P. v. Phillips

Filed 8/9/06 P. v. Phillips CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant John Oscar Phillips appeals from a conviction for aggravated assault, battery with serious bodily injury, and a finding in connection with the former that he personally inflicted great bodily injury. His single contention on appeal is that the trial court erred in failing to instruct the jury sua sponte on the defense of mistake or accident. We shall affirm since the failure to give such an instruction was not prejudicial.

BACKGROUND

Defendant was charged with aggravated assault (Pen. Code,^[1] § 245, subd. (a)(1)), battery with serious bodily injury (§ 243, subd. (d)), and with the further allegation as to the first offense that he personally inflicted great bodily injury (§ 12022.7, subd. (a)).[2] The jury found defendant guilty of both offenses and with respect to the aggravated assault found true the allegation that he personally inflicted great bodily injury. The court sentenced defendant to six years' imprisonment, the midterm of three years for the aggravated assault plus three years for the enhancement. The sentence for the battery was stayed pursuant to section 654. Defendant has timely appealed.

DISCUSSION

The evidence at trial can be summarized as follows. On December 1, 2003, defendant went to his mother-in-law's home to pick up his baby. Upon arrival, he found not only his wife and their infant, but also his wife's ex-husband, Haskell Allen, Sr., and two adolescent sons from that former marriage. Defendant became agitated as he looked for his child's clothes while Allen followed him throughout the home. A confrontation eventually occurred in front of the house, in which Allen was stabbed twice.

Allen testified that defendant stabbed him without any provocation. Allen's sons testified that defendant initiated physical contact with their father, striking him twice. The older son testified that defendant and Allen stood facing each other on the front lawn, with defendant's wife and baby between them. The two men exchanged heated words. Without Allen having thrown a punch, defendant reached around his wife and stabbed Allen twice. Before joining Allen on the front lawn, defendant had entered the kitchen where steak knives were kept. The older son saw neither defendant nor his father holding a weapon until he glimpsed a blood-stained knife in defendant's hand after the fight. The younger son testified similarly except that he never saw the knife. The surgeon who treated Allen testified that one stab wound penetrated his kidney and that a second slashing-type wound was found where his neck and back converge.

Defendant testified that he drove to his mother-in-law's house to pick up his baby unaware that Allen would be present, and stressed that he would not have come if he had know Allen would be there. Allen had physically threatened him two years before at a child custody hearing. Defendant insisted that he â€