Filed 8/26/21 P. v. Solis CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B305541
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA434593)
v.
HENRY SOLIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Robert J. Perry, Judge. Affirmed.
Randy S. Kravis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Roberta L. Davis and William H.
Shin, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
A jury convicted Henry Solis of second degree murder after
he fatally shot Salome Rodriguez outside a nightclub. Solis was a
police officer, but he was not on duty at the time. At trial, Solis
testified that Rodriguez and another man robbed
and sexually assaulted him earlier that night. According to
Solis, he killed Rodriguez while trying to arrest him for those
crimes. On appeal, Solis contends the trial court made several
instructional errors and the prosecutor engaged in misconduct.
He also asserts his counsel provided ineffective assistance for
failing to request certain jury instructions and failing to object to
the imposition of fines and fees. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Solis was charged by information with the first degree
murder of Salome Rodriguez. (Pen. Code, § 187, subd. (a).)1
It was further alleged that he personally and intentionally
discharged a firearm causing great bodily injury and death.
(§ 12022.53, subd. (d).)2
Prosecution Evidence
The case was tried to a jury, and the prosecution presented
evidence showing the following.
The evening of March 12, 2015, Rodriguez and his
coworker, Gene Garcia, drove to the Carnaval nightclub in
downtown Pomona. Inside the club, Rodriguez met Monique
Ortiz, who was working as a dancer. Rodriguez danced with
Ortiz and her friends throughout the night.
1 All undesignated statutory references are to the Penal
Code.
2 The information also alleged Solis committed assault with
a firearm, but the court granted the People’s motion to dismiss
the count during trial.
2
Around 1:45 or 2:00 a.m., Rodriguez, Ortiz, and her friends
left the club and went to a pizza place located in the same
building. Rodriguez and Ortiz were flirting with each other.
They stayed at the pizza place for about 30 or 40 minutes.
Rodriguez walked Ortiz’s friend to her car before meeting
up with Garcia, who was waiting outside Carnaval. Garcia drove
them to a nearby parking lot and fell asleep. At some point
Rodriguez got out of the car and started walking toward the pizza
place, possibly to look for his missing wallet.
Around this time, Solis was standing outside the Vive
nightclub, which was located in the same building as the pizza
place and Carnaval. Vive was an after-hours club, which
generally stayed open until 3:00 a.m.
Yerezmin Martinez, who was also standing outside Vive,
thought Solis looked “dozed out,” and she asked if he was okay.
They had a brief conversation, during which Solis said he had
served in the military. Solis’s personality alternated between
bubbly and aggressive. At one point, he put his hand near his
back, around his waistline. Martinez felt “weird” and decided to
end the conversation.
A few moments later, Martinez saw Solis and Rodriguez
running and shoving each other. It looked like Rodriguez was
trying to get away. Solis pressed Rodriguez up against a car with
one hand while holding a gun in his other hand. He pointed the
gun at Rodriguez’s forehead, between his eyes. Solis and
Rodriguez pushed off one another, and they started running.
Martinez lost sight of them at that point.
Dennis Kuntz, who lived in the area, was asleep and woke
up to the sound of two men arguing. He heard one man say “why
would you do that,” and another man fearfully respond, “I
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wouldn’t do that” or “I didn’t do that.” The second man then
repeatedly said “no” in an incredibly fearful tone. Moments later,
Kuntz heard four gunshots.
Christopher Romero was collecting cans near Vive when he
saw Solis cross the street and start talking to Rodriguez. It
sounded like they were arguing, and Rodriguez seemed to be
trying to get away from Solis. Solis pushed Rodriguez with both
hands. Rodriguez started walking away, and Solis followed him.
Both men stopped walking and got in each other’s face.
Rodriguez swung his fist at Solis. A few minutes later, Solis—
who was standing—shot Rodriguez four times. Rodriguez started
running away, but he eventually collapsed.
A security guard found Rodriguez lying face down next to
Garcia’s car. Rodriguez suffered gunshot wounds to the neck,
abdomen, and thigh. He also suffered abrasions and scrapes to
one of his knees. Rodriguez was transported to a hospital and
underwent surgery, but he eventually died from his wounds. The
coroner opined that one of the thigh wounds was fatal.
After shooting Rodriguez, Solis had his roommate, Laura
Rosales, pick him up in downtown Pomona. Solis told Rosales he
had “fucked up,” killed somebody, and was going to kill himself.
Solis quickly remarked that he was just kidding. Later, he told
Rosales, “you’re never going to see me again.” Solis also told
Rosales he was going to throw away his shirt. Rosales later
found the shirt partially tucked into the rear bumper of her car.
Around 5:00 a.m. on March 13, Solis hired a taxi to drive
him around downtown Pomona, apparently to look for his car.
They searched unsuccessfully for 45 minutes. Solis told the
driver he had been in the Marines, and he was unhappy with how
4
military veterans are treated. He said his friend recently
committed suicide.
Solis was photographed entering Mexico in the early
morning of March 14. That same day, he called Rosales, asking if
anyone was looking for him. He told her not to tell the police
anything. With the help of U.S. federal agents, Mexican officials
located Solis in Juarez and took him into custody on May 26,
2015. He was extradited to the United States.
A fully-loaded magazine for a Glock 42 firearm was
discovered near where Rodriguez was shot. Police subsequently
found in Solis’s room a receipt for the purchase of a Glock 42
firearm and two magazines. The bullets recovered from
Rodriguez’s body, however, had been fired from a different type of
gun. Solis received such a gun as a gift from his uncle.
Police discovered Solis’s car parked a few blocks from Vive.
Inside the car, officers found handcuffs and a police service
firearm loaded with a 17-round magazine. They also found a
pass for a parking lot much closer to the nightclub. The pass was
purchased the night of the shooting and was valid for 15 hours.
The prosecution’s crime reconstruction expert opined that
Rodriguez was shot first in the neck while standing and bent
slightly forward. The second shot was to the abdomen, while he
was turned away from the muzzle of the gun. The final two
shots, which struck Rodriguez in the thigh, occurred while he was
on the ground and on his knees.
Defense Evidence
Solis testified in his own defense. According to Solis, after
serving in the military, he applied to be an officer in the Los
Angeles Police Department. He eventually graduated from the
5
academy and was assigned to the Devonshire station as a patrol
officer.
Solis went to Vive around midnight on March 12. He
carried an unholstered Glock 42 handgun in his back pocket.
Solis was sitting at the bar when Rodriguez walked up to
him and asked if he was a Norteño gang member. Solis said he
was not and did not mean to offend anyone. He then bought
drinks for Rodriguez and another man with him.
Solis told Rodriguez he worked for his aunt’s interior
design business. Rodriguez asked Solis if he was gay, and Solis
responded, “Yes. I’m gay. I’m bi.” The man who was with
Rodriguez remarked, “You’re going to have to sleep with him for
that drink.”
Solis finished his drink and went to the restroom, which
was empty. He walked into the handicap stall and began to
urinate. Solis heard footsteps and then someone struck him on
the back of the head. He started to lose consciousness and ended
up on his knees, pressed against the toilet. Solis turned around
and saw Rodriguez pointing a gun at him. Solis felt someone
searching his pants and then pull down his boxers. Solis
screamed and unsuccessfully tried to get away.
Rodriguez remarked that this was his turf, Solis was a
Norteño, and Rodriguez was going to kill him if he saw him
again. Solis felt a hard object being pushed up his rectum and he
screamed. Rodriguez and the other person ran away. Solis
pulled a beer bottle out of his rectum. He was in considerable
pain, and noticed his wallet and gun were missing.
Solis left the bathroom and asked if anyone had seen
Rodriguez, but no one had. He left the club and walked around.
He did not want to call the police because he was embarrassed
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and could not provide a helpful description of his attackers. He
was also concerned they might run off if they heard police sirens.
Solis went to his car and retrieved a single pair of
handcuffs and a five-shot revolver. He drove the car around the
area looking for Rodriguez. He was dizzy, so he decided to park
and walk around on foot. He then returned to Vive to see if there
were security cameras that captured the assault.
Solis was talking to Yerezmin Martinez outside Vive when
he saw Rodriguez pass by. Solis followed him. Rodriguez
eventually noticed Solis and asked him, “what the fuck are you
doing here?” Solis told him, “I’m a Los Angeles Police Officer,
and you’re under arrest for assault and robbery.” Rodriguez told
him to “fuck off” and walked away. Solis pulled out his police
badge, but Rodriguez continued to ignore him.
Solis circled in front of Rodriguez, took out his revolver,
and again told Rodriguez he was under arrest. Rodriguez started
walking toward a car. Solis sprinted after him, pushed him up
against the car, and started patting him down. Rodriguez pushed
him away.
Solis asked “where’s the gun?” Rodriguez pulled out the
Glock 42 and threw it underneath a car. The magazine popped
out, and Solis kicked it away. Solis screamed, “someone please
call the police.” He heard a man respond, “I’m calling the police,”
and “the police are on their way.”
Rodriguez offered to take Solis to his friend, who he
claimed was responsible for the sexual assault. Solis refused and
told Rodriguez to wait until the police arrived. Rodriguez instead
walked away, and Solis followed him. Solis repeatedly demanded
Rodriguez stop walking and said he would shoot if Rodriguez
reached for anything.
7
Solis pulled his cellphone out of his pocket with his right
hand while holding the revolver in his left hand. At that point,
Rodriguez approached Solis and tried to punch him. Rodriguez
then grabbed Solis’s left hand and attempted to take the revolver.
Solis switched the revolver to his right hand, and Rodriguez tried
to grab his right arm. Solis aimed the revolver at Rodriguez’s leg
and fired. He did not want to kill Rodriguez.
Rodriguez “bull rushed” Solis, who pulled the trigger a
second time. Solis fell to the ground on his back. Rodriguez, still
standing, moved to the left side of Solis’s body and lifted his leg,
preparing to stomp Solis in the head. Solis feared for his life,
thinking the kick would either kill him or he would lose his
weapon and Rodriguez would shoot him. When asked at trial
why he was afraid, Solis responded, “I don’t think I have the
words. I was afraid.”
Solis quickly fired two shots toward Rodriguez’s leg.
Rodriguez turned and ran away. Solis got up and ran the other
direction.
Solis did not stay at the scene because he was ashamed and
embarrassed. He was concerned that he would be treated as a
pariah because of the anti-police rhetoric at the time. He also did
not think the police would believe him, so he decided to flee to
Mexico.
In addition to Solis’s testimony, the defense presented
evidence that Rodriguez told someone in the pizza place that he
planned to go to Vive later that night. The defense also
presented testimony from a crime reconstruction expert who
opined it was impossible to tell with certainty what position
Rodriguez was in when he was shot in the thigh. The expert
8
could not rule out the possibility that Solis was on the ground
shooting up at Rodriguez.
Verdict and Sentence
The jury convicted Solis of second degree murder and found
true the firearm enhancement. The court sentenced him to 15
years to life for the murder, plus a consecutive 25 years to life for
the firearm enhancement. The court imposed various fines and
fees without objection. Solis appealed.
DISCUSSION
I. Defense Counsel Did Not Provide Ineffective
Assistance by Failing to Request Jury Instructions
on Antecedent Threats/Harm
Solis contends his counsel rendered ineffective assistance
by failing to request the jury be instructed they could consider
Rodriguez’s alleged assault when determining whether Solis
acted in self-defense. We disagree.
The trial court instructed the jury with CALCRIM Nos. 505
and 571, which concern perfect and imperfect self-defense. Both
instructions informed the jury that self-defense has a subjective
component: the defendant must actually believe (1) he was in
imminent danger of being killed or suffering great bodily injury,
and (2) the immediate use of deadly force was necessary to defend
against the danger. The instructions also informed the jury that
perfect self-defense has an objective component: the defendant’s
beliefs must be reasonable. The instructions told the jurors to
“consider all the circumstances” as they were known and
appeared to the defendant when evaluating his beliefs.
Among the circumstances a jury may consider when
evaluating a defendant’s beliefs are prior threats or assaults by
the victim, which are often referred to as antecedent
9
threats/harm. (People v. Minifie (1996) 13 Cal.4th 1055, 1065.)
The model CALCRIM instructions on self-defense include
optional language regarding antecedent threats/harm. The
optional language in CALCRIM No. 505, for example, states:
“If you find that [the decedent] threatened or harmed the
defendant [or others] in the past, you may consider that
information in deciding whether the defendant’s conduct and
beliefs were reasonable.” The optional language in CALCRIM
No. 571 similarly states: “If you find that [the decedent]
threatened or harmed the defendant [or others] in the past, you
may consider that information in evaluating the defendant’s
beliefs.” The trial court did not instruct the jury with this
optional language; nor did defense counsel request such
instructions.
As Solis concedes, the trial court did not have a sua sponte
duty to instruct the jury with the optional antecedent
threats/harm language. (See People v. Garvin (2003) 110
Cal.App.4th 484, 489.) This is because the standard CALCRIM
instructions on self-defense are legally correct, and the concept of
antecedent threats/harm is fully consistent with the general
principles expressed in them. As a result, an instruction on
antecedent threats/harm is essentially a clarifying instruction,
which must be given only if requested by a party. (Ibid.)
Aware of this authority, Solis contends his counsel
rendered ineffective assistance by failing to request the clarifying
instructions, which were necessary to allow the jurors to connect
the prior assault with his state of mind and the objective
reasonableness of his fear. To prevail on a claim of ineffective
assistance of counsel, a defendant must establish two elements:
(1) counsel’s representation fell below an objective standard of
10
reasonableness; and (2) there is a reasonable probability that, but
for counsel’s errors or omissions, a determination more favorable
to the defendant would have resulted. (Strickland v. Washington
(1984) 466 U.S. 668, 690, 694; see People v. Holt (1997) 15 Cal.4th
619, 703.)
We need not decide whether counsel’s failure to request the
clarifying instructions fell below an objective standard of
reasonableness because there is no reasonable probability that,
had the court given the instructions, a determination more
favorable to Solis would have resulted.
The issue of self-defense did not turn on a dispute over
Solis’s beliefs. Rather, it essentially came down to which version
of events the jurors believed. If they believed Solis’s testimony
that Rodriguez resisted arrest, reached for his gun, tackled him,
and then prepared to stomp on his head, it is inconceivable that
they would have concluded Solis did not reasonably fear for his
life and believe the use of deadly force was necessary. This is
true even without factoring in the effect of the alleged prior
assault. If, on the other hand, the jurors believed the
prosecution’s theory that Solis shot Rodriguez while on his knees,
there is little doubt they would have found Solis did not
reasonably fear for his life or believe deadly force was necessary.
Both defense counsel and the prosecution seemed to recognize
this, as neither spent significant time challenging or bolstering
Solis’s beliefs, either while examining him or during their closing
arguments. Instead, both focused on which version of events was
true. The antecedent threats/harm instructions would not have
assisted the jurors in making that determination.
In any event, the jury was instructed to consider “all the
circumstances” as they were known and appeared to Solis when
11
evaluating his beliefs. Given Solis’s testimony that the alleged
assault occurred in close proximity to, and was the motivating
force behind, the subsequent deadly confrontation, there is little
doubt the jurors would have considered it when determining
whether he actually and reasonably feared for his life and
believed the use of deadly force was necessary. (See People v.
Gonzales (1992) 8 Cal.App.4th 1658, 1665 [“The concept [of
antecedent harm] is closer to rough and ready common sense
than abstract legal principle.”].) As a result, there is no
reasonable probability that, had the court given the instructions,
a determination more favorable to Solis would have resulted.
Solis did not receive ineffective assistance of counsel.
II. The Court Did Not Prejudicially Err by Instructing
the Jury with CALCRIM No. 3471
Solis argues the trial court erred by instructing the jury
with CALCRIM No. 3471, which concerns the availability of self-
defense where there is mutual combat or the defendant is the
initial aggressor. We find no reversible error.
A. Background
The prosecutor requested the trial court instruct the jury
with CALCRIM No. 3471, to which Solis objected. The court
asked if there was evidence of mutual combat, and the prosecutor
responded that she intended to argue only that Solis was the
initial aggressor. The trial court overruled Solis’s objection and
instructed the jury as follows:
“A person who engages in mutual combat or who starts a
fight has a right to self-defense only if:
1. He actually and in good faith tried to stop fighting;
AND
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2. He indicated, by word or by conduct, to his opponent in a
way that a reasonable person would understand, that he
wanted to stop fighting and that he had stopped
fighting;
AND
3. He gave his opponent a chance to stop fighting.
If the defendant meets these requirements, he then had a
right to self-defense if the opponent continued to fight.
However, if the defendant used only non-deadly force, and
the opponent responded with such sudden and deadly force
that the defendant could not withdraw from the fight, then
the defendant had the right to defend himself with deadly
force and was not required to try to stop fighting or
communicate the desire to stop to the opponent, or give the
opponent a chance to stop fighting.
A fight is mutual combat when it began or continued by
mutual consent or agreement. That agreement may be
expressly stated or implied and must occur before the claim
to self-defense arose.”
B. Relevant Law
“A trial court must instruct the jury on every theory that is
supported by substantial evidence, that is, evidence that would
allow a reasonable jury to make a determination in accordance
with the theory presented under the proper standard of proof.”
(People v. Cole (2004) 33 Cal.4th 1158, 1206.) As a corollary to
this rule, “[i]t is error to give an instruction which, while correctly
stating a principle of law, has no application to the facts of the
case.” (See People v. Guiton (1993) 4 Cal.4th 1116, 1129.) The
reason is that extraneous instructions may confuse or mislead
the jury. (People v. Jackson (1954) 42 Cal.2d 540, 546–547.)
13
We independently review whether there was substantial evidence
to support a jury instruction. (People v. Cole, supra, 33 Cal.4th at
p. 1206.)
C. Analysis
Solis contends the court erred by instructing the jury with
CALCRIM No. 3471 because there was no evidence of mutual
combat, nor was there evidence showing he was the initial
aggressor. We consider his mutual combat and initial aggressor
arguments separately.
1. Mutual Combat
Solis first contends there was no evidence showing he and
Rodriguez engaged in mutual combat.3 The Attorney General
implicitly concedes the point, and we agree with Solis. (See
People v. Nguyen (2015) 61 Cal.4th 1015, 1044 [mutual combat
requires a preexisting mutual intention to engage in hostilities].)
Nonetheless, we find the error harmless.
When the court gives an instruction that correctly states a
principle of law, but has no application to the facts of the case,
reversal is required only if it is reasonably probable the result
would have been more favorable to the defendant had the error
not occurred.4 (People v. Guiton, supra, 4 Cal.4th at pp. 1129–
3 We reject the Attorney General’s suggestion that Solis
forfeited this issue by failing to request the court modify the
instruction to delete any reference to mutual combat. Solis
objected to the entire instruction, which was sufficient to
preserve the issue for appeal.
4 We reject Solis’s arguments that the error was of
“constitutional dimensions” because it diminished the
requirement of proof beyond a reasonable doubt, violated his
14
1130.) Prejudice is not assumed, but must be affirmatively
demonstrated. (Id. at p. 1129.)
Here, it is not reasonably probable the jury erroneously
applied the mutual combat language or was confused by it.
In requesting the CALCRIM No. 3471 instruction, the prosecutor
represented that she intended to argue only that Solis was the
initial aggressor. Consistent with this representation, the
prosecution did not refer to mutual combat at any point during
closing arguments. The instruction, moreover, clearly defined the
concept, so there was little risk the jury would apply it using a
lay definition or understanding. (Cf. People v. Ross (2007) 155
Cal.App.4th 1033, 1054 [mutual combat instruction was
prejudicial error where the term was not defined for the jury].)
The court also instructed the jurors that some of its instructions
might not be applicable, depending on their factual findings.
We presume the jurors followed the court’s instruction.
(See People v. Frandsen (2011) 196 Cal.App.4th 266, 278 [“the
jury is presumed to disregard an instruction if the jury finds the
evidence does not support its application”].) Under these
circumstances, it is not reasonably probable the result would
have been more favorable to Solis had the court not instructed
the jury on mutual combat.
2. Initial Aggressor
Solis argues the trial court erred by instructing the jury
with the initial aggressor language in CALCRIM No. 3471.
He acknowledges there is evidence showing he pursued and
pointed a firearm at Rodriguez prior to the shooting. He insists,
however, his actions were lawful because he was acting as a law
right to a fair trial, and deprived him of a meaningful opportunity
to present a complete defense. The error did no such things.
15
enforcement officer and attempting to arrest Rodriguez for an
earlier robbery and assault.
Contrary to Solis’s suggestions, the jury was not compelled
to find he was attempting to arrest Rodriguez as a law
enforcement officer. Even assuming Solis was robbed and
assaulted in the manner he described (which is far from clear), it
defies rational explanation why he would then single-handedly
pursue and attempt to arrest two men he knew to be armed and
dangerous, rather than reporting the crimes to the police and
requesting backup. Just as perplexing was his decision to
retrieve only a single pair of handcuffs and arm himself with a
five-shot revolver, rather than his service weapon that was
loaded with a 17-round magazine. That Solis was acting as a law
enforcement officer was further contradicted by testimony from
multiple witnesses who observed him shove and argue with
Rodriguez before the shooting. It was also undisputed that Solis
subsequently fled to Mexico, hid evidence, and tried to dissuade a
witness from cooperating with police. In light of this evidence,
the jury could have reasonably rejected Solis’s testimony that he
was attempting to arrest Rodriguez, and instead concluded he
confronted Rodriguez for some other, unlawful purpose.
Solis alternatively suggests the court should not have given
the initial aggressor instruction because it was inconsistent with
the parties’ factual theories of the case. According to Solis, the
jury must have either concluded he targeted Rodriguez for
murder, as the prosecution claimed, or that he acted in self-
defense after lawfully attempting to arrest Rodriguez, as he
claimed. Solis contends this leaves no room for a finding that he
would have been entitled to self-defense but for the fact that he
was the initial aggressor.
16
In making this argument, Solis overlooks that the jurors
were not required to wholly accept or reject either party’s factual
theory of the case; they were free to take bits and pieces from
each, or concoct an entirely new theory so long as it found
sufficient support in the evidence and instructions. In fact,
during deliberations, the jury asked the court to clarify this
precise issue. Based on the evidence presented at trial, the jurors
could have reasonably concluded Solis lied about attempting to
lawfully arrest Rodriguez, yet told the truth about Rodriguez
tackling him and attempting to stomp his head. If so, whether
Solis was the initial aggressor was a key issue for the jury to
decide. In light of this possibility, the court properly instructed
the jury with the initial aggressor portion of CALCRIM No. 3471.
III. The Court Properly Instructed the Jury with
CALCRIM No. 3472
Solis argues the trial court erred by instructing the jury
with CALCRIM No. 3472 as follows: “A person does not have the
right to self-defense if he provokes a fight or quarrel with the
intent to create an excuse to use force.”5
Solis contends this instruction was superfluous because
there is no evidence showing he provoked a fight or quarrel with
Rodriguez. Not so. Multiple witnesses testified that Solis
pursued Rodriguez, argued with him, repeatedly pushed him, and
5 We agree with the Attorney General that Solis forfeited
this issue by failing to object to the instruction in the trial court.
(People v. Frandsen, supra, 196 Cal.App.4th at p. 278 [defendant
forfeited argument that CALCRIM No. 3472 instruction was not
supported by substantial evidence by failing to object in trial
court].) Nonetheless, we will consider the merits of his argument
in order to forestall his derivative ineffective assistance of counsel
claim.
17
pointed a firearm at him. From this, a reasonable juror could
conclude Solis provoked a fight with Rodriguez with the intent to
create an excuse to use force. (See People v. Eulian (2016) 247
Cal.App.4th 1324, 1334 [evidence that the defendant screamed,
jabbed his finger repeatedly towards the victim’s face, and threw
kibble in her direction was sufficient to warrant CALCRIM No.
3472 instruction].)
Solis alternatively argues the instruction was unwarranted
given he was acting as a law enforcement officer, and the parties’
factual theories of the case left no room for a finding that he was
not entitled to self-defense. These are essentially the same
arguments Solis raised in connection with the initial aggressor
language in CALCRIM No. 3471, and we reject them for the same
reasons discussed above.
IV. The Prosecutor Did Not Engage In Misconduct
Solis contends the prosecutor engaged in misconduct by
trivializing the protections afforded to criminal defendants,
improperly playing on the jurors’ sympathies for Rodriguez, and
shifting the burden of proof.6 Specifically, he complains about the
following remarks the prosecutor made during closing argument:
“Did [Solis] keep that rule of law in mind? At the end of the
day, what did he do to Mr. Rodriguez? Accused him of a
6 We agree with the Attorney General that Solis forfeited his
prosecutorial misconduct claims by failing to object at trial. (See
People v. Tully (2012) 54 Cal.4th 952, 1037–1038 [“Ordinarily,
the failure to object specifically on grounds of misconduct and to
seek an admonition forfeits the claim unless an admonition would
not have cured the harm.”].) Nonetheless, we will consider the
merits of his arguments to forestall his derivative ineffective
assistance of counsel claim.
18
crime. ‘I can’t believe you would.’ Followed him
relentlessly, pursued him, and shot him dead.
“[Solis] robbed the system of [the] presumption [of
innocence] that we have given to him since January 6th.
He robbed Mr. Rodriguez of that presumption that Mr.
Rodriguez was entitled to as one of us, as a citizen of this
country. If you genuinely, genuinely in your heart believe
that this man assaulted you, that this man robbed you, that
this man sodomized you, your job was to put it in before [] a
jury.
“[¶] . . . [¶]
“But you know what we . . . have given [Solis] for the last
week since we started this trial? We gave him a process. . .
. [¶] We gave him a fair trial. And after this [court
reporter] has typed every single word we’ve spoken and
after this judge has ruled on every objection, we hand it
over to you. That’s our system of justice. . . . We give him
what we gave him in this case, what he never gave
Rodriguez, we give him a process and a fair trial. [¶] I ask
you to do what is right by this evidence. Do justice by this
evidence . . . and find the defendant guilty of murder . . . in
the first degree.”
When a claim of misconduct is based on the prosecutor’s
comments before the jury, “ ‘the question is whether there is a
reasonable likelihood that the jury construed or applied any of
the complained-of remarks in an objectionable fashion.’ ” (People
v. Smithey (1999) 20 Cal.4th 936, 960.) We will not “ ‘ “lightly
infer” that the jury drew the most damaging rather than the least
19
damaging meaning from the prosecutor’s statements.
[Citation.]’ ” (People v. Wilson (2005) 36 Cal.4th 309, 337–338.)
Here, it is not reasonably probable the jurors understood
the prosecutor’s comments in the manner Solis suggests. The
prosecutor made the remarks while arguing there was no
justification for Solis shooting and killing Rodriguez. In that
context, it is clear the prosecutor intended to convey that, even if
Solis were the victim of a crime, he was nonetheless an
overzealous vigilante who unlawfully took justice into his own
hands. This was a fair comment on the evidence and well within
the wide latitude given to prosecutors during closing argument.
(See People v. Harrison (2005) 35 Cal.4th 208, 244 [“The
[prosecutor’s] argument may be vigorous as long as it is a fair
comment on the evidence, which can include reasonable
inferences or deductions to be drawn therefrom.”].) There is no
significant risk the jurors construed or applied the comments in
some other, objectionable manner.
Solis’s reliance on United States v. Mikhel (9th Cir. 2018)
889 F.3d 1003 (Mikhel), United States v. Mitchell (9th Cir. 2007)
502 F.3d 931 (Mitchell), and Kirkpatrick v. Blackburn (5th Cir.
1985) 777 F.2d 272 (Kirkpatrick), is misplaced. In those cases,
the prosecutors made remarks similar to the ones the prosecutor
made here, but they did so while arguing for the imposition of the
death penalty. (See Mikhel, at pp. 1055–1056; Mitchell, at p. 995;
Kirkpatrick, at p. 283.) In that context, the comments were
wholly irrelevant to the issues before the juries, and the only
reasonable interpretations of them were improper. Here, the
prosecutor’s remarks were a fair comment on the evidence
concerning a key issue in the case: whether Solis was acting as a
law enforcement officer when he pursued and shot Rodriguez.
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Given this distinction, Mikhel, Mitchell, and Blackburn are of no
help to Solis.
V. Solis Has Not Shown His Counsel Provided
Ineffective Assistance By Failing to Object to the
Fines and Fees
Solis contends his counsel provided ineffective assistance
by failing to object to the court’s imposition of a $300 restitution
fine (§ 1202.4), a stayed $300 parole revocation fine (§ 1202.45), a
$40 court operations assessment (§ 1465.8), and a $30 criminal
conviction assessment (Gov. Code, § 70373). According to Solis,
his counsel should have requested the court first determine
whether he had the ability to pay the fines and fees. We
disagree.
To prevail on a claim of ineffective assistance of counsel, a
defendant must establish two elements: (1) counsel’s
representation fell below an objective standard of reasonableness;
and (2) there is a reasonable probability that, but for counsel’s
errors or omissions, a determination more favorable to the
defendant would have resulted. (Strickland v. Washington,
supra, 466 U.S. at pp. 690, 694; see People v. Holt, supra, 15
Cal.4th at p. 703.) If the record fails to disclose why trial counsel
acted or failed to act in the manner challenged, the ineffective
assistance of counsel claim must be rejected unless counsel was
asked for, and failed to provide, an explanation or there could be
no plausible explanation. (People v. Pope (1979) 23 Cal.3d 412,
426, overruled on another ground in People v. Berryman (1993)
6 Cal.4th 1048, 1081, fn. 10.)
Here, the record does not disclose why counsel declined to
object to the fines and fees, and counsel was not asked to provide
an explanation. Moreover, we can conceive at least one plausible
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explanation for counsel’s failure to object: he was aware that
Solis had the ability to pay the relatively modest fines and fees.
Solis, after all, had retained private counsel to represent him at
the lengthy trial and sentencing. Because we can conceive a
plausible explanation for counsel’s failure to object, we reject
Solis’s claim that he received ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
OHTA, J.*
We concur:
GRIMES, Acting P. J.
STRATTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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