PEOPLE v. SALAZAR

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. George SALAZAR, Defendant and Appellant.

D002139.

Decided: April 25, 1986

David L. McKenzie, Vista, under appointment by the Court of Appeal, for defendant and appellant. John K. Van De Kamp, Atty. Gen., and Robert M. Foster, Deputy Atty. Gen., for plaintiff and respondent.

A jury found George Salazar guilty of two lesser included offenses of simple assault (Pen.Code,1 § 240) committed against Willie Holloway and Michael Clayton, specially finding Salazar did not inflict great bodily injury on Holloway as was alleged under section 12022.7.   The jury found Salazar guilty of committing mayhem (§ 203) by putting out Holloway's eye.   Salazar appeals after the trial court sentenced him to the midterm of four years in prison, staying the misdemeanor sentences under section 654.   Salazar seeks reversal due to the court's failure to instruct, sua sponte, on the lesser necessarily included offenses of assault and battery under the mayhem charge and on the Flannel instruction that an honest but unreasonable belief in the necessity to defend one's self negates malice.  (People v. Flannel (1979) 25 Cal.3d 668, 674–683, 160 Cal.Rptr. 84, 603 P.2d 1.)

Shortly after 11 p.m. on January 5, 1984, Willie Holloway and Michael Clayton were walking home after leaving the Monte Carlo bar in Brawley.   Since it was a cold night, Holloway and Clayton were wearing jackets and both kept their hands either in the jacket pockets or inside the coat.   In the 900 block of Main Street, Holloway and Clayton were approached by the Ayon brothers, Art and Joe, who had been “cruising” Brawley in Art Ayon's car.   Salazar was along “cruising” with the Ayons.   Hostile words were exchanged between the Ayons on the one hand, and Holloway and Clayton on the other.   Art and Joe Ayon then concentrated their conversation on Holloway at a point about 10 yards from Clayton, and some pushing and shoving among the three of them took place.

In the meantime, Salazar had been watching the developments from a distance of about 40 feet and he returned to Art Ayon's car and armed himself with a jackhandle.   Using the jackhandle, Salazar first hit Clayton in the head and hand.   Clayton dropped down and, by the time he was ready to retaliate, Salazar again struck him with the jackhandle, this time in the left cheek causing a cut requiring stitches.   Holloway went to Clayton's side and asked him what happened.

At this point, Salazar and the Ayons began walking away toward the car, followed by Holloway and Clayton.   Clayton wanted to retaliate and took off his military belt and wrapped it around his hand preparing to fight.   Clayton's testimony on direct examination describes Salazar's attack on Holloway as follows:

“A When we were going to fight, he [Salazar] walked off toward like by the car, and before we could even get our hands on it, he had hit Mr. Holloway in the head, and so I went to the side of Mr. Holloway to assist him, see if he was okay.

“Q Approximately how far away were you from Mr. Holloway when he was struck?

“A About three feet.

“Q Did you see Mr. Holloway swing at anyone?

“A He didn't get a chance.

“Q Did you swing at anyone?

“A I swung the belt and that was out of reach.

“Q This was after you had been struck?

“A Yes.

“Q When was it in relation to when Mr. Holloway was struck?

“A Okay.   After I got hit, we went back to retaliate.   I swung the belt and I missed him.   He tried to scoot off toward the side to hide his weapon, and I was afraid the police might get us.   That's when he hit Mr. Holloway.”

The jackhandle struck Holloway in the left eye, knocking him unconscious and leaving his vision measurement at 6/2006200 2 in that eye.   Brawley police officer Martha Barbosa arrived at the scene just as Holloway was struck.   Barbosa and backup officer Henry Graham quelled the disturbance.   Clayton went to Art Ayon's car, retrieved the jackhandle and Graham took it from him.   At one point, Graham heard Clayton threaten to kill Salazar.

Salazar claimed self-defense.   He testified he saw Holloway pushing Art, then Joe, Ayon, heard them arguing and noticed Clayton standing by pounding his right fist into his left hand.   Salazar testified he heard Holloway say he was going to “blow their brains out,” and saw him reach toward his waist.   He heard Clayton threaten the Ayons too, at which point he went to the car and got the jackhandle, which he describes as a “crowbar.”   Salazar testified, in part:

“Q When you came back with the crowbar, what did you do with it?

“A Well, I came up, and I kept—‘Hey, man, cool off.’   I don't remember.   Gonna something.  ‘Back off,’ you know.   Michael [Clayton] say ‘What you mean, you're gonna spit on me.’   He went like this, and so I hit him with my fist, and he fell down towards the wall.   Hit his head on the wall, too.

“Q You're saying Michael reached into his—

“A Into his waist.

“Q Did he have a jacket on?

“A Yes, he had his jacket—same thing.   Went like this.

“Q Did Michael seem passive to you?

“A No.

“Q And you struck him with what?

“A My fist.

“Q Right or left?

“A Right fist.

“Q Where was the crowbar at that time?

“A In my left hand.

“Q After that what did you do next?

“A I told Joe [Ayon] and Arthur [Ayon], let's go, let's get out of here before he gets up.   So we were walking kind of fast to the car.   Before we got to the car, Willie [Holloway] and Michael [Clayton] came at me.

“Q At some point in time did you strike Willie?

“A Yes.   When—Michael, he took his belt off, wrapped around his wrist, he started swinging at me, and Willie came towards my left side, and he went like this, so I hit him.”

Salazar admitted he hit Holloway with his fist to “knock him out,” and that he hit Holloway a second time.

I

In this case it is not questioned the offenses of assault and battery are lesser necessarily included offenses to the crime of mayhem.  (See People v. De Angelis (1979) 97 Cal.App.3d 837, 841, 159 Cal.Rptr. 111;  [§ 245];  People v. Defoor (1893) 100 Cal. 150, 156, 34 P. 642 [assault];  People v. Bryan (1961) 190 Cal.App.2d 781, 787, 12 Cal.Rptr. 361 [battery];  and see CALJIC (4th ed. 1979) Appendix C, p. 341.)   On the matter of the duty to instruct on lesser included offenses, the rule is:

“[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence;  that an erroneous failure to instruct on a lesser included offense constitutes a denial of that right;  and that such error cannot be cured by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have convicted the defendant of the lesser included offense.”  (People v. Sedeno (1974) 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913.)

 Excepted from this rule requiring instruction on lesser included offenses is the situation where there is no evidence the offense was less than that charged.  (Sedeno, supra, 10 Cal.3d at p. 715, 112 Cal.Rptr. 1, 518 P.2d 913.)   The Attorney General argues, and the trial court said it determined, this exception applies to Salazar's case, i.e., in the words of the trial court, “it was either mayhem or it was nothing.”

It is the position of the Attorney General that the elements of mayhem,3 an unlawful act of putting out an eye by means of physical force, and malice, that is, a wish to vex, annoy or injure another person (§ 7, subd. (4)), were shown by the evidence to be present.   It is pointed out no specific intent to maim or disfigure is required, the necessary intent being inferable from the types of injuries resulting from intentional acts (Goodman v. Superior Court (1978) 84 Cal.App.3d 621, 624, 148 Cal.Rptr. 799);  and if a person unlawfully strikes another, not with specific intent to commit mayhem, and the blow results in putting out an eye, the crime is nevertheless mayhem.  (People v. Nunes (1920) 47 Cal.App. 346, 349, 190 P. 486.)

The Attorney General then looks to the evidence of Salazar's first blows to Clayton with the jackhandle, followed by the blow to Holloway's eye, combined with Salazar's admission he intended to knock Holloway out (albeit, a fair reading of the testimony is Salazar was referring only to his claim he first struck Holloway with his fist).4  The Attorney General then concludes:

“Thus, the blow to Holloway's left eye was intentional, it was clearly an act that could cause injury and it was wrongful.   Therefore, the evidence clearly showed appellant's malicious intent in committing the act.

“In the instant case all elements were present and supported by the defendant's own testimony.   This is not a case resting on substantial circumstantial evidence, but instead, every element of the offense charged is conclusively shown by the evidence, without contradiction.  (People v. Stanton (1895) 106 Cal. 139 [39 P. 525].)”

In the context of this case, where the trial court instructed on the lesser offense under the same evidence pertaining to the assault with a deadly weapon count involving Holloway and as to that count the jury returned its verdict on the lesser and found no great bodily injury, the Attorney General's argument is unconvincing.5  While verdicts of the sort we consider here often may be attributed to acts of leniency on the jury's part (see People v. Lopez (1982) 131 Cal.App.3d 565, 571, 182 Cal.Rptr. 563), the jury in Salazar's case exhibited puzzlement with the relationship of the instructions to its findings on the assault with a deadly weapon count vis-a-vis the mayhem count.   During deliberation the jury inquired “[i]f we vote only assault on Count I [assault with a deadly weapon], is there any problem in finding Count III [mayhem] guilty?”

 Under the circumstances here, it cannot be said the evidence shows that if any crime was committed, it was the greater mayhem offense and not the lesser included offenses.   Instruction on the latter offenses with reference to the mayhem count was required.

II

Salazar argues the trial court erred in not giving, sua sponte, the Flannel instruction to the effect an honest but unreasonable belief in imminent peril negates malice.

 It is the duty of a trial court, even in the absence of a request, to instruct on the general principles of law governing the case, i.e., those principles of law commonly or closely and openly connected with the facts of the case before the court.  (People v. Flannel, supra, 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1.)   The duty involves percipience, not omniscience, on the part of the trial court which thus is not required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly.  (Id., at p. 683, 160 Cal.Rptr. 84, 603 P.2d 1.)   Because of the undeveloped state of the unreasonable belief rule when Flannel was decided, the court held no sua sponte duty to instruct on the rule existed as of the time of that trial and decision, but in future cases the duty exists.  (Ibid.)

 For similar reasons, we find there was no error in the failure to instruct sua sponte on an unreasonable belief rule at the first trial of Salazar.   We hold, however, on any retrial and in future trials for mayhem where there is more than minimal and insubstantial evidence of self-defense, the jury should be instructed that an honest but unreasonable belief it is necessary to defend oneself from imminent peril to life or great bodily injury negates the malice element necessary to a finding of guilt of the crime of mayhem.  (See Flannel, supra, 25 Cal.3d 668, 674, 684–685, 160 Cal.Rptr. 84, 603 P.2d 1.)

 Flannel dealt with the element of “malice aforethought” necessary to a finding of murder.   Malice aforethought is defined differently from the malice required to complete the crime of mayhem.6  Thus, we deal with different concepts.  (See People v. Wright (1892) 93 Cal. 564, 566, 29 P. 240.)

The Attorney General argues, in essence, since mayhem is a general intent crime in which the requisite intent is inferred from the doing of the act (see People v. Garcia (1970) 5 Cal.App.3d 15, 18–19, 85 Cal.Rptr. 36), the Flannel rule does not extend to the point of negating malice as that term is used in a general intent crime, i.e., an intent to injure another person (§ 7, subd. (4)).   The Attorney General asserts, in part:

“[E]ven if one were acting under a mistaken belief of self-defense in a case such as the one at bar, there would still remain an intent to injure another.  (RT 218.)   Appellant specifically stated he had intended to hit the victim.  (RT 218.)   Obviously, when one intends to hit someone with a crowbar, there is an intent to injure another person.   Thus, even assuming arguendo that there was imperfect self-defense, that state of mind did not negate the malicious element of the mayhem because appellant still had the intent to injure another person.

“Moreover, acceptance of appellant's position would transform the crime of mayhem from a general intent crime to a specific intent crime.   It would enact a mental element necessary for a conviction․   To accept appellant's argument would be to alter the rule that for a general intent crime, the requisite intent is inferred from the doing of the act itself.  [Citation.]

“Finally, even assuming imperfect self-defense existed in a case, it is clear that such a state of mind would not rid a defendant from liability because an intent to injure another would always remain.   Thus, it is clear that even if imperfect self-defense existed, it does not have an effect on the general intent crime of mayhem.   Thus, the holding in Flannel has no application to the case at bar and the court was under no sua sponte duty to give a jury instruction based on Flannel.”

 This argument effectively ignores the element of malice statutorily required before mayhem can be found.   Section 203 requires the act to be done “maliciously.”   As in other general intent crimes which also require proof of malice, the malice requirement “implies something more than mere intention to do the act;  hence the fact that the act was done intentionally, wilfully or knowingly does not necessarily mean that it was done maliciously.”  (1 Witkin, Cal. Crimes (1963) Elements of Crime, § 60, p. 65.)   Witkin points out Perkins' definition of malice, which is:

“In brief, malice in the legal sense imports (1) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and wilful doing of an act with awareness of a plain and strong likelihood that such harm may result.”  (Perkins and Boyce, Criminal Law (3d ed. 1982) p. 860.)

By contrast, intent is described in the same work as follows:

“Intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire).”  (Perkins and Boyce, supra, p. 835, fn. omitted.)

The initial phrase in Perkins' definition of malice, “the absence of all elements of justification, excuse or recognized mitigation,” furnishes the key for determining a Flannel -type instruction is required in certain mayhem cases.  People v. Wright, supra, 93 Cal. 564, 29 P. 240, a case on which the Attorney General relies, furnishes support for this position in its passage:

“[A] concurrence of act and intent, or criminal negligence, are the only elements essential to constitute a crime or public offense․  [T]he requirements of the statute in such cases will be fully met by proof of the commission of the act, from which the law will presume, though it be done in pursuance of an intent formed during the conflict, that it was done unlawfully and maliciously,—that is, ‘with a wish to ․ injure another person, or an intent to do a wrongful act,’—unless the evidence tends to show to the contrary,—that is, that it was done in necessary self-defense, and under circumstances that were at the time unavoidable, in order to prevent the infliction or attempted infliction of some great bodily harm by the party injured.”  (Wright, supra, 93 Cal. at pp. 566–567, 29 P. 240;  italics added.)

The Wright exception to the rule raising the inference 7 of intent and malice invites application of the Flannel rule to certain cases of mayhem.   That the Flannel rule states a principle of recognized mitigation cannot be doubted.  (See, e.g., People v. Flannel, supra, 25 Cal.3d 668, 678, 160 Cal.Rptr. 84, 603 P.2d 1, using the word “mitigates” with inference to the honest but unreasonable belief rule and its effect of reducing murder to voluntary manslaughter.)   Substituting the word “mayhem” for the word “murder,” the following passage from Flannel is applicable:

“In short, the state has no legitimate interest in obtaining a conviction of [mayhem] when, by virtue of defendant's unreasonable belief, the jury entertains a reasonable doubt whether defendant harbored malice.   Likewise, a defendant has no legitimate interest in complete exculpation when acting outside the range of reasonable behavior.  [Citation.]   The vice is the element of malice;  in its absence the level of guilt must decline.”  (25 Cal.3d at p. 680, 160 Cal.Rptr. 84, 603 P.2d 1.)

It has been observed “malice aforethought” is definitionally elusive.  (See 1 Witkin, Cal.Crimes (1963) Crimes Against The Person, § 319, pp. 289–290, and cases cited.)   Moreover, it has been stated in one scholarly work that the mayhem statutory language, as in section 203, requiring the acts be done “ ‘unlawfully and maliciously’ ․ will require a state of mind corresponding to that needed for common-law murder, and will include either an intent to maim or disfigure or an unlawful act done under such circumstances that there is a plain and strong likelihood of such a result (even if not actually intended).”  (Perkins and Boyce, supra, p. 240, fns. omitted, italics added.)

Given the close similarity in the concepts of “malice aforethought” for purposes of defining murder and “malice” for purposes of defining mayhem, considering the definitional vagaries attending each, and in view of the nature of the elements of mayhem as well as the mitigating effect of the Flannel concept, we conclude there is a sua sponte duty to instruct on the unreasonable belief rule in cases such as this where mayhem is charged and there is more than minimal and insubstantial evidence of self-defense (see Flannel, supra, 25 Cal.3d 668, 684, 685, 160 Cal.Rptr. 84, 603 P.2d 1),8 and under otherwise appropriate circumstances, i.e., where apparently the defendant is relying on such a defense or the defense is not inconsistent with defendant's theory of the case.  (See People v. Sedeno, supra, 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913.) 9  Unreasonable self-defense comes within Sedeno's category of “defenses” for purposes of the obligation to instruct sua sponte.  (People v. Wickersham (1982) 32 Cal.3d 307, 329, 185 Cal.Rptr. 436, 650 P.2d 311.)

 In an instruction patterned after CALJIC No. 5.17,10 the trial court should instruct the jury, in effect, if it finds the defendant at the time of the charged offense had an honest but unreasonable belief it was necessary to defend himself or herself from imminent peril to life or great bodily injury, the element of malice for purposes of mayhem is negated and the defendant cannot be found guilty of mayhem.   This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have the same belief.   Such an honest but unreasonable belief is not a defense to the offense of battery or assault.

Judgment reversed.

I respectfully dissent.

I

THERE NEED BE NO SUA SPONTE LESSER INCLUDED OFFENSE INSTRUCTIONS FOR MAYHEM UNDER THESE FACTS

The majority and I probably agree on the law, which correctly stated is when the evidence in a mayhem case without contradiction establishes all the elements of mayhem including malice (i.e., under Pen.Code,1 § 7, subd. (4), intent to injure), the court need not instruct on assault and battery as lesser included offenses.  (Of course, in view of the serious injury here, it should be felony battery under section 243, subdivision (d), and felony assault under section 245, subdivision (a)(1).)   I disagree with the majority's perception of this case as presenting evidence of no malice giving rise to assault and battery instructions.   Regarding malice, the defendant admitted the intent to injure, i.e., malice, which was consistent with his self-defense claim.   Therefore, the evidence in this trial does not merit instructions on battery or assault as lesser included offenses.

In this case, as in People v. Bryan (1961) 190 Cal.App.2d 781, 787, 12 Cal.Rptr. 361;  People v. Wright (1892) 93 Cal. 564, 29 P. 240, and People v. Stanton (1895) 106 Cal. 139, 39 P. 525, the crime had to be mayhem or nothing.   No lesser included offense instructions are appropriate.

In People v. Nunes (1920) 47 Cal.App. 346, 352, 190 P. 486, the defendant contended the injury was not adequate for mayhem, but even there a lesser included offense instruction was not given.   The injury suffered here, where the victim's eyesight in the injured eye was greatly diminished (leaving 6/200 vision) and the lens had to be removed, is legally sufficient for mayhem under People v. Green (1976) 59 Cal.App.3d 1, 3, 130 Cal.Rptr. 318.   Therefore, Salazar's argument the jury should be instructed on battery because the injury is not sufficient for mayhem is not legally substantiated.

The authorities cited by Salazar and the majority for sua sponte instructions on assault and battery as lesser included offenses were People v. DeAngelis (1979) 97 Cal.App.3d 837, 159 Cal.Rptr. 111, and CALJIC Appendix C (4th ed. 1979) page 341, which cites People v. Defoor (1893) 100 Cal. 150, 34 P. 642, and People v. Bryan, supra, 190 Cal.App.2d 781, 12 Cal.Rptr. 361.   However, those cases do not hold such instructions should be given where all the elements of mayhem are admitted and only self-defense is claimed, as here.   The court in Bryan said battery was not a lesser included offense of mayhem under the facts of that case.  (Id., at p. 786, 12 Cal.Rptr. 361.)   The defendant contended there was a factual dispute as to his intent and therefore the jury should have been instructed they could find a battery occurred.   The court said, as it well might say in this case:

“However, under the facts of this case, there could not have been a battery.   Either the biting was in self-defense or it was done with intent to injure Andre maliciously.   Obviously the deliberate biting off of a person's nose, spitting it out and again biting the nose, if it were not an excusable act because done in self-defense, could not be anything but mayhem.”  (People v. Bryan, supra, 190 Cal.App.2d 781, 787, 12 Cal.Rptr. 361.)

In this case, we also have a deliberate act because Salazar admitted at trial that he hit Willie Holloway with the intent to “knock him out.”   That is evident from the following cross-examination of Salazar:

“Q If you didn't need the bar why did you go after it in the first place?   Can you explain that to us?

“A When I—okay.   I went to the car.   I knew he had a gun.   I came back, and I told him I don't want no trouble, just back off.   When he went for the gun, I just hit him ‘cause I figured—I—I used to be a boxer, I could probably knock him out.   The second time when I hit Willie, he had that hand right outside already.”  (Italics added.)

The majority, in explaining why they refuse to find intent was admitted, contend the last sentence above means Salazar hit Willie two times and so state in their summary of the facts.   The majority say “a fair reading of the testimony is Salazar was referring only to his claim he first struck Holloway with his fist” (Maj. opn., p. 413.) when he admitted he intended to knock out Holloway.   That last sentence above is vague and could possibly mean that, taken out of context.   However, it is more probable that Salazar meant the first time was when he hit Clayton, and the second time was the second confrontation some minutes later, when Salazar hit Willie Holloway.   This is obvious when we read Salazar's own testimony on direct:

“Q How many times did you hit Michael Clayton?

“A Once.

“Q Same question with regard to Mr. Holloway.

“A Once.”

The victim, Holloway, corroborates this in his testimony:

“Q How many times were you hit, Mr. Holloway?

“A I was only struck once.”

Salazar never argued he struck Holloway twice.   Salazar only hit Holloway one time by all accounts as seen above and that is the time Holloway suffered the injury to his eye.   The earlier attack by Salazar was on Clayton.   It is clear from the transcript Salazar's claim of self-defense to the mayhem charge was based on his statement he thought Holloway was going to pull a gun on him when Salazar hit Holloway.   The majority's confusion seems to stem from Salazar's claim he used his fist when he permanently injured Holloway's eye, although he admitted holding the weapon.   The prosecution's witnesses substantiated the theory Salazar used the jackhandle to hit Holloway when Holloway's eye was injured.   Whether Salazar used his fist is not the key here.   The key is Salazar admitted his intent to knock out Holloway when he struck his eye.   That is the only thing he could have meant, thus admitting the element the majority evidently found lacking for the crime of mayhem.

Salazar also claimed self-defense, and the court so instructed.   The jury found self-defense did not apply.   As in Bryan, supra, and as in People v. Wright, supra, 93 Cal. 564, 29 P. 240, we have either self-defense or mayhem.

The courts in People v. Defoor, supra, 100 Cal. 150, 34 P. 642, and People v. DeAngelis, supra, 97 Cal.App.3d 837, 841, 159 Cal.Rptr. 111, indicated assault can be a lesser included offense of mayhem, but of course, that does not mean the court must instruct on assault in all mayhem cases.   As the majority here stated, citing People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913, where there is no evidence that the offense was less than that charged, there is no requirement for an instruction on the lesser included offense.

It is clear here there was more than just an assault by any theory of the evidence, because Salazar admitted he hit Holloway in addition to causing the injury to Holloway and intending to injure Holloway.  (People v. Stanton, supra, 106 Cal. 139, 141, 39 P. 525.)   The injury was sufficient to be mayhem as a matter of law.

One might argue it is not clear Salazar meant to deprive Holloway of his eye, unlike biting off a thumb or a nose.   However, the law is clear a defendant need not intend to maim or disfigure the victim.   The court in People v. Nunes, supra, 47 Cal.App. 346, 349, 190 P. 486, said:

“If a person unlawfully strikes another, not with the specific intent to commit the crime of mayhem, and the blow so delivered results in the loss or disfigurement of a member of the body of the assaulted party or in putting out his eye, the crime is nevertheless mayhem.”

The court in Goodman v. Superior Court (1978) 84 Cal.App.3d 621, 624, 148 Cal.Rptr. 799, quoted the above language from Nunes and also said, “It requires no specific intent to maim or disfigure, the necessary intent being inferable from the types of injuries resulting from certain intentional acts.”   We need not infer the necessary intent from the type of injury suffered here, because Salazar admitted intent to injure.

This satisfies the only mental state requirement for malice as defined in section 7, subdivision (4), that the defendant acted with an unlawful intent to injure another person.   Malice and the severity of the injury are the only differences between mayhem and battery.   It is clear Salazar meant to injure Holloway from Salazar's own testimony, as is usual in cases of self-defense.   Salazar claimed his actions were excused, because he feared Holloway would attack him.   The jury found no self-defense;  all the elements of mayhem were proved by the unquestioned evidence.   Thus, although the court must instruct on lesser included offenses the evidence may prove (People v. St. Martin (1970) 1 Cal.3d 524, 532–533, 83 Cal.Rptr. 166, 463 P.2d 390), where, as here, the evidence proves either the greater offense or self-defense, which is a total excuse, there need be no instructions on any lesser included offenses.  (People v. Sedeno, supra, 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913.)

II

THE INCONSISTENT VERDICTS DO NOT REQUIRE A REVERSAL UNDER THESE FACTS

It is known jurors show leniency at times.   Leniency is the only possible explanation for the jury's verdicts in this case.   Salazar admitted he committed the assault on Holloway which resulted in the injury that legally constitutes mayhem (the loss of an eye for normal purposes under CALJIC No. 9.31), and he admitted he intended to injure Holloway when he did it.   The only question for the jury to decide was whether there was self-defense which would excuse Salazar from being convicted of anything.   It is clear the jury found no self-defense or they would not have convicted Salazar of mayhem and the simple assault.   They were showing leniency because there is no other logical explanation for finding the loss of almost all Holloway's eyesight in one eye and the loss of the lens to not be great bodily injury.   In convicting Salazar of simple assault as a lesser included offense of assault with intent to commit great bodily injury, they were consistent with their conviction of mayhem in showing they found no self-defense.   Nothing else was in issue in view of the admissions of Salazar at trial and the uncontradicted evidence.   The injury suffered by Holloway and not challenged at trial establish, as a matter of law, sufficient injury for mayhem and also for great bodily injury under section 245, subdivision (a)(1).

The majority said the jury was confused because it asked a question.   Jurors often ask questions, sometimes to please one member of the panel, and a verdict should not be reversed because of that, especially when the jury is not warned of those consequences in advance.

III

THE HONEST BUT UNREASONABLE BELIEF INSTRUCTION SHOULD NOT APPLY TO MAYHEM

The Flannel instruction (People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1) should not apply here;  if the defendant has an honest but unreasonable belief in the necessity to defend himself or herself from imminent peril to life or great bodily injury, the element of malice for purposes of mayhem is not negated.   The question is whether a Flannel instruction should be given in every assaultive-type crime which requires any kind of malice or just in specific intent crimes requiring malice afore-thought, such as murder.  People v. Flannel, supra, required an “honest but unreasonable” belief instruction only for homicide as a means of reducing first or second degree murder to manslaughter.   That case involved murder, which required malice aforethought.   Malice aforethought is different from the malice in mayhem.   CALJIC No. 8.11 defines “malice aforethought” for murder, and CALJIC No. 1.22 defines “malice” for mayhem.   The latter only takes a wish to vex, annoy or injure.  (Pen.Code, § 7, subd. (4);  see People v. St. Martin, supra, 1 Cal.3d 524, 536–537, 83 Cal.Rptr. 166, 463 P.2d 390.)

The majority rely heavily on Perkins, who supports this difference between the malice in CALJIC No. 8.11 and CALJIC No. 1.22.   Perkins says, “Some seem to have been disturbed by the thought that malice, as a jural concept, changes its meaning from crime to crime, but this is no more true of malice [than] it is of intent.”  (Perkins & Boyce, Criminal Law (3d ed. 1982) p. 859.)

Let us consider intent.   First and second degree murder are specific intent crimes, and mayhem is a general intent crime.   Considering the two kinds of malice and intent, the distinction between mayhem and murder is substantial.   Going back to People v. Wells (1949) 33 Cal.2d 330, 341–345, 202 P.2d 53, cited in People v. Flannel, supra, 25 Cal.3d 668 at pages 675, 678 and 679, 160 Cal.Rptr. 84, 603 P.2d 1, the defendant's honest belief, although unreasonable, was related to the specific intent required as part of the malice afore-thought element of the offense charged.   The court in Flannel said:

“As we said in People v. Conley, supra [ (1966) ], 64 Cal.2d 310–317 [49 Cal.Rptr. 815, 411 P.2d 911], Wells ‘recognized that malice aforethought is a specific mental state and that a defendant may show that he lacked that mental state when it is an essential element of the offense of which he stands accused.’

“․

“Given this understanding of malice aforethought, we cannot accept the People's claim that an honest belief, if unreasonably held, can be consistent with malice.”  (Id., at p. 679, 160 Cal.Rptr. 84, 603 P.2d 1, fn. omitted, italics added.)

The court is obviously discussing only malice aforethought and not malice in general.

To expand the “honest but unreasonable” belief instruction to the general intent crime of mayhem would be more than the Supreme Court required in Flannel and more than any other court has required.

The court in Flannel emphasized the close relationship between murder, the unlawful killing with malice aforethought, and manslaughter, the unlawful killing without malice aforethought.  (25 Cal.3d at p. 679, 160 Cal.Rptr. 84, 603 P.2d 1.)   In contrast to that, the relationship between (1) mayhem and (2) assault and battery is much different.   The difference in the injury suffered by the victim is apparent.   Also other similar crimes have a more stringent requirement for state of mind than mayhem.  (See § 244;  People v. Crooms (1944) 66 Cal.App.2d 491, 152 P.2d 533.)

Perkins says malice is “the absence of all elements of justification, excuse or recognized mitigation.”  (Perkins & Boyce, Criminal Law, supra, p. 860.)   The majority rely on the last two words for holding the honest but unreasonable belief of imminent peril should negate mayhem.   However, the honest but unreasonable belief is not “recognized mitigation” in California for the crime of mayhem or any other cases not involving malice aforethought.  Flannel only makes the honest but unreasonable belief “recognized mitigation” in cases of malice aforethought.   These cases included murder in Flannel and other cases cited therein and another capital offense requiring malice aforethought (assault on an officer by a prison inmate) in People v. Wells, supra, 33 Cal.2d 330, 202 P.2d 53.   The court in People v. Bryan, supra, 190 Cal.App.2d 781, 787, 12 Cal.Rptr. 361, specifically did not recognize any mitigation like an honest but unreasonable belief of imminent peril as a defense to mayhem.   The court only recognized true self-defense, stating:

“Either the biting was in self-defense or it was done with intent to injure Andre maliciously.   Obviously the deliberate biting off of a piece of a person's nose, spitting it out and again biting the nose, if it were not an excusable act because done in self-defense, could not be anything but mayhem.”  (Ibid., italics added.)

Justification and excuse for mayhem, as used in Perkins, are true self-defense, which totally excuses and justifies the crime, not the imperfect self-defense in Flannel which was only a mitigating factor.

Although Perkins cites People v. Crooms, supra, 66 Cal.App.2d 491, 152 P.2d 533, for the proposition the mental state in mayhem corresponds to that in common law murder, Crooms does not say that.   It simply says mayhem is not a specific intent crime.   The defendant was convicted of mayhem for throwing a lye solution in the victim's eye when the defendant claimed it was an accident and the victim attacked her.   The court held a hung jury on the specific intent crime of section 244, wilfully and maliciously throwing a caustic chemical with the intent to injure the flesh or disfigure the body, is not inconsistent with the conviction of mayhem because mayhem is a general intent crime.  (Id., at p. 499, 152 P.2d 533.)   The other cases cited by Perkins in support of his statement the mental state in mayhem corresponds to that in common law murder do not make such a comparison but affirm convictions of mayhem (except Application of Ralls (1955) 71 Nev. 276, 288 P.2d 450, involving a fist fight).   The cases emphasize in statutes similar to California's section 203 that malice is often inferred, and one looks to see if the action by defendant would ordinarily result in maiming regardless of whether the defendant intended to put out the eye.  (Rankin v. State (1940) 139 Tex.Cr.R. 247, 139 S.W.2d 811, 813;  Davis v. State (1886) 22 Tex.App. 45, 2 S.W. 630;  State v. Atkins (1955) 242 N.C. 294, 87 S.E.2d 507, 509.)   In Terrell v. State (1888) 86 Tenn. 523, 8 S.W. 212, 215, the court said, “The decision was that the act was unlawful, and, that being so, malice would be implied unless circumstances of provocation be shown to remove the legal presumption.”

The California Supreme Court explains the mental state well in People v. Wright, supra, 93 Cal. 564, 567, 29 P. 240:

“A careful examination of numerous reported cases show that the crime of mayhem is generally committed in the midst of sudden altercations, without premeditation or deliberation, in view of which we are satisfied that the object of the legislature in the enactment of section 203 of the Penal Code was to suppress such shocking brutality in personal rencounters;  and if proof of premeditation or deliberation was required, as contended for by appellant, the statute would be unavailable for the accomplishment of the very purpose for which it was plainly intended.”

The Supreme Court in Wright did not consider an honest but unreasonable belief of imminent peril, as in Flannel, to mitigate mayhem to any lesser crime, including assault or battery.   That is evident when the court said:

“It therefore follows that as malice aforethought is not an essential element in the crime of mayhem, proof of premeditation or deliberation is not required.   But the requirements of the statute in such cases will be fully met by proof of the commission of the act, from which the law will presume, though it be done in pursuance of an intent formed during the conflict, that it was done unlawfully and maliciously,—that is, ‘with a wish to ․ injure another person, or an intent to do a wrongful act,’—unless the evidence tends to show to the contrary,—that is, that it was done in necessary self-defense, and under circumstances that were at the time unavoidable, in order to prevent the infliction or attempted infliction of some great bodily harm by the party injured.”  (Id., at pp. 566–567, 29 P. 240, italics added.)

“Necessary self-defense” does not include an honest but unreasonable belief of imminent peril.  “The excuse that the act was done while engaged in a fight suddenly brought on by the interference of Fuller and under the belief by defendant that such interference was hostile to him, constitutes no defense.”  (People v. Wright, supra, 93 Cal. 564, 567–568, 29 P. 240, italics added.)

Because the Supreme Court did not recognize the honest but unreasonble defense for mayhem in People v. Wright, supra, and no other Supreme court case (including Flannel ) has made that a defense to mayhem, this court is bound by the precedent in People v. Wright.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

For the above reasons, I would affirm the conviction.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   On January 6, 1984, Holloway's left eye had a large retinal detachment, a swollen retina and possible inflammation.   His vision was greatly impaired due to the two conditions of traumatic cataract and damage to the macula, which permits detailed vision.   By January 20, Holloway's left eye had developed glaucoma and inflammation due to damage to the lens and the lens was removed on an emergency basis that day.   As of March 9, 1984, when his left eye was last examined before trial, to recognize an object with that eye Holloway would have to be six feet from an object that most people could see at 200 feet.   Because Holloway failed to take certain medication, his eye developed some scarring at the edge of the pupil.   More surgery to remove the scarring was scheduled but, by the June 20 trial testimony of the opthalmologist, Holloway was not seen after March 9, 1984.

3.   Section 203 reads, in part:  “Every person who unlawfully and maliciously ․ puts out an eye ․ is guilty of mayhem.”

4.   On cross-examination, Salazar testified, in part:“Q You have a man standing in front of you that you think—you've testified to under oath that you think is going to pull a gun on you, you transfer the weapon from this hand to this hand and use only your fist?“A Yes.   I used to be a boxer.“Q If you didn't need the bar why did you go after it in the first place?   Can you explain that to us?“A When I—okay.   I went to the car.   I knew he had a gun.   I came back, and I told him I don't want no trouble, just back off.   When he went for the gun, I just hit him ‘cause I figured—I—I used to be a boxer, I could probably knock him out.   The second time when I hit Willie, he had that hand right outside already.“Q Let's talk about that hand outside already.   Yesterday you said he just moved his hand.“A He had it like this (indicating).“Q Did you see a weapon in it?“A I saw something.   It was dark.   I saw something black in there.“Q His hand is black, is it not?“A Yes.”

5.   These unique factors in Salazar's case, among others, make inapposite the cases of People v. Stanton (1895) 106 Cal. 139, 141, 39 P. 525, and People v. Bryan, supra, 190 Cal.App.2d 781, 787, 12 Cal.Rptr. 361, on which the Attorney General relies for the proposition there was mayhem or no crime, and thus the instructions on the lesser included offenses need not have been given.

6.   CALJIC No. 8.11 (1983 Rev.), reflecting section 188, defines “malice aforethought” as follows:“ ‘Malice’ may be either express or implied.“[Malice is express when there is manifested an intention unlawfully to kill a human being.]“[Malice is implied [when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life] [or] [when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life].]“[When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.]“The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.“ ‘Aforethought’ does not imply deliberation or the lapse of considerable time.   It only means that the required mental state must precede rather than follow the act.”On the other hand, “malice” for purposes of the mayhem statute carries the meaning given in subdivision 4 of section 7, and CALJIC No. 1.22 (1980 Rev.) follows that definition by instructing:  “The words ‘malice’ and ‘maliciously’ mean a wish to vex, [defraud], annoy or injure another person, or an intent to do a wrongful act.”   The use note to CALJIC No. 1.22 cautions “[t]his instruction should not be given in a trial for murder.”

7.   See Perkins and Boyce, supra, at pages 836 to 837, on the use of language of presumption such as is found in Wright.

8.   Flannel (25 Cal.3d at pp. 684–685, 160 Cal.Rptr. 84, 603 P.2d 1) describes the trial court's function in terms of looking at the evidence for purposes of deciding whether to instruct sua sponte on a defense and points out if the evidence is only “minimal and insubstantial,” there is no duty to instruct.   In light of Salazar's testimony here, quoted ante, it cannot be said there is only minimal and insubstantial evidence of self-defense in this case.

9.   Sedeno instructs (10 Cal.3d at p. 716, 112 Cal.Rptr. 1, 518 P.2d 913):  “[T]he duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.”

10.   CALJIC No. 5.17 reads:  “A person who kills another person in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury kills unlawfully, but does not harbor malice aforethought and cannot be found guilty of murder.   This would be so even though a reasonable man in the same situation seeing and knowing the same facts would not have had the same belief.   Such an honest but unreasonable belief is not a defense to the crime of [voluntary] [or] [involuntary] manslaughter.”

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

LEWIS, Associate Justice.

WIENER, Acting P.J., concurs.

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