Filed 12/23/13 P. v. Hall CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

NATHANIEL VERNON HALL,

Defendant and Appellant.

 H038706

 (Santa Clara County

 Super. Ct. No. C1082794)

A jury found Nathaniel Hall (appellant) guilty of one count of aggravated mayhem

(Pen. Code, § 205, count one), one count of corporal injury on a cohabitant (§ 273.5, 

subd. (a), count two),

1

resisting or deterring a police officer by threats or violence (§ 69, 

count three) and three counts of violating a protective order (§ 273.6, counts four through 

six). As to counts one and two, the jury found true the allegation that appellant 

personally inflicted great bodily injury on the victim (§ 12022.7, subd. (e)). 

On August 10, 2012, the court sentenced appellant to seven years-to-life on count 

one. The sentence on count two—inflicting corporal injury on a cohabitant—was stayed 

pursuant to section 654. Further, the court struck the great bodily injury enhancement 

pursuant to section 1385 and imposed county jail sentences for counts three through six. 

As to count three, the court granted appellant probation and imposed a 90-day concurrent 

 

1 All unspecified section references are to the Penal Code.
2

county jail sentence, credit for time served—probation to terminate "on his release." The 

court ordered that the sentences on counts four through six be served concurrently with 

each other and with appellant's prison term.

Appellant filed a timely notice of appeal. On appeal, appellant challenges the 

sufficiency of the evidence to support his conviction for aggravated mayhem on the 

ground that the evidence did not support a finding of specific intent to disfigure the 

victim; appellant alleges that the trial court erred by refusing to instruct the jury with 

pinpoint instructions that defense counsel requested; and finally, the court's refusal to 

give the special instructions requested by defense counsel violated his constitutional due 

process right to present a defense. For reasons that follow, we affirm the judgment. 

Facts and Proceedings Below

Ashley Flores had been appellant's girlfriend for three years and had lived with 

appellant for approximately six months when the incident underlying this case occurred. 

On August 6, 2010, Flores and appellant consumed a lot of alcohol at a couple of bars, so 

much so that Flores was intoxicated. She argued with appellant because appellant had 

suggested that she was flirting with another man. 

When Flores and appellant returned home, the fighting continued. Flores left the 

residence and went to her car because she was tired of arguing. She moved her car to a 

parking spot on the street as she planned to sleep in the car. Repeatedly, appellant called 

her on her cellular telephone; she did not answer.

When she awoke, Flores went back to the residence. She noticed that appellant 

had thrown her television to the floor and had spat on it; appellant was packing his 

backpack. They argued again. Flores went to pour a cocktail, but appellant knocked it 

out of her hand. Flores went to the bathroom to take a shower and then returned to the 

bedroom. She yelled at appellant. Flores testified that she grabbed appellant's neck and 
3

pushed him on the bed.2 Appellant grabbed Flores's head in both hands and bit off her 

left eyelid; there was a lot of blood. Flores ran to the bathroom to see what had happened 

to her eyelid. Appellant followed her and then spat out the severed eyelid at Flores.3 

Flores tried to leave the apartment, but appellant prevented her from going. 

Appellant threw her to the ground and kicked her; he pulled her hair. Eventually, Flores 

ran to the car. Appellant pushed her into the passenger seat and he got into the driver's 

seat and drove away. Flores was wearing only a top when she fled the residence; she 

wanted to get to the hospital and did not think about putting on her pants. Appellant 

drove erratically; Flores was frightened because appellant was enraged. Later, she told 

the police that appellant threatened to kill them both. 

When appellant stopped the car at a stop sign Flores grabbed the keys and threw 

them out of the window. She tried to get out of the car, but appellant grabbed her and 

held her head against his chest. Almost immediately, officers arrived on the scene; they 

pulled appellant from the car. According to Flores, appellant would not get out of the car 

when the officer ordered him so to do. Officers summoned an ambulance to take Flores 

to the hospital. She told the officers that appellant was out of control. 

Paramedics transported Flores to Valley Medical Center. She told the nursing 

staff that her boyfriend assaulted her. That evening she had surgery to repair the 

traumatic eye injury she had sustained. Her head and stomach hurt after the incident. 

Flores had bruising on her left forearm from the attack as well as a bruise above her right 

elbow. 

 

2 However, she admitted that later she told the police that appellant was the first to 

use physical force, did not tell them that she choked appellant and acknowledged that she 

told the police the truth when they questioned her later that night. 

3

Then San Jose Police Officer Joe Kalsbeek photographed the crime scene. A flat 

screened television was overturned and there was blood on the carpet near the couch and 

on the couch, but the bed was made and there was no blood on it. The bathroom floor 

had blood drops on it. 
4

Ophthalmologist James Egbert treated Flores's eye injury on August 7, 2010. 

Flores had two lacerations to her upper eyelid. He performed surgery to repair the eyelid 

and the tear drainage system. He testified that without the surgery it was likely that 

Flores would have lost vision in her left eye. Dr. Egbert discovered an old facture to 

Flores's left orbital area. 

As a result of appellant's attack, a restraining order was issued to protect Flores. 

Nevertheless, appellant telephoned her on August 10, 2010. Flores told appellant she 

thought he was going to kill her on the night he bit her. Appellant accused her of 

attacking him, but she denied that she had so done. Appellant telephoned her again on 

September 2, 2010. In this conversation, again, appellant suggested that Flores choked 

him; again she denied the allegation. Appellant telephoned Flores again on 

September 20, 2010. Flores received between 10 and 20 letters from appellant. 

Flores admitted that there had been prior incidents of domestic violence. On 

September 9, 2009, appellant punched Flores twice in the left eye. On another occasion, 

as Flores was recovering from broken blood vessels in her eye, appellant pushed his 

thumb into her eye. In May 2010, appellant bit her stomach and breast. 

According to Flores, she told a detective that interviewed her that in early 2010, 

appellant told her he wanted to "hear the sound of flesh" and taste blood.4 Flores 

maintained contact with appellant in the months preceding the trial. She admitted that in 

conversations she had with appellant, appellant referred to himself as a "psychopathic 

killer" who liked to eat people. 

San Jose Police Detective Duane Tuell spoke with Flores on August 10, 2010, two 

days after the attack in order to obtain a statement. Detective Tuell along with Detective 

Gonzalez interviewed Flores at her parents' residence. They recorded their conversation 

 

4 At trial Flores tried to downplay the significance of what she told the detective 

saying she and appellant were discussing a movie. However, she conceded that she did 

not tell the detective that piece of information. 
5

with her. Flores never said that she used any physical violence against appellant; rather,

it was appellant that initiated the violence. Flores said that appellant pushed her into the 

passenger seat of her car. Flores complained of pain to her stomach and head. Detective 

Tuell could see bruising on Flores's arms. 

Detective Tuell spoke with Flores by telephone on August 25, 2010. Flores 

confirmed that she did not choke or put her hands on appellant. Flores told him that 

appellant had expressed the desire to bite flesh. Flores confirmed to him that she 

remembered the details of the incident. On October 26, 2010, Flores telephoned 

Detective Tuell and said that she might have choked appellant, but she was not trying to 

hurt him. 

Joseph Torres testified that on August 7, 2010, at approximately 2:30 a.m. he was 

awakened by a woman's screams from the street. The woman was yelling for help. It 

appeared that she was in distress and crying. He heard the woman say, " 'I didn't do 

anything.' " Torres called 911. 

Dirk Himley testified that he was sleeping in his San Jose apartment on August 7, 

2010. At approximately 2:30 a.m., he was awakened by red and white lights illuminating 

his bedroom. Himley said he looked out the window and saw a white car in the middle of 

the street. A police car was in the intersection. An African American male was at the 

curb and a police officer was about five feet away. The African American male 

resembled someone he had seen in the neighborhood. The man seemed out of control; he 

was screaming and flailing his arms. A woman who was inside a car was trying to calm 

the man. The police officer waited for the man to stop yelling and then handcuffed him. 

Himley said that he did not see the man push or try to punch the officers.5 

 

5 Officer Kalsbeek interviewed Himley shortly after the incident. Himley told him 

that he heard appellant "yelling" and then saw him "fighting with two police officers." 

Himley told Officer Kalsbeek that appellant said, " 'Fuck you. I'm going to fucking kill 

you' " as he was fighting with the officers. 
6

San Jose Police Officer Michael Kodres was on patrol when he responded to a call 

at 2970 Magliocco Drive. When he did not see any disturbance he drove around the area. 

He saw a white vehicle parked at an awkward angle. Officer Kodres parked his patrol car 

and approached the white car. Flores was in the passenger seat and appellant was on top 

of her. Flores was crying and appellant was cursing and pushing his face into her face. 

Officer Kodres ordered appellant to get off Flores. Appellant moved to the driver's side 

of the vehicle and opened the door. Officer Kodres saw that Flores's face was covered in 

blood. Appellant said, "I did this. Arrest me." Officer Kodres placed appellant in 

handcuffs. However, as he tried to escort appellant to his patrol car, appellant pulled 

away. Despite Officer Kodres telling appellant to stop, appellant continued to pull away 

from him. Officer Kodres pinned appellant against the car, but appellant continued to 

struggle. Appellant tried to head butt Officer Kodres, but the officer was able to move 

out of the way. Officer Cleaver arrived at the scene and helped to subdue appellant. 

Officer Kodres suffered an abrasion to his knee. Appellant cursed and screamed inside 

the police car and kicked the Plexiglas barrier between the front and rear seats. Appellant 

threatened Officer Kodres and made racial slurs and used racial epithets. 

Officer Kodres placed a digital recorder in the back of his patrol car. Appellant 

continued his angry outburst about the officers. At one point appellant stated "Next time 

I'll shoot her goddamn eyeball out of her face."6

Officer Cleaver testified that when he arrived at the scene he saw appellant lying 

flat on his stomach with his hands cuffed behind his back. Officer Kodres was kneeling, 

trying to hold down appellant, who was struggling. Officer Cleaver ran over to assist 

 

6

Initially, the court ruled that the recording of appellant's entire outburst was not to 

be played for the jury as the court determined that his statements were not voluntary. 

Later, the court ruled that parts of the recording could come in. Thereafter, defense 

counsel made a tactical decision to allow the whole recording to be played for the jury. 

Accordingly, Officer Kodres authenticated the tape recording and the entire recording 

was played for the jury. 
7

Officer Kodres and they asked appellant to calm down. Appellant continued to yell about 

"racist cops." Appellant moved toward the patrol car, but struggled when the officers 

tried to put him in the backseat. Appellant hit his head on the patrol car four to six times. 

The officers had to use force to push appellant's feet into the car. Appellant continued to 

shout in the back of the patrol car; he used many derogatory slurs.

Officer Cleaver went to talk to Flores. He saw that her face was covered in blood. 

She was crying and said, repeatedly, "Don't let me lose my eye." According to Officer 

Cleaver, Flores told him that appellant threw her big screen television onto the ground; 

that the first physical contact between her and appellant occurred when appellant grabbed 

her head with both hands and bit her; and that appellant kicked her in the head and 

stomach. Flores never told him that she choked appellant. Flores said that after she ran 

from the residence, appellant followed her to her car, pushed her from the driver's seat 

into the passenger seat and drove away. Flores told him that there were prior unreported

incidents of domestic violence. 

Kenneth Mark, a forensic toxicologist, testified for the defense on the effects and 

symptoms of alcohol. He explained to the jury that an individual with a blood alcohol 

level of .10 would exhibit symptoms of impairment. An individual with a .20 blood 

alcohol level would be impaired as to their motor skills. 

Niven Hall, appellant's brother, testified that he had never seen his brother get 

physical during an argument, but he had seen Flores throw a bottle when she was angry. 

He believed that the charges against his brother were inconsistent with his brother's 

personality. 

Appellant testified on his own behalf that on a prior occasion he had struck Flores 

after he had consumed 10 drinks. He said that Flores had been physically aggressive 

toward him in the past; he described it as play wrestling. On August 7, 2010, he had 

consumed approximately 10 drinks. When he and Flores drove home that night, Flores 

accused him of flirting. Later, when Flores came into the apartment, he left. About 30 
8

minutes later, he tried telephoning Flores, but she did not answer. Appellant said he 

knocked over the television because he was angry; and he did spit on the television. He 

was packing his clothes when Flores ran over to him and jumped on him, he ended up on 

the bed. Flores was strangling him and telling him she hated him. He did not want to hit 

Flores so he bit her on her eyelid. Flores ran into the bathroom, but he did not follow her. 

Then she ran out of the house. 

Appellant said he followed her to the car to see the seriousness of her injury. He 

said he saw the bleeding and told her to move over so he could take her to Valley 

Medical Center. Appellant said that they were both crying. He made a comment, "I feel 

like killing us. This is ridiculous." That was when Flores threw the keys out of the 

window. Shortly thereafter, officers arrived. 

Appellant denied that he attempted to get away from Officer Kodres; and it was 

the officer that slammed his head into the patrol car and kicked him. Appellant said that 

he did not struggle getting into the car, but he did curse at the officers. Appellant said 

that the three officers who testified lied about what happened.

Appellant said that he had a vague recollection of biting Flores's eyelid, but denied 

spitting the eyelid at Flores. He denied discussing an interest in tasting blood or flesh. 

He acknowledged that he had violated the no contact order by contacting Flores; and 

admitted that when he was in the back of the patrol car he said, " 'I'll never have to see 

that bitch again. Next time, I'll shoot her Goddamn eye out of her face.' " Appellant 

agreed that in the entire time he was in the back of the patrol car he never said that he was 

acting in self defense when he bit Flores. 

Appellant admitted that he had fractured Flores's eye socket on a prior occasion. 

He acknowledged that when he telephoned Flores he asked her to show him mercy at 

least four or five times.
9

Discussion

Sufficiency of the Evidence of Aggravated Mayhem

Appellant contends that the evidence was insufficient to support the aggravated 

mayhem conviction. Specifically, he argues that there was insufficient evidence to 

support the finding that he had the specific intent to disfigure Flores. 

"When considering a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable,

credible, and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Lindberg (2008) 45 

Cal.4th 1, 27; Accord, Jackson v. Virginia (1979) 443 U.S. 307, 319-320.) "Reversal on 

this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there 

sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin

(1988) 18 Cal.4th 297, 331.) 

"Although we must ensure the evidence is reasonable, credible, and of solid value, 

nonetheless it is the exclusive province of the trial judge or jury to determine the 

credibility of a witness and the truth or falsity of the facts on which that determination 

depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must 

accord due deference to the trier of fact and not substitute our evaluation of a witness's 

credibility for that of the fact finder. [Citations.]" (People v. Jones (1990) 51 Cal.3d 

294, 314.) 

It is well established that "[t]he standard of appellate review is the same in cases in 

which the People rely primarily on circumstantial evidence. [Citation.] Although it is the 

duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible 

of two interpretations, one of which suggests guilt and the other innocence [citations], it 

is the jury, not the appellate court which must be convinced of the defendant's guilt 
10

beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's 

findings, the opinion of the reviewing court that the circumstances might also be 

reasonably reconciled with a contrary finding does not warrant a reversal of the 

judgment." ' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 932-933.) 

Section 205 provides, "A person is guilty of aggravated mayhem when he or she 

unlawfully, under circumstances manifesting extreme indifference to the physical or 

psychological well-being of another person, intentionally causes permanent disability or 

disfigurement of another human being or deprives a human being of a limb, organ, or 

member of his or her body. For purposes of this section, it is not necessary to prove an 

intent to kill." 

Aggravated mayhem requires proof the defendant specifically intended to maim, 

that is to cause a permanent disability or disfigurement. (People v. Quintero (2006) 135 

Cal.App.4th 1152, 1162.) 

" 'A jury may infer a defendant's specific intent from the circumstances attending 

the act, the manner in which it is done, and the means used, among other factors.' 

[Citation.]" (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831.) 

Here the evidence showed that appellant grabbed Flores's head and bit her eyelid 

so hard that part of it was severed from her face. When she ran to the bathroom, he 

followed her and spat the severed part at her. Had appellant not intended that the 

disfigurement be permanent, he would have carefully preserved the eyelid so that it could 

be reattached, rather than spitting it at Flores and would not have tried to prevent her 

from leaving to seek medical attention. Furthermore, it is noteworthy that appellant bit 

Flores on an extremely vulnerable part of her body—the tissue covering her eye—rather 

than on her arm or chest. The limited scope of appellant's attack on Flores's face shows 

this was not an indiscriminate attack but instead was an attack guided by the specific 

intent of inflicting serious permanent injury to her face. It is particularly significant that 

appellant stopped his attack once he had maimed Flores's face. In short, he had
11

accomplished his objective. Furthermore, after the incident appellant stated, "Next time 

I'll shoot her goddamn eyeball out of her face." This statement supports an inference that 

the injury to Flores's face was deliberate rather than accidental. Taken together the

circumstances indicate that appellant intentionally and deliberately bit Flores's eyelid to 

cause permanent injury to her face. (See People v. Park (2003) 112 Cal.App.4th 61, 69 

[concentrated attack on vulnerable head and face sufficient evidence of specific intent to 

maim].) The fact that the maiming injury was inflicted by a single act without the use of 

any weapon is of no moment. Appellant's choice of an extremely vulnerable part of 

Flores's face and the fact that he bit her and tore away part of her skin in a single action 

simply shows that he was able to achieve his goal in an expeditious fashion.

In sum, the evidence was sufficient for the jury to find that appellant had the 

specific intent to maim Flores. 

Alleged Instructional Error

Appellant contends that the trial court erroneously refused to give his proposed 

instruction on the specific intent necessary for aggravated mayhem. 

Defense counsel requested two instructions. Specifically, he asked the court that 

the jury be instructed that "evidence that shows no more than [an] indiscriminate attack is 

insufficient to prove the required specific intent"7and "[s]pecific intent to maim may not 

be inferred solely from evidence that the injury inflicted actually constitutes mayhem. 

There must be earlier facts and the [sic] circumstances were supportive due to intent to 

maim rather than to attack indiscriminately." Defense counsel cited to People v. Park, 

supra, 112 Cal.App.4th at page 64 in support of this part of his request. We note that the 

actual wording in People v. Park is as follows: "[S]pecific intent to maim may not be 

 

7 Defense counsel took this language from People v. Horvath (2012) 204 

Cal.App.4th 100, 105. The case was decertified on 06/13/2012. However, the language 

appears in People v. Assad (2010) 189 Cal.App.4th 187, 195 and People v. Park, supra, 

112 Cal.App.4th at page 64, and People v. Ferrell (1990) 218 Cal.App.3d 828, 835. 
12

inferred solely from evidence that the injury inflicted actually constitutes mayhem; 

instead, there must be other facts and circumstances which support an inference of intent 

to maim rather than to attack indiscriminately." (Id. at p. 64.) We assume that this is 

what counsel meant by his request. 

The court refused to give the instruction on the basis that the standard instruction 

on aggravated mayhem, CALCRIM No. 800, "addresses the issue of intent sufficiently."

Appellant contends that the court erred because the two instructions were not 

covered by any other instruction and were not argumentative. Further, he was entitled to 

instructions that pinpointed the crux of his defense. Appellant asserts that the erroneous 

refusal to give the pinpoint instructions was prejudicial since the crucial issue of intent 

was based on weak evidence. Accordingly, he argues that his aggravated mayhem 

conviction must be reversed. 

In essence, appellant's requested instructions would have informed the jury that an 

indiscriminate attack that caused a maiming injury could not by itself prove the specific 

intent to maim, that there had to be other circumstances that supported an inference of 

intent to maim. In other words, the jury would have understood that to find appellant 

guilty of aggravated mayhem they would have to find more than that the maiming injury 

occurred.

Initially, we note that the court instructed the jury pursuant to CALCRIM No. 800 

as follows: "The Defendant is charged in Count 1 with aggravated mayhem in violation 

of Penal Code section 205. [¶] To prove that the Defendant is guilty of this crime, the 

People must prove that: [¶] 1. The Defendant unlawfully and maliciously disfigured 

someone permanently or deprived someone else of a part of her body; [¶] 2. When the 

Defendant acted, he intended to disfigure the other person or deprive the other person of a 

part of 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 intentionally does a wrongful act or when he acts with 
13

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." 

In addition, the court instructed the jury pursuant to CALCRIM No. 225 that 

before they could rely on "circumstantial evidence to conclude that the Defendant had the 

required intent" the jury had to "be convinced that the only reasonable conclusion 

supported by the circumstantial evidence is that the Defendant had the required intent." 

The jury was told that they had to find appellant guilty beyond a reasonable doubt, and 

that the charge of aggravated mayhem required that appellant intentionally caused 

permanent disability and disfigurement. Taken together these instructions fully set forth 

the requisite intent for the aggravated mayhem charge. "A trial court is not required to 

give pinpoint instructions that merely duplicate other instructions." (People v. Panah

(2005) 35 Cal.4th 395, 486.) 

Appellant argues, however, that the standard instructions did not advise the jury 

what factors it could consider in deciding whether he intended to maim, the second 

essential element of aggravated mayhem. Nor did the instructions advise the jury that the 

intent to maim cannot be inferred solely from the infliction of an injury that qualifies as 

mayhem, and finally the instructions did not advise the jury there must be facts and 

circumstances that support an inference of the intent to maim rather than to attack 

indiscriminately. 

The language that appellant requested actually comes from one of the first cases to 

consider section 205. People v. Ferrell, supra, 218 Cal.App.3d 828 (Ferrell) determined,

from the language of the section 205, that "the specific intent to cause the maiming injury 

is an element of aggravated mayhem." (Id. at p. 833.) The Ferrell court was considering 

a challenge to the sufficiency of the evidence of specific intent when the court observed: 

" 'Evidence of a defendant's state of mind is almost inevitably circumstantial, but 

circumstantial evidence is as sufficient as direct evidence to support a conviction. 
14

[Citations.]' [Citation.] A jury may infer a defendant's specific intent from the 

circumstances attending the act, the manner in which it is done, and the means used, 

among other factors." (Id. at p. 834.)

Ferrell went on to state: "Despite the differences in the statutory language . . . the 

standards articulated in cases involving felony-murder mayhem are instructive here. 

Evidence which shows no more than an 'indiscriminate attack' is insufficient to prove the 

specific intent to commit mayhem under section 203. [Citations.] Furthermore, specific 

intent to maim may not be inferred solely from evidence that the injury inflicted actually 

constitutes mayhem; instead, there must be other facts and circumstances which support 

an inference of intent to maim rather than to attack indiscriminately." (Ferrell, supra,

218 Cal.App.3d at p. 835.)

It is well established that "a trial court may properly refuse an instruction offered 

by the defendant if it incorrectly states the law, is argumentative, duplicative, or 

potentially confusing [citation] or if it is not supported by substantial evidence [citation]."

(People v. Moon (2005) 37 Cal.4th 1, 30 (Moon).) An instruction that directs the jury to 

consider certain evidence is properly refused as argumentative. A proper instruction does 

not pinpoint specific evidence as such, but the theory of the defendant's case. (People v. 

Ledesma (2006) 39 Cal.4th 641, 720.)

Insofar as part of the requested instructions referred to an indiscriminate attack, 

there was no evidence, substantial or otherwise, of an indiscriminate attack on Flores and 

defense counsel did not argue to the jury that the attack on Flores was indiscriminate, 

rather he argued that appellant was acting in self-defense. That part of the request was 

properly refused as it reflected neither the defense theory nor the evidence. (Cf. People v. 

Hartsch (2010) 49 Cal.4th 472, 501–502.)

With regard to the rest of the requested instructions we question whether it is an 

accurate statement of the law. (Cf. Moon, supra, 37 Cal.4th at p. 31 [case law regarding 

sufficiency of evidence on appeal of premeditation and deliberation would be an 
15

improper jury instruction].) "Language in an appellate opinion which may be a good 

statement of law or the reasoning of the appellate court does not necessarily make a good 

jury instruction." (People v. Adams (1987) 196 Cal.App.3d 201, 204–205; cf. People v. 

Colantuono (1994) 7 Cal.4th 206, 221, fn. 13.) Alone, the type of injury inflicted may 

well establish the intent to disfigure sufficient to sustain a conviction. (Cf. Ferrell, supra, 

218 Cal.App.3d at pp. 835-836.)8

In addition, we believe it would be argumentative to instruct the jury essentially to 

disregard the resulting injury as a circumstance probative of the attacker's intent. "It is 

improper for an instruction to indicate an opinion favorable to the defendant regarding 

the effect of the evidence." (People v. Hartsch, supra, 49 Cal.4th at p. 504.) The effect 

of certain facts on identified theories is best left to argument by counsel, crossexamination of the witnesses, and expert testimony where appropriate. (People v. 

Roberts (1992) 2 Cal.4th 271, 314.)

As noted, defense counsel did argue to the jury that evidence of a person being 

maimed was not enough to establish the specific intent involved. The part of the 

instruction—specific intent to maim may not be inferred solely from evidence that the 

injury inflicted actually constitutes mayhem, there must be other facts and circumstances 

 

8

Ferrell had no trouble finding sufficient evidence of specific intent when one 

woman went to another woman's apartment with a handgun, asked for her by name, said 

she was sent by a friend from jail, threatened to kill her if she moved, and shot the 

woman once in the neck from two feet away after shooting a man in the leg. (Ferrell, 

supra, 218 Cal.App.3d at pp. 831–832.) The court noted that the defendant fired only 

one shot into the victim's neck at close range. The court commented that the defendant 

"was apparently satisfied with the result of her single shot. It takes no special expertise to 

know that a shot in the neck from close range, if not fatal, is highly likely to disable 

permanently. Appellant's shooting of Perreira was not an indiscriminate, random attack 

on her body; instead, the shooting was directed and controlled. From all this evidence, 

the jury could reasonably have inferred that appellant intended both to kill Perreira, and, 

if she did not die, to disable her permanently." (Id. at pp. 835–836.)
16

which support an inference of intent to maim rather than to attack indiscriminately—was 

properly refused as argumentative. (Cf. Moon, supra, 37 Cal.4th at p. 32.)

Finally, even if we were to assume for the sake of argument that the instructions 

were legally correct and the court erred, the failure to give a legally correct pinpoint 

instruction is a state law error subject to review under People v. Watson (1956) 46 Cal.2d 

818, 836. (People v. Pearson (2012) 53 Cal.4th 306, 325 & fn. 9; People v. Hughes

(2002) 27 Cal.4th 287, 362–363; People v. Wilkins (2013) 56 Cal.4th 333, 348–349.) 

At the outset, we reject any suggestion that the evidence of appellant's intent was 

weak. The evidence as outlined ante was strong evidence of appellant's intent to maim. 

Instead of immediately dropping the severed eyelid, and preserving it for reattachment, 

appellant pursued Flores into the bathroom and spat it at her. When Flores tried to leave, 

appellant tried to prevent her by throwing her to the ground and kicking her. In the past 

appellant had targeted Flores's eye for damage and he threatened to do the same in the 

future. 

Moreover, with respect to the aggravated mayhem charge, defense counsel argued 

that it was a specific intent crime, which meant that appellant "must not only intend to do 

harm," but intended to "do [the] harm which was caused by the injury"; and as to the 

laceration to Flores's eyelid, if he intended to harm her generically, then that would not fit 

the legal definition of specific intent to disfigure. Counsel went on to say that the People 

had to prove that appellant intended to disfigure Flores i.e. remove a body part — her 

eyelid. Later, defense counsel argued, "[t]he injury itself is not and cannot be the sole 

reason that you imply specific intent." Based on the instructions given, appellant could 

and did defend on the theory that he lacked the requisite intent, and defense counsel's 

argument fully explored this theme. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 

1144-1145 [if failure to give pinpoint instruction was error, it was harmless because 

nothing in the instructions given precluded the jury from adopting the defense theory, 

which was fully covered in counsel's argument].) 
17

In sum, given the strong circumstantial evidence of an intentional targeting of a 

vulnerable part of Flores's face, there is no reasonable likelihood that appellant would 

have received a more favorable outcome had the court given the requested pinpoint 

instructions. 

Right to Present a Defense

Appellant argues that the court's refusal to give the pinpoint instructions requested 

by defense counsel violated his fundamental due process right to present a complete 

defense to the charges. Respectfully, we disagree.

"As a general proposition a defendant is entitled to an instruction as to any 

recognized defense for which there exists evidence sufficient for a reasonable jury to find 

in his favor." (Mathews v. United States (1988) 485 U.S. 58, 63.) Further, under 

appropriate circumstances, "a trial court may be required to give a requested jury 

instruction that pinpoints a defense theory of the case by, among other things, relating the 

reasonable doubt standard of proof to particular elements of the crime charged. 

[Citations.] But a trial court need not give a pinpoint instruction if it is argumentative 

[citation], merely duplicates other instructions [citation], or is not supported by 

substantial evidence [citation]." (People v. Bolden (2002) 29 Cal.4th 515, 558.)

Certainly, the California Supreme Court has acknowledged that a trial court's 

failure to give a requested instruction concerning the defense theory of the case may 

under certain circumstances violate a defendant's due process right to present a complete 

defense. (People v. Rogers (2006) 39 Cal.4th 826, 872.) However, the correctness of 

jury instructions is to be determined from the entire charge of the court, not from a 

consideration of parts of an instruction or from a particular instruction standing alone.

(People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) 

Appellant relies on cases in which federal courts have held that a trial court's 

failure to give a requested instruction (whether on a lesser included offense, or on some 

other subject) embodying the defense theory of the case and around which the defendant 
18

had built his or her defense, violated the defendant's due process right to present a 

complete defense. (Clark v. Brown (9th Cir.2006) 442 F.3d 708, 713–718 [instruction on 

felony-murder special circumstance]; Conde v. Henry (9th Cir.2000) 198 F.3d 734, 739–

740 [instruction on simple kidnapping as lesser included offense of kidnapping for 

robbery]; Bradley v. Duncan (9th Cir.2002) 315 F.3d 1091, 1098–1099 [instruction on 

defense of entrapment].)

The crux of appellant's defense was that he did not have the intent to maim Flores 

when he bit off her eyelid. Here, as noted ante, the instructions as given plainly 

conveyed to the jury that they could not convict appellant unless they found beyond a 

reasonable doubt that he had the specific intent to maim. The jury was told that to find 

appellant guilty of aggravated mayhem they had to find as one of the elements that when 

appellant acted "he intended to disfigure the other person or deprive the other person of a 

part of her body." To the extent that the constitutional right to present a defense includes 

the right to instructions on a criminal defendant's theory of the case, a defendant is not 

entitled to an instruction in his or her own words if other instructions given adequately 

cover that defense theory. (Cf. U.S. v. Romm (9th Cir.2006) 455 F.3d 990, 1002.) 

Simply put, we have already concluded that the trial court's instructions accurately and 

adequately described the quality of circumstantial evidence needed to prove beyond a 

reasonable doubt the specific intent to maim.9The instructions given did not preclude 

appellant from arguing to the jury that there was insufficient evidence of a specific intent 

to disfigure and that more had to be shown than the result being a maiming injury. As 

noted, in fact, appellant made that argument. Appellant's right to present that defense was 

in no way compromised by the instructions given.

 

9 As we have addressed this issue, it is not necessary to address appellant's claim 

that if this claim is deemed forfeited, he was deprived of the effective assistance of 

counsel. 
19

In sum, we conclude that the refusal to give the pinpoint instructions that appellant 

requested did not violate appellant's constitutional right to present a defense. 
20

Disposition

The judgment is affirmed.

______________________________

ELIA, J.

WE CONCUR:

____________________________

RUSHING, P. J.

____________________________

PREMO, J.