Filed 6/27/13 P. v. Agaton-Hernandez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037855
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS082497A)

         v.

FRANCISCO AGATON-HERNANDEZ,

         Defendant and Appellant.

         Following a bench trial, the trial court found defendant Francisco Agaton-
Hernandez guilty of second degree murder for the killing of Roshni Singh. The court
sentenced him to a term of 15 years to life. On appeal, defendant contends the evidence
was insufficient to support a conviction of second degree murder. We find the evidence
sufficient to support the conviction, and we will affirm the judgment.1
                                                         FACTS
         Victor Cabrera was defendant’s former boss and the coconspirator in the murder.
On September 28, 2008, Cabrera strangled to death his girlfriend, Roshni Singh,
sometime between midnight and 2:00 a.m. at their home in Marina. Defendant was
working at a donut shop in Seaside at the time, but he joined Cabrera later that morning.
Defendant admitted he helped Cabrera cover up the murder by staging a robbery, moving

1
 Defendant also has filed a petition for writ of habeas corpus, which we have ordered
considered with the appeal. We have disposed of the petition by separate order filed this
day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
the body, and disposing of evidence. Defendant denied he was involved in planning to
kill Singh. He claimed he was unaware of the murder until after Cabrera had killed
Singh. However, a witness, Jose Ayuzo, told police that defendant offered to pay him
$30,000 to tie up a woman and batter her. Several hours before Singh was killed,
defendant told Ayuzo to go to a gas station in Monterey to commit the assault, but Ayuzo
did not go. Cabrera killed Singh later that night.
       I.     Cabrera’s Fabricated Coverup Story to Police
       Victor Cabrera worked at the Village Motor Works Gas Station on North Fremont
Street in Monterey. On September 28, 2008, the day of the murder, at around 6:30 a.m.,
Cabrera called 911 from the gas station. When police arrived, they found Cabrera on the
floor, with his hands tied behind his back. Candy boxes and other items were scattered
on the floor. Cabrera claimed he had been robbed. He said he had struggled to free
himself for approximately 45 minutes, until he was able to knock over a phone with his
nose and dial 911 with his tongue.
       Cabrera told police the following false story: He and Singh had driven to the gas
station at about 5:00 a.m. in a red Toyota 4Runner. They were planning to go shopping
in Berkeley, but he had left his wallet, jacket, and cell phone charger at the gas station the
night before. They went to the gas station to retrieve the items before going to Berkeley.
Singh remained in the car while he went into the shop. After he went into the shop, two
dark-skinned males entered the shop and robbed him. One had a knife, and the other had
a handgun. They took his wallet and cell phone, tied him up, and struck him several
times. He did not know what happened to Singh or the 4Runner during the robbery. He
noticed that the 4Runner was missing when he was calling 911.
       Cabrera gave police permission to search his home in Marina, where they found
Singh’s wallet and cell phone. Later that day, police found the 4Runner parked at an
apartment complex in Monterey. Singh’s body was lying face down in the back seat.


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       Cabrera was the beneficiary of a $600,000 life insurance policy on Singh. A
second policy for $360,000 named Singh’s son as a beneficiary. Cabrera had planned to
take care of Singh’s son in the event of her death.
       Cabrera disappeared before police could arrest him. At the time of defendant’s
trial, Cabrera was still missing.
       II.    Defendant’s Involvement in the Murder
       Police found defendant through a search of Cabrera’s phone records. The records
showed calls to and from a phone belonging to “Martin Cerda,” an alias used by
defendant. Cabrera had previously been a manager at a Burger King. He had helped
defendant obtain a job at the Burger King by supplying him with a social security number
and the Martin Cerda alias.
       Defendant made numerous inconsistent statements in multiple interviews with the
police. After lying about many aspects of his involvement in the crime, defendant
eventually admitted to the following: Cabrera had visited him at work at Red’s Donuts in
Seaside on September 27, 2008, the night before the murder, around 10:00 p.m. to
11:00 p.m. Cabrera wanted defendant to come to Cabrera’s home in Marina, but
defendant said he did not get off work until 4:00 a.m. or 5:00 a.m. They then spoke on
the phone shortly after 4:00 a.m., when Cabrera again invited defendant to his home in
Marina. Defendant initially claimed he did not know why Cabrera wanted him to go to
Marina. Defendant later said Cabrera wanted him to clean the house.
       At around 4:30 a.m., defendant left Red’s Donuts, went home, and changed his
clothes. He was due at his second job at Burger King at 6:30 a.m. Nevertheless, he took
a taxi from his home to Cabrera’s home in Marina at around 5:00 a.m. Police
interviewed the taxi driver, who confirmed that he drove defendant to Marina around that
time. The driver noticed that defendant was wearing plastic gloves. Defendant told the
driver to drop him off on a corner several houses away from Cabrera’s house. Defendant
also told the driver he would need another ride later.
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       When defendant got to Cabrera’s house, Singh was already dead. Defendant
claimed Cabrera did not tell him about the murder until defendant arrived, and that
Cabrera had everything planned. Defendant insisted he would not have gone to Cabrera’s
house if he had known Cabrera had killed Singh.
       Defendant said Cabrera invited him in and asked him to help move the body into
the car. Singh’s body was on a sofa in the living room. Defendant helped Cabrera move
the body to the car. Defendant opened the car door, and Cabrera pushed the body into the
car. Defendant also turned over the couch cushions that were underneath the body.
       Cabrera and defendant then took the body to the gas station to stage the robbery.
At the gas station, Cabrera gave defendant a rope. Cabrera told defendant to tie him up,
hit him, and throw around some candy and cigarettes. Defendant tied Cabrera, hit him
twice, and threw some candy bars on the floor. Defendant then took Cabrera’s cell phone
and wallet, and threw them in the rear parking lot.
       After staging the robbery, defendant drove the 4Runner with Singh’s body in the
back to an apartment complex in Monterey, where he parked the car with the body. He
threw the car keys into the bushes, and called the taxi driver to pick him up. Police later
located the keys where defendant said they were.
       Defendant said he helped Cabrera because Cabrera had treated him well and had
helped him get a social security number and a job. Defendant said Cabrera was planning
to buy the gas station, and had promised defendant a job there. Defendant denied that he
asked Cabrera for money, but he said Cabrera had promised to give him money after the
crime was completed. Cabrera did not say how much money he would give defendant.
       III.   Jose Ayuzo’s Involvement
       Police also found Jose Ayuzo after discovering numerous phone calls between
defendant and Ayuzo in the days before the murder. When police interviewed Ayuzo, he
initially denied any involvement, but he later admitted defendant had solicited his help.
Ayuzo made multiple different statements, mixed up the timing of events, and gave
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vague answers to specific questions. At trial, the parties stipulated that Ayuzo, if called
to testify, would give testimony consistent with the following:
       One week before the murder, defendant offered Ayuzo $30,000 to help him tie up
and batter a woman at a tire shop in Monterey. The money belonged to the woman’s
boyfriend, who was defendant’s friend. After this conversation, however, Ayuzo was
arrested for shoplifting and decided not to help defendant with the crime. But because
Ayuzo feared defendant, he kept telling defendant he would help with the assault.
       Ayuzo met with defendant again several days before the murder. Defendant told
Ayuzo to meet him at a tire shop and gas station on North Fremont Street in Monterey at
5:00 p.m. on September 27, 2008. The plan was for the woman to arrive there with her
boyfriend, whereupon defendant and Ayuzo would beat her and tie her up.
       On the afternoon of September 27, defendant saw Ayuzo on the street, and offered
him a ride. Defendant told Ayuzo to be at the gas station at 5:00 p.m. Ayuzo later said
the time was between 5:00 p.m. and 7:00 p.m. Ayuzo turned off his cell phone during
part of the evening, and did not go to the tire shop. Later that evening, he turned his
phone on and called defendant, who was angry with Ayuzo. Ayuzo said multiple times
that he did not hurt Singh or move her body.
       Phone records show defendant and Ayuzo called each other more than two dozen
times between September 17 and September 26, 2008. On September 27, defendant
called Ayuzo more than thirty times. On September 28, defendant called Ayuzo nine
times. After 6:45 p.m. on September 27, all defendant’s calls went to Ayuzo’s voice
mail. Ayuzo’s phone service was canceled on September 28.
                            THE TRIAL COURT’S VERDICT
       The trial court found defendant guilty of second degree murder. The court
credited Ayuzo’s statement, and found that defendant recruited Ayuzo for the purpose of
harming Singh. The court identified money as the only motive for the crime, and noted
that the motive could only be accomplished by killing Singh. The court rejected
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defendant’s claim that he helped Cabrera cover up the murder because Cabrera had
treated him well. The court also found circumstantial evidence showing defendant knew
of the murder before arriving at Cabrera’s house on the morning of September 28.
                                        DISCUSSION
       Defendant contends the evidence is insufficient to show that he conspired to
murder Singh. He argues that the evidence shows two separate conspiracies: First, he
conspired to beat and tie up Singh on September 27; second, he conspired to cover up the
murder. Defendant contends there is no substantial evidence that he agreed or intended
to agree to murder Singh. He further argues that Singh’s death was not a natural and
probable consequence of the conspiracy to assault her. Under defendant’s theory, he is
guilty as an accessory after the fact, not as a coconspirator in Singh’s murder.
       We find sufficient evidence supporting the trial court’s verdict, and we will affirm
the judgment.
       I.       Standard of Review
       In reviewing a claim of insufficient evidence, this court reviews the whole record
in the light most favorable to the prosecution to determine whether the record discloses
substantial evidence to support the conviction. (People v. Halvorsen (2007) 42 Cal.4th
379, 419; People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Combs (2004) 34
Cal.4th 821, 849.) “Substantial evidence” is 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. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “Although we must
ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if
the verdict is supported by substantial evidence, we must accord due deference to the trier
of fact and not substitute our evaluation of a witness’s credibility for that of the fact
finder.” (People v. Jones (1990) 51 Cal.3d 34, 314.)
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       “[A] conspiracy consists of two or more persons conspiring to commit any crime.
A conviction of conspiracy requires proof that the defendant and another person had the
specific intent to agree or conspire to commit an offense, as well as the specific intent to
commit the elements of that offense, together with proof of the commission of an overt
act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy.”
(People v. Morante (1999) 20 Cal.4th 403, 416.) The agreement may be shown by
circumstantial evidence, and the defendant’s conduct carrying out their mutual purpose is
sufficient. (People v. Lipinski (1976) 65 Cal.App.3d 566, 575.) “[I]t need not be shown
that the parties met and actually agreed to jointly undertake criminal action. On the
contrary, a criminal conspiracy may be shown by direct or circumstantial evidence that
the parties positively or tacitly came to a mutual understanding to accomplish the act and
unlawful design.” (People v. Brown (1969) 272 Cal.App.2d 623, 628.)
       II.    Sufficiency of the Evidence
       Defendant’s contention that he believed they were simply planning to assault
Singh defies logic. The conspirators would have no motive for the crime unless they
killed Singh for the life insurance benefits. In his numerous statements to police,
defendant never offered any explanation for why they would want to assault Singh, but
not kill her. Nor does defendant explain why, in the absence of some greater financial
motive, they would offer to pay $30,000 to a third party to assist them. Echoing his
statements to police, defendant claims he was motivated to help Cabrera cover up the
murder because Cabrera had helped him obtain a job and social security number.
       Defendant denied knowing of the murder before it happened. But the evidence
supports the inference that defendant knew of the murder before arriving at Cabrera’s
home. The taxi driver testified that defendant was wearing plastic gloves on the way to
Cabrera’s home, suggesting defendant knew he would be involved in cleaning up a crime
scene. Defendant claims it is “thoroughly unremarkable” that he was wearing gloves
because he had just gotten off work at the donut shop. This ignores defendant’s own
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statement that he went home and changed clothes before taking the taxi to Cabrera’s
house. The taxi driver also testified that defendant asked to be dropped off on a street
corner several houses from Cabrera’s home, suggesting defendant did not want to be
associated with the crime scene. Defendant argues alternately that Cabrera may have told
him of the murder for the first time when they spoke on the phone at 4:00 a.m., before
defendant left Red’s Donuts. The record holds no evidence to support this speculation.
       Defendant’s numerous false statements to the police also cast doubt on his claims.
He initially denied knowing anything about the murder. He denied going to Cabrera’s
house or the gas station. In subsequent interviews, he admitted some elements of his
involvement, but continued to lie about the extent of it. He claimed he had gone from
work directly to the gas station to fake the robbery, and he denied moving the 4Runner.
When confronted with the taxi driver’s statements, he admitted going to Cabrera’s house,
but he claimed Singh’s body was already in the car when he arrived. Defendant’s
continued false statements and omissions suggest he also lied about his lack of
involvement in planning the murder.
       Defendant questions the credibility of Ayuzo’s statement to police. But the phone
records showing dozens of calls between defendant and Ayuzo corroborate Ayuzo’s
statement. Defendant continued calling Ayuzo even after Ayuzo had turned off his phone
and failed to appear at the gas station. Defendant notes that the police report describes
Ayuzo as giving “multiple different statements.” However, trial counsel chose to forgo
cross-examination of Ayuzo by stipulating to the admission of Ayuzo’s statements as set
forth in the police report.
       Relying on People v. Herrera (2006) 136 Cal.App.4th 1191 (Herrera), defendant
contends we should reject the prosecution’s use of “the absence of evidence to support an
affirmative inference of appellant’s guilt.” In Herrera, the court affirmed the dismissal
of a charge of conspiracy to manufacture methamphetamine. Police caught Herrera with
a large quantity of pseudoephedrine pills. (Id. at pp. 1195-1196.) He told police he
                                             8
planned to sell them to someone that he knew would use them to manufacture
methamphetamine. Apart from Herrera’s statement, there was no evidence of a co-
conspirator. Herrera invoked the rule of corpus delicti and successfully moved under
Penal Code section 995 to dismiss the charge. (Id. at p. 1196.)
       On appeal, the prosecution argued that the absence of a methamphetamine
laboratory in Herrera’s home supported the inference that Herrera was the middleman in
a conspiracy. (Herrera, supra, at pp. 1204-1205.) The court rejected this argument,
citing the proposition that “[a] legal inference cannot flow from the nonexistence of a
fact; it can be drawn only from a fact actually established.” (Id. at p. 1205, quoting
People v. Stein (1979) 94 Cal.App.3d 235, 239.)
       Agaton-Hernandez contends this proposition requires reversal here because there
was no evidence he conspired to kill Singh. But Herrera is inapposite. The trial court
did not rely on an “absence of evidence” to show defendant’s participation in the murder
conspiracy. The record provides sufficient evidence of participation in the murder
scheme given the financial motive, Ayuzo’s statements about a $30,000 payoff, the
numerous phone calls with Ayuzo, and defendant’s conduct in the taxi en route to the
actual murder scene. The prosecution was not required to show direct proof of an explicit
agreement between the conspirators. (People v. Brown, supra, 272 Cal.App.2d at p.
628.) An agreement may be shown by circumstantial evidence and the defendant’s
conduct carrying out their mutual purpose. (People v. Lipinski, supra, 65 Cal.App.3d at
p. 575.) The circumstantial evidence and defendant’s conduct here are sufficient to prove
he entered into an agreement, either tacit or explicit, to murder Singh.




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                              DISPOSITION
The judgment is affirmed.




                            _______________________________
                            Márquez, J.




WE CONCUR:




______________________________
 Elia, Acting P. J.




____________________________________________
 Bamattre-Manoukian, J.




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