Filed 12/10/20 P. v. Mireles CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANK MIRELES,

Defendant and Appellant.

F077349

(Fresno Super. Ct. No. F12905015)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:

It is hereby ordered that the opinion filed herein on November 24, 2020, be modified as 

follows:

1. On page 3, in the second sentence of the third paragraph, the word stepdaughter is 

replaced with daughter so that the sentence now reads: Rodriguez shared custody of his 18-yearold stepson and 12-year-old daughter with Ms. Perez.

This change requires modification of all subsequent references to stepdaughter to 

daughter.

2. All references to stepchildren shall be modified to children.

3. All references to stepfather shall be modified to father.

Except for the modifications set forth above, the opinion previously filed remains 

unchanged. This modification does not effect a change in the judgment.

POOCHIGIAN, J.

WE CONCUR:
2.

HILL, P.J.

SMITH, J.
Filed 11/24/20 P. v. Mireles CA5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANK MIRELES,

Defendant and Appellant.

F077349

(Fresno Super. Ct. No. F12905015)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, 

Judge.

Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and 

Kimberly A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Appellant and defendant Frank Mireles was charged and convicted of murdering 

his friend, Jose “Tony” Rodriguez, after stealing property from his house, and his 

conviction is supported by substantial evidence. On July 6, 2012, Rodriguez’s family 

found his body lying on the floor of the den in his house, just four hours after they had 

left him. Rodriguez had been repeatedly hit in the head with a ball-peen hammer and 

died from multiple blunt force injuries. The bloody hammer that contained Rodriguez’s 

DNA was found hidden between the mattress and box spring in the master bedroom.

Rodriguez’s neighbor reported that defendant Frank Mireles, a mutual friend, was 

the last person seen at the house as Rodriguez’s family left. A short time after Rodriguez 

was murdered, defendant drove to his brother’s home, and his girlfriend saw him throw a 

bag into a trashcan; the bag contained property taken from Rodriguez’s house. Defendant 

and his girlfriend returned to their apartment, and defendant threw away his blood-stained 

pants and shoes in a garbage dumpster; Rodriguez’s DNA was on the pants and shoes. 

The dumpster also contained more of Rodriguez’s property. The day after the murder, 

defendant went to the “Gold Rush” store and sold jewelry taken from Rodriguez’s house.

When defendant was initially questioned by the police, he said everything was fine 

when he left Rodriguez’s house, and he did not know who would kill him. After he was 

arrested for the murder, defendant claimed Rodriguez gave him some property to try and 

sell for him. He said he briefly left Rodriguez’s house and found Rodriguez’s body when 

he returned. He claimed to hear people talking in the house and fled and threw away his 

bloody clothes and some of the property Rodriguez gave him to sell because he did not 

want to get involved.

Defendant was charged and convicted of first degree felony murder based on 

residential burglary, with a felony-murder special circumstance also based on burglary. 

He was sentenced to life in prison without the possibility of parole.
3.

On appeal, defendant argues his conviction for first degree felony murder and the 

felony-murder special circumstance must be reversed because of insufficient evidence of 

burglary, since he was invited into Rodriguez’s house, and there was no evidence he 

intended to steal anything when he entered the house. Defendant further argues the court 

failed to give the required instructions on the felony-murder special circumstance, and the 

instructions that were given violate the federal and state Constitutions.

We will order the parole revocation fine stricken and otherwise affirm.

FACTS

Tony Rodriguez and his former wife, Angie Perez, lived in separate homes and 

had a good relationship. Rodriguez shared custody of his 18-year-old stepson and 12-

year-old stepdaughter with Ms. Perez. The children regularly stayed with Rodriguez at 

his house in Sanger.

Rodriguez’s house had a master bedroom, a separate bedroom for his 

stepdaughter, and a den. When the children stayed with him, Rodriguez slept in the den 

so that his son could use the master bedroom. The house also had a “backroom” that was 

like a workshop, where Rodriguez stored things in plastic containers and boxes stacked 

up in the room. Rodriguez usually hung around with his friends in the 

backroom/workshop.

Rodriguez was going to turn the back room/workshop into a bedroom for his 

stepson. However, Rodriguez was having financial problems and was afraid he was 

going to lose his house.

Steven Camacho and his grandfather lived next door to Rodriguez. Camacho and 

Rodriguez were good friends and often got together at each other’s homes.

About two years before the homicide, Rodriguez introduced Camacho to 

defendant. Camacho, Rodriguez, and defendant became friends and hung out at each 

other’s homes. Camacho and Rodriguez never had any problems with defendant. Ms. 

Perez and the children knew defendant and that he was Rodriguez’s friend.
4.

Javier Harvey Davila, Rodriguez’s friend and another neighbor, also knew 

defendant. Davila occasionally used methamphetamine with Rodriguez and defendant. 

Davila testified Rodriguez had sold methamphetamine in the 1990s, but he was not 

selling drugs at the time of the murder. Davila testified that shortly before the homicide, 

Rodriguez said he was getting tired of defendant showing up at his house all the time.

Davila had known defendant since they were in school, and they worked together 

at a lumber company. Davila testified defendant had a temper and got mad easily, based 

on experiences when they worked together. Defendant lost his job when he crashed a 

forklift into a garage door and failed a drug test. Defendant had financial problems and 

lost his house.

Camacho testified that at the time of the homicide, defendant was going through a 

divorce. He was looking for a job and was having financial problems; he lost his house 

and needed to find another place to live. Defendant was living with his girlfriend in 

Visalia.

THE DAY OF THE HOMICIDE

Rodriguez’s two stepchildren spent the night of July 5, 2012, at Rodriguez’s 

house. On the morning of July 6, 2012, they had breakfast together. Rodriguez went into 

the backyard and started to mow the lawn. Rodriguez was meticulous about keeping up 

the house and yard. The stepson testified Rodriguez always put away the lawnmower 

when he was finished with it. Both children testified no one came to the house while they 

were with Rodriguez. Camacho noticed Rodriguez’s stepchildren were at Rodriguez’s 

house.

Around 1:00 p.m., Rodriguez sent a text message to his brother-in-law that said: 

“... I might have [to] get out of here sooner than I thought so I’ll be talking to you about 
5.

leaving some things over there just till I get back on my feet if it’s okay?” His brother-inlaw replied, “No prob.”1

Defendant arrives at Camacho’s house

Also, on July 6, 2012, defendant called Camacho and asked if he could stop by his 

house to use his computer to look for a job. Defendant said he also wanted to see 

Rodriguez, but he could not reach him. Camacho called Rodriguez and told him that 

defendant wanted to see him, but defendant was going to hang out at Camacho’s house 

first.

Sometime around 3:00 p.m., defendant parked a white pickup in front of 

Rodriguez’s house and went into Camacho’s house. Defendant was wearing a black Tshirt, blue jeans, and running shoes.

Camacho testified that while defendant was at his house, defendant charged his 

cell phone, used the computer, and asked Camacho if he could borrow $20 for gasoline. 

He also asked whether Camacho could get him a line or two of crystal methamphetamine. 

Camacho testified that he used to deal drugs and served time, but he was not involved in 

that anymore and told defendant he could not help him. As for the money, he told 

defendant that he had to check his wallet and see how much he had. Camacho and 

defendant got along fine, and they did not argue.

Defendant goes to Rodriguez’s house

Camacho testified that after defendant had been at his house for about one hour, he 

told defendant to leave. Camacho explained a friend was going to drive over and take 

Camacho on some errands, and he had to clean up. Camacho believed that it was around 

1 Defendant later claimed that Rodriguez was packing up boxes in his 

backroom/workshop that day and worried about what to do with his possessions when he 

moved out of his house. Defendant said he offered to help him sell the items, and 

Rodriguez gave him some jewelry and loaded some boxes from the backroom/workshop 

into defendant’s truck.
6.

4:00 p.m. when defendant took his cell phone, left Camacho’s house, and walked to 

Rodriguez’s house.

Just three or four minutes after defendant left, Camacho was about to get into the 

shower when defendant called and asked if he left his keys there; Camacho said no.2 

Camacho testified defendant asked him not to leave on his errands until they talked again, 

because defendant needed to borrow money for gasoline to get home. Defendant said he 

was going to try to get the money from his brother.

Ms. Perez picks up the children

It was also around 4:00 p.m. when Ms. Perez arrived at Rodriguez’s house to pick 

up the children because they planned to see a movie in Fresno. She sent a text message 

to the children that she was there and waiting in her car. The two children left 

Rodriguez’s house and got into their mother’s car. Rodriguez went outside and talked 

with Ms. Perez through her open car window.

In the meantime, Camacho finished his shower, and his grandfather gave him a 

message that Rodriguez wanted to talk to him. Camacho went outside to look for 

Rodriguez. Camacho saw Ms. Perez’s car, and Rodriguez was leaning into the window 

and talking to her. Camacho also saw defendant standing on the front porch of 

Rodriguez’s house.3 Camacho tried to get Rodriguez’s attention to ask what he wanted. 

Rodriguez held up his hand and indicated he wanted to keep talking to Ms. Perez. 

Camacho went back into his own house.

2 At trial, Camacho testified defendant asked if he left his charger at the house and 

not about his keys. However, Camacho told an officer that defendant called about his

keys.

3 The officer who interviewed Camacho after the homicide testified that Camacho 

never mentioned that he saw defendant standing in front of Rodriguez’s house when 

Rodriguez was talking with Ms. Perez.
7.

After Ms. Perez and Rodriguez talked, Ms. Perez drove away and took the 

children to the movie theater in Fresno. Ms. Perez and the children testified they did not 

see anyone else at the house when they left.

At 4:29 p.m., Rodriguez sent a text message to Ms. Perez that she looked nice, 

referring to when he saw her; she replied thanks. Rodriguez did not send any more 

messages from his phone.

Defendant leaves Rodriguez’s house

Camacho testified he was inside his house and saw Ms. Perez drive away. 

Defendant called him again and said he did not need to borrow money anymore. 

Camacho did not hear any screaming or yelling from Rodriguez’s house.

At 4:55 p.m., Rodriguez’s stepdaughter sent a text message to Rodriguez’s cell 

phone and said she was at the movie theater. He did not reply.

Sometime before 5:30 p.m., Camacho was still inside his house when he heard the 

sound of defendant’s truck starting. He looked outside and saw the white truck leaving 

the area.

At 5:30 p.m., after defendant left in his truck, Camacho’s friend arrived, and 

Camacho went on errands with her.

At 5:31 p.m., Rodriguez’s brother sent a message to Rodriguez’s cell phone and 

asked where he was. Rodriguez did not respond.

At 7:23 p.m., defendant sent a text message to Rodriguez’s cell phone that he 

would stop by tomorrow. There was no reply.

4

Rodriguez’s children discover his body

Around 8:00 p.m., Ms. Perez left the movie theater and drove the children back to 

Rodriguez’s house in Sanger. At 8:15 p.m., the stepdaughter sent text messages to 

4 Defendant later admitted that he knew Rodriguez was dead when he sent this text 

message.
8.

Rodriguez to tell him that they were on their way back. Rodriguez did not respond, and 

that was not normal for him.

When Ms. Perez arrived at Rodriguez’s house, the family noticed there were no 

lights on outside, which was unusual. The children got out of the car, the stepson 

unlocked the front door, and they went inside. Ms. Perez waited in her car because the 

stepson was going to get his things and stay overnight with her. She also wanted to make 

sure everything was okay.

The stepdaughter testified she went into the house and it was also dark inside. She 

went into the den, found Rodriguez lying on the floor, and saw blood. She yelled for her 

brother to help. He went into the den and realized Rodriguez was not moving. They both 

yelled at Rodriguez to wake up, but he did not respond.

Ms. Perez testified the children had been in the house for about two minutes when 

the stepdaughter ran out; she looked scared. The stepdaughter said Rodriguez was on the 

floor and he was not responding. Ms. Perez ran into the house and found Rodriguez lying 

on the floor of the den. There was blood all over his face and the floor. She tried to take 

his pulse, and realized his body was cold, and he was dead. She told her son to take his 

sister outside, and she called 911. She noticed the curtains were closed in front of the 

den’s sliding glass door, and the door was locked.

The initial investigation

Around 8:38 p.m., paramedics received a dispatch to respond to Rodriguez’s 

house. When they arrived, they found Ms. Perez and the distraught children outside. The 

paramedics entered the house and confirmed Rodriguez was dead. Officers from both the 

Sanger Police Department and Fresno County Sheriff’s Department also arrived. A 

paramedic reported that Rodriguez was dead and appeared to have been beaten with a 

hammer.
9.

The officers asked Ms. Perez if there was anything unusual about the house. Ms. 

Perez said the backdoor was open two to three inches, and the window in the 

stepdaughter’s bedroom was also open.

The murder scene

Rodriguez’s body was lying in a pool of blood on the floor of the den. There was 

blood spatter emanating from Rodriguez’s head. There was one area directly above his 

head where there was no spatter, that indicated something might have been in the way of 

the blood spatter, but it had been removed. There was a large amount of blood and 

spatter on the den’s floor, a couch, and other objects in the room.

Rodriguez was still in possession of his wallet and cell phone.

There were no lights on in the den, but the television was on. There were two 

water bottles in the den.

There were drops of blood in the kitchen, by the kitchen sink, the bedroom 

hallway, the hallway wall, a blanket in the master bedroom, and what appeared to be 

blood on the window of the stepdaughter’s bedroom, consistent with someone walking 

into those areas and leaving blood behind. The window was open in stepdaughter’s

bedroom; she said she had not opened the window.

A loaded .380-caliber handgun was on top of a china cabinet in the dining room, 

and two magazines of ammunition were in the kitchen.5

A lawnmower was in the middle of the backyard. It appeared as if someone had 

stopped mowing the lawn and left it there.

A trash can on the back patio contained a cigarette butt and a pack of Marlboro 

cigarettes. There were cigarette butts inside a can of beer in the backyard, and ash on top 

5 Ms. Perez testified the handgun belonged to Rodriguez, and he also kept a rifle 

in the house. The investigation did not connect the gun to defendant or the homicide in 

any way. 
10.

of the can. The police found five Marlboro cigarette butts on the curb in front of 

Rodriguez’s house, where Camacho had seen defendant’s truck parked.

Camacho and Ms. Perez testified Rodriguez did not smoke cigarettes. Camacho 

testified defendant smoked menthol cigarettes that were either Marlboro or Newport 

brands.

Rodriguez’s fatal injuries

Rodriguez was killed from blunt force injuries to his head, consistent with being 

hit with a hammer. He had a skull fracture in the center of his forehead. There were 

depressed skull fractures inflicted with great force in the right and left temporal bone 

areas, and the back portion of the head above the ear. The force used to inflict the skull 

fractures resulted in lacerations and bleeding inside the brain.

There was dried blood on Rodriguez’s face and head, and trauma all around his 

face. There were lacerations on the forehead by the eyebrows, in the frontal scalp, and 

the back portion of the head. There was noticeable bruising on the left forearm, and in 

the webbing between the fingers of his left hand. The pathologist testified these injuries 

were not consistent with defensive wounds against a hammer.

The pathologist testified there was methamphetamine in Rodriguez’s blood at 

“pretty significant levels.”

THE INVESTIGATION

Camacho calls defendant

Camacho testified he ran errands for about 45 minutes and then returned to his 

house. He saw Ms. Perez’s vehicle parked in front of Rodriguez’s house, and realized 

she had returned with the children. Camacho went into his house without talking to 

them. Within five minutes, Camacho heard a commotion, looked outside, and saw police 

cars and an ambulance.
11.

Camacho went outside and asked Ms. Perez what was wrong. Camacho testified 

Ms. Perez was crying and said Rodriguez could not wake up and he was “gone.” 

Camacho realized Rodriguez was dead.

Ms. Perez asked Camacho if he saw anyone at the house that day. Camacho said 

defendant was the only person he saw at Rodriguez’s house. Camacho gave a statement 

to the police that defendant was at Rodriguez’s house earlier that day.

Camacho testified that once he realized Rodriguez was dead, he called defendant 

since he was the last person who he saw at Rodriguez’s house. Defendant answered and 

it sounded like he was in a car. Camacho told defendant, “ ‘[T]hey just found Tony 

murdered in his house.’ ” Defendant replied, “ ‘Huh? What? I can’t hear you. Let me 

call you back. I’ve got to charge my phone,’ ” and hung up.

Camacho waited 10 to 15 minutes and defendant did not call back. Camacho 

again called defendant and told him that Ms. Perez found Rodriguez’s body, and the 

paramedics were there. Camacho testified defendant did not act shocked, surprised, or 

show concern. They talked for a few minutes and then hung up.

Javier Davila testified that on the night of July 6, 2012, he learned from his brother 

that Rodriguez had been killed. On the morning of July 7, 2012, defendant sent a text 

message to Davila that he had a new cell phone and gave him the number. Davila used 

the new number and called defendant. Defendant asked Davila if he heard what 

happened. Davila said yes. Defendant said, “ ‘That’s messed up what happened.’ ” 

Defendant asked Davila if he heard Rodriguez had been waiting for someone at the 

house. Davila said he did not know because he had not talked to Rodriguez that day. 

Davila testified defendant began to throw up and ended the call.

Initial arrest of defendant 

Based on Camacho’s information, the detectives determined defendant was a 

possible person of interest. They obtained defendant’s cell phone number, but they did 

not know where he lived. On July 7, 2014, a search warrant was obtained to “ping” 
12.

defendant’s cell phone to obtain the GPS coordinates for his location. The cell phone 

pinged at an apartment complex in Visalia.

Around 6:00 p.m. on July 7, 2014, Detective McInerney called defendant’s cell 

phone and asked if he would meet with him at the Sanger Police Department because he 

was conducting an investigation. McInerney did not mention Rodriguez’s homicide. 

Defendant agreed and said he would be there at 10:00 p.m. McInerney offered to send a 

car, but defendant said he had a ride. Defendant’s apartment in Visalia was about one 

hour away from the police department in Sanger.

Detective McInerney sent an undercover team to defendant’s apartment complex 

in Visalia to watch for any movements. At 9:45 p.m., defendant had not arrived at the 

police department. McInerney instructed the officers to look for defendant.

At 9:55 p.m., the officers found defendant at the apartment complex, sitting in the 

driver’s seat of a vehicle with his girlfriend and a small child. They determined 

defendant and his girlfriend lived in the complex. Defendant was taken into custody 

because of outstanding traffic warrants and transported to the Sanger Police Department.

Defendant’s first interview

On the evening of July 7, 2012, Detective McInerney and Corporal Coles 

conducted a recorded interview with defendant at the Sanger Police Department that 

lasted for four hours, with several breaks.

Defendant was advised of the Miranda6 warnings and agreed to answer questions. 

Defendant said he knew that Camacho had told the police he was at Rodriguez’s house, 

and he was “waiting by the phone” for the police to call because he was anxious to talk 

about it.

Detective McInerney asked defendant if he had anything to do with Rodriguez’s 

death. Defendant said no, and that Rodriguez was a good friend. McInerney asked if he 

6 Miranda v. Arizona (1966) 384 U.S. 436.
13.

knew or suspected who did it. Defendant again said no, and that everybody liked 

Rodriguez. Defendant said he was close to Rodriguez because they were both divorced 

and losing their homes.

Detective McInerney said that he had defendant’s cell phone records. Defendant 

said he sent a text message to Rodriguez, and McInerney replied that Rodriguez was 

already dead by that time. Defendant said he did not know that.

Detective McInerney asked defendant why he was at Rodriguez’s house. 

Defendant said he went there to give Rodriguez and Camacho his new phone number, but 

he got “stuck” there longer than planned. Defendant said he told Rodriguez about his 

new number, then went to Camacho’s house and also gave the number to him. He 

charged his phone at Camacho’s house because he did not have a charger, but it took a 

while. He left around 5:00 p.m. for his brother’s house in Reedley and was late meeting 

his girlfriend.

Defendant said that as he was leaving Camacho’s house, he could not find his 

keys. He told Camacho not to leave until he checked with him because he might need a 

ride if he could not find the keys. Defendant went to Rodriguez’s house to look for the 

keys. Ms. Perez arrived, and defendant and Camacho waited outside while Rodriguez 

talked to her. Ms. Perez and the children left, and Rodriguez went back into his house. 

Defendant went to his truck to look for his keys and heard Rodriguez whistle. Defendant 

went to the gate and Rodriguez threw his keys to him. Defendant drove away, and 

Rodriguez was watering his back lawn when he left.

Detective McInerney told defendant that his girlfriend said that while they were 

driving back from Reedley, defendant pulled over to the side of the road and cried 

because Rodriguez was dead. Defendant said his girlfriend was confused, and he had 

told her that Rodriguez had been crying with him. Defendant said he found out that 

Rodriguez was dead later, when Camacho called him.
14.

Detective McInerney advised defendant that he was telling a different story 

compared to the accounts given by his girlfriend and Camacho, that he was the last 

person to see Rodriguez alive, and he left Rodriguez’s house around the time of his death. 

Defendant said he was not involved in the murder. Rodriguez was watering his back 

lawn when he left and said he was waiting for “Polly” to come by.

Defendant said Rodriguez was heartbroken and depressed during their visit 

because he had to move out of his house in about four months. Defendant “could see him 

putting a bullet to his head” or “cutting his wrist” and “committing suicide.”

Defendant said he heard about the killing from Camacho and Davila, and that 

Rodriguez had been beaten with a sharp object or weapon and a couple of people may 

have done it.7 Detective McInerney asked defendant when he talked to Davila. 

Defendant said he called him that morning, they got choked up, and the call ended. They 

talked again on another call about what happened. Davila said he heard from 

Rodriguez’s ex-wife that it was a homicide, and it looked like a couple of people did it. 

Camacho also told him that Rodriguez was beaten with some kind of metal object.

Detective McInerney asked defendant to tell him every detail of his visit to 

Rodriguez’s house. Defendant said he went there to give his phone number to Rodriguez 

and Camacho. He first went to Rodriguez’s house and his stepdaughter opened the door. 

Defendant gave Rodriguez the new number, and then he went to see Camacho and got 

stuck there. Defendant’s brother called and said he needed his truck back, and his 

girlfriend sent a text asking where he was.

Defendant said he left Rodriguez’s house around 5:00 p.m., and he was sure it was 

before 5:30 p.m. He visited his mother and his children, and then stopped at a gas station 

to fill up the truck and get something to drink. The gas was too expensive, so he went to 

7 There is no evidence that either Camacho or Davila told defendant how 

Rodriguez was killed.
15.

another gas station.8 He then headed to his brother’s house in Reedley, left the truck 

there, and his girlfriend picked him up, and they ran errands.

Detective McInerney asked defendant what he talked about with Rodriguez. 

Defendant said when he first got to Rodriguez’s house, he met Rodriguez’s stepdaughter 

who said Rodriguez was in the back. Defendant went to the back patio and talked with 

Rodriguez, who was sad and started to cry because he had to move out of his house in 

four months. Rodriguez got a telephone call, so defendant went to Camacho’s house and 

gave him the new phone number and used his phone charger.

Defendant said he went back to Rodriguez’s house because he was concerned 

about him. Rodriguez was upset because he was going to lose his house. Defendant said 

he went through the same thing and advised Rodriguez to “just get rid of everything. Do 

yourself a favor and get rid of everything.” Rodriguez showed defendant some furniture 

and other items in the den, and asked defendant what he should sell and how much he 

could get.

Defendant said he again told Rodriguez to “get rid of all this stuff” since he was 

going to move into an apartment and “start all over again, start new,” which is what 

defendant had to do. Defendant told Rodriguez to sell his recliner on Craig’s List and 

Rodriguez agreed. Defendant then left and went back to Camacho’s house, and stayed 

longer than he planned. He got messages from his brother’s wife to return the truck 

immediately. He could not find his keys. He looked around Camacho’s house, and then 

went to Rodriguez’s patio and looked around. Rodriguez’s former wife arrived, and 

defendant waited while Rodriguez talked to her. Defendant talked with Camacho, and 

then he went to his truck to look for the keys. After his ex-wife left, Rodriguez said he 

was waiting for “Polly” to arrive, and they were going to meet in the alley because Polly 

8 The officers reviewed the videotapes from security cameras at the two gas 

stations named by defendant and could not see defendant or the truck at those locations at 

the times indicated by defendant.
16.

was married, and Rodriguez did not want his daughter to know he was seeing anyone. 

Defendant said Rodriguez met Polly when they worked together at Gong’s Market.

Detective McInerney asked defendant if he understood why he was a suspect. 

Defendant said he did, but that Rodriguez had two groups of friends. Defendant and 

Davila were one group, and he also had a younger group of friends. Defendant said 

Rodriguez wanted to beat up or kill the man who his ex-wife was seeing. Rodriguez also 

wanted “to smuggle drugs into the guys [sic] car.” Defendant told him not to do anything 

stupid.

Detective McInerney asked defendant when he activated his new phone. 

Defendant said it was the day before yesterday. McInerney asked about his text 

messages. Defendant said he accidentally deleted the messages.

Detective McInerney asked defendant if they would find blood if they searched the 

truck and apartment. Defendant said no, gave permission for the search, and said he had 

nothing to hide. When asked about his clothes, defendant said he was wearing the same 

sneakers as when he was at Rodriguez’s house.9

When asked if he smoked, defendant said he used to smoke Marlboros, but he quit 

a week ago and was chewing nicotine gum.

The interview ended in the early morning hours of July 8, 2012. Detective 

McInerney advised defendant that he was not being arrested for murder, but he would 

receive a citation for the traffic warrant, and he would be released from custody. 

However, McInerney warned defendant that “[t]his ain’t over.” Corporal Coles advised 

defendant that they would find out if he lied to them.

At trial, the prosecution played the entire recording of the interview for the jury. 

While there were several breaks during the four-hour interview, the recording device 

9 Defendant had already thrown away his bloody sneakers in a garbage dumpster 

at his apartment.
17.

continued to run. During one of the last breaks, defendant was alone in the interview 

room and was recorded as he said to himself: “ ‘Oh, f[**]k, I can’t do drugs like this.’ ”

THE ARREST OF DEFENDANT

Search of defendant’s apartment

On July 8, 2014, after the interview with defendant, the officers obtained a warrant 

and searched the apartment in Visalia where defendant and his girlfriend lived. There 

was a torn receipt in a trashcan from “Gold Rush Stores.” The officers seized a clean pair 

of jeans from a dresser drawer.

The apartment complex’s garbage dumpster contained a pair of Converse sneakers 

and a pair of blue jeans. The jeans were the same size as the pair found inside 

defendant’s apartment. The shoes had blood spatter and bloodstains on them, and the 

jeans had blood spots on both legs.

A black bag was also found in the dumpster, and it contained an Optimus digital 

camera, an Olympus digital camera, a portable DVD player, a camera battery charger, 

and electronic cables.

The officers examined the cell phone that belonged to defendant’s girlfriend. 

There were eight calls and multiple text messages between defendant and his girlfriend 

beginning at 5:40 p.m. on July 6, 2012.

The Gold Rush receipt

Later, on July 8, 2012, an officer went to the “Gold Rush” kiosk in the Visalia

Mall to investigate the torn receipt found in the trash at defendant’s apartment. A Gold 

Rush employee testified the store paid cash for gold, silver, and platinum items. 

According to the store’s records, defendant sold four items of gold jewelry to the store on 

July 7, 2012, the day after Rodriguez was killed, and the store paid him $74.21. The 

store obtained defendant’s thumbprint and signature on the sales document, and he was 

required to show identification before the sale was completed. The officer recovered the 

four items of gold jewelry that defendant sold to the store.
18.

Recovery of Rodriguez’s property 

Defendant’s girlfriend was interviewed and said that she drove to Reedley to pick 

up defendant at his brother’s house on July 6, 2012, after he returned his brother’s truck. 

She saw defendant throw a Walmart bag into a trashcan outside of the brother’s house.

After receiving the report from the girlfriend, an officer searched the trashcan at 

the brother’s house in Reedley. He found a coffee can that contained a set of keys with a 

handwritten tag that said, “Tony’s keys.” The officer also found a plastic Walmart bag in 

the trashcan that contained a grey case, lottery tickets, a pink watch, some silver bracelet 

links, a remote device for an alarm, a gold heart ring, a pendant with purple crystals, and 

a Leatherman all-purpose tool.

Identification of Rodriguez’s property

Rodriguez’s family examined the property recovered by the police from the Gold 

Rush store, the garbage dumpster at defendant’s apartment, and the trash can at his 

brother’s house.

Ms. Perez and the children recognized gold hoop earrings that belonged to the 

stepdaughter, a Raider’s key chain that belonged to Rodriguez, personal family 

photographs, some silver links from a bracelet Rodriguez gave to Ms. Perez, his 

Leatherman multi-task tool, used lottery tickets, a talking wrist watch, and Rodriguez’s 

pager. Rodriguez kept these items in the backroom/workshop.

Ms. Perez also recognized a camera and a portable DVD player that was taken 

from Rodriguez’s backroom/workshop. She did not recognize the other camera. Ms. 

Perez identified a wireless remote device that controlled the alarm system at Rodriguez’s 

house. Ms. Perez and her son recognized a badge from Gong’s Market where Rodriguez 

used to work.

Ms. Perez and her son identified Rodriguez’s handwriting on the key chain tags. 

The stepdaughter identified a ring with the word “Baby” engraved on it that belonged to 

her, that defendant had sold to the Gold Rush store. She also identified a gold heart ring, 
19.

a broken ring with an owl that she gave to her stepfather to fix, a Nintendo Game Boy 

that belonged to her stepfather, and her broken pink “PowerPuff” watch that she also 

gave to her stepfather to fix.

The bloody ball-peen hammer

On July 9, 2012, Rodriguez’s family contacted the police and reported they found 

something in the house. An officer returned to Rodriguez’s house and found a ball-peen

hammer in the master bedroom that had been hidden between the bed’s mattress and box 

spring. The hammer’s handle was 13 inches long, and it had a six-inch head. There were 

bloodstains on the head. Rodriguez’s family did not recognize the hammer as something 

that belonged to him.

The blood evidence

The red stains on the shoes and jeans found in the dumpster behind defendant’s 

apartment, and the hammer found under the mattress in Rodriguez’s house, tested 

positive for blood. The DNA from these bloodstains matched Rodriguez’s DNA.

The Vasquez family lived down the alley from Rodriguez’s house. On July 7, 

2012, Mr. Vasquez checked the trash bin in the alley behind his house for some parts and 

did not notice anything special. On July 9, 2012, the Vasquez family contacted the police 

and reported they had again looked in the trash bin and found a shirt that appeared to 

have blood stains on it.

The stains on the shirt found in the dumpster tested positive for blood, but the 

blood type was not matched to anyone, and the DNA did not match defendant or 

Rodriguez. The stains on a black T-shirt found in defendant’s apartment were negative 

for blood.

A water bottle found in Rodriguez’s back yard contained fingerprints of both 

defendant and Rodriguez. The stains on the stepdaughter’s bedroom window curtain 

were negative for blood.
20.

Defendant’s arrest and his second statement

At 6:30 p.m. on July 9, 2012, the police arrested defendant for Rodriguez’s 

murder. Defendant initially said he wanted an attorney, but later changed his mind and 

agreed to answer questions. Detective McInerney and Corporal Coles again conducted 

the recorded interview.

Defendant said he did not kill Rodriguez but admitted he was in the house right 

after it happened. Defendant again said Rodriquez talked about selling some of his 

belongings, including furniture and his gun, and asked defendant to help him. Rodriguez 

put some things into defendant’s truck and said he was waiting for someone to come by, 

but he would have a few more things to sell.

Rodriguez got a telephone call and defendant decided to get something to drink. 

Defendant said he left the house but did not explain where he went. When defendant 

returned, he knocked on the front door, but no one answered. Defendant walked into the 

backyard and noticed the back door was “wide open.” Defendant thought that Rodriguez 

was meeting someone in the alley and waited on the back patio.

Defendant said he eventually went into the house and found Rodriguez lying in the 

den. He ran to Rodriguez and “picked him up and I heard something a mumbling or a 

whispering and I got scared and I freaking ran.” Defendant heard voices from 

Rodriguez’s backroom/workshop and hid in a closet. Defendant then ran back to his 

truck and left.

Detective McInerney asked defendant why he left his friend lying on the ground 

when he was wounded or dead. Defendant said he did not call 911 because Rodriguez 

was dead. He was afraid since “they were still in the house,” and he heard “talking” in 

the dining room.

Detective McInerney told defendant they found his clothes with blood spattered on 

them. Defendant said his clothes got bloody “when I grabbed his hand” and “picked him 

up.” When he heard the voices in the house, “I let go of him and I got blood on my face, 
21.

splattered on my face.” McInerney asked why he got rid of his clothes. Defendant said 

he threw his bloody clothes and shoes in the dumpster because he did not want to get 

involved. McInerney asked why he acted like a suspect by leaving his friend on the 

ground, running away, and destroying evidence. Defendant said he did not want to be a 

suspect. McInerney said that did not make sense.

Detective McInerney asked defendant why he lied about everything in their prior 

conversation. Defendant again said he did not want to be involved. McInerney asked 

why he did not tell the truth if he was innocent. Defendant replied that he felt guilty 

about leaving Rodriguez on the floor.

Defendant repeatedly said he did not kill Rodriguez. Detective McInernery said 

all the evidence pointed to him because he had Rodriguez’s property and sold 

Rodriguez’s gold jewelry. Defendant said he never sold Rodriguez’s gold jewelry 

because it was worthless, but Rodriguez asked him to see how much it was worth. 

McInerney told defendant they had the receipt from the gold sale. Defendant said that he 

sold his own gold. McInerney replied the store gave the gold jewelry to the police, and 

they also found the other property he took from Rodriguez’s house.

Defendant said he had Rodriguez’s property because he was supposed to sell the 

items to help him move. He threw everything away because Rodriguez was dead and he 

“didn’t want to be part of it....” Defendant questioned why he would throw away 

Rodriguez’s property “if I’m gonna rip him off....”

Defendant said he should have called 911 instead of hiding in the closet. 

Detective McInerney said he was still lying to them about what happened. Defendant 

said he did not kill Rodriguez, he tried to help him that day, and felt he abandoned him 

because he was hiding in the closet. He was ashamed of himself.

Detective McInerney asked defendant where he got rid of Rodriguez’s property. 

Defendant did not answer the question, and the interview ended.
22.

DEFENSE EVIDENCE

Defendant’s brother, sister, and niece testified that he was a good person and not 

violent. None of his family members knew he used methamphetamine. Each testified 

that they would be surprised to know defendant had not helped a friend who was hurt or 

dying and lied to the police.

Detective Eric Grijalva searched the pickup truck that belonged to defendant’s 

brother, and that defendant used on the day of the homicide. The truck was dusty and 

there were no apparent blood smears.

Defendant’s trial testimony

Defendant testified that at the time of the homicide, he was living with his 

girlfriend and unemployed. On the morning of July 6, 2012, he went to a “temp agency” 

because he was supposed to get trained for a new job, but it fell through. He started 

cleaning out some of the property he had moved into the apartment after losing his house. 

He sold some of his own property at a pawnshop for $30. 

Defendant testified he was using his brother’s truck since he thought he was going 

to get a new job. He just had to return it at the end of the day. Defendant drove to 

Rodriguez’s house because he wanted to give his new cell phone number to Rodriguez. 

Around 2:00 p.m., he parked in the street in front of Rodriguez’s house. Rodriguez’s 

stepdaughter met him at the front door and said Rodriguez was in the backyard.

As defendant headed for the backyard, he saw Rodriguez walking up the 

driveway. They walked into the backyard and sat on the patio. Defendant asked if he 

had a charger for his phone; Rodriguez said no. Rodriguez was “kind of sad” and did not 

appear like himself. He was trying to do yard work, but he was also packing boxes so he 

could move out. After a while, Rodriguez invited defendant into the house. There were a 

lot of boxes in the backroom/workshop that were packed and ready to be shipped out 

because Rodriguez had to move out of the house. Defendant testified he had been to 

Rodriguez’s house many times and had never seen the boxes in the backroom.
23.

Defendant suggested that Rodriguez get rid of and sell things he did not need. 

Rodriguez had defendant look at some couches, a recliner, and a gun that he could sell. 

Rodriguez offered him a bottle of water, and defendant took one from the refrigerator.

Defendant said they went outside, and defendant again encouraged him to get rid 

of things instead of packing them. Rodriguez’s children were in the house while they 

talked. Defendant testified he did not smoke cigarettes because he had just quit that 

week.

Defendant testified Ms. Perez arrived to pick up the children. Rodriguez went into 

the front yard and talked with her in her car. Defendant walked to the front of the house, 

and Camacho came over and stood on the porch with him. Defendant asked Camacho if 

he could use his charger for his cell phone because he did not bring one with him. 

Camacho agreed and defendant went to Camacho’s house.

About 20 minutes later, defendant went back to Rodriguez’s house. He left his 

phone at Camacho’s house because it was still charging. Rodriguez was really depressed. 

They looked through the boxes in the backroom/workshop. Defendant testified he told 

Rodriguez, “ ‘You know what, I have my brother’s truck here now. If you want to throw 

them in the back of the truck, we can take them somewhere. We can go, you know, do 

something. You can get rid of them. You just can’t be waiting till the last minute.’ ”

Rodriguez agreed but then got a phone call. Defendant told Rodriguez to put his 

stuff in the truck. Defendant loaded some boxes and then went back to Camacho’s house 

and got his cell phone. When defendant returned to Rodriguez’s house, Rodriguez had 

put six or seven boxes into the truck. Defendant’s brother called and told him that he had 

to immediately return the truck. Defendant told Rodriguez that his plans had changed, he 

had to return the truck, and Rodriguez had to remove the boxes.

Rodriguez took all the boxes out of the truck, but he asked defendant if he could 

sell a gold ring that said “Baby” on it. Rodriguez said there was a grocery store in Sanger 
24.

where a guy bought jewelry. Defendant told Rodriguez to come with him. Rodriguez 

said he could not leave because he had to wait for someone at the back of the house.

Defendant was about to leave but could not find his keys. He went back to 

Camacho’s house and could not find them. Defendant testified he never asked Camacho 

for money that day but told him not to leave until he found the keys. Rodriguez found 

the keys and tossed them to defendant. Defendant said he would be right back and left in 

the truck. Defendant testified he went to the grocery store and found the guy who bought 

jewelry. He only offered $11 so defendant did not sell the ring.

Defendant finds Rodriguez’s body

Around 5:00 p.m., defendant returned to Rodriguez’s house. He went into the 

backyard and knocked on the door. No one answered, and he thought Rodriguez was in 

the alley to meet someone. He thought he saw a car in the alley through the fence. He 

waited on the patio for about 10 minutes. He looked through the screen door and saw 

Rodriguez lying in the den. Defendant went in the house, and there was blood 

everywhere. Defendant touched Rodriguez’s hand and tried to pick him up. He realized 

Rodriguez was dead. He got blood all over his hands and face and tried to “flick” off the 

blood.

Defendant testified he heard voices mumbling and whispering from the backroom, 

where Rodriguez “had all the boxes at.” Defendant was scared and thought they would 

see him as they left, and he would be “next.” He went into a hallway closet to hide. 

After about 10 minutes, he thought the other people were gone. He went back into the 

den, checked Rodriguez again to see if he was alive, left through the back door, and got 

into his truck. Defendant testified he did not take any property from Rodriguez’s house, 

and he forgot he still had the gold ring in his pocket.

Defendant throws away Rodriguez’s property and his bloody clothes

Defendant drove directly to his brother’s house in Reedley, where he met his 

girlfriend. Defendant realized that a box of Rodriguez’s property was in the cab of his 
25.

truck. He threw the items away at his brother’s house without looking at them. His 

girlfriend drove him back to their apartment in Visalia. He changed and threw his bloody 

clothes and shoes in the apartment’s dumpster. Camacho called and told him Rodriguez 

was dead. Defendant pretended not to know because he did not want to get involved and 

thought he could be next.

Defendant was sorry he did not call 911 when he found Rodriguez’s body, but he 

had left his phone in the truck. It never occurred to him that the stepdaughter would find 

her stepfather’s body. He admitted he used his phone several times once he got back into 

his truck.

Cross-examination

Defendant conceded he lost his job because he failed a drug test. He lied in his 

previous statements to the police in 2012, when he said he was laid off and had been 

unemployed for six months; he had really been out of work since 2010. His girlfriend 

thought he was working at the time of the homicide, but he lied to her and did not tell her 

that he was not working. Defendant also admitted he never told the police or any of his 

attorneys that he had been at a “temp agency” on the morning of the homicide, and he 

never obtained any documents to confirm it.

Defendant admitted that he used methamphetamine, but he only used drugs a few 

times and never with Rodriguez. However, he had seen Rodriguez use drugs.

Defendant also admitted that he repeatedly lied to the police during his pretrial 

interviews about what he did that day, when he last saw Rodriguez, that he went to two 

gas stations after he left Rodriguez’s house, and that he was wearing the same shoes as 

when he last saw Rodriguez. He failed to previously disclose that he helped Rodriguez 

move boxes into his truck or that he tried to sell the gold ring for him.

Defendant initially testified that after he dropped off the truck at his brother’s 

house in Reedley, he did not tell his girlfriend that Rodriguez was dead. He later 

admitted he told her that Rodriguez was dead as they returned to Visalia.
26.

Defendant denied that he asked Camacho for money that day. Defendant admitted 

he talked to Camacho before he left Rodriguez’s house, but that was only to tell him that 

he found his keys and Camacho could leave.

Defendant admitted he sent a text message to Rodriguez a few hours after he knew 

he was dead, but he could not remember why he did that.

Defendant agreed the cigarette butts found at Rodriguez’s house were the same 

type of Marlboros that he used to smoke. He had stopped smoking the week before the 

homicide and was not carrying cigarettes with him that day.

Defendant testified that when he decided not to sell Rodriguez’s gold “baby” ring 

at the grocery store, he put it in his pants pocket. Defendant admitted he sold some items 

to the Gold Rush store the day after the homicide. He initially testified he only sold his 

own property. On cross-examination, defendant admitted that when he changed his 

clothes after finding Rodriguez’s body, he moved the ring from the pocket of his bloody 

jeans to his clean clothes. Defendant admitted he sold Rodriguez’s gold ring to the Gold 

Rush store and kept the money. Defendant claimed he just emptied his pockets and sold 

the contents at Gold Rush and did not realize he still had Rodriguez’s ring. He signed the 

receipt but did not pay attention to the receipt’s itemized list. Defendant admitted he 

failed to tell this story in his prior statements to the police.

Defendant was asked if the ball-peen hammer used to kill Rodriguez looked 

familiar. He testified: “I gave Tony a lot of tools. [I]t looks familiar like something that 

I gave him, you know, a year ago, a year before that happened. I gave him a toolbox full 

of old rusted tools and hammers and screwdrivers. It looked like something I gave him 

way back.” He knew Rodriguez kept his tools and the boxes in his backroom/workshop.

REBUTTAL

Ms. Perez was recalled and testified she had lived in Rodriguez’s house for 15 

years when they were married. She testified that Rodriguez always kept boxes stacked in 
27.

his backroom/workshop, in the same way as they appeared on the day of the homicide, 

and they had been there for months.

Rodriguez’s stepdaughter was also recalled, and again, she testified that no one 

came to the house on the day of the homicide; she was there with just Rodriguez and her 

brother; and she never saw defendant. She testified Rodriguez always kept plastic 

containers and boxes stacked up in the backroom/workshop, and they had been there for 

some time.

Officer Manuel Chavez testified he booked defendant into custody on July 9, 

2012, and defendant had a pack of cigarettes with him.

Detective Grijalva testified he interviewed defendant’s brother and sister-in-law 

about defendant’s use of their truck. They said defendant initially borrowed the truck on 

July 5, 2012, and asked if he could keep it another day. They agreed but told defendant 

that he had to return the truck to their Reedley home the first thing in the morning on 

July 6, 2012. However, defendant had still not returned the truck by 4:30 p.m. on July 6, 

2012.

PROCEDURAL BACKGROUND

On October 4, 2013, an information was filed that charged defendant with murder 

(Pen. Code, § 187),10 with the felony-murder special circumstance that the murder was 

committed during the commission of first degree burglary (§ 190.2, subd. (a)(17)).

The prosecutor’s closing argument

In closing argument, the prosecutor argued defendant was guilty of first degree 

murder, but clarified the People were not relying on premeditation, and there was no 

evidence defendant arrived at Rodriguez’s house with the intent to kill him. Instead, 

defendant was guilty of first degree murder based on a felony-murder theory, that he was 

committing first degree residential burglary and stealing property when he killed 

10 All further statutory references are to the Penal Code unless otherwise stated.
28.

Rodriguez. “It was out of desperate need because [defendant] got caught stealing, and 

the evidence shows it.”

The prosecutor referred the jury to the burglary instructions and explained that 

defendant could form the intent to steal after he was initially invited into Rodriguez’s 

house, whenever he decided to take Rodriguez’s property and entered the back room to 

steal. The prosecutor asserted defendant was unemployed, he needed money and drugs, 

and he was desperate.11 Defendant saw an opportunity while he was on the back patio 

and Rodriguez was mowing the lawn. Defendant went into the house, and he had a few 

minutes to “get in, get out” and go “shopping” in Rodriguez’s backroom, and started 

putting things in a bag. The prosecutor suggested that defendant had to quickly act in “a 

few stolen moments,” and that explained the random nature of the items he took, which 

was “exactly like the property that a person who only has a few minutes to steal and get 

out, would just open up that bag and just start shoveling things in.” He took small things 

that he could easily carry away, sort out later, and sell, instead of larger items that may 

have been more valuable. The prosecutor explained the value of stolen property was not 

an element for burglary, as long as defendant had the required intent to steal at the time of 

the murder.

The prosecutor argued the evidence suggested that while defendant was taking 

things from the back room, Rodriguez left the lawnmower in the yard and went into the 

house for some reason. Rodriguez discovered defendant was stealing from him, “and 

that’s when it got very ugly very quickly,” and defendant killed him.

“[M]aybe [Rodriguez is] yelling at him, maybe he’s calling him ugly 

names, and you only turn your back on someone you know, someone you 

trust. And it was then that the defendant took one of those hammers in that 

room, because you see that there are tools there, and he had to come after 

11 The prosecutor cited the recorded statements defendant made during a break in 

his first interview with the police, the day after the murder, when he was in the interview 

room and said to himself: “ ‘... I can’t do drugs like this.’ ”
29.

and kill [Rodriguez] because now his world was falling apart. The fact that 

he’d been stealing, the fact that he didn’t have employment, the fact that he 

had this drug issue, it was all coming to a head, and that’s how that 

happened.”

The prosecutor argued defendant repeatedly lied in his pretrial statements and trial 

testimony. Defendant claimed he left Rodriguez’s house and went to two gas stations to 

fill up the truck, but the security videotapes from the gas stations refuted this story, and 

he testified at trial that he lied about it. Defendant claimed he talked to Rodriguez’s 

stepdaughter when he was at the house, but Rodriguez’s stepchildren testified no one else 

was at the house that day. Defendant claimed Rodriguez did not know what to do with 

all his boxes when he had to move out of his house, and asked defendant to help him sell 

his property. However, Rodriguez’s family testified the boxes had been packed in the 

back room for months, and Rodriguez exchanged text messages with his brother-in-law 

about storing his property with him. Defendant claimed he had permission to take 

Rodriguez’s property to sell it, but he took items that had not been in the boxes and threw 

away the property in the garbage can at his brother’s house and the dumpster at his 

apartment. He sold Rodriguez’s stepdaughter’s ring the day after the murder and lied 

about it.

Defendant admitted he had lied to his girlfriend for months about having a job. 

Defendant even tried to make the police think that Rodriguez wanted to kill himself or 

plant drugs on his ex-wife’s new boyfriend, which were also lies.

The prosecutor argued the jury could determine defendant’s intent “not by his 

words, but by his actions in this case, by the property and the outcome because 

[Rodriguez] is dead. And it doesn’t make sense that it was some masterful drug dealer 

that [Rodriguez] owed money” to, that no one had ever mentioned in over five years 

between the murder and the trial, was the killer. The prosecutor pointed to the blood 

evidence on defendant’s pants and shoes that showed spatters on his clothing consistent 

with the murder scene. “If the defendant was simply just touching the victim like he said 
30.

he did, then there’s no reason to have any kind of spatter or moving blood on his 

clothes.” The spatter on his clothes and shoes was consistent with the blood moving onto 

his body “because the hammer was moving.”

Defense counsel’s closing argument

Defense counsel argued defendant was not a violent person. Rodriguez’s family 

knew they were friends, defendant could not have done that to his friend, and he never 

had any disputes with Rodriguez. Defense counsel acknowledged defendant had 

repeatedly lied, he was his “own worst enemy,” and he threw away his bloody clothes 

because he did not want to get involved. However, defendant could not be convicted of 

murder just because he lied. “This whole case boils down to [defendant] didn’t call 911, 

so he’s a murderer. That’s where all the lies stem after that. Well, he’s your good friend, 

why didn’t you call 911? Because he’s scared to death.” Defense counsel stated 

defendant would have pleaded guilty to residential burglary if he had only been charged 

with that offense, but he was not guilty of murder just because he lied to the police.

Defense counsel argued the People’s burglary/theft theory was inconsistent with 

the things that defendant allegedly took, which included used lottery tickets, old keys, 

and other “trash,” because there was nothing to sell. If defendant needed money, he left 

behind a gun and an X-box gaming console.

Defendant consistently said he was going to help Rodriguez move, and he told the 

truth about hearing voices in the house and becoming afraid. Defense counsel suggested 

that Rodriguez put the loaded gun on the cabinet after his stepchildren left because he 

was expecting “some rough customers and he found it.”12 Defense counsel described 

12 In rebuttal, the prosecutor asserted that if Rodriguez was really afraid that 

someone was coming after him, he would have kept the gun with him in the backyard as 

he mowed the lawn. The prosecutor also refuted defense counsel’s claim that Rodriguez 

was killed by a drug dealer since the murder weapon was Rodriguez’s own hammer that 

was left at the scene. Defendant admitted he knew about the hammer since he gave it to 
31.

Rodriguez’s fatal head injuries as looking like “a Mafia-style gang hit” because he was 

“massacred.” Counsel asserted the bruise on Rodriguez’s hand was “massive” and a 

defensive injury because he was fighting for his life. Defense counsel criticized the 

criminal investigation because the officers did not find the bloody hammer under the 

mattress even though there was blood on the blanket, and they did not look in the hall 

closet to see whether defendant trailed blood inside when he was hiding.

Defense counsel argued that it did not matter if Rodriguez’s stepchildren did not 

remember that defendant had been at the house that day since they were probably not 

paying attention. Counsel cast doubt on the family’s testimony that the boxes had been 

stacked in the backroom for months, since Rodriguez’s stepdaughter probably did not pay 

attention, and his former wife did not live there anymore. Counsel also cast doubt on the 

reliability of the family’s identification of certain jewelry recovered from the Gold Rush 

store and the property found in the dumpster.

The instructions

The jury was instructed on first degree murder and express and implied malice. It 

was also instructed on first degree felony murder based on residential burglary and the 

elements of residential burglary and theft.

The jury was instructed on second degree murder and voluntary manslaughter, 

based on either sudden quarrel or heat of passion, as lesser included offenses.

The jury was further instructed on consciousness of guilt based on false statements 

and suppression and fabrication of evidence; defendant’s flight; and possession of 

recently stolen property as evidence of a crime.

Rodriguez, and he could not take the bloody weapon with him since he had his brother’s 

truck.
32.

Conviction and sentence

On March 14, 2018, the jury convicted defendant of first degree murder, and 

found true the special circumstance that he was engaged in the crime of first degree 

burglary in the commission of the offense.

On April 13, 2018, the trial court sentenced defendant to life imprisonment 

without the possibility of parole. Defendant filed a notice of appeal the same day.

DISCUSSION

I. Substantial Evidence of Felony Murder Based on Residential Burglary

Defendant contends his first degree murder conviction based on the theory of 

felony murder while committing residential burglary, and the felony-murder special

circumstance, must be reversed because there is insufficient evidence to support the 

elements of burglary: that he “entered” a residence with the intent to commit theft or 

another felony.

Defendant argues he was invited to enter the residence of Rodriguez, who was his 

good friend, he did not trespass or break in, and there is no evidence he had any intent to 

steal when he arrived at Rodriguez’s house.

A. Substantial Evidence

“In addressing a challenge to the sufficiency of the evidence supporting a 

conviction, the reviewing court must examine the whole record in the light most 

favorable to the judgment to determine whether it discloses substantial evidence –

evidence that is reasonable, credible and of solid value – such that a reasonable trier of 

fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate 

court presumes in support of the judgment the existence of every fact the trier could 

reasonably deduce from the evidence. [Citations.]” (People v. Kraft (2000) 23 Cal.4th 

978, 1053.)

“ ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not 

justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury 
33.

to determine the credibility of a witness and the truth or falsity of the facts upon which a 

determination depends. [Citation.] We resolve neither credibility issues nor evidentiary 

conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for 

insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever 

is there sufficient substantial evidence to support” ’ the jury’s verdict. [Citation.]” 

(People v. Zamudio (2008) 43 Cal.4th 327, 357.)

“The same standard applies when the conviction rests primarily on circumstantial 

evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the 

circumstantial evidence susceptible of two reasonable interpretations, one of which 

suggests guilt and the other innocence, it is the jury, not the appellate court that must be 

convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]” (People v.

Kraft, supra, 43 Cal.4th at pp. 1053–1054.) We “must accept logical inferences that the 

jury might have drawn from the circumstantial evidence. [Citation.]” (People v. Maury

(2003) 30 Cal.4th 342, 396.) “Where the circumstances reasonably justify the trier of 

fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably 

be reconciled with a contrary finding does not warrant the judgment’s reversal. 

[Citation.]” (People v. Zamudio, supra, 43 Cal.4th at p. 358.)

The same substantial evidence standards apply to true findings on a special 

circumstance allegation. (People v. Houston (2012) 54 Cal.4th 1186, 1215.)13

B. Entry

Defendant’s first argument is that the People failed to prove the “entry” element of 

residential burglary.

The elements of first degree residential burglary are (1) an unlawful entry into a 

residence (2) with the intent to commit a theft or any felony. (§§ 459, 460, subd. (a); 

13 We will further discuss the felony murder special circumstance in issues II and 

III, post.
34.

People v. Anderson (2009) 47 Cal.4th 92, 101; People v. Sample (2011) 200 Cal.App.4th 

1253, 1261.)14

The defendant must enter one of the premises specified in section 459, which is 

not limited to houses, and includes any “room [or] apartment.” (§ 459, italics added; 

People v. Tafoya (2007) 42 Cal.4th 147, 170–171; People v. Magallanes (2009) 173 

Cal.App.4th 529, 535–536; People v. Salemme (1992) 2 Cal.App.4th 775, 781.)

The defendant’s entry does not have to be forced or constitute a trespass to support 

a burglary conviction. (People v. Frye (1998) 18 Cal.4th 894, 954; People v. Carter

(2005) 36 Cal.4th 1114, 1157.) “[A] person who enters for a felonious purpose may be 

found guilty of burglary even if he enters with the owner’s or occupant’s consent,” 

provided the defendant does not have an unconditional possessory right to enter. (People 

v. Frye, supra, 18 Cal.4th at p. 954; In re Andrew I. (1991) 230 Cal.App.3d 572, 578.)

When the burglary is based on entry into a room within a house, the defendant’s 

intent to steal may be “formed after entry to a building but before entering a room therein 

from which the defendant intends to steal property.” (People v. McCormack (1991) 234 

Cal.App.3d 253, 255–256, italics added.) “[A] defendant’s entry into a bedroom within a 

single-family house with the requisite intent can support a burglary conviction if that 

intent was formed only after the defendant’s entry into the house,” which constitutes 

entry into a separate room for the purposes of section 459. (People v. Sparks (2002) 28 

Cal.4th 71, 73; In re M.A. (2012) 209 Cal.App.4th 317, 321.) Thus, a burglary is 

committed “even when the defendant first forms the intent to enter a room inside a home 

to commit a felony only after he has already entered the house without any felonious 

intent.” (In re M.A., supra, 209 Cal.App.4th at p. 321, italics added.)

“It is well settled that burglary of an inhabited dwelling house may be 

accomplished even if the specific room that the burglar unlawfully enters is not a space 

14 We will address intent in the next section.
35.

where people live. In determining whether the defendant has burglarized an inhabited 

dwelling house, ‘[t]he question is not whether the specific area is used for sleeping or 

everyday living, but whether the area is functionally interconnected to and immediately 

contiguous to the residence, which is used for sleeping or everyday living.’ [Citation.] 

‘ “ ‘ “Functionally interconnected” means used in related or complementary ways. 

“Contiguous” means adjacent, adjoining, nearby or close.’ ” ’ [Citation.]” (In re M.A., 

supra, 209 Cal.App.4th at pp. 323–324.)

A burglary can occur even if the defendant enters the room or house through an 

unlocked door. (People v. Elsey (2000) 81 Cal.App.4th 948, 961, fn. 5.) However, “the 

burglary of different unlocked rooms in a single-family residence constitute[s] a single 

burglary.” (People v. Richardson (2004) 117 Cal.App.4th 570, 575.)

1. Analysis

Defendant argues the People failed to prove the “entry” element because he 

entered Rodriguez’s house at the invitation of his “close friend,” he was “always 

welcome in that home,” and there was a reason for him to be there since he frequently 

visited the home.

It is not clear whether defendant had the intent to steal when he left Camacho’s 

house and initially entered Rodriguez’s house. There was evidence that defendant 

frequently went to Rodriguez’s house and was invited to visit. As we have explained, 

however, section 459 provides that the requisite entry may occur into “any house, room” 

or other enumerated structure, and such entry does not have to be a trespass or involve 

the use of force. While defendant was initially invited to enter Rodriguez’s house, the 

circumstances of his initial entry are not dispositive. Rodriguez may have given implied 

permission for defendant to walk around the backyard, enter the house, and go into some 

interior rooms, however, there is no evidence that defendant had an unconditional 

possessory right.
36.

We will discuss the evidence of intent below, but once defendant formed an intent 

to steal and then entered one of the rooms in Rodriguez’s house to take his property, 

defendant’s conduct satisfied the “entry” element of section 459, regardless of whether he 

had the intent to steal when he initially entered the residence. Based on the items taken 

from Rodriguez’s house, defendant apparently entered the back room/workshop and 

perhaps the den to steal the items, those two rooms were part of Rodriguez’s residence, 

and his entry into those rooms with the intent to steal satisfied the “entry” element of 

burglary.

C. Intent

Defendant’s primary argument is there is insufficient evidence that he entered 

Rodriguez’s house with the intent to steal, and his alleged intent was only based on 

speculation.

As explained above, when a residential burglary is based on entry into a room 

within a house, the defendant’s intent to steal may be “formed after entry to a building 

but before entering a room therein from which the defendant intends to steal property.” 

(People v. McCormack, supra, 234 Cal.App.3d 253, 255–256, italics added.) The 

defendant’s intent to commit theft must thus exist at the time of that entry. (People v. 

Sparks, supra, 28 Cal.4th at p. 85, fn. 17; People v. Gbadebo-Soda (1995) 38 

Cal.App.4th 160, 166; People v. Waidla (2000) 22 Cal.4th 690, 734.) “One may be liable 

for burglary upon entry with the requisite intent, regardless of whether ... any felony or 

theft actually is committed. [Citation.]” (In re Matthew A. (2008) 165 Cal.App.4th 537, 

540; People v. Allen (1999) 21 Cal.4th 846, 863, fn. 18.) If the underlying felony is theft 

or larceny, “the item of property need only have some intrinsic value, however slight. 

[Citations.]” (People v. Martinez (2002) 95 Cal.App.4th 581, 585.)

“[I]n reviewing the sufficiency of evidence to support a burglary finding, the 

requisite intent is rarely demonstrated by direct proof, and as a result, may be inferred 

from facts and circumstances. [Citation.] As a result, evidence such as theft of property 
37.

from a dwelling may create a reasonable inference that there was intent to commit theft at 

the time of entry. [Citation.]” (In re Leanna W. (2004) 120 Cal.App.4th 731, 741; In re 

Matthew A., supra, 165 Cal.App.4th at p. 541; People v. Kwok (1998) 63 Cal.App.4th 

1236, 1245.)

The mere possession of stolen property will not alone support a conviction for 

theft of property; however, the possession of recently stolen property is so incriminating 

that only slight additional evidence is necessary to sustain a burglary conviction. The 

jury determines, in light of all the evidence, whether or not such an inference should be 

drawn. (People v. McFarland (1962) 58 Cal.2d 748, 754–755.)

Even if no crime was committed after entry, an intent to commit theft at the time 

of entry may be inferred from flight from the premises. (People v. Smith (1978) 78 

Cal.App.3d 698, 704; People v. Moody (1976) 59 Cal.App.3d 357, 363; People v. Martin

(1969) 275 Cal.App.2d 334, 339.) In addition, false statements to the police involving 

incriminating circumstances, or the fabrication or destruction of evidence, are relevant 

factors that may raise the inference of consciousness of guilt. (People v. Burton (2018) 

29 Cal.App.5th 917, 925; People v. Flores (2007) 157 Cal.App.4th 216, 221; People v. 

Wilson (2005) 36 Cal.4th 309, 330.)

“Whether the entry was accompanied by the requisite intent is a question of fact 

for the jury. [Citation.] ‘Where the facts and circumstances of a particular case and the 

conduct of the defendant reasonably indicate his purpose in entering the premises is to 

commit larceny or any felony, the conviction may not be disturbed on appeal.’ 

[Citation.]” (People v. Kwok, supra, 63 Cal.App.4th at p. 1245.) A reviewing court’s 

opinion that the circumstances might also be reasonably be reconciled with a contrary 

finding does not warrant a reversal of the judgment. (People v. Lewis (2001) 25 Cal.4th 

610, 644; People v. Kraft, supra, 23 Cal.4th at pp. 1053–1054.)
38.

1. Analysis

Defendant asserts there is insufficient evidence that he had the intent to steal when 

he entered Rodriguez’s house. Defendant argues his announcement to Camacho, that he 

was going to Rodriguez’s house, was inconsistent with “having a stealthy intent to steal 

upon entering the house.” Defendant contends there was no evidence that he entered the 

residence with the intent and plan to steal Rodriguez’s property because the house was 

not ransacked, he only took property of minimal or no value, such as key rings and used 

lottery tickets, he only obtained a “small amount” of money from selling the ring, he 

threw away more valuable items like the camera, and he left behind other valuable items 

like the handgun and electronics.

We have already explained that defendant was not required to have the intent to 

steal when he initially entered Rodriguez’s house, and that he was guilty of burglary if he 

formed that intent after he entered the house and thereafter went into one of the rooms 

with the intent to take Rodriguez’s property. In addition, the defendant is not required to 

actually take any property, and the stolen property need only have some intrinsic value, 

even if that value is slight.

Even if defendant did not intend to steal when he initially entered Rodriguez’s 

house, there is substantial circumstantial evidence that he formed that intent when he was 

inside the house and entered the backroom/workshop, and took certain property before he 

killed Rodriguez, based on the testimonial and physical evidence, and the inferences 

resulting from defendant’s flight from the house, his possession of stolen property, his 

disposal and attempted destruction of incriminating evidence, his efforts to fabricate 

evidence, and his numerous false statements to misdirect the police about critical parts of 

the investigation. 

The undisputed evidence showed that defendant was fired from his job for failing 

a drug test, he had been unemployed for months and lied to his girlfriend about it, he had 

lost his house, and he was in financial trouble. When he arrived at Camacho’s house, he 
39.

asked for money and methamphetamine. Camacho declined both requests. Shortly after 

defendant left Camacho’s house and walked to Rodriguez’s house, he called Camacho 

and asked him not to leave until they talked again because he still needed money.

Rodriguez’s stepchildren had stayed overnight, and they were at the house all day 

until their mother picked them up around 4:00 p.m. The children knew defendant, but 

they never saw him or anyone at their father’s house before they left with their mother. 

Camacho testified that he saw defendant standing on Rodriguez’s front porch as 

Rodriguez talked with Ms. Lopez through her car window, that was after the children 

were already in the car.

The record strongly implies that after Ms. Lopez and the children left, defendant 

went into the backyard with Rodriguez, based on the Marlboro cigarette butts found on 

the patio, identical to those found in the street where defendant had parked his truck. 

Camacho testified defendant smoked Marlboro cigarettes, and defendant admitted that at 

trial. Rodriguez’s family testified their father did not smoke cigarettes. While defendant 

insisted he had quit smoking a week before the murder, there was physical evidence of 

Marlboro cigarette butts in the backyard and in front of the house where he parked the 

truck, and the booking officer testified defendant had a package of cigarettes when he 

was arrested.

Camacho further testified that he saw the white truck leave sometime before 

5:30 p.m. Defendant called Camacho before he left and said he did not need money 

anymore.

Rodriguez’s family identified the property found in the dumpster at defendant’s 

apartment, the trash can at his brother’s house, and recovered from the Gold Rush store. 

They testified certain items belonged to Rodriguez, Ms. Lopez, or his daughter. They 

also testified most of the stolen property had been in the backroom/workshop.
40.

While Rodriguez’s family did not recognize the murder weapon, defendant 

confessed that he previously gave Rodriguez the ball-peen hammer and other tools, and 

he knew Rodriguez kept the hammer in the backroom/workshop.

Rodriguez’s family testified he was meticulous about taking care of his property 

and always put away the lawnmower when he finished working in yard. The record 

strongly implies that Rodriguez was mowing the backyard lawn when something drew 

him into the house because the police found the lawnmower in the middle of the 

backyard lawn.

The pathologist testified that while there were some bruises on Rodriguez’s arm, 

these injuries were not consistent with defensive wounds upon being confronted by a 

hammer, which implies that he was attacked by surprise or without warning. The 

pathologist testified there was noticeable bruising on the left forearm, and in the webbing 

between the fingers of his left hand. The pathologist testified these injuries were not 

consistent with defensive wounds against a hammer.

There was a great amount of blood at the murder scene in the den. There were 

blood drops that led from Rodriguez’s body into the kitchen, down the hallway, and into 

the master bedroom where the murder weapon was hidden under the mattress. The 

window was open in the stepdaughter’s bedroom, and the stepdaughter testified she had 

not opened it that day; also, the back door was open.

There is no evidence that the police found blood drops in the backroom/workshop, 

where most of the property was taken from. The absence of any blood evidence in the 

backroom/workshop, which was part of the house, is consistent with defendant going into 

that room to grab the hammer and whatever property he could before Rodriguez 

confronted him in the den, where he killed Rodriguez by fracturing multiple parts of his 

skull with the hammer.15

15 At trial, defendant stated for the first time that Rodriguez asked him to sell his 

handgun, perhaps to explain the presence of the gun and ammunition on top of various 
41.

At trial, defense counsel argued defendant could not be convicted of murder 

simply because he gave false statements to the police. However, defendant’s conduct 

immediately after he left Rodriguez’s house shows that he sought to destroy 

incriminating evidence and fabricate possible suspects, not simply to distance himself 

from Rodriguez but to create false trails for the police to follow. Shortly after he left, 

defendant sent a text message to Rodriguez’s phone that he would drop by the next day, 

even though he knew Rodriguez was dead. When he dropped off the truck at his 

brother’s house in Reedley, he threw away the Walmart bag that contained many of the 

items he had stolen from Rodriguez’s backroom/workshop. When they arrived at the 

Visalia apartment, defendant changed and threw away his bloody jeans and shoes, and 

another bag of Rodriguez’s property in the garbage dumpster. However, he held onto 

some of the jewelry, went to the Gold Rush store the next day, and sold the items for

cash.

Shortly after Camacho learned from Ms. Lopez that Rodriguez was dead, he called 

defendant and told him that Rodriguez had been murdered. Defendant claimed he was 

having phone trouble, promised to call back, and hung up. He did not call back and 

Camacho called him again. Camacho testified defendant did not act shocked, surprised, 

or show concern. On the morning after the murder, defendant sent Davila his new cell 

phone number and Davila called him. Defendant asked if he knew what happened, and if

he heard Rodriguez had been waiting for someone at the house. At that point, defendant 

had only talked to Camacho about the murder, and there is no evidence that Camacho 

counters. Ms. Lopez testified the gun belonged to Rodriguez, and there was no evidence 

it was connected to the murder. Neither the children nor Ms. Lopez testified that 

Rodriguez ever left a loaded gun around the house. In addition, the children spent the 

entire day with Rodriguez, and never testified they saw a loaded gun that day. It is 

possible to infer from the record that defendant was in the process of taking the gun and 

ammunition from another part of the house when Rodriguez interrupted him.
42.

told defendant that Rodriguez was supposedly waiting for someone at the house. Instead, 

defendant was trying to place blame on some unknown party.

When Detective McInenery called defendant and asked to meet him for an 

interview, defendant promised to be at the police department at 10:00 p.m. and said he 

did not need a ride. Defendant’s apartment was about an hour away from the Sanger 

Police Department. By 9:55 p.m., however, he had not appeared at the police station, and 

officers found defendant sitting in a car at his apartment complex. During that first 

interview, defendant spontaneously said he sent a text message to Rodriguez after he left 

the house, referring to the message that he had created as an alibi. Defendant also gave 

an account of his activities that was vastly different from Camacho’s statement – that he 

went to the neighborhood just to give his new cell phone number to his friends, and not 

because he needed to use Camacho’s computer to look for a job or he asked Camacho for 

money and drugs. Defendant further claimed he went to Rodriguez’s house first and 

Rodriguez’s stepdaughter greeted him, even though the stepdaughter testified she never 

saw defendant that day; he then went to Camacho’s house; and fabricated the story that 

he stopped by two specific gas stations after he left, again to create an alibi. Defendant’s 

story about the gas stations was refuted by the security videotapes from those businesses 

and defendant later admitted he lied about it.

Even during this first statement, defendant tried to fabricate additional evidence 

and told officers that Rodriguez was suicidal, he could see him “putting a bullet to his 

head,” and Rodriguez wanted to beat up or kill his former wife’s new boyfriend, or plant 

drugs in the man’s car.

Defendant fabricated another story when he told the police that Rodriguez did not 

know what to do with his property when he had to move out of his house. However, 

defendant did not know that just a few hours earlier, Rodriguez had exchanged textmessages on this subject with his brother-in-law, who readily agreed that Rodriguez 

could store his property at his house.
43.

Defendant further claimed that as he left Rodriguez’s house, he knew Rodriguez 

was waiting for a married woman to meet him. Defendant even asserted that Camacho 

and Davila told him that Rodriguez had been beaten with a sharp object, and a couple of 

people were responsible. There is no evidence that either Camacho or Davila had been 

given this information or, more importantly, that they made these statements to 

defendant. 

Also, at the first interview, defendant told the officers that he was wearing the 

same tennis shoes as when he was at Rodriguez’s house, even though he had already 

thrown away his bloody shoes. When asked if he smoked, defendant immediately 

claimed he had quit a week earlier, knowing that he had left Marlboro cigarette butts in 

Rodriguez’s backyard and in front of the house.

After defendant was arrested, he gave another interview and claimed for the first 

time that Rodriguez said he was waiting for someone other than an alleged girlfriend to 

come by, defendant and Rodriguez loaded the boxes from the workshop into his truck so 

they could sell his property, and defendant realized he had to return the truck and told 

Rodriguez to unload the boxes. Defendant said he left to get something to drink, he 

found Rodriguez’s body when he returned, and he heard voices in the house and was 

afraid, so he hid in a closet and then fled. When confronted with the fact that the police 

found his bloody jeans and shoes in the dumpster, defendant admitted he threw them 

away but claimed he accidentally got blood on him when he picked up Rodriguez’s body. 

Defendant denied stealing anything from Rodriguez’s house, claimed that one box of 

Rodriguez’s property was still in the cab of his truck, and he threw everything away 

because he did not want to be involved. He admitted selling jewelry to the Gold Rush 

store but insisted everything belonged to him.

At trial, defendant’s testimony raised further inconsistencies between his story and 

the trial evidence. Defendant again insisted Rodriguez’s stepdaughter greeted him when 

he first arrived at Rodriguez’s house, and the children were in the house while he talked 
44.

with Rodriguez in the backyard. Rodriguez’s stepchildren testified they never saw 

defendant or anyone else at the house before they left with their mother.

Defendant further testified that Rodriguez was both mowing the lawn and packing 

the boxes in the backroom/workshop that day. Defendant claimed he had never seen 

those boxes on his prior visits. Ms. Lopez testified she had lived in that same house 

when they were married, however, and those boxes had been in the backroom/workshop 

for months. Rodriguez’s stepdaughter, who regularly stayed with her stepfather, also 

testified the boxes had been there for some time.

Defendant admitted at trial that he sold the ring that belonged to Rodriguez at the 

Gold Rush store but offered another version of events. This time, defendant claimed 

Rodriguez asked him to sell the ring to a guy who bought jewelry at the grocery store. 

Defendant found this guy, but the offer was not good enough, so he put the ring in his 

pocket. Defendant said he went back to Rodriguez’s house and found his body in the den 

and forgot about the ring in his pocket. Defendant admitted he moved the ring from his 

bloody pants to his clean clothes when he changed, he sold several items of his own 

property at the Gold Rush store the next day, and he did not realize that Rodriguez’s ring 

was included in the itemized sales list.

The entirety of the record thus provides substantial evidence to support 

defendant’s murder conviction based on a felony-murder/burglary theory. Defendant 

needed money, he decided to take advantage of the opportunity to steal some things from 

the house while Rodriguez was mowing the backyard lawn, and he grabbed some small 

items from the backroom/workshop. While defendant insists that he took items of 

virtually no value, such as the used lottery tickets, a burglary conviction is supported 

even if the stolen property is of minimal value. Defendant took several things that he 

could have sold, such as the Leatherman multitask tool, a camera, a portable DVD player, 

and various items of jewelry. Defendant may have grabbed smaller items that he could 

easily get out of the house and thought would not attract Rodriguez’s attention. After 
45.

defendant fled, he obviously feared detection and threw away most of the stolen property 

but kept the smaller items of jewelry and sold them the next day.

Defendant argues the theft of Rodriguez’s property from the back room/workshop 

was more consistent “with a panicked afterthought after killing Rodriguez than it is with a 

preplanned intent to steal valuable property because he needed money.” (Italics added.)

16

 

This argument is refuted by defendant’s own trial testimony, that the murder weapon was 

one of the tools he gave to Rodriguez, that Rodriguez kept the hammer in the 

backroom/workshop, and the absence of any blood trails or blood stains in the 

backroom/workshop, compared to the blood that was on defendant’s shoes and pants and 

the blood stains and spots that were found through the rest of the house, shows he stole 

the hammer and the other property before he was confronted by Rodriguez in the den and 

fled.

Defendant asserts the evidence in this case is not as strong as relied on to support a 

felony-murder theory based on burglary in People v. Letner and Tobin (2010) 50 Cal.4th 

99. In Letner and Tobin, the court held the convictions were supported by substantial 

evidence and explained:

“[I]t is reasonable to infer from the circumstance that defendants committed 

these crimes that they possessed the intent to do so at the time they entered 

[the victim’s] house. A rational juror reasonably could find that a purely 

social visit to a friend’s house did not spontaneously lead to the attempted 

rape, robbery, and brutal murder of the hostess. The circumstance that [the 

victim] may have willingly invited defendants into her house is of no 

consequence. [Citation.] The circumstance that defendants apparently 

waited some period of time prior to attacking [the victim], during which the 

three of them consumed alcoholic beverages, could be viewed as an attempt 

to make defendants’ task easier by reducing the possibility that [the victim] 

would be able to resist. Further, Letner’s participation in the telephone 

calls with [two witnesses] could indicate he was not concerned whether 

16 In making this argument on appeal, defendant has apparently abandoned his 

trial theory that unknown third parties killed Rodriguez, and he simply had some of his 

property as part of their early plan to sell some things.
46.

they in turn eventually would inform the police he had been present in [the 

victim’s] house, because he believed either that the person with whom [the 

victim] was speaking on the telephone when defendants first arrived knew 

that Letner was there, or that, if the police were to begin looking for him, he 

nonetheless would be able to escape to Iowa. Alternatively, the jury 

reasonably could find that Letner simply joined in the telephone calls in 

anger or on impulse, without reflecting upon the possible consequences. In 

sum, as we recently observed regarding a similar challenge, ‘possession ... 

of goods stolen from the victim’s home shortly after the crimes is strong 

circumstantial evidence that [defendant] harbored the intent to commit 

larceny when he entered her home. [Citation.] Moreover, “[t]here is no 

better proof that [defendant] entered the [victim’s house] with intent to 

commit robbery than a showing he did in fact commit robbery after his 

entry.” [Citation.]’ [Citation.] Accordingly, we conclude the evidence 

was sufficient to support the jury’s finding that defendants committed a 

burglary and intentionally killed [the victim] while engaged in the 

burglary.” (Id. at pp. 167–168.)

In reaching this holding, Letner and Tobin cited to People v. Wallace (2008) 44 

Cal.4th 1032, 1060, which held “[t]he crime of burglary, however, requires only an entry 

with the requisite intent; the entry need not be accomplished by force. [Citations.]” 

Indeed, Letner and Tobin and Wallace describe the situation that is established by the 

extremely strong circumstantial evidence in this case – defendant entered Rodriguez’s 

house by invitation, he formed the intent to steal at some point while he was there, he 

went into the backroom/workshop and took several things including the murder weapon, 

and Rodriguez left the backyard and confronted him in the den where defendant 

bludgeoned and murdered him. The fact that defendant did not take Rodriguez’s property 

immediately upon his arrival does not prohibit his felony-murder conviction.

Although defendant testified that he did not enter the house or any room with the 

intent to steal, and presented the jury with his version of the events that blamed unknown 

third parties for the murder, the jury as the finder of fact was entitled to reject the defense 

theory given the numerous inconsistencies, his possession of stolen property, his 

concealment of his bloody clothes, and his attempts to fabricate evidence. The jury 

disbelieved defendant’s story, and a rational jury could have found beyond a reasonable 
47.

doubt that defendant formed the intent to steal when he entered the backroom/workshop 

and took numerous items, including the ball-peen hammer, and then was confronted by 

Rodriguez and killed him. Our role on appeal is simply to determine whether the jury’s 

findings are supported by substantial evidence. The record contains substantial 

circumstantial evidence supporting the jury’s verdict on felony murder based on a 

burglary, and the jury’s finding on the felony murder special circumstance.

II. Special Circumstance Instructions

Defendant next contends the felony murder special circumstance must be stricken 

because the court failed to give any instructions on the special circumstance. As we will 

explain, the court’s failure to give the requisite instruction was harmless beyond a 

reasonable doubt based on the entirety of the record.17

A. The Instructions

As explained above, the jury was instructed with CALCRIM No. 540A on first 

degree felony murder based on residential burglary.

“Now, the defendant is charged in Count One with murder under a 

theory of felony murder. To prove that the defendant is guilty of firstdegree murder under this theory the People must prove beyond a reasonable 

doubt that, one, the defendant committed residential burglary, two, the 

defendant intended to commit residential burglary and, three, while 

committing ·the residential burglary the defendant caused the death of 

another person. A person may be guilty of felony murder, even if the 

killing was unintentional, accidental, or negligent. To decide whether the 

defendant committed residential burglary please refer to the separate 

instructions that I will give you on that crime. You must apply those 

instructions when ·you decide whether the People have proved first-degree 

murder under a theory of felony murder. The defendant must have intended 

17 Defendant did not object to the court’s failure to give the special circumstance 

instructions, or to his claim in issue IV, post, that CALCRIM No. 376 reduced the 

People’s burden of proof. Defendant’s failure to object has not forfeited appellate review 

since the issues involve his substantial rights, and we need not address his alternate 

ineffective assistance argument. (People v. Hillhouse (2002) 27 Cal.4th 469, 503; People 

v. Lopez (2011) 198 Cal.App.4th 698, 708.)
48.

to commit the felony of residential burglary before or at the time he caused 

the death of another person. The crime of residential burglary continues 

until a defendant has reached a place of temporary safety. It is not required 

that the person die immediately as long as the act causing death occurred 

while the defendant was committing the felony.”

The court also gave CALCRIM No. 540B on felony-murder liability as an 

accomplice who aided and abetted the commission of a residential burglary, and 

CALCRIM No. 410 on aiding and abetting.

The jury was further instructed on the elements of residential burglary and theft.

“Now, the defendant is charged in Count One, committing murder 

during the commission of a burglary, in violation of Penal Code Section 

459. To prove that the defendant committed the burglary the People must 

prove beyond a reasonable doubt that, one, the defendant entered a building 

or room within a building or a structure and, two, when he entered the 

building, room within a building, or the structure he intended to commit 

theft. To decide whether the defendant intended to commit theft, please 

refer to the separate instructions that I give you on those crimes. Burglary 

was committed if the defendant entered with the intent to commit theft. 

The People allege that the defendant intended to commit theft. You may 

not find the defendant guilty of burglary unless you all agree that he 

intended to commit theft at the time of the entry.”

“To prove that the defendant committed theft the People must prove 

beyond a reasonable doubt that, one, the defendant took possession of 

property owned by someone else, two, the defendant took the property 

without the owner’s consent, three, the defendant took the property he 

intended – when the defendant took the property he intended to deprive the 

·owner of it permanently and, four, the defendant moved the property even 

a small distance and kept it for a period of time, however brief. This 

property can be of any value, no matter how slight.”

“Now, burglary is divided into two degrees. If you conclude that the 

defendant committed the burglary, then you ·must decide the degree. Firstdegree burglary is the burglary of an inhabited house or room within an 

inhabited house. A house is inhabited if someone uses it as a dwelling, 

whether or not someone is inside at the time of the alleged entry. A house 

includes any room that is attached to the house and functionally connected 

with it. All other types of burglary are second degree. [¶] The People have 

the burden of proving beyond a reasonable doubt that the burglary was 
49.

first-degree burglary. If the People have not met this burden, you must find 

the ·defendant did not commit first-degree burglary.”

B. CALCRIM Nos. 730 and 703

Defendant contends the court failed to instruct the jury with two instructions that 

defined the elements of the felony murder special circumstance based on burglary, and 

the instructional error was prejudicial and requires reversal.

The court did not instruct the jury with CALCRIM No. 730, which states:

“The defendant is charged with the special circumstance of murder 

committed while engaged in the commission of [burglary]. [¶] To prove 

this special circumstance is true, the People must prove that: [¶] 1. The 

defendant committed or attempted to commit [burglary]; [¶] 2. The 

defendant intended to commit [burglary]; [¶] 3. The defendant did an act 

that caused the death of another person. [¶] To decide whether the 

defendant committed [burglary], please refer to the separate instructions 

that I have given you on that crime. You must apply those instructions 

when you decide whether the People have proved this special circumstance. 

[¶] The defendant must have intended to commit the felony of [burglary] 

before or at the time of the act causing the death. [¶] In addition, in order 

for the special circumstance to be true, the People must prove that the 

defendant intended to commit [burglary] independent of the killing. If you 

find the defendant only intended to commit murder and the commission of 

the [burglary] was merely part of or incidental to the commission of that 

murder, then the special circumstance has not been proved.”

Defendant also argues the court should have given CALCRIM No. 703, which 

addresses the felony murder special circumstance based on burglary when the charged 

party was not the actual killer but an aider and abettor.

C. The Special-circumstance Instructions

“Once the jury finds the defendant has committed first degree murder, the 

felony-murder special circumstance applies if the murder was committed during the 

commission or attempted commission of a statutorily enumerated felony, and 

subjects the defendant to a sentence of death or of life without the possibility of 

parole. [Citation.]” (People v. Andreasen (2013) 214 Cal.App.4th 70, 80; § 190.2, 

subd. (a)(17).) Burglary is an enumerated felony. (§ 190.2, subd. (a)(17)(G).) The 
50.

elements of the special-circumstance allegation are similar to those of the felonymurder doctrine. (3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2019) Punishment, 

§ 532, pp. 853–854.)

A trial court has a sua sponte duty to instruct the jury on the essential 

elements of each charged offense or special circumstance allegation. (People v.

Merritt (2017) 2 Cal.5th 819, 824; People v. Mil (2012) 53 Cal.4th 400, 409; People v. 

Williams (1997) 16 Cal.4th 635, 689.) The court also has a sua sponte duty to instruct 

on the elements of any underlying felonies alleged. (People v. Cain (1995) 10 Cal.4th 1, 

36.)

A criminal defendant has the right to a jury determination that the defendant is 

guilty of every element of the crimes charged beyond a reasonable doubt, and the court 

must instruct the jury on the essential elements of the charged offenses and any special 

circumstances. (People v. Merritt, supra, 2 Cal.5th at p. 824.) The class of structural 

errors requiring reversal per se is limited, and only an instructional error or omission that 

amounts to a total deprivation of a jury trial is structural error, such as where the jury is 

given a defective reasonable doubt instruction. (Id. at pp. 822, 826, 829–830.) 

Otherwise, a failure to instruct on elements of a crime does not require reversal if it is 

clear beyond a reasonable doubt that a rational jury would have rendered the same verdict 

absent the error. (Id. at pp. 822, 831; People v. Rivera (2019) 7 Cal.5th 306, 332–333; 

People v. Mil, supra, 53 Cal.4th at p. 409; People v. Williams, supra, 16 Cal.4th at 

p. 689.) Even the extreme case of a trial court’s complete failure to instruct on a charged 

offense or special circumstance is subject to harmless error analysis. (Merritt, at p. 821.)

In evaluating the prejudicial effect of an instructional error, “ ‘[t]he critical 

inquiry, in our view, is not the number of omitted elements but the nature of the issues 

removed from the jury’s consideration. Where the effect of the omission can be 

“quantitatively assessed” in the context of the entire record (and does not otherwise 

qualify as structural error), the failure to instruct on one or more elements is mere “ ‘trial 
51.

error” ’ and thus amenable to harmless error review. [Citation.]’ [Citation.]” (People v. 

Merritt, supra, 2 Cal.5th at p. 828, italics in original.)

We review claims of instructional error de novo. (People v. Rivera, supra, 7 

Cal.5th at p. 326.)

1. Analysis

We find the court’s failure to give CALCRIM No. 730 on the elements of the 

felony murder special circumstance based on burglary was harmless beyond a reasonable 

doubt. While the court failed to instruct on the special circumstance, the jury received 

CALCRIM No. 540A on the elements of felony murder based on burglary. As in 

CALCRIM No. 730, the jury was instructed in CALCRIM No. 540A that the People had 

the burden to prove beyond a reasonable doubt that defendant committed residential 

burglary, defendant intended to commit residential burglary, he caused the death of 

another person while committing residential burglary, and he must have intended to 

commit the felony of residential burglary before or at the time that he caused the death of 

another person. The jury was also fully instructed on the elements of residential burglary 

and theft. The jury was thus instructed with the functional equivalent of CALCRIM 

No. 730, and the failure to give that instruction was harmless beyond a reasonable doubt.

Defendant further argues the court should have given CALCRIM No. 703 on the 

special circumstance for felony murder based on accomplice liability since it had already 

instructed the jury with CALCRIM No. 540B on accomplice liability for felony murder.

The court has a sua sponte duty to instruct on accomplice liability when a special 

circumstance is charged and there is sufficient evidence to support the finding that the 

defendant was not the actual killer, regardless of the prosecution’s theory of the case. 

(People v. Jones (2003) 30 Cal.4th 1084, 1117.) In this case, however, there was no 

evidence that supported any instructions on aiding or abetting, or accomplice liability for 

felony murder. The jury was presented with evidence of two vastly different scenarios: 

that defendant was either the lone killer, consistent with the People’s evidence, or an 
52.

unknown person killed Rodriguez during the brief time defendant left the house, based on 

defendant’s trial testimony. While the court gave CALCRIM No. 540B, it also instructed 

the jury with CALCRIM No. 200, that some of the instructions “may not apply” and not 

to assume “just because I give a particular instruction that I am in any way suggesting 

anything about the facts or findings you are to make.” “It is error to give an instruction 

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

case. [Citation.]” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) The jury was thus 

instructed to disregard the accomplice instructions that were given since there was no 

evidence to support that theory.

While the court had a sua sponte duty to give CALCRIM No. 730 on the felony 

murder special circumstance, there was no evidence to support CALCRIM No. 703 on 

accomplice liability for that same special circumstance. As a result, the court’s failure to 

give CALCRIM No. 703 was not error.

III. Constitutional Claim

Defendant raises a separate issue that if the failure to give CALCRIM No. 730 on 

the special circumstance was harmless error because the jury received CALCRIM 

No. 540A on felony murder, such a conclusion means that the special circumstance fails 

to narrow the class of defendants eligible for life without the possibility of parole as 

required by the federal and state constitutions.

Defendant concedes the California Supreme Court has rejected this argument. 

(People v. Stevens (2007) 41 Cal.4th 182, 204; People v. Abilez (2007) 41 Cal.4th 472, 

509; People v. Koontz (2002) 27 Cal.4th 1041, 1095; People v. Catlin (2001) 26 Cal.4th 

81, 157-158.) Defendant acknowledges this court is bound by those rulings (Auto Equity 

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450) but urges this court to reexamine this 

issue.

We are bound by and agree with the California Supreme Court’s rulings and note 

defendant’s preservation of this issue for further review.
53.
54.

IV. CALCRIM No. 376

The jury was instructed with CALCRIM No. 376 as follows:

“If you conclude that the defendant knew he possessed property and 

you conclude that that property had in fact been ·recently stolen, you may 

not find the defendant – you may not find the defendant – that the 

defendant committed ·burglary based on those facts alone. However, if you 

find that the supporting evidence tends to prove his guilt, then you may 

conclude that the evidence is sufficient to prove he committed burglary. 

The supporting evidence need only be slight and need not be enough by 

itself to prove guilt. You may consider how, where, and when the 

defendant possessed the property along with any other relevant 

circumstances tending to prove he committed burglary. 

“Remember that you may not convict the defendant of any ·crime 

unless you are convinced that each fact essential to that conclusion that the 

defendant is guilty of that crime has been committed – has been proved 

beyond a reasonable doubt.”

Defendant argues this instruction undermined his defense theory that he never 

intended to steal anything, it impermissibly diluted the prosecution’s burden of proof by 

allowing the jury to rely on “slight evidence” to infer that he had the requisite intent to 

steal based on possession of recently stolen property, it allowed the jury to convict him 

on proof less than beyond a reasonable doubt, and resulted in his conviction without the 

jury having to determine the credibility of his testimony about how he ended up with 

Rodriguez’s property that had little or no value.

A series of cases have repeatedly approved CALCRIM No. 376 (and its 

predecessor CALJIC No. 2.15) as constitutional, including the “slight evidence” 

language, and found the instruction does not contain an improper inference or reduce the 

People’s burden of proof. (People v. Potts (2019) 6 Cal.5th 1012, 1042–1043; People v. 

Grimes (2016) 1 Cal.5th 698, 730; People v. Seumanu (2015) 61 Cal.4th 1293, 1350–

1351; People v. Lopez (2011) 198 Cal.App.4th 698, 708–712; People v. O’Dell (2007) 

153 Cal.App.4th 1569, 1574–1577.)
55.

Defendant argues that while the instruction has been approved in other contexts, it 

was improper in this case because his recent possession of stolen property “did not 

logically support the inference he had that intent when he entered Rodriguez’s home, the

essential element of the charged felony-murder.” (Italics in original.) As we have 

repeatedly explained, however, defendant was not required to have the intent to steal 

when he initially entered Rodriguez’s house. While he had previously been invited into 

Rodriguez’s house, and he entered with permission on the day of the murder, that did not 

mean he was incapable of forming the intent to steal after he entered the house and before 

he entered one of the rooms to steal property. There is strong circumstantial evidence 

that he had the intent to steal when he later walked into the backroom/workshop and took 

Rodriguez’s property, including the hammer that he then used to kill Rodriguez.

V. Parole Revocation Fine

Defendant contends and the People agree that the court improperly imposed and 

stayed a $4,000 parole revocation fine pursuant to section 1202.45, since defendant was 

sentenced to life in prison without possibility of parole. The fine must be stricken.

DISPOSITION

The trial court’s order that imposed and stayed a parole revocation fine of $4,000 

is ordered stricken. In all other respects, the judgment is affirmed.

POOCHIGIAN, J.

WE CONCUR:

HILL, P.J.

SMITH, J.