People v. Benitez12/3/1992
on a milk crate, while directly behind him, the victim, known as Guero, and another man, identified only as Caballo, were engaged in horseplay. Guero reached around Caballo and attempted to tip over Caballo's plate. In response, Caballo spun around and threw the entire plate of food at Guero. When Guero ducked, the plate of food struck defendant on the back of his head, the food falling down defendant's back and staining his shirt.
Defendant threw away his plate and took off his shirt. Holding the shirt in his hand, he walked over to where Guero and Caballo stood, and asked, "Who is going to wash my shirt?"
Guero and Caballo feigned ignorance, and Guero then replied, "We're not going to wash your shirt." Defendant insisted that one of them wash his shirt. Guero, who was holding a broomstick, responded, " o way, it was an accident."
An argument ensued. Guero said, "What are you going to do about it? You going to bring a gun or knife or what?" He added, "It was an accident, anyway, so why don't you go ahead and leave?"
Defendant replied, "It's going to be an accident if a bullet goes off and hits one of you, too."
Guero, becoming angry, responded, "Okay, go ahead and bring it. Bring what you want, a knife or a gun." Guero, holding the broomstick, turned and walked away.
Defendant, who lived nearby, went home and told his roommate, Carlos Arreola, that some persons had been playing around near the catering truck, and that one of them had thrown food on his shirt. Defendant's shirt was stained, and he was angry. He told Arreola that he was going to go back and make those "cabrones" wash his shirt. Defendant went to his room, obtained a clean shirt, and then left his apartment, repeating that he was going to make those "cabrones" wash his shirt. The evidence suggested that defendant concealed on his person a handgun and extra ammunition before leaving the apartment.
Defendant returned to the catering truck a few minutes later. Appearing frightened and angry, he walked to within three feet of Guero. Broomstick in hand, Guero stepped closer to defendant. When Guero asked defendant what he wanted, defendant inquired who was going to wash his shirt. Guero replied that no one was. In response, defendant said, "Well, then one of you two is going to leave."
After defendant and Guero argued for two or three minutes, Guero said either "Let's get it on," or "Take out your knife or whatever you have." Guero, dropping the broomstick, lunged toward defendant as if to grab or punch him.
Guero never reached defendant. As Guero lunged forward, defendant drew a firearm from his waistband, his finger on the trigger. The evidence was in conflict as to whether defendant pointed the gun horizontally (toward Guero) or vertically (toward the sky). One witness, Hector Reynoso, testified that defendant pointed the weapon toward Guero. Similarly, another witness, 12-year-old Israel Alvarado, testified that defendant "shot at" Guero. On cross-examination, however, Alvarado testified that defendant "didn't have time to point" the firearm at Guero. On redirect examination, Alvarado denied having seen defendant point it upwards, and denied having so informed the defense investigator, Alfredo Rasch. (Rasch subsequently testified during the defense that, prior to trial, Alvarado told him defendant had pointed the weapon upwards.)
The weapon fired as it was drawn. Guero slumped to the ground, having suffered a mortal bullet wound to the neck. Defendant ran to his apartment, chased by a bottle-throwing crowd of Guero's friends. At his apartment, defendant told his roommate, Carlos Arreola, "I think I killed the 'cab
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