Prosecutors to Say That Death Was Result of Duel : Justice: Seldom-used charge, which defendant denies, dates back to the time of the Wild West, when such challenges were common.

Until last July, investigators say, Vernon Isip, 39, and Bayani (Boy) Zuniga, 42, had a close friendship built on shared experience. Both had been born in the Philippines. Both were married but lived apart from their wives and children in southern San Diego County.

Their friendship came to a bloody end, police say, when the two men discovered they had something else in common: interest in the same woman. Just after 11 p.m. on July 12, they say, Zuniga arrived at Isip’s National City apartment complex wielding a gun. Isip armed himself, and the two men faced off in an outdoor walkway, firing their weapons until empty.

Zuniga was killed--on that, at least, everyone agrees. What is being disputed is the manner in which the killing took place. Was Isip merely defending himself against an armed assailant? Or was Zuniga the casualty of a prearranged challenge--a duel?

Tuesday, at Isip’s preliminary hearing in San Diego County Municipal Court, Deputy Dist. Atty. Thomas Nickel will argue that Isip is guilty of the rare felony charge of dueling with a firearm. If tried and convicted, Isip will face up to nine years in prison. And he could go down in history as one of the state’s few 20th-Century duelists.

“It sounds astonishing, even revolting, that this sort of thing would happen in this day and age,” Nickel told reporters after Isip was arraigned in September. “But essentially, one guy called the other up and said: ‘This town ain’t big enough for the both of us.’. . . (They) shot it out face to face in the ‘OK Corral’ style of Wild West fighting.”

The maximum penalty for dueling is more lenient than for murder--a first-degree murder conviction is punishable by 25 years to life in prison. But, by charging Isip with the lesser, more obscure offense, Nickel hopes to strip him of the ability to win an acquittal by arguing that he fired to protect himself--in dueling, that is no defense.

Isip, who has pleaded not guilty, claims there was no duel. According to a declaration filed in September by a National City police officer who interviewed Isip and others, the two men had quarreled and exchanged threats over the telephone.

The declaration says that Zuniga called Isip’s apartment on July 12 and told Isip’s roommate, Orlando Torres, that he was coming over and that Torres should leave the apartment. About 20 minutes later, Zuniga arrived. When Isip saw that Zuniga was armed, he armed himself with a loaded gun and extra magazine clip, the declaration said.

“The suspect (Isip) claims that he armed himself with a gun only to protect himself,” the declaration said. “Suspect further claims that part of the reason why he did not call 911 was because that was not the Filipino method of handling the matter.”

Next week, if prosecutors argue that “the Filipino method” can sometimes mean resorting to violence, they will be correct, according to Rizalino A. Oades, a San Diego State University history professor who specializes in the study of Southeast Asia.

Oades, himself a native of the Philippines, said that, although there is no formalized custom of dueling in his homeland, the “machismo” culture is still a strong force that shapes interpersonal relationships on many levels. Particularly in that country’s rural areas, he said, saving face is still seen as something worth fighting for.

“If a man’s honor is at stake, he has to defend himself from whoever gave him insult,” Oades said, describing one custom in which two opponents tie one hand behind each other’s backs and then have it out with machetes. “This happens even in my hometown, 100 miles from Manila. We call it ‘face’ or ‘shame.’ Protecting and upholding the honor of the family. No one backs out. They do it to the death.”

But to win a dueling conviction, Nickel, the prosecutor, must do more than prove that Isip and Zuniga engaged in deadly combat. The penal code statute, which is more than 100 years old, requires that Nickel also prove that the fatal fight occurred “by previous agreement or upon a previous quarrel.”

When asked last week what “upon a previous quarrel” meant, Nickel said that was a matter of interpretation.

“I don’t know. I guess that’s for the judge to decide,” he said, refusing to discuss his strategy further. “I’m just going to present the facts and let the judge sift through it. The judge is the one who’s going to have to make a decision. That’s what they get paid for, to make these tough calls.”

Once seen as a gentlemanly way of resolving disputes, duels were commonplace in California in the mid-1800s, when the discovery of gold in the Sacramento Valley prompted many a territorial squabble. Then, such “affairs of honor” followed formal traditions--each participant had an assistant, or second; firing distances were set beforehand, usually 20 yards for pistols, 40 yards for rifles.

But, as early as 1852, newspaper editorials around the state had begun denouncing the practice as “irrational and barbarous” and a “depraved system of chivalry.” In 1872, dueling was outlawed. By the end of the last century, historians say, dueling was virtually dead.

Since then, there have been isolated cases--newspaper accounts say the century’s first duel in California was in 1926, when two laborers faced off in Placer County. But, in modern times, prosecutors say it’s difficult to remember the last time they applied Penal Code Section 226.

Keith G. Burt, chief of the San Diego County district attorney’s gang prosecution unit, said his unit rarely charges suspects with dueling, even though “many gangs have a tacit agreement that, whenever they see each other, they’ll go after each other.”

“That’s not dueling,” he said, noting the statute’s apparent reference to a specific previous agreement. “Very, very few cases are cases that are truly a duel. . . . If you kill somebody, in most cases it’s murder.”

Burt said, however, that two gang members may be San Diego County’s most recent duelists on record, though only by default.

In 1988, the two young men were caught firing at each other in a Southeast San Diego neighborhood, and charged with dueling and assault with a deadly weapon. A judge, apparently not finding sufficient basis to try the two for dueling, bound them over to be tried only for assault. But, before the trial began, both pleaded to the lesser offense, dueling, and received probationary terms.

San Diego’s only other recorded dueling charge since law came to the West was in May, 1959, when Jimmy C. Fuller, a night clerk at a downtown locker club, and Calvin P. Summers, a sailor from the destroyer tender Prairie, fired revolvers at each other after an argument. According to newspaper accounts, Fuller said Summers made a derogatory remark about his race.

Summers was seriously injured, with a gunshot wound in his side. Apparently acting on the advice of an attorney who feared Summers might die, Fuller hurriedly pleaded guilty to dueling to protect himself from a murder charge.

Summers recovered and, after a daylong preliminary hearing, charges against him were dismissed. Municipal Judge Luther N. Hussey said the gun battle had lacked the necessary prearrangements that would raise it to the dignity of a duel.

That left Fuller in the odd position of having pleaded guilty to a crime that requires a minimum of two persons, while the other person had been judged not guilty. He received a $150 fine and three years probation.

California’s most famous duel was fought in September, 1859, between Chief Justice David S. Terry of the state Supreme Court and U.S. Sen. David C. Broderick.

According to an account in the San Francisco Herald, the parties met at 6:45 a.m. “in a beautiful ravine” at a ranch in San Mateo. They were accompanied by their seconds, surgeons and about 70 friends. The two marked off 10 paces, turned and fired their dueling pistols. Broderick was killed.

The incident prompted an editorial in the San Diego Herald, which blamed public opinion for forcing men to make a public show of their bravery.

“Duelling is essentially one of the worst practices of this or any other age; none will pretend to deny that; and there are but few instances in which it can have even the shadow of a moral defence,” the editorial said. “It proves nothing, not even courage; (and) makes the truth no clearer.”

In the Broderick-Terry skirmish, it continued, “an insult was offered, pride refused an apology and Public Opinion drove the parties to an encounter; the portals of the grave closed on one, and the other, having resigned his high office as an administrator of justice, is preparing to leave the Pacific shore where every object reminds him of his irrevocable deed.”