Rodriguez

Cirilo Rodriguez appeals from his convictions of attempted murder and mayhem stemming from an attack on his wife, Sandra Rodriguez. His sole contention on appeal is that the trial court erred by instructing the jury that it could consider his failure to explain or deny incriminating facts. In the published portion of the opinion, we conclude there is no constitutional infirmity in the challenged instruction. In the unpublished portion of the decision we conclude there was a sufficient evidentiary basis to warrant giving the instruction.

FACTUAL AND PROCEDURAL SUMMARY

The victim, Sandra Rodriguez, returned home with her children on the night of April 28, 2005, following a visit with family in Tijuana, Mexico. She found the house in disarray, with the contents of the refrigerator and family photographs on the floor. Flowers were arranged with the photographs as if for an altar or shrine. Appellant was home, but did not know where his car was. Sandra called the police to report the vehicle as stolen. The responding officers advised her to take appellant to the hospital based on his strange behavior. Sandra called her sister to take the children to the sister’s house while…