(Super. Ct. No. 07F02608)
The opinion of the court was delivered by: Robie , Acting 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Robert Rodriguez guilty of second degree murder for killing his prison cellmate, who 11 years earlier had killed defendant's brother.
On appeal, defendant claims: (1) his counsel was ineffective for not requesting optional language on antecedent threats in two jury instructions; and (2) the court abused its discretion in ordering defendant shackled during trial. Disagreeing, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 20, 2004, Julian Barajas was found dead in his cell, hogtied, with his hands and feet behind his back. Defendant was in the cell. About two weeks before Barajas was killed, he and defendant and two other inmates had agreed to a cell switch so Barajas and defendant could be housed together in the same cell. At the time, defendant was going by the name Robert Rodriguez, although his birth certificate showed his actual name was Roberto Grajeda Canchola, Jr.
Defendant's younger brother was Antonio Canchola. In May 1993, Antonio was murdered by Barajas following a fight involving rival party crews. (Party crews are groups that promote house parties for a door charge.) Barajas was convicted of first degree murder and was serving a life sentence.
Defendant testified at his own murder trial and admitted he killed Barajas, but claimed self-defense. Barajas moved into defendant's cell eight days prior to his murder. At that time, Barajas threatened defendant with a knife. From then on, their relationship was tense. The day of Barajas's death, he told defendant he was in prison for murdering Antonio, which came as a surprise to defendant. Defendant "stood up and then [Barajas] came at him" with something that resembled a pen or mechanical pencil. Defendant grabbed the object and repeatedly stabbed Barajas with it. Defendant then choked Barajas with a cord, hogtied him, and put him atop a bunk with a blanket on his head.
I Counsel Was Not Ineffective For Failing To Request Optional Language On Antecedent Threats In Two Jury Instructions
Defendant contends his trial counsel was ineffective for failing to request optional language on antecedent threats in two jury instructions. As we explain, counsel was not ineffective because his performance was not deficient: the given instructions told the jury to consider all the circumstances, which included Barajas's antecedent threats, as part of defendant's claim of self-defense; and defense counsel urged the jury in closing argument to consider the antecedent threats in evaluating the claim of self-defense. (See Strickland v. ...