P. v. Agaton-Hernandez CA6

Filed 6/27/13 P. v. Agaton-Hernandez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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.