P. v. Santana ( 2013 )


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  • Filed 6/10/13
    IN THE SUPREME COURT OF CALIFORNIA
    THE PEOPLE,                          )
    )
    Plaintiff and Respondent, )
    )                                S198324
    v.                        )
    )                         Ct.App. 4/1 D059013
    SERAFIN SANTANA,                     )
    )                          Riverside County
    Defendant and Appellant.  )                       Super. Ct. No. RIF139207
    ____________________________________)
    Penal Code1 section 203, which defines the offense of simple mayhem,
    provides that “[e]very 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.” Though the provision makes no mention of “serious bodily injury,” the
    pattern jury instruction on mayhem (CALCRIM No. 801) requires the prosecution
    to prove that the defendant caused the victim “serious bodily injury.” The issue
    here is whether CALCRIM No. 801 properly includes this requirement as a
    necessary clarification of section 203.
    For reasons that follow, we hold that the instruction improperly requires
    proof of a “serious bodily injury.”
    1        All further statutory references are to the Penal Code unless otherwise
    noted.
    1
    FACTUAL AND PROCEDURAL BACKGROUND
    On the evening of August 12, 2007, defendant Serafin Santana and his
    friends attended a party given by his coworker, Juan Gomez, in Moreno Valley.
    Around 2:00 a.m., Bryan Vallejo, a 15-year-old neighbor who lived three houses
    down from Gomez, was in his front yard with his friend, Andrew Ortiz.
    Defendant and several men approached Vallejo and Ortiz. One of the men with
    defendant asked Vallejo about the possibility of getting marijuana. Vallejo said he
    would try to get some. When Vallejo later told the men he would not be able to
    get the drugs, they threw trash on Vallejo‟s lawn and an argument ensued. After
    exchanging some words, the group moved up the street.
    Several men from defendant‟s group — but not defendant — began to fight
    Vallejo. When Ortiz started to move towards Vallejo, defendant pointed a gun at
    Ortiz‟s head and said, “This bitch ain‟t gonna do nothin‟.” Defendant struck Ortiz
    with his gun on the back of the head and on the forehead, and then ran towards
    Vallejo. Ortiz yelled, “He has a gun.” After being struck with an object that felt
    like metal, Vallejo fell to the ground. The men continued to beat Vallejo and then
    ran off and got into a white Cadillac parked nearby. Defendant walked towards
    Vallejo, who was still lying on the ground. Standing three to four feet from
    Vallejo, defendant shot him in the leg three times with a small black revolver.
    Defendant then ran across the street and got into another car, which drove away.
    Vallejo was taken to the hospital and treated for his injuries. He had been shot
    three times in his left leg and buttock area. The wounds were “through and
    through,” i.e., all with exit points, and required no stitches. Vallejo, however, felt
    pain when he changed the bandages and whenever he walked or sat. Also, for a
    period of time, he had to walk with a cane and wear slippers. He was unable to
    play football when he returned to school. Both Vallejo and Ortiz identified
    defendant as the shooter.
    2
    Defendant was charged with one count of attempted mayhem based on a
    disabling injury as to Vallejo (§§ 203, 664, subd. (a); count 1), and two counts of
    assault with a firearm with respect to Vallejo and Ortiz (§ 245, subd. (a)(2); counts
    2 & 3). The amended information alleged that defendant personally and
    intentionally used a firearm resulting in great bodily injury (§ 12022.53, subd. (d))
    as to count 1; that he personally inflicted great bodily injury (§ 12022.7, subd. (a))
    as to counts 1 and 2; and that he personally used a firearm (§ 12022.5, subd. (a)) as
    to counts 2 and 3. After the jury was unable to reach a verdict, the first trial ended
    in a mistrial. A second jury found defendant guilty on all three counts and found
    true all the enhancement allegations. The trial court sentenced defendant to 25
    years to life, plus four years four months in state prison.
    Defendant appealed. With respect to his conviction for attempted mayhem,
    he asserted the trial court erred by instructing the jury that “a gunshot wound” may
    constitute a “serious bodily injury” for purposes of the offense. (See CALCRIM
    No. 801.) The Court of Appeal majority agreed with defendant that the instruction
    was unfairly argumentative and created an imbalance in the prosecution‟s favor:
    “The court‟s erroneous instruction essentially suggested to the jury that it could
    find Santana guilty of attempted mayhem if it found merely that he intended to
    inflict a gunshot wound. The instruction thus removed from the jury‟s
    consideration the key question whether Santana intended to inflict a wound that
    would seriously impair Vallejo‟s physical condition by disabling him.” The
    majority found the error prejudicial and reversed the attempted mayhem
    conviction.
    Acting Presiding Justice Benke dissented. She found no instructional error,
    but also concluded any error would be harmless: “I am at a loss to understand
    how this court can say the trial court‟s instruction, whether deficient or not, had
    any bearing on the verdict when Santana put three bullets into the same limb.”
    3
    We granted review to decide whether CALCRIM No. 801 correctly
    requires the prosecution to prove that a defendant caused “serious bodily injury.”
    DISCUSSION
    A. Origins of Mayhem and Section 203
    First codified in 1850, the crime of mayhem originated in the English
    common law. (Stats. 1850, ch. 99, § 46, pp. 233-234; People v. Sekona (1994) 
    27 Cal.App.4th 443
    , 453-456 (Sekona) [discussing origins of mayhem]; see People v.
    Keenan (1991) 
    227 Cal.App.3d 26
    , 33 (Keenan) [the word “mayhem” is “older
    form of the word „maim‟ ”].) The early common law crime of mayhem prohibited
    a person from dismembering or disabling another person, causing “an injury which
    substantially reduced the victim‟s formidability in combat.” (Goodman v.
    Superior Court (1978) 
    84 Cal.App.3d 621
    , 623 (Goodman); see LaFave,
    Substantive Criminal Law (2d ed. 2003) Physical Harm & Apprehension, § 16.5,
    p. 598 (LaFave).) Though not displacing the common law definition, England‟s
    Coventry Act, enacted in 1670, later expanded the crime of mayhem to include
    “mere disfigurement without an attendant reduction in fighting ability,” if the
    injury was intentionally inflicted. (Goodman, supra, 84 Cal.App.3d at p. 624; see
    Perkins & Boyce, Criminal Law (3d ed. 1982) Other Offenses Against the Person,
    § 8, p. 240.)
    Following two previous statutory enactments in 1850 and 1856, the crime
    of mayhem was codified as section 203 as part of the original Penal Code enacted
    in 1872. (Sekona, supra, 27 Cal.App.4th at pp. 454-455.) After a minor
    amendment in 1874, section 203 currently provides: “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.” (See Code Amends.
    4
    1873-1874, ch. 614, § 17, p. 427 [replacing “cuts out” with “cuts”]; see also Stats.
    1989, ch. 1360, § 106, p. 5864 [no change after routine code maintenance].)
    Section 203 generally prohibits six injurious acts against a person, three that
    specify a particular body part and three that do not: (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. (See CALCRIM No. 801
    [delineating six types of injuries].) California remains one of only a few
    jurisdictions that have retained mayhem as a distinct crime. (See LaFave, supra, §
    16.5(b), p. 599 & fn. 6; see, e.g., Cole v. Young (7th Cir. 1987) 
    817 F.2d 412
    , 417
    [“mayhem has become something of an anachronism in Wisconsin‟s criminal law,
    largely superseded by more „modern‟ crimes”].)
    Though section 203 contains “verbal vestiges” of the common law and the
    Coventry Act of 1670, “ „the modern rationale of the crime may be said to be the
    preservation of the natural completeness and normal appearance of the human face
    and body, and not, as originally, the preservation of the sovereign‟s right to the
    effective military assistance of his subjects.‟ ” (People v. Newble (1981) 
    120 Cal.App.3d 444
    , 451; see Keenan, supra, 227 Cal.App.3d at p. 34 [describing
    cases that “have expanded mayhem to include acts not within the original
    definition of the crime”].) In other words, section 203 “protects the integrity of
    the victim‟s person.” (People v. Page (1980) 
    104 Cal.App.3d 569
    , 578 (Page);
    see People v. Green (1976) 
    59 Cal.App.3d 1
    , 3; see also Keenan, supra, 227
    Cal.App.3d at p. 34 [recognizing cases as “practical and proper applications of an
    old statute to modern-day reality”].)
    For example, although “not every visible scarring wound” may establish
    mayhem under section 203 (Goodman, supra, 84 Cal.App.3d at p. 625), the
    following disfiguring injuries have given rise to a conviction: cigarette burns to
    5
    both breasts (Keenan, supra, 227 Cal.App.3d at p. 29); a breast nearly severed by
    a box cutter (People v. Pitts (1990) 
    223 Cal.App.3d 1547
    , 1559 (Pitts)); a three-
    inch facial laceration from a fingernail file (People v. Newble, supra, 120
    Cal.App.3d at p. 448); forcible tattoos on the breast and abdomen (Page, supra,
    104 Cal.App.3d at p. 576); and a five-inch facial wound from a knife (Goodman,
    supra, 84 Cal.App.3d at p. 623). Other injuries constituting mayhem under
    section 203 include blinding of an eye from a kick (Sekona, supra, 27 Cal.App.4th
    at p. 457); severe facial trauma requiring metal plates and wires to keep the facial
    bones together (People v. Hill (1994) 
    23 Cal.App.4th 1566
    , 1570 (Hill)); a bitten-
    through lower lip (People v. Caldwell (1984) 
    153 Cal.App.3d 947
    , 952); a broken
    ankle that had not completely healed after six months (People v. Thomas (1979)
    
    96 Cal.App.3d 507
    , 512 (Thomas)); and an eye “put out” by a machete (People v.
    Green, supra, 59 Cal.App.3d at p. 4).
    B. CALCRIM No. 801
    The issue here involves CALCRIM No. 801, the standard jury instruction
    defining mayhem.2 As unmodified, CALCRIM No. 801 provides in full:
    “The defendant is charged [in Count _____] with mayhem [in violation of
    Penal Code section 203].
    “To prove that the defendant is guilty of mayhem, the People must prove
    that the defendant caused serious bodily injury when (he/she) unlawfully and
    maliciously:
    “[1. Removed a part of someone‟s body(;/.)]
    2      Because defendant was charged with attempted mayhem, the trial court also
    instructed with a modified version of CALCRIM No. 460, defining attempt with
    respect to the offense of mayhem. The parties do not dispute the propriety of that
    instruction as given; thus, we do not discuss it here.
    6
    “[OR]
    “[2. Disabled or made useless a part of someone‟s body and the disability
    was more than slight or temporary(;/.)]
    “[OR]
    “[3. Permanently disfigured someone(;/.)]
    “[OR]
    “[4. Cut or disabled someone‟s tongue(;/.)]
    “[OR]
    “[5. Slit someone‟s (nose[, ]/ear[,]/ [or] lip) (;/.)]
    “[OR]
    “[6. Put out someone‟s eye or injured someone‟s eye in a way that so
    significantly reduced (his/her) ability to see that the eye was useless for the
    purpose of ordinary sight.]
    “Someone acts maliciously when he or she intentionally does a wrongful
    act or when he or she acts with the unlawful intent to annoy or injure someone
    else.
    “[A serious bodily injury means a serious impairment of physical condition.
    Such an injury may include[, but is not limited to]: (protracted loss or impairment
    of function of any bodily member or organ/ a wound requiring extensive suturing/
    [and] serious disfigurement).]
    “[_________________  is a serious bodily injury.]
    “[A disfiguring injury may be permanent even if it can be repaired by
    medical procedures.]” (CALCRIM No. 801; see also CALJIC No. 9.30 [defining
    mayhem].)
    In this case, the Court of Appeal majority concluded the trial court erred by
    modifying the instruction as follows: “To prove that the defendant is guilty of
    7
    mayhem, the People must prove that the defendant caused serious bodily injury
    when he unlawfully and maliciously disabled or made useless a part of someone‟s
    body and the disability was more than slight or temporary. [¶] Someone acts
    maliciously when he or she intentionally does a wrongful act or when he or she
    acts with the unlawful intent to annoy or injure someone else. [¶] A serious
    bodily injury means a serious impairment of physical condition. Such an injury
    may include a gunshot wound.” (Italics added.)
    The majority below concluded that, by including “a gunshot wound” as an
    example — while omitting other offered examples — of what may constitute a
    serious bodily injury, the modified instruction “failed to inform the jury
    concerning the defining characteristic of the offense of attempted mayhem, i.e.,
    the nature and severity of the type of injury that the defendant intended to inflict.”
    The majority also found the instruction argumentative because it invited the jury to
    focus on the prosecution‟s evidence that defendant shot Vallejo, and, based on that
    evidence, to infer that defendant had the requisite specific intent to commit the
    completed offense of mayhem. In general, the majority found the instruction
    “offered no guidance as to the main issue with respect to what may be deemed a
    serious bodily injury for purposes of the offense of mayhem.”
    Defendant maintains that the Court of Appeal majority was correct in
    criticizing the modified instruction. The People respond that it does not matter
    whether or how the trial court erred in instructing on the serious bodily injury
    requirement; any error was harmless because the pattern instruction should not
    have included this requirement in the first place. Further, the People maintain that
    “requiring the proof of a „serious bodily injury‟ over and above the statutory
    language creates an increased burden on the prosecution and could lead to jury
    confusion and unintended consequences.” Defendant, however, counters that
    except for dismembering someone or putting out someone‟s eye, the injurious acts
    8
    listed in section 203 are not self-explanatory; thus, any jury instruction must
    explain the requisite degree of severity for an injury to qualify as a mayhem
    injury. In his case, he argues that the trial court added to the confusion by, among
    other things, failing to include the pattern instruction‟s offered examples of serious
    bodily injuries (“protracted loss or impairment of function of any bodily member
    or organ,” “a wound requiring extensive suturing,” “serious disfigurement”)
    (CALCRIM No. 801); these examples would have directed the jury to focus on the
    nature and severity of the victim‟s wounds. Relying on People v. Ausbie (2004)
    
    123 Cal.App.4th 855
    , 861 (Ausbie), defendant adds that because a mayhem injury
    necessarily includes “a serious impairment of physical condition,” CALCRIM No.
    801 properly includes this as a definition of a serious bodily injury.
    As both parties recognize, section 203 does not mention “serious bodily
    injury” or “serious impairment of physical condition.” Although section 203 has
    remained unchanged since 1874, cases have periodically clarified the statutory
    requirements for mayhem. For instance, with respect to a disabling injury, the
    victim‟s disability must be more than “slight and temporary.” (Thomas, supra, 96
    Cal.App.3d at p. 512.) Similarly, case law has “grafted” on to section 203 the
    requirement that a disfiguring injury be permanent (People v. Newby (2008) 
    167 Cal.App.4th 1341
    , 1347; see Hill, supra, 23 Cal.App.4th at p. 1574, fn. 4); in that
    regard, “an injury may be considered legally permanent for purposes of mayhem
    despite the fact that cosmetic repair may be medically feasible.” (Hill, supra, 23
    Cal.App.4th at pp. 1574-1575; see Keenan, supra, 227 Cal.App.3d at p. 36, fn. 6.)
    And finally, as used in section 203, the word “maliciously” “imports an intent to
    vex, annoy, or injure another person, or an intent to do a wrongful act.” (People v.
    Bryan (1961) 
    190 Cal.App.2d 781
    , 787; see People v. Lopez (1986) 
    176 Cal.App.3d 545
    , 550.) These clarifications have made their way into the jury
    instructions defining the mayhem offense, including the current version of
    9
    CALCRIM No. 801 at issue here.3 (See CALJIC No. 9.30; CALCRIM No. 801.)
    While a jury instruction should typically track the language of a statute when
    feasible under the circumstances (see People v. Failla (1966) 
    64 Cal.2d 560
    , 565),
    an “instruction that clarifies the application of statutory language in a particular
    context does not „add to the words of a statute.‟ ” (Torres v. Parkhouse Tire
    Service, Inc. (2001) 
    26 Cal.4th 995
    , 1003-1004.)
    Here, the “serious bodily injury” language first appeared in CALCRIM No.
    801 in August 2006. This language — which was added months after the original
    CALCRIM instruction was approved in January 2006 — was not part of an earlier
    instruction, CALJIC No. 9.30. The “Authority” section following CALCRIM No.
    801 indicates that the instruction‟s definition of “serious bodily injury” came from
    the 1990 Pitts decision, which held that “great bodily injury is an element of
    mayhem.” (Pitts, supra, 223 Cal.App.3d at p. 1558, italics added; see 1 Judicial
    Council of Cal., Crim. Jury Instns. (2012) Authority for CALCRIM No. 801, p.
    589.) While the definition appears drawn from Pitts, the instruction does not
    explain what authority compelled insertion of the “serious bodily injury”
    requirement in the first place. Not surprisingly, the parties disagree on the
    requirement‟s genesis in CALCRIM No. 801. We must determine whether the
    pattern instruction‟s addition of a “serious bodily injury” requirement properly
    clarifies section 203. (See Torres v. Parkhouse Tire Service, Inc, 
    supra,
     26
    Cal.4th at pp. 1003-1004.) We begin with a discussion of Pitts.
    As noted, CALCRIM No. 801 explains that the definition of “serious
    bodily injury” is drawn from Pitts, supra, 
    223 Cal.App.3d 1547
    , in which the
    3      We do not express any view on whether these particular cases correctly
    interpret section 203.
    10
    defendant was convicted of mayhem (§ 203) for nearly severing the victim‟s left
    breast with a box cutter. The Pitts Court of Appeal reversed the defendant‟s great
    bodily injury enhancement (§ 12022.7, subd. (f)) because it concluded that great
    bodily injury is an element of mayhem. (Pitts, supra, 223 Cal.App.3d at pp. 1558-
    1559; § 12022.7, subd. (f) [defining “great bodily injury” as “a significant or
    substantial physical injury”].) Explaining that mayhem is a “cruel and savage
    crime,” it rejected the People‟s claim that “it is possible in some cases to commit
    mayhem without inflicting great bodily injury.” (Pitts, supra, 223 Cal.App.3d at
    p. 1559.) Subsequent cases have accepted Pitts‟s holding that great bodily injury
    is an element of mayhem. (See, e.g., People v. Brown (2001) 
    91 Cal.App.4th 256
    ,
    272 [“Mayhem cannot be committed without the infliction of great bodily
    injury.”]; Hill, supra, 23 Cal.App.4th at p. 1575 [“Great bodily injury is
    unquestionably an element of mayhem”]; Keenan, supra, 227 Cal.App.3d at p. 36,
    fn. 7 [“We agree mayhem requires great bodily injury”].) There is no mention in
    Pitts or its progeny of “serious bodily injury” as it applies to mayhem.
    We recognize that the terms “serious bodily injury” and “great bodily
    injury” have been described as “ „ “essential[ly] equivalent” ‟ ” (People v. Sloan
    (2007) 
    42 Cal.4th 110
    , 117) and as having “substantially the same meaning”
    (People v. Beltran (2000) 
    82 Cal.App.4th 693
    , 696). (See, e.g., People v. Hawkins
    (1993) 
    15 Cal.App.4th 1373
    , 1375 [great bodily injury is element of felony battery
    with serious bodily injury (§ 243, subd. (d)].) However, the terms in fact “have
    separate and distinct statutory definitions.” (People v. Taylor (2004) 
    118 Cal.App.4th 11
    , 24 [“Unlike serious bodily injury, the statutory definition of great
    bodily injury does not include a list of qualifying injuries”].) This distinction may
    make a difference when evaluating jury instructions that provide different
    definitions for the two terms. (See id. at p. 25 [“In these circumstances, the jury‟s
    finding of serious bodily injury cannot be deemed equivalent to a finding of great
    11
    bodily injury.”].) Thus, in this context where we must consider a jury instruction‟s
    precise language, we cannot conclude that the offense of mayhem includes a
    serious bodily injury requirement simply based on cases holding that mayhem
    includes a great bodily injury component. Defendant nonetheless maintains that
    the definition of “serious bodily injury” is required to give necessary guidance to
    the jury.
    As both parties note, the instruction‟s definition of “serious bodily injury”
    is apparently drawn from section 243, subdivision (f)(4) (§ 243(f)(4)), which
    defines “serious bodily injury” for purposes of felony battery.4 CALCRIM No.
    801 specifies that the six injurious acts giving rise to mayhem under section 203
    must also be shown to rise to the level of serious bodily injury. Pursuant to
    section 243(f)(4), the instruction defines “serious bodily injury” as a “serious
    impairment of physical condition,” and then illustrates such injuries by a
    nonexclusive list of qualifying examples. (See ante, at pp. 6-7 [setting out
    instruction in full].) However, as we explain below, CALCRIM No. 801‟s
    inclusion of a “serious bodily injury” requirement is problematic and inconsistent
    with section 203.
    For instance, the instruction provides that the People must prove a
    defendant “caused serious bodily injury when (he/she) unlawfully and
    maliciously: [¶] . . . [¶] Permanently disfigured someone.” (CALCRIM No. 801,
    italics added.) Yet the instruction also adds that a “serious bodily injury” includes
    4       This provision states: “ „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.” (§ 243(f)(4); see also § 417.6, subd. (b) [same
    definition of “serious bodily injury”].) Loss of consciousness, concussion, and
    bone fracture, however, are not included as examples in CALCRIM No. 801.
    12
    “serious disfigurement.” (Ibid., italics added.) These two modifiers, however, are
    not synonymous or interchangeable. (See Silvers v. State (Ga.Ct.App. 2000) 
    538 S.E.2d 135
    , 136 [“ „To constitute the crime of aggravated battery, there is no
    requirement that, in addition to being “serious,” the disfigurement of a victim be
    permanent‟ ”]; see also Ohio Rev. Code Ann., § 2901.01, subd. (A)(5)(d)
    [“ „Serious physical harm to persons‟ ” includes “[a]ny physical harm that
    involves some permanent disfigurement or that involves some temporary, serious
    disfigurement”]; cf. Keenan, supra, 227 Cal.App.3d at pp. 35-36 [cigarette burns
    to breasts “clearly involved a serious permanent disfigurement” under § 203 (fn.
    omitted)].) Thus, a juror could reasonably be confused as to whether a
    disfigurement must be serious, permanent or both.
    Also, CALCRIM No. 801‟s examples of “serious bodily injury”
    (“protracted loss or impairment of function of any bodily member or organ,” “a
    wound requiring extensive suturing,” “serious disfigurement”) are inconsistent
    with section 203. As explained above (see ante, at p. 5), section 203 includes
    among the injurious acts constituting mayhem, cutting or disabling the tongue and
    slitting the nose, ear or lip. Nothing suggests that these injuries must involve
    protracted loss or impairment of function, require extensive suturing, or amount to
    serious disfigurement. While these examples are merely illustrative and do not
    constitute serious bodily injuries as a matter of law (see People v. Nava (1989)
    
    207 Cal.App.3d 1490
    , 1497-1498), they underscore how imprecise and ill-fitting
    the definition is for the statutory offense of mayhem.
    In sum, we see no basis — compelled either by case law or by the need to
    give jurors further guidance — to superimpose a wholesale definition of “serious
    bodily injury” from section 243(f)(4) in the instruction. By delineating the type of
    injuries that will suffice for mayhem, the Legislature itself established an injury‟s
    requisite level of seriousness in section 203, and when needed, subsequent cases
    13
    have given further amplification. (See People v. Newby, supra, 167 Cal.App.4th
    at p. 1347 [disfiguring injury must be permanent]; Thomas, supra, 96 Cal.App.3d
    at p. 512 [disabling injury must more than “slight and temporary”].) To add a
    serious bodily injury requirement to the specific injuries listed in section 203 is
    more confusing than elucidating.
    We also conclude that Ausbie, supra, 
    123 Cal.App.4th 855
    , on which
    defendant relies, does not support instructing the jury on a separate “serious bodily
    injury” requirement for mayhem. In Ausbie, which addressed what offenses were
    necessarily included in mayhem, the Court of Appeal accepted the People‟s
    concession that “battery with serious bodily injury is a necessarily included
    offense of mayhem . . . .” (123 Cal.App.4th at p. 859; see id. at p. 860, fn. 2;
    People v. Reed (2006) 
    38 Cal.4th 1224
    , 1227 [discussing necessarily included
    offenses].) In rejecting the defendant‟s claim that assault by means of force likely
    to produce great bodily injury (§ 245, former subd. (a)(1), amended by Stats. 1993,
    ch. 369, § 1, p. 2168) is a necessarily included offense of mayhem, the court
    repeatedly explained that section 203 “itself does not define the nature of force
    required but focuses instead on the nature of the injuries inflicted.” (Ausbie,
    supra, 123 Cal.App.4th at p. 861.) Defendant maintains this language compels
    inclusion of a “serious bodily injury” requirement, namely, its definition as a
    “serious impairment of physical condition,” in the mayhem instruction. Likewise,
    although the Court of Appeal majority here did not discuss the specific elements
    of mayhem (because the issue was not before it), it repeatedly cited Ausbie and
    referred to what it considered the “defining characteristic” of the mayhem offense,
    i.e., “the nature and severity of the type of injury that the defendant intended to
    inflict,” when discussing the specific intent required to find defendant guilty of
    attempted mayhem.
    14
    We first note that apart from accepting the People‟s concession that battery
    with serious bodily injury is a necessarily included offense of mayhem, the Ausbie
    court did not hold that serious bodily injury is a separate element of mayhem.
    Rather than setting out a specific requirement of mayhem, the Ausbie court
    emphasized the nature and severity of the mayhem injuries because it sought to
    distinguish mayhem from assault by means of force likely to produce great bodily
    injury (§ 245, former subd. (a)(1), amended by Stats. 1993, ch. 369, § 1, p. 2168).
    (Ausbie, supra, 123 Cal.App.4th at pp. 861-862.) More to the point, even if
    Ausbie is correct that section 203 emphasizes the “nature of the injuries inflicted”
    (123 Cal.App.4th at p. 861), this does not mean that the listed injuries necessarily
    constitute serious bodily injuries as defined, or that the instruction should include
    serious bodily injury as a separate requirement in addition to instructing on the six
    specific injuries. 5 Based on the foregoing, we conclude that Ausbie does not stand
    for the proposition that proof of serious bodily injury as a separate element is
    required under CALCRIM No. 801.6
    C. Instructional Error and Prejudice
    Notwithstanding the erroneous addition of a “serious bodily injury”
    requirement, the modified instruction did not prejudice defendant in that regard
    because the prosecution was held to an arguably higher burden of proof. (See
    People v. Dayan (1995) 
    34 Cal.App.4th 707
    , 717 [“Defendant cites no authority
    5        Defendant nonetheless contends that among the cases discussing the
    severity of various mayhem injuries (see ante, at pp. 5-6), there is not “a single
    case where the injury could not be regarded as a „serious impairment of physical
    condition.” Whether this observation is true or not, it does not answer the question
    whether such a serious impairment must be proven in a mayhem case.
    6        We disapprove People v. Ausbie, supra, 
    123 Cal.App.4th 855
    , to the extent
    it is inconsistent with this opinion.
    15
    for the startling proposition that if a court‟s instruction erroneously adds an
    element to an offense, a conviction must be reversed when there is insufficient
    evidence to support the added, but legally unnecessary, element.”].) However, the
    instruction explained that a serious bodily injury “may include a gunshot wound,”
    which raises the question whether the instruction was argumentative. Defendant
    maintains that it was argumentative because it improperly directed the jury to the
    prosecution‟s evidence and “direct[ed] the jury to find a mayhem injury by virtue
    of finding a firearm injury.” The People, however, contend that because the
    instruction stated an injury “may” include a gunshot wound, the instruction did not
    thereby “direct a verdict in favor of the prosecution” or otherwise relieve the
    prosecution of the burden of proving the necessary elements for mayhem. In
    addition, they contend that any error was harmless.
    A jury instruction is improperly argumentative if “it would invite the jury to
    draw inferences favorable to the defendant [(or the prosecution)] from specified
    items of evidence on a disputed question of fact, and therefore properly belongs
    not in instructions, but in the arguments of counsel to the jury.” (People v. Wright
    (1988) 
    45 Cal.3d 1126
    , 1135; see People v. Mincey (1992) 
    2 Cal.4th 408
    , 437.)
    “In a proper instruction, „[what] is pinpointed is not specific evidence as such, but
    the theory of the defendant‟s [(or the prosecution‟s)] case.‟ ” (People v. Wright,
    supra, 45 Cal.3d at p. 1137.) We review an argumentative instruction for
    harmless error under People v. Watson (1956) 
    46 Cal.2d 818
    , 836. (People v.
    Earp (1999) 
    20 Cal.4th 826
    , 887.) “[U]nder Watson, a defendant must show it is
    reasonably probable a more favorable result would have been obtained absent the
    error.” (People v. Mena (2012) 
    54 Cal.4th 146
    , 162.)
    We need not decide whether the instruction was argumentative because
    even assuming error, we conclude it was harmless under People v. Watson, supra,
    46 Cal.2d at page 836. Because defendant was charged with attempted mayhem,
    16
    the issue was not whether defendant actually inflicted a disabling injury, but
    whether he intended to do so. (See People v. Kipp (1998) 
    18 Cal.4th 349
    , 376
    [“An attempt to commit a crime requires a specific intent to commit the crime and
    a direct but ineffectual act done toward its commission.”]; see also CALCRIM No.
    460; People v. Nolan (1932) 
    126 Cal.App. 623
    , 638.)
    The record here shows that defendant stood at close range and fired three
    shots with a .38-caliber revolver into the leg and buttock area of Vallejo, who lay
    unresisting on the ground. Defense counsel did not dispute Vallejo suffered
    gunshot wounds, telling the jury the case was about “one question: Identity.
    Nothing else.” Moreover, with respect to Vallejo, the jury found true the
    allegations that defendant personally and intentionally used a firearm resulting in
    great bodily injury (§ 12022.53, subd. (d)), and personally inflicted great bodily
    injury (§ 12022.7, subd. (a)). This evidence strongly supports a finding that
    defendant intended to inflict a disabling injury. We see no reasonable probability
    the result would have been more favorable to defendant had the court not given an
    instruction highlighting the victim‟s gunshot wound.
    CONCLUSION
    We reverse the judgment of the Court of Appeal and remand the case to
    that court for further proceedings consistent with our opinion.
    CHIN, J.
    WE CONCUR:
    CANTIL-SAKAUYE, C.J.
    KENNARD, J.
    BAXTER, J.
    WERDEGAR, J.
    CORRIGAN, J.
    LIU, J.
    17
    See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
    Name of Opinion People v. Santana
    __________________________________________________________________________________
    Unpublished Opinion
    Original Appeal
    Original Proceeding
    Review Granted XXX 
    200 Cal.App.4th 182
    Rehearing Granted
    __________________________________________________________________________________
    Opinion No. S198324
    Date Filed: June 10, 2013
    __________________________________________________________________________________
    Court: Superior
    County: Riverside
    Judge: Mark E. Johnson
    __________________________________________________________________________________
    Counsel:
    Carl Fabian, under appointment by the Supreme Court, for Defendant and Appellant.
    Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
    Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Steven T. Oetting,
    Andrew S. Mestman, Gil Gonzalez and Stacy Tyler, Deputy Attorneys General, for Plaintiff and
    Respondent.
    Counsel who argued in Supreme Court (not intended for publication with opinion):
    Carl Fabian
    3232 Fourth Avenue
    San Diego, CA 92103
    (619) 692-0440
    Stacy Tyler
    Deputy Attorney General
    110 West A Street, Suite 1100
    San Diego, CA 92101
    (619) 645-2458