People v. Palomar

          Superior Court County of San Luis Obispo No. 14C-38830 Jacquelyn H. Duffy, Judge.

          Mark R. Feeser, under appointment by the Court of Appeal for Defendant and Appellant.

          Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.

          Yegan, Acting P. J.

         Ignacio Franco Palomar III, appeals from the judgment entered after a jury convicted him of second degree murder. (Pen. Code, §§ 187, subd. (a), 189.) The trial court found true allegations that he had been convicted of two prior serious felonies within the meaning of section 667, subdivision (a)(1), and two prior serious or violent felonies within the meaning of California's “Three Strikes” law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The court dismissed one of the two strikes. It sentenced appellant to an aggregate term of 40 years to life consisting of 30 years to life for second degree murder (15 years to life doubled because of the one strike), plus 10 years for the two prior serious felony convictions within the meaning of section 667, subdivision (a)(1).

         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, “You 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 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.”

         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 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 martial arts] is a youth sport taught to our boys and girls, ... and ...