A San Diego County prosecutor failed to persuade a judge Tuesday that a Navy petty officer who shot a former friend to death should be tried on the rare felony charge of dueling.
Municipal Judge Patricia A. Y. Cowett said there was insufficient evidence to show that the fatal altercation between the defendant, 39-year-old Vernon Isip, and the victim, 42-year-old Bayani (Boy) Zuniga, on July 12 had occurred by previous agreement--part of the legal definition of dueling.
She also found that Isip, who was wounded but survived the gunfight, appeared to have tried to withdraw from the battle before it began.
“When it became apparent to the defendant that Mr. Zuniga did wish to engage (in a fight), he (Isip) expressed the intention not to do that,” Cowett said, explaining her decision not to send the case to trial in Superior Court. “To me, that’s the fatal flaw.”
Moments after the hearing ended, however, relatives of the slain man, displeased with the ruling, indicated that they might take revenge outside the courtroom. Within hearing of Isip; his wife, Janet, and several lawyers, a Zuniga family member told another relative, “This isn’t over yet.”
The judge immediately asked the prosecutor, Deputy Dist. Atty. Thomas Nickel, to counsel the Zuniga family not to seek retribution.
“I’m asking that you remind persons that might be so inclined to cease and desist,” Cowett said. The prosecutor agreed and provided a police escort for Isip and his wife as they left the downtown courthouse.
The threats followed a daylong preliminary Tuesday during which Cowett heard seven witnesses describe the July 12 skirmish between Isip and Zuniga.
Witnesses testified that the two men, both natives of the Philippines, had been arguing about rumors that Zuniga had repeated about an affair Isip was allegedly having with a mutual woman friend--a romance that Isip denied. Zuniga’s mother testified that, on the night of the killing, her son told her he was going to see Isip to try to reconcile.
But Orlando Torres, who shared a National City apartment with Isip, testified that Zuniga did not seem to have friendly intentions when he called that night and told Torres he was coming over.
Torres said Zuniga told him: “Be sure you are not there when I’m there. I don’t want you to be involved.” When Torres told Isip of Zuniga’s call, he said, Isip smiled and said he didn’t believe Zuniga would show up.
A few minutes later, Zuniga arrived carrying a .357 magnum pistol. When Isip saw what he thought was a gun under Zuniga’s vest, he armed himself and went outside to meet him, according to testimony.
Torres said Zuniga shouted “bad words” at Isip.
“He said, ‘I know you have a gun at your back and you can shoot me right now,’ ” Torres testified. “And Vernon Isip say, ‘I will not shoot you.’ And Boy (Zuniga) say, ‘I thought you were a brave man.’ ”
Torres said Isip then asked Zuniga if he was armed. Zuniga responded angrily.
“He said, ‘What do you think of me? I don’t have a gun too?’ That’s the time I saw his gun,” Torres said. Isip told Zuniga he was going to put his gun back in the apartment, according to testimony.
But, when Isip turned his back, Zuniga rushed him, grabbing his neck and putting a gun to his face, according to an interview with Isip conducted by National City Police Detective Lanny Roark. Roark testified that both men then began firing--discharging 14 shots in all.
Isip suffered one bullet wound to the abdomen, two to his left arm and multiple fragment wounds from what his attorney, Charles L. Goldberg, said was “snakeshot” pellets in Zuniga’s gun. Zuniga was struck twice, in the head and abdomen, and died at the scene.
Nickel, the prosecutor, had previously likened the fight to something out of the Wild West. At Isip’s September arraignment, Nickel told reporters that “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.”
But Goldberg, Isip’s attorney, cited case law--some of it decades old--that defined a duel as a fight that was the result of design, not of a sudden quarrel. The Isip-Zuniga shootout, he said, did not meet that definition.
“What Nickel is asking Your Honor to do is pass the buck upstairs,” Goldberg told the judge. “To ask Your Honor to burden the court upstairs with this kind of case is insulting. This is a cop-out.”
Outside the courtroom, Goldberg accused Nickel of manipulating the allegations of a love affair “to try to make this thing sexy.” He said it was not entirely clear what Zuniga and Isip were fighting over that night, but he did acknowledge that Isip had “jokingly” told Zuniga that he might turn him in to immigration officials.
After the ruling, Isip tearfully told reporters that he was relieved by the ruling but wary of the resulting threats.
“There is justice here in the U.S. That proves that I’ve been innocent all along,” he said. “I’ve had threats from these people before. I will be watchful.”
Nickel said his office has not yet decided whether to charge Isip with any other crime, such as assault or murder. But Goldberg said he would be surprised if the San Diego County district attorney tries to prosecute Isip again.
“This was a case the D.A. filed only because of pressure put on by the family of the deceased,” he said.