Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F08874
OPINION
NICHOLSON, Acting P.J.
Defendant Robert Kyle Russell appeals from his felony conviction of willful infliction of corporal injury upon his former cohabitant. (Pen. Code, § 273.5, subd. (a).) He claims the trial court erred in not instructing the jury sua sponte on the defense of accident. We disagree and affirm the judgment.
FACTS
On October 4, 2005, Maile Freitas, defendant’s girlfriend of five years, was running late to pick up her children from school. Instead of taking the bus as she had planned, she decided to take defendant’s car without defendant’s permission.
On the way home, Freitas passed defendant, who was driving the opposite direction in his work truck. Defendant motioned Freitas to pull over. He was upset, and told Freitas to take the car home.
After returning home, Freitas went upstairs to her friend Kayla Dearman’s apartment. Dearman had helped Freitas drive defendant’s car that day, so they watched for defendant’s arrival. He returned within an hour, and was angry.
Freitas did not want to “face the music,” so she asked Dearman to go downstairs into her apartment and retrieve her wallet and her keys. Dearman went into Freitas’s bedroom in the apartment, and she saw defendant lift up the mattress and then drop it. The drop broke a glass apparently under the bed. Dearman told defendant he did not have to break Freitas’s things. Defendant responded profanely and said most of the things in the room were his. Defendant then hit the bedroom door.
Dearman went back into the living room with defendant, and she saw Freitas there on the couch. Freitas had come down because she thought Dearman was taking too long to get her things. Defendant pushed Dearman, and she fell over Freitas.
The trio went outside. Dearman walked over to the stairs, Freitas sat in a chair, and defendant was near his car. Defendant and Freitas were arguing. A couple of times, Freitas would say something, and defendant would move towards her as if he was going to hit her. Both of them were standing by then. Then Dearman saw defendant swing his fist. She heard a smacking sound, and saw Freitas on the ground. Dearman did not see the impact because defendant’s body blocked her view of Freitas. When Freitas got up, Dearman saw a red mark by one of Freitas’s eyes. Freitas yelled and told Dearman that defendant had hit her.
Freitas called 911 and told the operator numerous times that defendant had just hit her. She also told the reporting police officer that she “closed my eyes and felt him hit me on my left cheek bone.”
Two days later, Freitas informed a victim advocate for the domestic violence prosecution unit of the district attorney’s office that defendant had been angry, had lunged at her, and that he swung and hit her. Freitas also claimed that defendant had physically abused her in the past.
A few weeks later, Freitas informed the supervising advocate of the domestic violence prosecution unit that she wanted to obtain a written no-contact order against defendant. She feared what defendant might do during situations when he did not get his way.
At trial, Freitas recanted on these earlier statements, and testified that defendant did not hit her. She claimed she injured herself when she fell into the screen door.
Elizabeth Kobal, defendant’s former girlfriend, testified for the prosecution. She stated that in 2003, she told defendant to leave after they had an argument. Defendant refused. He called Kobal several names, and then he punched her in the face, causing a black eye. Kobal also recalled an incident from 2004 when defendant again punched her in the face after an argument, causing a bloody nose.
Defense
Defendant testified on his own behalf, and he denied ever striking Freitas. He claimed that prior to October 4, 2005, he had warned Freitas not to use his car because it had no brakes. The day before, he removed the car’s battery and coil wire to prevent Freitas from driving the car, and he put these items in his truck. He also took the key away from her.
The following afternoon, while driving home a worker, Roosevelt Willis, defendant “gasped” when he saw Freitas drive by in the car, and he motioned to her to pull over. They spoke for about a minute, and he told her to take the car home. Afterward, he stopped at his sister’s house and then at a store where he bought brake fluid. By this time, he had decided to move the car to his grandmother’s house so that Freitas would not be able to drive it.
Upon arriving at Freitas’s apartment, defendant went in to retrieve the car key he had hidden under the mattress. After he went into the bedroom, Dearman followed him in. When he left the bedroom, he saw Freitas in the living room. The two began arguing. Freitas stood up, defendant turned to yell back, and Dearman walked in between them. While trying to calm down Freitas, Dearman ran into her and they both fell down. Defendant denied touching Dearman.
Defendant went outside to reattach the battery and the coil in his car. At that time, he claimed, there was no battery in the car. While he began putting the battery in, Freitas came out and continued yelling and arguing with him. She was standing at the front door, about five or six feet away from where he was working on the car. At times, he turned from his work, argued, and stepped towards her, bringing him within a distance of a “couple of feet or so.”
When defendant turned around to face Freitas, she would open the screen door and go inside the apartment. The bottom of the door would get caught and “spring back closed on you.” On one of the occasions when Freitas turned around to go into the apartment, defendant saw Freitas hit the screen door. He thought she tripped while going into the apartment. Defendant denied striking or touching Freitas. He also denied ever hitting Freitas prior to this incident.
Roosevelt Willis remained seated in defendant’s work truck as this was going on. He testified he did not see defendant approach Freitas with his arms raised as if to hit her, nor did he see defendant hit her. Willis saw Freitas trip a couple of times, but he could not tell why she fell.
A jury convicted defendant of willful infliction of corporal injury upon a former cohabitant, a felony. (Pen. Code, § 273.5, subd. (a).) Defendant also admitted two prior qualifying domestic abuse convictions within the meaning of section 273.5, subdivision (e)(2). The trial court sentenced defendant to a state prison term of four years, the midterm.
Subsequent undesignated references to sections are to the Penal Code.
DISCUSSION
On appeal, defendant claims the trial court committed prejudicial error by not instructing sua sponte on his defense of accident; specifically, that Freitas was accidentally struck by the screen door as she tried to open it. We conclude the trial court committed no error. The defense of accident applies when it is the defendant, not the victim, who has caused the accident.
In his opening brief, defendant also argued that the trial court erred by sentencing him to an incorrect determination of the midterm and that it actually imposed an upper term in violation of Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856]. Defendant has since withdrawn these arguments.
Persons who commit an otherwise criminal act by accident may be excused from criminal liability. The Penal Code excuses from criminal liability 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.” (§ 26(5).)
“The accident defense amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime.” (People v. Lara (1996) 44 Cal.App.4th 102, 110.) A defendant’s contention that he did not commit the act is not sufficient evidence to support an instruction on the accident defense. (See People v. Gorgol (1953) 122 Cal.App.2d 281, 307-308.)
The defendant at trial never claimed he caused Freitas to fall by accident. He did not testify, for example, that he tried to open the screen door but accidentally hit Freitas with it. Instead, his defense was simply, and consistently, that he did not touch Freitas at all. According to defendant, it was Freitas who committed the accident, not him. He thus was not relying on the accident defense at trial.
A trial court must instruct sua sponte on a defense “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’” (People v. Breverman (1998) 19 Cal.4th 142, 157, italics in original.) Here, there is no evidence defendant was relying on the defense of accident, and there is no evidence supporting that defense. The trial court committed no error when it did not instruct sua sponte on the accident defense.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., ROBIE, J.