Filed 7/9/24 P. v. Benitez CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGEL GUTIERREZ-BENITEZ,

Defendant and Appellant.

 B325345

 (Los Angeles County

 Super. Ct. No. NA116883)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Laura Laesecke, Judge. Affirmed.

Robert L. Hernandez, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill, Supervising Deputy 

Attorney General, Nima Razfar, Deputy Attorney General, for 

Plaintiff and Respondent.

___________
2

Angel Gutierrez-Benitez appeals from a judgment of 

conviction entered after a jury found him guilty of assault with a 

deadly weapon and the attempted murder of Gregorio Renteria. 

Gutierrez-Benitez contends on appeal the trial court erred in 

denying his request to instruct the jury on self-defense and the

lesser-included offense of attempted voluntary manslaughter

based on imperfect self-defense. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Evidence at Trial

Shortly before 2:00 a.m. on April 13, 2021, six friends 

gathered on the Pine Avenue Pier in Long Beach. The group 

consisted of four men, Renteria, William Velez, Brian Macias, 

and Andy Mendoza, and two women, Natalie Valdez and Melanie 

Esquivel. Velez, Macias, Valdez, and Esquivel sat on benches 

lining one side of the pier (in male/female pairs), and Renteria 

stood a short distance away further down the pier. Mendoza had 

rented an electric scooter, which he was riding up and down the 

pier past his friends. No one in the group had a weapon.

About 10 to 15 minutes after the group arrived at the pier, 

Gutierrez-Benitez walked down the pier in the group’s direction. 

Gutierrez-Benitez, whom the group did not know, wore a dark

hooded sweatshirt with a red, white, and blue logo on the front,

with the hood over his head. He walked past the benches where 

Velez, Macias, Valdez, and Esquivel were seated without making 

eye contact with them.

1 

1 Surveillance video of the Pine Avenue Pier recorded at the 

time of the incident was played for the jury, and Renteria and 
3

After Gutierrez-Benitez walked to the far end of the 

benches, he turned around and engaged Mendoza, who then 

stopped his scooter. According to Renteria’s and Velez’s trial 

testimony, Gutierrez-Benitez asked Mendoza, “Do you guys have 

a problem?” to which Mendoza responded, “No. Do you have a 

problem?”2 Gutierrez-Benitez next asked Mendoza, “Do you 

bang?,” to which Mendoza responded, “Yes, I bang, I’m from 

Compton T Flats. Where you from homie?” Gutierrez-Benitez 

answered, “Yes, we do have a problem,” and he balled his hands 

into fists as if he wanted to fight. Mendoza raised his fists in a 

defensive position. 

Renteria testified he was “kind of shadowing” Mendoza at 

the time, and he was about two to three feet away during the 

initial exchange between Mendoza and Gutierrez-Benitez. 

Renteria told Gutierrez-Benitez, “Hey, man. Nobody has a 

problem,” and he stepped between Mendoza and GutierrezBenitez to try to deescalate the situation. Gutierrez-Benitez then 

pulled a knife from his sweatshirt pocket, lunged at Renteria, 

and stabbed Renteria in the chest with a hammering motion. 

Renteria immediately fled from Gutierrez-Benitez (walking 

backwards toward the entrance to the pier), and his friends

Velez testified as to the events that are depicted. However, due 

to the low light, poor image resolution, and distance from the 

events, it is difficult to distinguish particular individuals based 

solely on the video. 

2 Esquivel testified that Gutierrez-Benitez’s first words when 

he approached Mendoza and Renteria were, “Where are you 

from?” She stated that in her experience, “Where are you from?” 

is a phrase used when “you’re trying to start something. You’re 

either trying to fight or rob [someone].” 
4

quickly followed. Gutierrez-Benitez paused for a moment, then 

walked in the same direction to leave the pier. Gutierrez-Benitez

continued walking behind some restaurants in a retail area on 

the shoreline. Macias called 911 and followed Gutierrez-Benitez, 

while the other members of the group tended to Renteria.3

Long Beach Police officers responded to a call for a stabbing 

incident shortly after 2:00 a.m. Officers detained GutierrezBenitez after a brief pursuit and located a folding knife with a 

three-and-a-half inch, spear-shaped, fine-point blade with dried 

blood on it in nearby bushes.4 Paramedics treated Renteria for a 

penetrating chest wound and stabilized him for transport to the 

hospital. Although Renteria survived, the stabbing punctured his

lung, requiring multiple surgeries.

Renteria, Macias, Velez, Esquivel, and Valdez testified 

about the assault, with minor variations in their testimony. 

Renteria testified Gutierrez-Benitez approached only him and 

3 Velez testified that after the stabbing, he (and unspecified 

others) followed Gutierrez-Benitez, and at one point GutierrezBenitez turned around, walked toward them, and “was trying to 

lunge at us because we were getting close.” The surveillance 

video from the Pine Avenue Pier showed the six friends leave the 

pier, followed by Gutierrez-Benitez, but it did not capture any 

subsequent engagement between Velez and Gutierrez-Benitez. 

4 Macias identified Gutierrez-Benitez at a field show-up after 

Gutierrez-Benitez was detained on April 13. Macias and the 

other members of the group who testified at trial identified 

Gutierrez-Benitez in the courtroom. The field show-up form, 

which was admitted at trial, stated Gutierrez-Benitez was 5 feet

7 inches tall and weighed 150 pounds. Renteria testified 

Mendoza was about 5 feet 9 inches tall and weighed about 

160 pounds with a “stocky” build. 
5

Mendoza, whereas Macias testified Gutierrez-Benitez approached 

the entire group. Velez testified he thought Gutierrez-Benitez

was just a “dude” who “was struggling,” or someone who seemed 

“shady a little bit,” and Esquivel testified she thought GutierrezBenitez was a homeless person. Valdez testified that GutierrezBenitez stared at everyone when he approached them. Mendoza 

did not testify.

5 

B. Request for Self-defense Jury Instructions

After the People rested their case, Gutierrez-Benitez’s 

attorney renewed a request that the trial court instruct the jury 

on self-defense theories.

6 The attorney argued that Mendoza’s 

statement to Gutierrez-Benitez that he was a member of the 

Compton T [Tortilla] Flats gang amounted to “fighting words.” 

Also, “the way [the group] spread out, it seemed like they were—

from the video—lining up in an attacking position and that 

warrants self-defense.” 

The trial court disagreed, emphasizing that GutierrezBenitez went up to one or more members of the group and was 

the first to speak words to the effect of “Where are you from? Do 

we have a problem?” Moreover, “even if the witnesses are spread 

out or the victims are spread out, there isn’t any substantial 

evidence . . . or at least some evidence that [Gutierrez-Benitez] 

was in . . . fear . . . [w]hether reasonable or unreasonable.” The 

court added, “I also don’t see any lesser included offenses. . . . It’s 

5 Gutierrez-Benitez did not testify in his own defense or call 

any witnesses.

6 The record on appeal does not include or identify the

specific self-defense jury instructions defense counsel requested. 
6

either attempted murder or it’s not. There [are] no voluntary 

manslaughter issues here.” Defense counsel submitted, and the 

court denied “any request for self-defense instructions.” 

C. Closing Arguments

During closing arguments, Gutierrez-Benitez’s attorney 

pointed out that the People did not call Mendoza as a witness,

and there was no accurate account of the night’s events without 

Mendoza’s testimony. The attorney argued it was a “reasonable 

interpretation of the evidence” in light of Mendoza’s larger build 

and his expressing his gang membership that “at that moment 

. . . [Gutierrez-Benitez] now thinks that everybody, all four of 

those guys, are from the Flats[.] Wouldn’t that change the 

situation dramatically? ¶ . . . ¶ And then when you see 

[Mendoza and Renteria] separate, combined with the thought 

that, hey, these dudes are from the Flats, [Gutierrez-Benitez] 

took care of the situation. He disarmed one person. He saw that 

[Mendoza] wasn’t going to do anything and then he walked away. 

He didn’t run. Okay. He walked away.” These circumstances 

negated a finding that Gutierrez-Benitez had the specific intent 

to kill Renteria. 

In his final closing argument, the prosecutor admonished 

the jury not to consider self-defense: “If anyone goes back there 

and starts talking about self-defense or something like that, there

is none. There was no evidence of it. The judge did not instruct 

you on it. ¶ . . . ¶ This is not a self-defense case, and you are 

not to consider it.” The prosecutor focused on the fact GutierrezBenitez first approached and challenged Mendoza and Renteria,

and he argued that Gutierrez-Benitez’s “meaningful stab” to 

Renteria’s chest, which caused severe injuries that required 
7

numerous surgeries, showed that Gutierrez-Benitez had the 

specific intent to kill. 

D. Jury Verdict and Sentencing

The jury found Gutierrez-Benitez guilty of assault with a 

deadly weapon on Renteria (Pen. Code, § 245, subd. (a)(1);

7

count 1) and attempted murder of Renteria (§§ 187, subd. (a), 

664; count 3).

8 As to each count, the jury found true the special 

allegation Gutierrez-Benitez personally inflicted great bodily 

injury on Renteria (§ 12022.7, subd. (a)).

In a bifurcated court proceeding, Gutierrez-Benitez

admitted he suffered a prior conviction for robbery (§ 211) that 

qualified as a serious or violent felony under the three strikes law 

(§§ 667, subds. (b)-(i), 1170.12). Gutierrez-Benitez also admitted

the aggravating factors that he suffered a prior conviction for 

assault by means of force likely to cause great bodily injury 

(§ 245, subd. (a)(4)) and was on probation in two cases at the time 

of the instant assault.

The trial court sentenced Gutierrez-Benitez to 21 years in 

state prison on count 3 for attempted murder, comprising the 

upper term of nine years, doubled under the three strikes law,

plus three years for the great bodily injury enhancement. On 

count 1 for assault with a deadly weapon, the court imposed and 

stayed under section 654 an eight-year sentence, comprising the 

middle term of four years, doubled under the three strikes law. 

Gutierrez-Benitez timely appealed.

7 Further statutory references are to the Penal Code. 

8 The jury found Gutierrez-Benitez not guilty of assault on

Mendoza and Velez (count 2). 
8

DISCUSSION

A. Governing Law and Standard of Review

With respect to homicide, “[s]elf-defense, when based on a 

reasonable belief that killing is necessary to avert an imminent 

threat of death or great bodily injury, is a complete justification, 

and such a killing is not a crime.” (People v. Elmore (2014) 

59 Cal.4th 121, 133-134; see § 197, subds. (1) & (2) [homicide is 

justifiable “[w]hen resisting any attempt to murder any person, 

or to commit a felony, or to do some great bodily injury upon any 

person” and “[w]hen committed in defense of habitation, property, 

or person, against one who manifestly intends or endeavors, by 

violence or surprise, to commit a felony”]; see also CALCRIM 

No. 505.) “For killing to be in self-defense, the defendant must 

actually and reasonably believe in the need to defend.” (People v. 

Humphrey (1996) 13 Cal.4th 1073, 1082 (Humphrey); accord,

People v. Horn (2021) 63 Cal.App.5th 672, 682; People v. Rodarte

(2014) 223 Cal.App.4th 1158, 1168 [“Perfect self-defense requires 

that a defendant have an honest and reasonable belief in the 

need to defend himself or herself.”].)

Self-defense is also a defense to assault. “[T]he difference 

between self-defense in the homicide context and self-defense 

that will justify an assault . . . lies in the type of the threat the 

defendant believed they faced. To justify a homicide or 

attempted homicide, the defendant must believe that ‘danger [of 

death]’ or ‘great bodily [injury]’ is imminent, whereas an assault 

committed in self-defense may be justified if the defendant feared 

that any ‘bodily injury,’ or even an ‘unlawful touching,’ was 

imminent. For both homicide and assault, the amount of force 

the defendant uses must be no more than reasonably necessary to 
9

fend off the perceived threat.” (People v. Waxlax (2021) 

72 Cal.App.5th 579, 591-592; see CALCRIM No. 3470

[enumerating elements of right to self-defense for non-homicide 

crimes].) 

A murder charge may also be mitigated by imperfect selfdefense.9 “If the belief [in the need to defend oneself] subjectively 

exists but is objectively unreasonable, there is ‘imperfect selfdefense,’ i.e., ‘the defendant is deemed to have acted without 

malice and cannot be convicted of murder,’ but can be convicted of 

manslaughter.” (Humphrey, supra, 13 Cal.4th at p. 1082; accord, 

People v. Horn, supra, 63 Cal.App.5th at p. 682; see People v. 

Booker (2011) 51 Cal.4th 141, 182 [“Imperfect self-defense is the 

killing of another human being under the actual but 

unreasonable belief that the killer was in imminent danger of 

death or great bodily injury.”]; CALCRIM No. 604 [listing 

elements of imperfect self-defense for attempted voluntary 

manslaughter].) Thus, imperfect or “[u]nreasonable self-defense 

is ‘not a true defense; rather, it is a shorthand description of one 

form of voluntary manslaughter.’” (People v. Elmore, supra,

59 Cal.4th at p. 134; accord, People v. Barton (1995) 12 Cal.4th 

186, 200; see In re Christian S. (1994) 7 Cal.4th 768, 773 [“‘[a]n 

honest but unreasonable belief that it is necessary to defend 

oneself from imminent peril to life or great bodily injury negates 

malice aforethought, the mental element necessary for murder, 

so that the chargeable offense is reduced to manslaughter.’”].)

9 Because assault is a general intent crime, there is no 

defense of imperfect self-defense. (See People v. Minifie (1996) 

13 Cal.4th 1055, 1069 [“this case involves an assault, not a 

homicide, and thus no question of imperfect self-defense is 

presented”].)
10

The principles governing perfect and imperfect self-defense “also 

apply to self-defense in the context of attempted murder and 

attempted voluntary manslaughter.” (Horn, at p. 682.) 

“[S]elf-defense . . . whether perfect or imperfect, require[s]

an actual fear of imminent harm.” (People v. Butler (2009) 

46 Cal.4th 847, 868; accord, People v. Rodarte, supra, 

223 Cal.App.4th at p. 1168 [“‘The defendant’s fear must be of 

imminent danger to life or great bodily injury.’”].) “‘Fear of future 

harm—no matter how great the fear and no matter how great the 

likelihood of the harm—will not suffice. . . . “‘[T]he peril must 

appear to the defendant as immediate and present and not 

prospective or even in the near future. An imminent peril is one 

that, from appearances, must be instantly dealt with.’”’” (People 

v. Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez), italics 

omitted.) “All of the surrounding circumstances, including prior 

assaults and threats, may be considered in determining whether 

the accused perceived an imminent threat of death or great 

bodily injury.” (People v. Battle (2011) 198 Cal.App.4th 50, 72; 

see Humphrey, supra, 13 Cal.4th at p. 1083 [“Although the 

ultimate test of reasonableness is objective, in determining 

whether a reasonable person in defendant’s position would have 

believed in the need to defend, the jury must consider all of the 

relevant circumstances in which defendant found herself.”].)

Self-defense and imperfect self-defense are not available 

defenses to a defendant who is the initial aggressor. The 

Supreme Court has “explained that ‘the ordinary self-defense 

doctrine—applicable when a defendant reasonably believes that 

his safety is endangered—may not be invoked by a defendant 

who, through his own wrongful conduct (e.g., the initiation of a 

physical attack or the commission of a felony), has created 
11

circumstances under which his adversary’s attack or pursuit is 

legally justified.’” (People v. Valencia (2008) 43 Cal.4th 268, 288; 

accord, People v. Enraca (2012) 53 Cal.4th 735, 761.)10

As a general matter, “‘[a] trial court must give a requested 

[jury] instruction only if it is supported by substantial evidence, 

that is, evidence sufficient to deserve jury consideration.’” 

(People v. Leon (2020) 8 Cal.5th 831, 848; accord, People v. 

Nguyen (2015) 61 Cal.4th 1015, 1049 [“‘Just as with perfect selfdefense or any defense, “[a] trial court need give a requested 

instruction concerning a defense only if there is substantial 

evidence to support the defense.”’”]; People v. Larsen (2012) 

205 Cal.App.4th 810, 823 [“‘[A] trial judge’ . . . ‘has the authority 

to refuse requested instructions on a defense theory for which 

there is no supporting evidence.’”].)11 “‘“[B]efore a jury can be 

10 CALCRIM No. 3471 (“Right to Self-Defense: Mutual 

Combat or Initial Aggressor”) provides in relevant part that a

person who engages in mutual combat or who starts a fight has a 

right to self-defense only if: 1. “(He/She) actually and in good 

faith tried to stop fighting;” and 2. “(He/She) indicated, by word 

or conduct, to (his/her) opponent, in a way that a reasonable 

person would understand, that (he/she) wanted to stop fighting 

and that (he/she) had stopped fighting.” Because we conclude 

there was insufficient evidence Gutierrez-Benitez was in actual 

fear of imminent harm, we do not reach whether the initial 

aggressor limitation on self-defense applied. 

11 Even absent a request, a trial court must sua sponte 

instruct on self-defense when “it appears that the defendant was 

relying on the defense, or that there was substantial evidence 

supportive of the defense, and the defense was not inconsistent 

with the defendant’s theory of the case.” (Manriquez, supra, 

37 Cal.4th at p. 581.) The court must instruct on imperfect self-
12

instructed that it may draw a particular inference, evidence must 

appear in the record which, if believed by the jury, will support 

the suggested inference.”’” (People v. Alexander (2010) 49 Cal.4th 

846, 920-921; accord, Larsen, at p. 823 [“Substantial evidence in 

this context ‘“is ‘evidence sufficient “to deserve consideration by 

the jury,” not “whenever any evidence is presented, no matter 

how weak.”’”’”].)12 Conversely, an instruction is not required 

where only “[s]peculative, minimal, or insubstantial evidence” 

supports the instruction. (People v. Simon (2016) 1 Cal.5th 98, 

132, 134 (Simon).) “In determining whether the evidence is 

sufficient to warrant a jury instruction, the trial court does not 

determine the credibility of the defense evidence, but only 

whether ‘there was evidence which, if believed by the jury, was 

sufficient to raise a reasonable doubt.’” (People v. Salas (2006) 

37 Cal.4th 967, 982-983; Larsen, at pp. 823-824.) In deciding 

defense “whenever there is evidence substantial enough to merit 

consideration by the jury that under this doctrine the defendant 

is guilty of voluntary manslaughter.” (Ibid.) 

12 The same evidentiary standard applies to instruction on a 

lesser included offense (here, attempted voluntary 

manslaughter): With respect to a lesser included offense, “‘[T]he 

existence of “any evidence, no matter how weak” will not justify 

instruction on a lesser included offense, but such instructions are 

required whenever evidence that the defendant is guilty only of 

the lesser offense is “substantial enough to merit consideration” 

by the jury.’” (People v. Moye (2009) 47 Cal.4th 537, 553; accord, 

People v. Banks (2023) 97 Cal.App.5th 376, 387.) “‘“[S]peculation 

is an insufficient basis upon which to require the giving of an 

instruction on a lesser included offense.”’” (People v. Valdez 

(2004) 32 Cal.4th 73, 116; accord, People v. Williams (2015) 

61 Cal.4th 1244, 1264.)
13

whether to give a defense instruction, the court must “view the 

evidence in the light most favorable to the defendant.” (People v. 

Millbrook (2014) 222 Cal.App.4th 1122, 1137.)

When a defendant’s request for a jury instruction has been 

refused, we review the record de novo to determine whether there 

was substantial evidence that required giving the instruction. 

(Simon, supra, 1 Cal.5th at p. 133 [“We review de novo a trial 

court’s decision not to give an imperfect self-defense 

instruction.”]; People v. Avila (2009) 46 Cal.4th 680, 705 [“On 

appeal, we review independently the question whether the trial 

court failed to instruct on a lesser included offense.”]; see People 

v. Cole (2004) 33 Cal.4th 1158, 1217 [“‘Whether or not to give any 

particular instruction in any particular case entails the 

resolution of a mixed question of law and fact [and] . . . should be 

examined without deference.’”].)

B. The Trial Court Did Not Err in Refusing Gutierrez-Benitez’s 

Request for Self-defense Jury Instructions 

On appeal, Gutierrez-Benitez contends the trial court erred 

in refusing to instruct the jury on self-defense and attempted

voluntary manslaughter (i.e., imperfect self-defense) because 

there was evidence from which the jury could have found

Gutierrez-Benitez “feared for his safety and felt the need to 

defend himself.” Contrary to his contention, the record is devoid 

of any evidence Gutierrez-Benitez was in actual fear of harm, 

whether reasonable or unreasonable.

As discussed, five witnesses provided a materially 

uncontroverted account of the events on the early morning of 

April 13, 2021, consistent with the surveillance video. Four of 

the six friends were seated on benches on the pier, Mendoza was 
14

riding his scooter back and forth along the pier, and Renteria was 

standing a short distance from the seated friends. No one said 

anything to or otherwise engaged Gutierrez-Benitez before

Gutierrez-Benitez turned and confronted Mendoza midway down 

the pier. It was Gutierrez-Benitez who asked Mendoza whether 

they “have a problem” or (according to Esquival), “Where are you 

from?” When Mendoza responded that they did not have a 

problem, Gutierrez-Benitez persisted, asking “[d]o you bang?” 

After Mendoza answered that he was a Compton Tortilla Flats

gang member, it was Gutierrez-Benitez who proclaimed they did 

“have a problem” and balled up his fists. Mendoza then raised 

his fists in a “defensive position.” Renteria attempted to 

deescalate the situation by moving between the men and telling 

Gutierrez-Benitez they did not have a problem, to which 

Gutierrez-Benitez pulled out a knife with a three-and-a-half inch 

pointed blade and stabbed Renteria in the chest with a 

hammering motion. It was Renteria who fled toward the 

entrance of the pier, followed by his friends. Gutierrez-Benitez 

did not show any sign of fear, instead pausing and following in 

the direction of the six friends.

Gutierrez-Benitez does not identify any evidence that 

during this encounter he was in actual fear of imminent harm

(People v. Butler, supra, 46 Cal.4th 847 at p. 868) or that he 

“actually and reasonably believe[d] in the need to defend.” 

(Humphrey, supra, 13 Cal.4th at p. 1082.) There was no witness 

testimony indicating Gutierrez-Benitez expressed or acted out of 

fear, let alone fear of imminent harm. (See People v. Hill (2005) 

131 Cal.App.4th 1089, 1102 [“While it is true that substantial 

evidence of a defendant’s state of mind may be found in the 

testimony of witnesses other than a defendant [citation], no other 
15

witness in the instant case testified that defendant acted out of 

reasonable fear. . . . The most complete version of defendant’s 

conduct . . . came from the testimony of [defendant’s girlfriend], 

which was totally devoid of any expression of fear by 

defendant.”], disapproved on another ground in People v. French

(2008) 43 Cal.4th 36, 48, fn. 5; see also Manriquez, supra, 

37 Cal.4th at pp. 581-582 [evidence was “clearly” insufficient to 

give imperfect self-defense instruction where the defendant, who 

shot a man who came to his motel to argue about a mutual 

girlfriend, told officers “‘he had heard some threats’” the victim 

wanted to kill him, but he “never indicated [to police] he felt he 

was under any imminent threat” of great bodily injury, and the 

witness testimony “contained nothing to indicate defendant 

feared the victim”].) The only descriptions of Gutierrez-Benitez 

were Velez’s observation that he appeared a little “shady” and 

Esquivel’s suggestion Gutierrez-Benitez looked like a homeless 

person. The witnesses did not express any hostility towards 

Gutierrez-Benitez, and as Velez explained, they were taken by 

surprise when he stabbed Renteria. 

Gutierrez-Benitez relies on the fact he was outnumbered, 

noting that four of the six members of the group were men. But 

being outnumbered, without more, does not show evidence of 

actual and reasonable fear—it would be pure speculation to infer 

Gutierrez-Benitez was fearful simply from the fact he stabbed

Renteria in the presence of five other people on the pier, 

especially given that four of them were seated on benches on the 

side of the pier. (See Simon, supra, 1 Cal.5th at pp. 132-134

[speculative evidence is insufficient to support instruction]; 

People v. Valdez (2004) 32 Cal.4th 73, 116 [same].) Moreover, 

although we must view the record in the light most favorable to 
16

the defendant, Gutierrez-Benitez’s characterization of what 

happened is contrary to the record. He argues the video shows 

him walking “towards a group of six people on the pier,” but as 

noted, there was no “group” of people—the video shows two malefemale pairs seated on benches to the side and two men 

somewhat further down the pier. The video reflects GutierrezBenitez engaging initially only with Mendoza, and then with

Renteria. Gutierrez-Benitez also argues that he might have 

believed he was under attack given that Mendoza drove past him 

on a motorized scooter and circled back to him and then Renteria 

approached him. But the surveillance video shows Mendoza

repeatedly riding up and down the pier, simply turning around to 

continue his ride given the pier’s narrow projection into the 

harbor. And Mendoza was riding the scooter back and forth for 

more than two minutes before Gutierrez-Benitez walked onto the 

pier. Gutierrez-Benitez ascribes a hostility to Mendoza’s actions 

in riding the scooter that is not evident from the video. 

Gutierrez-Benitez also contends that although the evidence

suggested he was the aggressor in his exchange with Mendoza

and Renteria in asking whether they “have a problem” and 

banged, he could have made this inquiry “out of concern for his 

safety and not in order to engage the group in a fight,” and 

further, he could have been in fear as a result of Mendoza’s 

response that Mendoza was a gang member. And, GutierrezBenitez argues, “the jury could also have interpreted [Mendoza’s]

response [that he was in a gang] as escalating the confrontation 

or as confirming [Gutierrez-Benitez’s] suspicion that he was in 

danger.” 

Gutierrez-Mendoza’s argument relies entirely on 

speculation that he was initially concerned for his safety when he 
17

challenged Mendoza and Renteria, and further, that after 

inquiring into whether Mendoza was a gang member, the answer 

that he was in a gang placed Gutierrez-Benitez in fear of 

imminent harm. And it was Gutierrez-Benitez who escalated the

exchange to incipient violence when he stated that they did have 

a problem and balled his hands into fists, especially given that 

when Mendoza responded by raising his fists, Renteria 

interceded to keep the peace, telling Gutierrez-Benitez that

“[n]obody has a problem.” It was at that point that GutierrezBenitez resorted to deadly violence by producing a knife and 

stabbing Renteria. 

DISPOSITION

The judgment is affirmed.

FEUER, J.

We concur:

SEGAL, Acting P. J.

STONE, J.