“Mayhem” is defined in California Penal Code 203 PC as the act of unlawfully or maliciously doing any of the following to another person:
- Depriving him/her of a member of his/her body (such as a limb);
- Disabling, disfiguring or rendering useless a member of his/her body;
- Cutting or disabling his/her tongue;
- Putting out his/her eye; or
- Slitting his/her nose, ear or lip.1
And the crime of “aggravated mayhem” is defined in Penal Code 205 PC. Aggravated mayhem consists of intentionally causing someone a permanent disability or disfigurement, or depriving him/her of a limb, organ or member.2
“Mayhem” is a fairly obscure word and is not as familiar to most people as other violent crimes like torture and aggravated battery. But it is a serious crime, and California law punishes it quite harshly.
Here are several examples of people who might find themselves facing mayhem charges:
- A man pulls a knife on a woman who has just taken money out of an ATM, intending to commit robbery. When she struggles with him, he cuts her with the knife and ends up slitting her ear.
- During a fierce argument with her husband, a woman attacks him with a hot iron. She burns his arm in several places, leaving him with permanent scars.
- As part of a “hazing” ritual for a college fraternity, several fraternity members tie up a new recruit and tattoo the fraternity's logo on his buttocks against his will.
Mayhem is a felony in California law. A conviction under Penal Code 203 PC can lead to two (2), four (4) or eight (8) years in California state prison, and a fine of up to ten thousand dollars ($10,000).3
Aggravated mayhem, on the other hand, can lead to a sentence of life in state prison with the possibility of parole.4
But there is hope—and a good criminal defense attorney can help you find the most promising legal defenses against mayhem charges. Depending on the circumstances, these might include:
- You did not act intentionally or maliciously (a form of the legal defense of accident);
- You acted in self-defense/defense of others; and/or
- You were falsely accused.
In order to help you better understand the California crime of mayhem, our California criminal defense attorneys will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
The legal definition of mayhem under California Penal Code 203 is performing one of the following acts, unlawfully and maliciously:
- Removing a part of someone's body;
- Disabling or making useless a part of someone's body, in a way that is more than slight or temporary;
- Permanently disfiguring someone;
- Cutting or disabling someone's tongue;
- Slitting someone's nose, ear or lip; or
- Putting out someone's eye, or injuring someone's eye in a way that makes the eye useless for the purpose of ordinary sight.5
Let's take a better look at some of the key terms in this legal definition so that we can better explain their meaning.
You can only commit the crime of simple mayhem under California Penal Code 203 if you act maliciously. Acting maliciously means that you either:
- Intentionally do a wrongful act; or
- Act with the unlawful intent to annoy or injure someone else.6
What this means is that you are not guilty of mayhem if you acted entirely by accident, without the intent to do something wrongful or to unlawfully injure anyone else.
Example: Josephine is arguing with her sister Anne while the two of them are cleaning up after a party.
Josephine is taking a bottle of poisonous cleaning solution out of a pantry when Anne says something that makes her particularly angry. Her anger causes her to drop the bottle of cleaning solution, which has not been properly closed.
The solution splashes into Anne's face and gets in her eye. This leaves Anne blind in one eye.
Josephine is not guilty of mayhem, though, because she did not act maliciously.
At the same time, it is important to understand that simple mayhem under Penal Code 203 is what is known as a “general intent” crime.7
This means that—even though you need to have intended to do something unlawful to be guilty of this offense—you do NOT need to have specifically intended to inflict one of the forms of serious injury required for a mayhem conviction.
Example: Tony and Richard are members of rival street gangs. One night when Richard is getting into his car, Tony approaches the car and fires a gun at it.
Richard is hit by the shots Tony fires and ends up paralyzed for life.
Tony is guilty of mayhem (as well as assault with a firearm) even though there is no evidence that he specifically meant to inflict an injury on Richard that would leave him disabled. He acted maliciously by intentionally firing a gun at Richard's car, and that is enough for a mayhem conviction.8
Disabling a part of someone's body
One way to commit mayhem is to injure someone in a way that leaves them with a disability which is more than slight or temporary.9
But this does not mean that the disability needs to be permanent. As long as it continues for a material amount of time, it can be the basis for a mayhem conviction.10
Example: John breaks into Melissa's house, beats her until she is unconscious and then rapes her. His attack leaves her with a broken ankle.
Melissa's broken ankle takes over six months to heal. During that period she has to use crutches to get around.
John's actions left a part of Melissa's body (her ankle) disabled in a significant way for an extended period of time. Thus, he is guilty of PC 203 mayhem.11
For purposes of California mayhem law, a disfiguring injury can be considered “permanent” even if it is possible for medical technology to repair it.12
So, for example, you are guilty of mayhem if you cut off someone's finger maliciously—even if it is possible for surgeons to re-attach the finger (and, indeed, even if they do so).
Also, a permanent disfigurement can include a disfigurement of a part of the body that is normally covered by clothing.13
Example: Jeffrey breaks into Kathleen's apartment, strangles her and burns her breasts with a lit cigarette. The burns leave behind scars.
Jeffrey is guilty of both Penal Code 459 PC burglary and Penal Code 203 PC mayhem. The burns on Kathleen's breasts are a permanent disfigurement even though they will not be visible when she is wearing clothes.14
The more serious crime of California Penal Code 205 aggravated mayhem has a distinct legal definition from California Penal Code 203 simple mayhem.
In order for a defendant to be guilty of aggravated mayhem, all of the following must be true:
- The defendant unlawfully and maliciously disabled or disfigured someone permanently, or deprived someone else of a limb, organ or part of his/her body;
- When the defendant acted, s/he intended to permanently disable or disfigure the other person, or deprive him/her of a limb, organ or part of his/her body; and
- Under the circumstances, the defendant's act showed extreme indifference to the physical or psychological well-being of the other person.15
Intent to cause severe injury
The major difference between PC 203 simple mayhem and PC 205 aggravated mayhem lies in the required intent of the defendant.16
For simple or ordinary mayhem, the defendant needs to have acted with an unlawful intent but does not need to have intended to inflict the kind of injury that results in a mayhem conviction (e.g., a disability or disfigurement, or loss of a body part).17
But for aggravated mayhem, the prosecutor needs to be able to convince the jury that the defendant specifically intended to inflict such an injury.18
IF the prosecutor cannot prove this, then the defendant will only be punished for ordinary mayhem, not for aggravated mayhem.
Example: Hans kidnaps Trixie, the wife of a wealthy man, and holds her for ransom. When Trixie's husband refuses to pay the ransom, Hans sedates Trixie, cuts off one of her toes, and mails it to the man.
Hans is guilty of aggravated mayhem because he specifically intended to deprive Trixie of a part of her body.
Example: Declan regularly beats his wife Marie when he is drunk. One night, during a particularly vicious beating, he hits her on the ear very hard. She ends up deaf in that ear.
Declan may be guilty of simple mayhem (as well as the domestic violence crime of corporal injury on an intimate partner) for injuring Marie in a way that left her with a disability.
But he is probably not guilty of aggravated mayhem, because there is no evidence that he meant to inflict a disabling injury.
Both PC 203 simple mayhem and PC 205 aggravated mayhem are California felonies.19
The potential penalties for mayhem under Penal Code 203 are:
- Felony (formal) probation;
- Two (2), four (4) or eight (8) years in California state prison; and/or
- A fine of up to ten thousand dollars ($10,000).20
Your sentence may also be enhanced if the alleged victim is:
- Sixty-five (65) years of age or older;
- Under the age of fourteen (14);
- Blind or deaf;
- Developmentally disabled; or
- A paraplegic or quadriplegic.21
If any of these is the case, you will receive a one (1) or two (2) year sentence enhancement, provided that you knew or reasonably should have known that the relevant fact about the victim was true.22
For aggravated mayhem under Penal Code 205 PC, the penalties are:
- A fine of up to ten thousand dollars ($10,000); and/or
- A life sentence in state prison.23
However, you will be eligible to seek parole at a parole board (lifer) hearing. In a typical case, the earliest you would be eligible for parole is seven (7) years into your sentence.
So if you have a mayhem conviction on your record, and you are subsequently charged with any other California felony, you will face twice the normal sentence for that second offense.25
And, if you accumulate three “strike” convictions—one or more of which may be a conviction for mayhem—then you will receive a sentence of twenty-five (25) years to life in state prison.26
According to San Diego criminal defense attorney David F. Poblete27:
“Defendants charged with mayhem in California have a tough fight ahead of them. Prosecutors only bring these charges if there is an alleged victim with a fairly serious injury. These victims are usually pretty sympathetic—and prosecutors are usually intent on convicting someone of a crime carrying hefty penalties. But, more often than not, the truth is more complicated than the simple story the DA is trying to tell.”
Common legal defenses that are often useful to defendants in mayhem cases include:
You did not act intentionally or maliciously
You are only guilty of aggravated mayhem under Penal Code 205 PC if you intended to inflict a disfiguring or disabling injury on the victim.28
But intent is a very difficult thing for a prosecutor to prove beyond a reasonable doubt. Many mayhem cases grow out of violent altercations in which the defendant was not acting in a rational or calculated way.
If the victim was severely injured as part of an “indiscriminate attack,” then the defendant is only guilty of Penal Code 203 simple mayhem29—which carries a much lighter sentence than aggravated mayhem.
And even in simple mayhem cases, the prosecutor needs to prove that the defendant acted maliciously.30 If the injury was inflicted by accident, then the defendant is not guilty of mayhem—no matter how negligently s/he was behaving.
Self-defense/defense of others
You will not be guilty of mayhem for actions you took while you were acting in self-defense or defense of someone else.
This defense applies if all of the following are true:
- You reasonably believed that you or someone else was in imminent danger of suffering bodily injury or being touched unlawfully;
- You reasonably believed that you needed to use force to defend against that danger; and
- You used no more force than was reasonably necessary to defend against that danger.31
Example: While walking home late at night, Rachel is attacked by an apparently deranged man. He begins to choke her.
Rachel carries a penknife in her bag. She manages to fight off the man long enough to grab the knife, and she slashes him on the face. She ends up cutting off a bit of his tongue and leaving major disfiguring scars on his cheeks.
But Rachel is probably not guilty of mayhem because she was acting in self-defense.
One important thing to note, though: with many California crimes, you can use the legal defense of “imperfect self-defense” if you had an honest butmistaken belief that you needed to use force to defend yourself. But imperfect self-defense does not apply to California mayhem.32
You were falsely accused
People falsely accuse other people of crimes—even serious crimes like mayhem—for a variety of reasons.
The most obvious is that the real culprit doesn't want to face the penalties and has managed to convince police and prosecutors—and sometimes even the victim—that you did it.
Some people, usually those who are mentally ill, may go so far as to injure themselves and falsely blame someone else for it.
In this case, you will want to hire a criminal defense lawyer who is familiar with medical and other forensic evidence in mayhem cases—and the investigative techniques that are most effective at ensuring that the true story comes out.
Similar offenses to California simple mayhem and aggravated mayhem include:
The definition of the crime of “torture” in California is:
- Inflicting great bodily injury on another person,
- With the intent to cause cruel or extreme pain and suffering,
- For the purpose of revenge, extortion, persuasion or any sadistic purpose.33
Unlike the crime of mayhem, which focuses on the injury done to the victim, the crime of torture is defined largely by the intent of the defendant. You can be convicted of torture even if the victim does not actually suffer pain.34
The penalties for torture, which is a felony, are a life sentence in California state prison, and a fine of up to ten thousand dollars ($10,000).35
It is common for defendants to be charged with both torture and mayhem—if, for example, they are alleged to have inflicted an injury that meets the definition of mayhem, with the intent to cause extreme pain.
The California crime of Penal Code 242 PC battery consists of any willful and unlawful use of force or violence on someone else.36
In most cases, battery is a misdemeanor in California law, carrying a fine of up to two thousand dollars ($2,000), and/or up to six (6) months in county jail.37
If you are charged with mayhem but the evidence against you is weak, your criminal defense attorney may try to negotiate a charge reduction to battery—which carries a much lighter sentence and much less of a stigma on a criminal record.
If you accidentally kill someone while committing mayhem—or attempting to commit mayhem—then you can be charged with first-degree murder under California's “felony-murder rule."38
Penal Code 187 PC murder is punishable by twenty-five (25) years to life in state prison.39
Call us for help…
For questions about the crimes of Penal Code 203 & 205 PC mayhem, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on Nevada “mayhem” laws, please see our page on Nevada “mayhem” laws.
1 Penal Code 203 PC – Definition [of mayhem]. (“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.”)
2 Penal Code 205 PC – Aggravated mayhem. (“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 is a felony punishable by imprisonment in the state prison for life with the possibility of parole.”)
3 Penal Code 204 PC – Punishment [for mayhem]. (“Mayhem is punishable by imprisonment in the state prison for two, four, or eight years.”)
See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies [such as mayhem] in addition to the imprisonment prescribed.”)
4 Penal Code 205 PC – Aggravated mayhem, endnote 2, above.
5 Judicial Council of California Criminal Jury Instruction (“CALCRIM”) 801 – Mayhem (Pen. Code, § 203). (“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 unlawfully and maliciously: [1. Removed a part of someone's body(;/.)] [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.]”)
6 CALCRIM 801 – Mayhem (Pen. Code, § 203). (“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.”)
7 People v. Villegas (2001) 92 Cal.App.4th 1217, 1226. (“Mayhem, unlike murder, is a general intent crime. [Citations.] The necessary intent for mayhem is inferable from the types of injuries resulting from intentional acts. [Citations.] Thus, the crime is mayhem if the blow results in putting out the eye even if the person who unlawfully strikes another does not have the specific intent to commit the offense.”)
8 Based on the facts of the same.
9 CALCRIM 801 – Mayhem (Pen. Code, § 203), endnote 5, above.
10 See People v. Thomas (1979) 96 Cal.App.3d 507, 512 (overruled on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 498). (“Here, as we have pointed out above, the victim's ankle was disabled seriously and that disability continued for over six months. Assuming that some slight and temporary disability would not arise to the level of mayhem, the disability here was sufficiently disabling, for an extended period of time to amount to mayhem.”)
11 Based on the facts of the same.
12 CALCRIM 801 – Mayhem (Pen. Code, § 203). (“[A disfiguring injury may be permanent even if it can be repaired by medical procedures.]”)
13 People v. Keenan (1991) 227 Cal.App.3d 26, 35-36. (“While the injury suffered by Ms. H. may not have been as disfiguring as some of the more vicious mayhem cases cited by appellant, it quite clearly involved a serious permanent disfigurement within the meaning of the statute. [1b] As the Attorney General observes, if the burns had been inflicted on Ms. H.'s face there would be no question that mayhem had been committed. The fact that they are on a normally unexposed portion of her body does not render them any less significant. The marks intentionally burnt upon Ms. H.'s breasts will for the rest of her life serve as a daily reminder of appellant's grotesque assaults.”)
14 Based on the facts of the same.
15 CALCRIM 800 – Aggravated Mayhem (Pen. Code, § 205). (“The defendant is charged [in Count] 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 (disabled or disfigured someone permanently/ [or] deprived someone else of a limb, organ, or 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 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.”)
16 People v. Park (2003) 112 Cal.App.4th 61, 64. (“There are two key differences between the crimes: the required intent and the potential sentence. Mayhem is a general intent crime. (People v. Sekona (1994) 27 Cal.App.4th 443, 453, 32 Cal.Rptr.2d 606.) “The necessary intent for mayhem is inferable from the types of injuries resulting from intentional acts. [Citations.] Thus, the crime is mayhem if the blow results in putting out the eye even if the person who unlawfully strikes another does not have the specific intent to commit the offense. [Citations.]” (Ibid.) Aggravated mayhem, on the other hand, requires the specific intent to cause the maiming injury. (People v. Ferrell (1990) 218 Cal.App.3d 828, 833, 267 Cal.Rptr. 283, citing legislative history of the statute.) Evidence that shows no more than an “indiscriminate attack” is insufficient to prove the required specific intent. (Id. at p. 835, 267 Cal.Rptr. 283.) “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. [Citation.]” (Ibid.)”)
19 Penal Code 204 PC – Punishment [for mayhem], endnote 3, above; Penal Code 205 PC – Aggravated mayhem, endnote 2, above.
20 See endnote 3, above.
21 Penal Code 667.9 PC – Conviction of certain crimes against persons 65 years of age or older, blind, deaf, developmentally disabled, paraplegic, quadriplegic, or under the age of 14 years; prior conviction; sentence enhancements. (“(a) Any person who commits one or more of the crimes specified in subdivision (c) against a person who is 65 years of age or older, or against a person who is blind, deaf, developmentally disabled, a paraplegic, or a quadriplegic, or against a person who is under the age of 14 years, and that disability or condition is known or reasonably should be known to the person committing the crime, shall receive a one-year enhancement for each violation. (b) Any person who commits a violation of subdivision (a) and who has a prior conviction for any of the offenses specified in subdivision (c), shall receive a two-year enhancement for each violation in addition to the sentence provided under Section 667. (c) Subdivisions (a) and (b) apply to the following crimes: (1) Mayhem, in violation of Section 203 or 205. . . .”)
23 Penal Code 205 PC – Aggravated mayhem, endnote 2, above.
24 Penal Code 667.5 PC – Violent felonies. (“(c) For the purpose of this section, “violent felony” shall mean any of the following: . . . (2) Mayhem. . . .”)
25 Penal Code 667(e)(1) PC – Three strikes law. ("(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has one or more prior serious and/or violent felony conviction [including mayhem]: (1) If a defendant has one prior serious and/or violent felony conviction as defined in subdivision (d) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2)(A) Except as provided in subparagraph (C), if a defendant has two or more prior serious and/or violent felony convictions [including mayhem] as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious and/or violent felony convictions. (ii) Imprisonment in the state prison for 25 years. (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.”)
27 San Diego criminal defense attorney David F. Poblete is an energetic young attorney who has devoted his career to defending the civil rights of criminal defendants in all types of cases, including violent crimes like mayhem. As a Filipino-American from a military family, he is driven by both a deep sympathy for the “little guy” and a profound respect for the freedoms we are all entitled to in this country. Poblete regularly defends charged in the Superior Courts of Los Angeles, Orange and San Diego Counties.
28 CALCRIM 800 – Aggravated Mayhem (Pen. Code, § 205), endnote 15, above.
29 People v. Park, endnote 16, above.
30 CALCRIM 801 – Mayhem (Pen. Code, § 203), endnote 5, above.
31 CALCRIM 3470 – Right to Self-Defense or Defense of Another (Non-Homicide [applies to the crime of mayhem]). ("The defendant acted in lawful (self-defense/ [or] defense of another) if:  The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];  The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND  The defendant used no more force than was reasonably necessary to defend against that danger.")
32 CALCRIM 801 – Mayhem (Pen. Code, § 203), Related Issues. (“Imperfect Self-Defense Not Available. “[A]part from the McKelvy lead opinion, there is no authority to support [the] claim that the mere use of the term ‘malicious' in section 203 requires a court to instruct a jury that an actual but unreasonable belief will negate the malice required to convict for mayhem …. [Mayhem] involves a different requisite mental state and has no statutory history recognizing a malice aforethought element or the availability of the Flannel defense.” (People v. Sekona (1994) 27 Cal.App.4th 443, 457 [32 Cal.Rptr.2d 606]; contra, People v. McKelvy (1987) 194 Cal.App.3d 694, 702–704 [239 Cal.Rptr. 782] (lead opn. of Kline, P.J.).)”)
33 Penal Code 206 PC – Torture [related offense to Penal Code 203 & 205 mayhem]. (“Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. The crime of torture does not require any proof that the victim suffered pain.”)
35 Penal Code 206.1 PC – Punishment for torture [compare to punishment for simple mayhem and aggravated mayhem]. (“Torture is punishable by imprisonment in the state prison for a term of life.”)
36 Penal Code 242 PC – Battery defined [potential plea bargain from mayhem charges]. (“A battery is any willful and unlawful use of force or violence upon the person of another.”)
37 Penal Code 243 PC – Battery; punishment [compare to mayhem penalties]. (“(a) A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both the fine and imprisonment.”)
38 CALCRIM 540A – Felony Murder: First Degree - Defendant Allegedly Committed Fatal Act. ("To prove that the defendant is guilty of first degree murder under this theory, the People must prove that: 1. The defendant committed [or attempted to commit] <insert felony or felonies from Pen. Code, § 189> [including torture]; 2. The defendant intended to commit <insert felony or felonies from Pen. Code, § 189>; AND 3. While committing [or attempting to commit], <insert felony or felonies from Pen. Code, § 189> the defendant caused the death of another person. A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent.")
See also Penal Code 189 PC -- Murder; degrees. (“All murder . . . which is committed in the perpetration of, or attempt to perpetrate, . . . mayhem , . . . is murder of the first degree. All other kinds of murders are of the second degree.”)
39 Penal Code 190 PC -- Punishment for violating California's murder laws [including by accidentally killing someone while committing mayhem]. ("(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5.")