The People v. Tena CA2/6

Filed 9/4/13 P. v. Tena CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B241670 (Super. Ct. No. 2010005964) Plaintiff and Respondent, (Ventura County)

v.

SALVADOR MEDINA TENA,

Defendant and Appellant.

Salvador Medina Tena appeals a judgment following conviction of second degree murder, with a finding of personal use of a deadly weapon during commission of the crime. (Pen. Code, §§ 187, subd. (a), 189, 12022, subd. (b)(1).)1 We affirm. FACTS AND PROCEDURAL HISTORY In the late afternoon of February 16, 2010, Tena sold videotapes outside Santitos restaurant in Oxnard. Javier Orozco Rodriguez, owner of the restaurant, knew Tena and purchased several videotapes from him that day. Tena appeared to be intoxicated and had a "little bit [of] trouble walking . . . talking." He informed Rodriguez that he "had problems" with Candido Monge, an elderly homeless man who frequently patronized the restaurant. Tena described Monge as "a rat" and stated: "I am only telling you what will come to pass."

1 All further statutory references are to the Penal Code unless otherwise stated. References to section 12022 are to the version in effect prior to January 1, 2012.

While Tena and Rodriguez were conversing, Monge entered the restaurant and ordered dinner. Rodriguez stated falsely that Monge was his uncle, and asked Tena not to hurt Monge. Tena did not respond and walked away. Monge ate dinner and left the restaurant. Approximately 15 minutes later, he returned and shouted that he had been stabbed. Monge removed his jacket, revealing a knife handle protruding from his abdomen. He seized the handle, extricated the knife, and placed it on a table. The knife was a three-to-four inch folding knife with a serrated edge. Javier Orozco, the restaurant owner's son, asked Monge who stabbed him. Monge replied "Chava, the one-eyed guy." Tena, known by the nickname "Chava," was blind in one eye. Orozco telephoned for medical and police assistance. In response to questions from the police dispatcher, Orozco stated that Chava stabbed Monge because Monge was a "snitch[]." Oxnard Police Officer Crystal Walker arrived at the restaurant and accompanied Monge to the hospital. In a recorded conversation, Monge stated that Tena was "hiding" behind a water dispenser outside a neighboring market and "came and just stabbed him." Monge stated that they had not argued and that Tena stabbed him "for nothing." At trial, the prosecutor played the recording of the conversation. Despite medical treatment, Monge died from abdominal hemorrhaging as a result of the stabbing. Laboratory testing revealed that he had a 0.19 blood alcohol content when he arrived at the hospital. Police officers obtained videotapes from surveillance cameras near the water dispensers. The videotapes revealed Tena standing by the water dispensers, removing a light-colored object from his waistband, and transferring the object to his right hand. Tena turned the object in the palm of his hand to "secret[] [it] from view." He then walked outside the range of the cameras, but reappeared shortly and walked briskly away. At trial, the prosecutor played a compilation of the surveillance videotapes. The day following the stabbing, police officers found Tena near a rescue mission. He resisted an order to stop and was forcibly detained.