Filed 2/3/20

Opinion on rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

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)

OPINION ON REHEARING

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 
2

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, “[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 
3

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 
4

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 
5

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 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 
6

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.’ (Pen.Code, § 187, subd. (a).) . . . 

Malice may be either express (as when a defendant manifests a 

deliberate intention to take away the life of a fellow creature) or 

implied. [Citation.]” (People v. Cravens (2012) 53 Cal.4th 500, 

507 (Cravens).)

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 
7

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 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 
8

“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 bluntforce 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 
9

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 
10

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 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 

1 A “sucker punch” is “a punch made without warning or 

while the recipient is distracted, allowing no time for preparation 

or defense on the part of the recipient.” <https://en.wikipedia.org

/wiki/Sucker_punch> [as of Nov. 5, 2019], archived at 

<https://perma.cc/WA4A-7A5C>. In his opening brief appellant 

states, “Wolting initially told police that Rustigian was hit with a 

‘“full on sucker punch”’. . . .” 
11

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. 511.) This component is satisfied if 

appellant knew that his conduct endangered Rustigian’s life and 

he acted with a conscious disregard for life. (Id. 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.] 
12

But [appellant’s] behavior before and after [his punch] further 

demonstrated that this was not . . . a simple fistfight . . . . These 

facts, too, bolstered the finding of implied malice. [Citation.]” 

(Cravens, supra, 53 Cal.4th at p. 511.) 

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>.

“Then, having knocked [Rustigian] unconscious and with 

his head split open on the ground, [appellant] took no steps to 

ascertain [Rustigian’s] condition or to secure emergency 

assistance.” (Cravens, supra, 53 Cal.4th at p. 511.) Instead, he 

“turned around and walked away.” Appellant must have known 

that Rustigian had been severely injured. Wolting testified that, 

when Rustigian’s head hit the curb, “it sounded like a 

watermelon being dropped off a building.” Blood was coming 

from Rustigian’s ears, mouth, and the back of his head. By 

walking away without taking any measures to assist Rustigian, 

appellant manifested a callous indifference to human life.

Reply to Dissenting Opinion

Almost 80 years ago, Justice Raglan Tuttle said: “The 

consequences which would follow a fall upon a concrete walk 

must have been known to appellant.” (People v. Efstathious 
13

(1941) 47 Cal.App.2d 441, 443.) Our Supreme Court has cited 

this case and this language with approval. The Court of Appeal, 

and then the Supreme Court, have recognized the obvious: When 

there are aggravating circumstances, an assailant who strikes a 

victim standing on concrete bears the risk that the victim will 

fall, hit his head upon concrete, and will die. Concrete has not 

gotten any softer in 80 years and appellant is chargeable with 

that knowledge.

The dissenting opinion asserts that Cravens is factually 

distinguishable. It reasons that appellant’s sucker punch does 

not support a finding of implied malice because, unlike Cravens, 

the punch was not preceded by “a protracted assault by a group of 

men . . . includ[ing] threats, a chase, and a beating” that left the 

victim “virtually helpless.” (Dis. opn., post, at p. 5.) But the key 

to understanding Cravens is not the prior group beating of the 

victim. The key is the victim’s extreme vulnerability and the 

powerful sucker punch to the head delivered while the victim was 

standing on a concrete surface. Where, as here, these factors are 

present, the defendant cannot escape liability for implied-malice 

murder merely because the victim was not violently beaten before 

the sucker punch. 

In Cravens the Supreme Court concluded that the evidence 

was sufficient to satisfy the elements of implied-malice murder. 

It did not suggest that the evidence would be insufficient under 

the factual scenario of the present case. The dissenting opinion 

disputes the jury’s drawn inference that appellant must have 

been aware of the potentially lethal consequences that could 

result from Rustigian’s fall to the concrete pavement: “Such an 

inference may reasonably flow when, as in Cravens, the victim 

has been chased, beaten, stomped and ultimately punched in the 
14

face, a very different scenario from the instant case.” (Dis. opn., 

post, at p. 3.) We cannot see why such an inference cannot be 

reasonably drawn here. 

The Court of Appeal drew a similar inference in People v.

Efstathiou (1941) 47 Cal.App.2d 441. There, the defendant 

worked as a cook at the victim’s restaurant. Immediately after 

the victim had fired the defendant and left the restaurant, the 

defendant ran after him. They “exchanged blows with their 

fists . . . .” (Id. at p. 442.) The defendant “hit [the victim] and 

knocked him down.” (Ibid.) The victim struck his head on the 

concrete sidewalk and died from a skull fracture. The Court of 

Appeal upheld the jury’s second degree murder conviction based 

on implied malice. 

Here the facts are more egregious than in Efstathiou or 

Cravens.2 This was a deadly stealth attack which may have been 

motivated by racial animus. Appellant announced his intention 

to attack the victim. We do not know for sure exactly what 

appellant meant by his statement to “fuck homeboy up.” But we 

do know this: the jury could reasonably draw the inference and

find, based upon this statement, that he was acting with implied 

malice, i.e., a conscious disregard for life. To be sure, the victim 

started it by expressly announcing his hatred for Mexican 

Americans. Appellant was obviously offended even though the 

2 In Efstathiou, the argument grew out of termination of 

employment and the employee fatally assaulted his former 

employer. 

In Cravens, the argument grew out of the accidental 

spilling of a drink on one of defendant’s friends. Then an averted 

“bar fight” was removed to the street where defendant fatally 

assaulted the victim. 
15

victim was not speaking to him. Appellant physically finished it 

and the inference may be drawn that he was motivated by his 

hatred for the Caucasian victim. 

Conclusion

“For [the above] reasons, we conclude that the evidence of 

[appellant’s] conduct and his mental state satisfied the elements 

of implied malice.” (Cravens, supra, 53 Cal.4th at p. 511.) 

Appellant’s contention fails because this court must view the 

evidence in a light most favorable to respondent and presume in 

support of the judgment the existence of every fact the trier could 

reasonably deduce from the evidence. 

The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

YEGAN, Acting P. J.

I concur:

TANGEMAN, J.
1

TANGEMAN, J., Concurring:

I concur. I agree with the majority opinion and its 

rationale as it applies to the outcome in this case; however, I 

disagree with the statement that the facts here are “more 

egregious” than those in People v. Cravens (2012) 53 Cal.4th 500. 

(Maj. opn. ante, at p. 14.) 

I share my dissenting colleague’s view that it is difficult to 

reconcile the facts of this assault with the conclusion that 

appellant’s conduct carried “a high probability that it [would] 

result in death” (at p. 4, post, italics omitted). But the additional 

facts surrounding the group assault on the victim in Cravens are 

not enough, in my view, to distinguish Cravens from this case. 

Accordingly, we are bound to follow Cravens here. (Auto Equity 

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) For that 

reason, I concur in the result.

CERTIFIED FOR PUBLICATION.

 TANGEMAN, J.
1

PERREN, J., Dissenting: 

My colleagues and I agree that Cravens1 is controlling. In 

Cravens, our Supreme Court affirmed the defendant’s conviction 

for second degree murder concluding, after extensively discussing 

the underlying facts, that substantial evidence supported the 

verdict of the trial jury. (Cravens, supra, 53 Cal.4th at pp. 508-

512.) My colleagues rely upon a pairing of the facts in Cravens 

with the facts in the instant matter and conclude that the cases 

are indistinguishable. I respectfully disagree. In the factual 

distinction is to be found the difference between implied malice 

murder and manslaughter. I would reverse.2

The Pairing: Seth Cravens followed Emery Kauanui from a 

bar. Cravens punched Kauanui in the face. Kauanui fell 

1 People v. Cravens (2012) 53 Cal.4th 500 (Cravens).

2 Respondent’s brief erroneously states that the jury 

convicted appellant of both second degree murder (count 1) and 

voluntary manslaughter (count 2). After the verdict was 

returned the trial court asked the prosecutor, “As to Count 2, 

which was being essentially pursued on a lesser included theory, 

are the People moving to dismiss Count 2?” Following the 

People’s agreement, the court further inquired: “And that’s 

conditioned on the continuing validity of the jury’s verdict of guilt 

as to count 1?” The prosecutor agreed. 

The jury returned a verdict of guilty of second degree 

murder. No other verdicts were returned. Immediately 

thereafter the jury was discharged. The jury was correctly 

instructed to consider count 2 as a lesser included offense to 

count 1 and that if a verdict of second degree murder was their 

verdict the jury was not to complete or sign any other forms. 

The next entry in the clerk’s minutes of that same date, 

however, states: “Oral Motion to dismiss Count 002 made by the 

People is granted.”
2

backwards, struck his head on the pavement and died from head 

injuries suffered in the fall. Appellant followed Gregory 

Rustigian from a bar. Appellant punched Rustigian in the face. 

Rustigian fell backwards, struck his head on the pavement and 

died from head injuries suffered in the fall. Here the similarity 

ends.

The majority says that in Cravens, “the ‘defendant “came 

flying out” without warning and “coldcocked” [the victim]’ with a 

‘sucker punch’ to the head.” (Maj. opn. ante, at pp. 7-8, quoting 

Cravens, supra, 53 Cal.4th at p. 509.) This description omits the 

facts that distinguish Cravens from this case. Yes, the defendant 

in Cravens did “fly out” but only after he and his four cohorts 

jumped in a car, pursued victim to his home, and beat and kicked 

him. (Cravens, at pp. 503-505.) It was only when the stunned 

victim slowly rose from the beating that the defendant “sucker 

punch[ed]” him causing him to fall and strike his head. (Id. at 

p. 509.) The evidence also showed that the defendant had a 

history of “sucker punch[ing]” others. (Id. at pp. 509-510.) Here, 

by contrast, an angry appellant followed Rustigian from the bar

and punched him once in the face. Rustigian was out on his feet 

and fell, striking his head on the concrete curb. 

The majority, quoting from Cravens, concludes “‘the record 

shows that [appellant] targeted a . . . victim who was [obviously] 

intoxicated . . . and therefore vulnerable.’” (Maj. opn. ante, at 

p. 9, quoting Cravens, supra, 53 Cal.4th at p. 508.) The majority 

does not mention, however, that Cravens was accompanied by 

four of his former football buddies. They confronted the victim in 

a bar after he accidentally spilled beer on one of them while 

dancing with his girlfriend. Tempers flared. The victim left the 

bar with his girlfriend and she drove him home. Sometime later,
3

the defendant and his companions drove to the victim’s home and 

beat and kicked him. The defendant continued the attack by 

punching the victim in the face, causing the victim to fall 

backward and sustain the injuries that caused his death. 

(Cravens, at pp. 502-505.) The evidence at trial showed “[the] 

defendant swung hard against a fatigued and intoxicated victim 

who was two inches shorter and 60 pounds lighter.” (Id. at 

p. 509.) The height advantage was magnified by Cravens

standing on a surface “extra inches” above the victim when he 

struck the fatal punch. (Ibid.) 

We are also told by the majority that “‘[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.]’” (Maj. opn. 

ante, at p. 10, quoting Cravens, supra, 53 Cal.4th at p. 509.) Such 

an inference may reasonably flow when, as in Cravens, the victim 

has been chased, beaten, stomped and ultimately punched in the 

face, a very different scenario from the instant case. Here, the 

combatants who were roughly the same size, were standing on a 

flat surface facing one another at the time the blow was struck. 

What we do know of appellant is that he was angered by 

Rustigian’s racist comments. We also know that Rustigian had 

been twice warned that he had angered others in the bar and had 

been warned he was going to be “jumped.” He dismissed the 

threat out of hand.

“In the trial of cases of homicide committed by violence it is 

almost always important to consider the character of the weapon 

with which the homicide was committed, and all through the 

cases great emphasis is laid on the fact that a weapon likely to 
4

produce death was used by the accused. If the means employed 

be not dangerous to life, or, in other words, 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. The 

distinguishing characteristic respecting the two crimes of murder 

and manslaughter is malice. Without the presence of this 

element of malice the crime does not reach the higher degree of 

murder, but amounts simply to manslaughter.” (People v. Munn

(1884) 65 Cal. 211, 213; see also Cravens, supra, 53 Cal.4th at p. 

508, citing Munn, at p. 212; Cravens, at pp. 516-617 (dis. opn. of 

Kennard, J.).)

The doctrine of implied malice contains both a physical 

(objective) component and a mental (subjective) component. The 

physical component requires “‘“the performance of ‘an act, the 

natural consequences of which are dangerous to life.’”’” (Cravens, 

supra, 53 Cal.4th at p. 508; People v. Phillips (1966) 64 Cal.2d 

574, 587, overruled on other grounds by People v. Flood (1998) 18 

Cal.4th 470, 490, fn. 12.) The pattern jury instruction on implied 

malice murder states that “[a] natural and probable consequence 

is one that a reasonable person would know is likely to happen if 

nothing unusual intervenes.” (CALCRIM No. 520, italics 

omitted.) “Phrased in a different way, malice may be implied 

when [the] defendant does an act with a high probability that it 

will result in death and does it with a base antisocial motive and 

with a wanton disregard for human life. [Citation.]” (People v. 

Watson (1981) 30 Cal.3d 290, 300, italics added (Watson); People 

v. Thomas (1953) 41 Cal.2d 470, 480 (conc. opn. of Traynor, J.).)3 

3 Our Supreme Court has recognized that these definitions 

of implied malice are synonymous. (People v. Knoller (2007) 41 
5

The mental component requires a finding the defendant “‘“‘knows 

that his conduct endangers the life of another and . . . acts with 

conscious disregard for life.’”’ [Citation.]” (Watson, at p. 300.) A 

defendant’s conscious disregard of the risk of serious bodily injury 

is insufficient to support a finding of implied malice; rather, 

“implied malice requires an awareness of the risk of death.” 

(People v. Knoller (2007) 41 Cal.4th 139, 155-156, italics added.)

The facts and circumstances in Cravens “fall just within the 

outer bounds of conduct sufficiently dangerous to” establish 

implied malice. (Cravens, supra, 53 Cal.4th at p. 514 (conc. opn. 

of Liu, J.).) Here the facts and circumstances lie outside that 

boundary. In cases involving a single punch something in 

addition to the blow is required. Cravens involved far more than

a single punch. It involved a protracted assault by a group of 

men and included threats, a chase, and a beating inflicted by the

group ending with defendant striking the virtually helpless 

victim in the face with his fist. No such comparable facts or 

circumstances are presented in this case. Appellant’s conduct, 

while reprehensible, falls outside the outer bounds of conduct 

sufficiently dangerous to support a finding that he committed an 

act with a high degree of probability that it would result in death. 

Reviewing “the whole record in the light most favorable to 

the judgment below,” I conclude that the evidence is 

insubstantial─that is, it does not disclose “evidence which is 

reasonable, credible, and of solid value─such that a reasonable 

Cal.4th 139, 152.) Although our Supreme Court’s recent cases 

have not referred to the definition set forth in Watson and 

Thomas, the court “[h]as never disavowed the Thomas 

formulation of implied malice, particularly with respect to the 

objective component. [Citation.]” (Cravens, supra, 53 Cal.4th at 

pp. 512-513 (conc. opn. of Liu, J.).) 
6

trier of fact could find the defendant guilty beyond a reasonable 

doubt.” (People v Johnson (1980) 26 Cal.3d, 557, 578.) It neither 

“‘reasonably inspires confidence’” nor is it of “‘“solid value.”’” 

(People v Morris (1988) 46 Cal.3d 1, 19, disapproved on other 

grounds by In re Sassounian (1995) 9 Cal.4th 535, 543-545.)

I would reverse.

CERTIFIED FOR PUBLICATION.

PERREN, J.
Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

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.