People v. Meier CA4/3

Filed 6/29/21 P. v. Meier CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058845

v. (Super. Ct. No. 17WF1635)

MATTHEW PAUL MEIER, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Richard
M. King, Judge. Affirmed.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Lynne G.
McGinnis and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and
Respondent.
 Matthew Paul Meier, the manager of Clancy’s Bar in Seal Beach, punched
James Tinsman. The blow knocked Tinsman unconscious and he fell backwards,
fracturing his skull. He later died from the brain trauma. A jury convicted Meier of
involuntary manslaughter (by the unlawful act of battery) and aggravated assault with
force likely to produce great bodily injury (GBI). The court sentenced him to an eight-
year prison term.
Meier raises the following issues on appeal: (1) there was insufficient
evidence to support his convictions; (2) the court erred by instructing the jury on mutual
combat (CALCRIM No. 3471); and (3) the court should have imposed sentence on the
manslaughter conviction rather than a longer sentence for an enhanced aggravated
assault. We conclude these contentions lack merit and affirm the judgment.
I
Kristoffer Campbell, a bartender at Clancy’s Bar and Meier’s friend, was
working the evening of the incident. Campbell, who bartended at another bar, knew
Tinsman as a customer, but it was his first time serving him at Clancy’s. Campbell
recalled Tinsman was intoxicated and being problematic, and he asked Tinsman to leave
the bar several times. He stopped serving Tinsman drinks.
At approximately 1:03 a.m., Amelia Murphy and her friend, Ian
Hampshire, were smoking cigarettes outside of the bar. Video surveillance footage
showed they reentered the bar 10 minutes later, and Meier held the door open for them.
Tinsman, highly intoxicated, was stumbling behind Murphy and Hampshire towards the
door. Meier blocked Tinsman from re-entering the bar. At 1:14 a.m., Meier had his back
turned towards Tinsman but then quickly spun around and punched his face. Tinsman
fell backwards onto the ground outside the bar. Meier walked away from Tinsman and
made his way through the bar. Whereas, Murphy attempted to help Tinsman and video
surveillance showed Chris Wagner, who was inside the bar, rushed outside to help.

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 Wagner dialed 911 and reported Tinsman had been punched and was
unconscious. When the 911 dispatcher asked for more details, Wagner stated Tinsman
had “damage to his face” but he was breathing, and he had been rolled onto his side to
prevent him from choking on his blood. Wagner passed the phone to Murphy, who told
the dispatcher Tinsman was breathing but coughing up blood. When asked what
happened, Murphy stated Tinsman “got hit in the face” and it was “by somebody at the
bar.” The dispatcher asked Murphy if she knew that person or could describe that person.
Murphy replied, “No I do not know that person and I can’t describe that person. He was
mouthing off and got hit in the face. He’s ok. He’s sleeping because he drank too much,
but he’s bleeding out of his nose and he’s coughing up blood.”
The dispatcher asked Murphy to clarify who was mouthing off, and she
stated, “Um, I’m an innocent bystander . . . .” When asked again, Murphy stated
Tinsman was the one “mouthing off.” Murphy said she did not have to answer any more
questions but to send the paramedics. The dispatcher continued to ask Murphy questions
about whether she saw the person who hit Tinsman. Murphy stated, “Yeah, they were
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***annoyed with him. *** And he ran away.” She said the person who hit Tinsman
was wearing “[a] black shirt and khaki shorts. Just like everybody else here.”
When Officer Michael Pistilli arrived at the bar at 1:23 a.m., he saw Meier
with two other people standing outside the front entrance. Pistilli drove to the rear
parking lot, and saw Tinsman lying on the ground near two people. While Tinsman
received help, Pistilli spoke with several bystanders.
Eventually, Pistilli asked Meier for the surveillance video. Meier had
helped Pistilli obtain surveillance footage on other occasions. Pistilli stated Meier was

1
Many of the investigating police officers were wearing voice recording
devices on their uniforms. The jury reviewed written transcripts of these conversations,
wherein the *** symbol denotes unintelligible speech. These transcripts contain
typographical errors and the speakers do not always observe proper grammatical
conventions. We quote from the written transcripts without correction.

3
highly intoxicated but agreed to help. At the time, Pistilli was wearing a voice recording
device on his uniform, and he taped his interaction with Meier. Pistilli recalled Meier
attempted to be cooperative, but as they started watching the security footage he was
having a hard time focusing and became upset and angry. Pistilli saw the security
footage stopped for the time period Tinsman was injured. Meier claimed the video
“jumped” and Meier appeared unable to operate the system. Pistilli asked a bartender
and Meier’s girlfriend to contact Meier’s father (the bar’s owner) to help operate the
security cameras. In the end, Pistilli was unable to obtain the video footage that night.
Officer David Barr, who arrived at the bar after Pistilli, spoke with Meier in
the back parking lot near where Tinsman was laying on the ground. Barr was wearing a
voice recording device and taped his conversation with Meier. Barr told Meier they
needed to figure out what happened because if the victim were to die there would likely
be a lawsuit involving the bar. Meier responded with expletives and unintelligible words.
Barr stated he would really like a copy of the video to clear up whether Tinsman fell or
was punched in the face. He told Tinsman, “we’re going to have your dad come down
here and pull the video up so that we can look at it. Okay. So do me a favor, sit down in
there and hang tight till we get going. Okay?” He later added, “Okay? Do me a favor,
go have a seat, just cool your jets right there . . . that guy.” Barr stated Meier was acting
like someone under the influence of alcohol. He recalled it struck him as odd that after
saying the victim may die and sue the bar, Meier seemed very “nonchalant about it.” He
explained it was surprising because he knew Meier, having dealt with him on numerous
prior occasions, was not so intoxicated to have not understood the importance of looking
at the video surveillance.
Approximately a half hour later, Barr overheard Meier tell a different
officer that Tinsman had been bothering him. Barr also heard Meier say he had been in
the parking lot with Tinsman smoking, and then headed back inside the building.

4
 Barr also interviewed Murphy, who indicated she was friends with Tinsman
and she attempted to catch his head or neck before he hit the ground. She asked for
someone to call the paramedics because she saw Tinsman was coughing up blood. Barr
recalled Murphy offered several different stories about what transpired, ranging from not
seeing anything to Tinsman hitting his head on the door or being punched. Barr brought
Meier outside and asked Murphy if he was the person who hit Tinsman. “She said,
‘yeah,’ and then she said, ‘No because the guy had his hat on backwards.’” At that
moment, Meier was not wearing a hat backwards.
Firefighter paramedic Kevin Kron treated Tinsman, who was not
responsive. He recalled a woman approached him and said “something to the effect that
he hit him, but it was a nice hit.” Kron transported Tinsman to the hospital.
Sergeant Chris Hendrix arrived on the scene at approximately 1:23 a.m. He
had known Meier for 12 years, and referred to him by his nickname “Mattie.” He entered
the room where Pistilli and Meier were looking at surveillance videos. He said Meier
appeared to be intoxicated and was not responsive to Pistilli’s request to review the
video. Hendrix asked Meier if he was involved in a fight and to be truthful because other
officers had identified him as potentially being part of a fight with the victim. Meier
responded, “‘No, Man. I wasn’t even out there.’” When Hendrix told Meier that
someone outside said he was involved, Meier exclaimed, “‘That’s bullshit. I wasn’t even
out there.’”
Officer Jorge Muniz and his partner Detective Fisher interviewed Meier the
following day and they recorded the conversation. Meier stated he and Tinsman were
acquaintances and he was an occasional customer of the bar. Meier did not like working
when Tinsman was there. He explained, “I don’t know if there’s something wrong with
him or if he has a disorder, but he like rubs a lot of people the wrong way. Like after a
beer or two, he’s just out of his mind fucked up.”

5
 Meier added that they were all hanging out and intoxicated. He stated,
“Dude, I was shit-canned out of my mind. I don’t remember. The only thing about
[Tinsman] that I remember is that I was like, ‘Hey man, Kris said he’s not going to serve
you anymore, like probably close out or whatever.” After telling Tinsman that he was cut
off from being served more alcohol, Meier recalled Tinsman was not really upset and
said “‘Ah, c’mon, [Meier].’” He said Tinsman did not say anything serious or “get in
[his] face” about it. Meier said the next thing he remembered was the police arriving.
Meier confirmed he and Wagner reviewed video surveillance footage
together. Meier said he watched how he helped push Hampshire, who was sitting in a
wheelchair, through the back door and that Tinsman was behind them. Meier claimed the
video glitched and the next thing visible was Tinsman on the ground. Meier said he and
Wagner both did a “double take” and Meier thought “‘what the fuck?’” Meier told the
officers he remembered Wagner rushed outside and called 911 immediately.
Meier told the officers about an altercation earlier that evening regarding
people in the Navy and said the night was exhausting. He stated, “And, I mean that’s all
I freaking remember. Like I mean I don’t know if I hit him or he fell. I mean, really, I
have no fucking idea.”
Muniz asked Meier if there was a reason Tinsman would attack him. Meier
replied, “No, but he’s just like, he’s weird. Like, he says dumb shit to people. Like he’s
almost got himself into like several fights, that’s why I was saying like I don’t, really he
doesn’t come in on my shifts because I just end up throwing him out. Or if he’s with like
a couple of people, his sister, his brother, or something, like I’ll let him have like one
beer. And just kinda ignore him enough to where he’s not like welcome. You know
what I mean, kind of?” Meier said he tried to keep things amicable between them, and he
would occasionally engage in “small talk about the Chargers.” Meier said he did not
“dislike” Tinsman and he could not remember anything different about him that night.

6
 Muniz told Meier that he understood the details were blurry and Meier
could not remember hitting Tinsman, but asked if he could remember if his hands were
sore the next day. Meier admitted his hands were a little sore but added he “jammed” his
fingers “the other day” playing football. He also mentioned hitting or slamming a
barstool. Specifically, he said, “And I know, Kris was like, ‘you know you came in and
punched the, er punched, er slammed the barstool down?”
Muniz stated he knew Meier had been in fights before and asked him to
recall how sometimes the day after a fight your knuckles are swollen or scratched. He
asked, “Did you have like any of that? That would indicate like, ‘Hey, what did I get into
last night?’” Meier replied, “Yeah but I – I guess I ate shit the entire way back to Bill’s
house, after the whole call . . . .” He added, “So like my knees are all scraped up” and
“[l]ike my ribs are killing me . . . .” Muniz said, “what you’re saying is that you’re liver
was working really hard.” Meier responded he and his girlfriend were not sure how they
got “that wasted” on the night of the incident.
In the hospital emergency room, physicians determined Tinsman was brain
dead. A forensic pathologist performed an autopsy and recorded the following injuries.
Externally, Tinsman’s upper lip had a one-half by one-half-inch laceration and the tissue
inside his mouth suffered bruising and bleeding. The pathologist explained “laceration”
is a medical term for a blunt force injury, which differs from a “penetrating injury”
created by gunshot or stab wounds. In addition, the pathologist noticed injury to
Tinsman’s frenulum (the web of tissue that connects the upper portion of the middle teeth
to the upper lip). The pathologist described a photograph showing Tinsman’s split lip,
and said the injury was caused by an impact with a non-specific object because there was
no pattern on the laceration. The injury “indicated force was applied to that area to cause
a tearing of the upper lip.” On the photograph, Tinsman’s tooth was visible through the
gap created by the split lip. The back of Tinsman’s skull showed subgaleal hemorrhaging

7
and had several fractures. The pathologist determined Tinsman died due to blunt force
head trauma.
The information charged Meier with involuntary manslaughter by an
2
unlawful act - battery (Pen. Code, § 192, subd. (b), count 1) and assault with force likely
to produce GBI (§ 245, subd. (a)(4), count 2). As to count one, the information alleged
Meier personally inflicted GBI (§§ 667 & 1192.7, subd. (c)(8)). As to count two, the
information charged Meier inflicted GBI causing the recipient to become comatose due to
brain injury (§ 12022.7, subd. (b)).
A forensic pathologist testified about Tinsman’s injuries and the cause of
death. The pathologist also confirmed a person punched in the face could sustain a one-
half by one-half inch lip laceration. Additionally, the pathologist explained a person
punched in the face in that manner could be rendered unconscious due to the force of the
blow and sustain a concussion. The pathologist opined the same person falling
backward, and hitting a hard object, could sustain hematomas to the back of the head and
an unconscious person would not be able to brace themselves for the fall. The
pathologist also testified a strike to a person’s face, causing the person to fall backwards
and hit his head on the ground, was consistent with Tinsman’s injuries and radiating head
fractures.
After the prosecution rested, Meier moved to dismiss the charges pursuant
to section 1118.1. The trial court denied the motion.
Meier testified in his own defense. In his 14 years of experience as a bar
manager, Meier stated he had dealt with many people who had too much to drink or were
being rowdy. He discussed how he would try to diffuse the situation, and he denied
fighting or hitting anyone. On the day of the incident, he went to the bar around 7 p.m.
and it was busy with customers, including several Navy personnel. He stated there was

2
All further statutory references are to the Penal Code.

8
an altercation involving the Navy people and two out-of-uniform officers took them away
in busses. Thereafter, he helped behind the bar and with cleaning. He also left the bar to
visit friends at a different bar.
Meier testified that around 1 a.m., he and his girlfriend were too intoxicated
to ride their bikes and they called for an Uber ride. Before leaving, Meier walked to the
back parking lot to make sure their bikes were securely locked. He recalled a few people
were outside, including Tinsman who “had just been asked to leave.” Meier testified as
follows: “I seen [sic] him earlier in the night getting a little rowdy. From my
experiences, he has a couple beers and he just gets aggressive with everyone. He was
talking to [Hampshire], and I’m like, hey, [Hampshire], why don’t we get out of here and
get inside. . . . So I tried to coerce [Hampshire] to get inside, and that’s when we started
walking in.”
Meier stated that at the time he was holding a backpack in his hand, and he
intended to go inside the bar. He recalled holding the door open for Hampshire and
Murphy, and he intended to help Hampshire over the bump created by the door’s
threshold. While helping Hampshire navigate the bump with his wheelchair, Meier said
he felt Tinsman approach and grab his neck. He could not remember what Tinsman was
saying, and opined it was “probably a bunch of gibberish” because Tinsman was angry.
Meier testified, “I just kind of deflected and I just kept on minding my own business just
to kind of get away from him.”
When asked if he did anything aggressive towards Tinsman, Meier replied
“No, absolutely not,” but at the time he felt threatened. Meier claimed he did not push
Tinsman, but rather “wedged [himself] inside the doorway.” Meier stated Tinsman “kept
on yammering or talking about some murder that happened the night before to his
friend . . . and I wasn’t paying any attention.”
Meier stated that after he opened the door for Hampshire and Murphy, he
felt Tinsman’s arm on his shoulder. Meier then saw Tinsman try to put his shoulder

9
inside the doorway as Meier was walking through. Meier said Tinsman started hitting
him in the kidneys “and I was just panicked at that point . . . .” Meier said Tinsman
grabbed his neck, which he did not expect. When asked how he reacted, Meier replied, “I
was just trying to get him -- get out of there and push my friend to safety at that point.
Like, I wasn’t trying to defend myself. I was trying to get in the building and
[Hampshire] away from everything.”
Meier claimed he felt Tinsman’s aggression escalating and Tinsman pulled
him backwards. He denied hitting Tinsman. He could not remember seeing Tinsman fall
down. He stated, “I just knew he was -- I didn’t know if he was running off or he was
going backwards and I was out of there.” He explained he felt Tinsman was close to his
back as they walked inside but as he turned “like I felt him kind of lift off, so I’m, like,
okay, maybe he’s giving up and he’s going to get out of here. Boom, we’re done. I
didn’t have to do anything.” Meier then walked to find his girlfriend. He did not know
until a few minutes later that Tinsman was on the ground in the back parking lot. Meier
stated, “I figured maybe he mouthed off to somebody. I had no idea.” He added, “It was
not my concern.”
Meier claimed he tried to cooperate with the police but he was unable to
operate the surveillance video because he was intoxicated. He admitted having one other
physical altercation with a bar patron. In 2012, Ryan McCauley physically attacked
Meier, and he punched McCauley one time before others were able get McCauley out of
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the bar.
Defense counsel asked Meier about his interview with the police the
following day. He claimed the officers did not ask him any questions about “Tinsman’s
attacks or aggressive acts towards [him].” He stated they asked questions about whether

3
In rebuttal, the prosecution called Corporal Brian Gray to testify about this
incident. He testified about speaking with Meier, who admitted he repeatedly punched
McCauley.

10
he had pain or injuries from being hit or grabbed or attacked by Tinsman. When asked to
elaborate, Meier said they asked if he was in pain, and he responded that his ribs, head,
and knees hurt.
When the prosecutor asked Meier if he told other people Tinsman fell or he
had to defend himself against Tinsman, Meier stated, “No” and he was not saying he had
to defend himself. Tinsman added, “I’m turning around quickly. Is that defending
myself?” He confirmed he did not punch Tinsman but shook him off his shoulder, as
seen in the video. The prosecutor asked Meier to explain why Tinsman had a lip
laceration, a “split so far you could see his tooth in the autopsy photo, that was from
shaking your shoulder?” Meier replied, “I didn’t inflict -- I don’t know if he hit my head,
but a punch was never -- I never punched him.” The prosecutor next asked, “So when he
was stumbling into the bar, you said you felt him on your back[] [¶] . . . [¶] [and] you
spun yourself around, but you never lifted your arm up?” Meier replied he felt Tinsman
on his back and maybe he lifted his arm as he spun around, but he did not lift a fist or
shove his hand forward. Meier agreed with counsel’s statement that despite the traumatic
event of someone threatening him and being aggressive, he did not later tell the police he
acted in self-defense or text anyone about the altercation. The prosecutor asked if
Meier’s statements to the police about injured ribs and knees were related to drinking and
falling off his bike. Meir claimed his injured ribs were due to Tinsman’s punches and
conceded he did not tell the police Tinsman hurt him. When asked why, Meier said,
“They never asked.”
A forensic toxicologist testified that based on his review of the video
surveillance, and evidence Tinsman’s blood alcohol content (BAC) was .22 at the
hospital, Tinsman likely had the same BAC at the time of the incident. He opined a
person with that level of alcohol would have balance problems and could fall to the
ground. Tinsman’s property manager testified she saw him start drinking beers at 6:00
p.m. the night of the incident.

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 The jury found Meier guilty as charged and determined the GBI allegations
were true. The court sentenced Meier to a total term of eight years in state prison. The
sentence consisted of the midterm of three years for count two plus five years for the GBI
enhancement. The court imposed the midterm of three years for involuntary
manslaughter but stayed the sentence on this count.
DISCUSSION
I. Sufficiency of the Evidence
A. Was There Evidence Meier Battered Tinsman?
Meier asserts that both convictions (involuntary manslaughter by an
unlawful act and aggravated assault) required evidence he assaulted or battered Tinsman.
He claims that no one at trial testified they saw him hit Tinsman, and therefore the
evidence was insufficient to support his convictions. We disagree.
“In evaluating whether the judgment is supported by substantial evidence,
we review the entire record in the light most favorable to the judgment, presume in
support of the judgment every fact that can reasonably be deduced from the evidence in
the record and determine whether any reasonable finder of fact could have found that the
prosecution sustained its burden of proof beyond a reasonable doubt. [Citation.] We do
not reweigh conflicting evidence or reevaluate the credibility of witnesses. [Citation.]”
(People v. Skiff (2021) 59 Cal.App.5th 571, 579.) The test is not whether the evidence
proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and
solid value, supports the jury’s conclusions. (People v. Arcega (1982) 32 Cal.3d 504,
518.)
An assault is “an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.” (§ 240.) An assault is aggravated
when committed “by any means of force likely to produce [GBI].” (§ 245, subd. (a)(4).)
“Assault requires the willful commission of an act that by its nature will probably and
directly result in injury to another (i.e., a battery), and with knowledge of the facts

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sufficient to establish that the act by its nature will probably and directly result in such
injury. [Citation.]” (People v. Miceli (2002) 104 Cal.App.4th 256, 269.) Assault is a
general intent crime; it is not necessary that the perpetrator intended to injure the victim.
[Citation.] It is also not necessary that the perpetrator be subjectively aware of the risk
that an injury might occur. [Citation.]” (People v. Murray (2008) 167 Cal.App.4th 1133,
1139 (Murray).)
“‘Manslaughter is the unlawful killing of a human being without malice.’
(§ 192.) Involuntary manslaughter is manslaughter during ‘the commission of an
unlawful act, not amounting to a felony,’ or during ‘the commission of a lawful act which
might produce death, in an unlawful manner, or without due caution and circumspection.’
(§ 192, subd. (b).) ‘The offense of involuntary manslaughter requires proof that a human
being was killed and that the killing was unlawful. [Citation.] A killing is “unlawful” if
it occurs (1) during the commission of a misdemeanor inherently dangerous to human
life, or (2) in the commission of an act ordinarily lawful but which involves a high risk of
death or bodily harm, and which is done “without due caution or circumspection.”’
[Citation.]” (Murray, supra, 167 Cal.App.4th at p. 1140.)
In this case, the prosecution argued the crime of battery was the predicate
act for the involuntary manslaughter charge. Battery is “any willful and unlawful use of
force or violence upon the person of another.” (§ 242.)
We conclude there was sufficient evidence to support the jury’s conclusion
Meier battered Tinsman. Murphy told a police officer someone punched Tinsman, and at
one point confirmed the assailant was Meier. Her report of a battery to the police
confirmed her earlier account of the incident to the 911 police dispatcher. The recorded
call reflects that immediately after the assault, Murphy exclaimed Tinsman was mouthing
off and “somebody at the bar” hit his face. She described the assailant’s clothing and
reported he ran away. She also offered a possible motivation for the incident, i.e., the

13
 4
assailant “was annoyed” with Tinsman, who was mouthing off. Wagner, who dialed
911, also reported to the police dispatcher that Tinsman was punched. Additionally, a
paramedic testified a woman told him Tinsman was punched, and it was a “nice hit.” In
the briefing, Meier concedes it was likely that the woman who approached the paramedic
was Murphy, “as she was apparently the only woman outside of the bar.” Thus,
witnesses testified about Tinsman getting punched before he fell backwards into the
parking lot.
We acknowledge Meier’s argument that Murphy’s story was untrustworthy
because she was intoxicated at the time of the incident and she offered different versions
of what transpired. However, in reviewing the sufficiency of the evidence we cannot
resolve credibility issues or evidentiary conflicts. (People v. Zamudio (2008) 43 Cal.4th
327, 357.) The jury could reasonably conclude Murphy had a clear view of what
transpired because she was standing next to Meier before and after his altercation with
Tinsman. She was close enough to try to intervene and break his fall. The surveillance
videotape confirms Meier was the only person directly in front of Tinsman before he was
struck down. Indeed, Meier admitted he felt Tinsman “on his back” before he quickly
spun around to confront him (moments before he fell backwards onto the parking lot
pavement). It was reasonable for the jury to conclude Meier, who had a history of being
annoyed with Tinsman, was the “someone” Murphy described as being the assailant.
Moreover, the convictions did not rest solely on Murphy’s testimony. The
paramedic described Tinsman’s injuries as including a split lip and bleeding from the
back of his head. The two distinct injuries, located on opposite sides of Tinsman’s skull,
were consistent with two separate blows. Significantly, there was evidence the force of

4
The jury could see obvious similarities between Murphy’s and Meier’s
testimony that Tinsman was annoying. Meier stated Tinsman had a history of “mouthing
off” and rubbing people the wrong way. Murphy said someone hit Tinsman because he
was “mouthing off” and being annoying.

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impact to Tinsman’s face was powerful enough to tear his lip tissue, leaving exposed the
teeth below and a bruised frenulum. It was undisputed Tinsman’s head striking the
pavement caused injuries to the back of his skull. Tinsman could not have
simultaneously injured opposite sides of his head from falling backwards onto the
pavement.
Finally, the video surveillance images, while a little blurry, confirm there
was a physical altercation between Meier and Tinsman. We acknowledge the footage did
not clearly show Meier’s fist make direct contact with Tinsman’s face. However, plainly
visible was a scuffle and sequence of events involving only Meier and Tinsman in close
proximity to each other. This footage viewed in the context Tinsman’s facial injuries and
Murphy’s testimony, amply supports the jury’s findings. Specifically, the video shows
that within a few seconds, Tinsman went from standing directly behind Meier, to facing
him in the doorway, to falling like a cut tree onto the parking lot. Tinsman did not put
out his hands to brace himself or make any effort to lessen the impact. It was entirely
reasonable for the trier of fact to consider and interpret these video images in conjunction
with other evidence, including the pathologist’s opinion a one-half by one-half-inch lip
laceration was consistent with being punched and rendered unconscious.
B. Was There Evidence Meier was Acting in Self-Defense?
Alternatively, Meier asserts that if there was evidence he assaulted
Tinsman, there was overwhelming evidence he acted in self-defense. Meier explains
there was ample evidence Tinsman attacked him first. He points to video images he
believes conclusively prove he did not make any aggressive moves towards Tinsman, but
rather tried to get away from his attacker. He maintains the video supports his account of
Tinsman grabbing his neck and painfully punching his ribs. He refers to his trial
testimony that he knew Tinsman became aggressive after a few beers, and it was
undisputed Tinsman was highly intoxicated that night.

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 Meier’s argument there was sufficient evidence to support a finding of self-
defense is not the correct test. As stated in People v. Brady (2018) 22 Cal.App.5th 1008,
1018, a case cited by Meier, the question we must decide was whether there was
sufficient evidence for the jury to reject Meier’s claim of self-defense based on a lack of
objective reasonableness. In short, the answer is yes. The jury had many reasons to
conclude Meier’s testimony lacked credibility. For example, Meier’s trial testimony
contradicted his statements to the police, describing Tinsman as merely annoying and not
aggressive. His actions and statements immediately after his altercation with Tinsman
were suspect. Meier told one police officer he was not outside with Tinsman but the
video footage showed they were together. Moreover, he failed to mention to anyone that
he felt threatened and he did not complain about any injuries. Meier overlooks the
significance of his trial testimony he did not feel any need to defend himself and simply
turned around to face Tinsman. Meier’s assertion he did not hit Tinsman or see him fall
was strong evidence from which the jury could reject his claim he perceived an
immediate threat or the need to defend himself.
Similarly, the jury could reasonably rely on evidence that directly
contradicted Meier’s assertion the evidence showed danger “was imminent” because he
“could not evade the blows.” Before Meier turned to strike Tinsman, they were both
standing on the threshold of a large open room. Meier was not physically trapped or
cornered. Rather, he was walking into an open space full of his friends and co-workers.
Significantly, he was the bar owner’s son and long-term manager, unlike Tinsman who
was not welcome at the bar. In light of this evidence, the jury could reasonably reject
Meier’s claim he was in imminent danger with no place to go.
Meier also maintains that “even assuming [he] punched or elbowed or hit
Tinsman with his shoulder, he did so only one time to defend himself against Tinsman’s
aggressions.” Whether Meier hit Tinsman once or multiple times does not address the
question of whether he was acting in self-defense, especially when the single blow

16
resulted in death. Moreover, the jury could reject Meier’s claim that one punch was
reasonable under the circumstances. The surveillance video footage does not show
Tinsman aggressively grabbing Meier’s neck. To the contrary, it depicted how Tinsman,
highly intoxicated and clearly unbalanced, followed a group of fellow bar patrons
towards the bar’s door. It appears that he was hoping Meier would allow him to go back
inside. Near the doorway, when the group paused for a moment, Tinsman threw his left
arm around Meier’s neck for what looked like a side hug. He then playfully threw his
arms out towards Meier’s body, making a few jabs with his fists. The force of these soft
punches was doubtful given Tinsman’s unstable mannerisms. At one point, Tinsman
staggered away from Meier. None of his movements appeared to be particularly forceful
or harmful. After the incident, Meier did not complain to friends or the police that
Tinsman hurt him. As mentioned, Meier’s initial story was that Tinsman was not
aggressive and did not react negatively when Meier told him he could not return to the
bar.
Other relevant evidence was testimony about Meier and Tinsman’s past
encounters. Meier repeatedly stated he was uncomfortable with Tinsman’s antics, which
he attributed to Tinsman having a mental disorder. Meier admitted he would make
Tinsman feel unwelcome at the bar and often threw him out. Despite having every
opportunity to claim to the police that he was defending himself, Meier never asserted
Tinsman had a history of physically threatening him or other customers, or caused him to
feel afraid. Although he raised this claim at trial, the jury also heard Meier testify that
when he first heard about Tinsman falling down in the parking lot he assumed it was
because Tinsman had likely been “mouthing off” to someone else. This testimony was
consistent with his statements to the police that Tinsman was annoying, not aggressive.
Moreover, it suggested Meier believed Tinsman invited trouble by mouthing off to
others.

17
 Other witnesses confirmed Meier’s statements that Tinsman, intoxicated,
had been mouthing off that night. Nobody suggested Tinsman was being aggressive. In
light of the evidence challenging Meier’s credibility, evidence regarding his past
interactions and impressions of Tinsman, and the video footage showing Tinsman’s
interaction with Meier, we conclude there was sufficient evidence for the jury to reject
Meier’s claim he had no choice but to hit Tinsman (with his shoulder) as they navigated
through the doorway.
II. Instructional Error
Meier contends the trial court prejudicially erred by instructing the jury on
mutual combat pursuant to CALCRIM No. 3471 (Right to Self-Defense: Mutual Combat
or Initial Aggressor) because substantial evidence did not support the instruction. The
court gave the instruction, along with CALCRIM No. 3470 (Right to Self-Defense or
Defense of Another (Non-Homicide)) and CALCRIM No. 505 (Justifiable Homicide:
Self Defense). Neither the prosecutor nor the defense mentioned mutual combat in
closing argument to the jury. Meier maintains the instruction prejudiced him by
essentially eliminating his claim of self-defense. We disagree.
The court gave the mutual combat instruction as follows: “A person who
engaged in mutual combat has the right to self-defense only if: One, he actually and in
good faith tried to stop fighting. Two, he indicated, by word or by conduct to his
opponent[,] in a way that a reasonable person would understand[,] that he wanted to stop
fighting and that he had stopped fighting. And three, he gave his opponent a chance to
stop fighting. If the defendant meets [these] requirement[s], he then had a right to self-
defense if the opponent continued to fight. [¶] A fight is mutual combat when it began or
continued by mutual consent or agreement. That agreement may be expressly stated or
implied and must occur before the claim to self-defense arose.” (See CALCRIM No.
3471.)

18
 The last two sentences of the instruction are noteworthy because they
define the term mutual combat as not referring to just any violent struggle between two
people. (People v. Nguyen (2015) 61 Cal.4th 1015, 1050 (Nguyen), citing People v. Ross
(2007) 155 Cal.App.4th 1033, 1044-1045 (Ross).) Our Supreme Court adopted the legal
definition of mutual combat outlined in the Ross decision, stating the following: “[T]he
problem with the common definition of ‘mutual’ is that ‘any combat may be correctly
described as “mutual” so long as it is seen to possess a quality of reciprocity or exchange.
In ordinary speech, then, “mutual combat” might properly describe any violent struggle
between two or more people, however it came into being. If A walks up to B and
punches him without warning, and a fight ensues, the fight may be characterized as
“mutual combat” in the ordinary sense of those words.’ [Citation.] Ross held that
‘mutual combat’ refers instead to ‘“a duel or other fight begun or continued by mutual
consent or agreement, express or implied. [Citations.]” (Italics added.) In other words,
it is not merely the combat, but the preexisting intention to engage in it, that must be
mutual.’ [Citation.] Following the decision in Ross, the standard instruction was revised
to add in brackets: “A fight is mutual combat when it began or continued by mutual
consent or agreement.’ (CALCRIM No. 3471 (rev. Dec. 2008).)” (Nguyen, supra,
61 Cal.4th at p. 1050.) Simply stated, self-defense is not available to parties having a
preexisting intention to fight, unless the defendant actually tried in good faith to stop
fighting. (Id. at pp. 1049-1050.)
A trial court has a duty to instruct on the general principles of law relevant
to the issues raised by the evidence. (People v. Earp (1999) 20 Cal.4th 826, 885.)
Conversely, “It is error to give an instruction which, while correctly stating a principle of
law, has no application to the facts of the case. [Citation.]” (People v. Guiton (1993)
4 Cal.4th 1116, 1129 (Guiton).) “Nonetheless, giving an irrelevant or inapplicable
instruction is generally ‘“only a technical error which does not constitute ground for
reversal.”’” (People v. Cross (2008) 45 Cal.4th 58, 67.) Giving the jury an instruction

19
that correctly stated the law but had no application to the case “does not appear to be of
federal constitutional dimension” and the applicable standard of review for this type of
5
error is the Watson standard. (Guiton, supra, 4 Cal.4th at pp. 1129-1130.)
The Attorney General asserts Meier is barred from raising this issue
because defense counsel requested the mutual combat instruction. It argues such a
“‘“‘conscious and deliberate tactical choice’ to ‘request’ the instruction” [citation]’
[citations]” prevents appellant from challenging its use on appeal. (People v. Harris
(2008) 43 Cal.4th 1269, 1293.) The record belies this contention. Defense counsel
requested that CALCRIM No. 3470 be given in addition to or as an alternative to
CALCRIM No. 505 (Justifiable Homicide: Self-Defense). Counsel explained CALCRIM
No. 3470 applied to count 2 and the other instruction applied to count 1. The court asked
if counsel wanted to modify CALCRIM No. 505 to reflect it “applied just to [c]ount 1,
and then CALCRIM Nos. 3470, 3471, and 3472 apply to [c]ount 2?” Counsel agreed that
would be better than combining the instructions. The court stated, “I’ll modify it, and we
will have [CALCRIM No.] 505 be [c]ount 1, and then [CALCRIM Nos.] 3470 through
3472 will be [c]ount 2.” Defense counsel did not object when the court mentioned giving
CALCRIM No. 3471, but this omission cannot be construed as an affirmative request for
the instruction. We agree with Meier the claim was not waived.
We also agree with Meier’s argument the evidence establishing mutual
combat was weak. A finding of mutual combat may be premised on a “preexisting
intention to engage in hostilities whenever the opportunity presented itself,” such as
where there is evidence of an ongoing gang war. (Nguyen, supra, 61 Cal.4th at p. 1044
[parties in a “state of war”].) The court heard ample evidence about Meier and
Tinsman’s strained relationship, and perhaps it could be reasonably inferred they both
experienced strong feelings of aggravation. After all, Meier had a history of making

5
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).

20
Tinsman feel unwelcome at the bar. Meier also presented evidence Tinsman became
aggressive when intoxicated. On the other hand, our review of the surveillance footage
of the events leading up to the single fatal blow simply showed two highly intoxicated,
but not particularly violent men, interacting. The parties did not present evidence
establishing Tinsman’s mindset about Meier nor a preexisting intention to engage in
mutual combat. Meier consistently asserted he had no reason to fight with Tinsman and
did not set out to interact with him. There does not appear to be very much evidence to
support an instruction on mutual combat.
We conclude, however, any potential error in giving the instruction was
harmless. As stated by the Ross court, a jury instruction that lacks evidence to support it
can be held harmless “because juries are said to ignore irrelevant instructions.
[Citation.]” (Ross, supra, 155 Cal.App.4th at pp. 1055-1056.) Here, the trial court
instructed the jury with CALCRIM No. 200, which provides as follows: “Some of these
instructions may not apply depending on your findings about the facts of the case. Do
not assume just because I give a particular instruction that I am suggesting anything about
the facts. After you have decided what the facts are, follow the instructions that do apply
to the facts as you find them.” Thus, if the jury determined the parties did not have a
preexisting agreement (express of implied) to fight as defined in CALCRIM No. 3471,
the jury is presumed to have understood and followed the instructions it was given and
disregarded CALCRIM No. 3471. (See People v. Sandoval (2015) 62 Cal.4th 394, 422.)
Meier notes the Ross court declined to rely on this principle to hold
harmless the instructional error. But in that case, the jury was not “properly instructed on
the meaning of ‘mutual combat’” in either the original instruction or in response to the
jury’s request for further guidance on the concept. (Ross, supra, 155 Cal.App.4th at pp.
1042-1043, 1056.) In this respect, the case is factually distinguishable. Meier does not
challenge the correctness of the instruction or the legal definition of mutual combat.
CALCRIM No. 3471 clearly stated the limitation on self-defense applied only in cases

21
where the fight began or continued by mutual consent or agreement. The trial court
instruction included the post-Ross revision clearly defining when the jury should apply
the instruction, i.e., when the agreement to fight occurred “before the claim to self-
defense arose.” (CALCRIM No. 3471.) Given the lack of evidence of a preexisting
agreement to fight, and the fact that neither the prosecution nor defense mentioned
mutual combat in closing argument, we have no reason to doubt the jury’s ability to
recognize CALCRIM No. 3471 was not applicable.
Another pertinent question in assessing prejudice is whether there was a
reasonable probability that, absent the mutual combat instruction, one or more jurors
would have entertained a reasonable doubt as to whether the prosecution had proved
Meier had not acted in self-defense. (See Ross, supra, 155 Cal.App.4th at p. 1055;
Watson, supra, 46 Cal.2d at p. 836.) We have already examined the strength of Meier’s
self-defense claim in this opinion. We concluded there was ample evidence supporting
the jury’s decision to reject Meier’s claim he acted in self-defense. Although Meier
stated he was afraid and had no choice in the matter, his statements were refuted by his
prior statements to the police and the video surveillance footage. Even if the instruction
on mutual combat should not have been given, it was not reasonably probable a result
more favorable would have been reached. Any error was harmless.
III. Sentencing
Meier asserts the trial court erred by imposing the GBI enhancement on
count 2 (assault) because he was convicted of count 2 (manslaughter). He explains there
was a single act causing death, and therefore, the court could not apply the GBI
enhancement to a secondary conviction in violation of section 12022.7, subdivision (g).
We disagree.
Section 12022.7 imposes mandatory sentence enhancements for crimes
which resulted in the infliction of GBI. Relevant here are subdivisions (b) and (g).
Section 12022.7, subdivision (b), provides: “Any person who personally inflicts [GBI]

22
on any person . . . in the commission of a felony . . . which causes the victim to become
comatose due to brain injury or to suffer paralysis of a permanent nature shall be
punished by an additional and consecutive term of imprisonment in the state prison for
five years.” The statute clarifies, “This section shall not apply to murder or manslaughter
or a violation of Section 451 or 452” or “if infliction of [GBI] is an element of the
offense.” (§ 12022.7, subd. (g).) “As used in this section, [GBI] means a significant or
substantial physical injury.” (§ 12022.7, subd. (f).)
In this case, the court stayed punishment for count 1 (involuntary
manslaughter) and imposed the midterm of three years for count 2 (assault), plus five
years for the GBI enhancement. The court rejected defense counsel’s argument Meier
should be sentenced on count 1, which would have resulted in a shorter sentence (§ 193,
subd. (b) [two, three, four year triad]). The issue we must decide was whether section
12022.7 applies to other crimes for a defendant who was also convicted of manslaughter,
when all convictions related to a single victim.
Both parties cite to People v. Cook (2015) 60 Cal.4th 922 (Cook), a case
where our Supreme Court examined the significance of subdivision (g) of section
12022.7. In that case, defendant caused an automobile accident in which three people
were killed and a fourth person was injured. Defendant was convicted of three counts of
gross vehicular manslaughter with a GBI enhancement as to the victim who was injured
but survived. (Id. at pp. 925-926.) The survivor “was not the subject of any other charge
or conviction.” (Id. at p. 925.)
The Supreme Court reasoned, “No one disputes that section 12022.7,
subdivision (g), prohibits enhancing a manslaughter or murder conviction for inflicting
[GBI] on the person who is the subject of that conviction. The question before us is
when, if ever, a manslaughter conviction may be enhanced for the infliction of [GBI] on
other victims during the commission of the manslaughter.” (Cook, supra, 60 Cal.4th at
p. 925.) After discussing conflicting holdings reached by several appellate courts, the

23
Supreme Court held, “subdivision (g) of section 12022.7 means what it says: [GBI]
enhancements do not apply to a conviction for murder or manslaughter. A defendant
convicted of murder or manslaughter who also commits crimes against other victims may
be convicted of those additional crimes and, to the extent the sentencing laws permit,
punished separately for them. But the sentence for manslaughter may not be enhanced
for the infliction of [GBI] as to anyone.” (Id. at p. 924, italics added.) In a final footnote,
however, the court “express[ed] no opinion regarding the question, not presented here, of
whether and, if so, how [GBI] enhancements may attach to other crimes for a defendant
who is convicted of murder or manslaughter as well as those other crimes.” (Id. at p.
938, fn. 3.)
Subsequently, in People v. Lamb (2017) 8 Cal.App.5th 137, 143 (Lamb),
the Fifth District Court of Appeal addressed the question left open in footnote three of the
Cook opinion. That case involved a defendant convicted of both involuntary
manslaughter and assault by means of force likely to produce GBI as to a single victim.
As in the case before us, the defendant in Lamb punched the victim, who fell on the
pavement and died from a brain injury. (Id. at p. 141.) The trial court stayed sentences
for battery and involuntary manslaughter. It imposed a three-year term for assault plus
five years for the GBI enhancement (and other enhancements not relevant to our
discussion). (Id. at p. 140.)
In addressing “the question Cook declined to answer” the Lamb court
examined the statutory language of section 12022.7, subdivision (g). (Lamb, supra,
8 Cal.App.5th at p. 143.) It found “no ambiguity in the statute’s language,” stating, “we
presume the Legislature intended that meaning and that plain meaning controls.
[Citation.]” (Ibid.) Applying the statute, the court determined the crime of assault was
not one of the exempted offenses listed in section 12022.7, subdivision (g), making the
case “distinguishable from Cook, where the great bodily injury enhancements at issue
were actually attached to the defendant’s manslaughter convictions.” (Id. at pp. 143-

24
144.) The court in Lamb examined and adopted the legal analysis set forth in a pre-Cook
decision, People v. Martinez (2014) 226 Cal.App.4th 1169 (Martinez).
In the Martinez case, defendant questioned if the court had authority to add
a GBI enhancement to a charge of furnishing narcotics to a victim who overdoses and
dies (when there was also a manslaughter conviction). (Martinez, supra,
226 Cal.App.4th at pp. 1180-1181.) The court determined defendant’s argument was not
supported by the plain language of the statute or by case law. (Id. at p. 1184.) It
reasoned as follows: “Subdivision (g) of section 12022.7 plainly states ‘[t]his section
shall not apply to murder or manslaughter . . . .’ If we were to accept appellant’s
argument we would have to read that sentence as saying ‘this section shall not apply to
any case where a defendant is charged with murder or manslaughter.’ As the California
Supreme Court has explained, ‘“insert[ing]” additional language into a statute “violate[s]
the cardinal rule of statutory construction that courts must not add provisions to statutes.
[Citations.]”’ [Citation.]” (Id. at p. 1181.)
While agreeing with the statutory analysis outlined in Martinez, the court in
Lamb questioned the wisdom of imposing additional punishment “merely because section
12022.7, subdivision (g), as written” can be applied to enhance a nonprohibited felony.
However, the court determined there were no legal grounds to reverse because the
additional time did not mean the court improperly punished defendant twice. (Lamb,
supra, 8 Cal.App.5th at p. 145 [“court stayed defendant’s sentence for involuntary
manslaughter pursuant to section 654”].)
We agree with the legal analysis of Lamb and Martinez. While the plain
language of section 12022.7, subdivision (g), clearly prohibits the enhancement as it
applies to four specific crimes, it is silent as to whether it applies to other offenses
charged in the same criminal proceeding. In the case before us, Meier was not punished
twice because the court stayed his sentence for involuntary manslaughter. However, we
also acknowledge defendant’s argument this result encourages a “‘pleading shell game’”

25
which the Supreme Court cautioned against in the Cook opinion. (Cook, supra, 60
Cal.4th at p. 936.)
Meier points out that in 2015 some legislators attempted to amend section
12022.7, to clarify it does not apply to GBI suffered by the victim of murder or
manslaughter. (Sen. Bill No. 717 (2015-2016 Reg. Sess.) as introduced Feb. 27, 2015.)
However, for the past five years, the legislature has been silent on this issue. “Unpassed
bills, as evidences of legislative intent, have little value. [Citations.]” (Dyna-Med, Inc. v.
Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1396; see also Mejia v. Reed
(2003) 31 Cal.4th 657, 668 [declining to draw conclusions about Legislature’s intent
based on legislative silence].) It is not our role to amend the clear language of a statute or
broaden the scope of its application. (See, Martinez, supra, 226 Cal.App.4th at p. 1181;
Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 822.)
DISPOSITION
We affirm the judgment.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

MOORE, J.

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