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.1
Torture as a separate California crime, which is set forth in Penal Code 206, originated with Proposition 115, a voter initiative that passed in 1990.2
Known as the “Crime Victims Justice Reform Act,” Prop 115 contained a number of “tough on crime” provisions, including an increase in potential penalties for people accused of California murder (Penal Code 187).3
Interestingly, even though we think of torture as the actual infliction of pain on someone, the California crime of torture does not actually require that the victim experience severe—or any—pain.4
Here are some examples of people who could be charged with California Penal Code 206 torture:
- A drug dealer goes to the apartment of a man who owes him money and hasn't paid; he breaks one of the man's arms and then leaves, telling him that if he doesn't pay up he'll come back and kill him.
- After learning that his next-door neighbor has raped his wife, a man goes to the neighbor's house and beats him severely with a hammer out of a desire for revenge.
- A woman who has fantasies about sexual violence meets a man on the internet and arranges a tryst with him. In her bedroom, she ties him up, strangles him and cuts him with a knife. The man passes out during this episode.
As you might imagine, it is not easy being a defendant charged with torture. That word has such terrible implications in our society that the deck is stacked against you as soon as the prosecutor decides to issue those charges.
But there is hope—and a good criminal defense attorney can help you find the most promising legal defenses against PC 206 charges. Depending on the circumstances, these might include:
- You did not intend to cause cruel or extreme pain;
- 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 torture, 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.
You are only guilty of torture under California Penal Code 206 if your behavior meets the formal legal definition of torture. That legal definition consists of the following “elements of the crime” (that is, facts the prosecutor must be able to prove):
- You inflicted great bodily injury on someone else; and
- While inflicting the injury, you intended to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, or persuasion, or for any other sadistic purpose.6
Let's explore the meaning of the key terms in this legal definition.
Great bodily injury
For purposes of California torture law, great bodily injury means a significant or substantial physical injury. It needs to be something more than minor or moderate harm.7
An injury does not necessarily need to be permanent, disabling, or disfiguring to qualify as great bodily injury. Abrasions, lacerations (cuts) and bruising can all be considered great bodily injury.8
Example: Tony's girlfriend Cara accuses him of domestic abuse and breaks up with him.
In order to get revenge on Cara, Tony breaks into her apartment one night while she is sleeping and hits her in the face with a hammer several times. The blows leave Cara with broken teeth, a split lip and a cut under her eye.
Cara's injuries count as great bodily injury for purposes of California torture law, and so Tony is guilty of both torture and Penal Code 459 - burglary (for breaking into Cara's apartment).9
Most injuries requiring hospital treatment would probably count as a great bodily injury. This includes things like:
- Broken bones;
- Brain injury; and
- Cuts requiring stitches.
Intent to cause cruel or extreme pain and suffering
Criminal intent is key to the definition of Penal Code 206 torture. Specifically, the defendant needs to have intended to cause cruel or extreme pain to the victim.10
But it does not matter whether the victim actually experiences cruel or extreme pain! California torture law focuses on the mindset of the defendant—andnot the experience of the victim.11
Example: Ray breaks into Rose's apartment. He chokes her until she passes out. Then he beats and bites her, leaving her with wounds requiring extensive stitches and several bone fractures.
Because she is unconscious for most of the attack, Rose does not actually experience severe pain while the attack is ongoing.
But Ray is still guilty of California Penal Code 206 torture—because the way he attacked Rose indicates that he intended to cause her extreme pain.12
By the same token, if you did not intend to cause the victim cruel or extreme suffering, then you are not guilty of torture—even if s/he actually did suffer serious injury and extreme pain.13
Example: Louise and Audrey are two teenage girls on a school campout. While the students are gathered around a campfire, Louise finds out from a mutual friend that Audrey has stolen her boyfriend.
Louse is enraged and wants to humiliate Audrey in front of their classmates. So she walks up to her, calls her a slut and pushes her.
Audrey is standing near the campfire when Louise pushes her. She topples over and falls into the fire. She ends up with severe and painful burns.
Because Louise did not intend to cause Audrey severe pain, she is not guilty of torture for this incident—though she may well be guilty of Penal Code 243(d) PC battery causing serious bodily injury.
For the purpose of revenge, extortion, persuasion or sadism
You are only guilty of torture in California if you inflict pain for one of the following reasons:
- Persuasion; or
- Any sadistic purpose.14
You are considered to have acted for the purpose of extortion if you intended to:
- Obtain a person's property with his/her consent, or get a public official to do an official act; and
- Obtain the consent or official act through the use of force or fear.15
Example: Charles and Natalie kidnap Eleanor, who is a multimillionaire.
They keep Eleanor in a dark basement for several days and then tell her they will let her go if she will arrange to have a million dollars wired to an account that they have opened in a foreign country.
Eleanor refuses, so Charles and Natalie beat her severely, leaving her with bruises, broken teeth and several broken ribs. At this point Eleanor agrees to wire them the money.
Charles and Natalie are guilty of torture because they inflicted severe pain on Eleanor for purposes of extortion.
A person acts with a “sadistic purpose” when s/he intends to inflict pain on someone else in order to experience pleasure him- or herself.16
When many of us hear the word “sadistic,” we think of sexual sadism—that is, getting sexual pleasure from someone else's pain. But for purposes of Penal Code 206 PC, sadism can mean any kind of pleasure. There does not need to be a sexual element.17
Example: Over a period of two weeks, Jeff beats his live-in girlfriend Maria daily.
Maria does nothing to prove the beatings, and Jeff seems content and pleased with himself after each beating. He never makes any sexual advances toward Maria during this period. The beatings leave Maria with several broken bones.
Jeff is guilty of both Penal Code 273.5 corporal injury on an intimate partner and Penal Code 206 torture. He appears to have derived sadistic pleasure from hurting Maria—even though the pleasure was not sexual in nature.18
The term “torture” also plays an important role in California murder law—but it means something slightly different in that context.
If a California murder is committed willfully and involves the use of torture, then it is considered “special circumstances murder” (which means the potential penalties are life in prison without parole or else the death penalty).19
And if you unintentionally kill someone while torturing them, you could be charged with murder under California's “felony-murder rule."20
But those aspects of our state's murder law rely on a different definition of torture. In order to be guilty of special circumstances murder or felony-murder because of an act involving torture, you must have:
- Had a premeditated intent to cause severe or extreme pain; and
- Intended to inflict pain for a prolonged period of time.21
By contrast, the crime of torture under Penal Code 206 PC does not require that the intent to inflict pain be premeditated.
It also does not require that there be an intent to inflict prolonged pain—an intent to inflict pain only very briefly will do.22
Example: Xavier catches his wife Vicki in bed with another man.
Xavier is enraged and wants to take revenge on Vicki. He decides to shock her once with an electrical cord to “get back at” her. But when Xavier applies the electric shock to Vicki, she has a heart attack, which ends up killing her.
Xavier is probably guilty of Penal Code 206 torture for inflicting serious injury on Vicki with intent to cause her severe pain.
But he probably can't be convicted of murder under the felony-murder rule. His intent to inflict pain on Vicki was not premeditated, and he did not intend to inflict prolonged pain on her (the electrical shock was meant to be a brief infliction of pain).
If you are convicted of the crime of torture under California Penal Code 206, you will be punished with:
- A fine of up to ten thousand dollars ($10,000); and
- 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.
Also, if you are alleged to have personally inflicted great bodily injury on a victim while committing torture—as opposed to aiding and abetting someone else who did—then a Penal Code 206 torture conviction will be a “strike” on your record under California's “Three Strikes” law.24
According to San Diego criminal defense attorney Neil Shouse25:
“When prosecutors decide to charge someone with torture, they mean business. The word ‘torture' is extremely loaded in our culture, and just seeing that charge may be enough to bias jurors against you. But the way California torture law is written allows DAs to charge this offense in situations that really aren't particularly heinous. A lot of torture cases are garden-variety aggravated battery or domestic violence cases that prosecutors have decided they would like to blow up into something more dramatic.”
If you find yourself facing the hefty penalties associated with a torture conviction, you may find one of the following legal defenses helpful:
You did not intend to inflict extreme pain and suffering
As we discussed above, the legal definition of torture depends on the intent of the defendant. You are only guilty of this offense if you intended to inflict cruel or extreme pain on the victim.26
But intent can be difficult to prove beyond a reasonable doubt.
And in many cases of alleged torture, intent really is lacking. It is far more common for defendants to have intended only to scare a victim—or to cause him/her minor pain.
For these reasons, lack of intent is one of the most promising defenses in many Penal Code 206 PC cases.
Self-defense/defense of others
You will not be guilty of torture 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.27
Example: Sally's husband Don has been abusive toward her for years, and lately the abuse has been escalating. Sally is increasingly worried that Don will start to hurt their young daughter Pammy.
One day Don gets angry and strikes Pammy. Pammy runs away from him, and Don chases after her.
Sally grabs a knife, sneaks up on Don, and slashes the backs of his knees. The wounds cause him terrible pain, and Don is unable to walk.
Sally is probably not guilty of torture because she acted in defense of Pammy.
Note that the defense of self-defense/defense of others—in addition to being a valid defense in its own right—also negates one of the key elements of the crime of torture: that you were motivated by extortion, revenge, persuasion or sadism.28
You were falsely accused
People falsely accuse other people of crimes—even serious crimes like torture—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 to injure themselves and falsely blame someone else for it—or injure a third party and falsely blame someone else.
In this case, you will want to hire a criminal defense lawyer who is familiar with medical and other forensic evidence in torture cases—and the investigative techniques that are most effective at ensuring that the true story comes out.
Other California crimes that are often charged along with, or in lieu of, Penal Code 206 torture include:
The crime of Penal Code 203 mayhem occurs when someone unlawfully and maliciously inflicts one of the following injuries on another person:
- Deprives him/her of a member of his/her body (such as an arm or leg);
- Disables, disfigures or renders his/her body useless;
- Cuts or disables his/her tongue;
- Puts out one of his/her eyes; or
- Slits his/her nose, ear or lip.29
Unlike the legal definition of torture, the definition of mayhem focuses on the nature of the injury to the victim—not the defendant's intent.
However, it is common for defendants to be charged with both mayhem and torture, if in the course of committing torture they inflict one of the above-listed injuries on the victim.
Mayhem in most cases is a felony, carrying a state prison sentence of two (2), four (4) or eight (8) years.30
But the crime of “aggravated mayhem” carries a sentence of life in prison, just like torture. “Aggravated mayhem” occurs when the defendant, under circumstances manifesting extreme indifference to another person's well-being, intentionally causes him/her permanent disability or disfigurement, or deprives him/her of a limb, organ or member.31
Penal Code 243(d) PC “aggravated battery” (also known as “battery causing serious bodily injury”) occurs when you willfully or unlawfully use force or violence against someone else, and as a result you cause him/her “serious bodily injury.”32
(“Serious bodily injury” means any serious impairment of physical condition—such as a broken bone or concussion.33)
The maximum misdemeanor sentence for this offense is up to one (1) year in county jail. Charged as a felony, it can lead to (2), three (3), or four (4) years in prison.35
Because it carries a much lighter sentence than torture, aggravated battery can be a useful plea bargain from Penal Code 206 PC charges—particularly in cases where it may be difficult for the prosecutor to prove that you had the intent to cause extreme pain.
If you are accused of committing California Penal Code 206 torture against a current or former spouse, a current or former cohabitant, or the parent of your child—then you may also face charges for Penal Code 273.5 corporal injury on an intimate partner.36
Or, if the facts support it, you may be able to get torture charges reduced to corporal injury on an intimate partner charges—which carry significantly lighter penalties.
Corporal injury on an intimate partner is a California felony and can lead to either up to one (1) year in county jail, or two (2), three (3) or four (4) years in state prison.37
Call us for help…
For questions about the crimes of Penal Code 206 PC torture, 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.
1 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. (Added by Initiative Measure (Prop. 115), approved June 5, 1990, eff. June 6, 1990.)”)
3 See Proposition 115 [origin of California's torture law], Ballotpedia.org.
4 Penal Code 206 PC – Torture, endnote 1, above.
5 Penal Code 206.1 PC – Punishment for torture. (“Torture is punishable by imprisonment in the state prison for a term of life.”)
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 torture] in addition to the imprisonment prescribed.”)
6 Judicial Council of California Criminal Jury Instruction (“CALCRIM”) 810 – Torture (Pen. Code, § 206). (“The defendant is charged [in Count ] with torture [in violation of Penal Code section 206]. To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant inflicted great bodily injury on someone else; AND 2 When inflicting the injury, the defendant intended to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.”)
7 CALCRIM 810 – Torture (Pen. Code, § 206). (“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.”)
8 People v. Pre (2004) 117 Cal.App.4th 413, 419. (“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.'””)
9 Based on the facts of People v. Hale (1999) 75 Cal.App.4th 94.
10 CALCRIM 810 – Torture (Pen. Code, § 206), endnote 6, above.
11 CALCRIM 810 – Torture (Pen. Code, § 206). (“[It is not required that a victim actually suffer pain.] . . . Bench Notes: Instructional Duty . . . Torture as defined in section 206 of the Penal Code focuses on the mental state of the perpetrator and not the actual pain inflicted.”)
12 Based on the facts of People v. Pre, endnote 8, above.
13 Same at 420. (““[S]everity of a victim's wounds is not necessarily determinative of intent to torture” since “[s]evere wounds may be inflicted as a result of an explosion of violence [citations] or an ‘act of animal fury' ” rather than an intent to inflict pain for revenge, extortion, persuasion, or other sadistic purpose.”)
14 CALCRIM 810 – Torture (Pen. Code, § 206), endnote 6, above.
15 CALCRIM 810 – Torture (Pen. Code, § 206). (“[Someone acts for the purpose of extortion if he or she intends to (1) obtain a person's property with the person's consent and (2) obtain the person's consent through the use of force or fear.] [Someone acts for the purpose of extortion if he or she (1) intends to get a public official to do an official act and (2) uses force or fear to make the official do the act. An official act is an act that an officer does in his or her official capacity using the authority of his or her public office.]”)
16 CALCRIM 810 – Torture (Pen. Code, § 206). (“[Someone acts with a sadistic purpose if he or she intends to inflict pain on someone else in order to experience pleasure himself or herself.]”)
17 People v. Healy (1993) 14 Cal.App.4th 1137, 1139. (“We also hold that acts of torture, committed for sadistic purposes do not require a finding of sexual abuse.”)
Same, at 1142. (“Sadism has been defined as “[a] form of satisfaction, commonly sexual, derived from inflicting harm on another.” (Black's Law Dict. (5th ed. 1979) p. 1198.) Thus, although sadistic pleasure is commonly sexual, a sexual element is not required.”)
18 Based on the facts of the same.
19 Penal Code 190.2 PC – Death penalty or life imprisonment without parole; special circumstances. (“(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: . . . (18) The murder was intentional and involved the infliction of torture. . . . “)
20 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 perpetrated by means of . . . torture , . . . is murder of the first degree. All other kinds of murders are of the second degree.”)
21 People v. Raley (1992) 2 Cal.4th 870, 888. (“The special circumstance instruction given in this case is derived from our cases explaining the intent element of the statutory definition of torture murder. As we have already noted in connection with defendant's attack on the sufficiency of the evidence, in People v. Steger, supra, 16 Cal.3d 539, we defined torture murder as ”murder committed with a wilful, deliberate and premeditated intent to inflict extreme and prolonged pain.“ ( Id. at p. 546.)”)
22 People v. Aguilar (1997) 58 Cal.App.4th 1196, 1204. (“We disagree with appellant that the “commonsense” definition of torture requires an intent to inflict prolonged pain. The dictionary definition of “torture” does not indicate that the pain inflicted must be prolonged. (See Webster's New Internat. Dict., supra, p. 2414; Webster's New Collegiate Dict. (1979) p. 1224.) In addition, although the courts have included the intent to inflict extreme and prolonged pain as an element of murder by torture as a matter of judicial construction (see People v. Steger (1976) 16 Cal.3d 539, 546 [128 Cal.Rptr. 161, 546 P.2d 665, 83 A.L.R.3d 1206]), this development was necessary because section 189 does not itself define the crime of murder by torture. Here, virtually the entire text of section 206defines the crime of torture, and the statutory language does not require the intent to inflict prolonged pain. (See pt. II, post.)”)
23 See endnote 5, above.
24 Penal Code 1192.7 PC – Definition of “serious felony” for purposes of Three Strikes law. (“(c) As used in this section, "serious felony" means any of the following: . . . (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice [including PC 206 torture]; . . . .”)
25 San Diego criminal defense attorney Neil Shouse is the founder and Managing Attorney of Shouse Law Group. He served five years in the Los Angeles County District Attorney's office, prosecuting more than 60 criminal trials with an astonishing 96% success rate in felony jury trials to verdict. Now Mr. Shouse puts those skills to use on behalf of defendants, frequently defending individuals in high-stakes, high-profile cases like murder and torture.
26 CALCRIM 810 – Torture (Pen. Code, § 206), endnote 6, above.
27 CALCRIM 3470 – Right to Self-Defense or Defense of Another (Non-Homicide [applies to Penal Code 206 PC]). ("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.")
28 CALCRIM 810 – Torture (Pen. Code, § 206), endnote 6, above.
29 Penal Code 203 PC – Mayhem [may be charged along with California torture]. (“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.”)
30 Penal Code 204 PC – Punishment [compare to punishment for torture]. (“Mayhem is punishable by imprisonment in the state prison for two, four, or eight years.”)
31 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.”)
32 Penal Code 242 PC – Battery defined [compare to definition of torture]. (“A battery is any willful and unlawful use of force or violence upon the person of another.”)
See also Penal Code 243 PC – Battery; punishment. (“(d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.”)
33 CALCRIM 925 - California's "battery causing serious bodily injury" law. ("[A serious bodily injury means a serious impairment of physical condition. Such an injury may include [, but is not limited to]: (loss of consciousness/ concussion/ bone fracture/ protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).]")
34 Penal Code 243 PC – Battery; punishment, endnote 32, above [compare to punishment for PC 206 torture].
36 Penal Code 273.5 PC – Willful infliction of corporal injury; violation; punishment [may be charged along with torture]. (“(a) Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”).
37 See same.