People v. Bomar CA3 ( 2024 )

Filed 10/16/24 P. v. Bomar CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE, C099412
Plaintiff and Respondent, (Super. Ct. No.
P18CRF01131)
v.
CODY LEWIS BOMAR,
Defendant and Appellant.
Defendant Cody Lewis Bomar and his brother, Chase Bomar, stabbed a man to
death.1 Cody now appeals his resulting conviction for second degree murder. He raises
seven arguments: (1) the trial court should not have instructed the jury on aiding and
abetting a murder with express malice, (2) the court incorrectly instructed the jury on
aiding and abetting a murder with implied malice, (3) the court’s instructions improperly
1 Because they share the same last name, we refer to Cody and his brother, Chase, by
their first names for clarity. No disrespect is intended.
1
allowed the jury to find him guilty of murder based on the natural and probable
consequences doctrine, (4) the court wrongly failed to instruct on self-defense, (5) the
court wrongly failed to instruct on defense of property, (6) the court included inapplicable
language in one jury instruction, and (7) the court wrongly excluded evidence about one
witness’s prior misconduct. Finding no reversible error, we affirm.
BACKGROUND
The charges in this case stem from the killing of Jeremy Fortuin. Fortuin formerly
lived in a house with, among others, Cody, Cody’s girlfriend (Haley Redmond), and
Redmond’s parents: Johnny Ring and Tanya Jones. Everyone moved out after the house
was “red-tagged,” that is, after local authorities deemed the house unfit to inhabit.
Sometime after, Fortuin returned to the house and assaulted Cody and Chase. The
brothers spoke to officers following the assault. In their telling, they went to the red-
tagged house to remove their property. While the brothers were still in their car, at least
five men, including Fortuin, came over carrying pipes or bats. The brothers heard some
noises shortly after, leading them to believe that Fortuin and the others had broken into
the house. When the brothers confronted Fortuin, he accused them of stealing his
generator and swung a pipe. He ultimately struck both brothers in the forearm, hitting
Chase hard enough to leave a dent.
Around the same day, Fortuin attempted to strike Jones too, according to Ring and
Jones. Ring and Jones went to a house where Fortuin stored his possessions, believing
they might find Ring’s son’s stolen bike there. Not finding the bike, Jones decided to
take Fortuin’s TV. But before she could leave with it, Fortuin appeared. In Ring’s and
Jones’s telling, he grabbed her from behind and then swung his arms at her like a
windmill. But before Fortuin struck anyone, Jones hit him three times with a golf club
and Ring hit him with a pipe.
2
About five weeks after these events, Cody, Chase, Ring, Jones, and Redmond
returned to the red-tagged house to remove Ring’s and Jones’s property. Fortuin was at a
nearby house at the time visiting a woman he dated, Sabrina Roesner. After a friend
called Fortuin saying he needed a car battery, Fortuin told Roesner he had a car with a
battery at the red-tagged house. So they walked together to the red-tagged house to
collect the battery for the friend.
On reaching the red-tagged house, Fortuin started walking up the house’s
driveway. Both Ring and Jones saw Fortuin approach and believed he carried a stick.
Jones said she saw Fortuin holding a stick up his sleeve, and Ring said he saw Fortuin
holding a 26-inch stick that he put up his sleeve. Roesner, on the other hand, said he
carried no stick or other weapon. Stick or no stick, all three witnesses at least agreed that
they never saw Fortuin pull out any stick from his sleeve or anywhere else. All witnesses
also agreed that he never reached the house. Shortly after reaching the driveway, he
turned around and started walking away, saying, “I don’t want any problems.”
Cody and Chase, both armed with knives, then gave chase. Roesner, Ring, and a
driver passing through described what followed. According to Roesner, both brothers
carried knives. One of the brothers stabbed Fortuin in his side in the street while Fortuin
backpedaled away. Fortuin then stumbled across the road to a truck, covering his head
with his arms. The brothers followed and both repeatedly stabbed him.
Ring also saw both brothers carrying weapons, with Cody carrying a knife and
Chase carrying something long and pointy, though he generally said the events were a
blur. Cody swung at (but missed) Fortuin’s chin while Fortuin walked toward him in a
manner suggesting he would “plow right over” him. But after accusing the brothers of
trying to stab him, Fortuin fled about 100 yards away to the other side of the street.
Chase caught up to Fortuin near a truck and stabbed him in the side. Cody caught up
afterward. At some point, Fortuin swung trying to protect himself. In Ring’s count,
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Chase stabbed Fortuin two or three times and Cody swung at Fortuin about four times
with a knife—though he did not know whether Cody ever connected.
A driver passing through with his son also saw Cody and Chase attack Fortuin,
though he saw no weapons. Both brothers swung punches at Fortuin. Fortuin
backpedaled and repeatedly said, “No. Don’t. Stop.” But the brothers continued to
attack him. Fortuin tried to defend himself, “thrust kicked” one of the brothers, and tried
to get away. The driver, becoming concerned for his son’s safety, drove away as the
fight continued.
Officers arrived shortly after, finding Fortuin dead with multiple stab wounds.
They never found the stick that Fortuin allegedly held. But they later found two knives
associated with the attack on Fortuin: Cody’s Swiss Army knife with three blades, each
measuring (or just shy of) two and one-half inches long, and Chase’s knife with a blade
measuring four to five inches long. A criminalist examined both knives for DNA. For
Chase’s knife, he found Fortuin’s blood on the knife’s blade and DNA from multiple
people on the knife’s handle. He found it far more likely than not that Chase contributed
some of this DNA. For Cody’s knife, he found DNA for two different people, with very
strong support for inclusion of Cody, moderate support for inclusion of Fortuin, and very
strong support for exclusion of Chase. Expanding on the phrase “moderate support,” he
said it is 450 times more likely that Fortuin contributed DNA than that he did not
contribute DNA.
A forensic pathologist examined Fortuin and found he suffered 12 stab wounds.
After considering Cody’s knife and Chase’s knife, she found three stab wounds were
more consistent with Cody’s knife, including one that entered the chest, one in the back
4
of the left shoulder, and another in an arm.2 She also found four stab wounds were more
consistent with Chase’s knife, including three that entered through the left arm and one
that entered through the upper back and penetrated the left lung and heart. She further
said that the remaining stab wounds could have been caused by either knife, including
one that touched the heart’s surface and two others that penetrated three inches into the
chest and stomach. She acknowledged that some of these wounds went deeper than the
length of Cody’s knife. But she explained that a wound’s depth can exceed a blade’s
length when the knife is thrust into the body. She believed that Fortuin died of multiple
stab wounds and that each wound could have contributed to his death.
A day after Fortuin’s death, officers found Cody and Chase in Nevada. Cody
initially told officers he was in Nevada at the time of Fortuin’s death. But he ultimately
admitted he was at the red-tagged house, described his history with Fortuin, and
discussed the stabbing. He said that about a month before, Fortuin and several others
beat up him and Chase, bashed the windows on his two cars, and stole his tires. He then
talked about the day of Fortuin’s death. He said he saw Fortuin walking away from the
red-tagged house, with one of his arms appearing stiff as if he had something up his
sleeve. He ran after Fortuin, punched him, and then tried to stab him with the Swiss
Army knife, but the knife closed on Cody’s thumb. Fortuin yelled for him to stop, said
that “[y]ou’re killing me,” backed away, and tried to punch back or kick him away. But
Cody continued hitting Fortuin, stopping only after he saw Fortuin’s knife wounds and
“knew he was done.” Explaining his actions, Cody said “something specifically about
wanting to get back at [Fortuin] for what he did to him the month prior” and about not
“let[ting] that happen again.” He added that Fortuin never pulled out any weapon and
2 For the wound to the back of the left shoulder, she initially said she could not reach an
opinion as to which knife caused it. But she later said this wound was more consistent
with Cody’s knife.
5
that although he tried to stab Fortuin, he was unsure whether he ever connected. He told
Redmond, though, that both he and Chase stabbed Fortuin.
Cody and Chase afterward talked about Fortuin’s death at a sheriff’s office in
Nevada. They talked in a room that had an audio and video recorder. Cody told Chase,
“[T]hey’ve figured us out.” Chase said, “You didn’t do anything.” But Cody replied, “I
did. I mean, I had the knife too” and “whether I got [him] or not, I mean, I tried to.” He
also said, “I told them he got stabbed and why we did it,” adding that “it’s a way of self-
defense, just a month late.”
Cody and Chase were both later charged with first degree premeditated murder
(Pen. Code, §§ 187, subd. (a), 189, subd. (a)) committed with a deadly weapon (id.,
§ 12022, subd. (b)(1)). The jury found neither Cody nor Chase guilty of first degree
murder. But it found both guilty of second degree murder and, for each brother, found
true the allegation that he used a deadly weapon. The trial court sentenced both Cody
and Chase to 15 years to life for the murder plus a consecutive year for the use of a
deadly weapon. Cody filed a timely notice of appeal in September 2023. His opening
brief was filed in March 2024, and this case became fully briefed on July 16, 2024.
DISCUSSION
I
Aiding and Abetting with Express Malice
On appeal, Cody principally challenges the trial court’s jury instructions. He first
asserts that under the court’s instructions, the jury could have found him guilty of second
degree murder based on a theory—aiding and abetting a murder with express malice—
that lacked evidentiary support. He notes that to find him guilty under this theory, the
jury needed to find that he intended to kill. But he contends insufficient evidence
supports a finding that he had this intent. We disagree.
We start with some background legal principles. Outside of felony murder, all
principals in a murder—including any aider and abettor—must act with malice
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aforethought to be convicted of murder. (Pen. Code, §§ 31, 188, subd. (a)(3), 189, subd.
(e).) An aider and abettor can be shown to have the requisite malice aforethought either
under a theory of express malice or implied malice. To be liable under a theory of
express malice, courts have said that an aider and abettor must aid in the commission of
the murder “ ‘with “knowledge of the direct perpetrator’s unlawful intent and [with] an
intent to assist in achieving those unlawful ends.” ’ ” (People v. Curiel (2023) 15 Cal.5th
433, 463.) To be liable under a theory of implied malice, on the other hand, “an aider and
abettor must aid in the commission of a life-endangering act, with ‘ “knowledge that the
perpetrator intended to commit the act, intent to aid the perpetrator in the commission of
the act, knowledge that the act is dangerous to human life, and acting in conscious
disregard for human life.” ’ ” (Ibid.) The former theory (involving express malice)
requires an intent to kill, but the latter (involving implied malice) does not. (See Pen.
Code, § 188, subd. (a) [defining express and implied malice].)
In this case, we accept Cody’s characterization of the jury instructions: They
allowed the jury to find him guilty on the theory that he aided and abetted the murder
with express malice—that is, with the intent to kill. But we reject his claim that the
evidence was insufficient to show that he had an intent to kill. Or to put it another way,
we conclude that the record contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—that would allow a rational juror to find that he
had the intent to kill. (People v. Navarro (2021) 12 Cal.5th 285, 302.)
Per the evidence, Cody and Chase together chased Fortuin and repeatedly stabbed
him in his upper body. Cody admitted that he at least “tried to” stab him. And a forensic
pathologist testified that of Fortuin’s 12 stab wounds, three were more consistent with
Cody’s knife, including one that entered the chest cavity and could have led to lung
collapse. She also said that these wounds could have contributed to Fortuin’s death and
that Cody’s knife could have inflicted several more of Fortuin’s wounds too. Setting
aside whether Cody’s actions in fact contributed to Fortuin’s death, it is significant that
7
Cody repeatedly attempted to stab Fortuin. Such intentional and repeated actions in and
of themselves constitute substantial evidence of an intent to kill and considering this
record, we conclude that a rational juror could find that Cody had the intent to kill. (See
People v. Avila (2009) 46 Cal.4th 680, 701-702 [evidence that defendant “repeatedly
attempted to stab [the victim], an unarmed and trapped victim, and succeeded in stabbing
him in the arm and leg” was “alone . . . substantial evidence of defendant’s intent to
kill”].)
Pushing for a contrary conclusion, Cody argues that his knife—which he vaguely
characterizes as “short”—“was not reasonably likely to penetrate the victim’s multiple
layers of clothing, especially to penetrate deeply enough to inflict a fatal injury.” But
while true that Fortuin wore multiple layers of clothing, the forensic pathologist’s
testimony supported the finding that Cody’s knife still caused several of Fortuin’s
wounds. Again, she found three wounds—including one to Fortuin’s chest that could
have led to lung collapse—were more consistent with Cody’s knife. That could suggest
that Cody’s knife did in fact penetrate Fortuin’s multiple layers of clothing, including his
T-shirt, flannel shirt, and jacket. Or it could suggest that Cody’s knife struck more
exposed areas—perhaps striking an area covered only by the T-shirt. Either way, we
reject Cody’s claim that his knife was too short to allow a finding of intent to kill.
II
Aiding and Abetting with Implied Malice
Raising a related challenge, Cody asserts that the trial court improperly instructed
the jury on aiding and abetting a murder with implied malice. He raises three arguments
on this topic, none of which we find persuasive.
First, Cody argues that the trial court should not have instructed the jury on aiding
and abetting a murder with implied malice because Chase acted with express rather than
implied malice. His argument comes in two parts. Citing no law, he first asserts that “to
be convicted of implied malice murder as an aider and abettor to Chase, it must be shown
8
that Chase committed implied malice murder and that Cody aided and abetted that
murder.” Then, citing no facts, he suggests that as a matter of law, the jury here could
not have found that Chase acted with implied malice; it could only find that he acted with
express malice. Neither point is accurate.
Starting with the law, Cody wrongly believes that for an aider and abettor to be
liable under a theory of implied malice, both the perpetrator and the aider and abettor
must have acted with implied malice. No case, as far as we have found, says that the
perpetrator and the aider and abettor of a murder must demonstrate malice aforethought
in the same way, whether expressly or impliedly. Governing case law instead explains
that “an aider and abettor’s mental state must be at least that required of the direct
perpetrator” (People v. McCoy (2001) 25 Cal.4th 1111, 1118)—which in this case, is
malice aforethought. So even if the jury believed that Chase acted with express malice,
that would not preclude it from finding Cody guilty on the theory that he aided and
abetted the murder with implied malice. (Ibid.)
Turning to the facts, Cody wrongly suggests that as a matter of law, the jury had to
find that Chase acted with express malice rather than implied malice. The jury, to be
sure, could have found that Chase had an unlawful intent to kill and so acted with express
malice. The evidence, after all, allowed the jury to find that Chase chased Fortuin and
then stabbed him at least four times with a large knife. Those types of facts can, as
covered already, support a finding of express malice. (See People v. Avila, supra, 46
Cal.4th at pp. 701-702.) But they can also support a finding of implied malice. They can
support, that is, a finding that Chase committed “ ‘an act, the natural consequences of
which are dangerous to life,’ ” and “ ‘kn[ew] that his conduct endanger[ed] the life of
another and . . . act[ed] with conscious disregard for life.’ ” (People v. Soto (2018) 4
Cal.5th 968, 974; People v. Torres (1963) 214 Cal.App.2d 734, 739 [defendant’s stabbing
a victim several times “justifie[d] an inference of implied malice”].)
9
Second, Cody argues that the trial court should not have instructed the jury on
aiding and abetting a murder with implied malice because “there was no evidence that the
defendants conspired or jointly intended to commit a life-endangering act.” But we fail
to understand his point about the lack of evidence of a conspiracy. No one is alleging
that he and Chase conspired to kill or harm anyone. Nor is that required for an aiding and
abetting conviction. We also reject his claim about the lack of evidence showing that he
and Chase intended to commit a life-endangering act. Again, the evidence supports a
finding that the brothers together charged Fortuin and then repeatedly stabbed him. On
this record, the jury could have found that both brothers knew their conduct endangered
Fortuin’s life. (People v. Landry (2016) 2 Cal.5th 52, 97 [“an assault with a knife may
reflect implied malice”].)
Third, Cody argues that the trial court’s jury instruction “improperly refers to the
perpetrator’s commission of ‘the crime,’ not, as it should, to ‘the life-endangering act.’ ”
Understanding his argument requires a little context. The jury instructions here told the
jury that Cody would be guilty of aiding and abetting if: (1) “The perpetrator committed
the crime,” (2) “[t]he defendant, Cody Bomar, knew that the perpetrator intended to
commit the crime,” (3) “[b]efore or during the commission of the crime, the defendant,
Cody Bomar, intended to aid and abet the perpetrator in committing the crime,” and (4)
“[t]he defendant’s . . . words or conduct did in fact aid and abet the perpetrator’s
commission of the crime.”
Our court has previously found that an instruction along these lines is “not tailored
for th[e] theory” of aiding and abetting a murder with implied malice. (People v. Powell
(2021) 63 Cal.App.5th 689, 714.) We reasoned that “the aider and abettor of implied
malice murder need not intend the commission of the crime of murder. Rather, relative
to the aider and abettor’s intent, he or she need only intend the commission of the
perpetrator’s act, the natural and probable consequences of which are dangerous to
human life, intentionally aid in the commission of that act and do so with conscious
10
disregard for human life.” (Ibid.) All this suggests, as Cody argues, that when a trial
court seeks to instruct the jury on aiding and abetting a murder with implied malice, it
should refer to “the life-endangering act” rather than “the crime.”
We are not certain, however, that the trial court here even instructed the jury on
aiding and abetting with implied malice. Under the instructions, again, the jury had to
find, among other things, that Cody aided Chase (1) knowing Chase “intended to commit
the crime” (i.e., the murder) and (2) intending to aid Chase “in committing the crime”
(i.e., the murder). Or to put it another way with context, the jury had to find, among other
things, that Cody aided Chase (1) knowing Chase intended to kill Fortuin and
(2) intending to aid Chase in killing Fortuin. This suggests (if not outright shows) that
the jury had to find that Cody acted with an intent to kill—that is, express malice—and
not merely implied malice. After all, if an aider and abettor “ ‘give[s] aid or
encouragement with knowledge of the direct perpetrator’s intent to kill and with the
purpose of facilitating the direct perpetrator’s accomplishment of the intended killing,’ ”
that means the aider and abettor “ ‘must intend to kill.’ ” (People v. Nguyen (2015) 61
Cal.4th 1015, 1054 [discussing aiding and abetting an attempted murder].)
But even assuming the trial court instructed the jury on aiding and abetting with
implied malice, we are not persuaded that the reference to “the crime” rather than “the
life-endangering act” was prejudicial. Our court has previously reviewed this type of
alleged error under Chapman v. California (1967) 386 U.S. 18—which requires reversal
unless the error was harmless beyond a reasonable doubt. (People v. Powell, supra, 63
Cal.App.5th at p. 714.) Applying this standard here, we find the alleged instructional
defect harmless, for at most, this alleged defect only made it harder for the jury to find
Cody guilty.
Comparing Cody’s preferred instruction to the given instruction demonstrates as
much. Under Cody’s preferred instruction, the jury should have been required to find
that he knew Chase intended to commit a life-endangering act—not that he knew Chase
11intended to commit murder. And under Cody’s preferred instruction, the jury should
have been required to find that he intentionally aided Chase in committing the life-
endangering act with conscious disregard for human life—not that he intentionally aided
Chase in committing the murder. But compared to Cody’s desired instructions, the
instructions given only made it “more difficult for the prosecution to establish [Cody’s]
culpability for murder.” (People v. Butler (2009) 46 Cal.4th 847, 871.) It would have
been far easier, for instance, for the jury to find that Cody knew Chase intended to
commit a life-endangering act, than to find that Cody knew Chase intended to commit a
life-ending act, that is, a murder. Under these circumstances, we find the alleged
instructional defect harmless beyond a reasonable doubt.
III
Natural and Probable Consequences Doctrine
Cody next claims the jury instructions allowed the jury to find him guilty based on
a defunct legal theory—the natural and probable consequences doctrine. We disagree.
Courts have historically said “that an aider and abettor’s liability for criminal
conduct is of two kinds. First, an aider and abettor with the necessary mental state is
guilty of the intended crime. Second, under the natural and probable consequences
doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any
other offense that was a “natural and probable consequence” of the crime aided and
abetted.’ ” (People v. McCoy, supra, 25 Cal.4th at p. 1118.) Our discussion so far has
made no mention of this latter theory. And there is a simple reason for that: It has not
been a valid theory for years. With Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437), the Legislature eliminated this theory starting in 2019. (Stats. 2018, ch. 1015,
§ 2; People v. Reyes (2023) 14 Cal.5th 981, 990.) So no longer can a defendant be
convicted for an unintended offense under the natural and probable consequences
doctrine.
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Claiming the trial court here defied this change in the law, Cody asserts that the
trial court wrongly instructed the jury using CALCRIM No. 520—which Cody labels as
the instruction on the natural and probable consequences doctrine. He is wrong.
CALCRIM Nos. 402 and 403 are the standard jury instructions on the natural and
probable consequences doctrine. CALCRIM No. 520, on the other hand, is the
instruction on murder with malice aforethought. It uses the words “natural and probable
consequences.” But in doing so, it is not describing the natural and probable
consequences doctrine—which allowed fact finders to impute malice to a defendant. It is
instead explaining implied malice. It explains that malice is implied when a defendant
intentionally commits an act, the “natural and probable consequences” of this act were
dangerous to human life, the defendant knew this act was dangerous to human life when
committing the act, and the defendant deliberately acted with conscious disregard for that
danger. That definition of implied malice—which is distinct from the natural and
probable consequences doctrine—remains valid today. (See People v. Reyes, supra, 14
Cal.5th at p. 988.) Nothing in Senate Bill 1437 touched this definition, as courts have
already explained. (People v. Soto (2020) 51 Cal.App.5th 1043, 1057 [“Senate Bill No.
1437 changed the circumstances under which a person could be convicted of murder
without a showing of malice, but it did not exclude from liability persons convicted of
murder for acting with implied malice”].)
IV
Defenses
Next, Cody contends the trial court violated its sua sponte duty to instruct on two
defenses. “ ‘In criminal cases, even in the absence of a request, a trial court must instruct
on general principles of law relevant to the issues raised by the evidence and necessary
for the jury’s understanding of the case.’ ” (People v. Anderson (2011) 51 Cal.4th 989,
996.) “That duty extends to ‘ “instructions on the defendant’s theory of the case,
including instructions ‘as to defenses “ ‘that the defendant is relying on . . . , or if there is
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substantial evidence supportive of such a defense and the defense is not inconsistent with
the defendant’s theory of the case.’ ” ’ ” ’ ” (Ibid.) Here, Cody’s argument concerns two
potential defenses: self-defense and defense of property. He makes no claim that he
raised either defense at the trial level. He argues instead that substantial evidence
supported these defenses, triggering the need for instruction.
A. Self-Defense
Starting with self-defense, Cody asserts that substantial evidence supported
instructing the jury on self-defense using CALCRIM No. 505. He adds that the
prosecution should have had the burden to show the absence of self-defense. (See Pen.
Code, § 189.5, subd. (a) [a defendant charged with murder generally has the burden of
establishing self-defense, but not when “the proof on the part of the prosecution tends to
show” the defendant acted in self-defense].) We disagree, finding insufficient evidence
in the record to support this instruction.
CALCRIM No. 505 describes justifiable homicide in self-defense or defense of
another, and it derives largely from Penal Code section 197. It applies when a defendant
reasonably believes that killing is necessary to avert an imminent threat of death or great
bodily injury. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [discussing the
elements for killing in self-defense].) Arguing the evidence supported instruction under
CALCRIM No. 505, Cody states that Fortuin was a good fighter, around six feet two
inches tall, and about five weeks before the stabbing, he swung his arms like a windmill
at Jones when she tried to take his television, forced entry into the red-tagged house, and
hit both brothers on the arm with a bat or a pipe while accusing them of stealing a
generator. Cody adds that according to some witnesses, Fortuin held (or might have
held) a stick up his sleeve at the time of the stabbing. Cody told an officer, for instance,
that Fortuin’s arm appeared stiff as if he had something up his sleeve—though Cody
added that Fortuin never pulled out any stick or weapon.
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But Cody’s cited evidence, standing alone, is not substantial evidence showing he
reasonably believed killing Fortuin was necessary to avert an imminent threat of death or
great bodily injury. Cody might have had a bad history with Fortuin, including having
suffered a prior assault with a weapon. But that did not give him the right to charge and
kill Fortuin simply because Fortuin appeared to have something, perhaps a stick, up his
sleeve. (See People v. Humphrey, supra, 13 Cal.4th at p. 1082 [to kill in self-defense, a
defendant must actually and reasonably fear “ ‘imminent danger to life or great bodily
injury’ ”].)
Cody also ignores evidence about the context of the stabbing. According to the
record, Fortuin (together with Roesner) walked toward the red-tagged house shortly
before the stabbing. Cody, Chase, Ring, Jones, and Redmond were at the house at the
time. Two testifying witnesses—Ring and Roesner—saw the moments before Cody and
Chase attacked Fortuin. And both testified that the brothers attacked Fortuin only after
Fortuin turned around and began walking away. Roesner testified that before the attack,
Fortuin turned around and began walking away, saying, “I don’t want any problems.”
Ring, similarly, testified that when the brothers “t[ook] off after [Fortuin], Mr. Fortuin
was walking away from the property.” Even Cody described the events similarly, telling
an officer that he saw Fortuin walking away, ran after him, and then attacked him. On
this record, no rational juror could find that Cody justifiably killed Fortuin in self-
defense. (See People v. De Leon (1992) 10 Cal.App.4th 815, 825 [no substantial
evidence showed the defendant honestly believed he was in imminent peril when he had
“fir[ed] at men who had turned and started to walk away”].)
Nor can we find differently simply because Fortuin attempted to defend himself
after Cody and Chase initiated the attack. A few witnesses testified on this topic. One
witness—who was driving by at the time—testified that Fortuin “thrust kicked” one of
the brothers when trying to defend himself and repeatedly pleaded for the brothers to
stop. Ring testified that when Cody initially swung at Fortuin, Fortuin walked toward
15
Cody in a manner suggesting he would “plow right over” Cody—but Fortuin then tried to
get away after accusing the brothers of trying to stab him. Ring added that at some point,
Fortuin swung trying to protect himself. And an officer testified that according to Cody,
Fortuin tried to punch back or kick him away in defense. But none of Fortuin’s limited
efforts to defend himself against the two armed brothers could be said to have given the
brothers a right to kill. (See In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 [self-
defense “may not be invoked by a defendant who, through his own wrongful conduct
(e.g., the initiation of a physical assault or the commission of a felony), has created
circumstances under which his adversary’s attack or pursuit is legally justified”].)3
B. Defense of Property
Turning to defense of property, Cody contends substantial evidence supported
instructing the jury on defense of property using CALCRIM No. 3476. We reject this
argument too.
CALCRIM No. 3476 describes the right to defend property and, according to its
accompanying Bench Notes, derives from Civil Code section 50. It explains that an
owner of property “may use reasonable force to protect that property from imminent
harm.” This instruction is consistent with Civil Code section 50, which, relevant here,
says: “Any necessary force may be used to protect from wrongful injury the . . . property
of oneself.” The instruction is also consistent with case law construing this statute, which
explains that the threatened harm must be imminent. (Calvillo-Silva v. Home Grocery
(1998) 19 Cal.4th 714, 730 [“The right to use force against another has long been limited
by the condition that the force be no more than ‘ “that which reasonably appears
necessary, in view of all the circumstances of the case, to prevent the impending
3 Cody relatedly argues that he received ineffective assistance because his trial counsel
failed to seek instruction on self-defense. But we cannot fault Cody’s trial counsel for
failing to request instruction on a defense that lacked evidentiary support.
16
injury” ’ ”]; People v. Minifie (1996) 13 Cal.4th 1055, 1064 [a threatened wrongful injury
“must be imminent” to trigger the right to defense].)4
Asserting an instruction under CALCRIM No. 3476 was warranted, Cody
contends Fortuin approached the red-tagged house intending to steal a car battery. He
notes that according to Roesner, Fortuin told her he needed a car battery for a friend, said
he had a car with a battery at the red-tagged house, and they then walked there to collect
the battery. He further notes that according to Ring, Fortuin had no property at the house
at this time. Putting this testimony together, Cody concludes that Fortuin must have been
planning to steal a car battery—presumably, Cody says, the battery from his Saturn that
was parked at the house—and therefore he and Chase were justified in displaying their
knives and trying to punch Fortuin.
Continuing his argument, Cody acknowledges that an attempted theft would not
justify the use of deadly force. (See People v. Ceballos (1974) 12 Cal.3d 470, 483.) But
he contends that once Fortuin tried to defend himself, the brothers were now justified in
using deadly force. He reasons that Fortuin had superior size and strength and, even if
unarmed, posed a threat of great bodily injury against the two knife-wielding brothers.
He also cites the jury instruction on self-defense in mutual combat, CALCRIM No. 3471.
That instruction explains, among other things, that if a defendant uses only non-deadly
force against an opponent and the opponent responds suddenly with deadly force, then
4 Several Penal Code statutes also touch on defense of property, though they are not
mentioned in the Bench Notes accompanying CALCRIM No. 3476. (See Pen. Code, §§
197, subd. 2 [homicide is justifiable “[w]hen committed in defense of habitation,
property, or person, against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends and endeavors, in a
violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose
of offering violence to any person therein”], 693, subd. 2 [“Resistance sufficient to
prevent the offense may be made by the party about to be injured: [¶] 2. To prevent an
illegal attempt by force to take or injure property in his lawful possession”].)
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the defendant can defend with deadly force without first attempting to withdraw. (See
People v. Crandell (1988) 46 Cal.3d 833, 871-872.)
But Cody’s cited evidence, in itself, is not substantial evidence showing that force
was necessary to prevent the imminent theft of his car battery. To start, Cody has not
identified any property of his own that he sought to protect. He mentions a Saturn parked
at the house and says Fortuin presumably intended to steal the Saturn’s battery. But
according to the record, Ring, not Cody, owned the Saturn. And Civil Code section 50
would not necessarily allow Cody to use force to defend Ring’s property. That is because
the statute does not broadly grant a person authority to defend the property of all others.
It instead grants only a limited right to protect the “property of oneself, or of a spouse,
child, parent, or other relative, or member of one’s family, or of a ward, servant, master,
or guest.” (Civ. Code, § 50.) And here, Cody makes no argument that Ring qualified as
one of the persons described under this statute.
Still, we note that according to Ring, Cody had an inoperable car in the garage of
the red-tagged house. So perhaps Cody meant to reference that car, not the Saturn. But
even assuming Fortuin intended to steal this car’s battery (to the extent it had one), and
assuming further the brothers somehow knew of this intent, the brothers still would not
have been justified in their conduct. Nothing in the record suggests that Fortuin was
anywhere near this car. Nor does it suggest that force of any kind was necessary. It
instead shows, again, that before the brothers attacked, Fortuin had turned around and
was walking away from the house. Cody maintains that he and Chase still were justified
in displaying knives and trying to punch Fortuin, describing this as necessary force to
prevent the theft of the car battery. But no rational trier of fact could agree that this
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conduct against a departing figure was necessary to prevent a theft, let alone necessary to
prevent an imminent theft.5
V
Cooling-off Instruction
In the last of his challenges to the jury instructions, Cody contends the trial court
wrongly instructed the jury with inapplicable language. His argument concerns the
instruction on a killing in the heat of passion. An optional paragraph for this instruction
(which the trial court included here) explains that a defendant does not kill in the heat of
passion “[i]f enough time passed between the provocation and the killing for a person of
average disposition to ‘cool off’ . . . .” Cody argues this paragraph should have been
omitted because based on the evidence, the jury could not find that he had time to cool
off. Assuming error, we find no prejudice.
We start with a little background on the law. Murder, again, generally requires a
defendant to act with malice. But a defendant who kills in a heat of passion lacks the
requisite malice for murder, reducing what would otherwise be murder to voluntary
manslaughter. (Pen. Code, § 192, subd. (a); People v. Beltran (2013) 56 Cal.4th 935,
942.) “Heat of passion arises if, ‘ “at the time of the killing, the reason of the accused
was obscured or disturbed by passion to such an extent as would cause the ordinarily
reasonable person of average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment.” ’ ” (Beltran, at p. 942.)
But a defendant cannot claim to have acted in a heat of passion “[i]f sufficient time has
elapsed for one’s passions to ‘cool off’ and for judgment to be restored.” (Id. at p. 951.)
5 Cody relatedly argues that he received ineffective assistance because his trial counsel
failed to seek instruction on defense of property. But again, we cannot fault Cody’s trial
counsel for failing to request instruction on a defense that lacked evidentiary support.
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The trial court’s instructions here tracked the law on heat of passion. The court
explained that a defendant kills in the heat of passion if (1) “[t]he defendant was
provoked,” (2) “[a]s a result of the provocation, the defendant acted rashly and under the
influence of intense emotion that obscured his reasoning or judgment,” and (3) “[t]he
provocation would have caused a person of average disposition to act rashly and without
due deliberation, that is, from passion rather than judgment.” The court also instructed
on cooling off, among other things. It stated: “If enough time passed between the
provocation and the killing for a person of average disposition to ‘cool off’ and regain his
or her clear reasoning and judgment, then the killing is not reduced to voluntary
manslaughter on this basis.”
In this case, the evidence arguably supported two potential theories for the heat-of-
passion instruction. Under one theory, Cody acted in a heat of passion based on Fortuin’s
earlier assault of the brothers. Recall, again, that a little over a month before the killing,
Fortuin hit both brothers in the arm with a pipe, and at the time of the killing, Cody said
he “want[ed] to get back at [Fortuin] for what he did to him the month prior.” That
evidence could support a finding that Fortuin’s prior assault raised Cody’s passions and
that those passions remain raised at the time of the killing. Under another theory, Cody
acted in a heat of passion based on a series of events, including Fortuin’s prior assault of
the brothers and his sudden appearance the day of the killing. A cooling-off instruction
would doubtless be fitting under the first theory. Less so under the second theory.
Both Cody and the People focus exclusively on the second of these theories. Both
presume that to the extent Cody was provoked, he was provoked because of a series of
acts culminating in Fortuin’s sudden appearance on the day the brothers stabbed him.
Both then agree that the cooling-off period must have occurred, if at all, after Fortuin’s
appearance on that day. But they dispute whether he could have cooled off in that time
frame. The People argue he could have. They note that the brothers attacked Fortuin in
two areas on that day: first in the street near the red-tagged house and then about 100
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yards away, after Fortuin managed to flee this short distance before the brothers resumed
their attack. The People argue that Cody had time to cool off before chasing Fortuin over
this distance, reasoning that once Fortuin started fleeing, any potential threat that he may
have posed had dissipated. Cody disagrees, asserting that the brief encounter included no
time to cool off.
For purposes here, we will assume that the cooling-off period must have occurred,
if at all, after Fortuin’s appearance on the day of the killing. We will assume too that
based on the evidence, the jury could not find that Cody cooled off after Fortuin’s
appearance that day. But even with those assumptions, Cody has at most shown that the
trial court gave a correct but inapplicable jury instruction—which is typically not a
ground for reversal. Evaluating these types of errors, our Supreme Court has applied the
standard set forth in People v. Watson (1956) 46 Cal.2d 818, which requires reversal
when it is reasonably probable that the jury would have reached a more favorable
decision to the defendant in the absence of the error. (People v. Debose (2014) 59
Cal.4th 177, 205-206.) Our Supreme Court has also explained that “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.)
Applying these authorities here, we conclude that the trial court’s instructing on a
cooling-off period, even in error, was a harmless technical error. In assuming this
instruction lacked evidentiary support, we are assuming that based on the evidence, no
reasonable juror could find that enough time passed between the provocation and the
killing for a person of average disposition to cool off. (See People v. Leon (2020) 8
Cal.5th 831, 848 [“ ‘A trial court must give a requested instruction only if it is supported
by substantial evidence’ ”]; People v. Barnwell (2007) 41 Cal.4th 1038, 1052 [“A
substantial evidence inquiry examines the record in the light most favorable to the
judgment and upholds it if the record contains reasonable, credible evidence of solid
value upon which a reasonable trier of fact could have relied in reaching the conclusion
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in question”].) But if no reasonable juror could reach this finding based on the evidence,
then it is not reasonably probable that the jury here reached this finding. We presume,
after all, “that the jury has acted reasonably, unless the record indicates otherwise.”
(People v. Guiton (1993) 4 Cal.4th 1116, 1127.)
Cody has given us no reason to conclude otherwise. He argues that apart from the
jury improperly receiving a cooling-off instruction, the prosecution also relied on this
instruction in closing. As he notes, the prosecution stated that the brothers first stabbed
Fortuin in the street and then stabbed him again after Fortuin moved a short distance
away. It then argued: “There was no provocation and there was certainly a cooling off
period by the time they reached the victim in the street and certainly when the mortal
wounds were inflicted. . . .” But we are not even sure that the prosecution argued, as
Cody believes, that Cody had time to cool off after seeing Fortuin the day of the stabbing.
The prosecution argued that the brothers had time to cool off before they initiated the
attack. But time to cool off from when? Time to cool off from the prior assault five
weeks earlier—which would be a fair point? Or time to cool off from Fortuin’s
appearance that day? It is not clear. In any event, even assuming the latter, we are not
persuaded that this limited (and vague) argument demonstrates that the cooling-off
instruction was prejudicial.
VI
Witness Misconduct
Finally, Cody contends the trial court wrongly excluded evidence about Roesner’s
past misconduct—namely, her prior arrests for identity theft. We reject his argument.
“[A] witness may be impeached with any prior conduct involving moral
turpitude,” including a prior theft. (People v. Parker (2022) 13 Cal.5th 1, 55; In re
Honoroff (1975) 15 Cal.3d 755, 758.) But that does not mean that a party can always
question a witness about prior conduct involving moral turpitude. Under Evidence Code
section 352, “trial courts possess broad latitude to exclude examination concerning a
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witness’s prior [conduct] if it finds the prejudicial impact substantially outweighs its
probative value.” (Parker, at p. 55.) “When determining whether to admit a prior
conviction for impeachment purposes, the court should consider, among other factors,
whether it reflects on the witness’s honesty or veracity[] [and] whether it is near or
remote in time . . . .” (People v. Clark (2011) 52 Cal.4th 856, 931.) “Additional
considerations apply when the proffered impeachment evidence is misconduct other than
a prior conviction. This is because such misconduct generally is less probative of
immoral character or dishonesty and may involve problems involving proof, unfair
surprise, and the evaluation of moral turpitude.” (Id. at pp. 931-932.)
In this case, the trial court allowed Cody to impeach Roesner with a 2017 arrest
for first degree burglary, a 2021 arrest for possessing narcotics while armed with a
firearm, and a 2021 arrest for bringing narcotics into jail. It also allowed Cody to
impeach her with a 2018 conviction for unlawfully taking or driving a car and also an
arrest later that year for unlawfully taking or driving a car. But the court added that
before the arrest could be used for impeachment, the parties would need to verify that the
arrest and the conviction involved separate conduct. Finally, the court allowed Cody to
impeach Roesner with a 2012 misdemeanor conviction for identity theft under Penal
Code section 530.5. But the court ruled that Cody could not impeach Roesner with her
arrests in 2011 and 2012 for identity theft. It reasoned that these arrests related to the
same conduct that resulted in the 2012 conviction and so were less compelling, were too
prejudicial, and would unduly consume time if allowed in.
On the limited record before us, we cannot say that the trial court abused its
discretion in excluding these arrests for identity theft. (See People v. Parker, supra,
13 Cal.5th at p. 55 [noting trial court’s “broad latitude” to prevent examination on a
witness’s prior conduct].) Cody argues otherwise. But he never acknowledges the trial
court’s finding that both arrests related to the same conduct that resulted in her 2012
conviction for identity theft—which the court allowed in. And while he claims that these
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two arrests showed that Roesner committed two distinct acts of identity theft, he cites
nothing to show that to be true. Having no reason to question the trial court’s finding that
these two arrests concerned only one act of identity theft—the same one act of identity
theft covered in the 2012 conviction—we cannot say that the trial court erred in allowing
Cody to question Roesner only about her conviction.
DISPOSITION
The judgment is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
EARL, P. J.
/s/
WISEMAN, J.
 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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