Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1074185. Marie Sovey Silveira, Judge.
Kathryn G. Streem, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Gomes, J., and Dawson, J.
A jury convicted appellant Francisco Rivera of attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a); 664), assault with a deadly weapon (§ 245, subd. (a)(1)) and mayhem (§ 203), and found true allegations that appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)) in committing the attempted manslaughter and assault offenses. In a separate proceeding, the court found true allegations that appellant had served three separate prison terms for prior felony convictions (§ 667.5, subd. (b)). The court imposed a prison term of nine years.
All statutory references are to the Penal Code.
On appeal, appellant contends the trial court erred in (1) failing to instruct the jury that an unreasonable but genuine belief in the need for self-defense negates the mental state required for mayhem and (2) refusing a defense request that the court instruct the jury on simple battery and simple assault as lesser included offenses of mayhem. We will affirm.
FACTS
Prosecution Case
On April 9, 2004, appellant went to the apartment of April Bulmer, his former girlfriend, to visit Bulmer’s five-year-old daughter, Destiny. While appellant was at Bulmer’s apartment, Bulmer’s neighbors, Christa Pollex and her fiancé, James Wells, arrived. At some point, while appellant, Wells, Pollex and Destiny were in the living room, Wells pinched Pollex on the buttocks. Appellant told Wells not to “ ‘do that’ ” in front of Destiny; the two men exchanged words; and appellant attacked Wells, punching him in the face, stomach and chest. Wells struck appellant on the head with a crystal ashtray, shattering the ashtray and causing appellant’s head to bleed. Eventually, the two men separated and stopped fighting. Appellant remained in the living room and Wells went into the kitchen.
Appellant believed he was Destiny’s father, although Bulmer had told appellant she was not certain if that was the case.
Approximately two to three minutes later, appellant picked up a butcher knife and a smaller knife that were in a knife block located on a counter that separated the kitchen and living room; entered the kitchen; said something to the effect that he was going to “ ‘get’ ” Wells; and began “thrusting” the knives at Wells. Wells tried to defend himself by kicking at appellant with his left leg. Wells then tried to grab a stepstool located nearby, but at that point appellant “charged” toward Wells and “slashed” with one of the knives in the direction of Wells’s throat. Wells “blocked” the knife with his right hand, at which point appellant stabbed him in the stomach. Appellant then went into the bathroom, and shortly thereafter left the apartment and went to his car.
Wells suffered a wound to his intestine, which later required surgery. He also suffered a cut to his right arm. At the time of trial, more than five months after the incident described above, Wells had scarring on his right arm and abdomen and had not recovered the full use of his right arm. He could not “bend [his right arm] the way it’s supposed to bend,” and it would “get[] very tired when [he] used [it] a lot.”
Defense Case
Appellant testified to the following. When he saw Wells touch Pollex on her buttocks, he admonished Wells to “ ‘have some respect’ ” for Destiny. Wells then cursed at appellant and came toward him. Appellant stood up from the couch, and Wells hit him in the head with a glass ashtray, nearly knocking him unconscious and causing him to bleed. Wells then advanced on appellant a second time. Appellant picked up two knives from a knife block and held them out in front of himself as Wells tried to kick the knives out of appellant’s hands. Appellant retreated into the kitchen, but Wells continued to come toward him. Appellant continued to hold the knives “in front . . . .” At some point, he heard someone say she was going to call the police, at which point Wells stopped and appellant threw the knives to the floor and left the apartment. Appellant did not try to slash Wells’s throat and he did not know if he stabbed Wells.
DISCUSSION
Failure to Instruct on Imperfect Self-Defense
Section 203 provides in relevant part: “Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, . . . is guilty of mayhem.” (Emphasis added.) “The term ‘maliciously’ as it is applicable to mayhem, is defined as ‘a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.’ ” (People v. Sekona (1994) 27 Cal.App.4th 443, 448.)
Appellant contends the court erred in failing to instruct the jury with respect to the mayhem charge, sua sponte, that an actual but unreasonable belief in the need for self-defense negates the “malice” required for mayhem. Appellant bases this claim in large part on People v. Flannel (1979) 25 Cal.3d 668 and the lead opinion in People v. McKelvy (1987) 194 Cal.App.3d 694.
“In Flannel the court held that it is a partial defense to a charge of murder that the defendant killed the victim while under the honest but mistaken belief that his conduct was necessary in self-defense. The basic rationale of the doctrine is that a genuine belief in the need to defend oneself, even if unreasonable, negates the ‘malice aforethought’ which is required for a conviction of murder.” (People v. Hayes (2004) 120 Cal.App.4th 796, 801.) This doctrine is commonly known as the “Flannel defense” and “ ‘imperfect self-defense.’ ” (Ibid.)
“In [McKelvy], the lead opinion applied Flannel to a mayhem case. The lead opinion declared that an actual but unreasonable belief in the need for self-defense negated the malice required for a conviction of mayhem, mitigating the crime to assault or battery. . . . [T]he lead opinion concluded a [Flannel-defense] instruction was required and should be given sua sponte in mayhem cases where there was more than minimal evidence of self-defense.” (People v. Sekona, supra, 27 Cal.App.4th at p. 449.) The lead opinion further stated: “Although the ‘malice’ required for the offense of mayhem differs from the ‘malice aforethought’ with which Flannel is concerned, it is equally true in both cases that the requisite state of mind is inconsistent with a genuine belief in the need for self-defense. One who truly believes there is a need for self-defense cannot be said to act with intent to ‘vex, injure or annoy’ and may be found guilty of no more than an assault or battery.” (People v. McKelvy, supra, 194 Cal.App.3d at p. 702.)
No other justice agreed with the analysis in the lead opinion, and although “[the] doctrine [of imperfect self-defense] is now well established with respect to murder charges [citation], it has been extended to few other offenses, and in particular has not been extended to mayhem.” (People v. Hayes, supra, 120 Cal.App.4th at p. 801.) And in Hayes, the court rejected the reasoning of the McKelvy lead opinion:
“We do not agree that a belief in the necessity for self-defense can negate an ‘intent to vex, injure or annoy.’ Such intent lacks the crucial characteristic of ‘malice aforethought’ said in Flannel to justify the defense, i.e., awareness that one’s conduct does not conform to the expectations of society. As the court [in Flannel] explained, ‘[A] person who carefully weighs a course of action, and chooses to kill after considering reasons for and against, is normally capable of comprehending his societal duty to act within the law. “If, despite such awareness, he does an act that is likely to cause serious injury or death to another, he exhibits that wanton disregard for human life or antisocial motivation that constitutes malice aforethought.” (Italics added.) [Citation.] [¶] . . . No matter how the mistaken assessment [of a need for self-defense] is made, an individual cannot genuinely perceive the need to repel imminent peril or bodily injury and simultaneously be aware that society expects conformity to a different standard. Where the awareness of society’s disapproval begins, an honest belief ends. It is the honest belief of imminent peril that negates malice in a case of complete self-defense; the reasonableness of the belief simply goes to the justification for the killing.’ [Citation.]
“This passage turns on the statement that ‘an individual cannot genuinely perceive the need to repel imminent peril or bodily injury and simultaneously be aware that society expects conformity to a different standard.’ [Citation.] In other words, malice aforethought reflects or embodies a realization by the actor that his or her conduct violates social expectations. It is this realization that cannot be reconciled with an actor’s belief that he or she is acting in self-defense, because society approves the reasonable use of force to that end.
“This rationale cannot be extended to the more general concept of ‘malice’ as defined in section 7 and incorporated in the statutory definition of mayhem. That definition connotes no element of knowing violation of social norms. It requires only intent to vex, injure, or annoy. A belief that one is acting in self-defense, whether reasonable or unreasonable, has no tendency to negate the element of malice. Indeed the intent to vex, injure, or annoy may be present when one acts in reasonable self-defense. Such a circumstance affords a defense not because it negates the element of malice but because it excuses or justifies the conduct in question despite the intent to injure.” (People v. Hayes, supra, 120 Cal.App.4th at pp. 802-803, fn. omitted.)
We agree with the reasoning in Hayes and conclude, accordingly, that the defense of imperfect self-defense has no application to a charge of mayhem. Therefore, the court did not err in failing to instruct on this defense with respect to the mayhem charge.
Failure to Instruct on Lesser Included Offenses of Mayhem
As indicated above, appellant contends the court erred prejudicially in refusing a defense request that the jury be instructed on simple battery and simple assault as lesser included offenses of mayhem. Respondent first counters the defense made no such request. However, we need not resolve this dispute. “ ‘ “The trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.” ’ ” (People v. Hughes (2002) 27 Cal.4th 287, 365, emphasis added.) And as we explain below, the evidence here did not justify instructions on lesser included offenses of mayhem.
“ ‘An offense is necessarily included in another if . . . the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater.’ [Citation.] In other words, when the greater crime ‘cannot be committed without also committing another offense, the latter is necessarily included within the former.’ ” (People v. Hughes, supra, 27 Cal.4th at pp. 365-366.)
The parties do not dispute, and we agree, that all of the elements of each of the asserted lesser offenses, viz., simple battery and simple assault, are included in the elements of the greater offense, viz. mayhem, and therefore the lesser offenses are necessarily included within the greater offense. (People v. Ausbie (2004) 123 Cal.App.4th 855, 860 fn. 2 [simpleassault and simple battery are lesser includedoffenses of mayhem]; People v. De Angelis (1979) 97 Cal.App.3d 837, 841 [assault is a lesser included offense of mayhem].) However, “the existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense . . . .” (People v. Breverman (1998) 19 Cal.4th 142, 162.) “[S]uch instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.]” (Ibid.) “ ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not the greater, was committed. [Citations.]” (Ibid., emphasis added.)
Appellant contends his account of the altercation with Wells constituted substantial evidence that he committed simple assault and simple battery but not mayhem. Specifically, he argues that if one or more jurors credited his testimony, such juror(s) could have concluded appellant believed his conduct was necessary to defend himself from imminent danger to life or limb. And, in a reprise of his previous argument, appellant argues that such a belief, even if unreasonable, would negate the malice element of mayhem and leave him guilty of no more than assault and battery. However, as demonstrated above, “[a] belief that one is acting in self-defense, whether reasonable or unreasonable, has no tendency to negate the element of malice.” (People v. Hayes, supra, 120 Cal.App.4th at p. 803.) Therefore, appellant’s argument fails.
It is the degree of the injury inflicted that distinguishes mayhem from the lesser offenses of assault and battery. (People v. Hayes, supra, 120 Cal.App.4th at p. 805 [“the essential distinction between mayhem and assault is not the actor’s mental state but the result achieved”].) And given the uncontroverted evidence of the seriousness and lasting effects of the victim’s injuries, any reasonable juror who rejected appellant’s claim of self-defense and therefore found appellant culpable would have also concluded that the crime committed was mayhem and not the lesser offenses of assault and battery. Therefore, the court did not err in failing to instruct on those lesser offenses.
DISPOSITION
The judgment is affirmed.