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Filed 3/7/23 P. v. Loftin CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL CLARENCE LOFTIN,

Defendant and Appellant.

 A161290

 (Del Norte County

 Super. Ct. No. CRF 18-9311)

Defendant confessed to killing Romeo Glaze. A jury found him guilty of 

first degree murder and found true the alleged gun enhancements. On 

October 27, 2020, the trial court sentenced defendant to 25 years to life for 

first degree murder and a consecutive term of 25 years for the firearm 

enhancement, under Penal Code section 12022.53, subdivision (d). On 

appeal, defendant complains of various evidentiary errors, ineffective 

assistance of counsel, instructional errors, prosecutorial misconduct, and 

cumulative error. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Prosecution Case

On March 26, 2014, Romeo “Bo” Glaze’s sister reported to law 

enforcement that he was missing. The same day, California Highway Patrol 

officers located a burned truck in Crescent City. The truck was reported 
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stolen by defendant’s mother. In the bed of the truck, the police found a 

substance that appeared to be burned carpeting.

On April 15, 2014, Yurok Tribal Police Officers Davis and Donahue 

found a human skull and other remains over a dirt berm along Highway 169

in Klamath. The skull had a bullet hole in it, above and behind the left ear. 

The DNA from the remains matched a sample from Glaze. Three bullet 

fragments were recovered from Glaze’s skull. The People’s expert criminalist

testified that the bullet was a .22-caliber long rifle bullet, which may be fired 

by a rifle or a .22-caliber revolver. Smaller caliber bullets, such as a .22-

caliber bullet, create less potential back spatter than higher caliber bullets. 

He further testified in response to hypothetical questions: If a shooter 

comments that he or she thought blood would go everywhere but it did not, 

that is consistent with minimal back spatter; if a shooter removes carpet and 

paints walls at the scene of a shooting, law enforcement will be less likely to 

find blood; and if a victim is shot while on a tarp, the likelihood of finding 

blood at the scene is also reduced.

On April 16, 2014, police officers searched defendant’s residence, where 

he lived with his mother and adult sister, who has Down syndrome. 

Defendant was not home, but his mother and sister were present. The 

mother’s bedroom and the sister’s bedroom were furnished. A third bedroom 

had no furniture, smelled of fresh paint, contained carpeting tools, and had 

carpeting that was a different color than the carpet in the rest of the home. 

Remnants of old carpet padding were underneath the carpet. No blood was 

found at the scene.

Nearly two years later, in March 2016, an informant led law 

enforcement to a wooded area near Hiouchi, where they recovered carpet 

padding consistent with the remnants attached to the floor of the 
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unfurnished bedroom in the defendant’s residence. The recovered padding 

was about the same size as the unfurnished bedroom. The padding was 

tested for latent blood stains, but the tests were inconclusive.

On June 6, 2018, defendant was arrested for first degree murder. In a 

videotaped police interview conducted the same day, defendant confessed to 

killing Glaze. The videotaped interview was played for the jury. The 

transcript of the video states that defendant told Lieutenant Schneck that he 

knew Glaze. Defendant felt bad for Glaze because Glaze said he was 

homeless and his family did not care about him. Glaze slept at defendant’s 

home, ate his food, and used his shower. Glaze helped defendant’s mother 

with errands and yard work. However, defendant did not trust Glaze. 

Defendant learned that Glaze and “this little crew . . . would . . . run around 

and get information on houses and how to rob them, get into them, take 

advantage of the people who had the houses, and then they would turn 

around and go sell that stuff.” Defendant had heard that they robbed and 

shot a man who resisted.

The day or night before the homicide, defendant told Glaze he would 

not be home and that Glaze should not come over. The night of the homicide, 

defendant ended up staying home. He was in his bedroom, “tweaking . . . .”

Glaze, who was with Ben R.1 the night before, knocked on defendant’s door. 

When defendant answered, Glaze looked surprised to see him at home. Glaze 

had a bicycle and some type of large machine in his hand. Glaze asked 

defendant if he had seen Ben R., and defendant said, “ ‘Man, what do you 

mean have I seen Ben? You know I don’t get along with Ben. What are you 

1 Defendant explained that he did not get along with Ben R. because he 

“did that same kind of stuff.” “He lures you in with trust and then tries to get 

over on you . . . .”
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talking about?’ ” It was raining, and defendant thought Glaze looked hungry. 

Defendant invited Glaze inside and gave him some food. Defendant left 

Glaze in the dining room to eat, and defendant went back to his bedroom. 

Defendant thought Glaze was acting “weird.” He explained: “I’ve seen people 

how they act before they’re about to do something crazy . . . .” “You don’t act 

the same as you normally do. He’s not happy, he’s not jokey, he’s not asking 

me about dope . . . .” “He’s like checked out.” Then, defendant heard the 

sound of the deadbolt on the front door open. Defendant grabbed his .22-

caliber handgun, which he kept on a top shelf in his room, and he put it in his 

jacket. Then he quietly walked out of his room and saw Glaze leaning out of 

the front doorway. Defendant asked Glaze who was outside, and Glaze said 

no one. Defendant said, “ ‘Quit fuckin’ playing with me, Bo, who’s out here? 

What are you doing? . . . This is my mom’s house. This is where my mom and 

my Down Syndrome sister stay, bro. What are you doing?’ ” Again, Glaze 

said, “ ‘Nothing . . . .’ ”

Defendant walked outside and saw a car behind a bush in the next-door

neighbor’s driveway. Defendant looked at Glaze and said, “ ‘Okay, bro, you’re 

going to come to my mom and my sister’s house and act like this, bro, when 

you think I’m not here.’ . . . ‘What’s going on, Bo?’ ” Glaze continued to deny 

anything was going on. Defendant walked toward the car. When he was 

about halfway to the car, he heard the car doors close and saw the car drive 

away. Defendant thought, “[T]his mother-fucker really tried to come rob my 

mom, thinking I was gonna be gone.”

Defendant was worried about his mother and sister, who were at home 

with him. He was worried Glaze would keep trying to come back to steal his 
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mother’s belongings. He sent his mother and sister away.

2 Defendant kept 

asking Glaze what was going on: “ ‘[W]hy are you asking me where the fuck 

Ben [R.] is at and he’s parked outside my house? Why is his white little car 

driving off from my house and you’re sitting here asking me where he is?’ ” 

Glaze continued to deny anything was going on. At one point Glaze was 

standing behind defendant, and defendant yelled at him, “ ‘Quit fuckin’ 

standing behind me, bro. Why are you fuckin’ acting like that?’ ” Glaze kept 

trying to do it, but then “finally he quit.” After defendant’s mother and sister 

left, defendant kept thinking that if he “let [Glaze] go he’s gonna come back.” 

He thought about it for “[a] long fucking time,” but not hours. Defendant “sat 

there and pondered it.” One side of his brain said to “just let it go,” and “[t]he

other side of me was like, see what he’s doing right there, he’s never gonna 

stop. He’s just gonna wait and wait and wait. He’s just that thorn in your 

side you’ve always got to worry about if you don’t take care of it. I just, and 

all of a sudden I just thought what if he comes back and my mom ends up 

getting hurt or my sister ends up getting hurt? And I was like, I’ve got to 

stop that at all costs.”

Defendant “made that decision that this has to be done, and [he] was 

just trying to find the guts to do it.” He stood next to Glaze and shot him

once in the back of the head while he was “digging for socks.” “It was just 

real quick. I was just like fuck it, and I reached over and bam.” Defendant 

said: “I was all fucked up right then. I was really thinking hard.” “I just had 

this thought, if he comes back he’s gonna hurt my mom. What if he does hurt 

my mom?” “If I don’t do it, it’s never gonna get done.” The barrel of the gun 

was not far from Glaze’s head. Defendant expected “everything was going to 

2 At trial defendant testified that he told another person in the house 

(whom he did not identify) to leave with his mother and sister.
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go everywhere, ‘cause that’s what it does in the movies,” but it did not. 

Defendant watched the life go out of Glaze’s eyes.

Defendant felt scared after he shot Glaze. Glaze was “doing some weird 

sound for a while,” and defendant thought about taking him to the hospital. 

Defendant ended up taking Glaze somewhere he refused to disclose “[because 

he did not] want to get anybody in trouble.” He said, “Some of the people I 

was with wanted to chop [Glaze] up,” but defendant yelled at them to stop. 

At some point, defendant took Glaze’s naked body and “drug him down the 

hillside in Klamath” and “left him facing his people’s land” in Waukell.

Defendant did not know what happened to the gun he used. He 

thought someone got rid of it for him. He also did not know what happened 

to the carpet and padding in his bedroom. He said he did not go home for a 

long time after the shooting. He denied burning his mother’s truck.

II. Defense Case

Defendant’s trial testimony was largely consistent with his prior 

statement to the police. He was 37 years old at the time of his trial in 2020. 

He used methamphetamine off and on since age 14, but when he gave his 

statement to the police he had been clean and sober for 13 months. 

Defendant was high on methamphetamine for weeks leading up to the night 

of the homicide on March 9, 2014.3 He was upset at the time because his wife 

left him.

Glaze was surprised when defendant answered the door. Glaze asked 

about Ben R. and told defendant he rode his bike across town because he got

into a fight. He asked defendant if he had any “dope” or knew anyone who 

3 Defendant did not remember the specific date of the homicide, but he 

testified there was an earthquake that night and the trial court took judicial 

notice that there was an earthquake near Ferndale, California, at 10:18 p.m. 

on March 9, 2014.
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would buy the metal machine he was holding. Defendant’s “spider sense was 

going crazy.” Glaze came into the house. They both then went into 

defendant’s bedroom to “hang out.” At one point, while defendant was 

bending over to clean up things in his room, Glaze was standing behind him, 

which defendant thought was “a jack move . . . .” Glaze was “being weird and 

quiet,” and defendant told him, “ ‘Get the fuck out from behind me.’ ” At 

another point, defendant gave Glaze some food, which Glaze ate in the dining 

room, and defendant went back to his room.

Defendant then heard the deadbolt open and saw Glaze leaning out the 

front doorway, waving to someone. This made defendant think he was being 

set up, and he “freaked out” on Glaze and asked him, “ ‘What the fuck are you 

doing? Who the fuck is out here?’ ” Defendant thought Glaze was the scout 

for the setup, “the trusted dude sent in to unlock the door.” Defendant 

walked out, into the yard. He was scared, worried, and mad. His mother and 

sister were home, and he did not know how many people were outside. 

Defendant saw the silhouette of a car behind a hedge next to his driveway. 

He then heard car doors slam and the car peel out and drive away. 

Defendant was “fuckin’ pissed” because he thought that Glaze was trying to 

rob his mother while defendant was supposed to be away. He remembered

being back in his room with Glaze, and he believed he told Glaze, “ ‘You need 

to get the fuck out of here before you get hurt.’ ” Another family member 

arrived and told Glaze, “ ‘You need to get the fuck out of my grandma’s 

house.’ ” Glaze ripped off his shirt, and defendant thought Glaze and the 

other person4 were going to start fighting. Defendant did not want them to 

4 Defendant did not identify by name the other person who arrived at 

his home (see footnote 2, ante, page 5).
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fight in front of his mother. He told the other person to leave with his mother 

and sister, and they left. Defendant was then alone in the house with Glaze.

Defendant was irate. He asked Glaze to be honest with him, to tell him 

what was going on. Glaze “was just acting like [defendant] was trippin’.” 

Defendant was scared. He was worried because he did not know “their 

plan B . . . .” He kept checking his windows, and at some point he sat on his 

bed, “kind of backed into the corner.” Glaze was digging through a pile of 

things in defendant’s room, and he asked defendant for drugs. Defendant 

“might have had [the gun] the whole time.” He thought, “[Glaze has] got 

people out in the brush. I’ve got that fucker. I’m not letting it go. I’m not. 

Chase my mom out of the house. Fuck. I’m not letting that thing go. Those 

fuckers might come in kicking in the door and wonder where the fuck Bo is.” 

Glaze looked up at defendant and asked him if he had any socks, and 

defendant “just thought, man, he didn’t need socks to get here. It’s all a 

fuckin’ act.” Defendant walked up to Glaze and shot him on the left side of 

his head. Defendant explained: “I ain’t fuckin’ playing with my girls. I’m not 

fuckin’ playing when it comes to my girls. My mom, my sister, my wife, my 

baby. Fuck with me all you want. Don’t fuck with my girls.” When asked if 

he decided to kill Glaze, defendant said, “I mean, I guess I did. I don’t know 

if I decided. It just . . . was kind of an action. It was a thought, a realization. 

Fuck that.” He further explained: “I made the decision to protect my mom. 

Yeah.” “That’s why I killed him.”

After Glaze was shot, he made a strange sound and defendant “freaked 

out and jumped out the window.” Defendant accidently closed the window all 

the way and locked himself out. He walked across town to where his wife 

was staying. Then he went to a “dope house,” where he talked to a friend. 

Next he went to a “home girl’s house” and told her what happened. Someone 
9

came to pick him up and drove him back to his house. Defendant wrapped 

Glaze’s body in a tarp, put it in a vehicle, and drove to Klamath. He dragged 

Glaze’s body over an embankment and left it face up. Then he went home 

and gave the truck back to his mother. Defendant denied being involved with 

burning the truck or removing the carpet and padding from his bedroom or 

painting his bedroom.

On the way back from Klamath, defendant spoke to a law enforcement 

officer he referred to as “Eagle Boy.” Defendant gestured for the officer to 

pull over, and defendant told him, “ ‘Look, if you find a body down in 

Klamath, I did it.’ ” Defendant explained to the officer that he thought “ ‘he

was going to come back and hurt my mom.’ ” The officer just looked at him,

and defendant drove off.

On cross-examination, defendant admitted, without objection, that he 

had two domestic violence convictions in 2007 and 2012, an assault with a 

deadly weapon conviction in 2014, and a felon in possession of ammunition 

conviction in 2016. He also admitted to acts of violence while sober, including 

jail fights.

Defense expert forensic scientist Kenton Wong testified on direct 

examination that gunshots to the head typically bleed profusely, leaving a lot 

of blood at the scene, which is difficult to clean. He further testified that 

removing the carpet and padding from the scene of a shooting may help 

mitigate the amount of blood remaining at the scene. Also, if the person is 

shot while kneeling on a tarp, this would help mitigate and prevent the 

deposit of blood at the scene and facilitate the cleanup of the scene. However, 

there may still be back spatter. On cross-examination, Wong testified that if 

bleach were used in the cleanup, it could greatly reduce or preclude an 

investigator’s ability to find and detect blood. He also stated that there is 
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less blood spatter when someone is shot in the head and there is no exit 

wound.

Sergeant Donahue of the Yurok Tribal Police testified that he saw 

defendant in March 2014 at a gas station in Crescent City. Sergeant 

Donahue was off duty and was with his two young sons. Defendant came up 

to him, and they had a conversation while Donahue was pumping gas. 

Defendant was sweating profusely, he was fidgety, and his eyes were bulged 

out. Donahue thought defendant was under the influence of a stimulant such 

as methamphetamine. Because of the way defendant was acting, Donahue 

was scared for the safety of himself and his children. Donahue left as soon as 

he finished pumping his gas.

DISCUSSION

I. Evidentiary Issues

A. Trial Court Did Not Err by Excluding Social Media 

Message from Victim

Defendant contends the trial court prejudicially erred by excluding a 

social media direct message from Glaze to R.N. We find no abuse of 

discretion.

1. Additional Facts

The People filed a motion in limine seeking to exclude a message Glaze 

allegedly sent to R.N. around the time frame that Glaze disappeared. The 

message, which R.N. read aloud from her cell phone during a recorded police 

interview,

5 stated: “I’m in Crescent City on two wheels. Jackin the rich and 

5 The People’s motion in limine acknowledged that the People did not

object to using transcripts as a substitute for any photos of the messages that 

may have been taken but not preserved. The People further stated at the 

evidentiary hearing that although it was not clear if the police detective took 

photos of the messages, the evidence was preserved through the transcript of 
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looking out for easy victims, and all this shit talking people are going to learn 

one way or another, they say we’re thieves. I call it karma. Got dynamite.” 

(Sic.) The People objected to the admission of the message based on hearsay, 

relevance and lack of foundation. Defense counsel argued that the statement 

indicated Glaze intended to commit burglary or robbery and that Glaze’s 

character was relevant because it would “play into our defense when we 

present our case in chief.” The People responded that the statement was 

irrelevant because defendant told Lieutenant Schneck that he shot Glaze out 

of fear of future harm, which was insufficient for self-defense or imperfect 

self-defense. The trial court agreed and excluded the statement.

2. Analysis

Evidentiary rulings are reviewed for an abuse of discretion and will not 

be disturbed absent a showing the trial court exercised its discretion in an 

arbitrary, capricious, or patently absurd manner that resulted in a manifest 

miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.) 

“Evidence is relevant if it ‘ha[s] any tendency in reason to prove or disprove 

any disputed fact.’ [Citations.] The trial court has broad latitude in 

determining relevance.” (People v. Howard (2010) 51 Cal.4th 15, 31.)

Defendant now argues Glaze’s message was relevant to show heat of 

passion, imperfect self-defense, and defense of habitation. According to 

defendant, Glaze’s message that he was “jackin’ people” corroborated 

defendant’s testimony that he knew Glaze committed robberies with a crew 

and he believed Glaze came to his house to rob his mother and sister. We 

find no abuse of discretion. The defendant’s recorded statement to the police 

did not support an imperfect self-defense theory. Defendant’s only stated 

the police interview with R.N. during which messages were read from R.N.’s

phone.
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concern was that Glaze would “come[] back” and potentially hurt his mother 

and sister. Fear of future harm does not support the giving of the imperfect 

self-defense instruction. (People v. Manriquez (2005) 37 Cal.4th 547, 581 

[“ ‘ “ ‘[T]he peril must appear to the defendant as immediate and present and 

not prospective or even in the near future’ ” ’ ”].)

Neither the trial court nor the parties discussed the potential relevance 

of Glaze’s statement based on theories of heat of passion or the defense of 

habitation. Defendant may not raise new theories of relevance for the first 

time on appeal. (People v. Case (2018) 5 Cal.5th 1, 44–45 [admissibility of 

evidence not reviewable on appeal absent an “ ‘ “offer of proof . . . inform[ing] 

the trial court of the ‘purpose, and relevance of the excluded evidence’ ” ’ ”]; 

Evid. Code, § 354 [“A verdict or finding shall not be set aside, nor shall the

judgment or decision based thereon be reversed, by reason of the erroneous 

exclusion of evidence unless . . . [¶] (a) The substance, purpose, and relevance 

of the excluded evidence was made known to the court”].) Defendant’s 

argument that the evidence would “play into our defense” did not explain to 

the trial court how the evidence was relevant to unarticulated theories of 

heat of passion or the defense of habitation. The trial court is not required to 

guess as to the potential relevance of evidence a defendant seeks to admit. 

Theories of relevance not advanced in the trial court are not preserved for 

appeal. (People v. Case, at pp. 44–45.)

B. Character Evidence

Defendant argues the trial court erroneously admitted evidence of 

defendant’s character for violence. The contested evidence came in through 

the testimony of defendant and the testimony of Sergeant Donahue, a defense 

witness. Specifically, defendant, after testifying on direct examination to 

having anger issues and to previously robbing people, was asked on cross-
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examination if he had issues with anger, and he testified that he was “a 

pretty sick person, especially when I’m using drugs.” Defendant was then 

asked on cross-examination, without objection, if he still committed acts of 

violence when not on drugs. He responded that he had been in jail fights and 

had slapped a man at a sandwich shop to make him give back tip money he 

tried to steal.

Sergeant Donahue was called by the defendant. Donahue testified that 

he encountered defendant at a gas station in March 2014 and that defendant 

appeared to be high on methamphetamine. On cross-examination, Donahue 

testified that due to defendant’s behavior, Donahue was scared for the safety 

of himself and his two children who were with him. The prosecutor then 

asked if he was familiar with defendant’s prior history. Defense counsel 

objected based on relevance and exceeding the scope of the direct 

examination. He did not object that the question called for improper 

character evidence under Evidence Code section 1101. The court overruled 

the relevance objection and stated that although the testimony exceeded the 

scope of the direct examination, the court would permit the question to avoid 

having to call the witness back. Donahue then responded that he knew 

“[v]ery little” about defendant’s background. When asked if the little he 

knew involved violence, Donahue said yes and agreed that he tried to get 

away from defendant after he finished pumping his gas.

Defendant forfeited any objections not raised below. (Evid. Code, 

§ 354.) To avoid forfeiture, defendant asserts his counsel was ineffective for 

not specifically raising an objection based on inadmissible character evidence. 

Even assuming, without deciding, that defense counsel was deficient in 

failing to object and/or that the trial court erroneously overruled counsel’s 

relevance objection, defendant has failed to adequately establish prejudice 
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due to the complained-of testimony. (People v. Mai (2013) 57 Cal.4th 986, 

1009 [to prevail on claim of ineffective assistance of counsel, defendant must 

establish counsel’s efforts fell below an objective standard of reasonableness 

and resulted in prejudice].) As the People note, defendant’s criminal history 

was made known to the jury through the testimony of Lieutenant Schneck, 

who testified, without objection, that he arrested defendant twice prior to 

March 2014. Further, on direct examination, defendant testified to having 

anger issues (“I’m not a really calm person when . . . I get mad, you got to 

kind of beat me up to get me to listen.” “It’s just how I’ve always been.”) and 

to robbing people (“I’ve robbed people.” “I’ve got over on people. I’ve done my 

shit. So I know what’s going on.”), and he said, “I’m not a fuckin’ saint . . . .”

On cross-examination, defendant testified, without objection, that he had 

prior convictions for domestic violence in 2007 and 2012, assault with a 

deadly weapon in 2014, and felon in possession of ammunition in 2016.

On appeal, defendant does not assert that any of this other testimony 

regarding his anger issues and prior crimes was inadmissible. Indeed, much 

of the testimony was elicited during defendant’s direct examination. He 

complains only that he was improperly questioned about acts of violence 

when not on drugs. Given defendant’s testimony on direct examination about 

his violent history, we find it is not reasonably probable that the jury would 

have reached a more favorable outcome if defendant had not testified about 

additional acts of violence he committed when not on drugs. (People v. Mai, 

supra, 57 Cal.4th at p. 1009.) We further find that, on this record, it is not 

reasonably probable that the jury would have reached a more favorable 

outcome if the trial court had excluded Sergeant Donahue’s brief testimony 

that he knew “[v]ery little” about defendant’s background but knew it 

involved violence. (Ibid.) Any error was harmless.
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Defendant also argues defense counsel was ineffective for failing to 

request CALCRIM No. 375, the limiting instruction given when evidence is 

presented of other crimes or bad acts under Evidence Code section 1101, 

subdivision (b). As discussed ante, defendant’s testimony regarding his anger 

issues and his history of robbing people was initially raised on direct 

examination. When read in context, it appears that defendant’s testimony 

regarding his prior bad acts was offered to explain why defendant was 

suspicious of Glaze (“I’ve robbed people.” “I’ve got over on people. I’ve done 

my shit. So I know what’s going on.”). Thus, defense counsel may have had a 

tactical reason for not requesting CALCRIM No. 375. However, even 

assuming defense counsel was deficient for failing to request the limiting 

instruction, we find defendant was not prejudiced by the omission. (People v. 

Mai, supra, 57 Cal.4th at p. 1009.) As discussed ante, defendant was not 

prejudiced by the introduction of the complained-of testimony regarding his 

prior crimes and bad acts. Further, there was no question in this case as to 

whether defendant killed Glaze. Defendant admitted shooting Glaze in the 

head while he was crouching down, digging through a pile of clothing to look 

for socks. While the question of the degree of murder was at issue, the 

determination of that issue hinged on the defendant’s recorded confession 

and his testimony about his state of mind at the time of the killing, which 

included his own statements that he “pondered” his actions. Based on this 

record, we find that it is not reasonably probable that but for defense 

counsel’s failure to request the limiting instruction regarding defendant’s 

prior crimes and bad acts (CALCRIM No. 375) the outcome of the trial would 

have been more favorable to the defendant. (People v. Mai, supra, 57 Cal.4th

at p. 1009.)
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C. Sanchez Error Regarding Testimony About the Tarp

Defendant contends the defense expert, Kenton Wong, relayed 

inadmissible testimonial hearsay on cross-examination in violation of 

People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and his Sixth Amendment 

right to confrontation. We find that defendant’s claim of Sanchez error was 

forfeited by his failure to object at trial. We further find that even if there 

had been no forfeiture, defendant’s claim is without merit.

1. Additional Facts

In February 2017, Ronnie M. gave a recorded statement to the police. 

In June 2018, at the preliminary hearing, Ronnie M. asserted his Fifth 

Amendment right against self-incrimination and refused to answer nearly all 

of the prosecutor’s questions. The prosecutor initially sought to introduce a 

portion of Ronnie M.’s recorded statement relating to an issue not raised on 

appeal, and the parties litigated the admissibility of a portion of Ronnie M.’s

statement. The People later opted not to introduce the portion of Ronnie M.’s

statement. The record on appeal does not include a transcript of Ronnie M.’s

statement.

During trial, defendant called Kenton Wong, a forensic scientist and 

blood stain pattern analyst. On direct examination, Wong testified that he 

reviewed reports and transcripts provided to him regarding a shooting at 

defendant’s residence. He testified that if a victim were shot in the head with 

a .22-caliber bullet that was recovered fully intact, he would expect that there 

would be a lot of blood, that it would flow profusely, and that it would be hard 

to clean. Removal of carpet and padding may help to mitigate and remove 

traces of blood, depending on how much blood was deposited and how quickly 

the cleanup occurred. Defense counsel then asked Wong a series of 

hypothetical questions involving various scenarios in which counsel’s wife 
17

shoots him. Counsel asked Wong to assume, hypothetically, that “[m]y wife 

detests me so much she makes me get a tarp out and lay it on the bedroom 

floor and makes me get on my knees on the tarp,” and then counsel asked 

whether that would change Wong’s analysis. Wong testified the tarp would 

help to mitigate and prevent the deposition of blood into the crime scene and 

that it would help facilitate the cleanup but that there may still be some back 

spatter.

The prosecutor cross-examined Wong as follows: “Q: Now, defense 

counsel did ask you to read the transcript of Ronnie [M.]. [¶] A: Yes. 

[¶] Q: Okay. So, hypothetically, if a victim was tricked to get on a tarp as a 

ruse to do some work in a room, say, and that victim was shot on the tarp, a 

tarp is something that would more than likely stop the blood from leeching 

into the carpet? [¶] A: That’s potentially possible.” The prosecutor then 

confirmed with Wong that painting the walls could cover potential spatter. 

He then continued: “Q: And what does the role of bleach have in a cleanup of 

blood? [¶] A: Bleach is used to commonly remove blood and clean up blood at 

crime scenes. [¶] Q: And is it effective? [¶] A: It can be, yes. [¶] Q: Okay. And

in the transcript that [defense counsel] had you read of Ronnie [M.], did you 

see references to bleach being used?” At this point, defense counsel objected, 

“That’s hearsay. It’s not put in a hypothetical.” The court stated that 

admissibility depended on whether Wong used the statement in formulating 

his opinion. The prosecutor then asked Wong whether he used Ronnie M.’s

statement in formulating any opinions, and he replied he reviewed it but did 

not recall a reference to bleach. The prosecutor showed Wong the statement 

to refresh his recollection and then asked if using a lot of bleach would have 

precluded investigators’ ability to detect blood, to which Wong responded 

affirmatively.
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2. Legal Principles

Sanchez adopted the following rule: “When any expert relates to the 

jury case-specific out-of-court statements, and treats the context of those 

statements as true and accurate to support the expert’s opinion, the 

statements are hearsay. It cannot logically be maintained that the 

statements are not being admitted for their truth. If the case is one in which 

a prosecution expert seeks to relate testimonial hearsay, there is a 

confrontation clause violation unless (1) there is a showing of unavailability 

and (2) the defendant had a prior opportunity for cross-examination, or 

forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th at p. 686.) 

However, an “expert may still rely on hearsay in forming an opinion, and may 

tell the jury in general terms that he did so.” (Id. at pp. 685–686.) Sanchez 

explains: “There is a distinction to be made between allowing an expert to 

describe the type or source of the matter relied upon as opposed to 

presenting, as fact, case-specific hearsay that does not otherwise fall under a 

statutory exception. [¶] What an expert cannot do is relate as true casespecific facts asserted in hearsay statements, unless they are independently 

proven by competent evidence or are covered by a hearsay exception.” (Id. at 

p. 686.)

3. Analysis

Defendant argues that Wong was improperly asked hypothetical 

questions during cross-examination that were “based overtly on [Ronnie M.’s]

statement . . . .” He asserts that the prosecutor’s question to Wong about 

whether, “if a victim was tricked to get on a tarp as a ruse to do some work in 

a room, say, and that victim was shot on the tarp, a tarp is something that 

would more than likely stop the blood from leeching into the carpet” was a 

hypothetical containing “case-specific facts relayed to the jury by Wong’s 
19

reliance on them . . . .” Defendant makes a similar complaint about the 

prosecutor’s questions regarding the hypothetical “use of bleach” and the 

impact that could have on investigators’ ability to recover blood. Defendant 

asserts the case-specific facts were inadmissible testimonial hearsay and the 

use of the statements violated his Sixth Amendment right to confrontation 

and Evidence Code sections 1291 and 1294.

Notably, regarding prejudice, defendant argues only that “[e]vidence 

that Glaze was ‘tricked’ into getting on a tarp before he was shot” made it 

more likely the jury would find premeditation and deliberation. He does not 

explain how he was prejudiced by Wong’s testimony regarding the 

hypothetical use of bleach in cleaning up the crime scene. It is not entirely 

clear whether defendant is arguing that the prosecutor’s questions regarding 

the tarp and his questions regarding the bleach were both prejudicial 

Sanchez errors. However, because he does not explain how he suffered any 

prejudice from the questions regarding the bleach, we find no error as to 

those questions. We focus our analysis of the alleged Sanchez error only on 

the questions regarding the tarp.

First, it appears that defendant forfeited any Sanchez error by not 

objecting when the prosecutor asked if Wong read Ronnie M.’s statement and 

then posed a hypothetical in which a victim is tricked to get on a tarp. (Evid. 

Code, §§ 353, subd. (a), 354; People v. Demetrulias (2006) 39 Cal.4th 1, 20 

[“ ‘ “ ‘defendant’s failure to make a timely and specific objection’ on the 

ground asserted on appeal makes that ground not cognizable” ’ ”].) 

Defendant claims the issue was preserved because “[c]ounsel objected under 

Evidence Code section 1291, and repeatedly argued that he had no 

meaningful opportunity to cross-examine . . . .” Defendant does not provide a 

record citation to the claimed objection. (Doppes v. Bentley Motors, Inc.
20

(2009) 174 Cal.App.4th 967, 990 [rule requiring references to record “applies 

wherever a reference to a matter in the record appears in a brief”]; Cal. Rules 

of Court, rule 8.204(a)(1)(C).) To the extent defendant is referring to 

counsel’s objection at an evidentiary hearing outside the jury’s presence 

regarding whether the prosecutor could introduce a different portion of 

Ronnie M.’s statement—a position the prosecutor later withdrew—we find 

this insufficient to preserve the Sanchez issue. The record shows that 

defense counsel did not object to the prosecutor’s cross-examination of Wong 

regarding the tarp issue.

Even if defendant had not forfeited the Sanchez issue, defendant’s 

argument is without merit. Defense counsel first elicited testimony from 

Wong that making a victim kneel on a tarp would help to mitigate and 

prevent the deposition of blood at the crime scene. The testimony elicited by 

the prosecutor on cross-examination was essentially the same. Further, on 

cross-examination, the prosecutor specifically prefaced his questioning 

regarding the tarp with the question, “And you don’t know what was under 

the victim at the time he was shot; correct?” Wong responded, “I do not.” 

Viewing Wong’s testimony as a whole, we disagree that his response to a 

hypothetical regarding use of a tarp violated Sanchez. Wong did not “relate 

as true case-specific facts asserted in hearsay statements . . . .” (Sanchez, 

supra, 63 Cal.4th at pp. 685–686.) Although Ronnie M.’s statement was 

mentioned in passing, Wong never revealed what Ronnie M. said. Nor did 

Wong “treat[] the content of [Ronnie M.’s] statement[] as true and accurate to 

support” his opinion. (Sanchez, supra, 63 Cal.4th at p. 686; see People v. Bell 

(2020) 47 Cal.App.5th 153, 194–195 [no confrontation clause violation 

established where record was not clear enough to decipher which portions of 

expert’s testimony (if any) relied on testimonial hearsay].) Instead, Wong 
21

very clearly stated that he did not know what was under the victim, and 

then, when posed with a hypothetical that was initially introduced by the 

defense, Wong opined on the impact a tarp would have on the detection of 

blood at the scene. There was no Sanchez error.

II. Defense counsel’s presentation of expert testimony was not 

ineffective assistance of counsel.

Defendant contends that his counsel’s presentation of Wong’s expert 

testimony was ineffective assistance of counsel. He argues that given his 

detailed confession, there was no point to Wong’s testimony regarding blood 

loss and cleanup. Defendant further argues that even if there were a 

legitimate reason for Wong’s testimony, counsel’s performance was deficient 

because he (1) asked Wong to assume damaging facts that were not in 

evidence; (2) did not properly prepare Wong; (3) elicited evidence that 

defeated the purpose of Wong’s testimony; (4) made no effort to exclude 

hearsay that Glaze was tricked into getting on a tarp on which he was then 

shot; and (5) withdrew his request for CALCRIM No. 360, which would have 

told the jury not to assume facts in Ronnie M.’s statement were true.

To establish ineffective assistance of counsel, a defendant must show 

counsel’s efforts fell below an objective standard of reasonableness and 

resulted in prejudice. (People v. Mai, supra, 57 Cal.4th at p. 1009.) In 

reviewing ineffective assistance claims, we defer to counsel’s reasonable 

tactical decisions and presume counsel acted within the wide range of 

reasonable professional assistance. (Ibid.) To establish prejudice, defendant 

must show “a reasonable probability that, but for counsel’s deficient 

performance, the outcome of the proceeding would have been different.” 

(Ibid.) “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” (Strickland v. Washington (1984) 466 U.S. 668, 
22

694.) “A defendant must prove prejudice that is a ‘ “demonstrable reality,” 

not simply speculation.’ ” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)

We have reviewed Wong’s testimony in its entirety, and although its 

purpose is not entirely clear, we find it neither helpful nor damaging to the 

defense. Wong essentially opined regarding the amount of blood that could 

be expected from a gunshot wound to the head and whether blood was likely 

to be detected at the crime scene after various possible cleanup scenarios. 

Given defendant’s admission that he killed Glaze, Wong’s testimony 

regarding blood loss and cleanup of crime scenes likely had little, if any, 

impact on the issues the jury decided. Defendant argues Wong’s testimony 

was prejudicial because it signaled to the jury that defendant had no viable 

defense and that the “untested evidence that [defendant] executed Glaze by 

tricking him onto a tarp before the shooting was certainly prejudicial.” As to 

the first point, we disagree that Wong’s testimony, which even the defendant 

concedes focused on a “moot point” (the cleanup), was prejudicial.

We also disagree that defendant was prejudiced by the questioning of 

Wong concerning the tarp and defense counsel’s failure to object during 

Wong’s cross-examination on the basis that Ronnie M.’s recorded statement 

was inadmissible. Testimony about the impact of a tarp under the victim was 

first raised, without objection, when the prosecution questioned its own 

expert criminalist. Wong’s testimony on this point was consistent with the 

testimony of the People’s expert. They both testified to the unremarkable 

proposition that if a tarp were under a victim when the victim was shot, this 

could result in less blood at the scene. Defendant was also asked by the 

prosecutor, “Prior to shooting Bo, did you trick him to get on a tarp?” The 

trial court sustained an objection on the grounds that the question assumed a 

fact not in evidence, and the prosecutor then asked, without objection, “Did 
23

you have Bo get on a tarp?” Defendant answered, “No. I rolled him up in a 

tarp.” On appeal, defendant raises no issues regarding questions posed to 

himself or to the prosecutor’s criminalist regarding whether a tarp was used 

or the impact the use of a tarp would have on the crime scene. We fail to see 

how similar questioning to Wong regarding the possible use of a tarp was 

prejudicial.

As discussed ante, although the prosecutor referenced a statement by 

Ronnie M., neither the prosecutor nor Wong revealed who Ronnie M. was or 

what Ronnie M. said. At most, the passing reference to Ronnie M. during the 

prosecutor’s questioning of Wong regarding a tarp raised an inference that 

Ronnie M. may have referenced a tarp. But the jury also heard Wong 

specifically state he did not know if a tarp was used, and the jury was

instructed with CALCRIM No. 332, which informed the jurors that they were

to decide whether facts assumed in any hypothetical posed to an expert had 

been proven. Moreover, during closing argument, the People did not advance 

a theory that defendant forced or tricked Glaze to get on a tarp before he shot 

him. Nor did they mention a tarp or Ronnie M. The issue of when and how a 

tarp was used was not a focal point at trial.

As discussed ante, we find there was no Sanchez error. Therefore, 

defense counsel was not ineffective for failing to object to the prosecutor’s 

questioning of Wong regarding the possible use of a tarp.

Defendant contends his counsel was ineffective for withdrawing his 

request for CALCRIM No. 360, but he fails to provide a record citation to 

defense counsel’s withdrawal. (Doppes v. Bentley Motors, Inc., supra, 174 

Cal.App.4th at p. 990; Cal. Rules of Court, rule 8.204(a)(1)(C).) Even if not 

forfeited, we find no merit to this claim. CALCRIM No. 360 instructs that 

when an expert testifies that he or she considered a statement made by 
24

someone else in reaching his or her conclusions, the jury “may consider [that] 

statement[] only to evaluate the expert’s opinion” and the jury is not to 

“consider [that] statement[] as proof that the information contained in the 

statement[] is true.” (CALCRIM No. 360.) As discussed ante, Wong did not 

testify that he relied upon Ronnie M.’s statement, only that he read it. Nor 

did he reveal what Ronnie M. said. Thus, CALCRIM No. 360 was not 

applicable.

Having reviewed Wong’s testimony, as well as the other evidence 

presented, we find that there is no reasonable probability that but for defense 

counsel’s alleged deficient performance regarding Wong’s testimony the 

outcome of the trial would have been more favorable to defendant. (People v. 

Mai, supra, 57 Cal.App.4th at p. 1009.) Thus, defendant’s claim of ineffective 

assistance of counsel fails. (People v. Fairbank, supra, 16 Cal.4th at p. 1241

[“ ‘ “If it is easier to dispose of an ineffectiveness claim on the ground of lack 

of sufficient prejudice . . . , that course should be followed” ’ ”].)

III. Alleged Instructional Errors

Defendant alleges the trial court erroneously failed to instruct on 

voluntary manslaughter–heat of passion (CALCRIM No. 570), imperfect selfdefense (CALCRIM No. 571), the defense of habitation (CALCRIM No. 506),

and the presumption regarding use of force against an intruder into home 

(CALCRIM No. 3477). He also alleges that defense counsel was ineffective 

for failing to request an instruction on the mitigating effects of provocation 

(CALCRIM No. 522). As discussed post, we find no prejudicial instructional 

errors.
25

A. Any error in failing to instruct on voluntary manslaughter 

based on a sudden quarrel or heat of passion was 

harmless.

Defendant contends the trial court erroneously failed to instruct 

sua sponte on voluntary manslaughter–heat of passion (CALCRIM No. 570). 

He argues that although his trial counsel did not request this instruction, 

the trial court was required to give the instruction sua sponte as a lesser 

included offense of murder that was supported by substantial evidence. As 

discussed post, we question whether this record provides substantial 

evidence to support a voluntary manslaughter–heat of passion instruction. 

However, even assuming—without deciding—that substantial evidence 

supported the instruction, we find any error harmless beyond a reasonable 

doubt because the jury necessarily found defendant’s actions were willful, 

deliberate and premeditated when it convicted him of first degree murder. 

(People v. Peau (2015) 236 Cal.App.4th 823, 829 (Peau).)

1. Additional Facts

The trial court instructed the jury on first and second degree murder. 

Specifically, the trial court gave CALCRIM No. 520 (first or second degree 

murder with malice aforethought), which explains: “If you decide that the 

defendant committed murder, it is murder of the second degree, unless the 

People have proved beyond a reasonable doubt that it is murder of the first 

degree as defined in CALCRIM No. 521.” CALCRIM No. 521 (first degree 

murder) instructed the jury that the defendant was prosecuted for first 

degree murder under two theories: (1) the murder was willful, deliberate, and 

premeditated; or (2) the murder was committed while lying in wait. 

CALCRIM No. 521 further states: “The defendant is guilty of first degree 

murder if the People have proved that he acted willfully, deliberately, and 

with premeditation. The defendant acted willfully if he intended to kill. The 
26

defendant acted deliberately if he carefully weighed the considerations for 

and against his choice and, knowing the consequences, decided to kill. The 

defendant acted with premeditation if he decided to kill before completing the 

acts that caused death.” It then explains that the length of time considering 

whether to kill is not alone determinative and that “[a] decision to kill made 

rashly, impulsively, or without careful consideration is not deliberate and 

premeditated.” As to the lying in wait theory, CALCRIM No. 521 states: 

“The defendant murdered by lying in wait if: [¶] (1) He concealed his purpose 

from the person killed; [¶] (2) He waited and watched for an opportunity to 

act; [¶] AND [¶] 3. Then, from a position of advantage, he intended to and did 

make a surprise attack on the person killed. [¶] The lying in wait does not 

need to continue for any particular period of time, but its duration must be 

substantial enough to show a state of mind equivalent to deliberation or 

premeditation.” CALCRIM No. 521 concludes: “The People have the burden 

of proving beyond a reasonable doubt that the killing was first degree murder 

rather than a lesser crime. If the People have not met this burden, you must 

find the defendant not guilty of first degree murder and the murder is second 

degree murder.”

The jury was also instructed with CALCRIM No. 3426 (voluntary 

intoxication), which states the jury may consider defendant’s voluntary 

intoxication in deciding whether the defendant acted with intent to kill or 

acted willfully, deliberately, and with premeditation.

2. Legal Principles

A trial court has a sua sponte duty “to instruct fully on all lesser 

necessarily included offenses supported by the evidence.” (People v. 

Breverman (1998) 19 Cal.4th 142, 148–149.) In a murder prosecution, the 

trial court’s duty “includes the obligation to instruct on every supportable 
27

theory of the lesser included offense of voluntary manslaughter, not merely 

the theory or theories which have the strongest evidentiary support, or on 

which the defendant has openly relied.” (Id. at p. 149.) Substantial evidence 

is that which a reasonable jury could find persuasive. (People v. Williams 

(2015) 61 Cal.4th 1244, 1263.) An instruction is not justified based on the 

existence of any evidence, no matter how weak. (People v. Wyatt (2012) 55 

Cal.4th 694, 698.) However, the testimony of a single witness, including the 

defendant, may suffice. (Ibid.)

“Murder is the unlawful killing of a human being . . . with malice 

aforethought.” (§ 187, subd. (a).) “When a person kills while acting ‘upon a 

sudden quarrel or heat of passion’ (§ 192, subd. (a))—even if exercising a 

sufficient ‘measure of thought . . . to form . . . an intent to kill’—he or she acts 

with ‘a mental state that precludes the formation of malice.’ [Citation.] 

Thus, the offense of murder is reduced to the lesser included offense of 

voluntary manslaughter when the defendant acted upon a sudden quarrel or 

in the heat of passion. [Citation.] A person acts upon a sudden quarrel or in 

the heat of passion if he or she ‘acts without reflection in response to 

adequate provocation.’ [Citation.] Provocation is legally adequate if it 

‘ “ ‘would cause the ordinarily reasonable person of average disposition to act 

rashly and . . . from . . . passion rather than from judgment.’ ” ’ [Citation.]” 

(Peau, supra, 236 Cal.App.4th at pp. 829–830.) “The passion aroused need 

not be anger or rage, but can be any intense emotion other than revenge. 

[Citation.]” (People v. Dominguez (2021) 66 Cal.App.5th 163, 175.)

3. Analysis

Defendant asserts his testimony supported the giving of the voluntary 

manslaughter–heat of passion instruction. Specifically, he argues there was 

evidence that Glaze was acting as the appointed “scout” in an effort to rob 
28

defendant’s mother and sister when Glaze believed defendant would not be 

home, that Glaze lied to defendant about whether others were outside, that 

Glaze refused to leave when told to do so, and that defendant was “ ‘mad’ ” 

and “ ‘yelling and yelling’ ” at Glaze. Defendant was angry that Glaze “ ‘tried

to blindside [his] mother and sister in the middle of the night,’ ” and he 

worried that the others would return. We question whether, on this record, 

where defendant confessed that before he killed Glaze he “pondered” his 

actions and thought about it for “[a] long fucking time,” where he was alone 

with an unarmed victim at the time of the killing, and where he shot the 

victim in the back of the head while the victim was crouching down and 

digging through a pile of clothing to look for socks, there is sufficient evidence 

to support an instruction that defendant’s passion was “so strong that [his] 

reaction bypassed his thought process to such an extent that judgment could 

not and did not intervene.” (People v. Beltran (2013) 56 Cal.4th 935, 949.) 

However, we need not decide whether the trial court erred in not instructing 

sua sponte on heat of passion voluntary manslaughter because we find any 

such omission was harmless beyond a reasonable doubt. (Chapman v. 

California (1967) 386 U.S. 18, 24.)6

Any error in failing to instruct on a lesser included offense is harmless 

when the jury necessarily decides the factual questions posed by the omitted 

instructions adversely to the defendant under other properly given 

6 The parties disagree on whether the failure to instruct on a lesser 

included offense is evaluated under the federal beyond a reasonable doubt 

standard (Chapman v. California, supra, 386 U.S. at p. 24) or the state law 

reasonable probability standard (People v. Watson (1956) 46 Cal.2d 818, 837). 

Our Supreme Court is currently considering this question (People v. Schuller 

(2021) 72 Cal.App.5th 221, 237–238, review granted Jan. 19, 2022, S272237). 

We need not decide the applicable standard because we find no prejudice 

even under the stricter Chapman standard.
29

instructions. (Peau, supra, 236 Cal.App.4th at p. 831, citing People v. Lewis 

(2001) 25 Cal.4th 610, 646.) Here, the jury found defendant guilty of first 

degree murder. It was instructed that it had to find beyond a reasonable 

doubt that defendant killed Glaze “willfully, deliberately, and with 

premeditation.” (CALCRIM No. 521.) The jury was further instructed as to 

the meaning of willfulness, deliberation, and premeditation and that “[a]

decision to kill made rashly, impulsively, or without careful consideration is 

not deliberate and premeditated.” (Ibid.) Finally, the first degree murder 

instruction stated that if the People failed to prove these elements beyond a 

reasonable doubt, “you must find the defendant not guilty of first degree 

murder and the murder is second degree murder.” (Ibid.) As explained by 

our Supreme Court in People v. Wharton (1991) 53 Cal.3d 522, 572 (Wharton): 

“By finding defendant was guilty of first degree murder, the jury necessarily 

found defendant premeditated and deliberated the killing. This state of 

mind, involving planning and deliberate action, is manifestly inconsistent 

with having acted under the heat of passion . . . and clearly demonstrates 

that defendant was not prejudiced by the failure to give his requested 

instruction [that provocation could occur over time].” Here too the jury’s 

finding that defendant was guilty of first degree murder necessarily 

determined that defendant premeditated and deliberated the killing, which is 

“manifestly inconsistent” with acting under the heat of passion. (Ibid.; see

People v. Wang (2020) 46 Cal.App.5th 1055, 1071–1072 [jury’s finding that 

defendant premeditated and deliberated a killing was “manifestly 

inconsistent” with his having acted under the heat of passion, and omission of 

heat of passion instruction was harmless beyond a reasonable doubt]; Peau, 

supra, 236 Cal.App.4th at p. 830 [first degree murder conviction rendered 

any failure to give heat of passion instruction harmless under Chapman].)
30

Defendant argues Wharton, supra, is distinguishable because there the 

jury was given instructions on provocation and heat of passion and the error 

alleged and found to be harmless was the refusal to instruct that provocation 

could occur over a considerable period of time. (53 Cal.3d at pp. 569–572.) In 

contrast, defendant argues that here “no instructions informed the jury to 

consider whether [defendant] was provoked into committing the homicide 

under the heat of passion.” However, the central point of Wharton’s analysis 

was that the jury’s finding that the killing was willful, premeditated and 

deliberate was “manifestly inconsistent” with a killing done in the heat of 

passion. (Id. at p. 572.) The same is true here. In order to find defendant 

guilty of first degree murder, as opposed to second degree murder, the jury 

necessarily found that the killing was willful, deliberate, and premeditated 

and that the defendant did not make the “decision to kill . . . rashly, 

impulsively, or without careful consideration . . . .” (CALCRIM No. 521.)

Defendant urges us to follow People v. Berry (1976) 18 Cal.3d 509, 

which reversed a first degree murder conviction because the trial court 

erroneously refused to give a requested instruction on voluntary 

manslaughter on a heat of passion theory. (Id. at pp. 512, 518.) Defendant 

argues that as in Berry, here too the trial court’s other instructions made only 

“passing reference” to the concept of heat of passion when they instructed 

that “[a] decision to kill made rashly, impulsively, or without careful 

consideration is not deliberate and premeditated.” Berry states the other 

instructions given “only casually” referenced heat of passion and provocation 

in order to distinguish between first and second degree murder. (Ibid.) It 

concluded that “[t]here was no clear direction to the jury to consider the 

evidence of . . . provocatory conduct so as to determine whether defendant, as 

an ordinary man of average disposition [citation] having been exposed to such 
31

conduct, was provoked into committing the homicide under a heat of 

passion.” Thus, Berry concluded that the first degree murder conviction did 

not necessarily determine the factual question posed by the omitted 

instruction. (Ibid.)

In Peau, our colleagues in Division One rejected a similar argument

urging the court to follow Berry instead of Wharton. Peau, supra, held that 

the failure to give a heat of passion instruction was harmless beyond a 

reasonable doubt because the jury’s guilty verdict on first degree murder 

necessarily found the murder was willful, deliberate, and premeditated. (236 

Cal.App.4th at pp. 831–832.) Peau acknowledged some tension between the 

holdings of Berry and Wharton but found that Wharton’s more recent 

reasoning was directly on point. (Peau, at p. 831.) Peau explained that the 

analysis in Berry never mentioned that first degree murder must be willful, 

premeditated, and deliberate and instead focused only on the “ ‘passing 

reference’ ” to heat of passion and provocation in the instruction 

distinguishing between first and second degree murder. (Ibid.) Peau found 

“this strongly suggests that the sole issue considered in Berry was whether 

the error was harmless because the jury received some instruction on the 

concepts of heat of passion and provocation, not whether the error was 

harmless because the jury found the murder was willful, deliberate, and 

premeditated and such a finding was inconsistent with a finding that the 

defendant acted in a heat of passion.” (Id. at pp. 831–832.) We agree with 

Peau’s analysis and find that Berry does not preclude us from finding the 

alleged error here to be harmless beyond a reasonable doubt because the jury 

necessarily rejected the possibility that defendant acted in the heat of passion 
32

when it convicted him of first degree murder. (People v. Brown (2012) 54 

Cal.4th 314, 330 [“cases are not authority for propositions not considered”].)7

B. Counsel was not ineffective for failing to request 

instructions on the mitigating effects of provocation.

Defendant argues that his defense counsel rendered ineffective 

assistance by failing to request instructions that provocation (1) reduces a

murder to manslaughter and (2) may reduce a first degree murder to second 

degree.

CALCRIM No. 522 is a pinpoint instruction that explains: “Provocation

may reduce a murder from first degree to second degree [and may reduce a 

murder to manslaughter]. The weight and significance of the provocation, if 

any, are for you to decide. [¶] If you conclude that the defendant committed 

murder but was provoked, consider the provocation in deciding whether the 

crime was first or second degree murder. . . .” This instruction must be given 

upon request where there is substantial evidence to support the theory. 

(People v. Wilkins (2013) 56 Cal.4th 333, 348–349.)

Here again we question whether the record, which includes defendant’s 

multiple references to his deliberative thought process, contains sufficient 

evidence to support an instruction that defendant’s passion was “so strong 

that [his] reaction bypassed his thought process to such an extent that 

judgment could not and did not intervene.” (People v. Beltran, supra, 56 

Cal.4th at p. 949.) However, even assuming—without deciding—that

counsel’s performance was deficient because he failed to request instructions 

regarding provocation, defendant fails to establish that he was prejudiced by 

7 Defendant cites People v. Ramirez (2010) 189 Cal.App.4th 1483, 1488,

which relied upon Berry to reject the argument that a conviction of first 

degree murder rendered the failure to give a heat of passion instruction 

harmless. We disagree with Ramirez for the reasons discussed ante.
33

counsel’s conduct. Based on the evidence, and given the other instructions 

which defined willful, deliberate and premeditated conduct and which 

explicitly stated that “[a] decision to kill made rashly, impulsively, or 

without careful consideration is not deliberate and premeditated,” we find it 

is not reasonably probable that the verdict would have been more favorable 

to defendant if the jury had been instructed with CALCRIM No. 521. 

(Strickland v. Washington, supra, 466 U.S. at pp. 687–688.)

C. Refusal to instruct on imperfect self-defense was not error

because no substantial evidence supported the 

instruction.

1. Additional Facts

Defendant’s counsel requested that the trial court instruct on voluntary 

manslaughter–imperfect self-defense or imperfect defense of another 

(CALCRIM No. 571). Defense counsel conceded that defendant testified that 

his mother and sister had left by the time he killed Glaze and, thus, his fear

regarding their safety was of the potential for future harm. However, defense 

counsel argued that the evidence showed defendant was also afraid for 

himself because he did not know what Glaze and the others’ “plan B” was. 

The trial court agreed with the prosecution’s argument that the evidence did 

not show defendant acted out of any imminent danger, and it declined to give 

the instruction.

2. Legal Principles

Imperfect self-defense voluntary manslaughter occurs when a 

defendant kills in the actual but unreasonable belief that he or she is in 

imminent danger of death or great bodily injury. (People v. Rangel (2016) 62 

Cal.4th 1192, 1226.) CALCRIM No. 571 instructs that “[a] killing that would 

otherwise be murder is reduced to voluntary manslaughter if the defendant 

killed a person because (he/she) acted in (imperfect self-defense/ [or] 
34

imperfect defense of another).” A defendant acts in imperfect self-defense if 

(1) he or she actually believed that he or she was in imminent danger of being 

killed or suffering great bodily injury and (2) he or she actually believed that 

the immediate use of deadly force was necessary to defend against the danger

but (3) at least one of those beliefs was unreasonable. (CALCRIM No. 571.) 

Belief in future harm, even if in the near future, is not sufficient to warrant 

the instruction. (People v. Manriquez, supra, 37 Cal.4th at p. 581.)

3. Analysis

We independently review the trial court’s decision not to instruct on a 

lesser included offense. (People v. Verdugo (2010) 50 Cal.4th 263, 293.) We 

must determine whether there was substantial evidence from which a jury 

could conclude that the lesser offense of voluntary manslaughter–imperfect

self-defense, but not the greater offense of murder, was committed. (People v. 

Cruz (2008) 44 Cal.4th 636, 664.)

Defendant acknowledges there was substantial evidence that he was 

afraid Glaze would cause future harm to his mother and sister, and the 

record is replete with defendant’s statements indicating this fear of future 

harm.

8 However, defendant argues there was also substantial evidence that 

he thought he was in imminent danger and had to kill Glaze to avoid that 

8 Defendant’s recorded statement to Lieutenant Schneck included the 

following statements: “I just kept thinking if I let him go he’s gonna come 

back.” “I just thought what if he comes back and my mom ends up getting 

hurt or my sister ends up getting hurt? And I was like, I’ve got to stop that 

at all costs.” Similarly, at trial he made repeated references to his concern 

for his mother and sister, including the following: “What if he comes back 

and tricks [my sister] into opening the door and my mom is fuckin’ sleeping?” 

“I understand it’s not a good defense or anything. It’s not a good reason. 

What if he comes back and hurts my mom. [¶] And when I thought that, I 

was just, like, fuck that. I’m not gambling with my mom’s safety. And I get 

it. It’s not a good reason.”
35

imminent danger. Defendant claims the substantial evidence supporting 

imperfect self-defense was his belief that Glaze was trying to commit a 

robbery with the others whom Glaze denied were outside and his knowledge 

that Glaze and his “crew” had previously harmed robbery victims. Further, 

defendant testified Glaze stood behind him and this made him think Glaze 

was trying to “get the drop” on him. Defendant also argues that after Glaze 

was told to leave, he “assumed a fighting stance . . . .” The testimony to 

which defendant cites states that when another person told Glaze to leave, 

Glaze ripped off his shirt and defendant thought Glaze and the other person 

were about to start fighting. At that point, defendant told the other person to 

leave with his mother and sister, and they left. Defendant points to no 

testimony that Glaze ever attempted to fight with him. In fact, defendant

testified that he did not have any right to kill Glaze.

Defendant also argues there was evidence that “[h]e was concerned 

they might come through the door to assist Glaze, and was concerned that 

they, with Glaze, had a ‘plan B.’ ” Defendant cites to his testimony that

“anything could go down. I don’t know what’s going on. I don’t know what 

their plan B is.” Defendant did not testify to a specific concern about people 

coming “through the door.” To the contrary, defendant’s own testimony was 

that he saw a car silhouette behind a hedge next to his house and he heard 

the car doors slam and the car drove away.

We agree with the trial court that the evidence does not support the 

voluntary manslaughter–self-defense instruction. Specifically, there was no 

evidence that at the time of the killing defendant actually believed he or 

anyone else was in imminent danger of death or great bodily injury and that 

he actually believed the immediate use of force was necessary to defend 

against an imminent danger. The undisputed evidence was that the people 
36

outside drove off and that after the unidentified family member left with 

defendant’s mother and sister, defendant and Glaze were alone in the house. 

At the time defendant shot Glaze, Glaze was crouching down, digging 

through a pile to look for socks. Defendant’s own description of his state of 

mind expressed fear about future possible harm but not imminent danger. 

The trial court correctly determined that substantial evidence did not support 

a voluntary manslaughter–imperfect self-defense instruction.

D. Habitation Defense (CALCRIM No. 506) and Presumption 

Regarding Use of Force Against Intruder into Home

(CALCRIM No. 3477)

Defendant asserts the trial court erred by failing to instruct sua sponte

on the affirmative defense of habitation under CALCRIM No. 506 and 

CALCRIM No. 3477. CALCRIM No. 506 (justifiable homicide–defending 

against harm to person within home or on property) would have instructed 

the jury that defendant was not guilty of murder if he killed to defend himself 

or another person in his home and that the killing was justified if: 

(1) defendant reasonably believed that he was defending his home against 

Glaze, who intended or tried to commit robbery; (2) defendant reasonably 

believed the danger was imminent; (3) defendant reasonably believed that 

the use of deadly force was necessary to defend against the danger; and 

(4) defendant used no more force than was reasonably necessary to defend 

against the danger. (CALCRIM No. 506.) The instruction further states: 

“Belief in future harm is not sufficient, no matter how great or how likely the 

harm is believed to be. The defendant must have believed there was 

imminent danger of violence to (himself . . . [or] someone else). Defendant’s

belief must have been reasonable and [he] must have acted only because of 

that belief. The defendant is only entitled to use the amount of force that a 

reasonable person would believe is necessary in the same situation. If the 
37

defendant used more force than was reasonable, then the killing was not 

justified.” (CALCRIM No. 506, 2d bracketed insertion added.)

For the same reasons discussed ante (pt. III, sec. C), there was no 

substantial evidence that defendant believed he was in imminent danger of 

violence. Nor was there substantial evidence that defendant reasonably 

believed it was necessary to use deadly force to defend against an imminent 

danger. Instead, defendant explained repeatedly that he shot Glaze because 

he was afraid Glaze would come back and hurt his mother or sister. No 

substantial evidence supported CALCRIM No. 506, and the trial court had no 

obligation to give it. (People v. Brooks (2017) 3 Cal.5th 1, 73 [court is 

obligated to instruct on affirmative defense if there is substantial evidence of 

such a defense and the defense is not inconsistent with the defendant’s theory 

of the case].)

Relatedly, defendant asserts that the trial court was also obligated to 

instruct sua sponte with CALCRIM No. 3477 (presumption that resident was 

reasonably afraid of death or great bodily injury; § 198.5). Section 198.5 

creates a rebuttable presumption that a residential occupant has a 

reasonable fear of the imminent peril of death or great bodily injury when he

or she uses deadly force against an intruder who unlawfully and forcibly 

enters his or her residence. CALCRIM No. 3477 would have instructed the 

jury that the law presumes the defendant reasonably feared imminent death 

or great bodily injury to himself or a member of his household if: (1) an

intruder unlawfully and forcibly entered his home; (2) the defendant knew or 

reasonably believed that the intruder unlawfully and forcibly entered the 

defendant’s home; (3) the intruder was not a member of the defendant’s 

household; and (4) the defendant used force intended to or likely to cause 

death or great bodily injury to the intruder inside the home.
38

No substantial evidence supported the threshold requirements of this 

presumption, which are that Glaze entered defendant’s home unlawfully and 

forcibly. The evidence was to the contrary. Defendant’s opening brief even 

acknowledges that Glaze “initially entered with consent . . . .” Defendant 

testified that Glaze regularly came to his home, slept there, wore defendant’s 

clothes, used his shower and ate his food. On the night of the murder, Glaze 

knocked on the door, defendant answered, Glaze came in, and they went to 

“hang out” in defendant’s bedroom. Later, defendant gave him leftovers to 

eat. Defendant contends that the fact Glaze was asked to leave and did not 

immediately do so was a withdrawal of consent to enter and his presence 

then became unlawful and forceful. He again states that when defendant 

was told to leave, he “ripped off his shirt and adopted a fighting stance.” As 

discussed ante, the record citations provided by defendant do not reference “a 

fighting stance.”

Defendant cites to the concurring and dissenting opinion in People v. 

Brown (1992) 6 Cal.App.4th 1489 in support of his contention that “ ‘forcible 

entry’ ” under Penal Code section 198.5 has the same meaning as in Code of 

Civil Procedure section 1159, which provides: “Every person is guilty of a 

forcible entry who either: [¶] (1) By breaking open doors, windows, or other 

parts of a house, or by any kind of violence or circumstance of terror enters 

upon or into any real property. [¶] (2) Who, after entering peaceably upon 

real property, turns out by force, threats, or menacing conduct, the party in 

possession.” (Code Civ. Proc., § 1159, subd. (a); Brown, supra, 6 Cal.App.4th 

at p. 1500 (conc. & dis. opn. of Blease, Acting P. J.).) Even if we assume Code 

of Civil Procedure section 1159’s definition of “forcible entry” applies when

evaluating evidence under Penal Code section 198.5, this does not help 
39

defendant. There is no evidence that Glaze engaged in any violence either to

enter defendant’s home or to force defendant from his home.

Defendant also cites People v. Hardin (2000) 85 Cal.App.4th 625, as an 

example of a case where an intruder did not use physical force to enter but 

instead ran past a 79-year-old woman who was standing on her porch and 

then “burst into her house . . . .” (Id. at p. 634.) When police arrived, the 

defendant threatened to kill the woman and hit her on the head with a 

hammer. (Id. at p. 627.) The Court of Appeal stated, “When defendant burst 

into her house, [the victim] would be presumptively justified in fearing that 

the unlawful entry entailed a threat to her life and safety,” and under section 

198.5, her use of force would be presumptively reasonable. (Id. at p. 634.) 

Notably, the defendant in Hardin admitted his entry into the victim’s home 

was “forcible,” although he argued it was “ ‘a mere trespass . . . .’ ” (Id. at p. 

632.) Thus, Hardin does not support defendant’s position. Further, it is 

distinguishable because here Glaze did not “burst into” defendant’s home as 

in Hardin. (Id. at p. 634.) Instead, he knocked on the door and entered 

consensually. (People v. Wilson (2021) 67 Cal.App.5th 819, 829–830 [“an 

unlawful and forcible entry into a residence is a predicate to application of 

the [§ 198.5] presumption” (italics omitted)].)

Viewing the evidence in the light most favorable to the defendant, the 

record shows that Glaze consensually entered defendant’s home and did not 

immediately leave after defendant, suspecting Glaze was trying to set him up 

for a robbery, became angry and told Glaze to leave. The section 198.5 

presumption does not apply under these circumstances. The trial court had 

no sua sponte obligation to instruct with CALCRIM No. 3477.
40

IV. There was no prosecutorial misconduct.

During closing argument, the prosecutor argued against the defense 

theory that Glaze came to rob defendant’s family. Defendant contends the 

argument was reversible prosecutorial misconduct because the prosecutor 

had successfully moved to exclude Glaze’s social media message that he was 

“jackin’ people . . . .” Defendant also argues the prosecutor improperly 

appealed to the jury’s passions and sympathy when he argued that Sergeant

Donahue was afraid of defendant. Defendant made no objection at trial to 

the portions of the closing argument which he now contends constituted 

prejudicial misconduct; thus, he has forfeited his claim. (People v. Peterson 

(2020) 10 Cal.5th 409, 464–465.) However, even if defendant had properly 

preserved his claim, we would find no prosecutorial misconduct.

A. Additional Facts

During closing argument, the prosecutor argued: “So a question in this 

case—even though it’s not a defense, all those instructions that were read to 

you, none of them talk about justifiable homicide. None of them talk about 

self-defense because there’s no evidence of that. [¶] But one question in this 

case is did the defendant make a mistake about Bo? Was Bo there to stay the 

night or to steal? So we know Bo shows up in the rain with a bicycle with no 

shoes, no socks, and some machine that, apparently, he’s wanting to sell. 

[¶] So if you think about that, how does it make sense that he’s there to steal? 

He’s got a bunch of junk that he’s bringing to a house that he has been 

staying at. You know, what are you going to do? You’re going to go in and 

steal something on your bike, steal something, leave this machine? You don’t 

even have on shoes or socks. It doesn’t make for a very good get-away.” The 

prosecutor reminded the jury that “Bo was a homeless man” and that Bo
41

“denied any wrongdoing.” He stated that although he did not have to prove 

Glaze innocent or guilty, “what you have is a pretty weak case against Bo.”

Regarding Sergeant Donahue, the prosecutor argued, “You even had an 

officer get up here and testify, Officer [Sergeant] Donahue, about how he was 

afraid of the defendant back then. If an officer would be afraid of the 

defendant, shouldn’t everybody have been afraid of the defendant?”

B. Analysis

Relying on People v. Varona (1983) 143 Cal.App.3d 566 and People v. 

Daggett (1990) 225 Cal.App.3d 751, defendant argues the prosecutor unfairly 

took advantage of the exclusion of Glaze’s social media message, which 

defendant claims “would have convincingly established that he did indeed 

ride around on his bike to commit robberies.” We disagree. Unlike in Varona 

and Daggett, here there was no “ ‘erroneous evidentiary ruling[] on which the 

prosecutor improperly capitalized during his closing argument.’ ” (See 

Peterson, supra, at pp. 465–466 [distinguishing Varona and Daggett on the 

grounds that they involved erroneous evidentiary rulings and finding no 

misconduct where prosecutor argued in closing there was no evidence to 

support a proposition after trial court properly excluded evidence defense 

sought to introduce].) We found ante that the trial court did not err in 

excluding Glaze’s message. Further, the prosecutor was permitted to 

question defendant’s version of events during closing. (People v. Williams 

(1997) 16 Cal.4th 153, 221 [“ ‘ “It is settled that a prosecutor is given wide 

latitude during argument. The argument may be vigorous as long as it 

amounts to fair comment on the evidence, which can include reasonable 

inferences, or deductions to be drawn therefrom” ’ ”].) The prosecutor’s 

argument questioning the likelihood that Glaze went to defendant’s home to 
42

rob his family properly referred to facts in the record and was not 

misconduct.

Nor did the prosecutor’s references to Sergeant Donahue’s statements 

improperly appeal to the sympathy or passions of the jury. The prosecutor 

argued that Donahue was afraid of defendant when he encountered him high 

on methamphetamine around the time of the murder. The prosecutor’s 

purpose in referencing Donahue’s testimony appears to have been to question 

defendant’s story that Glaze went to rob defendant’s family. We find the 

prosecutor’s argument falls within the wide latitude afforded during closing 

argument. (People v. Williams, supra, 16 Cal.4th at p. 221.)

Because we find no misconduct, it is not necessary to reach defendant’s 

argument that his counsel was constitutionally ineffective for failing to object 

during closing argument.

V. Cumulative Error

Defendant argues the multiple alleged errors had a cumulative 

prejudicial effect. As discussed ante, defendant has not established any 

prejudicial errors. Accordingly, individually and cumulatively, there was no 

reversible error.

DISPOSITION

The judgment is affirmed.
43

_________________________

Jackson, P. J.

WE CONCUR:

_________________________

Simons, J.

_________________________

Langhorne, J.*

A161290/People v. Michael Clarence Loftin

* Judge of the Superior Court of Napa County, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.