California Court of Appeals, Second District, Sixth Division
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 ...