THE PEOPLE, Plaintiff and Respondent, v. IGNACIO FRANCO PALOMAR III, Defendant and Appellant.
2d Crim. No. B292450
Super. Ct. No. 14C-38830 (San Luis Obispo County)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Filed 2/3/20
Opinion on rehearing
CERTIFIED FOR PUBLICATION
Ignacio Franco Palomar III, appeals from the judgment entered after a jury convicted him of second degree murder. (
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.”
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 the warning seriously. He said to the bar‘s bouncers, “‘Ooh, I‘m going to [get] jumped --’ ‘We‘re going to get jumped when we walk out of here, ooh, I‘m scared,’ and he was laughing.” Wolting testified, “[I]t was a joke, he was jesting because he was pretty confident of himself.” Rustigian weighed about 225 pounds and was “pretty solid. [He] [d]id construction [work] every day [and] went to the gym every day.” He was about five feet, ten inches tall.
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 would have been emblazed into my mind.” “I know there was some dialog[ue] . . . I think it was brief, but I don‘t recall the content. . . . [I]t was definitely directed at [Rustigian] and not me.” “[T]here was some dialog[ue] and then it all happened very quickly.” The assailant “surprise[d] [us] as [we‘re] turning around, in my head that‘s what happened. That we were turning around, blank, blank, blank, blank, [Rustigian] gets hit.”
“[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 over.” Wolting heard a “thud when [Rustigian] got hit in the face.” “The full force of the punch [was] absorbed into his face.”
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
(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 follows you out of the bar.” “[W]hat are the chances that [Rustigian is] just going to . . . turn around swinging?” “[W]e . . . don‘t know who threw the first punch . . . .” It is reasonable to conclude that “Rustigian knew to be on guard [because of Victoria Lopez‘s warning that he was ‘going to get jumped‘] and [therefore] turned around swinging.”
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 awareness of engaging in conduct that endangers the life of another . . . .’ [Citation.]” (Cravens, supra, 53 Cal.4th at p. 507.)
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
Cravens
Cravens is the controlling authority. There, the “defendant ‘came flying out’ without warning and ‘coldcocked’ Kauanui” with “a sucker punch” to the head. (Cravens, supra, 53 Cal.4th at p. 509.) At the time of the blow, Kauanui was standing in the street. Witnesses “opined that Kauanui was unconscious from the blow before he hit the ground. The punch was described by witnesses as ‘extremely hard’ and ‘one of the hardest punches I‘ve ever seen thrown.’ [One witness] added that ‘[i]t was a knockout. . . . [A]ll you heard was like boom, like, from his head hitting the concrete. . . .’ Even the neighbors could hear the sound of his skull hitting the ground. A pool of blood started to stream from the back of Kauanui‘s head.” (Id. at p. 505.) The defendant did not provide any assistance to Kauanui. A companion drove defendant away from the scene.
“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.
“[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 conclude that both components are satisfied here.” (Cravens, supra, 53 Cal.4th at p. 508.)
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 Rustigian‘s conduct inside the bar, he must have known that Rustigian was intoxicated.
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
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
most vulnerable . . . .” (Ibid.) “The jury could reasonably have found that at the time [appellant] attacked, [Rustigian] posed no threat and was not behaving in an aggressive manner.” (Ibid.) “[T]he record supported the jury‘s finding that [Rustigian] was . . . completely unaware that he needed to defend himself against a forceful punch, let alone a forceful punch to the head.” (Id. at p. 510.)
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
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>.