Filed 9/2/26 P. v. Thomas CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A173261
v.
JAMAL THOMAS, (Alameda County
Super. Ct. No. 20CR011597)
Defendant and Appellant.
In re JAMAL THOMAS,
A176048
on Habeas Corpus.
After a jury convicted defendant Jamal Thomas of murder (Pen. Code, 1
§ 187, subd. (a)) and other crimes, the trial court sentenced him to three
years and eight months in state prison, followed by 25 years to life.
Defendant appeals. His appointed counsel filed a brief raising no issues and
asking us to independently review the record for any arguable issues
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel advised
defendant of his right to file a supplemental brief on his own behalf, and
defendant has done so. Defendant also filed a petition for a writ of habeas
1 Undesignated statutory references that follow are to the Penal Code.
1
corpus, which we ordered considered concurrently with the appeal.2
We affirm the judgment and deny the petition for a writ of habeas
corpus.
BACKGROUND
The Evidence at Trial
Prosecution Case
Defendant’s Prior Interactions with the Armsteads
In October 2017, Melina and Miles Armstead3 and their four children
moved into a house on the corner of 76th and Ney Avenues in Oakland.
Melina was pregnant when they moved in.
Defendant (whose nickname is “J.T.”) lived with his parents, who
rented the house next door to the Armsteads. The two families had cordial
relations.
In August 2019, the owner of the house next door to the Armsteads sold
the house and the new owner evicted defendant’s family in order to “flip” it.
They moved out, but defendant began staying in the detached garage at the
rear of the property. Miles told defendant that he was trespassing when
Miles saw him at the house.
On November 28, 2019, the Armsteads were having Thanksgiving
dinner with several family members when someone started repeatedly
ringing their doorbell and kicking and banging on their front door. Melina
opened the door to find defendant, who angrily complained that they were
bothering him by banging on his garage walls and that their dog was
bothering him. None of this was true. Miles came to the front door, asked
2 We also hereby order the appeal and habeas proceeding consolidated on
our own motion.
3 To avoid confusion, we refer to the Armsteads by their first names.
2
defendant to leave them alone, and told him they were not banging on the
garage walls. Defendant left.
Around 2:00 and 2:30 the next morning, someone started ringing the
Armsteads’ doorbell and banging on the front door just as defendant did
earlier. It was defendant, as captured by the Armsteads’ home security
camera. By the time Melina got to the door, defendant had fled. Miles called
911.
Between five and ten times over the following weeks, defendant, again
captured by the Armsteads’ home security camera, rang their doorbell and
fled.
Late in the afternoon on February 26, 2020, Oakland Police Officer
Alex Padilla was dispatched to 76th and Ney Avenues and saw Miles pointing
the end of a baseball bat towards defendant. They appeared to be arguing.
Miles said to defendant, “I see you threatening me now, motherfucker.”
Defendant walked away when he saw Padilla. Padilla told Miles to back up
and defendant was arrested for making felony threats. The interaction
between defendant and Padilla was recorded on Padilla’s bodycam, and the
recording was played for the jury. Padilla testified that he did not hear
defendant make threats. Miles obtained a restraining order against
defendant after this incident.
On March 28, 2020, defendant vandalized the Armsteads’ home three
different times. At around 3:00 p.m., Melina was in the dining room of her
home when a rock came through the window. She quickly looked and saw
defendant standing outside on the sidewalk before he ran away, and then
called 911.
At around 7:00 that evening, while setting the table for dinner, Melina
heard banging on the outside wall of her house and looked out to see
3
defendant throwing rocks, one of which was approximately eight inches in
length and came through a different window into the house. She again called
the police, who responded.
And around 11:00 p.m., while Melina and Miles were cleaning up the
kitchen, another rock came through their kitchen window above the sink.
The Armsteads were friendly with several neighbors, including
Matthew Guido, who lived across the street from the Armsteads, and Jose
Sanchez, who lived a few houses over across the street on 76th Avenue. The
Armsteads informed them of defendant’s repeated vandalism, and the
neighbors therefore kept on the lookout for defendant. Based on the
Armsteads’ history with defendant, Guido was “hyperaware” of defendant.
Sanchez, who generally was at home after being laid off from his job, noticed
defendant at least three times per week.
On the afternoon of April 6, 2020, Miles was seated at his dining room
table working on his laptop computer, visible from the sidewalk outside the
house. Suddenly, a red brick came through the dining room window, flew
closely past Miles’s head, and landed on his laptop. Melina ran to the front
door and saw defendant, who always wore denim jeans and a “hoodie.”
Their neighbor Guido heard glass breaking at the Armstead home,
looked out the window, and saw Miles coming out of the house and defendant
running off down the street. Guido then chased defendant, but Guido could
not catch him.
Because the April 6, 2020, incident nearly injured Miles, the Armsteads
boarded up their house and decided to sell it. To prepare the house for sale,
Miles started fixing it with the help of his neighbors, Sanchez and Jesus (last
name unknown).
4
The Murder
On May 1, 2020, Miles returned to the house to get it ready for sale,
intending to do some cosmetic work and landscaping.
At 1:48 p.m. that day, Guido was sitting on his living room sofa when
he heard several gunshots. He quickly handed his infant son to his older
daughter and went to the large bay window directly facing the Armstead
house. Guido instantly recognized defendant, who was standing in front of
the Armstead house and shooting a gun towards the ground. A parked car
prevented Guido from seeing the target of defendant’s shots. Defendant then
ran down Ney Avenue towards 75th Avenue and made a left. Guido
immediately called 911 and ran outside. Guido told the dispatcher that
defendant was the shooter and described his clothing: a green hoodie and
acid-washed jeans. When Guido went outside, he saw Miles lying face down
and motionless on the ground, exactly at the spot towards which defendant
was firing the gun.
Sanchez and Jesus were working on Miles’s house on May 1; both men
had their children with them. The men had been painting the garage and a
slab of concrete near the driveway when they ran out of paint at about 1:45
p.m. Miles said he would go to Home Depot for more paint. Holding a lid
from the paint can, Miles started walking towards his vehicle, parked on the
corner of 76th and Ney Avenues.
As he approached his vehicle, Miles remarked that defendant was on
the other side of the street. Sanchez looked over his shoulder and saw
defendant standing at the stop sign at the southeast corner of 76th and Ney.
Miles and defendant approached each other in the middle of the street.
Sanchez then heard Miles scream, as if trying to get his attention. Sanchez
turned, heard a gunshot, and saw defendant holding a gun. Sanchez then
5
grabbed the children and ran into the backyard. He heard about eight more
gunshots. Through a gap in the backyard fence, Sanchez saw defendant with
his arm extended standing over Miles, who was lying face down. Defendant
was firing a gun towards Miles’s back or head. Defendant “emptied the clip,”
then ran up Ney and turned the corner on 75th Avenue. Miles did not have a
weapon, and had not threatened defendant. Sanchez recalled that defendant
was wearing a green hoodie and baseball cap.
Sanchez put his shirt over his young daughter’s head so she would not
see Miles’s body, then he and Jesus ran home with the children.
The Investigation
At 1:48 p.m. on May 1, Oakland police officers were dispatched to 76th
and Ney Avenues and found Miles lying face down, not breathing, and
without a pulse. He was declared dead at the scene.
Guido spoke to the police as soon as they responded to the scene and
told them that defendant was the one who killed Miles. Sanchez also told
police that he saw defendant shoot Miles. Guido was “[o]ne hundred percent”
certain of his identification when he spoke to police, and his certainty
remained at the time of trial. As was Sanchez.
Surveillance cameras captured the surrounding residences at the time
of the incident, some of which were enhanced by law enforcement and played
for the jury. As Guido and Sanchez testified, the surveillance video footage
showed two individuals behaving in a specific way at a specific location
consistent with Guido’s and Sanchez’s accounts of the shooting. While
somewhat grainy, the videos showed a person wearing white approach a
person wearing dark-colored sweatshirt in an intersection, when suddenly
the person in white turns around, starts running away, and is being chased
by the other person while that person is extending his right arm out. Guido
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and Sanchez recognized defendant in the footage by his clothing and his
distinctive style of walking.
The police recovered six expended nine-millimeter Luger casings at the
scene.
Miles’s autopsy revealed he died from multiple gunshot wounds,
including one entry wound to his right shoulder blade, two entry wounds to
his left forearm, and three entry wounds to the back of his head. The three
gunshot wounds to the back of Miles’s head evidenced stippling, indicating
the shots were fired from within two feet away.
At approximately 9:00 p.m. the night of the shooting, the police located
defendant at a hotel in Oakland and arrested him. He was wearing a green
hoodie and a baseball cap.
Defense Case
Police Investigation and Forensic Evidence
At approximately 1:50 p.m. on May 1, Oakland Police Officer Jesus
Alvarez responded to the scene and contacted Eugenio Martinez, a witness to
the shooting, at his residence on the corner of Ney and 75th Avenues.
Alvarez interviewed Martinez in Spanish. Martinez said he was sitting on a
stool and stood up to look over his fence immediately after the shooting.
Martinez described the person who ran past his fence as “moreno” (meaning
someone with darker complexion), between 5’6” and six feet tall, slim, and
wearing a medium light green jacket. He thought the suspect was about 24
years old, but he did not get a good look because the suspect was running.
Martinez said the suspect had curly hair, medium in length. Alvarez
was then interrupted and went to his patrol vehicle. Alvarez returned to
Martinez and asked him (in Spanish) whether Martinez said the suspect had
“trenzas,” meaning braids or dreadlocks. Martinez replied in the affirmative.
7
Alvarez’s police report listed the suspect as having dreadlocks down his neck.
The police interviewed defendant beginning at 9:30 p.m. on the night of
the shooting, and his hands were swabbed for gunshot residue. No gunshot
residue was detected on the samples. Ideally, however, gunshot residue
should be collected within eight hours of a shooting and before the suspect is
handcuffed.
Lead investigating detective Phong Tran observed what he believed
was blood spatter on defendant’s left shoe and submitted swabs from both
sides of the shoe for DNA testing. The substance turned out not to be blood,
and none of the DNA profiles obtained from the shoe matched Miles’s DNA.
Other Witnesses
Defendant’s mother, Patricia Thomas, testified that defendant had
lived with the family at 2907 76th Avenue for 21 years. Defendant had
remodeled the garage and lived there, continuing to do so after the house was
sold in 2019. Defendant became frustrated when he became unhoused and
believed Miles was interfering with his living situation.
Mrs. Thomas learned that defendant threw rocks through the
Armsteads’ windows. She apologized to Miles on defendant’s behalf and
offered to pay for the broken windows, but Miles did not accept her offer. She
was relieved when she learned the Armsteads were moving because that
would end their conflict with defendant. She told defendant not to return to
their former home.
Mrs. Thomas spoke with defendant over the phone on May 1 after
learning Miles had been shot, and defendant “seemed surprised” by the news.
She reported that conversation to the police.
According to Mrs. Thomas, defendant had no history of violence, and
she never saw him with a gun.
8
Psychology professor Mitchell Eisen, Ph.D., testified as an expert in
eyewitness memory and suggestibility. Dr. Eisen testified among other
things that witnesses may be susceptible to information that is suggested to
them in order to fill in gaps in memory. An example of this is where a police
officer asks a witness a leading question (such as, “so you said [the suspect]
has braids?”), as opposed to an open-ended question (such as, “could you
describe [the person’s] hair?”). Dr. Eisen also testified about problems with
cross-racial identification, which he described as a person’s “ability to
differentiate faces within groups versus out groups.” Dr. Eisen opined that
“we tend to be better at identifying folks from our own groups and have
trouble differentiating faces from out groups.” But he explained, “You have
to look case by case to see how it affects any given person in any given case.”
In addition, Dr. Eisen testified about how prior interactions with a suspect
increase the likelihood of accurate, subsequent identification.
After the defense rested, the court read to the jury the stipulations
entered into by the parties, including that defendant was legally prohibited
from possessing a firearm on May 1, 2020.
The Proceedings Below
On August 31, 2020, a grand jury indicted defendant, charging him
with the murder of Miles Armstead (§ 187, subd. (a); count 1), accompanied
by an allegation that defendant personally used a firearm (§§ 12022.7, subd.
(a), 12022.53, subd. (d)); possessing a firearm as a convicted felon (§ 29800,
subd. (a)(1); count 2); assaulting Miles Armstead with a deadly weapon (a
brick) (§ 245, subd. (a)(1); count 3); and assaulting Melina Armstead with a
deadly weapon (a rock) (§ 245, subd. (a)(1); count 4). The indictment further
9
alleged that defendant had suffered two prior serious felony offenses
(§§ 1170, subd. (h)(3), 1192.7, subd. (c)).
On September 14, 2020, the trial court declared a doubt as to
defendant’s competence to stand trial, appointed two doctors to examine him,
and suspended criminal proceedings. (§ 1368.) On December 3, 2021, the
court reinstated criminal proceedings.
On December 29, 2022, defendant filed a motion to set aside counts 1
and 4 of the indictment pursuant to section 995. Defendant argued the
evidence was insufficient to support the assault charged in count 4. He also
sought to set aside the murder count due to “multiple errors” during the
grand jury proceedings, including the prosecution’s failure to present
exculpatory evidence. Some of the items of undisclosed exculpatory evidence,
defendant claimed, included that defendant’s mother had told the police that
defendant believed Miles had placed a “voodoo hex” on him, whereas she
actually said only the word “hex”; that defendant told his mother he was not
present at the scene; and that although an eyewitness described the shooter
as having dreadlocks, defendant in fact had a shaved head.
On February 10, 2023, the court granted defendant’s section 995
motion as to the assault charged in count 4, but denied the motion as to the
murder charged in count 1.
On June 27, 2024, the People filed an amended indictment charging
defendant with murder (§ 187, subd. (a); count 1), with an allegation he
personally used a firearm (§ 12022.5, subd. (a)); unlawfully possessing a
firearm (§ 29800, subd. (a)(1); count 2); and with assault with a deadly
weapon (a brick) (§ 245, subd. (a)(1); count 3). The indictment also alleged
several factors in aggravation, one of which was that defendant had served
prior prison terms for two prior serious felony convictions. (Cal. Rules of
10
Court, rule 4.421(b)(3); § 1170, subd. (h).)
On July 16, 2024, the jury found defendant guilty of first degree
murder in count 1, found true the firearm enhancement allegation, and also
found defendant guilty of counts 2 and 3.
On September 3, 2024, defendant filed a motion for relief based on
section 745 of the California Racial Justice Act of 2020 (RJA), asserting
among other things that “[t]he prosecutor exhibited racial bias towards
[defendant] by refusing to consider his mental health issue and make an offer
in this case,” and “used racially discriminatory language of ‘voodoo hex’
during grand jury proceedings.” As a result, defendant maintained he had
been convicted, and would be sentenced, more harshly than others similarly
situated, thus entitling him to either a new trial or reduction of the charges.
On October 11, 2024, the court held a hearing on the RJA motion and,
after hearing lengthy arguments by the parties, denied the motion. The court
found defendant had waived his claims under the RJA because he could have
raised, but failed to raise, his claims much earlier in the proceedings, when
he was on notice of the facts underlying his claims. The court found that in
any event, defendant failed to make a prima facie showing of a substantial
likelihood that the RJA was violated. (§ 745, subds. (c), (h)(2).)
On November 20, 2024, defendant filed a motion to strike the firearm
enhancement under section 12022.5, subdivision (a) based on retaliatory
prosecution. He alleged that the Alameda County District Attorney’s office,
under the direction of then District Attorney Pamela Price, added the
enhancement allegation on the eve of trial, which was contrary to the policy
instituted by the office in March 2023 not to allege firearm enhancements,
and was retribution for defense counsel criticizing the office and rejecting
Price’s request to support her in her pending recall election.
11
On February 24, 2025, the court granted defendant’s motion to strike
the firearm enhancement and set the matter for sentencing.
At sentencing on April 25, 2025, the court found true the aggravating
circumstance that defendant had served a prior prison term (Cal. Rules of
Court, rule, 4.421(b)(3)) and sentenced him to 25 years to life in prison on
count 1, consecutive to the middle term of three years on count 3 and a
consecutive eight months (one-third the middle term) on count 2. The court
imposed a $10,000 restitution fine (§ 1202.4, subd. (b); a corresponding
$10,000 parole revocation fine (suspended unless parole is revoked)
(§ 1202.45); a $40 court operations assessment (§ 1465.8); and a $30 criminal
conviction assessment (Gov. Code, § 70373). Defendant did not object to any
of these fines and fees. The court awarded defendant 1,821 days of
presentence custody credits.
Defendant filed a timely notice of appeal.
DISCUSSION
The Appeal
After review of the record, defendant’s appointed counsel filed an
opening brief that raised no issues and asked this court to conduct an
independent review of the record pursuant to Wende, supra, 25 Cal.3d 436.
Counsel advised defendant of his right to file a supplemental brief on his own
behalf.
Defendant’s Supplemental Brief
Defendant submitted a supplemental brief, which consists of some
three pages of handwritten arguments, followed by over 70 pages of exhibits.
Subsequently, in piecemeal fashion, defendant filed nine other documents
containing more handwritten arguments and/or exhibits.
Many of defendant’s arguments are vague and conclusory, leaving us to
12
guess the precise nature of them. His arguments are also difficult to follow
because he presents them in a disjointed manner in each and across his
various submissions. Also, many of his arguments lack proper citations to
the record and legal authority. Further, although defendant has provided
numerous exhibits, he does not explain whether they are part of the record on
appeal. And to a large degree, he does not articulate how the exhibits
support his various claims of error.
The trial court’s judgment is presumed to be correct, and it is the
appellant’s burden to affirmatively show error. (Jameson v. Desta (2018)
5 Cal.5th 594, 608–609.) “To demonstrate error, appellant must present
meaningful legal analysis supported by citations to authority and citations to
facts in the record that support the claim of error. [Citations.] When a point
is asserted without argument and authority for the proposition, ‘it is deemed
to be without foundation and requires no discussion by the reviewing court.’ ”
(In re S.C. (2006) 138 Cal.App.4th 396, 408; accord, People v. Stanley (1995)
10 Cal.4th 764, 793.) Similarly, an appellant forfeits a claim by failing to
support it with citations to the record. (City of Lincoln v. Barringer (2002)
102 Cal.App.4th 1211, 1239 & fn. 16.)
Applying these principles, we may, and do, deem forfeited many of
defendant’s claims in his supplemental brief. But even if not forfeited, we
now explain why his claims, to the extent we can discern them, fail.
Integrity of the Homicide Investigation
Defendant “believe[s] this case has been tainted (corrupted), tarnished,
& tampered with the Lead Homicide Investigator, Phong Tran” of the
Oakland Police Department and “believes it is alarming, and, quite frankly—
raises eyebrows—and legit, legal suspicion about the credibility & integrity of
the homicide investigation.” Defendant states, “Something very important
13
may not be on the transcripts—i.e.,— [Officer Tran] . . . was being prosecuted
by the DA’s office for Perjury & Bribery during the time of my homicide trial.”
(Italics added.) This argument is woefully vague. It is also not cognizable on
appeal because it relies on materials outside the appellate record, namely
newspaper articles. (See People v. Williams (1988) 44 Cal.3d 883, 917, fn. 12
[“The scope of an appeal is, of course, limited to the record of the proceedings
below.”].) In any event, defendant fails to show that the detective committed
any misconduct during the investigation or any other aspect of this case.
Grand Jury Proceedings
Defendant argues that the prosecution failed to present exculpatory
evidence to the grand jury in violation of its duties under section 939.71. The
undisclosed evidence, defendant argues, included the following: “Some
witness’s [sic] saw the shooter in dreadlocks” even though defendant “never
had dreadlocks before”; other witnesses “gave wildly discrepant descriptions
pertaining to the suspects [sic] clothing”; and that during a phone call he told
his mother, who then told Sergeant Zhou, that defendant did not commit the
murder. In so arguing, defendant essentially repeats his arguments in his
pretrial motion to set aside the murder count in the indictment pursuant to
section 995, which motion the trial court denied as to that count. Defendant
argues, in conclusory fashion, that the prosecution’s failure to present
exculpatory evidence “constitutes ‘Prejudicial Error.’ ” Based on the record
before us,4 we reject the argument.
Section 939.71 obligates the prosecution to “inform the grand jury of
4 The record does not include transcripts of the grand jury proceedings,
and defendant does not provide us with such transcripts. However, the
record does include defendant’s section 995 motion, the transcript of the
hearing on the motion, and the trial transcripts, which describe the relevant
14
[the] nature and existence” of any known exculpatory evidence. (§ 939.71,
subd. (a) [codifying holding of Johnson v. Superior Court (1975) 15 Cal.3d
248, 254–255].) Even so, an indictment will be dismissed only if the
prosecution’s failure to disclose exculpatory evidence “results in substantial
prejudice.” (§ 939.71, subd. (a).)
When a defendant challenges an indictment on this ground before trial
(i.e., a dismissal of a motion to dismiss followed by writ review), “the court
must determine whether a reasonable probability exists that ‘a properly
informed jury would have declined to find probable cause to indict had it
known of the omitted evidence.’ ” (People v. Becerra (2008) 165 Cal.App.4th
1064, 1070 (Becerra), quoting Berardi v. Superior Court (2007) 149
Cal.App.4th 476, 495 & fn. 10 (Berardi); see also id. at p. 493 [assessing
prejudice under standard set forth in People v. Watson (1956) 46 Cal.2d 818,
836].) The court must “evaluate the record as a whole, taking into
consideration all relevant factors,” including “the strength and nature of both
the undisclosed exculpatory evidence and the probable cause evidence that
was presented.” (Berardi, at p. 495.)
But where, as here, “a defendant waits until after trial to challenge the
denial of a pretrial dismissal motion on appeal, different considerations are
operative.” (Berardi, supra, 149 Cal.App.4th at p. 495, fn. 10; accord,
Becerra, supra, 165 Cal.App.4th at p. 1070.) In particular, the “rule . . . is
that a conviction will not be reversed due to an irregularity in grand jury
proceedings absent a showing that the irregularity deprived the defendant of
a fair trial or otherwise resulted in actual prejudice relating to the
conviction.” (People v. Corona (1989) 211 Cal.App.3d 529, 535, citing People
testimony and evidence that was presented and not presented to the grand
jury.
15
v. Towler (1982) 31 Cal.3d 105, 123, People v. Laney (1981) 115 Cal.App.3d
508, 514; accord, People v. Carrington (2009) 47 Cal.4th 145, 178; Becerra,
supra, 165 Cal.App.4th 1064, 1071.)
Defendant asserts, without meaningful legal analysis, that the alleged
failure of the prosecution to disclose exculpatory evidence to the grand jury
was “prejudicial error” and “The Disclosure Error, undoubtedly, interfered
with the Grand Jury’s Independent Investigatory Function.” These
conclusory allegations are insufficient to satisfy his burden to show he was
actually prejudiced or otherwise deprived of a fair trial. For this reason
alone, defendant’s claim fails.
In any event, the record does not provide a basis for reversal of the
murder conviction based on the alleged error at the grand jury proceedings.
Defendant complains that the prosecution did not disclose to the grand
jury certain witnesses’ statements in the police report giving descriptions of
the suspect’s clothing that did not match defendant’s clothing. The variance
in the witnesses’ statements largely concerned the color of the suspect’s
jacket; they identified either green, brown, or “[b]lack gray.” This variance,
however, seems relatively minor given that the colors identified all could be
fairly described as some dark color. And it was undisputed that the suspect
was wearing a “dark colored sweatshirt,” as defense counsel pointed out
during closing argument at trial. Moreover, the witnesses were all consistent
in other respects, namely identifying the suspect as a black male who had
fled on 76th Avenue. Thus, the undisclosed witness statements were not
truly or clearly exculpatory.
Defendant also argues the prosecution should have informed the grand
jury that his mother had told the police that defendant had told her that he
was not present at the scene and did not commit the murder. However,
16
according to the police report upon which defendant relies, he had told his
mother “that he was not at 76th Ave the entire day but [was] with Dale on
76th Ave in the morning hours.” These statements are not necessarily
exculpatory because they do not negate the possibility that defendant was
present at the scene at the time of the shooting. But even if the statements
were exculpatory, we would still find no actual prejudice from the failure to
disclose them to the grand jury. The jury at trial heard testimony from
defendant’s mother to similar effect. Specifically, she testified that she spoke
to defendant on the phone on the day of the shooting, that she mentioned to
him she had learned that Miles had been shot, and that defendant “seemed
surprised” and “shocked” by the news—the intended inference being that
defendant was not aware of, and thus not involved in, the shooting. The jury,
after hearing this testimony, nevertheless found beyond a reasonable doubt
that defendant committed the murder. Thus, defendant suffered no actual
prejudice from the failure to disclose defendant’s mother’s statements to
police to the grand jury. (Cf. United States v. Mechanik (1986) 475 U.S. 66,
70 [“the petit jury’s subsequent guilty verdict means . . . there was probable
cause to believe that the defendants were guilty as charged” and, “[m]easured
by the petit jury’s verdict, then, any error in the grand jury proceeding
connected with the charging decision was harmless beyond a reasonable
doubt”], fn. omitted.)
We reach a similar conclusion regarding the prosecution’s failure to
inform the grand jury of evidence that one witness, Eugenio Martinez, was
noted in the police report as stating that the suspect had dreadlocks, which
did not match defendant’s hairstyle. At trial, the defense presented evidence
regarding Martinez’s statement through the testimony of Officer Alvarado,
the officer who obtained Martinez’s statement and included that statement in
17
the police report. According to Alvarez, Martinez said he “couldn’t get a good
look as [the suspect] was looking at [Martinez].” Martinez first stated the
suspect had curly hair, then said it was medium long; he never mentioned
anything about braids or dreadlocks. The interview was interrupted when
Alvarez went to his patrol vehicle, before he returned to Martinez and asked
(in Spanish) whether Martinez said the suspect had “trenzas,” meaning
braids or dreadlocks in Spanish. Martinez replied, “Um-hum.” Alvarez’s
resulting police report listed the suspect as having dreadlocks down his neck.
In addition, the jury heard testimony from the defense expert on
“eyewitness memory and suggestibility.” As relevant here, the expert was
asked, “The worst kind of question from an officer . . . to a witness in trying to
get eyewitness information is one that suggests the answer to the witness,
correct?” The expert replied, “Yes, that would be the worst thing you can do.”
The expert was then asked, hypothetically, if a police officer “walks up to the
witness and says, so, the suspect had braids, that would be the most
suggestive, correct?” The expert replied, “If the person never said it and this
is the first time it’s being introduced, yes, of course that’s quite suggestive.”
During closing argument, the prosecutor argued that “Martinez never
said the word braids,” that it was Officer Alvarez who introduced that
information “into that situation” by asking if the suspect had braids or
dreadlocks, and that even then, Martinez “barely said yes” in reply. On the
other hand, defense counsel argued “it’s not suggestive” for Officer Alvarez to
have asked Martinez if the suspect had braids” and that Martinez “had the
best opportunity to view the suspect.”
The jury, after hearing testimony and arguments regarding Martinez’s
statements about the suspect’s hair, nevertheless found beyond a reasonable
doubt that defendant committed the murder.
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In sum, defendant fails to establish any basis to reverse the denial of
his motion to set aside the murder count.
Joinder of Charges
Defendant also argues he should not have been charged with both
murder (count 1) and assault of Miles Armstead with a deadly weapon (count
3), because the murder occurred on May 1, 2020, and the assault occurred on
April 6, 2020. He then references in passing that his trial counsel had filed
on his behalf a motion to sever those counts, going on to argue that “joining
the crimes together . . . conjures up perceptions of prejudice & unfairness
towards [defendant].” The court denied the motion to sever the counts. To
the extent defendant challenges that denial, he makes no attempt to
demonstrate error and, in any event, the record discloses none.
Section 954 states in relevant part, “An accusatory pleading may
charge two or more different offenses connected together in their commission,
. . . or two or more different offenses of the same class of crimes or offenses,
under separate counts . . . .” “Joinder is ordinarily favored because it avoids
the increased expenditures of funds and judicial resources that may result
from separate trials.” (People v. Simon (2016) 1 Cal.5th 98, 122 (Simon).)
“Nonetheless, a trial court has discretion to sever properly joined charges in
the interest of justice and for good cause.” (Ibid., citing § 954.) Where the
statutory requirements for joinder are met, a defendant must make a “ ‘clear
showing of prejudice’ ” to establish that the trial court abused its discretion in
denying the motion. (Simon, supra, 1 Cal.5th at pp. 122–123.) “ ‘The burden
of demonstrating that . . . denial of severance was a prejudicial abuse of
discretion is upon him who asserts it; prejudice must be proved, and “[a] bald
assertion of prejudice is not enough.” [Citation.]’ [Citations.]” (People v.
Ruiz (1988) 44 Cal.3d 589, 605 (Ruiz).)
19
“The first consideration in assessing the prejudice arising from a denial
of severance is cross-admissibility, i.e., ‘whether evidence on each of the
joined charges would have been admissible, under Evidence Code section
1101,[5] in separate trials on the others. If so, any inference of prejudice is
dispelled. [Citation.]’ ” (Ruiz, supra, 44 Cal.3d at p. 605.)
Defendant did not below, and does not on appeal, dispute that the
counts charged in the indictment were joinable under section 954. Since he
effectively concedes that the statutory requirements for joinder were met in
this case, he can predicate error only on “a clear showing of prejudice.” (Ruiz,
supra, 44 Cal.3d at pp. 605, 630; Simon, supra, 1 Cal.5th at pp. 122–123.)
At trial, the defense sought to exclude under section 1101 evidence of
the interactions between defendant and Miles prior to the murder, which
included the alleged assault of Miles charged in count 3. The court overruled
that objection, noting that evidence of the prior interactions between
defendant and Miles “demonstrate an antagonism between [them],” and
apparently agreeing with the prosecution’s assertion that the prior
interactions were probative of defendant’s motive to kill and his identity as
the shooter. Based on this finding, the court found that there was evidence of
5 Evidence Code section 1101 provides: “(a) Except as provided in this
section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s
character or a trait of his or her character (whether in the form of an opinion,
evidence of reputation, or evidence of specific instances of his or her conduct)
is inadmissible when offered to prove his or her conduct on a specified
occasion. [¶] (b) Nothing in this section prohibits the admission of evidence
that a person committed a crime, civil wrong, or other act when relevant to
prove some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, or whether a defendant
in a prosecution for an unlawful sexual act or attempted unlawful sexual act
did not reasonably and in good faith believe that the victim consented) other
than his or her disposition to commit such an act.”
20
cross-admissibility and consequently denied the severance motion.
Defendant does not address these findings, much less establish they
were a prejudicial abuse of discretion. And in any event, we hold they were
not. The court’s decision to overrule defendant’s objection based on section
1101 and its resultant finding there was cross-admissibility for purposes of
the prejudice analysis were within its discretion. And because the existence
of cross-admissible evidence “is enough ‘standing alone, to dispel any
prejudice and justify a trial court’s refusal to sever the charged offenses’ ”
(People v. Vargas (2020) 9 Cal.5th 793, 817; accord, Ruiz, supra, 44 Cal.3d at
p. 605), the court did not abuse its discretion in ultimately denying the
motion to sever the counts.
Firearm Enhancement Allegation
Defendant argues that then “Alameda County Top Prosecutor, Pamela
Y. Price, personally[ ] authorized & imposed (approved) an illegal
enhancement before the start of my trial.” This appears to be a restatement
of his arguments in his motion to strike the firearm enhancement under
section 12022.25, subdivision (a). However, the trial court granted that
motion. Therefore, defendant was not aggrieved by that ruling and he may
not challenge it on appeal. (See Soldate v. Fidelity Nat. Financial, Inc. (1998)
62 Cal.App.4th 1069, 1073 [“[A] party cannot appeal from a favorable
ruling.”].)
Evidentiary Issues
Defendant also challenges some of the trial court’s evidentiary rulings,
which we review for abuse of discretion. (People v. Doolin (2009) 45 Cal.4th
390, 437.)
Defendant argues that lead homicide detective Phong Tran “was on the
‘witness list’ for cross-examination, but [he] blatantly[ ] dishonored his
21
subpoena. Clearly, an intolerable Sixth Amendment, Constitutional
violation.” Once again, this is another conclusory argument. It also lacks
merit.
During trial, the court and the parties discussed that Officer Tran, the
primary investigator in the case, had been subpoenaed by the defense to
testify but had not responded. The defense sought to present his testimony
regarding the gunshot residue samples and DNA samples taken from
defendant.6 The court, however, explained, “To the extent the officer’s
testimony might be necessary to establish something, for instance, chain of
custody foundation in Mr. Thomas’[s] favor, I don’t think we need Officer
Tran to do that.” The court stated that the parties could stipulate as to those
foundational facts in lieu of Officer Tran’s testimony. The parties apparently
agreed with this approach, as they ultimately stipulated to the relevant
foundational facts.7 The jury also heard testimony from Sergeant Yen Zhou,
6 Defense counsel also wished to examine Officer Tran regarding his
conduct during his investigation of this case, given that he was apparently
charged in another criminal case for perjury and bribing a witness. The court
stated it was “leav[ing] open the possibility of 402 hearings as to [Officer
Tran and other witnesses]” regarding those issues, so that defense counsel
“would be given an opportunity to inquire as to whether anything untoward
by way of comments or conduct by Officer Tran in his interviews of them
happened.” However, the record does not indicate that defense counsel
pursued that avenue or otherwise pressed the issue any further. Accordingly,
we deem any claim of error regarding this issue abandoned. (See People v.
Hendrix (2013) 214 Cal.App.4th 216, 240, fn. 7.)
7 Specifically, “[t]he parties stipulate[d] that Detective Phong Tran
observed a red stain that appeared to be blood on Mr. Thomas’s left shoe.
Tran took custody of Mr. Thomas’ shoes at the time of his arrest. Tran
requested OPD criminalistics division test the left shoe for possible blood
stains and compare any biological evidence recovered to decedent’s reference
sample for a possible match. The shoe was securely checked into the property
in evidence unit where it remained until tested by the OPD criminalistics
division.” The parties also “stipulate[d] that Sergeant Y, last name Zhou,
22
another investigator assigned to the case, regarding Officer Tran’s request to
examine defendant’s shoe for potential blood, the manner in which DNA
samples are collected and tested, and the results of the DNA testing
conducted in this case. In sum, defendant fails to establish, and we are not
persuaded that, the court abused its discretion in declining to compel Officer
Tran to testify at trial.
In addition, defendant contends the court erred in admitting a
recording of statements he made to Officer Padilla during his arrest on
February 26, 2020. Defendant argues the video, which was played to the jury
at half speed during Officer Padilla’s testimony, “conjure’s [sic] up
perceptions of biasness, prejudice, unfairness, & even confuses the 12 jurors”
and had “a irreversible prejudicial impact.” Defendant makes no attempt to,
and cannot, establish that the court abused its discretion in admitting the
recording.
As noted above, on February 26, 2020, about one month before the
murder, Officer Padilla arrested defendant for making threats against Miles.
The interaction between defendant and Padilla after he placed defendant in
the patrol vehicle was recorded on Padilla’s bodycam. During a conference at
trial, defense counsel sought to exclude evidence of defendant’s statements to
Padilla. The prosecutor argued that defendant can be heard in the bodycam
footage saying, “[N]ext time, I’m going to kill him,” which the prosecutor
argued was probative of defendant’s intent to kill Miles. Defense counsel,
however, argued that the audio quality of the video was poor and defendant’s
performed a GSR test on Mr. Thomas’ left and right hands after his arrest.
Detective Tran took custody of the GSR kit and turned it into OPD’s property
and evidence unit where it remained secure until it was sent to the county of
Santa Clara Crime Laboratory and tested on August 11th, 2023, at the
request of DDA Nathan Feldman.”
23
statements were thus mumbled. Counsel believed defendant actually stated,
“Next time I’m not coming outside.” The court independently played the
video, observing that it could hear defendant say, “I’m going to kill,” but that
it could not hear what or whom he said he was going to kill. At the court’s
request, the prosecutor played the video at reduced speed in addition to
turning the volume up. The court then observed, “There’s absolutely no
doubt in my mind the word ‘kill’ is used. And it’s much clearer that he says
‘next time I’m going to kill him.’ ” Defense counsel objected to admitting the
video, arguing that presenting the video to the jury at reduced speed would
be “manipulat[ing]” it. The court overruled the objection, finding that
slowing down the video speed did not alter the content of the video, just as
zooming in or turning up the volume of the video would not.
The video was played at half speed to the jury during Officer Padilla’s
testimony. Padilla testified that the video was a fair and accurate depiction
of the events on February 26, 2020. Also, the audio-visual specialist of the
District Attorney’s Office testified that slowing down the video to 50 percent
speed and increasing the volume levels did not alter the content of the video
in any way.
We conclude the court did not abuse it’s discretion in admitting
evidence of defendant’s recorded statements to Padilla. And assuming the
court did, any error was harmless in light of other overwhelming evidence
supporting defendant’s guilt, which we discuss in the following section.
Sufficiency of the Evidence
Defendant contends, “[t]here was no gunshot residue on my hands”; his
“DNA match (test) came back negative”; “[t]here was no gun on my person &
no firearm located”; and he “told [his] mother that [he] was not the shooter
(killer) on the same, exact day, of the incident.” “Not to mention,” he adds,
24
the two witnesses who identified him as the killer made “cross-racial
identification.” By pointing to this evidence in his favor, defendant impliedly
argues that the evidence was insufficient to support a conviction of murder.
Initially, any such argument is forfeited, because he cites evidence favorable
to him and fails to set forth all material evidence on the issue. (See Foreman
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [appellants challenging the
sufficiency of the evidence must “ ‘set forth in their brief all the material
evidence on the point and not merely their own evidence. Unless this is done
the error is deemed to be waived.’ ”].) Forfeiture aside, the argument lacks
merit.
When considering a challenge to the sufficiency of the evidence to
support a criminal conviction, we “review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid value—
such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) In making
this determination, we do not reweigh the evidence, resolve conflicts in the
evidence, or reevaluate the credibility of witnesses. (People v. Manibusan
(2013) 58 Cal.4th 40, 87.) “ ‘Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is
sufficient to support a conviction.’ ” (People v. Jones (2013) 57 Cal.4th 899,
963.)
Here, there was substantial evidence to support the jury’s conviction of
first degree murder. Sanchez testified that he saw Miles and defendant walk
towards each other in the middle of a nearby intersection. Miles then
screamed, trying to catch Sanchez’s attention, at which point Sanchez heard
a gunshot. Sanchez turned around and saw defendant holding a gun. After
25
trying to get his child and his neighbor’s children to a place of safety, he saw
Miles facing down on the ground and then defendant “empt[y] the clip” of his
gun, shooting “a couple of shots in [Miles’s] head.” Guido testified that he
saw defendant shooting a gun towards the ground before fleeing, after which
Guido went outside and saw Miles laying on the street. When the police
arrived, Guido and Sanchez identified defendant as the person who shot
Miles. They were “one [or a] hundred percent” certain of their identification,
both at the time they made the identification to police shortly after the
shooting and at the time of their testimony. Surveillance video footage, while
too grainy to show the faces of the two figures depicted, showed two
individuals behaving in a specific way at a specific location consistent with
Guido’s and Sanchez’s statements.
Moreover, there was evidence tending to prove defendant’s motive to
kill and his identity as the shooter: defendant was frustrated with Miles for
purportedly interfering with his ability to live in the garage of the home from
which his family had been evicted; on numerous occasions before the murder,
defendant harassed the Armsteads and vandalized their home; and, also
prior to the murder, defendant and Miles had an altercation, leading to
defendant’s arrest for felony threats, and Miles obtaining a restraining order
against defendant. (See People v. Kovacich (2011) 201 Cal.App.4th 863, 893
[“evidence showing ‘quarrels, antagonism or enmity between an accused and
the victim of a violent offense is proof of motive to commit the offense.’ ”]; see
also People v. Anderson (1968) 70 Cal.2d 15, 27 [“facts about the defendant’s
prior relationship and/or conduct with the victim from which the jury could
reasonable infer a ‘motive’ to kill the victim” support a premeditation and
deliberation finding].)
In short, substantial evidence supports the jury’s finding that
26
defendant was guilty of first degree murder beyond a reasonable doubt. That
there was evidence that could support a finding contrary to that made by the
jury does not warrant reversal. (See People v. Thomas (1992) 2 Cal.4th 489,
514.)
As for defendant’s claim based on “cross-racial identification,” this
appears to be in reference to a theory advanced by the defense in an attempt
to undermine the credibility of Guido and Sanchez. In support of that theory,
the defense expert on eyewitness memory and suggestibility, Dr. Eisen,
testified that there were problems with cross-racial identification, which he
described as a person’s “ability to differentiate faces within groups versus out
groups.” Dr. Eisen opined that “we tend to be better at identifying folks from
our own groups and have trouble differentiating faces from out groups,” but
that “[y]ou have to look case by case to see how it affects any given person in
any given case.” During closing argument, defense counsel asked the jury to
“keep in mind” Dr. Eisen’s testimony, after pointing out that Sanchez is
Latino, Guido is white, and defendant is black. To the extent defendant is
asserting that Guido’s and Sanchez’s testimony identifying him as the killer
was not credible due to the cross-racial nature of their identification, he is
essentially asking us to reweigh the evidence. But as discussed, on appeal we
resolve credibility issues in favor of the judgment and, accordingly, presume
the jury found Guido’s and Sanchez’s testimony credible. (See People v.
Manibusan, supra, 58 Cal.4th at p. 87.)
Wende Review
In addition to rejecting the contentions raised by defendant in his
supplemental brief and accompanying submissions, we have examined the
entire record, have found no arguable issues, and are satisfied that appellate
counsel has fully complied with his responsibilities. (Wende, supra, 25 Cal.3d
27
at pp. 441–442.)
The Habeas Petition
Defendant filed in propria persona a companion petition for a writ of
habeas corpus, which we ordered to be considered concurrently with the
appeal. We requested, and received, an informal response from the Attorney
General, to which defendant filed a reply. Afterwards, he filed what we
construe as a supplemental reply with exhibits, followed by additional sets of
exhibits. For the reasons set forth below, we deny defendant’s petition for a
writ of habeas corpus.
General Legal Principles
“When presented with a petition for a writ of habeas corpus, a court
must first determine whether the petition states a prima facie case for
relief—that is, whether it states facts that, if true, entitle the petitioner to
relief—and also whether the stated claims are for any reason procedurally
barred.” (People v. Romero (1994) 8 Cal.4th 728, 737.) “To satisfy the initial
burden of pleading adequate grounds for relief, an application for habeas
corpus must be made by petition, and ‘[i]f the imprisonment is alleged to be
illegal, the petition must also state in what the alleged illegality consists.’
[Citations.] The petition should both (i) state fully and with particularity the
facts on which relief is sought, . . . [citation] . . . as well as (ii) include copies
of reasonably available documentary evidence supporting the claim, including
pertinent portions of trial transcripts and affidavits or declarations.
[Citations.] ‘Conclusory allegations made without any explanation of the
basis for the allegations do not warrant relief, let alone an evidentiary
hearing.’ ” (People v. Duvall (1995) 9 Cal.4th 464, 474.) “If no prima facie
case for relief is stated, the court will summarily deny the petition.” (Id. at p.
475.)
28
Defendant’s Allegations
Defendant filed his petition using the standard Judicial Council form
(form HC-001). Under “Claims for Relief” in his petition, defendant writes,
“(1) Chief District Attorney Pamela Y. Price[ ] imposed an illegal
enhancement on my case before trial commenced”; and (2) the “Grand Jury
prosecutor . . . egregiously violated Penal Code section 939.7 during the
Grand Jury Proceedings.” Under “Supporting facts” for the second claim,
defendant alleges a separate claim that lead homicide investigating detective
Phong Tran “blatantly circumvented his subpoena to appear for cross-
examination” at his trial.
Defendant’s petition attaches handwritten materials raising a myriad
of claims, which, similar to his assertions in his supplemental brief materials
on the appeal, are largely conclusory and unsupported by citations to the
record and legal authority.
For example, defendant states that he “enclosed [ ] fragmentary,
pertinent court documents—transcripts—pertaining to [his] Racial Justice
Motion, i.e., Penal Code Section 745(a)” and points us to page 54 of the
transcript of the hearing on his motion. According to defendant, “It’s a
particular statement from [the trial judge] that should raise eyebrows from
the Higher Court.” In addition, defendant repeats his argument pertaining
to the grand jury proceedings. Moreover, defendant argues: “the Armstead
family . . . was awarded a 2.4 million dollar settlement . . . before I was even
found guilty. To me, that is unfair & prejudice . . . based on the fact that I
pled not guilty to the murder,” going on to reassert this argument in various
ways. (Capitalization omitted.)
Interspersed throughout the handwritten materials are portions of the
transcripts for various proceedings below.
29
In the opposition, the Attorney General argues that “[t]he petition
presents conclusory allegations and fails to allege facts that if true would
warrant habeas corpus relief” and, therefore, “this court should summarily
deny the petition . . . .” The opposition goes on to address, and refute, each of
defendant’s contentions.
In his reply, defendant reiterates his argument regarding the victim’s
family’s settlement in various ways, exemplified by the following: “By the
victim family [sic] receiving that quite large amount of money, even before
my trial—automatically conjures up the perception & impression—that I
committed that crime—even if I would have been found ‘not guilty.’ ” And
this: “I was clearly[ ] pre-judge [sic] before the guilty verdict was rendered.”
Additionally, defendant asserts, for the first time, that his attorney’s failure
to mention the settlement to the court or jury “may be deemed to constitute
‘ineffective assistance of counsel.’ ”
In his supplemental reply, defendant reasserts his contentions
regarding the prosecution’s failure to disclose exculpatory evidence to the
grand jury proceedings and its decision to allege the firearm enhancement in
the operative indictment.
The exhibits filed in connection with the reply and supplemental reply
consist largely of portions of various pleadings and of the transcripts for
various proceedings below, as well as pages of the investigative police report.
We address defendant’s allegations in turn and conclude that
defendant’s conclusory allegations are insufficient to set forth a prima facie
case for habeas relief. (See People v. Duvall, supra, 9 Cal.4th at pp. 474–475.)
Analysis
Defendant’s habeas petition raises some of the same arguments that he
raised in his supplemental brief and related documents in the appeal,
30
specifically that the prosecutor failed to disclose exculpatory evidence to the
grand jury; that the prosecution improperly alleged the firearm enhancement
(§ 12022.5, subd. (a)); and the lead homicide detective in his case failed to
comply with a subpoena to testify at trial. Because these claims were
considered and rejected on the appeal, we likewise reject those same claims
raised in the habeas petition. (See In re Harris (1993) 5 Cal.4th 813, 829,
disapproved on another ground in Shalabi v. City of Fontana (2021)
11 Cal.5th 843, 854–855 & fn. 5.) Defendant’s claims and proffered evidence
in his petition do not render those claims any more viable than as raised on
appeal.
We next address defendant’s allegation based on the RJA. As discussed
above, after the jury rendered its verdict, but before defendant was
sentenced, his counsel filed a motion asserting a violation of section 745 of
the RJA. On October 11, 2024, the court held a hearing on the motion, at the
conclusion of which it denied the motion. In announcing its decision, the
court stated, “the motion is denied with prejudice. Now, I think that means
that we have to move on to sentencing. However, that being said, the Court
of Appeal may disagree with me and send it back for some other appropriate
action, I get that, but I think that’s what would need to happen there. Okay.”
Defendant argues these statements “should raise eyebrows from the Higher
Court” because in making those statements, the trial judge “seems to be
daring, & even, calling-out—& making a affront [sic] to the Court of Appeal.”
Thus, defendant states, “I believe & request that the Court of Appeal, should,
to some degree, in part, express dissent & admonish the Inferior Court
Judge.” Other than taking issue with the trial judge’s statements just
described, defendant raises no other assertion with respect to the substance
of his RJA motion.
31
Initially, the Attorney General asserts that defendant’s challenge to the
denial of his RJA motion should have been presented in the appeal. We
agree. “Proper appellate procedure thus demands that, absent strong
justification, issues that could be raised on appeal must initially be so
presented, and not on habeas corpus in the first instance. Accordingly, an
unjustified failure to present an issue on appeal will generally preclude its
consideration in a postconviction petition for a writ of habeas corpus.” (See
In re Harris, supra, 5 Cal.4th at p. 829.) Here, defendant could have raised,
but did not raise, his challenge to the denial of his RJA motion in his direct
appeal, and the record does not disclose any strong justification for his failure
to do so. Thus, defendant’s challenge is procedurally barred.
But even if the challenge were not barred, defendant fails to state a
prima facie case for relief. He does not explain how the trial judge’s
statements were improper in any way. And we do not interpret the
statements as such. Instead, a commonsense interpretation of the
statements is that the trial judge simply meant what he said: that the Court
of Appeal “may disagree” with his decision to deny defendant’s RJA motion
should any party seek appellate review of it. Defendant has thus failed to
make a prima facie case for relief with respect to the court’s denial of his RJA
motion.
Defendant also asserts that prior to his criminal trial, Miles Armstead’s
family received a “2.4 million dollar settlement” and that this settlement
improperly “pre-judge[d]” his guilt. In support of the claim, defendant
attaches a declaration of his trial counsel that was filed in connection with
defendant’s RJA motion below (and in support of an argument not raised in
his habeas petition). The declaration stated among other things that the
victim’s family filed against the “city and county” a civil suit—in which the
32
family alleged that defendant suffered from mental illness and that the city
and county disregarded his mental health needs—and that the suit settled
for “approximately 2.5 million” dollars.
As the Attorney General asserts, defendant’s claims are entirely
conclusory. For example, defendant does not allege that the jury was aware
of the settlement or, if so, how the civil settlement resulted in the jury
prejudging his criminal guilt. Thus, defendant’s conclusory allegations are
insufficient to state a prima facie case of relief.
The same is true as to defendant’s ineffective assistance of counsel
claim, which is that his trial counsel’s failure to mention the settlement to
the court or jury “may be deemed to constitute ‘ineffective assistance of
counsel.’ ” In the first place, counsel, by filing a declaration that mentions
the fact of the settlement, did inform the court of the settlement. And
regardless, defendant’s ineffective assistance claim fails because it is
predicated on his conclusory claim that the settlement allowed the jury to
prejudge his criminal guilt.
DISPOSITION
The judgment on the appeal (A173261) is affirmed. The defendant’s
petition for writ of habeas corpus (A176048) is denied.
33
RICHMAN, J.
We concur.
STEWART, P. J.
MILLER, J.
(A173261N, A176048N)
34