(Super. Ct. No. 05F07063)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 convicted defendant Shaun Anthony Victoria of attempted murder and assault with a deadly weapon, in the course of which he personally used a deadly weapon and inflicted great bodily injury. The trial court thereafter sustained two recidivist allegations. It imposed a state prison term of 25 years to life plus nine years for enhancements, with conduct credits limited to 15 percent of actual presentence custody. (Pen. Code, § 2933.1.)
On appeal, defendant argues the trial court erred in allowing character evidence in the form of the forcible nature of his previous convictions. He also contends he was entitled to instructions sua sponte on imperfect self-defense, heat of passion, and accident or mistake. Finally, he claims the trial court erred in giving a limiting instruction that precluded the jury's substantive use of some of the victim's extra-judicial statements. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The now deceased victim, Rodney Scaife, was defendant's constant companion, who even travelled with defendant on his long-haul trucking trips. Scaife received treatment at the emergency room for stab wounds to his torso and right arm in August 2005. The wounds were life threatening, and if untreated could have been fatal. He spent four days at the hospital before being released. At the time of his admission, he told a nurse that his roommate attacked him in the shower and stabbed him. He also told this to a residential security guard, who had found him lying outside and called 911. He later died in Arkansas in September 2009, when a car struck him as he was standing outside a vehicle after a crash.
There are several accounts of how the 2005 stabbing came about. We will list them in turn. Additional facts pertinent to the arguments on appeal will be incorporated in the Discussion.
A. Defendant's Sacramento Girlfriend: Two Versions
Defendant's Sacramento girlfriend, Megan R. (Megan or the Sacramento girlfriend), and defendant began dating in April 2004. In August 2005, they had an argument that escalated into physical violence; defendant struck Megan with his fist and a tool before falling asleep on her sofa. Scaife, who had been outside during the fight between defendant and Megan, attempted to comfort Megan in her bedroom. He told her she should break off her relationship with defendant, then tried to kiss her. She rebuffed him and he left the room.
The next morning, Megan told defendant he had to take his belongings and leave her apartment. When she got home that evening after midnight, defendant came up to her as she got out of her car, knelt down, and begged forgiveness. She invited him to come inside and talk for a few minutes.
Scaife entered Megan's apartment about a half-hour into their conversation, and asked if he could shower. When Scaife left to get a bag out of defendant's car, Megan told defendant about Scaife's attempt to kiss her the previous night. Defendant seemed visibly angry; he grabbed his cell phone and his cigarettes and went outside. He brushed past Scaife as Scaife was coming back in.
Scaife came out of the bathroom naked and asked for towels. Megan, unsure of defendant's location, called him and told him what Scaife had done. Almost immediately, defendant came back into the apartment "really angry" and walked toward the kitchen mumbling that he could not believe it. He grabbed a knife from the counter knife block and walked quickly toward the bathroom.
Defendant opened the bathroom door and pulled back the shower curtain. From the sofa, Megan could see defendant make punching motions at Scaife, and then she saw blood. She never saw Scaife holding the knife. Scaife grabbed for his clothes and fled the apartment, defendant following him with knife in hand.
Megan was standing there still in shock when defendant returned after a few minutes. He dropped a mesh shirt into the sink, and told Megan to get her things because they were leaving. As they drove off in her car, she could see the apartment complex's security guard kneeling over Scaife, who was lying on the walkway. They headed to her grandfather's vacant home to spend the night.
While there, defendant called two or three women. Megan heard him tell one of them that he had stabbed Scaife because he had tried to rape Megan. Defendant also told Megan that they would need to agree on an account of what happened. After formulating several different versions, he eventually instructed Megan to tell the police that Scaife had tried to rape her; that when defendant confronted him, Scaife had pulled a knife on him (that he already had with him in the bathroom); and that Scaife was stabbed as defendant struggled for control of the knife.
They went to a hospital where Megan's mother worked (after telling her that they were on their way). Defendant had wanted to talk to Megan's mother before going to the police, because he had a good relationship with her. The mother arrived at the hospital ...