People v. PalomarPeople v. Palomar
The murder charge was based on a theory of implied malice. Appellant contends that the evidence is insufficient to support the jury’s finding of implied malice. We affirm.
Facts
“Viewing the entire record, as we must, in the light most favorable to the judgment and presuming in support thereof the existence of every fact the jury could have reasonably deduced from the evidence, we summarize the evidence as follows. [Citation.]” (People v. Lozano (1987) 192 Cal.App.3d 618, 621.)
One evening Erik Wolting and Gregory Rustigian went to a bar. Wolting estimated that Rustigian probably drank about 10 beers at the bar. When asked if Rustigian was intoxicated, Wolting responded, “He seemed like he was pretty buzzed.”
Wolting introduced Rustigian to Rosa Lopez. Rustigian “raised his voice” and said “something derogatory” about Mexicans. Rustigian was white. Rosa Lopez “recoiled and you could see that she wasn’t happy with what he said.” She “was upset with him.”
Appellant, Rosa Lopez’s cousin, was inside the bar. Appellant is “a pretty big guy.” David Aguayo, a bouncer at the bar, was worried that appellant was going to get into a fight with Rustigian. Aguayo told appellant, “[Y]ou know I’m working here now and if you’re gonna do something, don’t do it inside, Dude.” Appellant threatened, “I’m gonna fuck homeboy up.”
At about 11:30 p.m., Wolting and Rustigian left the bar. While they were getting ready to leave, Rosa Lopez’s sister, Victoria Lopez, approached them and said, “‘You guys are going to get jumped when you leave this bar.’” Rustigian did not take
Michael Knopf was another bouncer at the bar. When Wolting and Rustigian left, Knopf heard Rustigian say: “‘I guess the Mexicans don’t want us to be here. God I hate fuckin’ Mexicans.’”
Wolting and Rustigian were walking on a public street about 50 feet away from the bar. Wolting “saw a shadow in back of us and . . . heard some noise.” He turned around and saw “a black figure, just a shadow, because it was dark.” Rustigian turned around at the same time. He did not “make any kind of physical movement towards” the assailant. The assailant punched Rustigian in the face. Rustigian did not try “to take a swing [at] or . . . punch” the attacker. It “was a matter of seconds” between the time that Wolting first “noticed the assailant” and the time that Rustigian “got punched.” Wolting was standing next to Rustigian.
Wolting was asked, “Was there time for [Rustigian] to have thrown a punch after you notic[ed] the assailant?” Wolting replied: “Hard to tell at that point, I don’t think so, but I’m not 100 percent certain. I didn’t see [Rustigian] throw anything.” He also “didn’t hear [Rustigian] say anything.” Wolting continued: “All I remember is him getting punched once and that was it. I think I would have recalled a scuffle, pretty darn certain that
After Rustigian was punched in the face, he “kind of jerked back, not too much, . . . but stayed standing erect and then fell down slowly.” “[H]e closed his eyes and he started . . . falling backwards . . . towards the [concrete] curb.” The back of Rustigian’s head “connected with the edge of the curb[;] it sounded like a watermelon being dropped off a building.”
“[T]he attacker turned around and walked away.” Rosa Lopez told the police that appellant had admitted punching Rustigian.
Blood was coming from Rustigian’s ears, mouth, and the back of his head. He was “having trouble breathing.” Wolting “thought he was dying.” Wolting “pull[ed] [Rustigian] off the curb because his head was dangling over the back edge of the curb.” Wolting wanted to assure that “his head would be level instead of leaning back as he was gurgling.” Wolting then called 911.
Wolting was asked to “describe the force of the punch.” He replied: “[I]t had to be . . . incredibly powerful, because . . . [Rustigian] was a pretty solid, well-built, strong dude and . . . he rocked back pretty quick and passed out while standing up.” “I saw his eyes close and him just falling back . . . , without being able to break his fall. His eyes were closed and he just teetered
On the right side of his head, Rustigian had “[a] fracture of the occipital bone, which is in the back of the base of the head, the temporal bone, which is deep to the ear, [and] the sphenoid bone, which is kind of in the middle of the head.” He also had a fracture of the “right orbit,” the bone structure around the right eye. A doctor opined, “[T]he fracture extent of the orbit . . . goes into the sphenoid sinus and then into the temporal bone which would indicate one continuous fracture.” The cause of death was “a very severe brain injury.”
Appellant did not testify. He concedes “that the evidence supports a reasonable inference that he threw the punch that led to Rustigian’s death.” He also concedes “that a punch caused the victim to fall and strike his head on the concrete, resulting in a fatal head injury.”
Defense Counsel’s Closing Argument to the Jury
Defense counsel’s closing argument to the jury included, inter alia, the following points:
(1) “[P]unching someone once, even if it’s in the face, is not deadly force” and “is not inherently dangerous.” “[T]hat is why boxing and MMA [mixed martial arts] is a youth sport taught to our boys and girls, . . . and at the heart of both boxing and MMA is punching people in the head.”
(2) Appellant may have acted in self-defense when he punched Rustigian: “[Appellant] is not guilty of any of this if you find he was lawfully defending himself or reacting reasonably to something that Mr. Rustigian initiated.” “[I]f you’re . . . drunk, . . . and you’re shouting out things like . . . ‘I fuckin’ hate Mexicans’ you just might swing first if one of those Mexicans
The jury rejected defense counsel’s theories. It found appellant guilty of second degree murder even though it had been instructed on both perfect and imperfect self-defense as well as the lesser included offense of voluntary manslaughter based on a killing committed “because of a sudden quarrel or in the heat of passion.” The jury was also instructed on involuntary manslaughter: “When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.”
Implied Malice
“Murder is the unlawful killing of a human being or a fetus ‘with malice aforethought.’ (
The prosecution of appellant for murder was based on a theory of implied malice. “‘Malice is implied when the killing is proximately caused by “‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’” [Citation.] In short, implied malice requires a defendant’s
Standard of Review
Appellant claims that the evidence is insufficient to support the jury’s finding of implied malice. “Our task is clear. ‘On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]’ . . . The conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citation.]” (Cravens, supra, 53 Cal.4th at p. 508.) “All conflicts in the evidence are resolved in favor of the judgment . . . .” (People v. Neely (2009) 176 Cal.App.4th 787, 793.) “[W]e must . . . presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) “‘“‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ . . .”’” (Cravens, supra, at p. 508.)
Cravens
Cravens is the controlling authority. There, the “defendant ‘came flying out’ without warning and ‘coldcocked’ Kauanui” with
“An ambulance took Kauanui to the hospital. Kauanui had a blood-alcohol level of 0.17 percent when he was admitted, and his blood contained traces of marijuana.” (Cravens, supra, 53 Cal.4th at p. 505.) Kauanui died. “The cause of death was blunt-force head injuries.” (Id. at p. 506.)
The Supreme Court reversed the Court of Appeal’s decision that the evidence was insufficient to support the defendant’s conviction of second degree murder based on an implied malice theory.
Substantial Evidence Supports the Finding of Implied Malice
“[W]e must determine whether there is sufficient evidence to satisfy both the physical and the mental components of implied malice, the physical component being ‘“the performance of ‘an act, the natural consequences of which are dangerous to life,’”’ and the mental component being ‘“the requirement that the defendant ‘knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.’”’ [Citation.] We
The Physical Component of Implied Malice Is Satisfied
“This state has long recognized ‘that an assault with the fist . . . may be made in such a manner and under such circumstances as to make the killing murder.’ [Citation.] However, ‘if the blows causing death are inflicted with the fist, and there are no aggravating circumstances, the law will not raise the implication of malice aforethought, which must exist to make the crime murder.’ [Citation.] Based on our review of the record, we find sufficient evidence that the manner of the assault and the circumstances under which it was made rendered the natural consequences of [appellant’s] conduct dangerous to life.” (Cravens, supra, 53 Cal.4th at p. 508.)
“First, the record shows that [appellant] targeted a . . . victim who was [obviously] intoxicated . . . and [therefore] vulnerable.” (Cravens, supra, 53 Cal.4th at p. 508.) Knopf, a bouncer at the bar, testified that Rustigian was “lightheaded, . . . buzzed” when he entered the bar. Knopf said to Rustigian, “[Y]ou look a little buzzed.” Rustigian replied, “‘We’re a little buzzed,’ . . . ‘but we’re not going to drink no more, we’re good.’” However, according to Wolting, Rustigian probably drank about 10 beers at the bar and “was pretty buzzed.” Victoria Lopez testified: Rustigian “was just drunk” and “very intoxicated.” She “approach[ed] [Wolting] and said that . . . [Rustigian] is . . . really drunk and he’s upsetting a lot of people.” Aguayo testified that Rustigian “was slamming [his] fist on the bar counter.” During closing argument to the jury, defense counsel said, “[T]here’s no doubt [Rustigian] was highly intoxicated and it appears [appellant] was not intoxicated at all.” Since appellant observed
Second, it is reasonable to infer that the blow delivered by appellant “was a very hard punch.” (Cravens, supra, 53 Cal.4th at p. 509.) “The punch was hard enough to knock [Rustigian] unconscious, despite his [size] and fitness, even before he hit the ground.” (Ibid.) Wolting heard a “thud when [Rustigian] got hit in the face.” He testified that the punch must have been “incredibly powerful, because . . . [Rustigian] was a pretty solid, well-built, strong dude and . . . he . . . passed out while standing up.”
Third, “[appellant’s] conduct . . . guaranteed that [if Rustigian fell, he] would fall on a very hard surface, such as the pavement or the concrete curb. ‘The consequences which would follow a fall upon a concrete walk must have been known to [appellant].’ [Citations.]” (Cravens, supra, 53 Cal.4th at p. 509.)
Fourth, and “[p]erhaps worst of all, [appellant] decked [Rustigian] with a sucker punch.”1 (Cravens, supra, 53 Cal.4th at p. 509.) Appellant surreptitiously approached Rustigian from behind in the dark while he was walking away from the bar. Without warning, appellant punched him in the face before he had time to defend himself. “That [appellant] used a sucker punch here” shows that he “intended to catch [Rustigian] at his
Thus, “[c]onsidering the totality of the circumstances, . . . the jury could reasonably find that [the physical component of implied malice was satisfied because appellant’s] act of violence was predictably dangerous to human life.” (Cravens, supra, 53 Cal.4th at p. 510.) It is reasonable to infer that appellant delivered “an extremely powerful blow to the head calculated to catch the impaired victim off guard, without any opportunity for the victim to protect his head, and thereby deliver the victim directly and rapidly at his most vulnerable to a most unforgiving surface.” (Id. at p. 511.)
The Mental Component of Implied Malice Is Satisfied
Sufficient evidence in “[t]he record also supports the jury’s finding of the mental component of implied malice.” (Cravens, supra, 53 Cal.4th at p. 511Id. at p. 508.) “This component is ordinarily proven by illustrating the circumstances leading to the ultimate deadly result.” (People v. Guillen (2014) 227 Cal.App.4th 934, 988.)
“Of course, the jury was entitled to infer [appellant’s] subjective awareness that his conduct endangered [Rustigian’s] life from the circumstances of the attack alone, the natural consequences of which were dangerous to human life. [Citation.]
Before leaving the bar, appellant said to Aguayo, “I’m gonna fuck homeboy up.” Appellant must have boasted to Victoria Lopez that he was going to ambush Rustigian. Otherwise, she would not have warned Wolting and Rustigian, “‘You guys are going to get jumped when you leave this bar.’” According to the American Heritage Dictionary, in this context “jump” means, “To spring upon in sudden attack; assault or ambush: Muggers jumped him in the park.” <https://www.ahdictionary.com/word/search.html?q=jump; see definition 3 under “v.tr.”> [as of Nov. 5, 2019], archived at <https://perma.cc/Y8MC-VQGV>.