Super. Ct. No. S08CRF0030
The opinion of the court was delivered by: Robie ,j.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Tonia Renee Eckhardt guilty of domestic violence and found she personally used a knife, but acquitted her of making criminal threats. The trial court granted defendant probation, and she timely appealed.*fn1
Defendant contends the trial court should have given the jury an accident instruction, improperly imposed a laboratory fee, and failed to specify the statutory basis of other fees and fines. The People concede the latter two points. We shall strike the laboratory fee, remand for clarification of the probation order, and otherwise affirm.
The victim, defendant's then-husband Joseph W., testified that on January 25, 2008, his left knee was injured at work and his employer took him to an urgent care facility, where he was given a brace, crutches, and painkillers. After the victim's employer took him home, defendant declined to fill a Vicodin prescription for him, but offered him hard liquor and some Vicodin she had on hand.
Later, defendant told the victim their 15-year-old foster daughter had been having sex with a boyfriend who was a year or two older, and after the daughter said the boyfriend had been doing a good job, the boyfriend "told [defendant] that he could do the same thing to her sometime. And she said she had been flirting with him a little bit about that." According to the victim, defendant "appeared to be interested in the offer. And she said you do a good job, huh? And that's what she told me." Defendant's comments about wanting to have sex with a teenage boy made the victim jealous and angry, and he tipped over a glass coffee table, knocked over a table lamp, and threw his crutch at the stairs. Defendant told the victim to leave, then picked up his wallet and turned to go upstairs. The victim "got up and grabbed her shoulder and grabbed [his] wallet back from her." Both "were pretty worked up at that point." Defendant then grabbed the victim's guitar and started to go upstairs with it, whereupon he again got up, took the guitar, and sat down. He told defendant he did not want to argue with her and wanted to sleep.
After the victim had rested on the couch, "The next thing [he] knew [he] had two knives at [his] throat." Defendant told him he had to leave or she would kill him that night. The victim moved the knives away from his throat with his left hand. Defendant asked the victim if he thought she was kidding and immediately after that she cut him on the back of his left hand. The victim testified he was not cut while he was pushing the knives away.
Defendant's son gave the victim paper towels and told defendant to stop, allowing the victim to lock himself in the bathroom and call 911. In his 911 call, the victim could be heard stating "you have a fucking knife in your hand right now," and although he could not see her during the call, she spoke through the door, asking him not to involve the police, and she did not deny having a knife.
Officer Jake Herminghaus testified he arrived at the house at 10:30 p.m. and saw the victim had blood on his left hand. Defendant was nervous, but not crying. She told him "that she caught her foster daughter receiving oral sex from her foster daughter's boyfriend" and had told the victim "that she made a comment to the foster daughter's boyfriend that he should try that on her sometime." Defendant also said that she cut the victim with a knife "because he wouldn't leave the house." After defendant told the victim to leave, he said he would not leave and "She said to show him she was serious, she cut him with the knife."
Defendant testified that before the victim came home, she had been "mentally preparing" how to tell him that she had caught her foster daughter receiving oral sex, because it would have to be reported to CPS. When she had questioned the children, the boy had been petting a cat, and defendant made a comment to him along the lines of "you know how to pet a pussy," which she then realized was inappropriate. When the victim arrived home, she told him it was too late to fill his prescription and he asked her to get him some Vicodin, which she did. She did not insist that he drink liquor, but "was trying to serve him that evening, make everything kind of happy and smooth." When she told him about the incident with the foster daughter, she joked about it, "kind of making it lighter so he wouldn't want to make a big deal. And then he kind of elevated his mood to an anger state." She had planned to give him hard liquor to relax him before she told him about the remark she had made to the boy.
After the victim became vulgar, defendant went upstairs, but she returned when she heard booming noises, to find he had knocked the table and lamp over. As their argument escalated, she told him to get out, but he refused, and then lunged toward her with clenched fists. When she turned to see children on the stairs, she saw something fly by her head and hit the wall, which she thought had been a candle. She again told the victim to get out, and picked up his wallet and ...