CALCRIM No. 3176

(Pen. Code, § 667.61(d)(3))

If you find the defendant guilty of the crime[s] charged in Count[s]

<insert counts charging sex offense[s] from Pen. Code, § 667.61(c)>,

you must then decide whether[, for each crime,] the People have proved

the additional allegation that, while committing that crime, the defendant

also committed aggravated mayhem. [Y ou must decide whether the

People have proved this allegation for each crime and return a separate

finding for each crime.]

To prove this allegation, the People must prove that:

1. During the commission of the crime, the defendant unlawfully

and maliciously (disabled or disfigured someone permanently/ [or]

deprived someone else of a limb, organ, or other part of (his/her)

body);

2. When the defendant acted, (he/she) intended to (permanently

disable or disfigure the other person/ [or] deprive the other

person of a limb, organ, or other part of (his/her) body);

AND

3. Under the circumstances, the defendant’s act showed extreme

indifference to the physical or psychological well-being of the

other person.

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 disfiguring injury may be permanent even if it can be repaired by

medical procedures.]

[The People do not have to prove that the defendant intended to kill.]

<If there is an issue in the case over whether the mayhem was committed

“during the commission of” the offense, see Bench Notes.>

The People have the burden of proving each allegation beyond a

reasonable doubt. If the People have not met this burden, you must find

that the allegation has not been proved.

New January 2006