P.

BACKGROUND

Jose Guadalupe Ayala (Ayala) was working as the night watchman at Roscoe’s Chicken and Waffles on Pico Boulevard in Los Angeles on February 9, 2009. At approximately 3:30 a.m., he opened the side door of the restaurant and was confronted by an armed man waiting for him. The man placed a gun to Ayala’s forehead, kicked Ayala, pushed him to the floor, and then beat him. Ayala could not see the man’s face, which was covered by a mask, but he could see that the man was African-American. While Ayala was lying on the ground, the man took Ayala’s watch, cell phone, and necklaces.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 The assailant then insisted that Ayala open the door to the restaurant office, which was locked. Ayala did not have the key to the office, but told the man he would get the key. Ayala began walking backward into the restaurant. The man followed Ayala closely, keeping the gun to Ayala’s forehead. Ayala backed into the kitchen, grabbed a nearby knife, feinted to stab the man with it, and then kicked the man, who fell to the ground. While lying on the ground approximately two or three feet away from Ayala, the…