(Super. Ct. No. 09F07686)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After an initial jury deadlocked, a second jury, upon retrial, convicted defendant Christopher Rogers of first degree murder and found he personally discharged a firearm to commit the killing. (Pen. Code, §§ 187, subd. (a), former 12022.53, subd. (d).)
Sentenced to an aggregate state prison term of 50 years to life, defendant appeals. He contends there is insufficient evidence (1) that he was the killer, and (2) that he deliberated and premeditated. He also claims that (3) the prosecutor engaged in prejudicial misconduct during argument, and (4) he is entitled to 10 additional days of presentence custody credit for actual time served. We agree with defendant about the additional custody credit, but disagree on his three other contentions. Consequently, we shall modify the judgment to add the 10 days of credit, and affirm in all other respects.
Discovery of the Body and Initial Investigation
At about 8:25 a.m. on Thanksgiving Day, November 25, 2004, Sothat Lee's (Lee) cousin discovered a lifeless female body outside Lee's front door. Lee's cousin was visiting from San Diego and had arrived about six hours earlier; no body was there then.
Lee lived at the intersection of 43rd Avenue and 40th Street in Sacramento. That intersection dead-ended within a block in both street directions, because of Highway 99, which ran diagonally through the area. Next to Highway 99's sound wall in this area was a small triangular grassy field (sometimes referred to as an easement). On the opposite corner of the block from Lee's house was Pacific Elementary School, at the intersection of 44th Avenue and 41st Street.
The body was later identified as that of the victim, Juanita Johnson. Police officers followed a blood trail from Lee's house to the triangular grassy field, where the evidence--most prominently, a large amount of pooled blood, and the beginning of the trail--indicated the shooting had taken place. Just a few feet away, officers discovered a fresh condom still containing a white substance.
Johnson died from a single, not immediately fatal, gunshot wound to her face, which entered her right cheek, exited just below her left earlobe, and severed a major artery (the left maxillary). Gunpowder stippling found on Johnson's right cheek indicated she had been shot from a distance of one and a half to four feet. The forensic pathologist conducting the autopsy, who was not a ballistics expert, believed the bullet fragments that were recovered from Johnson were from a small to medium caliber gun (.22-caliber to .38-caliber). Johnson's body did not exhibit any classic defensive wounds.
The pathologist took swabs from Johnson's oral, vaginal, and rectal cavities.
Johnson's Activities Before the Murder
Johnson, who occasionally worked as a prostitute, had a casual relationship with Bernard Holland, who called her "Joyce." Around 4:00 a.m. on Thanksgiving Day, November 25, 2004, Johnson left Holland's house to go on a "date" (prostitution), after the rock cocaine the two had been smoking with two others, ran out.
Johnson never returned to Holland's house; she was supposed to be back by 8:00 a.m., as the two of them planned to spend ...