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Criminal Law Keyed to Dressler
People v. Nieto Benitez
Facts
The Defendant was hit in the back of the head with a plate of food thrown during horseplay between Guero and another man, Caballo. The Defendant turned and asked who was going to wash his shirt. Guero replied that no one was, and the Defendant and Guero argued. The Defendant then went home to retrieve a gun and returned to confront Guero. After a brief exchange, Guero lunged at the Defendant, and the Defendant pulled the gun and shot Guero. Guero died of blood loss about an hour later. At trial, the judge instructed the jury that brandishing a loaded handgun in a threatening manner may constitute an intentional act sufficient to establish the element of malice. A jury convicted the Defendant of second degree murder, and he appealed. The Court of Appeal reversed the conviction on the ground that the instruction was erroneous. This appeal ensued.
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