Martin Nieto Benitez (defendant) was eating outside of a food truck. Guero and Caballo were also eating there and were roughhousing with each other. Caballo threw his plate of food at Guero but Guero ducked and the plate of food hit Nieto Benitez in the back. Nieto Benitez became angry and demanded that one of the other men wash his shirt, and he and Guero began to argue. Guero picked up a broomstick and told Nieto Benitez to come back with a weapon. Nieto Benitez went back to his apartment and retrieved a loaded handgun that he concealed in his waistband. When Nieto Benitez returned to the food truck, Guero advanced on him with the broomstick. Nieto Benitez continued to argue with Guero, and Guero said he was ready to fight, dropped the broomstick, and lunged at Nieto Benitez. As Nieto Benitez drew the gun from his waistband with his finger on the trigger, the gun fired and struck Guero in the throat, killing him. Nieto Benitez was convicted of second-degree murder based on implied malice. The court of appeal overturned the conviction, holding that while firing a gun could support a finding of implied malice, merely brandishing a gun as Nieto Benitez had done could not. The state appealed.