People v. Thomas CA6

Filed 4/20/23 P. v. Thomas CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047082
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 17CR02251)

v.

JOHN JASON THOMAS,

Defendant and Appellant.

A jury convicted defendant John Jason Thomas of offenses including attempted
premeditated murder (Pen. Code, §§ 664, 187)1 and assault with a firearm (§ 245,
subd. (a)(2)) against multiple victims. Of the multiple claims Thomas raises on appeal,
we find merit in his contention that the trial court’s error in limiting cross-examination of
a key prosecution witness, both independently and as amplified by prosecutorial error in
arguing the reasonable doubt standard, requires reversal of his convictions under
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Because we reject his further
challenges to the constitutionality of the delay in refiling the charges and the sufficiency
of the evidence, however, there exists no legal impediment to retrial on remand.

1 Unspecified statutory references are to the Penal Code.
 I. BACKGROUND
A. The First Trial, Mistrial, and the Operative Information
In 2013, the Santa Cruz County District Attorney initially charged Thomas with
the instant offenses under case number F26035.2 The district attorney then charged
Thomas in two separate complaints with criminal conduct he allegedly committed while
detained in county jail. Although prosecution of the two jail matters proceeded, the
district attorney dismissed case number F26035.3
In April 2015, Thomas was convicted of the two jail matters and sentenced to
prison, but two years later, a panel of this court reversed the convictions. (People v.
Thomas (Apr. 27, 2017, H042200) [nonpub. opn.].)
In April 2017, shortly before the reversal in the unrelated appeal, the district
attorney refiled the instant charges under a new case number, 17CR02551.4 Although

2 We rely on Thomas’s and the prosecutor’s respective recitation of the procedural
history of case number F26035, as the parties do not dispute the accuracy of the
referenced dates and the trial record in case number F26035 is not included with the
record on appeal.
3 In the motion, Thomas’s counsel noted that “[t]he exact date of the dismissal is
not readily available,” but the fact of the prior dismissal was referenced in court at a
hearing held on April 10, 2015. Counsel further alleged on information and belief that
the purpose of dismissal was to await completion of unspecified forensic testing.
4 In part, the information charged Thomas with attempted willful, deliberate,
premediated murder as to victim H.A. (§§ 664, 187, subd. (a); count 1), attempted
carjacking with a deadly weapon as to victim H.A. (§§ 664, 215, subd. (a); count 2),
attempted carjacking with a deadly weapon as to victim C.G. (§§ 664, 215, subd. (a);
count 3), assault with a firearm as to victim P.G. (§ 245, subd. (a)(2); count 4), attempted
carjacking with a deadly weapon as to victim A.A. (§§ 664, 215, subd. (a); count 5),
assault with a firearm as to victim A.A. (§ 245, subd. (a)(2); count 6), assault with a
firearm as to victim O.S. (§ 245, subd. (a)(2); count 7), possession of a firearm with a
prior violent conviction (§ 29900, subd. (a)(1); count 8), and carrying a loaded firearm by
a felon (§ 25850, subd. (c)(1); count 9).

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Thomas initially waived his statutory speedy trial rights, he withdrew his time waiver in
September 2017 and proceeded to trial in January 2018. When the jury deadlocked, the
trial court declared a mistrial later that month.
Between February and August 2018, the trial court first continued Thomas’s retrial
based on a defense motion and later on the need to appoint new counsel due to defense
counsel’s conflict of interest. Upon the appointment of successor counsel in
August 2018, Thomas waived time to November 2018, for trial setting.
In January 2019, Thomas filed a motion to dismiss the information, arguing that
his Sixth Amendment right to a speedy trial had been violated by the district attorney’s
failure to refile the charges until 2017, after this court reversed his convictions in the jail
matters.
Before the trial court ruled on Thomas’s motion to dismiss, the district attorney
filed the operative amended information, charging Thomas with attempted willful,
deliberate, premeditated murder as to victim H.A. (§§ 664, 187, subd. (a); count 1),
attempted carjacking with a deadly weapon as to victim H.A. (§§ 664, 215, subd. (a);
count 2), attempted second degree robbery as to victim H.A. (§§ 664, 211; count 3),
assault with a firearm as to victim P.G. (§ 245, subd. (a)(2); count 4), assault with a
firearm as to victims O.S. and A.A. (§ 245, subd. (a)(2); count 5), possession of a firearm
with a prior violent conviction (§ 29900, subd. (a)(1); count 6), and carrying a loaded
firearm by a felon (§ 25850, subd. (c)(1); count 7). 5 As to counts 1 through 3, it was
alleged that Thomas personally used a firearm within the meaning of sections 12022.5,
subdivision (a)(1) and 12022.53, subdivision (b). As to count 2, it was alleged that
Thomas personally used a firearm within the meaning of section 12022,

5 Counts 1 through 3 were alleged as serious felonies under section 1192.7,
subdivision (c), and counts 2 and 3 were alleged as violent felonies under section 667.5,
subdivision (c).

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subdivision (b)(2). And finally, as to counts 4 and 5, Thomas was alleged to have
personally used a firearm within the meaning of sections 12022.53, subdivisions (a)
and (d). The amended information further alleged that Thomas had one prior strike
conviction (§ 667, subd. (b)-(i)) for committing an assault with a deadly weapon (§ 245,
subd. (a)(1)) and had served three prior prison terms (§ 667.5, subd. (b)).
After the amended information was filed, the trial court denied Thomas’s motion
to dismiss.
B. The Second Trial
1. The Prosecution’s Case
a. The Offenses
The evening of December 18, 2013, C.G. was on her way to sell tamales on Bixby
Street in Santa Cruz, along with her partner, H.A., her then 15-year-old son P.G., and her
infant grandson. H.A. was driving, and C.G. sat in the front passenger seat, with P.G.
and C.G.’s grandson sitting in the back.6 Outside the home of customer A.B., P.G. got
out of the car to go to the house.
A man walking down the sidewalk crossed in front of the car. Seeing the
occupants, he tried to open the car door, which was locked from the inside. The man
took out a gun and pointed it at the car, toward H.A. and C.G. The man struck the
window with the gun at one point.

6 C.G. initially told the police that she was the one driving that evening, not H.A.,
because H.A. had just been in court that morning for a suspended license. When H.A.
first spoke to the police that evening, he also told them that he had not been driving
because he just had a court hearing that day and had pleaded no contest to driving without
a valid license. H.A. had a prior conviction for felony driving under the influence with
another prior conviction back in 2012.

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 Sixteen-year-old O.S. and her mother, A.A., were en route to their home on Bixby
Street when they saw the man banging on the car window.7 O.S. and her mother thought
the man might need help getting in his car, so A.A., who was driving, pulled over. The
man immediately pointed a gun at them, so O.S. told her mother to drive off. They called
911 from their home a few doors away. Computer-aided dispatch records reflect that
O.S.’s 911 call—the first regarding this incident—was at 6:48:06 p.m.
Meanwhile, C.G. yelled for P.G., who was walking back to the car, to call the
police, and the man started to point the gun at P.G. As C.G. screamed, “Not my son,”
P.G. ran back to A.B.’s house and was let inside.
P.G. told A.B. that his family was being robbed. A.B. looked out the window and
saw someone at the other side of the car brandishing a shiny silver handgun and either
“talking or doing something concerning the driver.”
H.A. tried to calm the man down and told him that they had a baby in the car.
C.G. told the man that he could take the car if he wanted. H.A. got out of the car, told the
man that he did not have any money, and tried to give the man his keys. The man did not
want them. C.G. grabbed her grandson and ran to A.B.’s house without looking back.
A.B.’s husband, S.B., went out and saw that there was a man holding “a pistol, a
revolver” in the air, banging the top of the car, and yelling. The man saw S.B., turned to
face him, and pointed the gun at S.B. The man then raised the gun in the air and shook it.
S.B. ducked down, and either he or A.B. dialed 911 at 6:48:23 p.m.
The man yelled at H.A. to drive, but H.A. told him that he could not. The man
looked nervous and desperate, and he waved the gun in different directions, pointing it
variously toward H.A.’s feet, head, and chest.

7 O.S. was unavailable at trial, so her recorded testimony was read into evidence.

5
 H.A. testified that at one point he heard the gun click, though it did not fire. At the
first trial, however, H.A. had been unable to recall whether the man had pulled the
trigger. When H.A. heard the click, the man was not pointing the gun at anything
specific but was waving it in all directions, “pointing towards the front.” H.A. testified,
demonstrating, that the man was “just going like this (indicating) but pointing at all
sides.” 8 Asked by the prosecutor for clarification, H.A. testified the man was pointing
the gun “[t]o my body”; asked if this included his chest, H.A. replied, “Yes.” The man
then “started handling the handgun, and [H.A. didn’t] know if it was to fix it or what.”
S.N., who lived on Bixby Street, heard yelling and someone saying, “Get the fuck
out of the car.” She walked out and saw a man standing outside the driver’s side window
with his arm pulled back, shouting at the car’s driver. S.N. did not see what the man had
in his hand. S.N. ducked, called 911 at 6:50:12 p.m., and the police arrived less than a
minute later.
By the time the police arrived, the man had already left the scene. H.A. recalled
that as more people started appearing, the man slowly backed away from him, and H.A.
saw him walk towards a laundromat at the end of the street before turning out of sight.
b. The Police Response
The initial radio dispatch to officers described the suspect as “a black male in a
gray hooded sweatshirt or sweater” last seen on foot going down Barson Street towards
the Jessie Street marsh.9
Officers arrived at the scene on Bixby Street at 6:51 p.m., three minutes after the
first 911 call. Although there were smudges and marks on the driver’s side window,

8 We understand “(indicating)” to be the court reporter’s comment. The record is
silent as to the nature of H.A.’s nonverbal indication.
9The marsh was approximately two and a half to three blocks away from the
scene of the crime, and there was a 7-11 on Ocean Street that was around 500 feet away.

6
these yielded no high-quality fingerprints. A palm print taken from the window matched
H.A., but the fingerprints on the window were inconclusive. A forensic analyst
compared H.A.’s and Thomas’s comprehensive fingerprints to the latent prints found on
the window, but she did not find any corresponding area of skin between the latent prints
and Thomas’s and H.A.’s prints.
About 6:59 p.m., responding officers detained Thomas, who was spotted standing
in the middle of Ocean Street near Barson Street and La Esperanza market.10 Thomas
was wearing gray sweatpants and a gray sweatshirt—without a hood—and had “obvious”
tattoos. He was breathing heavily and was sweating. His eyes were also “wide open,”
and he had “a look of panic or nervousness.”11
Thomas was cooperative, and when officers searched him, they found nothing on
his person. Thomas said he had been drinking; later testing showed his blood alcohol
concentration to be 0.16 percent.
Officers brought a number of the eyewitnesses to view Thomas as he was detained
in the field. The first eyewitness identification of Thomas was at 7:04 p.m., 16 minutes
after the first 911 call.
c. The Eyewitness Identifications
i. H.A.
The night of the crime, H.A. had described the perpetrator to officers as “tall, fat
with brown skin” and wearing a gray hoodie sweatshirt and gray sweatpants. When
police took H.A. near Ocean Street to see if he could identify the suspect they had

10At trial, a district attorney investigator who went to the scene later opined that it
took about three minutes at a “leisurely walking pace” to go from the scene of the crime
on Bixby to the market where Thomas was later found.

At Thomas’s first trial, the officer who detained Thomas did not testify that
11

Thomas appeared to be sweating.

7
detained, H.A. identified the suspect as the assailant because he “was wearing the same
clothing, . . . the same cap and . . . was the same height, all of it.” After the in-field
identification, H.A. gave a slightly different account of the perpetrator’s clothing as a
“gray sweater,” without reference to a hood.
H.A. testified that his assailant was Black, a little taller than H.A., and well-built.
H.A. identified Thomas in the courtroom as the man he had identified in the field.
During Thomas’s first trial, H.A. had testified that he “didn’t remember a lot of things,”
including what the perpetrator was wearing or how the gun looked. Asked in the first
trial “who in the courtroom looks like” the perpetrator, H.A. had answered, “I cannot say.
I can’t say exactly whether it was this person or that. There’s a person who – the dark-
skinned person. It could be him, but I don’t know.” When asked, “[N]ow are you talking
about the person sitting over there?” H.A. responded, “[W]ell, he’s the only dark-skinned
person here.” Asked “[Y]ou don’t know if that’s the same person?” H.A. said no.
ii. P.G.
P.G. told the police that he thought the perpetrator might be on drugs or was
“crazy” because of the way the man had been behaving. Fifteen to 20 minutes after the
crime, the police drove P.G. twice past Thomas in the field; the first time P.G. saw
Thomas from a distance, and the second time he got a closer view. Both times, P.G.
identified Thomas as the perpetrator. P.G. did not base his identification on Thomas’s
facial features but on his clothing, his size, and his hairstyle.
At trial, P.G. recalled that the perpetrator was “African American, big size.” The
man appeared to be wearing a gray jacket and gray sweatpants. The man did not have a
hood on, and P.G. saw that he did not have a lot of hair and was bald on top. P.G. did not
see any tattoos on the man. The man had been holding a shiny silver revolver.
P.G. identified Thomas in the courtroom as “the person [he] recognized that day.”

8
 iii. C.G.
Speaking to police the night of the crime, C.G. described the gun as silver and
small. Before she participated in the in-field show up, an officer relied on H.A. to
admonish C.G. that the person she was about to see “may or may not be that same person
and to keep an open mind.” Both H.A. and P.G., however, told her that the police had
caught the perpetrator. C.G. then identified Thomas in the field based on “the way he
was dressed.”
At trial, C.G. testified that the perpetrator was wearing a sweater, but she was
unsure if it was gray or white.12 He was also wearing “big, loose” pants. She thought the
man was Black with a “strong” or medium build.13
Although C.G. identified Thomas in court as the assailant, she recalled that she
had been unable to do so in Thomas’s first trial. C.G. acknowledged that she was now
able to identify Thomas because she remembered him at the prior trial.
iv. A.B. and S.B.
A.B. described the perpetrator to the 911 dispatcher as “a light brown person, not
really dark black and not really light Caucasian,” who was “[k]ind of plump” and
wearing a white sweatshirt. He had “just had a bit of hair” and did not have anything
covering his head.
S.B. told the 911 dispatcher that the man was around 230 to 250 pounds and was
wearing a white sweatshirt. He also described the man as “Mexican Latino.”

C.G. could not recall that at Thomas’s first trial, she testified that the assailant
12

was wearing black or similar colors.
13Asked if she had testified in a prior hearing that the perpetrator was “huskier,”
C.G. refreshed her recollection by having a transcript of her prior testimony interpreted
back into Spanish and answered, “That’s what I said, he was rather strong.”

9
 At trial, S.B. testified that he saw the man’s face “clearly,” and the man appeared
to be around “five-eight, five-ten and probably weighed about 200 pounds” and had “very
little hair, dark skin.” The gun the man was holding looked like a revolver and was
metallic.
S.B. had been unable to identify Thomas in the field the night of the offense
because Thomas’s face “contorted” as he squinted into the light the police were shining
on his face. S.B., however, told the police that he thought Thomas looked familiar and
that Thomas had the same build, same sweatshirt, and same hair as the assailant.
v. O.S. and A.A.
O.S. spoke to the police that evening and helped translate for her mother, A.A.,
who spoke Spanish, and answered the police’s questions on both her mother’s behalf and
her own. O.S. told the police that her mother said that the assailant “maybe” had facial
hair. O.S. thought the assailant was about 30 years old. He was wearing a white or light
gray hoodie; O.S. told 911 the hoodie was white but may have been incorrect in her
shock.
A few weeks later, the police showed O.S. several photographs of potential
suspects. O.S. identified the man in photograph number 3 as looking “the most familiar”;
Thomas’s photograph was number 4.14 A.A. was unable to identify anyone from the
photo array.
In her trial testimony, O.S. described the perpetrator as African-American with a
shiny gray gun that looked like a six-shooter gun from an old Western movie.

14
The man in photograph number 3 was a resident of an assisted living facility in
Watsonville. According to the facility’s medication records for the date of the offense,
the resident took his afternoon medication, which is generally administered between 4:00
and 6:00 p.m. A progress note in the records from the day before the offense indicated
that the man generally “[g]oes out daily on the bus,” returns home, and goes to sleep
early at around 6:00 p.m.

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 vi. S.N.
S.N. described the man that she had seen to the police, but it had been dark at the
time, and the person was wearing dark clothes. She was “pretty sure” that the man was
wearing a beanie or a hood or something similar. He was “not a skinny man but he
wasn’t like a huge dude.”
d. The Gun and Execution of the Search Warrant
The day after the crime, police found a .38 caliber silver revolver next to an
apartment complex carport at 317 Ocean Street. Resting on top of some vegetation, the
revolver did not appear to have been there for a long time, because there was no dust or
dew on it. A spiderweb was visible on the hammer, however, and the revolver showed
signs of rust.
The revolver was later determined to be a Smith & Wesson “Hopkins and Allen”
made sometime between 1880 to 1910. The chamber between the cylinder and hammer
no longer latched in place, and there was a large crack all the way across the top strap of
the gun. The crack made the gun unsafe to shoot because it lacked structural integrity.
The crack could also cause the hammer in the firing pin not to reach the round in the
chamber.
When found, the revolver was loaded with five rounds of an incompatible type of
ammunition—“Remington Peters .380 auto” rounds. Ammunition for a .38 caliber
revolver features a “lip” intended to sit on the chamber side of the cylinder, to keep the
round aligned with the firing pin rather than sliding away from the firing pin. The .380
caliber “auto” ammunition, which is slightly shorter and narrower than a .38 caliber
revolver round, lacks this feature. Two of the rounds in the cylinder bore what two
criminalists later identified as “very light” firing pin impressions, though the rounds were
live; one of the two rounds had a toolmark on its sidewall.

11
 Shown a photograph of the gun, O.S. said that it looked like the firearm that she
had seen the assailant use.
After finding the gun, officers obtained a search warrant for an apartment on
Broadway, where Thomas’s father resided. In executing the warrant, officers found 54
rounds of Remington Peters .380 auto ammunition—42 loose rounds and 12 in a bag—
contained in a shoebox, along with a fixed-blade knife, a pair of black gloves, and a
yearbook belonging to Thomas’s 21-year-old son, who sometimes stayed at the
apartment. Of the .380 ammunition found in the apartment, two rounds from the bag of
12 exhibited markings consistent with a light firing pin strike.
No .380 caliber firearm was found inside the apartment. Other items that had
Thomas’s name on it were found inside the apartment.
Additional 9-millimeter ammunition was found in an adjacent shoebox, along with
letters relating to Thomas’s son. Thomas’s son—“tall, very thin,” with “dark brown hair”
and tattoos—arrived as police were searching the apartment. He was carrying a
9-millimeter semiautomatic handgun loaded with 9-millimeter ammunition.
e. Firearm Testing and Forensic Analysis
Aron Tripp, a district attorney investigator, test fired the revolver using primed
.380 caliber casings.15 The revolver consistently failed to fire except when angled up
45 degrees; even at 45 degrees, the revolver only fired one or two times out of five.
Otherwise, pulling the trigger would cause the firing pin to merely “bounce the casing
forward” without actually detonating the primer; the casing would then slide back. With
each misfire, the firing pin left an indentation mark on the otherwise intact primer.
Although the revolver—“if the circumstances were right with the cartridge in the proper

15The test fires used only casings and primer without gunpowder or projectiles
because the damaged revolver was not otherwise safe to fire.

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orientation to the breech face and the firing pin”—could detonate the primer and expend
a .380 caliber automatic cartridge, it was unclear whether the projectile would be
properly propelled through the barrel “or how effective it would be.”
Criminalist Adam Lutz was tasked with deciphering whether firing pin
impressions on the cartridges recovered from inside the cylinder of the revolver were
made by the revolver. The firing pin impressions found on two of the five evidence
cartridges recovered from the revolver were different from each other, and there was not
enough information to determine whether the impressions were from the same revolver
and firing pin. These firing impressions were also lighter than the marks Lutz was able to
produce with the same revolver in a series of test misfires of primed .380 caliber casings.
Lutz was able to reproduce firing pin impressions as light as those in the evidence rounds
found in the revolver by inserting a brass rod down the revolver barrel and tapping the
rod with a hammer to force the primer against the firing pin “in reverse.” Even then,
“there still wasn’t much microscopic detail on the marks to make a conclusion whether
it’s an ID or whether it’s excluded.”
Criminalist John Murdock was given unfired .380 auto caliber cartridges that were
taken both from the apartment of Thomas’s father and from the gun itself. In Murdock’s
opinion, the firing pin impressions on the two rounds from the revolver “may possess
sufficient microscopic detail for comparison purposes” and were “very similar in their
overall appearance” to firing pin impressions he made in testing the revolver. As for the
.380 cartridges taken from the apartment of Thomas’s father, Murdock made casts of the
light firing pin impressions found on two of the cartridges and compared these with casts
of test-firing impressions that he made with the firing pin of the revolver. Based on his
comparison of the casts, Murdock opined that the firing pin in the revolver had made the
two light firing pin strikes on two cartridges found inside the apartment. Another expert
in Murdock’s laboratory reached the same conclusion.

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 On cross-examination, Murdock was questioned about “a report to the President of
Forensic Science in Criminal Courts[:] Ensuring Scientific Validity of
Feature[-]Comparison Methods” that questioned the scientific validity of forensic
toolmark analysis. Murdock opined that “the PCASS report”16 merely said that there
wasn’t enough “black box scientific studies” to support firearm and toolmark
identification to determine an error rate. According to Murdock, the report ignored
“hundreds of studies.” Murdock characterized toolmark comparisons as “scientific” but
acknowledged the comparison process was subjective in that different experts could
reach different conclusions based on identical evidence.
DNA testing of swabs from the revolver’s “rough areas” and sides of the trigger
guards was inconclusive. No fingerprints of value were found on the revolver, and no
fingerprints were found on the ammunition in its cylinder.
2. The Defense
In the defense case, Thomas sought variously to discredit the eyewitness
identification, establish the absence of physical evidence implicating him in handling the
revolver, and establish an alibi.
a. Eyewitness and Identification Expert
Dr. Daniel Reisberg, an expert in the reliability of witness memories and the
practice of conducting police showups or lineups, testified that multiple studies have
shown that eyewitnesses to real crimes choose “fillers” in police lineups—photographs of
individuals the police put in a lineup that police know are “nowhere close to the crime”—

16 We understand the reference to “PCASS” in the reporter’s transcript to be a
clerical error and a mistranscription of the term “PCAST”—the President’s Council of
Advisors on Science and Technology. (See
[as of Apr. 20,2023] archived at .)

14
and make mistakes in their identifications around 30 to 35 percent of the time. According
to Reisberg, confirmatory bias can impact eyewitness identification. For example, people
often trust the police, and, as a result, when police officers take an eyewitness to an
infield lineup, eyewitnesses may go into the process assuming that the police have
apprehended the right suspect and that their role is merely confirmatory. In Reisberg’s
opinion, in-court identifications are, scientifically speaking, a “terrible way” to identify
someone as there is only one person to identify. He urged that properly instructing
eyewitnesses, such as informing them that the suspect may or may not be the perpetrator,
before they make identifications can improve the quality of eyewitness evidence.
Reisberg opined that delays in presenting an eyewitness a show-up can be
problematic because witness memories may fade. Alternatively, presenting the witness
with a suspect too soon may lead a witness to infer from the suspect’s prompt
apprehension that the suspect must be the perpetrator.
Moreover, Reisberg observed that the duration of a witness’s initial observation of
a perpetrator also impacts the reliability of later identification, although there is no bright-
line rule about how many seconds a person needs to memorize another person’s facial
features. Reisberg noted that studies have shown that a calm witness, forewarned of a
coming “crime” and able to view the supposed “perpetrator” unobstructed for eight to ten
seconds, will nonetheless misidentify the “perpetrator” in a lineup 70 to 75 percent of the
time and “are 3 times more likely to get it wrong than to get it right in that setting.”
According to Reisberg, other factors also impact identification. Lighting and the
direction of the light can create strong shadows. Stress can also impact memory—it can
have a “positive effect” if one wants a one-sentence summary of what transpired but not
if you want additional details about what happened. Stress can also impact a witness’s
ability to verbally describe what happened. Reisberg further noted that the complexity of

15
the event may also impact memory—for example, a witness may focus on a gun over the
perpetrator’s face.
Furthermore, Reisberg testified that a witness’s certainty in their identification can
be impacted by multiple factors, and a witness can be artificially certain about what he or
she saw. For example, he noted that a witness’s certainty can be affected if someone who
has already viewed a show-up tells the witness, “that’s the guy.” According to Reisberg,
memories do not improve with time; instead, witnesses may experience “misplaced
familiarity”—where a person initially unable to make an identification may, at a second
viewing, think that a suspect looks familiar without appreciating why. In other words,
the eyewitness may mistake recognition of the person from the show-up, lineup, or court
appearance with recognition of the perpetrator from the commission of the crime.
For similar reasons, Reisberg concluded that in-field showups can be a
“worrisome procedure.” In his view, a recommended procedure is to arrest the
perpetrator that has been identified through a show-up and then do any later
identifications with a lineup. According to Reisberg, photo lineups are better than
showups.
Considering a hypothetical that tracked how the in-field showups were conducted
in this case, Reisberg opined that he would be “very, very careful about” relying on or
giving great weight to the identifications.
b. DNA Expert
Marc Taylor, a private lab director, testified as an expert in DNA analysis and
interpretation. Taylor’s lab conducted DNA testing on a swab that came from the
revolver in the case. Because there was not enough DNA on any single area of the gun to
test, Taylor combined the DNA samples from the rough area of the grips and the trigger
area into one sample to conduct testing.

16
 In 2014, Taylor’s laboratory prepared a report that excluded Thomas as a
contributor to the mixture of DNA profiles in the combined sample. Applying more
current scientific practices at the time of trial, the lab would have characterized the DNA
results as inconclusive. Nonetheless, Taylor opined that Thomas’s DNA was not on the
gun. The absence of a person’s DNA on an object, however, did not mean that the person
did not touch it, in Taylor’s opinion.
c. Thomas’s Testimony
On December 18, 2013, Thomas was watching a basketball game with E.H., his
girlfriend at the time, at his father’s apartment at around 5:00 p.m. 17 He left his father’s
apartment sometime in the evening with $5 that E.H. had given him to purchase alcohol.
At the liquor store, he purchased a bottle of whiskey for less than $5 and went down to
the levee to drink. Thomas could not recall what happened to the change he received
from the store. He went to an area of the levee where “a lot of us hang out that are
homeless,” but he did not see anyone else in the area at the time. 18
After he finished his drink, he headed back toward Ocean Street, intending to buy
another drink for E.H. at the 7-11. He had no money, but he planned to borrow
someone’s phone so he could call E.H.
As he was walking down Ocean Street, he saw a police car stop and start to back
up in the middle of the street. Thomas asked the officer what was going on. The officer
in the car detained Thomas at gunpoint. That evening, Thomas was wearing a sweatsuit

17E.H., called as a witness in the prosecution’s case in chief, had been friends with
Thomas for over 20 years and had dated him for two years. On the night of the offense,
E.H. denied having given Thomas any money before he left the apartment. Thomas
never came back, and E.H. went home.
18Thomas later testified that he been waiting for someone, but he got tired of
waiting and left.

17
with a sweatshirt that did not have a hood. At the time, he was missing two front teeth
and had a tattoo on his neck and eye.
Thomas smoked, had asthma, and was not in the best of shape, but he did not
recall that he was sweating that evening. He initially told officers that he had been
walking to the 7-11 to buy beer for himself. He also gave officers a different name for
his girlfriend and said he did not know his girlfriend’s number even though he later called
E.H. that night. Thomas did not want to say where E.H. was because she was at his
father’s apartment. He also did not tell the police where his father lived. According to
Thomas, he did not want the police to know about E.H. because she had not been paying
child support, and he did not want her to get in trouble.
Thomas denied having a gun with him that night and denied involvement in the
confrontation on Bixby Street. He denied knowing anything about the gun involved in
this case and testified that he had never seen the gun before. Thomas had access to the
dining room where some of the ammunition was found. But Thomas did not know that
there was ammunition inside his father’s apartment, and he generally did not search his
son’s drawers or living areas. Thomas also did not live at his father’s apartment; he only
occasionally stayed overnight. He did not have keys to the apartment, and he got inside
by knocking if his father was home. Although Thomas left some of his belongings inside
the apartment and occasionally listed the apartment as his address, Thomas himself was a
transient.
In 2006, Thomas was convicted of a felony violation of section 245,
subdivision (a)(1), an assault with a deadly weapon that was not a gun. At the time of the
crime, he was on parole and was not permitted to drink or possess alcohol, or to go to
liquor stores or bars.

18
C. The Verdict and Sentencing
On March 1, 2019, the jury found Thomas not guilty on count 2 (attempted
carjacking of victim H.A.) and guilty on all other counts as charged. The jury also found
all the alleged firearm enhancements to be true. On June 13, 2019, the trial court found
Thomas’s prior prison terms, prior serious felony convictions, and prior strike conviction
allegations to be true.
On July 9, 2019, the trial court sentenced Thomas a total term of 42 years to life.
The term was composed of: an indeterminate term of 14 years to life for count 1 with an
additional 10 years for the firearm enhancement, eight years (the upper term of four
years, doubled) for count 4, concurrent four-year terms (the midterm of two years,
doubled) for counts 3 and 6, a concurrent six-year term (the midterm of three years,
doubled) for count 5, a four-year term (the midterm of two years, doubled) for count 7
that was stayed under section 654, a 10-year term for the firearm enhancement for count
4, and concurrent 10-year terms for the enhancements for counts 3 and 5. The trial court
struck the enhancements for Thomas’s prior prison terms.
II. DISCUSSION
A. Denial of Cross-Examination as to H.A.’s Potential for Bias
Thomas argues that the trial court infringed upon his Sixth Amendment right to
confront his accuser by foreclosing cross-examination as to H.A.’s actual and potential
criminal prosecution by the same agency currently relying on his testimony. Because the
proffered evidence would have left a reasonable jury with a significantly different
impression of H.A.’s credibility, we agree it was error to permit H.A. to testify for the
prosecution without submitting to the excluded cross-examination.
1. Background
In limine, defense counsel sought leave to cross-examine H.A. regarding the
potential for bias arising from what counsel proffered was (1) his alleged commission in

19
February 2018 of an uncharged stabbing in Santa Cruz County, and (2) his pending
prosecution in the same jurisdiction for simple trespass, instead of an aggravated trespass,
for a December 2018 incident “where [the trespass] was clearly aggravated.” In a
hearing under Evidence Code section 402, H.A. testified outside the presence of the jury
that he was represented by counsel in a matter then pending in the same superior court.
On the advice of counsel, who asserted H.A.’s Fifth Amendment right against self-
incrimination, H.A. declined to answer questions about the alleged criminal conduct.
H.A. also refused to answer whether in February of 2018, he “had some police contact
with regard to a matter.” H.A. agreed that in December 2018, he “had a small problem”
of “hearing voices in his head,” but he denied that this problem dated as far back as the
date of the instant 2013 offenses. H.A. denied having received any benefit from the
district attorney, including as to his pending matter, in return for his testimony against
Thomas.
Defense counsel ultimately requested that the trial court grant H.A. immunity or
bar him from testifying at all, but the trial court declined on the ground that the proposed
cross-examination was irrelevant. The trial court reasoned that, absent “evidence . . . that
shows that there has been any benefit conferred, dispensation offered, dispensation
suggestion to [H.A.] in exchange for testimony in Mr. Thomas’ case,” the court failed to
see “any level of relevance to an incident that allegedly happened five years after the
subject incident.”
Defense counsel clarified that she was not contending that H.A. had received or
been offered any “actual benefit.” Rather, her position was that H.A. might nonetheless
be influenced in his testimony by the perception of “some benefit because of his position
as a witness” for the same prosecuting agency that was pursuing the simple trespass
charge and retained discretion to charge him in connection with the alleged stabbing.

20
The trial court disagreed with defense counsel’s stated concern that her line of
questioning was necessary to a fair trial.
2. Legal Principles
The Confrontation Clause of the Sixth Amendment guarantees a criminal
defendant the right to test the credibility of adverse witnesses through cross-examination:
“ ‘ “[T]he main and essential purpose of confrontation is to secure for the opponent the
opportunity of cross-examination.” ’ [Citations.]” (Del. v. Van Arsdall (1986) 475 U.S.
673, 678; U.S. Const., 6th Amend.) Among the “proper and important function[s]” of the
constitutional right is “the exposure of a witness’ motivation in testifying.”19 (Id. at
pp. 678-679.) The Confrontation Clause does not prevent a trial court from restricting
cross-examination of an adverse witness under Evidence Code section 352. (People v.
Quartermain (1997) 16 Cal.4th 600, 623-624 (Quartermain); see Evid. Code, § 352
[authorizing exclusion of relevant evidence “if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury”].) But limiting cross-examination pertaining to the credibility of a
prosecution witness violates the Confrontation Clause if “a reasonable jury might have
received a significantly different impression of the witness’s credibility had the excluded
cross-examination been permitted.” (Quartermain, supra, at p. 624.)

19 When a witness “frustrates cross-examination by declining to answer some or
all of the questions, the court may strike all or part of the witness’s testimony.” (People
v. Price (1991) 1 Cal.4th 324, 421, superseded by statute on other grounds as stated in
People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165; see also Fost v. Superior Court
(2000) 80 Cal.App.4th 724, 735-736 [when witness refuses to submit to cross-
examination, even if refusal to answer is based on claim of privilege, the conventional
remedy is to exclude the witness’s testimony on direct].)

21
 Where the relevant facts are undisputed, we review de novo claims that implicate a
defendant’s constitutional right to confrontation. (People v. Seijas (2005) 36 Cal.4th 291,
304.)
3. Analysis
As a testifying witness, H.A.’s credibility—up to and including at the time of
trial—was plainly at issue. (See People v. Hinton (2006) 37 Cal.4th 839, 887
[impeachment evidence can postdate the charged offense as impeachment “tests the
defendant’s credibility as a witness during trial”].) Accordingly, defense counsel sought
to cross-examine H.A. regarding his potential liability for both uncharged acts and his
then-pending criminal case as relevant to his credibility.
“It is longstanding law that a prosecution witness can be impeached by the mere
fact of pending charges.” (People v. Martinez (2002) 103 Cal.App.4th 1071, 1080.) A
defendant is thus “permitted to inquire whether charges are pending against a witness as a
circumstance tending to show that the witness may be seeking leniency through
testifying.” (People v. Claxton (1982) 129 Cal.App.3d 638, 661.) “As a general matter, a
defendant is entitled to explore whether a witness has been offered any inducements or
expects any benefits for his or her testimony, as such evidence is suggestive of bias.”
(People v. Brown (2003) 31 Cal.4th 518, 544.) “A more particular attack on the witness’
credibility is effected by means of cross-examination directed toward revealing possible
biases, prejudices, or ulterior motives of the witness as they may relate directly to issues
or personalities in the case at hand.” (Davis v. Alaska (1974) 415 U.S. 308, 316 (Davis).)
Here, the evidence of H.A.’s independent troubles with law enforcement—
irrespective of the details or truth of the allegations against him—was relevant to H.A.’s
present state of mind when he testified against Thomas. Although it was undisputed that
H.A. had been offered no actual benefit in exchange for his testimony, “there is no
requirement that [a witness’s] motive to fabricate [have] a reasonable basis for its

22
existence.” (People v. Allen (1978) 77 Cal.App.3d 924, 932 (Allen).) H.A., by the time
of trial, was in more than purely theoretical legal jeopardy, represented by both his
pending criminal trespass prosecution and what Thomas’s counsel proffered was a
reported stabbing offense a year earlier. His potential criminal exposure in the same
jurisdiction was a circumstance from which the jury could have inferred that H.A. may
have felt obligated to testify on behalf of the prosecution or align his testimony to the
prosecution’s theory of the case.
Whether H.A. had a motive to shade his testimony to match the prosecution’s
theory of the case or was otherwise susceptible to pressure by the prosecution by virtue of
his pending charges were issues for the jury’s determination, not the trial court’s
unilateral assessment. (Allen, supra, 77 Cal.App.3d at p. 932.)
Moreover, the evidence would not have been unduly prejudicial. “Evidence is not
prejudicial, as that term is used in [the Evidence Code] section 352 context, merely
because it undermines the opponent’s position or shores up that of the proponent. The
ability to do so is what makes evidence. The code speaks in terms of undue prejudice.”
(People v. Doolin (2009) 45 Cal.4th 390, 438-439.) Evidence is unduly prejudicial when
“it is of such nature as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is relevant, but to reward or
punish one side because of the jurors’ emotional reaction.” (Id. at p. 439.) Here,
introducing the specific evidence underlying H.A.’s alleged criminal conduct—i.e.,
eliciting that the stabbing in February 2018 involved a screwdriver—had the potential to
cause undue prejudice. Yet here, the trial court excluded all mention of H.A.’s
uncharged conduct, even declining to compel an answer outside the presence of the jury
to the foundational question of whether H.A. had been “contacted by law enforcement in
relationship to another matter that he’s not in court for.” We reject the proposition that a
limited inquiry into the bare fact of H.A.’s pending charge and his contacts with law

23
enforcement regarding his alleged criminal activity would have inflamed the jury or
necessitated an undue consumption of time. Moreover, the trial court could have
mitigated any perceived potential for prejudice with a limiting instruction on the proper
use of such evidence. (See People v. Homick (2012) 55 Cal.4th 816, 866 [limiting
instruction can cure potential prejudice].) Given the minimally prejudicial nature of the
evidence and its probative value as to H.A.’s credibility, we conclude that the trial court
abused its discretion under Evidence Code section 352 by excluding the evidence.
More importantly, the error in limiting Thomas’s cross-examination of H.A. on
this subject violated his right to confront witnesses under the Sixth Amendment. By
excluding Thomas from inquiring into H.A.’s uncharged acts, the trial court prohibited
him from exposing potential bias in favor of the prosecution. In Davis, for example, the
United States Supreme Court held that the petitioner was denied his right to effective
cross-examination when the trial court precluded him from questioning a crucial
prosecution witness about his status as a juvenile probationer at the time he identified the
petitioner and at the time of trial. (Davis, supra, 415 U.S. at pp. 310-318.) Defense
counsel had intended to introduce the evidence to show, or at least argue, that the witness
acted out of fear or concern that his probationary status might be jeopardized, or that he
might have made a faulty identification of the petitioner to deflect suspicion away from
himself. (Id. at p. 311.) Davis concluded that “[t]he claim of bias which the defense
sought to develop was admissible to afford a basis for an inference of undue pressure
because of [the witness’s] vulnerable status as a probationer, [citation], as well as of [the
witness’s] possible concern that he might be a suspect in the investigation.” (Id. at
pp. 317-318, fn. omitted.) Davis thus held that the defense counsel should have been
“permitted to expose to the jury the facts from which jurors, as the sole triers of fact and
credibility, could appropriately draw inferences relating to the reliability of the witness.”
(Id. at p. 318, italics added.)

24
 Likewise, in Delaware v. Van Arsdall (1986) 475 U.S. 673 (Delaware), the trial
court precluded the defense from cross-examining a prosecution witness about the
dismissal of a criminal charge against him. (Id. at p. 676.) The witness acknowledged
that the criminal charge had been dropped in exchange for his promise to testify at the
defendant’s trial, but he denied that the agreement affected the substance of his
testimony. (Ibid.) The United States Supreme Court held that by “cutting off all
questioning about an event that the State conceded had taken place and that a jury might
reasonably have found furnished the witness a motive for favoring the prosecution in his
testimony, the court’s ruling violated [defendant’s] rights secured by the Confrontation
Clause.” (Id. at p. 679, fn. omitted.)
Here, as in Davis, limiting the cross-examination in this case withheld from the
jury facts from which it could legitimately question H.A.’s credibility as a trial witness.
(Davis, supra, 415 U.S. at p. 318.) And even without the undisputed quid pro quo at
issue in Delaware, cross-examining H.A. even just about the fact of the pending
prosecution and the law enforcement reports of the allegedly criminal conduct could have
permitted the jury to draw an adverse inference about the veracity of H.A.’s testimony.
(Delaware, supra, 475 U.S. at pp. 676, 679.) Despite H.A.’s denial that he received any
benefit or promises in exchange for his testimony, a juror could have reasonably inferred
that the continued risk of prosecution for the uncharged stabbing or amendment of the
pending charges to allege an aggravated trespass—by the same agency now calling H.A.
as a witness—provided him with an incentive to testify more favorably for the
prosecution. (Cf. People v. Dyer (1988) 45 Cal.3d 26, 48 [charges against witnesses
were resolved before witnesses testified against defendant; “thus, no leverage remained
over these witnesses”].)20 In other words, a reasonable juror could have “received a

20 The Attorney General notes that this court should evaluate the trial court’s
ruling limiting H.A.’s cross-examination based on the facts before the court at the time—
25
significantly different impression” of H.A.’s credibility had Thomas been permitted to
inquire into the uncharged acts. (Delaware, supra, 475 U.S. at p. 680.) We next address
whether the lost opportunity to expose a potential for bias prejudicial on this record .
B. Prejudice
As an error of federal constitutional dimension, the infringement of Thomas’s
right to confront witnesses requires the application of the harmless-beyond-a-reasonable-
doubt test articulated in Chapman, supra, 386 U.S. at page 24. (Delaware, supra, 475
U.S. at p. 684; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225.) Under Chapman,
“[t]he test is not whether a hypothetical jury, no matter how reasonable or rational, would
render the same verdict in the absence of the error, but whether there is any reasonable
possibility that the error might have contributed to the conviction in this case. If such a
possibility exists, reversal is required.” (People v. Lewis (2006) 139 Cal.App.4th 874,
887 (Lewis).) In this case, we conclude that the Attorney General has not met its burden
to demonstrate that the error was harmless as to any count of conviction.
H.A. was a crucial prosecution witness, if not the most crucial, as the victim of the
most serious offense and the eyewitness with the closest, most extended contact with the
perpetrator. His testimony was critical to the jury’s determination of Thomas’s guilt on
the count of attempted murder, as H.A. was the only witness who testified that he heard
the gun click when Thomas had the gun pointed toward his body. By that time, both
C.G. and P.G. had already run toward A.B.’s house. None of the other witnesses testified

which would not have involved a consideration of H.A.’s evolving testimony between the
first and second trials. (See People v. Hernandez (1999) 71 Cal.App.4th 417, 425 [“[w]e
may assess the trial court’s ruling only on the facts made known to it at the time it made
that ruling”].) Although the differences between H.A.’s testimony in the first and second
trials factors into our prejudice analysis, post, we conclude here that the limitation on
cross-examination violated the Confrontation Clause based on the facts available to the
trial court at the time it made its ruling.

26
that they saw Thomas attempt to fire a gun toward H.A. or heard anything consistent with
an attempt to fire the gun at all; H.A.’s testimony was therefore not cumulative on this
point. Likewise, H.A.’s testimony at trial was probative as to the identification of
Thomas as the perpetrator of the crime, as he identified Thomas at the second trial.
Although multiple other witnesses also identified Thomas as the perpetrator—
including C.G. and P.G.—the identification made by the eyewitnesses were inconsistent
and suffered from multiple deficiencies. As we noted, ante, the eyewitnesses’
descriptions of the perpetrator were varied; some eyewitness, including H.A., identified
Thomas based on his clothing, but the witnesses did not consistently describe the color
and characteristics of the perpetrator’s clothing—in fact, H.A. initially said that he
believed Thomas was wearing a hood, but Thomas was not wearing a hooded sweatshirt.
The witnesses also had differing accounts about the perpetrator’s skin color and other
physical characteristics. And C.G.’s in-field identification of Thomas was arguably
tainted by H.A.’s having already told her that the police had apprehended their assailant.
To be sure, Thomas’s counsel ably exposed the inconsistencies over time in
H.A.’s accounts of the crime, description of the perpetrator, and identification of Thomas,
as well as H.A.’s claim that C.G. had been the driver at the time they were victimized .
But evidence of H.A.’s potential bias due to his vulnerability to prosecution by this
district attorney could have offered the jury an explanation for the discrepancies between
his statements at Thomas’s first trial, where he could neither identify Thomas nor recall
the gun clicking at all, and the second trial, where his testimony supported the attempted
murder charge and he positively identified Thomas in court. At the least, H.A.’s
uncharged acts suggested a reason that H.A. might be inclined to align his testimony to
the prosecutor’s theory of the case, as he was facing unresolved criminal charges before
the same court that he was testifying in. The cross-examination on potential bias having

27
been excluded, the jury had no basis to even question H.A.’s good faith in his newest,
more inculpatory testimony.
As we will further address at II.D.3.b, post, we acknowledge the sufficiency of
circumstantial evidence tending to show that it was Thomas who was the perpetrator of
the crimes, aside from the eyewitness identification by H.A. The circumstantial evidence
included the eyewitness description of the silver revolver to the revolver found nearby,
the firing pin impressions on two rounds in the cylinder suggestive of misfires, the
matching ammunition at the residence where Thomas had spent the day, and expert
testimony as to the significance of markings on two rounds of that matching ammunition
pointed to Thomas as the perpetrator. O.S. said that the revolver found near Ocean Street
looked like the one used by the perpetrator, and there was some forensic evidence—the
light firing pin marks—that suggested that the revolver that was found made marks on the
ammunition found inside the apartment of Thomas’s father. That there is sufficient
evidence that Thomas was the perpetrator—despite the first jury’s deadlock and the
duration of this jury’s deliberations—has no bearing on whether the jury found the issue a
close one, however. Our Chapman inquiry calls for us to determine whether the error in
limiting Thomas’s cross-examination of H.A. would have been material to this jury;
“[t]he inquiry, in other words, is not whether, in a trial that occurred without the error, a
guilty verdict would surely have been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993)
508 U.S. 275, 279 (Sullivan).)
Moreover, Chapman review requires us to determine whether there is “any
reasonable possibility that the error might have contributed to the conviction in this case.”
(Lewis, supra, 139 Cal.App.4th at p. 887.) Although the overwhelming character of
evidence of guilt may in some cases inform our assessment of prejudice, we are unable to
overlook the indications in the record that the firearm-based identification evidence was

28
not dispositive for this jury, which heard cross-examination designed to discredit the
reliability of Murdock’s toolmark identification linking the found revolver to the
ammunition at the apartment of Thomas’s father and also heard testimony from another
prosecution expert, Lutz, who opined that there was insufficient microscopic detail to
permit even a conclusion that the markings on the two rounds in the revolver cylinder
were from that revolver’s firing pin. The jury asked a number of questions during
deliberations, two of which suggest they had issues with the identification of Thomas as
the perpetrator—and in particular, H.A.’s account of the events. After initially requesting
a readback of testimony from each of the Spanish-speaking witnesses, the jury narrowed
their request to a readback of only H.A.’s testimony, and only his testimony at the second
trial “in relation to ‘hoodie’ compared to [his] previous statement made in 2018 trial” as
elicited during the defense’s cross-examination. Following the readback, the jury asked
for readback regarding “Officer Rodriguez’s report—notes during interview with [H.A].”
At trial, Rodriguez testified about H.A.’s statements at the scene, including H.A.’s initial
description of the “gray hooded sweatshirt” and his post-identification description of a
“gray sweater” without mention of a hood, and H.A.’s role in admonishing C.G. The
jury’s questions thus reflect that there may have been at least one juror who was
concerned about the issue of identification—and H.A.’s testimony about what he saw that
evening.
Based on the foregoing, there is a reasonable possibility that precluding Thomas
from adequately cross-examining H.A. may have contributed to the verdict. Evidence
tending to undermine H.A.’s present credibility would also tend to undermine the
apparent strength of H.A.’s identification of Thomas as the perpetrator, as well as H.A.’s
testimony about the circumstances in which he heard the perpetrator pull the revolver’s
trigger. Accordingly, when we consider the prejudicial impact the trial court’s error, we
are not convinced beyond a reasonable doubt that the limitation on H.A.’s cross-

29
examination did not contribute to the jury’s verdict. (Chapman, supra, 386 U.S. at p. 24.)
We must therefore reverse the judgment.
C. Prosecutorial Misconduct
Although we find that the trial court’s error in limiting H.A.’s cross-examination
by itself to be prejudicial error, we further observe that the prejudice to Thomas from the
one-sided admission of H.A.’s testimony was reinforced by the prosecutor’s
mischaracterization of the reasonable doubt standard in closing argument: “Reasonable
doubt. . . . There must be something reasonable in the evidence that points to him[,]
saying that he is—based on the evidence that says he’s innocent; right? That’s what
we’re looking at. There’s nothing in evidence. Everything that points to him says he is
guilty of these crimes. The purpose of reasonable doubt is to prevent the conviction of
innocent people. That is why it is there.” The trial court neither sustained nor overruled
defense counsel’s timely objection, stating only: “The jury will follow the law as the
Court has instructed.”
Even a good-faith misstatement of the law in closing argument—particularly a
misstatement that would “absolve the prosecution from its … obligation to overcome
reasonable doubt on all elements” (People v. Centeno (2014) 60 Cal.4th 659, 666)—
constitutes prosecutorial error where there is a “ ‘ “reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable fashion” ’ ”
(People v. Williams (2013) 56 Cal.4th 630, 671). “What the factfinder must determine to
return a verdict of guilty is prescribed by the Due Process Clause. The prosecution bears
the burden of proving all elements of the offense charged [citations], and must persuade
the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of
those elements . . . .” (Sullivan, supra, 508 U.S. at pp. 277-278.) Accordingly, we
review prejudice from prosecutorial error in misstating the reasonable doubt standard
under Chapman. (See People v. Fernandez (2013) 216 Cal.App.4th 540, 564; People v.

30
Katzenberger (2009) 178 Cal.App.4th 1260, 1269 [applying Chapman standard of review
to prosecutorial error in misstating burden of proof and reasonable doubt standard].)
We recognize the distinction between an otherwise permissible comment that a
defendant has failed to counter prosecution evidence on a particular point “and on the
other hand an improper statement that a defendant has a duty or burden to produce
evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford (1997)
15 Cal.4th 1229, 1340.) But the prosecutor’s argument here misstated the reasonable
doubt standard and shifted the burden of proof to Thomas to prove he was not guilty of
the charged offenses. There is no need for affirmative “evidence that says he’s
innocent”—a jury may properly conclude that the prosecution has failed to overcome the
presumption of innocence beyond a reasonable doubt left by deficiencies in the
prosecution’s own case.
Although the prosecutor initially acknowledged that “[i]t’s my burden; right” and
that he had to prove “that it is the [d]efendant,” the argument he proceeded to draw from
this general principle conveyed that positive proof of innocence was required before a
jury could find the prosecution had not met its burden, whether as to the identity of
Thomas as the perpetrator or as to any individual element of any charged offense. The
prosecutor’s added comment that the purpose of the reasonable doubt standard was to
protect the actually innocent only amplified the suggestion that Thomas was obliged to
earn the presumption of innocence by meeting a burden of production.
That the jury was reasonably likely to have construed the prosecutor’s remarks in
an objectionable fashion was only underscored at oral argument, where the Attorney
General theorized that the prosecutor’s argument “was aimed at that the concept that, if
[the jurors] heard the defendant tell a story that they did not believe and they found that
he was not credible, then they would not have a reasonable doubt that pointed to
innocence as opposed to guilt. [¶] . . . [¶] Was there something there that showed

31
[Thomas’s] innocence rather than his guilt, that gave them a reasonable doubt.”21 This is
precisely the objectionable interpretation the jury likely drew from the prosecutor’s
comments—that once Thomas elected to testify in his own defense, it became his burden
to produce credible proof of innocence and that a failure to meet this new burden
absolved the prosecution of its burden to overcome the presumption of innocence and the
jury of its duty to nonetheless scrutinize the prosecution case for shortcomings. To be
sure, the Attorney General in response to our questions went on to acknowledge that a
jury could nonetheless acquit a testifying defendant whom it did not believe, but this
essential clarification was absent from the prosecutor’s closing argument at trial.
As we have discussed, the jury heard H.A.’s testimony without evidence from
which the jury might otherwise have inferred that its evolution since Thomas’s first
trial—H.A.’s ability to unequivocally identify Thomas in the courtroom as the
perpetrator, his new recollection of having heard two clicks of the revolver, his
willingness to agree that the gun was pointed at his chest—was not merely coincidental to
H.A.’s vulnerability to the prosecutor’s charging discretion in his own pending and
potential criminal matters. The prosecutor’s misstatement of the reasonable doubt
standard further eroded any likelihood that the jury’s scrutiny of H.A.’s testimony met
constitutional standards of due process. And although the trial court instructed the jury to
“follow the law as the Court has instructed,” this did nothing to correct the prosecutor’s
misstatement of the standard or even acknowledge the fact of the misstatement. (Cf.
People v. Mendoza (2007) 42 Cal.4th 686, 701 [trial court’s admonishment to jury to
disregard statements and chastise prosecutor ameliorated prosecutorial misconduct].)

21 The Attorney General’s theory notwithstanding, the prosecutor did not argue
that Thomas’s testimony lacked credibility and thus could not create a reasonable doubt
as to his guilt. Rather, the prosecutor argued broadly that “[t]here must be something
reasonable in the evidence . . . that says he’s innocent . . . .”

32
D. Remaining Issues
Although our reversal of the judgment makes it unnecessary to reach some of
Thomas’s remaining claims, we address those that would either preclude or inform a
retrial—whether delay in prosecution violated his Sixth Amendment right to a speedy
trial; whether Fourth Amendment error limits the evidence we may consider in our
review of his claim of evidentiary insufficiency or that may be admissible on retrial; and
whether the evidence was insufficient to support the jury’s verdicts. None of these
claims has merit.
1. Delay in Prosecution
Both the state and federal constitutions guarantee an accused criminal defendant
the right to a speedy trial. (U.S. Const, 6th Amend.; Cal. Const., art. I, § 15, cl. 1; People
v. Martinez (2000) 22 Cal.4th 750, 754 (Martinez).)22 But “the Speedy Trial Clause has
no application after the Government, acting in good faith, formally drops charges. Any
undue delay after charges are dismissed, like any delay before charges are filed, must be
scrutinized under the Due Process Clause [of the Fifth Amendment], not the Speedy Trial
Clause.” (United States v. MacDonald (1982) 456 U.S. 1, 7, fn. omitted (MacDonald);
Martinez, supra, 22 Cal.4th at p. 762.)
Here, the prosecutor initially dismissed the charges sometime in 2015 but later
refiled them after a delay, on April 6, 2017. Thomas does not dispute that this dismissal
was in good faith. Accordingly, despite Thomas’s reliance on the presumption of
prejudice available under Sixth Amendment speedy trial jurisprudence (see Doggett v.

22 On appeal, Thomas does not make a specific argument pertaining to his right to
a speedy trial under the California Constitution, other than a generic assertion in his
opening brief that his “state and federal rights to a speedy trial” were violated. The
record does not reflect that Thomas raised in the trial court any speedy trial claim under
the California Constitution.

33
United States (1992) 505 U.S. 647, 652, fn. 1), the gravamen of Thomas’s claim is the
extent of precharge delay. We therefore analyze Thomas’s claim under the due process
clause of the Fifth Amendment, as no charges were pending during the period of the
delay,23 and we further conclude that Thomas has failed to demonstrate substantial
prejudice that would warrant a dismissal under the due process clause.
a. Legal Principles and Standard of Review
The Fifth Amendment guarantee of due process of law “require[s] dismissal of the
indictment if it were shown at trial that the pre-indictment delay . . . caused substantial
prejudice to [a defendant’s] rights to a fair trial and that the delay was an intentional
device to gain tactical advantage over the accused.” (United States v. Marion (1971) 404
U.S. 307, 324, fn. omitted (Marion).) A showing of actual prejudice is likewise a
prerequisite “to establish[ing] a violation of our state Constitution’s speedy trial right.”
(Martinez, supra, 22 Cal.4th at p. 756.)24
If a defendant establishes prejudice from preindictment delay, “the prosecution
may offer justification for the delay; the court considering a motion to dismiss then
balances the harm to the defendant against the justification for the delay. [Citation.] But
if the defendant fails to meet his or her burden of showing prejudice, there is no need to

23 Thomas argues that his case is distinguishable from MacDonald in that he
remained in custody on other matters even after case number F26035 was dismissed.
(See, e.g., Klopfer v. North Carolina (1967) 386 U.S. 213 [holding that North Carolina
provision for “nolle prosequi with leave,” which permitted criminal proceeding to remain
in abeyance, was not equivalent to a dismissal under MacDonald].) Although Thomas
remained under restraint notwithstanding the prosecution’s unqualified dismissal of case
number F26035, this restraint was not a consequence of the instant charges but of the
unrelated “jail matters” that he references in his motion to dismiss.
24 In contrast, delay exceeding one year has been deemed to be presumptively
prejudicial under the Sixth Amendment right to a speedy trial. (See Doggett, supra, 505
U.S. at p. 652, fn. 1, italics omitted.)

34
determine whether the delay was justified.” (People v. Abel (2012) 53 Cal.4th 891, 909
(Abel).)
“We review for abuse of discretion a trial court’s ruling on a motion to dismiss for
prejudicial prearrest delay [under the state constitution] [citation], and defer to any
underlying factual findings if substantial evidence supports them.” (People v. Cowan
(2010) 50 Cal.4th 401, 431 (Cowan).) Likewise, federal courts have held that reviewing
courts “review for abuse of discretion the [lower] court’s decision to dismiss an
indictment for preindictment delay, under . . . the Fifth Amendment Due Process Clause.”
(U.S. v. Huntley (1992) 976 F.2d 1287, 1290 (Huntley).)
b. Prejudice
In this case, Thomas makes a generalized assertion of prejudice, arguing that the
witnesses’ memories may have faded by the time of his first trial. Thomas, however,
does not posit that specific witnesses were no longer able to testify, though he
speculatively argues that certain witnesses who may have been homeless and living near
the levee where Thomas went to go drink that night may no longer be located, an
argument that is unsupported by the evidence in the record . There was no testimony or
evidence that anyone near the levee saw Thomas, and Thomas himself testified that he
was alone at the levee and saw no one while he was there.
Moreover, Thomas does not otherwise explain how the fading memories of
prosecution eyewitnesses impaired his ability to defend himself, rather than impairing the
prosecution case. Despite the delay in refiling the charges, the witnesses had each spoken
with officers about what transpired as part of the police investigation and described the
perpetrator at that time. Furthermore, witnesses like C.G., P.G., and H.A. made their
infield identifications of Thomas shortly after the crime occurred. Although their
inability to recall certain details during the first trial may in theory have prejudiced
Thomas, any prejudice would have been insubstantial on this record. (See Cowan, supra,

35
50 Cal.4th at p. 433 [witnesses’ faded memories were “minimal[ly]” prejudicial as one
witness’s testimony was cumulative and another had already spoken to officers].)
Additionally, the testimony of eyewitnesses was circumstantially corroborated by
physical evidence that linked Thomas to the malfunctioning revolver—the matching
ammunition found inside the apartment of Thomas’s father, where Thomas had been with
E.H. just before the offense, and evidence that that two rounds of the semiautomatic
ammunition from the apartment bore firing pin impressions consistent with the revolver’s
tendency to misfire this type of ammunition.
Thomas claims that he was prejudiced because H.A. gained an incentive to testify
favorably for the prosecution due to H.A. being charged between the first and second
trials with trespassing and stabbing in an unrelated criminal matter. Yet the mere timing
of H.A.’s own legal difficulties has no bearing on precharging delay—the interval
between the period of Thomas’s arrest and the 2017 refiling of the information. Even
assuming that the emergence of a heightened incentive to testify favorably for the
prosecution is cognizable as a matter of due process, this incentive developed after the
district attorney refiled the charges and indeed after Thomas’s first trial.
Although Thomas claims that there is no justification for the delay in refiling, we
examine the reason for delay only if Thomas has met his burden to demonstrate
prejudice. (See Abel, supra, 53 Cal.4th at p. 909.) To the extent Thomas does not
dispute that the prosecutor represented that the dismissal of case number F26035 was to
permit the state to undertake additional forensic analysis, we note the instruction of the
California Supreme Court that “[i]nvestigative delay is fundamentally unlike delay
undertaken by the government solely to gain tactical advantage over an accused because
investigative delay is not so one-sided.” (People v. Nelson (2008) 43 Cal.4th 1241,
1256.)

36
 Although it is not apparent what additional forensic analysis the delay in fact
facilitated, we have no basis on this record to question the prosecution’s good faith.
There is no evidence that the delay was an “intentional device to gain tactical advantage”
over Thomas. (Marion, supra, 404 U.S. at p. 324.) For example, in U.S. v. Lovasco
(1977) 431 U.S. 783, the United States Supreme Court noted that despite the lack of
evidence justifying a preindictment delay, the court must assume that prosecutor’s
representations to district court and appellate court that the investigation continued was
made in good faith. (Id. at p. 796.)
Under these circumstances, we discern no abuse of discretion in the trial court’s
denial of Thomas’s motion to dismiss. (Cowan, supra, 50 Cal.4th at p. 431; Huntley,
supra, 976 F.2d at p. 1290.)
2. Motion to Quash/Traverse the Search Warrant
Our conclusion as to the sufficiency of the evidence, post, is based in large part on
evidence Thomas argues should have been suppressed, on the theory that the trial court
erred when it denied his motion to quash or traverse the search warrant of Thomas’s
father’s home. He argues that the search warrant was overbroad and all evidence seized
in the search of his father’s home must be suppressed. As we explain, even if we assume
that the warrant was overbroad in that the magistrate authorized in this initial warrant the
search of digital media and electronic devices found at the residence, we see nothing in
the record to indicate that any evidence admitted at trial was uncovered as a consequence
of this overbreadth.
The search warrant here authorized not merely the seizure of firearms, firearm
parts, or ammunition, but also a search of electronic devices, including “[a]ll cellular
telephones, tablets, electronic data processing and storage devices, computers and
computer systems” and other storage devices, “ for files, data, images, software,
operating systems, deleted files, altered files, system configurations, drive and disk

37
configurations, date and time, and unallocated and slack space, for evidence[,]”
specifically evidence of gang membership, including items “stored in an electronic or
digital format in any storage device[.]”25
Assuming that the inclusion of a provision generally authorizing a search of all
electronic devices rendered the warrant overbroad, “invalid portions of a warrant are
severable from the valid portions.” (People v. Smith (1986) 180 Cal.App.3d 72, 89.)
And “an overbroad warrant may be upheld as to valid portions where there is probable
cause to seize some of the items specified in the warrant although not others.” (People v.
Joubert (1983) 140 Cal.App.3d 946, 952.) In this case, what we treat as the overbroad
portions of the warrant—the search and seizure of electronic devices and of various gang
indicia—can be severed from the concededly valid portions of the warrant, which were
directed toward indicia that Thomas stayed in his father’s apartment and of firearms and
ammunition.
Thomas does not identify any digital or gang evidence admitted at trial, nor does
he articulate any theory by which law enforcement’s seizure of evidence pursuant to the
warrant was attributable to the challenged overbreadth and not the warrant’s valid
authorization of a search for firearms, ammunition, and indicia of Thomas’s dominion
and control. The evidence identified at trial as deriving from the search of the apartment
consisted of documents indicating that Thomas sometimes stayed in the apartment, some
ammunition, and a knife26 that was found in a shoebox along with the ammunition.

25 The return to the warrant indicated that several cell phones, various gang
indicia, photographs, indicia of Thomas’s presence, and a laptop were seized during the
search.
26Given our reversal on other grounds, we need not reach Thomas’s separate
challenge, under Evidence Code sections 350 and 352, to the admissibility of the knife.
Although the probative value of the knife is not apparent to us this record, we will not
presume what theory of relevance the prosecution might articulate on retrial.

38
Thomas does not contest that these items were validly specified or that there was
probable cause to support their search and seizure. (People v. Kraft (2000) 23 Cal.4th
978, 1043-1044 [even if warrant was overbroad, evidence would have inevitably been
discovered during search for items validly specified in the warrant].) Thus, even if a
search of all electronic devices “for evidence” and for gang indicia were overbroad, there
was no resulting trial error. (People v. Ulloa (2002) 101 Cal.App.4th 1000, 1005-1006.)
Thomas argues that this court should follow Burrows v. Superior Court, (1974) 13
Cal.3d 238, which he misconstrues as disfavoring severability analysis and supporting the
exclusion of all evidence seized as part of a warrant that is overbroad in any respect. In
Burrows, the California Supreme Court deemed invalid and overbroad a search warrant
that authorized a search of an attorney’s office for “ ‘all books, records, accounts and
bank statements and cancelled checks of the receipt and disbursement of money’ ”—
without limitation—as well as “ ‘any file or documents referring’ ” to his client. (Id. at
p. 241.) The court in Burrows considered whether the part of the warrant that specifically
related to named persons was severable. It ultimately concluded, however, that even the
purportedly valid provision of the otherwise severable warrant, “the direction to seize
‘any file or documents’ relating to the [clients, was] too broad to comport with
constitutional requirements”: the information upon which the warrant was based justified
only a search of financial records, and not, for example, other documents related to the
attorney’s work on behalf of his clients. (Id. at p. 251.) Here, Thomas makes no cogent
argument that the searches for indicia of Thomas’s presence at his father’s apartment or
for firearms and ammunition were not sufficiently particular or were unsupported by
probable cause.
Accordingly, we conclude that the trial court did not err when it denied Thomas’s
motion to quash or traverse the warrant and to suppress the evidence seized during the
search.

39
 3. Sufficiency of the Evidence
In reviewing a challenge to the sufficiency of the evidence, “we review the whole
record to determine whether any rational trier of fact could have found the essential
elements of the crime . . . beyond a reasonable doubt.” (People v. Zamudio (2008) 43
Cal.4th 327, 357 (Zamudio).) In contrast to our Chapman review of constitutional errors,
ante at section II.B., our review of sufficiency of the evidence is highly deferential. (See
People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.) Viewing the evidence in the light
most favorable to the prosecution, we look solely to whether the verdict is supported by
substantial evidence—“evidence that is reasonable, credible, and of solid value”—
without resolving credibility disputes or evidentiary conflicts. (Zamudio, supra, 43
Cal.4th at p. 357.) “A reversal for insufficient evidence ‘is unwarranted unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to support” ’
the jury’s verdict.” (Ibid.) Thomas’s challenge to the sufficiency of the evidence to
support his convictions rests on the asserted inoperability of the firearm—as it relates to
both its ability to inflict injury and the intent of the perpetrator necessary to assault—and
the vagaries of the eyewitness testimony as to identity and attempts to fire at H.A. None
of his theories of insufficiency precludes his retrial.
a. The Firearm
Thomas argues that he lacked the requisite present ability to cause a violent injury
because the revolver that was found was not only damaged but loaded with incompatible
ammunition. He further argues that the inoperability of the firearm undermines the
sufficiency of evidence that he had the requisite mental state to be convicted of either
assault or attempted murder.
An assault “requires an intentional act and actual knowledge of those facts
sufficient to establish that the act by its nature will probably and directly result in the
application of physical force against another.” (People v. Williams (2001) 26 Cal.4th

40
779, 790; see also § 240 [“an unlawful attempt, coupled with a present ability, to commit
a violent injury on the person of another”].) “To point a loaded gun in a threatening
manner at another . . . constitutes an assault, because one who does so has the present
ability to inflict a violent injury on the other and the act by its nature will probably and
directly result in such injury.” (People v. Miceli (2002) 104 Cal.App.4th 256, 269.)
Thomas’s arguments give short shrift to the evidence from which the jury could
legitimately find that (1) the revolver, though unreliable and dangerous to fire, was not
wholly inoperable and, under a narrow range of circumstances, could be made to fire a
live round of even the incompatible .380 automatic ammunition with which it was
loaded, and (2) that he knew that the revolver was operable. Tripp was occasionally able
to detonate primed casings when he test-fired the revolver at a 45-degree angle. And
Tripp opined that, if loaded with the incorrect .380 automatic ammunition, the revolver
could fire a round, “under [the right] circumstances.” As to whether Thomas was aware
of those right circumstances, the evidence found at the apartment where Thomas
maintained at least some possessions included an apparently used firing range target as
well as two unspent rounds of ammunition bearing marks consistent with misfires.
Moreover, S.B.’s testimony that the gunman raised the gun at an angle, barrel up,
permitted the jury to infer, as the prosecutor argued, that Thomas knew what Tripp would
later determine in testing about the optimal angle for firing the revolver and was therefore
“capable of inflicting injury on the given occasion, even if some steps remain to be
taken.” (See People v. Chance (2008) 44 Cal.4th 1164, 1171 [injury need not
“necessarily be the instantaneous result of the defendant’s conduct”]; People v. Ranson
(1974) 40 Cal.App.3d 317, 321 [trier of fact could properly infer defendant’s knowledge
of how to rectify firearm malfunction and thereby inflict injury].)
Accordingly, there was sufficient evidence from which the jury could determine
the perpetrator had the present ability to fire a live round under the right conditions, that

41
Thomas had used the firearm before and had some awareness of how it could be made to
function. Under our deferential review for substantial evidence, no more is required.
b. The Eyewitness Identifications
We recognize that the witnesses’ identification of Thomas as the perpetrator in this
case is far from perfect, given the discrepancies in some of their own statements and their
varied descriptions of the perpetrator’s clothes, ethnicity, and build. Yet the
“[i]dentification of the defendant by a single eyewitness may be sufficient to prove the
defendant’s identity as the perpetrator of a crime.” (People v. Boyer (2006) 38 Cal.4th
412, 480; People v. Reed (2018) 4 Cal.5th 989, 1006.) And “when the circumstances
surrounding the identification and its weight are explored at length at trial, where
eyewitness identification is believed by the trier of fact, that determination is binding on
the reviewing court.” (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) H.A.,
C.G., and P.G. all positively identified Thomas during the infield show-up that evening
and in the trial court. In our deferential review for substantial evidence, however, we do
not resolve challenges to witness credibility or second-guess the trier of fact’s assessment
of the reliability of eyewitness identifications. (See People v. Manibusan (2013) 58
Cal.4th 40, 87.)
Thomas argues that the eyewitness identifications were unreliable to the extent
that the witnesses’ testimony became “physically impossible or inherently improbable.”
(People v. Romero (2019) 44 Cal.App.5th 381, 386.) “The inherently improbable
standard addresses the basic content of the testimony itself—i.e., could that have
happened?—rather than the apparent credibility of the person testifying.” (People v.
Ennis (2010) 190 Cal.App.4th 721, 729 (Ennis).) Thus, “ ‘ “[t]o warrant the rejection of
the statements given by a witness who has been believed by [a trier of fact], there must
exist either a physical impossibility that they are true, or their falsity must be apparent
without resorting to inferences or deductions.” ’ ” (Id. at p. 728.) No such physical

42
impossibility or inherent improbability is present on this record. It was not impossible
for Thomas to be the perpetrator solely because his DNA and fingerprints were not found
at the scene.27 Thomas’s argument that the witnesses’ statements were improbable relies
not on anything inherent in each of their statements but on an inference of unreliability he
would have us draw from the record as a whole, thereby intruding on the province of the
trier of fact. (People v. Navarro (2021) 12 Cal.5th 285, 302 (Navarro).) Accordingly,
we conclude that viewing the evidence in the light most favorable to the prosecution,
sufficient evidence supports the jury’s determination that Thomas was the perpetrator.
(See Zamudio, supra, 43 Cal.4th at p. 357.)
c. Intent to Kill H.A.
Thomas further argues that inconsistencies in H.A.’s testimony about the
orientation of the revolver when Thomas pulled the trigger fatally undermined the
viability of the charge of attempted murder of H.A. Here again, Thomas’s challenge
would have us reweigh H.A.’s various statements and determine which account merited
the jury’s credence. It is true that in previous statements, H.A. said variously that he did
not remember the assailant pulling the trigger and that he believed that gun was not
aimed at him when the trigger was pulled. But Thomas’s argument goes to the relative
credibility of H.A.’s accounts of the crime and the weight that the jury should have
accorded to his testimony, as opposed to prior inconsistent statements. (Navarro, supra,
12 Cal.5th at p. 302.) To the extent that H.A.’s testimony presented inconsistencies,
whether internal or in relation to other evidence, those conflicts were matters for the jury
to resolve.

27 Thomas notes that defense expert Taylor opined that his DNA was excluded
from the gun, but the prosecutor’s expert noted that her results were inconclusive. In
short, the DNA evidence does not render it impossible for Thomas to be the perpetrator.

43
 H.A.’s trial testimony, construed in the light most favorable to the judgment,
supported the jury’s determination that Thomas intended to kill him, even if the jury
could reasonably have rejected that inference. “ ‘ “[T]he act of firing toward a victim at a
close, but not point blank, range ‘in a manner that could have inflicted a mortal wound
had the bullet been on target is sufficient to support an inference of intent to
kill . . . .’ ” ’ ” (People v. Perez (2010) 50 Cal.4th 222, 230.) The inference is supported
even in the absence of “advance consideration.” (People v. Arias (1996) 13 Cal.4th 92,
162.)
Multiple appellate courts have held that substantial evidence supports a conviction
for attempted murder when there is evidence that the defendant fired a gun toward a
victim, even if not precisely targeted. (See, e.g., People v. Ramos (2011) 193
Cal.App.4th 43, 47-48 [affirming attempted murder conviction where the defendant fired
at the victim approximately seven times “from a distance during nighttime” as the victim
ran and the gunshots “could have inflicted a mortal wound had [the defendant’s]
marksmanship been better”]; People v. Lashley (1991) 1 Cal.App.4th 938, 943-945
[reasoning “[t]he very act of firing a .22 caliber rifle toward the victim at a range and in a
manner that could have inflicted a mortal wound had the bullet been on target is
sufficient to support an inference of intent to kill under the circumstances presented
here”]; People v. Perez (2010) 50 Cal.4th 222, 230 [affirming where a “rational trier of
fact could find that defendant’s act of firing a single bullet at a group of eight persons
from a distance of 60 feet established that he acted with intent to kill someone in the
group he fired upon”].)
At trial, H.A. testified that Thomas pointed the gun at him and pulled the trigger,
albeit ineffectually. Thomas was close to H.A. at the time he pulled the trigger; H.A.
testified that Thomas was approximately, “six, eight, seven feet” away from him when he
stepped outside of C.G.’s car. H.A. said that Thomas pointed the gun “at all sides,” and

44
when asked if by “all sides” H.A. meant “around [him] or all sides of [H.A.’s] body,”
H.A. responded that the gun was pointed “[t]o my body.”
Even though a jury might reasonably have rejected the inference that Thomas,
when he pulled the trigger, was pointing the revolver at H.A., evidence is not
“insufficient . . . simply because the circumstances reasonably might support a contrary
finding.” (People v. Solomon (2010) 49 Cal.4th 792, 818.) Viewing the evidence in the
light most favorable to the judgment, as we must, we conclude that the jury could
reasonably infer that Thomas had the intent to kill because he pulled the trigger at close
range while the gun was pointed toward H.A.’s body.
Because the evidence at trial was sufficient to support the jury verdicts, our
conclusion that reversal is otherwise warranted does not preclude further retrial on
remand. (Compare Burks v. United States (1978) 437 U.S. 1, 14-15 with People v.
Hernandez (2003) 30 Cal.4th 1, 10.)
III. DISPOSITION
The judgment is reversed.

45
 ____________________________
LIE, J.

WE CONCUR:

____________________________
GREENWOOD, P.J.

_____________________________
GROVER, J.

People v. Thomas
H047082