(Super. Ct. No. 08F01141)
The opinion of the court was delivered by: Raye, P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Anthony James Winters appeals following his conviction of second degree murder (Pen. Code, § 187; undesignated statutory references are to the Penal Code) with an enhancement for personal and intentional discharge of a firearm causing death (§ 12022.53, subd. (d)). Defendant contends the trial court violated a duty sua sponte to instruct the jury on voluntary manslaughter upon a sudden quarrel, based on abrasions on the victim's hand. Defendant also seeks correction of a clerical error in the clerk's minutes regarding sentencing. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged defendant with the September 13, 2007, murder of victim Alfredo Perez, with personal and intentional discharge of a firearm causing death (§ 12022.53 subd. (d)).
Evidence adduced at the November 2009 trial included the following:
Defendant's DNA matched DNA found on a Red Bull beverage can at the crime scene, producing an evidence profile estimated to occur at random at a frequency of one in 63 quintillion of the African-American population, one in 140 quintillion of the Caucasian population, and one in nine sextillion of the Hispanic population.
Bank records and security camera images showed that, at 10:23 p.m. on September 13, 2007, the victim withdrew $80 from a bank ATM at a strip mall. Security camera images from nearby businesses (bearing disparate time stamps and using time-lapse video rather than fluid motion) then showed the victim walking a bicycle along the strip mall, accompanied by a male wearing a dark shirt with a distinctive design and holding a can. There was evidence the male had purchased a beverage at a nearby market a few minutes earlier.
The two men disappeared into a restaurant alcove, out of camera range. Seconds later, the victim ran out of the alcove with blood on his shirt. A passing motorist heard a gunshot and then saw the victim run, fall, get up, run, and stop at a ditch. The motorist, who did not know the victim, drove him to get medical assistance.
Other witnesses testified they heard the gunshot and then saw the victim run away from the restaurant and fall or collapse by the ditch.
The pathologist testified the victim died from a gunshot wound to the lung. The victim had recent abrasions--"two little tiny things"--on the knuckle area of his right hand. When asked on cross-examination if the abrasions suggested a "struggle like a punch or a grabbing," the expert testified, "[T]hey're on the back of the hand over lining [sic] a bony area on the knuckle. It's the end knuckle, not the ones that we normally punch with. So it would be more consistent with a punch than a grab. Because it's, you know, in an area that would get knocked. But, again, they're in the--they're in an odd area of the hand to be involved in a punch, but they could have got caught on something sharp--a piece of jewelry or teeth or something--that could have caused the knuckle to injure there." The pathologist said there is no way of knowing what caused the ...