The mayhem instruction, which gave as the example of an included injury a “gunshot wound,” resulted in prejudicial error because it was argumentative and misdirected the jury with respect to an element of the offense. Appellant was tried for multiple offenses, including mayhem, for repeatedly shooting a man in the leg. In the mayhem instruction the court deleted the examples provided in the instruction, instead defining the serious bodily injury required as a serious impairment of physical condition, which “may include a gunshot wound.” The focus of the mayhem instruction (CALCRIM No. 801), is the severity of the wounds inflicted rather than the manner in which they occurred. The instruction here tended to direct a verdict in favor of the prosecution by suggesting that the jury need only find that appellant inflicted a gunshot wound in order to convict him of mayhem, rather than finding appellant intended to inflict a disabling injury. The instruction misdirected the jury regarding the specific intent required for mayhem because it focused on the means by which appellant intended to inflict injury and failed to inform the jury of the nature and severity of the type of injury required. The nature and severity of the injury intended is what distinguishes mayhem from other assaultive crimes in which an injury is intended. The instruction was also prejudicially argumentative because it “improperly suggested to the jury that as long as it found that Santana intended to inflict a gunshot wound, it could convict him of attempted mayhem.” The error was not harmless, requiring reversal.

There is no offense of attempted battery resulting in serious bodily injury. Santana asserted the trial court should have instructed sua sponte on attempted battery with serious bodily injury as a lesser included offense of mayhem. However, “there is no authority to support the existence of ‘attempted battery resulting in serious bodily injury’ under California law.”