Filed 8/26/21 P. v. Solis CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

HENRY SOLIS,

Defendant and Appellant.

 B305541

 (Los Angeles County

 Super. Ct. No. BA434593)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Robert J. Perry, Judge. Affirmed.

Randy S. Kravis, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Roberta L. Davis and William H. 

Shin, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
2

A jury convicted Henry Solis of second degree murder after 

he fatally shot Salome Rodriguez outside a nightclub. Solis was a 

police officer, but he was not on duty at the time. At trial, Solis 

testified that Rodriguez and another man robbed

and sexually assaulted him earlier that night. According to 

Solis, he killed Rodriguez while trying to arrest him for those 

crimes. On appeal, Solis contends the trial court made several 

instructional errors and the prosecutor engaged in misconduct. 

He also asserts his counsel provided ineffective assistance for 

failing to request certain jury instructions and failing to object to 

the imposition of fines and fees. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Solis was charged by information with the first degree 

murder of Salome Rodriguez. (Pen. Code, § 187, subd. (a).)1 

It was further alleged that he personally and intentionally 

discharged a firearm causing great bodily injury and death. 

(§ 12022.53, subd. (d).)2

Prosecution Evidence 

The case was tried to a jury, and the prosecution presented 

evidence showing the following. 

The evening of March 12, 2015, Rodriguez and his 

coworker, Gene Garcia, drove to the Carnaval nightclub in 

downtown Pomona. Inside the club, Rodriguez met Monique 

Ortiz, who was working as a dancer. Rodriguez danced with 

Ortiz and her friends throughout the night. 

1 All undesignated statutory references are to the Penal 

Code. 

2 The information also alleged Solis committed assault with 

a firearm, but the court granted the People’s motion to dismiss 

the count during trial. 
3

Around 1:45 or 2:00 a.m., Rodriguez, Ortiz, and her friends 

left the club and went to a pizza place located in the same 

building. Rodriguez and Ortiz were flirting with each other. 

They stayed at the pizza place for about 30 or 40 minutes. 

Rodriguez walked Ortiz’s friend to her car before meeting 

up with Garcia, who was waiting outside Carnaval. Garcia drove 

them to a nearby parking lot and fell asleep. At some point 

Rodriguez got out of the car and started walking toward the pizza 

place, possibly to look for his missing wallet. 

Around this time, Solis was standing outside the Vive 

nightclub, which was located in the same building as the pizza 

place and Carnaval. Vive was an after-hours club, which 

generally stayed open until 3:00 a.m. 

Yerezmin Martinez, who was also standing outside Vive, 

thought Solis looked “dozed out,” and she asked if he was okay. 

They had a brief conversation, during which Solis said he had 

served in the military. Solis’s personality alternated between 

bubbly and aggressive. At one point, he put his hand near his 

back, around his waistline. Martinez felt “weird” and decided to 

end the conversation. 

A few moments later, Martinez saw Solis and Rodriguez 

running and shoving each other. It looked like Rodriguez was 

trying to get away. Solis pressed Rodriguez up against a car with 

one hand while holding a gun in his other hand. He pointed the 

gun at Rodriguez’s forehead, between his eyes. Solis and 

Rodriguez pushed off one another, and they started running. 

Martinez lost sight of them at that point. 

Dennis Kuntz, who lived in the area, was asleep and woke 

up to the sound of two men arguing. He heard one man say “why 

would you do that,” and another man fearfully respond, “I 
4

wouldn’t do that” or “I didn’t do that.” The second man then 

repeatedly said “no” in an incredibly fearful tone. Moments later, 

Kuntz heard four gunshots. 

Christopher Romero was collecting cans near Vive when he 

saw Solis cross the street and start talking to Rodriguez. It 

sounded like they were arguing, and Rodriguez seemed to be 

trying to get away from Solis. Solis pushed Rodriguez with both 

hands. Rodriguez started walking away, and Solis followed him. 

Both men stopped walking and got in each other’s face. 

Rodriguez swung his fist at Solis. A few minutes later, Solis—

who was standing—shot Rodriguez four times. Rodriguez started 

running away, but he eventually collapsed. 

A security guard found Rodriguez lying face down next to 

Garcia’s car. Rodriguez suffered gunshot wounds to the neck, 

abdomen, and thigh. He also suffered abrasions and scrapes to 

one of his knees. Rodriguez was transported to a hospital and 

underwent surgery, but he eventually died from his wounds. The 

coroner opined that one of the thigh wounds was fatal. 

After shooting Rodriguez, Solis had his roommate, Laura 

Rosales, pick him up in downtown Pomona. Solis told Rosales he 

had “fucked up,” killed somebody, and was going to kill himself. 

Solis quickly remarked that he was just kidding. Later, he told 

Rosales, “you’re never going to see me again.” Solis also told 

Rosales he was going to throw away his shirt. Rosales later 

found the shirt partially tucked into the rear bumper of her car. 

Around 5:00 a.m. on March 13, Solis hired a taxi to drive 

him around downtown Pomona, apparently to look for his car. 

They searched unsuccessfully for 45 minutes. Solis told the 

driver he had been in the Marines, and he was unhappy with how 
5

military veterans are treated. He said his friend recently 

committed suicide. 

Solis was photographed entering Mexico in the early 

morning of March 14. That same day, he called Rosales, asking if 

anyone was looking for him. He told her not to tell the police 

anything. With the help of U.S. federal agents, Mexican officials 

located Solis in Juarez and took him into custody on May 26, 

2015. He was extradited to the United States. 

A fully-loaded magazine for a Glock 42 firearm was 

discovered near where Rodriguez was shot. Police subsequently 

found in Solis’s room a receipt for the purchase of a Glock 42 

firearm and two magazines. The bullets recovered from 

Rodriguez’s body, however, had been fired from a different type of 

gun. Solis received such a gun as a gift from his uncle. 

Police discovered Solis’s car parked a few blocks from Vive. 

Inside the car, officers found handcuffs and a police service 

firearm loaded with a 17-round magazine. They also found a 

pass for a parking lot much closer to the nightclub. The pass was 

purchased the night of the shooting and was valid for 15 hours. 

The prosecution’s crime reconstruction expert opined that 

Rodriguez was shot first in the neck while standing and bent 

slightly forward. The second shot was to the abdomen, while he 

was turned away from the muzzle of the gun. The final two 

shots, which struck Rodriguez in the thigh, occurred while he was 

on the ground and on his knees. 

Defense Evidence 

Solis testified in his own defense. According to Solis, after 

serving in the military, he applied to be an officer in the Los 

Angeles Police Department. He eventually graduated from the 
6

academy and was assigned to the Devonshire station as a patrol

officer. 

Solis went to Vive around midnight on March 12. He 

carried an unholstered Glock 42 handgun in his back pocket. 

Solis was sitting at the bar when Rodriguez walked up to 

him and asked if he was a Norteño gang member. Solis said he 

was not and did not mean to offend anyone. He then bought 

drinks for Rodriguez and another man with him. 

Solis told Rodriguez he worked for his aunt’s interior 

design business. Rodriguez asked Solis if he was gay, and Solis 

responded, “Yes. I’m gay. I’m bi.” The man who was with 

Rodriguez remarked, “You’re going to have to sleep with him for 

that drink.” 

Solis finished his drink and went to the restroom, which 

was empty. He walked into the handicap stall and began to 

urinate. Solis heard footsteps and then someone struck him on 

the back of the head. He started to lose consciousness and ended 

up on his knees, pressed against the toilet. Solis turned around 

and saw Rodriguez pointing a gun at him. Solis felt someone 

searching his pants and then pull down his boxers. Solis 

screamed and unsuccessfully tried to get away. 

Rodriguez remarked that this was his turf, Solis was a 

Norteño, and Rodriguez was going to kill him if he saw him 

again. Solis felt a hard object being pushed up his rectum and he 

screamed. Rodriguez and the other person ran away. Solis 

pulled a beer bottle out of his rectum. He was in considerable 

pain, and noticed his wallet and gun were missing. 

Solis left the bathroom and asked if anyone had seen 

Rodriguez, but no one had. He left the club and walked around. 

He did not want to call the police because he was embarrassed 
7

and could not provide a helpful description of his attackers. He 

was also concerned they might run off if they heard police sirens. 

Solis went to his car and retrieved a single pair of

handcuffs and a five-shot revolver. He drove the car around the 

area looking for Rodriguez. He was dizzy, so he decided to park 

and walk around on foot. He then returned to Vive to see if there 

were security cameras that captured the assault. 

Solis was talking to Yerezmin Martinez outside Vive when 

he saw Rodriguez pass by. Solis followed him. Rodriguez 

eventually noticed Solis and asked him, “what the fuck are you 

doing here?” Solis told him, “I’m a Los Angeles Police Officer, 

and you’re under arrest for assault and robbery.” Rodriguez told 

him to “fuck off” and walked away. Solis pulled out his police 

badge, but Rodriguez continued to ignore him. 

Solis circled in front of Rodriguez, took out his revolver, 

and again told Rodriguez he was under arrest. Rodriguez started

walking toward a car. Solis sprinted after him, pushed him up 

against the car, and started patting him down. Rodriguez pushed 

him away. 

Solis asked “where’s the gun?” Rodriguez pulled out the 

Glock 42 and threw it underneath a car. The magazine popped 

out, and Solis kicked it away. Solis screamed, “someone please 

call the police.” He heard a man respond, “I’m calling the police,” 

and “the police are on their way.” 

Rodriguez offered to take Solis to his friend, who he 

claimed was responsible for the sexual assault. Solis refused and 

told Rodriguez to wait until the police arrived. Rodriguez instead 

walked away, and Solis followed him. Solis repeatedly demanded 

Rodriguez stop walking and said he would shoot if Rodriguez 

reached for anything. 
8

Solis pulled his cellphone out of his pocket with his right 

hand while holding the revolver in his left hand. At that point, 

Rodriguez approached Solis and tried to punch him. Rodriguez 

then grabbed Solis’s left hand and attempted to take the revolver. 

Solis switched the revolver to his right hand, and Rodriguez tried 

to grab his right arm. Solis aimed the revolver at Rodriguez’s leg 

and fired. He did not want to kill Rodriguez. 

Rodriguez “bull rushed” Solis, who pulled the trigger a 

second time. Solis fell to the ground on his back. Rodriguez, still 

standing, moved to the left side of Solis’s body and lifted his leg, 

preparing to stomp Solis in the head. Solis feared for his life, 

thinking the kick would either kill him or he would lose his 

weapon and Rodriguez would shoot him. When asked at trial 

why he was afraid, Solis responded, “I don’t think I have the 

words. I was afraid.” 

Solis quickly fired two shots toward Rodriguez’s leg. 

Rodriguez turned and ran away. Solis got up and ran the other 

direction. 

Solis did not stay at the scene because he was ashamed and 

embarrassed. He was concerned that he would be treated as a 

pariah because of the anti-police rhetoric at the time. He also did 

not think the police would believe him, so he decided to flee to 

Mexico. 

In addition to Solis’s testimony, the defense presented 

evidence that Rodriguez told someone in the pizza place that he 

planned to go to Vive later that night. The defense also 

presented testimony from a crime reconstruction expert who 

opined it was impossible to tell with certainty what position 

Rodriguez was in when he was shot in the thigh. The expert 
9

could not rule out the possibility that Solis was on the ground 

shooting up at Rodriguez. 

Verdict and Sentence

The jury convicted Solis of second degree murder and found 

true the firearm enhancement. The court sentenced him to 15 

years to life for the murder, plus a consecutive 25 years to life for 

the firearm enhancement. The court imposed various fines and 

fees without objection. Solis appealed. 

DISCUSSION

I. Defense Counsel Did Not Provide Ineffective 

Assistance by Failing to Request Jury Instructions 

on Antecedent Threats/Harm

Solis contends his counsel rendered ineffective assistance 

by failing to request the jury be instructed they could consider 

Rodriguez’s alleged assault when determining whether Solis 

acted in self-defense. We disagree. 

The trial court instructed the jury with CALCRIM Nos. 505 

and 571, which concern perfect and imperfect self-defense. Both 

instructions informed the jury that self-defense has a subjective 

component: the defendant must actually believe (1) he was in 

imminent danger of being killed or suffering great bodily injury, 

and (2) the immediate use of deadly force was necessary to defend 

against the danger. The instructions also informed the jury that 

perfect self-defense has an objective component: the defendant’s 

beliefs must be reasonable. The instructions told the jurors to 

“consider all the circumstances” as they were known and 

appeared to the defendant when evaluating his beliefs. 

Among the circumstances a jury may consider when 

evaluating a defendant’s beliefs are prior threats or assaults by 

the victim, which are often referred to as antecedent 
10

threats/harm. (People v. Minifie (1996) 13 Cal.4th 1055, 1065.) 

The model CALCRIM instructions on self-defense include 

optional language regarding antecedent threats/harm. The 

optional language in CALCRIM No. 505, for example, states: 

“If you find that [the decedent] threatened or harmed the 

defendant [or others] in the past, you may consider that

information in deciding whether the defendant’s conduct and 

beliefs were reasonable.” The optional language in CALCRIM 

No. 571 similarly states: “If you find that [the decedent]

threatened or harmed the defendant [or others] in the past, you 

may consider that information in evaluating the defendant’s 

beliefs.” The trial court did not instruct the jury with this 

optional language; nor did defense counsel request such 

instructions. 

As Solis concedes, the trial court did not have a sua sponte 

duty to instruct the jury with the optional antecedent 

threats/harm language. (See People v. Garvin (2003) 110 

Cal.App.4th 484, 489.) This is because the standard CALCRIM 

instructions on self-defense are legally correct, and the concept of 

antecedent threats/harm is fully consistent with the general 

principles expressed in them. As a result, an instruction on 

antecedent threats/harm is essentially a clarifying instruction, 

which must be given only if requested by a party. (Ibid.) 

Aware of this authority, Solis contends his counsel 

rendered ineffective assistance by failing to request the clarifying 

instructions, which were necessary to allow the jurors to connect 

the prior assault with his state of mind and the objective 

reasonableness of his fear. To prevail on a claim of ineffective 

assistance of counsel, a defendant must establish two elements: 

(1) counsel’s representation fell below an objective standard of 
11

reasonableness; and (2) there is a reasonable probability that, but 

for counsel’s errors or omissions, a determination more favorable 

to the defendant would have resulted. (Strickland v. Washington

(1984) 466 U.S. 668, 690, 694; see People v. Holt (1997) 15 Cal.4th 

619, 703.)

We need not decide whether counsel’s failure to request the 

clarifying instructions fell below an objective standard of 

reasonableness because there is no reasonable probability that, 

had the court given the instructions, a determination more 

favorable to Solis would have resulted. 

The issue of self-defense did not turn on a dispute over 

Solis’s beliefs. Rather, it essentially came down to which version 

of events the jurors believed. If they believed Solis’s testimony 

that Rodriguez resisted arrest, reached for his gun, tackled him, 

and then prepared to stomp on his head, it is inconceivable that 

they would have concluded Solis did not reasonably fear for his 

life and believe the use of deadly force was necessary. This is 

true even without factoring in the effect of the alleged prior 

assault. If, on the other hand, the jurors believed the 

prosecution’s theory that Solis shot Rodriguez while on his knees, 

there is little doubt they would have found Solis did not 

reasonably fear for his life or believe deadly force was necessary. 

Both defense counsel and the prosecution seemed to recognize 

this, as neither spent significant time challenging or bolstering 

Solis’s beliefs, either while examining him or during their closing 

arguments. Instead, both focused on which version of events was 

true. The antecedent threats/harm instructions would not have 

assisted the jurors in making that determination. 

In any event, the jury was instructed to consider “all the 

circumstances” as they were known and appeared to Solis when 
12

evaluating his beliefs. Given Solis’s testimony that the alleged 

assault occurred in close proximity to, and was the motivating 

force behind, the subsequent deadly confrontation, there is little 

doubt the jurors would have considered it when determining 

whether he actually and reasonably feared for his life and 

believed the use of deadly force was necessary. (See People v. 

Gonzales (1992) 8 Cal.App.4th 1658, 1665 [“The concept [of 

antecedent harm] is closer to rough and ready common sense 

than abstract legal principle.”].) As a result, there is no 

reasonable probability that, had the court given the instructions, 

a determination more favorable to Solis would have resulted. 

Solis did not receive ineffective assistance of counsel. 

II. The Court Did Not Prejudicially Err by Instructing 

the Jury with CALCRIM No. 3471

Solis argues the trial court erred by instructing the jury 

with CALCRIM No. 3471, which concerns the availability of selfdefense where there is mutual combat or the defendant is the 

initial aggressor. We find no reversible error. 

A. Background

The prosecutor requested the trial court instruct the jury 

with CALCRIM No. 3471, to which Solis objected. The court 

asked if there was evidence of mutual combat, and the prosecutor 

responded that she intended to argue only that Solis was the 

initial aggressor. The trial court overruled Solis’s objection and 

instructed the jury as follows: 

“A person who engages in mutual combat or who starts a 

fight has a right to self-defense only if: 

1. He actually and in good faith tried to stop fighting; 

AND 
13

2. He indicated, by word or by conduct, to his opponent in a 

way that a reasonable person would understand, that he 

wanted to stop fighting and that he had stopped 

fighting;

AND 

3. He gave his opponent a chance to stop fighting. 

If the defendant meets these requirements, he then had a 

right to self-defense if the opponent continued to fight. 

However, if the defendant used only non-deadly force, and 

the opponent responded with such sudden and deadly force 

that the defendant could not withdraw from the fight, then 

the defendant had the right to defend himself with deadly 

force and was not required to try to stop fighting or 

communicate the desire to stop to the opponent, or give the 

opponent a chance to stop fighting. 

A fight is mutual combat when it began or continued by 

mutual consent or agreement. That agreement may be 

expressly stated or implied and must occur before the claim 

to self-defense arose.”

B. Relevant Law

“A trial court must instruct the jury on every theory that is 

supported by substantial evidence, that is, evidence that would 

allow a reasonable jury to make a determination in accordance 

with the theory presented under the proper standard of proof.” 

(People v. Cole (2004) 33 Cal.4th 1158, 1206.) As a corollary to 

this rule, “[i]t is error to give an instruction which, while correctly 

stating a principle of law, has no application to the facts of the 

case.” (See People v. Guiton (1993) 4 Cal.4th 1116, 1129.) The 

reason is that extraneous instructions may confuse or mislead 

the jury. (People v. Jackson (1954) 42 Cal.2d 540, 546–547.) 
14

We independently review whether there was substantial evidence 

to support a jury instruction. (People v. Cole, supra, 33 Cal.4th at 

p. 1206.) 

C. Analysis

Solis contends the court erred by instructing the jury with 

CALCRIM No. 3471 because there was no evidence of mutual 

combat, nor was there evidence showing he was the initial 

aggressor. We consider his mutual combat and initial aggressor 

arguments separately. 

1. Mutual Combat 

Solis first contends there was no evidence showing he and 

Rodriguez engaged in mutual combat.3 The Attorney General 

implicitly concedes the point, and we agree with Solis. (See 

People v. Nguyen (2015) 61 Cal.4th 1015, 1044 [mutual combat 

requires a preexisting mutual intention to engage in hostilities].) 

Nonetheless, we find the error harmless. 

When the court gives an instruction that correctly states a 

principle of law, but has no application to the facts of the case, 

reversal is required only if it is reasonably probable the result 

would have been more favorable to the defendant had the error 

not occurred.4 (People v. Guiton, supra, 4 Cal.4th at pp. 1129–

3 We reject the Attorney General’s suggestion that Solis 

forfeited this issue by failing to request the court modify the 

instruction to delete any reference to mutual combat. Solis 

objected to the entire instruction, which was sufficient to 

preserve the issue for appeal. 

4 We reject Solis’s arguments that the error was of 

“constitutional dimensions” because it diminished the 

requirement of proof beyond a reasonable doubt, violated his 
15

1130.) Prejudice is not assumed, but must be affirmatively 

demonstrated. (Id. at p. 1129.) 

Here, it is not reasonably probable the jury erroneously 

applied the mutual combat language or was confused by it. 

In requesting the CALCRIM No. 3471 instruction, the prosecutor 

represented that she intended to argue only that Solis was the 

initial aggressor. Consistent with this representation, the 

prosecution did not refer to mutual combat at any point during 

closing arguments. The instruction, moreover, clearly defined the 

concept, so there was little risk the jury would apply it using a 

lay definition or understanding. (Cf. People v. Ross (2007) 155 

Cal.App.4th 1033, 1054 [mutual combat instruction was 

prejudicial error where the term was not defined for the jury].) 

The court also instructed the jurors that some of its instructions 

might not be applicable, depending on their factual findings. 

We presume the jurors followed the court’s instruction. 

(See People v. Frandsen (2011) 196 Cal.App.4th 266, 278 [“the 

jury is presumed to disregard an instruction if the jury finds the 

evidence does not support its application”].) Under these 

circumstances, it is not reasonably probable the result would 

have been more favorable to Solis had the court not instructed 

the jury on mutual combat. 

2. Initial Aggressor

Solis argues the trial court erred by instructing the jury 

with the initial aggressor language in CALCRIM No. 3471. 

He acknowledges there is evidence showing he pursued and 

pointed a firearm at Rodriguez prior to the shooting. He insists, 

however, his actions were lawful because he was acting as a law 

right to a fair trial, and deprived him of a meaningful opportunity 

to present a complete defense. The error did no such things.
16

enforcement officer and attempting to arrest Rodriguez for an 

earlier robbery and assault. 

Contrary to Solis’s suggestions, the jury was not compelled 

to find he was attempting to arrest Rodriguez as a law 

enforcement officer. Even assuming Solis was robbed and 

assaulted in the manner he described (which is far from clear), it 

defies rational explanation why he would then single-handedly 

pursue and attempt to arrest two men he knew to be armed and 

dangerous, rather than reporting the crimes to the police and 

requesting backup. Just as perplexing was his decision to 

retrieve only a single pair of handcuffs and arm himself with a 

five-shot revolver, rather than his service weapon that was 

loaded with a 17-round magazine. That Solis was acting as a law 

enforcement officer was further contradicted by testimony from 

multiple witnesses who observed him shove and argue with

Rodriguez before the shooting. It was also undisputed that Solis

subsequently fled to Mexico, hid evidence, and tried to dissuade a 

witness from cooperating with police. In light of this evidence, 

the jury could have reasonably rejected Solis’s testimony that he 

was attempting to arrest Rodriguez, and instead concluded he 

confronted Rodriguez for some other, unlawful purpose. 

Solis alternatively suggests the court should not have given 

the initial aggressor instruction because it was inconsistent with 

the parties’ factual theories of the case. According to Solis, the 

jury must have either concluded he targeted Rodriguez for 

murder, as the prosecution claimed, or that he acted in selfdefense after lawfully attempting to arrest Rodriguez, as he 

claimed. Solis contends this leaves no room for a finding that he 

would have been entitled to self-defense but for the fact that he 

was the initial aggressor. 
17

In making this argument, Solis overlooks that the jurors 

were not required to wholly accept or reject either party’s factual 

theory of the case; they were free to take bits and pieces from 

each, or concoct an entirely new theory so long as it found 

sufficient support in the evidence and instructions. In fact, 

during deliberations, the jury asked the court to clarify this 

precise issue. Based on the evidence presented at trial, the jurors 

could have reasonably concluded Solis lied about attempting to 

lawfully arrest Rodriguez, yet told the truth about Rodriguez 

tackling him and attempting to stomp his head. If so, whether 

Solis was the initial aggressor was a key issue for the jury to 

decide. In light of this possibility, the court properly instructed 

the jury with the initial aggressor portion of CALCRIM No. 3471. 

III. The Court Properly Instructed the Jury with 

CALCRIM No. 3472

Solis argues the trial court erred by instructing the jury 

with CALCRIM No. 3472 as follows: “A person does not have the 

right to self-defense if he provokes a fight or quarrel with the 

intent to create an excuse to use force.”5 

Solis contends this instruction was superfluous because 

there is no evidence showing he provoked a fight or quarrel with 

Rodriguez. Not so. Multiple witnesses testified that Solis 

pursued Rodriguez, argued with him, repeatedly pushed him, and 

5 We agree with the Attorney General that Solis forfeited 

this issue by failing to object to the instruction in the trial court. 

(People v. Frandsen, supra, 196 Cal.App.4th at p. 278 [defendant 

forfeited argument that CALCRIM No. 3472 instruction was not 

supported by substantial evidence by failing to object in trial 

court].) Nonetheless, we will consider the merits of his argument 

in order to forestall his derivative ineffective assistance of counsel 

claim. 
18

pointed a firearm at him. From this, a reasonable juror could 

conclude Solis provoked a fight with Rodriguez with the intent to 

create an excuse to use force. (See People v. Eulian (2016) 247 

Cal.App.4th 1324, 1334 [evidence that the defendant screamed, 

jabbed his finger repeatedly towards the victim’s face, and threw 

kibble in her direction was sufficient to warrant CALCRIM No. 

3472 instruction].) 

Solis alternatively argues the instruction was unwarranted 

given he was acting as a law enforcement officer, and the parties’ 

factual theories of the case left no room for a finding that he was 

not entitled to self-defense. These are essentially the same 

arguments Solis raised in connection with the initial aggressor 

language in CALCRIM No. 3471, and we reject them for the same 

reasons discussed above. 

IV. The Prosecutor Did Not Engage In Misconduct

Solis contends the prosecutor engaged in misconduct by 

trivializing the protections afforded to criminal defendants, 

improperly playing on the jurors’ sympathies for Rodriguez, and 

shifting the burden of proof.6 Specifically, he complains about the 

following remarks the prosecutor made during closing argument: 

“Did [Solis] keep that rule of law in mind? At the end of the 

day, what did he do to Mr. Rodriguez? Accused him of a 

6 We agree with the Attorney General that Solis forfeited his 

prosecutorial misconduct claims by failing to object at trial. (See 

People v. Tully (2012) 54 Cal.4th 952, 1037–1038 [“Ordinarily, 

the failure to object specifically on grounds of misconduct and to 

seek an admonition forfeits the claim unless an admonition would 

not have cured the harm.”].) Nonetheless, we will consider the 

merits of his arguments to forestall his derivative ineffective 

assistance of counsel claim. 
19

crime. ‘I can’t believe you would.’ Followed him 

relentlessly, pursued him, and shot him dead.

“[Solis] robbed the system of [the] presumption [of 

innocence] that we have given to him since January 6th. 

He robbed Mr. Rodriguez of that presumption that Mr. 

Rodriguez was entitled to as one of us, as a citizen of this 

country. If you genuinely, genuinely in your heart believe 

that this man assaulted you, that this man robbed you, that 

this man sodomized you, your job was to put it in before [] a 

jury.

“[¶] . . . [¶] 

“But you know what we . . . have given [Solis] for the last 

week since we started this trial? We gave him a process. . . 

. [¶] We gave him a fair trial. And after this [court 

reporter] has typed every single word we’ve spoken and 

after this judge has ruled on every objection, we hand it 

over to you. That’s our system of justice. . . . We give him 

what we gave him in this case, what he never gave 

Rodriguez, we give him a process and a fair trial. [¶] I ask 

you to do what is right by this evidence. Do justice by this 

evidence . . . and find the defendant guilty of murder . . . in 

the first degree.”

When a claim of misconduct is based on the prosecutor’s 

comments before the jury, “ ‘the question is whether there is a 

reasonable likelihood that the jury construed or applied any of 

the complained-of remarks in an objectionable fashion.’ ” (People 

v. Smithey (1999) 20 Cal.4th 936, 960.) We will not “ ‘ “lightly 

infer” that the jury drew the most damaging rather than the least 
20

damaging meaning from the prosecutor’s statements. 

[Citation.]’ ” (People v. Wilson (2005) 36 Cal.4th 309, 337–338.) 

Here, it is not reasonably probable the jurors understood 

the prosecutor’s comments in the manner Solis suggests. The 

prosecutor made the remarks while arguing there was no 

justification for Solis shooting and killing Rodriguez. In that 

context, it is clear the prosecutor intended to convey that, even if 

Solis were the victim of a crime, he was nonetheless an 

overzealous vigilante who unlawfully took justice into his own

hands. This was a fair comment on the evidence and well within 

the wide latitude given to prosecutors during closing argument. 

(See People v. Harrison (2005) 35 Cal.4th 208, 244 [“The 

[prosecutor’s] argument may be vigorous as long as it is a fair 

comment on the evidence, which can include reasonable 

inferences or deductions to be drawn therefrom.”].) There is no

significant risk the jurors construed or applied the comments in 

some other, objectionable manner. 

Solis’s reliance on United States v. Mikhel (9th Cir. 2018) 

889 F.3d 1003 (Mikhel), United States v. Mitchell (9th Cir. 2007) 

502 F.3d 931 (Mitchell), and Kirkpatrick v. Blackburn (5th Cir. 

1985) 777 F.2d 272 (Kirkpatrick), is misplaced. In those cases, 

the prosecutors made remarks similar to the ones the prosecutor 

made here, but they did so while arguing for the imposition of the 

death penalty. (See Mikhel, at pp. 1055–1056; Mitchell, at p. 995; 

Kirkpatrick, at p. 283.) In that context, the comments were 

wholly irrelevant to the issues before the juries, and the only 

reasonable interpretations of them were improper. Here, the 

prosecutor’s remarks were a fair comment on the evidence 

concerning a key issue in the case: whether Solis was acting as a 

law enforcement officer when he pursued and shot Rodriguez. 
21

Given this distinction, Mikhel, Mitchell, and Blackburn are of no 

help to Solis. 

V. Solis Has Not Shown His Counsel Provided 

Ineffective Assistance By Failing to Object to the 

Fines and Fees

Solis contends his counsel provided ineffective assistance 

by failing to object to the court’s imposition of a $300 restitution 

fine (§ 1202.4), a stayed $300 parole revocation fine (§ 1202.45), a 

$40 court operations assessment (§ 1465.8), and a $30 criminal 

conviction assessment (Gov. Code, § 70373). According to Solis, 

his counsel should have requested the court first determine 

whether he had the ability to pay the fines and fees. We 

disagree. 

To prevail on a claim of ineffective assistance of counsel, a 

defendant must establish two elements: (1) counsel’s 

representation fell below an objective standard of reasonableness; 

and (2) there is a reasonable probability that, but for counsel’s 

errors or omissions, a determination more favorable to the 

defendant would have resulted. (Strickland v. Washington, 

supra, 466 U.S. at pp. 690, 694; see People v. Holt, supra, 15 

Cal.4th at p. 703.) If the record fails to disclose why trial counsel 

acted or failed to act in the manner challenged, the ineffective 

assistance of counsel claim must be rejected unless counsel was 

asked for, and failed to provide, an explanation or there could be 

no plausible explanation. (People v. Pope (1979) 23 Cal.3d 412, 

426, overruled on another ground in People v. Berryman (1993) 

6 Cal.4th 1048, 1081, fn. 10.)

Here, the record does not disclose why counsel declined to 

object to the fines and fees, and counsel was not asked to provide 

an explanation. Moreover, we can conceive at least one plausible 
22

explanation for counsel’s failure to object: he was aware that 

Solis had the ability to pay the relatively modest fines and fees. 

Solis, after all, had retained private counsel to represent him at

the lengthy trial and sentencing. Because we can conceive a 

plausible explanation for counsel’s failure to object, we reject 

Solis’s claim that he received ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

OHTA, J.*

We concur:

GRIMES, Acting P. J.

STRATTON, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.