Filed 4/21/22 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge.

Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

An information charged Ruben Martinez (defendant) with first degree murder of Nicomedes Paz Velasco (Pen. Code,[1] §§ 187, subd. (a), 189, subd. (a)). It alleged defendant used a wooden pole in the commission of the offense (§ 12022, subd. (b)(1)).

At trial, the jury heard evidence concerning defendant and Velasco’s acrimonious relationship. The jury viewed surveillance video of defendant walking toward the area where Velasco’s body was found carrying a large pole, and later walking away from the area with the same pole, on the night of Velasco’s death. A Fresno Police detective testified investigators found a wooden pole with stains on it near the crime scene and a criminalist testified the stains contained Velasco’s blood. A blood stain found on defendant’s shoe also contained Velasco’s DNA. The pathologist who performed Velasco’s autopsy opined he died from multiple blunt force impacts to his head. The jury convicted defendant of first degree murder.

On appeal, defendant claims there was insufficient evidence of premeditation and deliberation to support the jury’s verdict. He asks for reversal of his conviction.

We affirm the judgment.

FACTS

Background

Defendant and Velasco were both homeless individuals who slept in a rundown neighborhood in Fresno. Relevant for purposes of this appeal, the neighborhood included an auto parts store. Located next door to the auto parts store was a grocery market. Across the street was a medical clinic.

Velasco was known as “Oaxaca” or “Lucas” and occasionally slept in front of the auto parts store. Velasco panhandled for money and beer and was frequently seen around the neighborhood intoxicated – sometimes throwing glass bottles into the street.

Defendant was also frequently seen near the auto parts store and grocery market panhandling and under the influence of alcohol. Defendant wore a hat all, or most, of the time.

Defendant’s sister, Stella M.,[2] was Velasco’s girlfriend. Stella slept in a church across the street from where Velasco lived. Velasco and Stella did not get along because Velasco would beat Stella when he was intoxicated. For example, Stella once received four staples in her head because Velasco hit her with a bottle.

Defendant and Velasco argued on occasion about alcohol. Another time, Velasco and defendant fought outside a laundromat where Stella was volunteering. Defendant suffered a bloody mouth from the fight. Law enforcement and an ambulance arrived and officers instructed defendant to go to the hospital.

Velasco’s Murder

On September 21, 2016, Santiago P. heard an argument outside his home at around 2:00 or 3:00 a.m. Santiago saw Velasco, Stella and another male in a hat in front of the auto parts store. Stella was attempting to separate Velasco and the male in the hat while they pushed each other.

At some point, Velasco and Stella tried to sleep in front of the auto parts store. Velasco told Stella he wanted a blanket and Stella went to retrieve one, but she did not return because she was cold.

Devin G. walked to work before 4:00 a.m. on September 21, 2016. As he approached the auto parts store, Devin noticed a person – later identified as Velasco – laying on the ground near a puddle of blood. Devin saw Velasco move slightly and gurgle. He called the police six minutes later after running to a location where he knew no one was around.

Fresno Police Officer Amarante responded to the auto parts store at 3:52 a.m. As he approached, he noticed a large puddle of blood and severe trauma to Velasco’s head and face. Velasco’s arms were tucked inside his shirt as if trying to keep warm. Amarante checked Velasco for vital signs and did not receive any. Emergency Medical Services arrived and put Velasco in an ambulance and Amarante accompanied them and continued to perform chest compressions. Velasco was declared dead at the hospital.

The Investigation and Subsequent Events

At the crime scene, law enforcement documented, among other items, pieces of teeth, blood spatter, blood drops, and a pool of blood.

Luis L., the owner of the grocery market, maintained 32 surveillance cameras around his store. Fresno Police Detective Rivera downloaded surveillance video from the market from the morning of September 21, 2016. Rivera reviewed a 2:39 a.m. video[3] showing an individual in a dark-colored shirt, dark-colored pants, shoes with white outsole, and wearing a derby-style hat walking toward the auto parts store. A second video clip showed the individual walking away from the auto parts store toward the medical clinic across the street. A third video clip time stamped at 2:40 a.m. shows an individual walking back toward the auto parts store with a large cylindrical pole. At 2:43 and 2:44 a.m., surveillance footage shows an individual again walking away from the auto parts store and toward the medical clinic with the pole in his hand. In the sixth clip time stamped 2:56 a.m., the individual is seen near the auto parts store walking toward the clinic, but without the pole.

Rivera identified defendant as the individual in the videos after comparing the videos to a photograph of defendant that detectives had taken.

Luis watched the video clips from the market’s surveillance camera with detectives. Luis identified defendant in the footage walking with a long piece of wood in his hands. Luis recognized defendant because of the hat defendant wore “all the time” and the manner in which he walked.

Defendant and Stella spoke with police the next day. Defendant wore the same hat, shirt, and pants as he wore in the surveillance videos but different shoes. Defendant directed detectives to another pair of shoes located at his sister Ramona M.’s house. Detectives recovered them and Rivera noted reddish staining and a resemblance to the shoes defendant wore in the surveillance video.

Stella told Rivera defendant disliked Velasco, in part, because Velasco recently knocked him out at the laundromat and defendant was angry about that. Stella also said Velasco stole defendant’s food and beer. Stella told Rivera that defendant told her not to give him any information.

Detectives returned to the crime scene in search of the pole seen in the surveillance videos. In an alley behind the medical clinic, detectives found a five-foot-long wooden pole. The pole was broken off and had a stain on one end. It appeared to match the item defendant was carrying in the surveillance footage.

Two days later, Devin saw Stella and defendant at a candlelight vigil for Velasco. Devin approached both of them and asked if they knew Velasco. Stella said to Devin “I only left him for ten minutes.” Defendant told Stella she said too much and grabbed Devin by the arm and walked him across the street.

Criminal Charges and Trial

An information charged defendant with one count of first degree premeditated murder. (§§ 187, subd. (a), 189, subd. (a).) It included the special allegation that defendant used a deadly and dangerous weapon – the wooden pole – in the commission of the murder pursuant to section 12022, subdivision (b)(1).

At trial, Santiago testified about the loud altercation he saw between Velasco, Stella, and a man in a hat outside his home in the early morning of September 21, 2016. Stella testified she attempted to sleep with Velasco in front of the auto parts store, but left to get a blanket and did not return.[4] The jury viewed six surveillance clips time stamped between 2:39 and 2:56 a.m. that showed defendant walk toward the auto parts store, walk back across the street toward the medical clinic, and then return toward the auto parts store with a wooden pole in his hand. Lopez reviewed the surveillance footage in front of the jury and identified defendant as the person in the footage because defendant was wearing “the hat he used to wear all the time, most of the time.”

Dr. Venu Gopal testified he performed an autopsy on Velasco. Gopal stated he observed a significant injury to the right side of Velasco’s head, multiple injuries to Velasco’s mouth, including missing teeth, and a fractured maxilated bone. Gopal opined Velasco died of a head injury due to multiple blunt impacts. He also testified Velasco registered a blood alcohol content of 0.17 milligrams percent.

The prosecution also presented Joel Thomas, a criminalist with the California Department of Justice Bureau of Forensic Services. Thomas testified he found blood in three different areas of defendant’s left shoe. According to Thomas, two of the blood stains tested contained a mixture of two people and Velasco was a major contributor. Thomas also testified he found blood on the wooden pole detectives recovered and Velasco’s DNA was a contributor to both samples.

The jury found defendant guilty of Velasco’s murder and found true that he used a deadly and dangerous weapon in the commission of the murder. The trial court sentenced defendant to an indeterminate term of 25 years to life followed by one year.

Defendant timely noticed his appeal.

DISCUSSION

1. Sufficient Evidence Supports Defendant’s Conviction for First Degree Murder

Defendant’s sole issue on appeal challenges the sufficiency of the evidence of his conviction for first degree murder. He claims the evidence could not support the jury’s finding that he acted with premeditation and deliberation necessary to sustain the verdict. Defendant asks us to modify the judgment to reflect a conviction for second degree murder.

1. 1. Standard of Review

A challenge to the sufficiency of the evidence triggers the “ ‘substantial evidence’ ” test. (People v. Cuevas (1995) 12 Cal.4th 252, 260.) Our role here is “limited.” (People v. Ceja (1993) 4 Cal.4th 1134, 1138; see ibid. [“The role of an appellate court in reviewing the sufficiency of the evidence is limited.”].) We must “ ‘ “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Prince (2007) 40 Cal.4th 1179, 1251, quoting People v. Hillhouse (2002) 27 Cal.4th 469, 496.) This means “ ‘ “ ‘ “evidence which is reasonable, credible, and of solid value.” ’ ” ’ ” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.) Under this review, “we presume in support of the judgment ‘ “the existence of every fact the trier could reasonably deduce from the evidence.” ’ ” (People v. Nelson (2016) 1 Cal.5th 513, 550.) The same considerations apply irrespective of whether the evidence is direct or circumstantial. (Ceja, supra, at p. 1138.) Moreover, “ ‘ “f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” ([i]People v. Bean (1988) 46 Cal.3d 919, 933.)

1. 2. Analysis

Section 189 provides that a “willful, deliberate, and premeditated killing . . . is murder of the first degree.” (Id., subd. (a); see People v. Morales (2020) 10 Cal.5th 76, 88 [“If the murder is ‘willful, deliberate, and premeditated,’ it is first degree murder.”].) “ ‘ “[P]remeditated” means “considered beforehand,” and “deliberate” means “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” ’ ” (People v. Jurado (2006) 38 Cal.4th 72, 118.) “ ‘ “An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.” ’ ” (People v. Potts (2019) 6 Cal.5th 1012, 1027, quoting Jurado, supra, 38 Cal.4th at p. 118.) “ ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.’ ” (Potts, at p. 1027; see People v. Salazar (2016) 63 Cal.4th 214, 245 [“ ‘ “The process of premeditation and deliberation does not require any extended period of time.” ’ ”].)

The California Supreme Court identifies three categories of evidence – known as the Anderson factors – to consider for purposes of determining whether the evidence in a particular case is sufficient to sustain a finding of premeditation and deliberation: (1) planning; (2) motive; and (3) manner of killing. (See People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson); People v. Potts, supra, 6 Cal.5th at p. 1027 [“Such reflection may be revealed by planning activity, motive, and the manner of killings, among other things.”].) The Anderson factors are an “ ‘aid [for] reviewing courts in assessing whether the evidence’ ” supports a first degree murder conviction based on premeditation and deliberation. (People v. Brooks (2017) 3 Cal.5th 1, 59.) The Anderson factors “ ‘need not be present in any particular combination to find substantial evidence of premeditation and deliberation.’ ” (People v. Jurado, supra, 38 Cal.4th at pp. 118-119.) However, the Supreme Court has also stated “[w]hen evidence of all three categories is not present, ‘we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1224.)

As discussed below, we conclude all three Anderson factors are present and sufficient evidence supports a finding of premeditation and deliberation.

1. 1. 1. Planning

“The act of planning — involving deliberation and premeditation — requires nothing more than a ‘successive thought[] of the mind.’ ” (People v. San Nicolas (2004) 34 Cal.4th 614, 658; see ibid. [evidence sufficient to support planning to kill in the “brief period” between the defendant seeing the victim’s reflection in bathroom mirror and stabbing her].) Planning activity “occurring over a short period of time” can support a finding of premeditation. (People v. Sanchez (1995) 12 Cal.4th 1, 34, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

There is evidence of planning activity. We place particular emphasis on the surveillance video taken from the market (time stamped between 2:39 and 2:56 a.m.) on the day of Velasco’s murder. In those clips, defendant first walks toward the auto parts store where Velasco’s body was found. He then walks across the street. The third clip shows defendant returning with a “large cylindrical pole” four or five feet in length. In the fourth clip, defendant is in the auto parts store’s parking lot but does not have the pole. The fifth clip shows defendant walking back toward the medical clinic with the pole. Defendant walks back toward the medical clinic without the pole in the sixth clip.

Moreover, Amarante found Velasco in a defenseless position – with his arms tucked underneath his shirt. Velasco’s blood alcohol content was 0.17 percent at the time of death.

On this evidence, a rational trier of fact could conclude defendant went to the location where Velasco slept, observed him asleep and in a defenseless position, and then crossed the street to obtain a “dense” piece of wood with which to kill Velasco. (People v. Wharton (1991) 53 Cal.3d 522, 546 [stating that the relevant inquiry on a sufficiency of the evidence challenge to first degree murder is whether “ ‘ “any rational trier of fact” ’ ” could be persuaded (italics omitted)].) In more succinct terms, the above evidence supports a finding that defendant formed a plan to kill Velasco in between 2:39 and 2:56 a.m. on the day Velasco was murdered. (See People v. Millwee (1998) 18 Cal.4th 96, 134-135 [the defendant showed up to home “unarmed” but went to retrieve gun and had “ample opportunity” to reflect on whether to use lethal force].)

Defendant claims, at most, the evidence points to a sudden explosion of violence rather than a premeditated killing. Defendant notes Velasco was “killed in public in front of a business” and there was no evidence of a plan to conceal Velasco’s body or ensure that defendant did not face prosecution for the murder.

We find these arguments unconvincing. While Santiago’s testimony regarding the fight outside his home might support the theory of a sudden explosion of violence, a rational trier of fact could also find defendant’s activities captured on the market’s surveillance camera supported a finding of premeditation and deliberation. (People v. Wharton, supra, 53 Cal.3d at p. 547 [rejecting the defendant’s argument that killing his victim following an argument was evidence of an “uncontrolled explosion of anger”]; People v. Pettigrew (2021) 62 Cal.App.5th 477, 493 [rejecting claim that murder suggested a “ ‘sudden explosion of violence’ ” brought on by intoxication and concluding sufficient evidence supported conviction for first degree murder].) On appeal, we cannot “reweigh the evidence or reverse the jury’s verdict merely because a reasonable jury might have drawn the inferences suggested by the defendant.” (Pettigrew, at p. 493.)

We also disagree with defendant insofar as he suggests the location of Velasco’s killing and the fact that he did not dispose of Velasco’s body precludes a finding of premeditation and deliberation. For example, in People v. Brady (2010) 50 Cal.4th 547, the California Supreme Court found there was sufficient evidence to sustain the defendant’s first degree murder conviction where he shot and killed a police officer in a mall parking lot. (Id. at pp. 553-554, 562.) In People v. Romero (2008) 44 Cal.4th 386, 400, the Supreme Court determined there was sufficient evidence to support a first degree murder conviction where the defendant brought a gun into a video store at 9:00 p.m. and killed the victim. (Id. at pp. 393, 401.)

For good measure, defendant killed Velasco in the early morning of September 21, 2016. Indeed, Devin – the witness who encountered Velasco between 3:00 and 4:00 a.m. – testified that he “didn’t see anyone around” as he passed the auto parts store. Moreover, from Rivera’s testimony that detectives found the wooden pole in an alley behind trash and belongings, a rational trier of fact could conclude defendant made some effort to hide the murder weapon.

In sum, the prosecution presented evidence that defendant formed a plan to kill Velasco on the morning of September 21, 2016. This, in turn, supports a finding of premeditation and deliberation sufficient to sustain defendant’s first degree murder conviction.

1. 1. 2. Motive

This category of evidence pertains to the “facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim . . . .” (Anderson, supra, 70 Cal.2d at p. 27, italics omitted.) “ “[T]he law does not require that a first degree murderer have a “rational” motive for killing. Anger at the way the victim talked to him . . . may be sufficient.’ ” (People v. Miranda (1987) 44 Cal.3d 57, 87, reversed on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)

There was evidence defendant and Velasco disliked each other. The jury heard evidence from Luis that defendant and Velasco had “problems” over alcohol. Velasco beat Stella – defendant’s sister – frequently when he was drunk and Stella testified defendant and Velasco “[p]robably” had disagreements over her. Stella testified Velasco gave defendant a bloody mouth at a laundromat a week before the murder and told Rivera defendant remained angry about that incident. Rivera stated Stella told him defendant was also angry with Velasco because he would steal defendant’s food and beer.[5] From this evidence, a jury could reasonably conclude defendant had a motive to kill Velasco.

Defendant claims the prosecution only offered speculative theories about defendant’s motive. Defendant argues “the most that is reasonably inferred is that [defendant] decided to assault Velasco with a wooden pole” and the “jury needed more evidence before making the leap from some previous animosity and existence of injuries, to the conclusion they were inflicted with premeditation and deliberation.”

These contentions fail because they again ask us to reweigh the evidence and reach a different conclusion than the jury in favor of the inference defendant suggests on appeal. (People v. Pettigrew, supra, 62 Cal.App.5th at p. 493.)

Beyond that, evidence that a defendant had prior disagreements and altercations with the murder victim is sufficient to support a finding of motive which in turn supports a finding of premeditation and deliberation. (People v. Morales, supra, 10 Cal.5th at p. 90 [evidence of motive sufficient where the prosecution demonstrated a “rift had grown” between the defendant and the victims]; People v. Manriquez (2005) 37 Cal.4th 547, 577 [evidence sufficient for first degree murder where the defendant shot and killed the victim minutes after a verbal altercation]; People v. Pettigrew, supra, 62 Cal.App.5th at p. 494 [prosecution presented evidence of the defendant’s motive where the defendant and the victim previously argued about the defendant’s dogs]; People v. Gunder (2007) 151 Cal.App.4th 412, 424 [evidence sufficient to support a first degree murder conviction where, in part, there was a “reservoir of bad blood” between the defendant and the victims].)

In sum, the evidence described above establishes a plausible motive for defendant to kill Velasco and further supports a finding of premeditation and deliberation.

1. 1. 3. Manner

The manner of killing in this case mirrors several first degree murder convictions. For example, in People v. Cook (1940) 15 Cal.2d 507, the California Supreme Court upheld a first degree murder conviction where the defendant used a two-by-four and hit the victim in the back of the head. (Id. at pp. 516-517.) The high court also affirmed a first degree murder conviction where the defendant struck his victim in the head five times with a “rock or brick-like instrument” in People v. Hart (1999) 20 Cal.4th 546, 609. In People v. Wharton, supra, 53 Cal.3d 522 the high court determined there was sufficient evidence to uphold a first degree murder conviction where the defendant struck his victim three times in the head with a blunt instrument. (Id. at pp. 542, 548.) Similarly, in People v. Martinez (1987) 193 Cal.App.3d 364, the Court of Appeal affirmed a first degree murder conviction where the defendant beat the victim to death – including smashing a bottle over her head. (Id. at pp. 367, 368.)

On the other hand, the California Supreme Court has also stated striking a victim in the head may not be “indicative of a preconceived design to kill.” (People v. Wharton, supra, 53 Cal.3d at p. 548.) In People v. Lucero (1988) 44 Cal.3d 1006, 1020, the Supreme Court stated multiple blows to the skull “is much less suggestive of premeditated murder.” (Id. at p. 1020.)

However, Wharton and Lucero do not stand for the proposition that striking the victim in the head with a blunt instrument can never result in a first degree murder conviction because both cases upheld the judgments. (See People v. Wharton, supra, 53 Cal.3d at p. 548 [“We thus conclude there was sufficient evidence to support the jury’s verdict that defendant premeditated and deliberated the killing.”]; see also People v. Lucero, supra, 44 Cal.3d at p. 1020.) Notably, Lucero affirmed the verdict despite commenting “the evidence was far from overwhelming.” (Lucero, at p. 1020.)

Here, the evidence is sufficient to support a reasonable inference that defendant formed a “ ‘preconceived design’ to take” Velasco’s life by beating him in the head with a wooden pole. (Anderson, supra, 70 Cal.2d at p. 27 [third Anderson factor].) Again, we note the jury viewed particularly powerful surveillance footage where defendant walks over to where Velasco’s body was found, walks across the street, and then returns to the area carrying a dense piece of wood.

Moreover, defendant brutally attacked Velasco. The forensic pathologist opined Velasco died of head trauma due to multiple blunt impacts. Velasco sustained very severe injuries; his maxilated bone was pushed in and several teeth broke off from the impacts to his head. A separate area of injury appeared on the right back side of Velasco’s head. Devin observed a “really big puddle” of blood when he encountered Velasco on the morning of his death. When Amarante arrived at the scene, he observed “severe trauma” to Velasco’s head and face. Several pieces of teeth were found at the crime scene.

Defendant concedes this evidence, but asserts “there was no evidence it was a cold calculated attempt to kill [Velasco].” Defendant contends there was no evidence Velasco’s head was the intended target because the assault occurred in the dark. Defendant repeats his assertion there was “no evidence [defendant’s attack] was done out of anything other than a sudden explosion of violence.” However, these arguments again ask us to reweigh evidence and draw a conclusion favorable to defendant. We decline to do so.

Defendant also directs us to the court’s observation in Anderson that “the brutality of a killing cannot in itself support a finding that the killer acted with premeditation and deliberation.” (Anderson, supra, 70 Cal.2d at p. 24; see People v. Alcala (1984) 36 Cal.3d 604, 626 [“Absent other evidence, a brutal manner of killing is as consistent with a sudden, random ‘explosion’ of violence as with calculated murder.”], superseded by statute on other grounds as stated in People v. Hovarter (2008) 44 Cal.4th 983, 1017, fn. 14.)

However, this is not a case where the jury only heard evidence of a particularly brutal killing. When combined with evidence of planning and motive discussed above, a jury could reasonably infer defendant selected a manner of killing Velasco “sufficiently ‘ “particular and exacting” ’ to permit an inference that defendant was ‘acting according to a preconceived design’ ” to kill Velasco. (People v. Halvorsen (2007) 42 Cal.4th 379, 422.)

In sum, ample evidence supports the verdict. Defendant and Velasco disliked each other, and at minimum, engaged in a violent physical altercation before Velasco’s murder. Surveillance footage showed defendant walking toward where Velasco’s body was found, leaving, and returning with the murder weapon. And, as discussed above, the severity of Velasco’s injuries support the inference that defendant intended to kill – and not simply assault – Velasco with the pole. Therefore, we conclude there is sufficient evidence for a finding of premeditation and deliberation.

DISPOSITION

The judgment is affirmed.

DETJEN, Acting P. J.

WE CONCUR:

FRANSON, J.

MEEHAN, J.

[1] All further statutory references are to the Penal Code.

[2] Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names. No disrespect is intended.

[3] The court has reviewed the six surveillance clips and note they are time stamped between 5:39 a.m. and 5:56 a.m. Luis testified he kept the surveillance footage on “New York time,” which is three hours ahead of Pacific Standard Time. Thus, the videos were time stamped, for example, at 5:39 a.m. when the actual time in Fresno was 2:39 a.m. For ease of reference, we will use Pacific Standard Time when discussing the surveillance footage.

[4] Stella testified a person named “Crunchie” hit Velasco in the face with a pipe a half hour before she and Velasco decided to sleep in front of the auto parts store. She testified she thought this incident occurred “about 9:00” at night. Stella testified Velasco was not bleeding after this altercation and she did not report it to police.

[5] On redirect examination, Stella denied telling officers Velasco had previously beat up defendant and that Velasco stole defendant’s food and beer.