(Super. Ct. No. 08F07273)
The opinion of the court was delivered by: Murray , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Cuauhtemoc Rodriguez appeals following a conviction for first degree murder (Pen. Code, § 187), subd. (a))*fn1 with personal discharge of a handgun (§ 12022.53, subd. (d)). Defendant contends the trial court erred when it: (1) refused to dismiss a juror who became ill when the jury was shown autopsy photographs during trial, (2) gave a modified jury instruction on justifiable homicide: self-defense or defense of others, and (3) denied presentence custody credits (§ 2933.2, former § 4019). We order correction of the abstract of judgment to reflect the custody credits orally pronounced by the trial court and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged defendant and his sons, Agustin and Octavio, with the murder of victim Kevin Marshall. The information further alleged that defendant personally discharged a firearm and thereby caused the victim's death.*fn2
On the afternoon of August 21, 2008, the 17-year-old victim and his 13-year-old friend G.W. were standing outside the building where G.W. lived. From outside an apartment complex across the street, defendant's teenage son Octavio, aka Tommy, was looking at them with "a mug," an "ugly look." The victim asked Octavio what he was looking at, and a fistfight ensued. Defendant and another son, Agustin, emerged from the building and joined the fistfight. Agustin ended up on the ground with a dislocated finger and thumb, multiple abrasions, and a laceration to the head. The victim also fought with defendant, who lost his balance and fell down during the encounter. This ended the fight.
The victim ran toward his home and saw his friend and neighbor, 18-year-old Lutrell Thomas. The victim said he had been "jumped" by several men. The victim and Thomas called for the victim's two brothers and two more friends to join them in returning to continue the fight. The victim and Thomas ran ahead, while the others walked behind them.
Meanwhile, in the victim's absence, defendant and his sons got into defendant's black Ford Mustang and moved it into the driveway of the apartment complex. According to G.W., they got out of the car when the victim and Thomas returned.
According to Thomas, he and the victim ran up to the car and they each assumed a boxing stance. Defendant pulled a gun from his waistband. The victim and Thomas turned and ran away. Defendant ran after them and fired several shots. No bullets hit Thomas. The victim was hit, but he made it back to the apartment complex, where he collapsed and died.
A neighbor testified he heard gunshots, looked out the window of his top floor apartment, saw a Black man running down the street, and several seconds later, saw the shooter following. The shooter fired three more shots and then ran back the way he had come. Another witness told a police officer that the man firing the gun did not run but just stood in the middle of the street as he fired the gun. Police discovered a bullet hole in a green van parked on the street and seven bullet casings in the street.
Thirteen-year-old Wendy N., a neighbor who lived in the same apartment building as defendant's family, was outside, passing out flyers for an organic vegetable stand. She knew Agustin from the apartment swimming pool, and her friend had dated Octavio. She knew the victim because she once lived in the building where he lived. She saw the fistfight and saw the victim run away. Defendant and his sons moved the car. The victim and Thomas returned, and the two groups yelled and cursed at each other. The victim assumed a fighting stance with his hands up. According to Wendy and another young witness, it was Agustin who pulled out the gun and fired it.
After the shooting, the police tracked defendant and his sons to his sister's residence in Los Angeles. Agustin was arrested at a Los Angeles hospital. A search of the sister's home revealed a loaded .38-caliber handgun and ammunition, which the parties stipulated at trial was the gun that fired the bullet that killed the victim. When defendant was arrested, he told police, "You don't need my sons. They didn't do anything. I shot and killed that guy." He said nothing about shooting in self-defense.
A forensic pathologist testified that the victim sustained gunshot wounds from two bullets to the back. The pathologist opined that the shooter was behind the victim when the shots were fired. One bullet -- which was not lethal -- entered the back of the victim's right shoulder and exited the front of his body. The cause of death was a bullet that entered the back of the victim's right arm, exited and then entered the right side of the victim's back. A fragment of the lethal bullet was recovered from the victim's lung. The doctor placed a trajectory rod through the wounds in the back and arm, as depicted in a photograph admitted as People's Exhibit 35, which placed the victim's body in a position consistent with running. The lethal bullet passed through the lung, heart and pulmonary trunk, and stopped in the left lung.
Defendant testified in his own defense. On the day of the shooting, he was inside his apartment when his daughter ran in and said some guys wanted to fight Octavio outside. Defendant and Agustin went outside, where the victim and his friend were standing. Octavio told defendant, "Those black kids want to fight with me." Defendant asked the victim, "What's up?" and "Do you have any problems with my sons?" The victim pointed to Octavio and said to him, "What's up, nigger?" Agustin then said, "[d]o you have a problem with my brother?" and the victim said, "[w]ith you too." The victim and Agustin began to fight. Agustin grabbed the victim around the neck, and the victim grabbed Agustin around the stomach. Both fell to the ground. Agustin could not get up. Defendant approached to help him up. The victim tried to hit defendant. Defendant stepped on his own untied shoelaces and fell down. The victim hit defendant. Defendant did not hit the victim. Defendant put his hands up and said, "Oh, you want to fight with me now? Are you sure you want to fight with me?" The victim backed up. Defendant said, "All right, boy, you win." "Go home." The victim asked, "Can I get my bike?"; it was leaning against the fence. Defendant said yes. The victim then left the area.
According to defendant, he got in his car to take Agustin to the hospital and sent Octavio upstairs to get Agustin's medical card. The victim and Thomas returned, running toward the car. Each was reaching behind his back. Defendant testified that Agustin told him the victim and his friend were going to "shoot us up."*fn3 Defendant was afraid. He lived in a dangerous neighborhood where shootings had occurred. Defendant retrieved his gun from under the driver's seat. He kept it there instead of the house because Agustin was on probation, which prohibited him from having a gun "near him." Defendant testified that, although the police had not found the gun when they searched defendant's car in an unrelated incident several months before the shooting, the gun was there, and the police overlooked it.
The victim and Thomas stopped approximately 30 feet away. Defendant put the gun in his waistband and got out of the car, intending to bring calm to the situation. According to defendant, Thomas said, "You want to fight with my brother?" and used the word "[m]otherfucker." Defendant said, "Hey, boys, no more trouble." Thomas replied, "You are fighting with my brother, motherfucker." Thomas, who had approached to a point about 13 feet from defendant, put his hand behind his back. Defendant believed Thomas was going for a gun and feared for his life and the lives of his sons, so defendant pulled out his gun, pulled the slide back and aimed it. Thomas saw the gun and ran away. According to defendant, the victim, who was at that time about 22 feet away, put his hand behind his back. Defendant believed the victim was reaching for a gun. Defendant fired six or seven shots at the victim, who ran away after all of the shots had been fired. Defendant testifed that the victim was facing him when all of the shots were fired. He denied shooting at the victim while the victim was running away. Defendant said he did not know the victim had been hit. Defendant said he got back in his car and drove off with Agustin. Defendant traded cars with his wife, and then drove Agustin and Octavio to Los Angeles. Defendant was afraid that if he went to a local hospital, he and Agustin would be arrested and Agustin would not get the medical care he needed. Defendant also feared deportation.
Defendant admitted he had no explanation for the bullet trajectory which indicated the victim had been shot in the back.
The jury found defendant guilty of first degree murder and found true the gun allegation.
On February 8, 2011, the trial court sentenced defendant to an indeterminate term of 25 years to life on the murder count, plus a consecutive term of 25 years to life for personal discharge of a firearm causing death.
Defendant contends the trial court committed reversible error by refusing to dismiss a juror who became ill after seeing the autopsy photographs during trial and could not view this evidence. We disagree.
Before trial, the prosecution moved in limine to use autopsy photographs to show the trajectory of the bullets that struck the victim. The trial court ruled some of the photographs could be admitted, but precluded others. Using the autopsy photographs, the forensic pathologist described how the two bullets hit the victim, and stated that one of them -- the lethal bullet -- entered the back of the victim's right forearm, exited that arm, and reentered when it perforated the right side of the victim's back. The pathologist opined that the victim was shot in the back, whereas defendant testified the victim was facing him and reaching for a gun when defendant shot at him.
One of the photographs allowed at trial showed a metal rod passing through the wounds in the victim's arm and into the wound in his back. When the prosecutor moved on to an X-ray exhibit, the trial court called a recess and asked Juror No. 6 to stay behind. The following ensued:
"THE COURT: How are you doing?
"SWORN JUROR NO. 6: I just get really queasy. I'm sorry.
"THE COURT: All right. I think we're probably about finished with the pictures, are we not, at least from the District Attorney?
"[PROSECUTOR]: We have no more pictures of the body.
"THE COURT: [Defense] Counsel, are you going to be putting the pictures back up?
"[AGUSTIN'S COUNSEL]: No.
"[DEFENDANT'S COUNSEL]: No. But, Your Honor, the photographs may be examined in the jury deliberations room.
"THE COURT: Well, that's true. What we need to make sure is that you can take a look at those photographs not just for the sake of looking at them and seeing the blood, but to determine -- One of the things that the lawyers are going to be arguing about is that trajectory. [¶] So will you be able to take a look at those photographs, discuss them with the other jurors and look at them with that in mind?
"SWORN JUROR NO. 6: I'll try.
"THE COURT: Okay. If you cannot, you make sure ...