P.

FACTS AND PROCEDURAL HISTORY

Diaz, Torres, Faustino Diaz, and Rafael Herrera were four of approximately 15 people who shared the same house in Santa Ana, California.2 The four men drank beer together in the front yard late one night in May 2009. At the time, Diaz and Torres had known each other for the two months they lived in the house, but they rarely interacted. Diaz and his uncle, Faustino, drank earlier that evening with some friends. Similarly, Torres and Herrera had begun drinking at a friend‟s house much earlier in the day. Initially, the four men drank beer and talked without any problems. At some point, however, a disagreement arose with Diaz and Faustino on one side and Torres on the other. Diaz and Faustino nearly came to blows with Torres, but Herrera stepped between the men and asked, “„Are we here to drink or are we here to fight?‟”

All statutory references are to the Evidence Code unless otherwise stated. We will refer to Faustino Diaz by his first name to avoid any confusion with Diaz. No disrespect is intended. (Martin v. PacifiCare of California (2011) 198 Cal.App.4th 1390, 1393, fn. 1.)

2 That comment calmed everyone down and the four men resumed…