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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

v.

MATTHEW PAUL MEIER,

 Defendant and Appellant.

 G058845

 (Super. Ct. No. 17WF1635)

 O P I N I O N

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.
2

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 eightyear 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. 
3

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 

***annoyed with him. *** And he ran away.”

1

 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.
4

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. 
5

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.” 
6

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. 
7

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 
8

and had several fractures. The pathologist determined Tinsman died due to blunt force

head trauma. 

The information charged Meier with involuntary manslaughter by an 

unlawful act - battery (Pen. Code, § 192, subd. (b), count 1)

2

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 onehalf 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.
9

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 
10

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 

the bar.3

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. 
11

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. 
12

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 
13

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 
14

assailant “was annoyed” with Tinsman, who was mouthing off.4 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.
15

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. 
16

Meier’s argument there was sufficient evidence to support a finding of selfdefense 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 
17

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. 
18

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 selfdefense 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.) 
19

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 
20

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 

error is the Watson5standard. (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).
21

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 
22

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 selfdefense 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]
23

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 
24

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-
25

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’”
26

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.