverman (1998) 19 Cal.4th 142, 161, 77 Cal.Rptr.2d 870, 960 P.2d 1094.)

 One offense is a lesser-included offense of another if either of two tests, the statutory elements test and the accusatory pleading test, is satisfied.   Under the statutory elements test, an offense is included in the charged offense if all its elements are among those in the statutory definition of the charged offense.   Under the accusatory pleading test, an offense is included in the charged offense if the facts actually alleged in the accusatory pleading include all its elements.  (People v. Birks (1998) 19 Cal.4th 108, 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)   In this case, the information charged aggravated mayhem using the statutory language only;  no specific facts other than the names of the defendant and victim and the date of the offense are alleged.   As a result, only the statutory elements test applies.

Battery with serious bodily injury is defined in sections 242 and 243, subdivisions (d) and (f)(3):

“ § 242.  Battery defined

“BATTERY DEFINED.   A battery is any willful and unlawful use of force or violence upon the person of another.

“ § 243.  Battery;  punishment [¶] ․ [¶]

“(d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment in the state prison for two, three, or four years. [¶] ․ [¶]

“(f) As used in this section:  [¶] ․ [¶]

“(4) ‘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.”

Aggravated mayhem is defined in section 205:

“A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, 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․”

Simple mayhem is defined in section 203:

“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.”

 Simple mayhem is a general-intent crime.   Unlike aggravated mayhem, it does not require a specific intent to maim or disfigure.  (People v. Reed (1984) 157 Cal.App.3d 489, 492, 203 Cal.Rptr. 659;  People v. Wright (1892) 93 Cal. 564, 566, 29 P. 240.)   For simple mayhem, as well as for aggravated mayhem, the disability or disfigurement must be “permanent.”  (People v. Hill (1994) 23 Cal.App.4th 1566, 1571, 28 Cal.Rptr.2d 783; 1 Witkin & Epstein, Cal.Criminal Law (3d ed.   2000) Crimes Against the Person, § 86, p. 702.)   Permanence may be inferred from an injury's long duration.  (See, e.g., People v. Thomas (1979) 96 Cal.App.3d 507, 512, 158 Cal.Rptr. 120 [broken ankle causing disability lasting over six months sufficient to support charge of mayhem], overruled on other grounds by People v. Kimble (1988) 44 Cal.3d 480, 498, 244 Cal.Rptr. 148, 749 P.2d 803.)   The possibility of medical alleviation of an injury that would otherwise be permanent does not defeat a mayhem conviction.   (People v. Hill, supra, 23 Cal.App.4th at pp. 1572-1573, 28 Cal.Rptr.2d 783.)

It is apparent that all the elements of battery with serious bodily injury are included in the definitions of both mayhem and aggravated mayhem.   Anyone who has committed mayhem or aggravated mayhem (a) has necessarily acted with at least a general intent to commit the harmful act, and (b) has necessarily caused at least a serious bodily injury as defined in section 243, subdivision (f)(4).   These are all the elements of battery with serious bodily injury.   The thrust of the People's argument is there are no cases holding that they are included, but that obviously does not prevent us from applying the established test and drawing a different conclusion.

 Here, the evidence did not warrant an instruction on battery with serious bodily injury.   First, there is no evidence that the general-intent component of mayhem was absent.   The required general intent is shown where “a defendant engages in unlawful conduct which foreseeably results in his victim's disfigurement.”  (People v. Reed, supra, 157 Cal.App.3d at p. 492, 203 Cal.Rptr. 659.)   Plainly, attacking Ironshield with swords foreseeably resulted in the injuries she received.   Defendant does not argue otherwise.

Second, the evidence of the victim's facial disfigurement could not be squared with a failure to find the injury element of simple mayhem.   A witness testified that she saw the victim in the courthouse cafeteria during the trial, over nine months after the attack.   She stated that she was able to recognize the victim by the scars left by her facial injuries and that the scars were quite visible.   This testimony was uncontroverted.   In light of this evidence, the jury could not reasonably have found that the victim did not suffer permanent disfigurement within the meaning of section 203.  (See, e.g., People v. Keenan (1991) 227 Cal.App.3d 26, 36, fn. 6, 277 Cal.Rptr. 687 [two scars from cigarette burns remaining three and a half months after attack sufficed to support conclusion that victim suffered permanent disfigurement as contemplated by section 203].)

Defendant contends with some persuasiveness that the jury could reasonably have found that the victim's other injuries were not permanent.   There was considerable conflict in the evidence regarding these injuries.   For instance, the victim testified that she had not regained the full use of her right hand and left arm, but two witnesses called her credibility into question on this point. They testified that at various times after the date of the attack, they had seen the victim using both hands and both arms without difficulty.   A surgeon who participated in the emergency surgery testified that nerve damage in the victim's arm or hand could, but probably would not, fully heal.   But it was not clear from his testimony which arm or hand he was referring to, and in any event the jury could credit the testimony of the witnesses who said they saw the victim using both hands and both arms without difficulty.   We need not further address these other injuries because the evidence of the victim's facial disfigurement precluded the jury from reasonably failing to find mayhem.

 Defendant also argues that an instruction on battery with serious bodily injury should have been given because the victim's facial scars are “not inconsistent with” a finding of battery with serious bodily injury.   This is so, he says, because section 243, subdivision (f), includes “serious disfigurement” in the definition of “serious bodily injury.”   This argument misapplies the test of when a lesser-included-offense instruction must be given. An instruction on the lesser offense is only required when “evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.”  (People v. Breverman, supra, 19 Cal.4th at p. 162, 77 Cal.Rptr.2d 870, 960 P.2d 1094, italics added.)   Ironshield's disfigurement satisfied the injury element of both battery with serious bodily injury and mayhem, so the jury could not reasonably find only the lesser-included offense.

The court properly omitted an instruction on the lesser-included offense of battery with great bodily injury.

II. Sentencing **


The judgment is affirmed.


1.   Statutory references are to the Penal Code unless indicated otherwise.

FOOTNOTE.   See footnote *, ante.


WE CONCUR:  BUCKLEY, Acting P.J., and LEVY, J.

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