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,                                   2d Crim. No. B292450
                                           (Super. Ct. No. 14C-38830)
     Plaintiff and Respondent,              (San Luis Obispo County)

v.
                                          OPINION ON REHEARING
IGNACIO FRANCO PALOMAR
III,

     Defendant and Appellant.


        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, “[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




                                2
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




                                 3
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




                                 4
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




                                  5
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




                                 6
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




                                  7
“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.
             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




                                 8
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




                                  9
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”’. . . .”




                                 10
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.]




                                 11
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




                                 12
(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




                                13
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.




                                 14
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.




                                15
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 Cravens 1 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.”



                                   1
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,




                                2
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




                                  3
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



                                 4
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.).)



                                 5
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.




                                6
                  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.
