A trial court has no duty to sua sponte instruct the jury that the prosecution must prove great bodily injury as an element of mayhem. Upset about the sale of a truck, Turner and her boyfriend Rafferty snuck into Mary H.’s home and robbed her. When Mary tried to escape, Turner cut Mary’s face with a knife, splitting her upper lip wide open. Mary’s lip healed but left a visible scar. A jury convicted Turner of first degree robbery and mayhem. On appeal, Turner argued the trial court should have instructed the jury that any theory of mayhem requires great bodily injury (GBI). Held: Affirmed (but remanded for resentencing). The mayhem statute proscribes (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. (Pen. Code, § 203.) In arguing GBI is an element of mayhem, Turner relied on People v. Pitts (1990) 223 Cal.App.3d 1547, which held that a mayhem conviction could not be enhanced for inflicting GBI under section 12022.7, because GBI is an element of mayhem and section 12022.7 does not apply when GBI is an element of the underlying offense. However, Pitts did not consider the adequacy of the mayhem jury instruction or whether GBI is a necessary element of the offense. Instead, the court held that Pitts is more properly read as holding that the injuries specified in section 203 (such as splitting the lip) inherently constitute GBI. By delineating injuries in section 203 that constitute mayhem—including slitting the nose, ear or lip—the Legislature established these injuries are sufficiently egregious to be considered a cruel and savage crime. [Editor’s Note: The court noted that while the trial court has no sua sponte duty to instruct on GBI as an element of mayhem, nothing prevents a defendant from requesting a pinpoint instruction clarifying the statutory requirements for mayhem given the specific facts of the case. For example, if the defendant believes a slight cut does not fall within the meaning of section 203, a more complete instruction may be requested.]

Defendant forfeited her argument that mayhem based on cutting the victim’s lip requires a permanent injury. The jury was instructed that mayhem could be based on “permanently disfiguring someone,” or “slit[ting] someone’s lip.” Turner argued the jury should have been instructed that the lip-splitting theory also required a permanent injury, relying on Goodman v. Superior Court (1978) 84 Cal.App.3d 621, which held that mayhem would not include a cut in the lip requiring stitches where the cut would heal without serious scarring. The court disagreed, concluding Goodman stands for the proposition that while disfigurement may be caused by a cut in the lip, not every cut in the lip rises to the level of disfigurement. In any event, the argument was forfeited because it was not raised in the trial court. [Editor’s Note: In the unpublished portion of the opinion, the court remanded for the trial court to consider exercising its discretion to strike Rafferty’s five-year enhancement under section 667, subdivision (a).]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/C086476.PDF