Filed 3/11/13 P. v. Rogers CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----



THE PEOPLE,                                                                             C067770

                   Plaintiff and Respondent,                                (Super. Ct. No. 09F07686)

         v.

CHRISTOPHER ROGERS,

                   Defendant and Appellant.




         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

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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.

                              FACTUAL BACKGROUND
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’s Autopsy

       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




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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 Thanksgiving with Johnson‟s family.

       Holland provided the police his DNA sample as well as his .38-caliber revolver,
neither of which linked him to Johnson‟s killing.
Cold Case and DNA Evidence

       Johnson‟s case went cold, until July 2009, when DNA test results linked defendant
to the matter.

       The sperm in the condom recovered at the apparent shooting scene came from a
single source matching defendant‟s DNA profile. The sperm recovered from Johnson‟s
vagina matched defendant‟s DNA profile. And the sperm found in Johnson‟s rectum
yielded a partial profile consistent with defendant‟s DNA profile.

       Furthermore, the sperm concentration on the vaginal swab disclosed a “4-plus”
concentration (the highest score possible). A 4-plus concentration was consistent with
the victim being motionless and/or horizontal shortly after intercourse; one would
generally expect the concentration to diminish if, following intercourse, the person
remained upright, walked some distance, and engaged in normal physical activities for
some period of time.


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Defendant’s Pretrial Statements

       The police interviewed defendant twice: first on August 7, 2009, and again on
October 1, 2009.

       In both interviews, defendant initially denied any familiarity with the apparent
shooting scene, although evidence from his former girlfriend and from a clerk at the
Pacific Elementary School disclosed that defendant had driven regularly by that scene
over a period of years, when he ferried his children to that school from the fall of 2001 to
the spring of 2005. The school was just one block from the apparent crime scene.
Confronted with some of this evidence, defendant eventually conceded in the second
interview that the crime scene did look a little familiar.

       Defendant steadfastly maintained that he never owned a gun, never had a gun,
never shot a gun, never possessed a gun, and never bought a gun, until overwhelming
contrary evidence from his former girlfriend and from his own mother forced him to
concede that he had possessed a gun (around the time of the murder), a “little .22,” which
“stayed under the mattress” and which he later sold to someone named “Buddy” (who
could not be located). Evidence showed that when defendant‟s former girlfriend moved
out of defendant‟s home toward the end of 2005, she discovered the gun under the
mattress and gave it to defendant‟s mother; when defendant learned the gun was missing,
he angrily and repeatedly called the former girlfriend demanding it.

       Defendant denied recognizing Johnson, denied ever having sex with her, and
denied ever hurting her. When confronted with the condom-DNA evidence, he
acknowledged he may have had sex with Johnson.

       Finally, defendant claimed that the time period around 4:00 to 6:00 in the morning
were “not [his] hours” and that he had been faithful to his former girlfriend, but his
former girlfriend and other evidence (including from defendant himself) contradicted
these claims.


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Defendant’s Interview with Sacramento Bee Reporter

        The day after his second police interview (October 2, 2009), defendant told a
Sacramento Bee reporter that he and Johnson had had sex in the room of a friend of
Johnson‟s, that they had shared a pint of Courvoisier (cognac), and that after their time
together, he drove her to the store and then back to the friend‟s place; she got out of the
car and walked off, looking perfectly fine. Defendant also denied owning or having a
gun (coinciding with the time of the incident).

        A blood sample taken during Johnson‟s autopsy disclosed no alcohol in her
system, but did show cocaine and cocaine metabolite.

                                        DISCUSSION

                               I. Sufficiency of the Evidence

        Defendant contends the evidence is insufficient to establish that he was the
murderer, and that he premeditated and deliberated. Discussing these two contentions in
turn, we disagree.

        In reviewing the sufficiency of the evidence, we review the whole record in the
light most favorable to the judgment to determine whether it contains substantial
evidence—i.e., evidence that is reasonable, credible and of solid value—such that a
rational trier of fact could have found the challenged elements of the crime beyond a
reasonable doubt. (People v. Davis (2009) 46 Cal.4th 539, 606.) The evidence against
defendant was circumstantial, but such evidence “may be sufficient to connect a
defendant with the crime and to prove his guilt beyond a reasonable doubt.” (People v.
Pierce (1979) 24 Cal.3d 199, 210.)
                        A. Sufficiency of the Evidence—Murderer
        Having just delineated the evidence, it makes little sense to detail it all over again
here.



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       Suffice it to say, the DNA and condom evidence strongly linked defendant to
victim Johnson shortly before her death. This evidence encompassed the highest possible
measurement of sperm concentration on the vaginal swab from Johnson, and also
encompassed defendant as the single source of the DNA.

       Defendant‟s fabrications to the police, especially those involving his unfamiliarity
with Johnson, his unfamiliarity with the scene of the shooting, and his unfamiliarity with
any firearm, were especially damning. His statements to the Sacramento Bee reporter of
his familiarity with Johnson and his unfamiliarity with a gun, just a day after his second
police interview, only added fuel to the fire of circumstances against him. And the post-
shooting anger he leveled at his former girlfriend upon learning that his gun was missing,
a gun that was consistent with the shooting, suggested a certain consciousness of guilt.

       We conclude there is sufficient evidence that defendant was the murderer.
           B. Sufficiency of the Evidence—Premeditation and Deliberation
       This sufficiency question is the tougher one, largely because there was no
evidence as to why Johnson was killed.

       “ „ “A verdict of deliberate and premeditated first degree murder requires more
than a showing of intent to kill. [Citation.] „Deliberation‟ refers to careful weighing of
considerations in forming a course of action; „premeditation‟ means thought over in
advance. [Citations.]” [Citation.] “ „Premeditation and deliberation can occur in a brief
interval. “The test is not time, but reflection. „Thoughts may follow each other with
great rapidity and cold, calculated judgment may be arrived at quickly.‟ ” ‟ ” (People v.
Mendoza (2011) 52 Cal.4th 1056, 1069.)

       What courts generally look for in terms of evidentiary sufficiency regarding this
element is evidence of planning, of motive, and of a deliberate manner of killing.
(People v. Anderson (1968) 70 Cal.2d 15, 26-27.) These factors are not exhaustive, and
they are descriptive categories rather than normative rules. (Ibid.; People v. Perez (1992)

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2 Cal.4th 1117, 1125.) For sufficiency purposes, evidence of all three, or at least strong
evidence of planning or motive, in conjunction with manner, generally clears the
sufficiency hurdle. (People v. Thomas (1992) 2 Cal.4th 489, 517; People v. Alcala
(1984) 36 Cal.3d 604, 625-626.)

       We can state flatly that there was no evidence of any motive presented here—
again, no evidence as to why Johnson was killed.

       The killing took place in a somewhat secluded area next to a freeway with a sound
wall, in the darkness of an early morning on a heavily traveled holiday. Defendant knew
this area well. The victim was a prostitute who had just plied her trade with defendant.
Evidence showed that defendant armed himself with a loaded gun prior to taking Johnson
to the secluded area. All of this suggests planning. (People v. Elliot (2005) 37 Cal.4th
453, 471 [“ „the total vulnerability of the victim and the evidence of a previously selected
remote spot for the killing do suggest planning‟ ”]; People v. Morris (1988) 46 Cal.3d 1,
23 [“Clearly, when one plans to engage in illicit activity [prostitution, in that case] at an
isolated location during the early morning hours, and one brings along a deadly weapon
which is subsequently employed, it is reasonable to infer that one „considered the
possibility of homicide from the outset‟ ”], disapproved on other grounds in In re
Sassounian (1995) 9 Cal.4th 535, 543-544 & fn. 5.)

       Furthermore, the evidence shows that defendant shot Johnson in the head from
close range, from just a few feet away. Johnson did not exhibit any classic defensive
wounds, and she and defendant had engaged in vaginal and anal sex shortly before the
shooting. Most likely, defendant did not have the gun in his hand while having sex with
Johnson (and, if he did, this is no better for him from a standpoint of premeditation and
deliberation). This means that at some time after having sex, defendant reached for his
loaded gun, pointed it at Johnson‟s head, and pulled the trigger. All of this points to a
deliberate manner of killing—a cold, calculated decision to kill. (People v. Marks (2003)


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31 Cal.4th 197, 230 [a close-range shooting to the head or face without provocation or
evidence of struggle may show premeditation and deliberation]; People v. Halvorsen
(2007) 42 Cal.4th 379, 422 [same]; People v. Caro (1988) 46 Cal.3d 1035, 1050 [same].)

       We conclude that the evidence regarding planning and the manner of killing
provides sufficient evidence of premeditation and deliberation to sustain the jury‟s
finding.

                               II. Prosecutorial Misconduct

       Defendant contends the prosecutor committed misconduct in arguing to the jury
that (1) the jury would be derelict in its duty if it failed to reach a verdict and that a hung
jury would be as if the trial had not happened and would allow a murder to go
unpunished; (2) the jury was required to solve the puzzle created by the evidence; (3)
deliberation and premeditation were established as long as the evidence showed that
sufficient time had elapsed for it to occur; and (4) the defense had to disprove aspects of
the prosecution‟s case. We find no prejudicial error.

       Preliminarily, we note that defendant has forfeited all four of these contentions by
failing to object to any of this alleged misconduct and to request a curative admonition
from the trial court. (People v. Stanley (2006) 39 Cal.4th 913, 952.) Nevertheless, we
will consider briefly the merits of these contentions in the context of defendant‟s
purported ineffective assistance claim. In so considering, we will proceed straight to the
question of ineffective assistance prejudice: Is there a reasonable probability (i.e., a
probability sufficient to undermine confidence in the outcome) that defendant would have
fared better had defense counsel objected to these alleged instances of prosecutorial
misconduct? (In re Avena (1996) 12 Cal.4th 694, 721; People v. Cox (1991) 53 Cal.3d
618, 656 [a court need not determine whether counsel's performance was deficient if a
defendant fails to show prejudice].) As we shall explain, we do not think so.



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       First, the prosecutor‟s comments about the dereliction of duty, about a hung jury
equating to no trial, and about a murder going unpunished, were made in the context of
the prosecutor‟s admonishment to the jury to not let a failure to agree on first degree
murder derail a verdict; a second degree verdict would suffice. Defendant likens these
remarks to the prosecutor‟s discredited jury pressure tactics found in People v. Pitts
(1990) 223 Cal.App.3d 606. In Pitts, the prosecutor told the jury that the defense needed
only one vote to block a conviction, and that if the prosecution persuaded only 11 jurors,
“ „[i]t wipes out six months [of trial], folks. It‟s as though it never existed.‟ ” (Id. at
p. 695, some capitalization omitted.) The challenged comments and context here do not
rise to the pressure level displayed in Pitts.

       Second, defendant faults the prosecutor‟s theme that this circumstantial case was
akin to a puzzle that could be solved by putting “all” the pieces together. This line of
argument did not approach that of the argument we deemed misconduct in People v.
Katzenberger (2009) 178 Cal.App.4th 1260, upon which defendant relies. In
Katzenberger, the prosecutor analogized the reasonable doubt standard to an eight-piece
slide show puzzle of the Statue of Liberty, telling the jurors after the sixth piece was in
place that the reasonable doubt standard was met. (Id. at pp. 1264, 1267.) The problem
with the argument in Katzenberger was that by using such a well-known image in such a
simple way—enabling some jurors to guess the image after only one or two pieces—the
argument effectively told the jurors the reasonable doubt standard could be met in an
obvious way with just a few pieces of evidence. (Id. at p. 1267.)

       Third, defendant maintains the prosecutor improperly analogized the finding of
premeditation and deliberation to the process of deciding whether to stop or go on a
yellow traffic light, thereby misstating the law on this issue. But the prosecutor used the
traffic light decisionmaking process simply as an example of how a cold, calculated




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judgment could be formed in a short period of time. As the prosecutor correctly
reminded the jury, it was “the extent of the reflection, not the time,” that mattered.

       Fourth, and finally, although the prosecutor unfortunately used the phrasing that
the defense had failed in its “proof” in this case (in noting the defense‟s failure to
challenge or dispute the prosecution‟s evidence), the prosecutor did so in the context of
also telling the jury, correctly, that “the judge has told you that the defense doesn‟t have
to prove anything, and that‟s absolutely true. We have to prove to you beyond a
reasonable doubt that the defendant committed this crime.”

                                    III. Custody Credit

       Both sides agree that because defendant was in presentence custody from
October 1, 2009, until March 18, 2011, he is entitled to 534 days of actual custody credit,
instead of the 524 days awarded. We will modify the judgment accordingly.

                                       DISPOSITION

       The judgment is modified to add 10 days of actual custody credit, for a total of
534 days. The trial court is directed to prepare an amended abstract of judgment to
reflect this modification and send a certified copy to the Department of Corrections and
Rehabilitation. As so modified, the judgment is affirmed.


                                                                BUTZ                     , J.


We concur:


         RAYE                       , P. J.



         NICHOLSON                  , J.


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