The opinion
Filed 11/13/23 P. v. Palomar CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B321801
(Super. Ct. No. 14C-38830)
Plaintiff and Respondent, (San Luis Obispo County)
v.
IGNACIO FRANCO PALOMAR
III,
Defendant and Appellant.
Ignacio Franco Palomar III was convicted of second degree
murder. He appeals an order denying his Penal Code section
1172.6 petition for resentencing.1 The order was made at the
prima facie stage of the proceedings. The petition’s allegations, if
true, would have entitled appellant to relief. Without requiring
the People to file and serve a response to the petition, the trial
court summarily denied the petition because appellant was the
actual killer and therefore not eligible for relief.
1 All statutory references are to the Penal Code.
Appellant contends that, because the trial court did not
review his record of conviction and “there was no admissible
evidence whatsoever to establish any fact supporting [his]
conviction, or the theory under which the jury convicted him, the
court erred in denying the petition [and] finding [he] had failed to
establish a prima facie case.” Appellant requests that we
“reverse . . . and remand the matter . . . with directions to hold a
hearing at which it considers admissible evidence from the record
of conviction to determine whether [he] has made a prima facie
case.”
We affirm because (1) the factual summary in our prior
appellate opinion, People v. Palomar (2020) 44 Cal.App.5th 969,
971-973 (Palomar), shows that appellant was the actual killer; (2)
the judge at the section 1172.6 hearing was the same judge who
had presided at appellant’s trial; therefore, she knew appellant
was the actual killer irrespective of our prior opinion; (3)
appellant did not deny that he was the actual killer; (4) appellant
was not eligible for section 1172.6 relief because he was convicted
under a theory of implied malice; and (5) the jury instructions
given at appellant’s trial show he is not entitled to relief.
Appellant’s Petition
In his petition appellant checked boxes stating that he had
been convicted of “2nd degree murder pursuant to the felony
murder rule or the natural and probable consequences doctrine”
and that he “could not now be convicted of . . . murder because of
changes made to Penal Code [sections] 188 and 189, effective
January 1, 2019.” Based on the petition, the trial court appointed
counsel to represent appellant.
2
Facts Underlying Appellant’s Conviction
The following factual summary is taken verbatim from our
opinion in the appeal from appellant’s murder conviction,
Palomar, supra, 44 Cal.App.5th at pp. 971-973.
One evening Erik Wolting and Gregory Rustigian
went to a bar. Wolting estimated that Rustigian probably
drank about 10 beers at the bar. . . .
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. . . . 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.’” . . .
....
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.” . . .
....
3
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.
....
....
. . . The cause of [Rustigian’s] 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.”
Section 1172.6
Section 1172.6 was added to the Penal Code by Senate Bill
No. 1437 and became effective on January 1, 2019. (Stats. 2018,
ch. 1015, § 4.) Section 1172.6, subdivision (a) provides, “A person
convicted of felony murder or murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person's
participation in a crime . . . may file a petition with the court that
sentenced the petitioner to have the petitioner's murder . . .
conviction vacated and to be resentenced on any remaining
counts when” certain conditions apply.
After a facially valid section 1172.6 petition is filed and
“[a]fter the parties have had an opportunity to submit briefings,
the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief. If the petitioner
4
makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause.” (Id., subd.
(c).)
If an order to show cause is issued, the court shall conduct
an evidentiary hearing to determine the petitioner’s eligibility for
relief. (§ 1172.6, subd. (d)(1).) At the evidentiary hearing the
burden is on the People “to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder or attempted murder . . . .”
(Id., subd. (d)(3).)
The Prima Facie Hearing
On the date set for the prima facie hearing, appellant’s
counsel said in open court, “I believe in this case the
petitioner . . . was convicted under an implied malice theory . . . .”
The hearing was continued because the judge who had presided
at the trial – Jacquelyn H. Duffy – was on vacation.
At the next hearing before Judge Duffy, the prosecutor was
the same person who had represented the People at appellant’s
trial. The prosecutor said: “[Appellant] does not meet the
requirements for relief under [section 1172.6] as he was the
actual killer in this crime. Relief under this section only applies
to people who are not the actual killers in a murder prosecution.”
Appellant’s counsel responded: “[A] facially valid petition
comes down to whether or not the correct boxes were checked,
and I believe that [appellant] has done so, . . . so I would ask that
his case continue on to a prima facie event.” “I’m not trying to
say that [appellant] made a prima facie showing today, I’m
saying that the Court should order briefing and then come back
to see whether or not a prima facie showing has been made.”
The trial court stated: “The real issue that I see here is that
if the Court is aware that the petition doesn’t qualify or will not
5
ultimately qualify for relief under [section 1172.6], in this case
specifically because . . . [appellant] was the actual killer,
convicted by a jury, and ultimately would not qualify for relief, is
the Court obligated to go forward with a prima facie hearing and
require counsel to file briefs just because the petition is . . .
facially valid?”
The prosecutor replied, “I think it is entirely reasonable
and, in fact, required by the statute that you use the knowledge
that you have in regards to this case, and the evidence you heard
in the trial, in making a judgment regarding this requested relief.
[¶] Specifically in [section 1172.6,] sub[division (b)[](1), the
[Penal] [C]ode specifically requires that the petition shall be filed
with the court that sentenced the petitioner. You were the court
that sentenced the petitioner and had particular knowledge in
regards to the facts of this case. [Appellant] is not eligible for
relief because he was the actual killer.”
The trial court ruled: “[T]he court does not have an
obligation to set a prima facie hearing when that hearing I
believe will be meritless based on the fact that [appellant] was
the actual killer in this case. [¶] So I am going to deny the
request that the Court set a briefing schedule, and I am going to
deny the request for a prima facie hearing.” The trial court also
denied the section 1172.6 petition.
Although the trial court said it was denying appellant’s
request for a prima facie hearing, we conclude it conducted such a
hearing and ruled that, as a matter of law, appellant could not
make the requisite prima facie showing because he was the
actual killer.
6
The Trial Court Did Not Err in Concluding
Appellant Could Not Make a Prima Facie Showing
In determining whether the petitioner has made the
requisite prima facie showing, “‘“the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause.”’ [Citation.] ‘[A] court should not reject
the petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citation.] ‘However, if
the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.”’” (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).)
“Appellate opinions . . . are generally considered to be part
of the record of conviction.” (Lewis, supra, 11 Cal.5th at p. 972.)
“The record of conviction will necessarily inform the trial court’s
prima facie inquiry under section [1172.6], allowing the court to
distinguish petitions with potential merit from those that are
clearly meritless. This is consistent with the statute’s overall
purpose: to ensure that murder culpability is commensurate with
a person’s actions, while also ensuring that clearly meritless
petitions can be efficiently addressed as part of a single-step
prima facie review process.” (Id. at p. 971.) “We independently
review a trial court’s determination of whether a petitioner has
made a prima facie showing.” (People v. Patton (2023) 89
Cal.App.5th 649, 656.)
The trial court did not err in determining at the prima facie
stage that appellant was ineligible for section 1172.6 relief. “As a
matter of law, resentencing relief under section 1172.6 is not
7
available to an ‘actual killer.’” (People v. Garcia (2022) 82
Cal.App.5th 956, 973.) The factual summary in our prior opinion
(Palomar, supra, 44 Cal.App.5th at pp. 971-973) unequivocally
establishes that appellant was the actual killer. Where “the
record . . . makes clear that [the petitioner] was the actual killer
and the only participant in the killing,” the petitioner “is not
entitled to any relief under section 1172.6.” (People v. Delgadillo
(2022) 14 Cal.5th 216, 233.)
There is no statutory bar to consideration of our prior
opinion’s factual summary at the prima facie stage. Section
1172.6, subdivision (d)(3) provides that, at an evidentiary hearing
conducted after the issuance of an order to show cause, “[t]he
court may consider the procedural history of the case recited in
any prior appellate opinion.” In People v. Flores (2022) 76
Cal.App.5th 974, 988, the court interpreted this provision as
prohibiting consideration of “the factual summary in an appellate
opinion . . . at an evidentiary hearing to determine a petitioner's
eligibility for resentencing.” Flores concluded, “If such evidence
may not be considered at an evidentiary hearing to determine a
petitioner's ultimate eligibility for resentencing, we fail to see
how such evidence could establish, as a matter of law, a
petitioner’s ineligibility for resentencing at the prima facie stage.”
(Ibid.) We are not saying that our prior opinion’s factual
summary establishes, as a matter of law, appellant’s ineligibility
for resentencing at the prima facie stage. As discussed below, we
consider other factors in determining that appellant failed to
make the requisite prima facie showing.
The judge who ruled on the prima facie issue was the same
judge who had presided at appellant’s trial. Therefore, based on
her personal knowledge of the trial proceedings and irrespective
8
of the factual summary in our prior opinion, she knew that
appellant was the actual killer. She was not required to blind
herself to this personal knowledge.
Moreover, at the prima facie hearing appellant did not deny
that he was the actual killer. Judge Duffy said to appellant’s
counsel, “I don’t think that you are representing to the Court, nor
would I expect you to represent to the Court, that [appellant] was
not the actual killer in this case.” Counsel replied, “You know,
Your Honor, I didn’t -- I wasn’t the attorney of record [at the
trial]. I do know, you know, the facts that -- as they are set out in
the -- in the appellate opinions, that’s what I know of the case, so
I wouldn’t be prepared as of today to make any type of
representation like that.” The facts set out in the prior appellate
opinion show that appellant was the actual killer.
Furthermore, our prior opinion unequivocally establishes
that appellant is ineligible for section 1172.6 relief because he
was convicted of murder under a theory of implied malice. In the
opinion we noted, “The prosecution of appellant for murder was
based on a theory of implied malice.” (Palomar, supra, 44
Cal.App.5th at p. 974.) Appellant’s sole claim in the earlier
appeal was that “the evidence is insufficient to support the jury’s
finding of implied malice.” (Id. at p. 971.)
During the section 1172.6 proceedings, appellant did not
dispute that his murder conviction had been based on an implied
malice theory. On the date initially set for the prima facie
hearing, appellant’s counsel said, “I believe . . . the petitioner . . .
was convicted under an implied malice theory . . . .”
Thus, appellant was not convicted of “murder under the
natural and probable consequences doctrine or other theory
under which malice is imputed to a person based solely on that
9
person’s participation in a crime . . . .” (§ 1172.6, subd. (a).)
“Second degree implied malice murder . . . is not based on a
theory of imputed malice.” (People v. Schell (2022) 84
Cal.App.5th 437, 444.) “Implied malice is not imputed malice. It
requires that the perpetrator actually and personally harbor
malice.” (People v. Carr (2023) 90 Cal.App.5th 136, 139.)
Although “Senate Bill No. 1437 amended section 188 to . . .
abolish[] the natural and probable consequences doctrine, it
maintained the viability of murder convictions based on implied
malice, and the definition of implied malice remains unchanged.”
(People v. Clements (2022) 75 Cal.App.5th 276, 298.)
In ruling that appellant was ineligible for section 1172.6
relief, the trial court did not rely on the implied malice theory
underlying his murder conviction. Nevertheless, we may rely on
this theory to uphold its ruling. “Appellate review is confined to
the correctness or incorrectness of the trial court’s ruling, not the
reasons for its ruling.” (People v. Superior Court (Chapman)
(2012) 204 Cal.App.4th 1004, 1011; see also People v. Smithey
(1999) 20 Cal.4th 936, 971-972 [“‘“‘[A] ruling or decision, itself
correct in law, will not be disturbed on appeal merely because
given for a wrong reason. If right upon any theory of the law
applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its
conclusion’”’”].)
Finally, at appellant’s trial the jury was not instructed on
the felony-murder rule, the natural and probable consequences
doctrine, or on a “theory under which malice is imputed to a
person based solely on that person’s participation in a crime.”
(§ 1172.6, subd. (a).) We grant the People’s request to take
judicial notice of the jury instructions.
10
Taking into account all of the above factors, we conclude
the trial court did not err in ruling that appellant had failed to
make a prima facie showing of eligibility for relief under section
1172.6. Remand for a new prima facie hearing would be futile.
Conclusion
The order denying appellant’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
CODY, J.
11
Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General, Roberta L. Davis, Deputy Attorney General,
for Plaintiff and Respondent.