Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F09380
MAURO, J.
Defendant Jacob Godwin David was convicted of attempted murder, inflicting corporal injury on the mother of his child, threatening to commit a crime that would result in death or great bodily injury, and assault with a deadly weapon. He contends on appeal that the trial court committed prejudicial error by failing to instruct sua sponte on the defense of accident.
We conclude there was no error. A recent decision of the California Supreme Court holds that in circumstances like this a trial court has no duty to instruct on accident sua sponte. We will affirm the judgment.
BACKGROUND
Defendant lived in a Sacramento apartment with Jessica Smith and their one-year-old son. The relationship ended in October or November 2008, but they decided to stay in the apartment until the lease expired in December or January.
Smith began seeing Lamarr Baxter after she broke up with defendant. She told defendant she was seeing Baxter and showed defendant a photo of Baxter.
On November 13, 2008, Smith reported to the police that defendant pushed her down after an argument over custody of their son. Smith applied for a temporary restraining order and asked for sole custody of their son with no visitation for defendant. She then returned to the apartment and found it had been vandalized. She changed the apartment’s locks, but she believed defendant took a key to the new locks without her permission.
Smith and Baxter were inside the apartment on the night of November 16, 2008. After hearing a knock on the front door, Smith turned off the lights and saw defendant through the peephole. Smith then put furniture against the door and told Baxter to hide in the bedroom.
According to Baxter, defendant broke down the front door and entered the apartment while holding a samurai sword. He told Smith to sit on the couch and asked, “Where is that bitch nigga at?” Defendant turned the hall light on at some point. Baxter came out of the bedroom and threw up his hands in a submissive position. He started to say he wanted no problems, but defendant stabbed him in the abdomen. After Baxter grabbed the sword with his hands, defendant pulled the blade out of Baxter’s abdomen.
Defendant is African-American.
Baxter collapsed, bleeding. Smith tried to run for help, but defendant grabbed her by the hair, slammed her to the floor, and kicked her several times. Defendant then told Baxter to get up. When Baxter said he could not, defendant replied, “Get your ass up or die right here.”
Baxter tried to get up, but collapsed again. Defendant put a sword to his inner thigh, and said, “You want to fuck around, you want me to cut your dick off?” Defendant told Smith, “How you going to disrespect my house bringing this nigga up in here. This is my house.” He then kicked Baxter in the head, and told him to never touch his son.
Defendant gave Smith a telephone after she pleaded with him to call 911. Smith called 911 and used a towel to apply pressure to Baxter’s wound.
Defendant went to the kitchen and grabbed a kitchen knife. He put the knife between Baxter’s hands and told Baxter, “You better tell them what I tell you to say.” Defendant said he should have beaten Baxter rather than stabbing him. He stayed in the apartment until his arrest.
Sacramento County sheriffs arrested defendant, who was standing over Baxter and pointing a kitchen knife at him. Deputies found gum and a gum wrapper affixed to the peephole of the front door. The front door, which had been kicked off the hinges, had what appeared to be crucifixes drawn in a sticky substance.
The deep wound to Baxter’s abdominal cavity caused a 40 percent blood loss. Baxter’s spleen and part of his pancreas were removed during a very complicated surgery. The wound was three to four millimeters from the aorta. If the sword had punctured the aorta, Baxter would have bled to death within minutes.
Smith suffered an orbital blowout fracture to the bottom of an eye socket, extending to the cheek area. According to the treating doctor, the most common causes of this type of injury are “assaults, kicks, punches, [or] car accidents.”
Smith testified that Baxter turned off the lights when someone knocked on the door. She could not recall if defendant had anything in his hand when he entered the door, but saw a samurai sword in his hand when he returned from the bedroom.
According to Smith, defendant walked to where Baxter was hiding. She did not see defendant stab Baxter, but she saw defendant corner him. Seeing that Baxter was bleeding, Smith ran to the front of her apartment to get her cell phone and call the police.
Smith told a sheriff’s deputy that defendant hit her in the face, went to the back room, and stabbed Baxter. Smith tried again to call 911, but defendant held the sword at her chest. He started swinging the sword, threatened to kill Smith and her family, and kicked her in the face.
Defendant testified that prior to the incident, Smith asked him to take care of their son and get him to a medical appointment. Defendant said he picked up their son and later returned to the apartment for the boy’s medical records. Upon his return, defendant noticed a broken key in the lock and that no one answered the door. Knowing the apartment was recently vandalized, defendant thought Smith was in danger from an intruder. He put gum over the peephole so intruders could not see him.
Defendant then broke into the apartment. The lights were out, so he turned on a light in the dining room. Defendant saw Smith and asked her what was going on. He then saw a man snatch something from the kitchen table and run to the back of the apartment. The man told defendant, “I got something for your ass.”
Defendant said he got his samurai sword from the hall closet and followed the man into the dark bedroom. He saw a faint, shadowy image of the man in the bedroom. The man appeared to be bending over, trying to find something.
Defendant stood by the door and said, “who are you?” Defendant said he was afraid to go past the threshold as he was still trying to figure out whether to pursue the man. Defendant pointed the sword straight out in front of him. He heard a sound like running coming towards him. Defendant said the man made contact with the sword, stopped, and went back.
Defendant then pulled the sword back because he saw the man had hesitated. He dropped the sword and proceeded to tackle the man. As defendant struggled with the man, he could feel Smith hitting him. Defendant then hit the person (Smith) who was behind him.
Defendant got up and turned the light on. He saw Smith was in the room, as well as the man, who was standing. The man was looking for a kitchen knife on the bedroom floor, so defendant took the knife to keep it from him. Defendant said he told the man to stay down, but the man looked like he was going to charge defendant again.
A jury found defendant guilty of attempted murder (Pen. Code, §§ 187, subd. (a), 664; count one); inflicting corporal injury on the mother of his child (§ 273.5, subd. (a); count three); threatening to commit a crime that would result in death or great bodily injury (§ 422; count four); and assault with a deadly weapon (§ 245, subd. (a); count five). The jury also found that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) and great bodily injury involving domestic violence (§ 12022.7, subd. (e)). The trial court sentenced defendant to 16 years four months in state prison.
Undesignated statutory references are to the Penal Code.
Defendant is not entitled to additional conduct credits under the recent amendments to sections 2933 and 4019 because he was convicted of violent and serious felonies.
DISCUSSION
Defendant contends the trial court erred in failing to give an instruction, sua sponte, on the defense of accident. The People agree that the trial court erred, but argue the error was harmless.
We conclude there was no error. A recent decision of the California Supreme Court, issued after appellate briefing was completed in this case, holds that in circumstances like this a trial court has no duty to instruct on accident sua sponte. (People v. Anderson (2011) 51 Cal.4th 989 (Anderson).)
Penal Code section 26 articulates the defense of accident. The Supreme Court indicated in Anderson that just because “the law recognizes a defense of accident does not, however, establish that trial courts have a duty to instruct on accident sua sponte.” (Anderson, supra, 51 Cal.4th at p. 996.) When a defendant presents evidence to negate an element of the offense, defendant is not presenting a special defense invoking sua sponte instructional duties. (Id. at pp. 996-997.) Although a trial court may have a duty to give a pinpoint instruction in such circumstances, the pinpoint instruction is not required sua sponte, but only upon request. (Ibid.)
In this case, defendant’s version of events was that he intentionally held the samurai sword straight out toward Baxter and Baxter ran into the sword. Defendant contends this evidence would negate the requisite mental state, which is an element of the offense. The Supreme Court in Anderson held that under such circumstances, the trial court does not have a sua sponte duty to instruct on accident. (Anderson, supra, 51 Cal.4th at pp. 996-997.)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.