Self-Defense Mayhem Charge California

In People v. Flannel, supra, 25 Cal.3d at pages 674-680, the California Supreme Court held that a defendant's honest but unreasonable belief in the need to defend himself negates malice aforethought. The court reasoned that an honest but mistaken belief of the need to act to avoid peril was inconsistent with the concept of malice aforethought and thus concluded that a defendant who kills another based on such a belief cannot be convicted of murder, but only manslaughter. In People v. McKelvy (1987) 194 Cal. App. 3d 694, 704, 239 Cal. Rptr. 782, the lead opinion applied the analysis of Flannel to a mayhem charge and concluded that an honest but unreasonable belief in the need for self-defense negates the malice aspect of the general intent element of mayhem, thus mitigating the crime to an assault or battery. The opinion acknowledged that mayhem differs from murder in that it is a general intent crime (such that the defendant need not have specifically intended to maim or disfigure the victim). It nonetheless concluded that, because the defendant must act "maliciously" in order to be guilty of mayhem, the Flannel defense was equally applicable to mayhem. Notably, the lead opinion was not supported by a concurrence on that issue. Another appellate court facing the same issue a number of years later disagreed with the lead opinion in McKelvy, holding that the doctrine of imperfect self-defense does not apply to a mayhem charge. ( People v. Sekona (1994) 27 Cal.App.4th 443, 450-457.) The court concluded that, based on the differences between the concept of malice in the intent element of mayhem and the element of malice aforethought necessary to support a murder charge, the analysis of Flannel did not support the application of imperfect self-defense to reduce a mayhem charge to assault or battery. ( People v. Sekona, supra, 27 Cal.App.4th at pp. 450-457.)