Fresno man gets life in prison without parole for killing sleeping man

A 21-year-old Fresno man was sentenced Thursday in Fresno County Superior Court to 52 years to life in prison, plus life in prison without the possibility of parole, for the first-degree murder of a family man who was shot while he was sleeping in his van in southwest Fresno four years ago.

Wearing a yellow jail jumpsuit and shackles, Kylin Dion Smith said he didn’t kill 42-year-old Felipe Atilano, who was shot in the head during the early hours of Oct. 2, 2011. Smith said Walter Gerard King shot the victim.

“Contrary to what you believe, I was not the one who killed your father,” Smith told the victim’s son, Luis Atilano, who sat in the courtroom.

Smith was hoping to get the same sentence as King, who was convicted in March 2013 of first-degree murder in the shooting death of Atilano, the father of five children. King was sentenced to 50 years to life.

But in announcing the sentence for Smith, Judge John Vogt said he believed Smith instigated the killing of an innocent victim.

“I don’t see him being an outsider,” Vogt said of Smith. “I don’t see him being a follower.”

Police said Smith and King were both 17 when they killed Atilano. They were tried separately as adults because of the seriousness of the crime, and Vogt was the judge in both trials.

During Smith’s trial, prosecutor Christopher Gularte told the jury that Smith shot Atilano as the victim slept in his van parked on Martin Luther King Boulevard near Loreno Avenue. After the killing, Smith laughed as he went through the victim’s pockets, Gularte said.

Smith also was accused of firing seven shots at Isidro Madera, striking him in the arm and legs outside a market on Elm Avenue in southwest Fresno 12 days after Atilano was killed.

Smith wanted Madera’s 12-pack of soda, but Madera wouldn’t give it to him, Gularte told the jury.

In a videotaped police interview, Smith said he shot Madera, who was 70 at the time, Gularte said.

Even though Smith confessed, the jury did not find Smith guilty of the attempted murder of Madera, said attorney Roberto Dulce, who defended Smith.

Jurors, however did convict Smith of the attempted robbery of Atilano and the attempted robbery of Madera, Gulare said.

Initially, police said Smith blamed another person for fatally shooting Atilano. But after King told police detectives that Smith shot Atilano, Smith blamed King for shooting Atilano.

Gularte said Thursday that Smith was a candidate for life in prison without parole because the jury found true the special allegation that said Atilano was murdered during the commission of a robbery. He said the judge also found true that Atilano was killed to promote a street gang. The gang allegation means that anyone participating in a killing, even if they are not the shooter, can be sentenced to 25 years to life in prison if a gun is used.

In announcing the punishment, Vogt sentenced Smith to life in prison without parole for the murder of Atilano and 25 years to life in prison because a gun was used. The judge also sentenced Smith to two years and six months in prison for attempted robbery of Madera and another 25 years to life in prison because a gun was used in the crime.

In asking for the maximum penalty for Smith, Luis Atilano told the judge that his father was a hard worker who sometimes worked seven days a week to provide for his family.

Luis Atilano also told Vogt that he knows Madera. He said Madera is no longer the independent person he used to be before the shooting. “He now has to use a wheelchair,” Atilano said.

In his apology, Smith told Atilano’s son: “I see a lot of anger in your eyes and I don’t blame you.”

“But I hope you have mercy on me,” Smith said. “I pray for you and pray for your family, and I hope one day you will forgive me.”

This story was originally published November 5, 2015 at 6:15 PM with the headline "Fresno man gets life in prison without parole for killing sleeping man."