IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
February 10, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TONIA RENEE ECKHARDT, DEFENDANT AND APPELLANT.
Super. Ct. No. S08CRF0030
The opinion of the court was delivered by: Robie ,j.
P. v. Eckhardt CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 guitar to give him as he left. He grabbed her arm, leaving marks, and took his items back, again stating he would not leave.
Defendant testified she knew from the victim's former girlfriend that he could become violent. Feeling that she was losing control of the situation, defendant got a kitchen knife. She "held it up and I said get out, I mean it." He leaned towards her and she walked towards him, and defendant made a quick movement and tapped the end of the knife with his hand. She flinched as he made "a quick movement" and tapped the top of his hand on the knife. She also testified he stepped toward her aggressively, which caused his hand to touch the knife. She denied telling Officer Herminghaus she cut the victim to show she was serious, and denied she told him she had told the boy he should try oral sex on her.
A child who had been in the house testified that after defendant ordered the victim out of the house, "Joe got up and it was an attempt of a sprint and he pushed her either on the ground or grabbed her hand, and before he got [defendant] to the ground, I remember the knife being held up like this (motioning) and Joe's hand got it." "Joe swatted with his hand, and the knife cut Joe."
Defendant contends the trial court prejudicially erred by failing sua sponte to give the jury an accident instruction. We disagree.
A defendant is entitled to a sua sponte instruction on all defenses relied upon at trial. (People v. Breverman (1998) 19 Cal.4th. 142, 157.) However, such an instruction is not required if the theory lacks "substantial support in the evidence." (Id. at p. 162). The first problem with defendant's argument is that her defense on the domestic violence charge was self-defense. She never testified her actions were accidental nor did her counsel argue this theory to the jury.
Furthermore, substantial evidence does not support her accident theory. All persons are capable of committing a crime except, inter alia, "Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence." (Pen. Code, § 26, subd. Five.) An accident instruction would have stated defendant was not guilty if she acted without the intent required for the charged crime, "but acted instead accidentally." (CALCRIM No. 3404; see CALJIC No. 4.45.) Assuming an accident theory is not inconsistent with self-defense (cf. People v. Villanueva (2008) 169 Cal.App.4th 41, 50-52), we must ask whether substantial evidence supported such an instruction in this case. (Bench Notes to CALCRIM No. 3404 (2009-2010) p. 1006.) We ask "whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.'" (People v. Salas (2006) 37 Cal.4th 967, 982; see People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054-1055.) Because an accident defense negates the intent element of a crime, the accidental conduct must be by the defendant, not by the victim. (See People v. Bohana (2000) 84 Cal.App.4th 360, 371 [claim that victim went into a pool and drowned did not trigger accident instruction, because "it would have implied that some 'accidental' conduct by appellant" caused victim to enter pool].)
Defendant points to her testimony that, as she held the knife out, she flinched and turned, and the victim tapped the end of the knife with his hand as the victim made an "aggressive body movement." She also points to a child's testimony that the victim "swatted with his hand," causing the knife to cut him.
We do not agree that this shows defendant did anything that can be characterized as an accident. If believed, this shows only that as defendant held a knife pointed toward the victim, he moved toward the knife or swatted at it, causing his hand to be cut. It does not show that she accidentally cut him. The trial court was not required to give an accident instruction.
The trial court imposed a $195 laboratory fee pursuant to Health and Safety Code section 11372.5. The People concede this fee was not applicable to this case. We accept the concession and modify the judgment to strike this fee. (See Pen. Code, § 1260.)
Statutory Basis For Fees And Fines
Defendant contends the probation order fails to specify the statutory bases of fees and fines imposed. In People v. Eddards (2008) 162 Cal.App.4th 712, we held a probationary order must specify "the statutory bases of all fees, fines and penalties imposed upon defendant." (Id. at p. 718.) Again, the People concede the order in this case does not comply with Eddards. We agree. Therefore the trial court must prepare a new probation order.
We deem defendant to raise the issue whether recent statutory amendments would increase her presentence conduct credit award. (Miscellaneous order No. 2010-002.)
Defendant was awarded two days of actual custody credit and no conduct credits, because under a prior formula, a person had to serve at least four actual days before earning conduct credits. (See People v. Bobb (1989) 207 Cal.App.3d 88, 97-98, disapproved on another ground by People v. Barton (1995) 12 Cal.4th 186, 198-199, fn. 7.) Amendments to Penal Code section 4019, effective January 25, 2010, establish a more generous formula, but the new formula does not apply to "serious" felony cases. (Pen. Code, § 4019, former subds. (b) & (c), as amended by Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) The jury's finding that defendant personally used a deadly weapon makes this a "serious" felony case. (Pen. Code, §§ 12022, subd. (b)(1); 1192.7, subd. (c)(23).) A more recent amendment, effective September 28, 2010, amends Penal Code section 2933 to give state prisoners additional credits. (Stats. 2010, ch. 426.) However, defendant was granted probation, therefore this amendment, too, does not benefit her.
The judgment (order of probation) is affirmed as modified, with directions to the trial court to prepare a new probation order consistent with this opinion.
RAYE , P.J.