The Crime of "Torture" in California Law
(Penal Code 206 PC)

Penal Code 206, California's torture law, defines the crime as: inflicting great bodily harm on another person with the specific intent to cause cruel or extreme pain.1 Despite the fact that the victim must suffer a serious injury, the crime of "torture" is more concerned with the intent of the defendant than on the pain of the victim.

The penalty for a torture conviction is a life sentence in California State Prison.

There are, however, a variety of legal defenses that are available to fight the charges.  And as former prosecutors and law enforcement officers, we offer invaluable insight into how these cases are prosecuted and.more importantly.successfully defended.

In an effort to help you understand Penal Code 206 "torture", our California criminal defense lawyers2 will address the following:

1. What is the legal definition of torture in California law?
2. What are the legal defenses to a "Torture" charge?
3. Penalties, punishment, and sentencing for "Torture"

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is the legal definition of torture in California law?

Penal Code 206 provides the legal definition of torture:

"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."3

Nowhere in this law does it state that you must

  1. intend to kill the victim,
  2. act with any premeditation or deliberation, or
  3. inflict prolonged pain.

In fact, there is no requirement that the victim even suffer pain.  This means that while the length of the torture and the severity of the injury may be relevant in determining guilt, they are not conclusive.4

In order to convict you of violating Penal Code 206, California's torture law, the prosecutor must prove the following three facts (otherwise known as "elements" of the crime):

  1. you inflicted "great bodily injury" on another person,
  2. with the specific intent to cause cruel or extreme pain and suffering,
  3. for revenge, extortion, persuasion, or for any sadistic purpose.5

Let's take a closer look at some of these terms to gain a better understanding of their meanings.

Great bodily injury

"Great bodily injury" or "great bodily harm" means a substantial or significant physical injury.6California's definition of great bodily injury excludes injuries that are trivial or even moderate.

Example: Examples of injuries that constitute great bodily injury include:

  • gunshot wounds,
  • broken bones,
  • brain damage, and
  • paralysis.

That said, the injury doesn't necessarily need to be so extreme.  Unlike the related offense of mayhem, defined in California Penal Code 203 and 205 PC, the bodily harm under California's torture law doesn't necessarily have to be a permanent, disabling, or disfiguring injury.7

Cruel or extreme pain and suffering

Many defendants have argued that the word "cruel" is unconstitutionally vague because no one knows what "cruel pain" is.  The California Court of Appeal disagrees.  It holds that "cruel" pain is simply defined as extreme or severe pain.8

What's interesting about this element is that there is no requirement that the victim actually suffers any pain.9 This is why we say that California's torture law is more concerned with the perpetrator than with the victim.  As long as you intended for the victim to suffer extreme or severe pain, the element is satisfied.

Revenge, extortion, persuasion, or any sadistic purpose

Penal Code 206 PC states that you are guilty of torture if you inflict great bodily harm on another person for "revenge, extortion, persuasion, or for any sadistic purpose".

It is this motivation that distinguishes torture from a California Penal Code 243(d) "aggravated" battery -- and explains why the California Legislature punishes torturous acts so severely.  The legislature believes that torturous acts are necessarily calculated, and "cold-blooded".and that those individuals who commit such acts that are driven by their own desire for personal gain or satisfaction are deserving of greater punishment.

Let's explore some of these legal terms.

Extortion

Extortion is a crime in and of itself.  In its simplest terms, California Penal Code 518 PC defines extortion or "blackmail" as using force or threats to gain money, property, or other services.10 If you torture another person in an effort to "extort" or "blackmail" that individual, prosecutors will likely charge you with both crimes.

Any "sadistic" purpose

While many people think of "sadistic" pleasure in terms of sexual activity, California's torture law adopts a broader definition.  Under Penal Code 206, "sadistic" purpose means inflicting pain on another person for the purpose of experiencing personal pleasure.11

Example: The LAPD chases down a suspect, who eventually surrenders. Officers handcuff the suspect, who is not resisting arrest. Just for fun, the officers pull out their tasers and tase the suspect 11 times throughout his body. The suspect suffers a seizure as well as burns and scars. In this scenario, the officers could be prosecuted for torture.

See our article on tasers and stun guns as police brutality and excessive force for a larger discussion of the misuse and abuse of tasers.
2. What are the legal defenses to a "Torture" charge?

Fortunately, there are a variety of California legal defenses to a Penal Code 206 PC "torture" charge that an experienced criminal defense attorney can present on your behalf.  Some of the most common include (but are not limited to):

You lacked the required intent

If you don't intend to cause "cruel or extreme pain", you aren't guilty of torture. Remember, it's not the victim's injuries that determine whether or not someone is guilty of torture. It's the perpetrator's intent and conduct.

This means that even if you intend to injure another person -- and that person suffers a serious injury -- as long as you didn't intend to inflict "cruel or extreme pain", you aren't guilty of torture.  You might, however, be liable for the lesser crime California Penal Code 240 PC "assault" or Penal Code 243(d) aggravated battery.

You didn't commit the crime for one of the stated purposes

Along these same lines, even if you intend to injure another person seriously -- but it isn't for one of the reasons listed under Penal Code 206 PC (revenge, extortion, persuasion, or other "sadistic" purposes) -- you haven't committed the crime of torture.

Example:  Tony habitually beats his wife, Sue, when he's drunk.  When Sue gets home from work, she can tell that Tony is intoxicated and angry.  In order to protect herself, she shoots him in the leg before he has a chance to hurt her.

Given these facts, Sue intended to injure her husband seriously.and even perhaps, to inflict cruel pain. However, she did not do so to get revenge, extort property, or to gain personal satisfaction from Tony's pain.  Because she lacked this requisite motivation, she is not guilty of torture.

Self-defense / defense of others

If the evidence suggests that you tortured another person -- but you only did so because you were in the process of reasonably defending yourself or another person -- California criminal law excuses your act of self-defense.12

Example: In an act of revenge, Rick tortures Matt.  Rick ties Matt up and slowly cuts various parts of his body with a dull knife.  Matt wriggles free, grabs the knife, and slashes Rick's chest and face so that he has a chance to get away.

Given these facts, Matt wouldn't be guilty of torture.  His act of cutting Rick was not done for revenge, but rather as an act of self-defense to protect himself from further injury. Matt is probably not guilty of any crime under this scenario.

You were falsely accused

People falsely accuse other people of crimes for a variety of reasons.  Anger, revenge, jealousy, and/or a desire to gain control over a situation can cause people to act maliciously.  Some people may go so far as either to

  1. injure themselves and falsely blame someone else for the act, or
  2. injure another person and falsely blame a third party for the injury.

As San Jose criminal defense attorney Jim Hammer explains13, "False accusations are, unfortunately, so common in criminal law.  People will do anything to escape criminal liability or to punish someone else.it happens all the time."

3. Penalties, punishment, and sentencing for "Torture"

Penal Code 206 PC is a felony.  If you are convicted of torture, you face

The Board of Parole Hearings will determine if and when you are eligible to be released on parole during a California parole board suitability ("lifer") hearing.15

Release on parole is also affected by one's prior criminal history.  Torture is classified as a violent felony, which means that a conviction also counts as a "strike" under California's Three Strike's Law.16

The above penalties not only apply to the individual who directly and personally inflicts the torturous act, but to any persons that are guilty of aiding or abetting that individual as well.17

When torture results in death

If the evidence demonstrates that you had the specific intent to commit torture -- and the alleged victim is intentionally, unintentionally or even accidentally killed as a result of your acts -- California's felony-murder rule holds you accountable for first-degree murder.18

This is the case even if you only intended to torture another person, as long as there is sufficient evidence to prove that intent.19 Depending on the circumstances, a California Penal Code 187 PC murder conviction subjects you to

  • the death penalty,
  • life in prison without the possibility of parole, or
  • 25 years to life in the state prison.20
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If you or loved one is charged with Penal Code 206 PC torture and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Nevada criminal defense attorneys represent clients accused of violating Nevada's torture laws.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.21

You may find further helpful information in our related articles on Penal Code 242 PC Battery, Penal Code 240 PC Assault, Penal Code 518 PC Extortion or "Blackmail", Penal Code 203 PC Mayhem, California's Legal Defenses, California's Self-Defense Laws, California's Felony-Murder Rule, and California Parole Suitability "Lifer" Hearings.

Legal References:

1California Penal Code 206 PC -- Torture.  ("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.")

2Our California criminal defense attorneys have local law offices throughout the state, including Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.

3California Penal Code 206 PC -- Torture.

4California Penal Code 206 -- Torture, endnote 1, above.

See also People v. Massie (2006) 142 Cal.App.4th 365, 371.  ("Torture does not require the defendant act with premeditation and deliberation, and it does not require that he intend to inflict prolonged pain. ( People v. Hale, supra, 75 Cal.App.4th at p. 107, 88 Cal.Rptr.2d 904.) Accordingly, the length of time over which the offense occurred is relevant but not necessarily determinative. ( Id. at pp. 107-108, 88 Cal.Rptr.2d 904.) Likewise, the severity of the wounds inflicted is relevant but not necessarily determinative. ( People v. Pre (2004) 117 Cal.App.4th 413, 420-421, 11 Cal.Rptr.3d 739.)")

5California Jury Instructions - Criminal.   CALJIC 9.90 -- Torture.  ("In order to prove this crime, each of the following elements must be proved: [1] A person inflicted great bodily injury upon the person of another; and [2] The person inflicting the injury did so with specific intent to cause cruel or extreme pain and suffering [for the purpose of [revenge] [,] [extortion] [,] [persuasion]] [,] [or] [for any sadistic purpose].")

6See same.  In CALJIC 9.90, California's definition of "great bodily injury" is a "significant or substantial physical injury".

7California Penal Code 203 -- 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.")

See also People v. Pre (2004) 117 Cal.App.4th 413, 420.  ("[California Penal Code] Section 206 does not require permanent, disabling, or disfiguring injuries; "[s]ection 206 only requires 'great bodily injury as defined in Section 12022.7'.... 'Abrasions, lacerations and bruising can constitute great bodily injury.'")

8People v. Aguilar (1997) 58 Cal.App.4th 1196, 1202.  ("In [California Penal Code] section 206, the word "cruel" modifies the phrase "pain and suffering." In at least two other cases, courts have held that "cruel pain" is the equivalent to "extreme" or "severe" pain. ( People v. James (1987) 196 Cal.App.3d 272, 297, 241 Cal.Rptr. 691; People v. Talamantez (1985) 169 Cal.App.3d 443, 457, 215 Cal.Rptr. 542.)FN6 This definition comports with the common dictionary definition of "cruel" (see Webster's Third New Int. Dict. (1965) p. 546 [as an adjective, "cruel" means "extreme" or "severe"] ), and, in our view, is a reasonable and practical interpretation of that phrase ( Williams v. Garcetti, supra, 5 Cal.4th at p. 568, 20 Cal.Rptr.2d 341, 853 P.2d 507). We therefore conclude that the phrase "cruel or extreme pain and suffering," as used in section 206, is not unconstitutionally vague.")

9See California Penal Code 206 "torture", endnote 1, above.

10California Penal Code 518 -- Extortion.  ("Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.")

11See People v. Massie, endnote 4, above.  ("Sadistic purpose encompasses the common meaning, " 'the infliction of pain on another person for the purpose of experiencing pleasure.' " ( People v. Aguilar (1997) 58 Cal.App.4th 1196, 1203, 68 Cal.Rptr.2d 619.) While sadistic pleasure is often sexual, the statute does not require a sexual element. ( Ibid.)")

12Judicial Council Of California Criminal Jury Instruction CALCRIM 3470 -- California's self-defense law (Non-Homicide). ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] 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]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")

13San Jose criminal defense attorney Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to defend clients accused of California nursing home elder abuse throughout the Bay Area, including San Francisco, Oakland, Berkeley, Marin County and San Jose.

14California Penal Code 206.1 -- Torture; punishment.  ("Torture is punishable by imprisonment in the state prison for a term of life.")

See also California Penal Code 672 -- 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, in addition to the imprisonment prescribed.")

15An individual sentenced to a life sentence may be eligible for parole as early as seven years into his/her sentence.  This is simply the earliest possible time he/she will be eligible..the parole board must first determine that he/she is able to "safely reenter society" during a California parole suitability ("lifer) hearing.

16California Penal Code 667.5 -- California violent felonies.  ("(c) For the purpose of this section, "violent felony" shall mean any of the following.(7) Any felony punishable by death or imprisonment in the state prison for life [which is where Penal Code 206, California's torture law is applicable].")

See also California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")

17People v. Lewis (2004) 120 Cal.App.4th 882, 888.  ("Section 12022.7, subdivision (f), defines "great bodily injury" as a significant or substantial physical injury. That is unquestionably what occurred here. The "personal infliction" requirement is not part of the definition of "great bodily injury" but is located in the other subdivisions, (a) through (e), which describe under what circumstances a defendant will be subject to an additional and consecutive term of imprisonment. [California Penal Code] Section 206 [California's torture law]' s reference to section 12022.7 is not ambiguous.FN24 It does not give defendant an opening to argue that section 206 requires defendant to have personally inflicted the torture in the same way that section 12022.7 requires there be personal infliction of injury for the statute to operate.FN25 Defendant has not identified any affirmative legislative intent to exempt an aider and abettor in torture from liability for prosecution.FN26 Nor does there seem to be any reason why one who facilitates torture, as defendant did here, should be less culpable than the actual torturers.")

18California Penal Code 189 -- California's felony-murder rule.  ("All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.")

19See same.

20California Penal Code 190 -- Murder; punishment.  ("(a) Every person guilty of [California Penal Code 187] 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.")

21Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's criminal laws. Their Nevada law offices are located in Reno and Las Vegas.

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