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April 2, 2026 Get Citation Alerts Download PDF Add Note

In re Melson

California Court of Appeal

• Citations: None known

• Docket Number: B336211

• Opinion

• Authorities (26)

• Cited By (0)

• Summaries (0)

• Similar Cases (905)

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Combined Opinion

Filed 4/2/26
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re ALONZO DEVON MELSON B336211
on Habeas Corpus.
(Los Angeles County
Super. Ct. No. TA143199)

ORIGINAL PROCEEDING; petition for writ of habeas
corpus, Sean D. Coen, Judge. Petition granted.
David Andreasen, under appointment by the Court of
Appeal, for Petitioner.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Respondent.

---

In criminal prosecutions the People have a constitutional
obligation to correct false testimony from their witnesses.
(Glossip v. Oklahoma (2025) 604 U.S. 226 145 S.Ct. 612, 221
L.Ed.2d 90 ; Napue v. Illinois (1959) 360 U.S. 264 79
S.Ct. 1173, 3 L.Ed.2d 1217 .) They failed to comply with
that obligation in this case.
Petitioner Alonzo Devon Melson was charged with crimes
arising out of a gang-related shooting. His first trial ended in a
hung jury, with three jurors voting to acquit. When the People
retried Melson, the only two eyewitnesses bolstered their
identification of Melson with statements during direct
examination that they had not made at the first trial. These new
statements, about the witnesses’ purported identification of
Melson to police soon after the shooting, were false. Although the
prosecutor knew or should have known those statements were
false, he did not correct them. Instead, he repeated one of the
false statements in his closing argument as evidence of Melson’s
guilt. This time, the jury convicted Melson.
Although Glossip and Napue impose no constitutional
obligation on a criminal defendant’s counsel to correct false
testimony from prosecution witnesses, defense counsel has a
constitutional obligation to render effective assistance. But
Melson’s counsel during the retrial (who was not his counsel
during the first trial) failed to impeach the two eyewitnesses with
what they actually had said to the police or to otherwise cross-
examine them about the false portions of their trial testimony
concerning their police interviews. This resulted not from a
strategic choice but a lack of fundamental preparation—counsel’s
file contains no copies of the eyewitnesses’ police interviews and

2
no notes about their prior statements to police, indicating he did
not adequately prepare to cross-examine these key witnesses.
Melson requests that we issue a writ of habeas corpus
vacating his conviction based on Napue error and ineffective
assistance of counsel. The materiality of the Napue error that
occurred here is presumed, and the People must rebut that
presumption beyond a reasonable doubt. (Glossip, supra, 604
U.S. at p. 246.) Other evidence pointed to Melson’s guilt, but we
do not assess whether the false testimony directly affected the
trial’s outcome; we assess only whether it could have contributed
to the verdict. (Id. at p. 253.) Under this standard, the People
have not shown beyond a reasonable doubt that the false
testimony from the two eyewitnesses did not contribute to
Melson’s conviction. Accordingly, we must vacate that conviction.
BACKGROUND
A. The Charges Against Melson
On January 13, 2017, Samuel Navarrete was shot and
killed as he sat in his car just outside a housing project in Watts
formerly called Hacienda Village. The People charged Melson as
the shooter, based primarily on the testimony of two eyewitnesses
who identified him from a photo lineup: Pedro Sabino, who was in
the passenger seat of the car beside Navarrete, and Georgina
Araiza, who lived five houses away from the scene of the
shooting.
Melson’s first trial resulted in a hung jury. The jury in a
second trial convicted him of one count of first degree murder

3
(Pen. Code, 1 § 187, subd. (a)), two counts of attempted murder
(one for Sabino and the other for Raul Garibay, who was in the
back seat of the car) (§§ 187, subd. (a), 664)), one count of
shooting at an occupied vehicle (§ 246), and one count of
possession of a firearm by a felon (§ 29800, subd. (a)(1)). We
reversed one of the attempted murder convictions on direct
appeal because of a faulty kill zone instruction, but we otherwise
affirmed the judgment. (People v. Melson (Apr. 1, 2020, B292679)
[nonpub. opn.].)
B. Evidence at the Retrial
The prosecution’s theory was that Melson shot Sabino as
part of a gang war between the Hacienda Village Bloods, a Black
gang, and the Village Boys, a Hispanic gang. Melson is Black
and was a member of the Hacienda Village Bloods. A member of
the Village Boys, Juan Beltran, told police Melson had a
reputation for “press[ing] the line . . . a lot.” At trial, Beltran
testified that pressing the line meant “confront[ing] somebody.”
Navarrete was an associate of the Village Boys, and Garibay, who
was known by the nickname Little Bugsy and was in the
backseat of the car during the shooting, was a member. Sabino
was not associated with any gang, but his brother was a member
of the Village Boys.
1. Sabino’s Testimony
Sabino testified that, on the evening of the shooting, his
friend Navarrete picked him up and drove to 106th Street, where
Garibay joined them. Sabino did not know Garibay well. The

1 Subsequent unspecified statutory references are to the
Penal Code.

4
three of them remained in the car waiting for someone else to join
them when Sabino saw a figure walk in front of the car wearing a
hoodie and appearing to be carrying a gun. A second figure,
much taller, walked beside him.
Sabino told Navarrete they should leave, but Navarrete
said he wanted to see what the men wanted. The man with the
gun knocked on the window, and Navarrete opened the car door.
The man asked Navarrete where he was from. Navarrete gave
his gang nickname (Fresh) and said he was from Village Boys.
The man poked his head in the window and asked who was in the
back seat. Garibay answered, “It’s me, Little Bugsy,” as if he
knew the man. The man stepped back and started shooting.
Sabino ducked down until the shooting stopped, then looked up
and saw the men running away.
Sabino moved Navarrete from the driver’s seat to the
passenger’s side and drove him to the hospital, where he died of
his wounds.
In the early morning hours just after the shooting, the
police interviewed Sabino, and he told them about the events of
that evening. Sabino testified that he told the officers he needed
a couple of days to clear his head so he could give a better
description of the shooter.
Two days later, on January 16, Sabino went to the police
station, where detectives showed him a series of photographs. He
chose three photos depicting people that resembled the shooter,
and from those three, he selected Melson’s photo as the closest
match. Sabino testified that this was in part because the photo
showed Melson with a tattoo next to his eyebrow. Because the
shooter was wearing a hoodie and a beanie, Sabino could not see
much of the shooter’s face, but he saw a tattoo by the shooter’s

5
eyebrow when he ducked his head to look in the car. Sabino said
he told the police that he had seen the tattoo.
Transcripts of both police interviews, which were not
introduced as evidence, show Sabino denied on both occasions
that he saw any tattoo on the shooter.
2. Araiza’s Testimony
Araiza lived five houses down the street from where the
shooting took place. She testified that, about 15 to 30 minutes
before the shooting, she was coming home from the store when
she saw a man she knew as Chops in a heated argument with
another man named Fatty. Fatty was inside the gate of the
house where he lived, along with several other people, all of them
Hispanic, and likely members of the Village Boys gang. Chops,
who was Black, was outside the gate together with two other
Black men, one of whom Araiza identified as Melson. Araiza had
never spoken with Melson but she had seen him in the
neighborhood in his red Honda and knew him by his gang name,
Yank. Melson, who was wearing a red hoodie, was not
participating in the argument.
Araiza went inside her home, but shortly afterward, she
heard shooting. She ran outside immediately because she
thought her son was outside. She was outside by the time the
last two gunshots were fired. She saw Chops 2 standing outside,
and Melson was running away. Chops was standing near Fatty’s
house with his hand outstretched and appeared to be holding a

2 Araiza testified that Chops was dead. A police officer
confirmed this and said Chops left the state after Melson was
arrested, and that he was murdered in Louisiana shortly
thereafter.

6
gun. Araiza said, “you could see Chops with the gun, shooting.”
The prosecutor asked, “Did Mr. Melson have a weapon in his
hand?” Araiza replied, “I think he did have something. You
could tell what’s a gun–and running [from] the scene.” Araiza
was confident Melson was the man running away because of the
red hoodie he had been wearing. Araiza did not see Melson
shoot, but she did see him with a gun.
Araiza testified she spoke with police after the shooting.
They showed her a series of photographs, and she identified
Melson in one of them as the man she knew as Yank or Tank.
The transcript of Araiza’s police interview (which was not
admitted at trial) shows that she in fact did not tell the police
that she saw Melson (or Yank or Tank), or any Black men at all,
after she heard gunfire. Instead, the only people she saw were
Hispanic.
3. Other evidence
The prosecution introduced other evidence implicating
Melson. This included a recording of a jailhouse conversation
involving Melson and two others, Juan Beltran and Miguel
Aleman. 3 Officers placed Melson on a bench outside the cell
where Beltran and Aleman were housed. During the
conversation, Beltran and Aleman implied that Melson was
involved in the murder of Sabino, and Melson did not object.
Instead, Melson appeared concerned about whether anyone

3 Aleman, also known as Fatty, was the member of the
Village Boys who, according to Araiza, argued with Chops prior to
the shooting. In addition, the shooting happened in front of his
house.

7
would snitch on him, and when he learned Sabino might talk to
the police, asked where Sabino lived.
The prosecution also introduced evidence of statements
Melson made after his arrest. A detective who interviewed
Melson at that time testified that he asked him where he was at
the time of the murder, and Melson said he was in Anaheim with
family. The detective was unable to locate any family of Melson’s
that lived in Anaheim. An FBI agent testified that he reviewed
the cell tower records from Melson’s phone, and that, from
around 7:00 to 9:35 p.m. on the evening of the shooting, the
phone communicated with towers within a few blocks of the area
of the shooting. After that, the phone was tracked to an area
several miles away in Long Beach, near two addresses associated
with Melson. The shooting occurred at some point between 8:00
and 9:00 p.m. The agent testified that the phone could not have
connected to the cell towers in question if it had been located in
Anaheim.
B. The Habeas Petition
Melson filed a petition for habeas corpus in this court in
conjunction with his direct appeal on September 6, 2019. The
petition alleged that Sabino and Araiza had testified falsely, and
that Melson’s trial attorney had been ineffective by failing to
impeach those witnesses regarding those statements. The
petition also alleged that Melson’s attorney rendered ineffective
assistance in several other regards: by failing to reasonably cross-
examine a detective regarding Melson’s statements about his
whereabouts on the night of the shooting, by failing to object to
the admission of portions of the jailhouse conversation with
Aleman and Beltran, by failing to object to evidence regarding
Melson’s violent character, and by failing to consult an

8
eyewitness identification expert. Melson also alleged the
cumulative effect of the errors required reversal of his conviction.
We summarily denied the petition, but the Supreme Court
directed us to issue an order to show cause returnable before the
superior court. After conducting an evidentiary hearing, the
superior court denied the petition. At the conclusion of the
hearing, the trial court “found [Sabino’s and Araiza’s] statements
more to be prior inconsistent statements and not false
testimony . . . . I didn’t find them to be false statements at all.”
Melson again filed a petition in this court, which we again
denied. On July 23, 2025, the Supreme Court directed us to
vacate our order and issue an “order[] to show cause why
[Melson] is not entitled to relief on the grounds he suffered
prejudicial error pursuant to Napue . . . , or, in the alternative,
that the cumulative effect of the errors alleged in the petition
deprived him of due process.”
STANDARD OF REVIEW
“A habeas corpus petition is a collateral attack on a
presumptively valid judgment, thus ‘ “the petitioner bears a
heavy burden initially to plead sufficient grounds for relief, and
then later to prove them.” ’ ” (In re Lewis (2018) 4 Cal.5th 1185,
1191.) “ ‘To do so, he or she must prove, by a preponderance of
the evidence, facts that establish a basis for relief on habeas
corpus.’ ” (In re Cudjo (1999) 20 Cal.4th 673, 687.)
When a petition is referred for an evidentiary hearing, “ ‘we
generally defer to the referee’s factual findings’ and give them
great weight if supported by substantial evidence.” (In re Lewis,
supra, 4 Cal.5th at p. 1191, fn. omitted.) This is “[b]ecause the
referee observes the demeanor of the witnesses as they testify”
(ibid.); if the referee’s findings are based solely on documentary

9
evidence, we do not accord them the same deference. (In re Long
(2020) 10 Cal.5th 764, 774; In re Rosenkrantz (2002) 29 Cal.4th
616, 677.) We independently review mixed questions of law and
fact, such as “ ‘[w]hether counsel’s performance was deficient, and
whether any deficiency prejudiced the petitioner.’ ” (In re Long,
supra, at p. 774.) We review pure questions of law de novo. (In
re Hansen (2014) 227 Cal.App.4th 906, 914.)
DISCUSSION
“[A] conviction obtained through use of false evidence,
known to be such by representatives of the [s]tate, must fall
under the Fourteenth Amendment [citations]. The same result
obtains when the [s]tate, although not soliciting false evidence,
allows it to go uncorrected when it appears.” (Napue, supra, 360
U.S. at p. 269.) The introduction of false testimony requires
reversing a defendant’s conviction if it “ ‘may have had an effect
on the outcome of the trial,’ [(id. at p. 272)]—that is, if it ‘ “in any
reasonable likelihood [could] have affected the judgment of the
jury[]” ’ [citations]. In effect, this materiality standard requires
‘ “ ‘the beneficiary of [the] constitutional error to prove beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained.’ ” ’ ” (Glossip, supra, 604 U.S. at p. 246.)
Thus, “[t]o establish a Napue violation, a defendant must
show: (1) that the testimony was actually false, (2) that the
government knew or should have known that it was false, and
(3) that the testimony was material, meaning there is a
‘reasonable likelihood that the false testimony could have affected
the judgment of the jury.’ ” (U.S. v. Renzi (9th Cir. 2014) 769
F.3d 731, 751.)
We begin by describing the facts Melson produced in
support of his habeas claim. We then address the People’s

10
argument that Melson forfeited his claim of Napue error by
failing to present it either before the trial court or in his direct
appeal. We conclude he did not forfeit the claim. We proceed to
analyze each of the three steps set forth in Renzi, and we
conclude that Melson met his burden of demonstrating error.
Lastly, we hold the People have not shown the error here to be
harmless.
A. Sabino’s Statements
Sabino spoke with the police twice, first on January 14,
2017, hours after the shooting, and again two days later. In the
first interview, he told the detectives about the events leading up
to the shooting, giving a similar account to the one he later gave
at trial. The detectives asked Sabino about the shooter’s
appearance. Sabino said he saw the shooter’s face, but “I really
didn’t see him ‘cause he had his hood and he had a beanie.” The
detectives asked Sabino about height—the shooter was
approximately 5’8”—and build—he was “kind of chubby.” He was
wearing a black hoodie, a beanie, and cut-off jeans. He was
young, perhaps 19 or 20, and of medium complexion. One of the
detectives asked, “Any tattoos, did you see any tattoos?” Sabino
answered, “No.”
In the second interview, the detectives showed Sabino a
series of 18 photographs to see if he could identify the shooter.
Sabino set aside three photos that “looked like the guy that shot”
Navarrete. From these three, Sabino said the photo of Melson
was “the one that looks the most” like the shooter. The photo of
Melson in the lineup depicts him with a tattoo of a thin black or
gray line above his eyebrow.
The detective asked, “Did you see any tattoos on the face or
anything like that?” Sabino shook his head no. The detective

11
pointed to a photo of a suspect other than Melson and said, “And
[did] you see any scars? This guy’s got tattoos on his cheek. Did
you see that?” Sabino again shook his head no. The detective
continued, pointing at the face of the man in the photo, “No? But
you basically saw this area right in here?” Sabino answered,
“Yeah.” The detective said, “So the eyes, nose, and the mouth?”
Sabino said, “Yeah, by his mouth, I seen him.”
At the evidentiary hearing on the habeas petition, the
prosecutor testified that he immediately thought Sabino’s trial
testimony about telling police he saw a tattoo was incorrect: “I
was close to . . . 90 percent confident that I didn’t recall him
mentioning [seeing the tattoo] in the interview.” He said that,
while Melson’s attorney was cross-examining Sabino, he (the
prosecutor) “lean[ed] over to the detective and ask[ed] him does
he recall if Mr. Sabino made the statement about the tattoo, and
he told me at that time he didn’t.”
After confirming Sabino’s testimony was incorrect, the
prosecutor elicited testimony on redirect from Sabino that he
might not remember everything he told police because he was
“kind of still in shock” from seeing his best friend murdered. At
the habeas evidentiary hearing, the prosecutor explained that he
asked this question “because I was trying to explain away in my
mind why Mr. Sabino was providing this additional testimony.
And from my experience, sometimes when a . . . witness
experiences a very traumatic situation, you know, he just had
[seen] his best friend get murdered, that . . . some witnesses and
victims go into shock. And . . . they don’t remember what they
told the police. So that’s why I asked him that question, is it
possible . . . that . . . I forgot how I phrased it, but I brought that

12
up to kind of explain away again, in my mind, why his testimony
could be a little bit different.”
The prosecutor believed he had no further duty to correct
the record on Sabino’s testimony “[b]ecause I felt that the
questions I had asked had clarified any confusion that the jury
may have . . . [seen] with Mr. Sabino’s testimony. And from my
recollection, [the] defense attorney got up and cross-examined
him on his inconsistencies. So in my mind, the jury had the full
story of what I offered as evidence and what [the defense
attorney] offered on his cross-examination.”
The defense attorney did cross-examine Sabino on his
identification of the shooter, asking him, “When you spoke to the
cops when you were interviewed, did you say you saw the tattoo,
or was it something else?” Sabino answered, “I told them I seen
the tattoo.” Defense counsel did not press Sabino further on what
he told the police or impeach him with the transcripts showing
Sabino had in fact denied having seen a tattoo. Counsel did ask
about the inconsistencies in Sabino’s testimony about how he
identified Melson: “So do you recall saying that you saw the
shooter’s mouth, when you testified in court?” Sabino answered,
“Yeah, I think so.” Defense counsel asked, “And did you also
testify that you didn’t really see his eyes, when you were in
court?” Sabino responded, “Yes.”
During cross-examination, defense counsel also challenged
Sabino’s claim that he chose Melson’s photo because of the tattoo,
noting that the other two photos he chose as possible matches did
not have tattoos like Melson’s.
Later in the trial, defense counsel cross-examined the
detective who interviewed Sabino about what the detective
remembered Sabino saying about the shooter. The detective

13
responded, “[Sabino] remembered his height. He remembered his
race. He remembered seeing his facial features from the nose
down. He mentioned some of the eyes, but he mentioned that the
suspect was wearing a beanie over his head.” Defense counsel
asked, “So there was no mention of him saying a tattoo or
anything of that nature?” The detective answered, “No, not at
that time.”
B. Araiza’s Statements
Araiza’s testimony at trial differed significantly from what
she told police, as well as from her testimony at the preliminary
hearing and at the first trial.
The police interviewed Araiza on January 26, 2017, about
two weeks after the shooting. At the interview, Araiza said she
saw three Black men, including one whom she knew as Chops,
and another who was called Yank or Tank, near the scene of the
shooting about 30 minutes beforehand. Araiza had not met Yank
face to face, but had seen him in the neighborhood, and knew
what car he drove and generally what he looked like. Chops and
Yank were arguing with a man Araiza knew as Fatty outside of
Fatty’s house. She went inside her house and remained there
until she heard shooting outside and one of her kids screaming.
She ran outside where she saw the car and Fatty standing
nearby, along with several other people Araiza did not recognize.
A detective asked Araiza, “Were they Hispanic or Black?” Araiza
answered, “Hispanic.” The detective asked, “Did you see any
Blacks out there?” Araiza answered, “No. When the shooting,
no. After that, no.” The detective showed Araiza a series of
photographs, and Araiza identified a photo of Melson as Tank.
At the preliminary hearing, Araiza testified Chops was
arguing with Fatty shortly before the shooting. Melson was

14
nearby but was not participating in the argument. Araiza was in
her kitchen when she heard shooting, and she immediately ran to
the front door because she thought her son was playing outside
near Fatty’s house. Araiza saw three men wearing hoodies
running away from the shooting. She recognized one of the men
as Chops, but she did not see Melson.
At the first trial, Araiza first testified she saw Black men
running toward the projects after the shooting. On redirect,
Araiza said she saw Chops and two others running away, but she
did not identify the others.
At the second trial, Araiza testified that after she heard
gunfire she saw Melson running away with a gun in his hand.
Araiza also testified that the police showed her a series of
photographs after the shooting and she identified Melson in one
of them as a person connected to Navarrete’s murder.
At the evidentiary hearing, the prosecutor testified that he
was aware “the statement that [Araiza] was giving in court was
different than the statement she had provided to the police,” not
merely with her testimony at the first trial. To address the
inconsistencies, he asked, “Now, when you were interviewed back
on January 26, 2017, do you remember everything that you told
the police?” Araiza responded, “I can’t remember exactly. I’ve
been through a lot since. . . . So it’s hard for me to remember a
lot of things, you know?” The prosecutor asked, “Is it possible
that you may not have told them that you saw Mr. Melson with a
gun in his hand that night?” Araiza replied, “I can’t remember. I
can hardly remember.” The prosecutor believed that Araiza’s
new testimony was more accurate because “once she felt a little
bit more secure as far as her safety and her family’s safety, I felt
that she became a little bit more forthcoming about the facts.”

15
Even at the evidentiary hearing, however, the prosecutor
appeared to believe that the primary inconsistency between
Araiza’s testimony at the second trial and in her interview with
police was as to whether she saw Melson with a gun, not whether
she saw him at all after the shooting. The deputy district
attorney conducting the evidentiary hearing read back Araiza’s
testimony, where she described Chops shooting and Melson
running away, and asked, “When you were listening to this
testimony, did that appear in any way to be inconsistent with
what she said to the police originally from what you recall?” The
prosecutor answered, “No.”
The prosecutor’s opening statement and closing argument
reiterated Araiza’s false testimony about whether she had
identified Melson to the police as involved in the shooting. In his
opening statement, the prosecutor told the jury that Araiza was
“going to tell you that she saw—this is what she told the
detective when they interviewed her, that she saw Chops and
someone that resembled [Melson] running from the scene.” In his
closing argument, the prosecutor reiterated this: “We know on
January 26, 2017, Georgina Araiza is interviewed. She I.D.’s Mr.
Melson as the shooter.” During the evidentiary hearing, the
prosecutor claimed he misspoke during his closing argument, and
he was aware that Araiza identified Chops as the shooter.
C. Forfeiture
The People contend Melson forfeited any claim of Napue
error “because he did not object in the trial court to the
challenged testimony, [n]or did he request an admonition that
the jury disregard any supposedly false testimony. (See People v.
Fuiava (2012) 53 Cal.4th 622, 679.) And his Napue claims are
procedurally barred because he could have, but did not, raise

16
them on direct appeal. (See In re Dixon (1953) 41 Cal.2d 756,
759; In re Seaton (2004) 34 Cal.4th 193, 199-200.)”
The cases the People cite on forfeiture, however, do not
involve Napue error. Fuiava held that a defendant may not
complain of prosecutorial misconduct on appeal unless he
brought the claim to the trial court’s attention. (People v. Fuiava,
supra, 53 Cal.4th at p. 679.) Dixon involved claims of illegal
search and seizure and a coerced confession. The court stated,
“The general rule . . . that habeas corpus cannot serve as a
substitute for an appeal, and, in the absence of special
circumstances constituting an excuse for failure to employ that
remedy, the writ will not lie where the claimed errors could have
been, but were not, raised upon a timely appeal from a judgment
of conviction.” (In re Dixon, supra, 41 Cal.2d at p. 759.) In
Seaton, the defendant sought to challenge his murder conviction
and death sentence on the basis of racial bias by the prosecutor
and by the county in manipulating the racial composition of its
jurors (In re Seaton, supra, 34 Cal.4th at p. 197), and the court
held on the basis of the principles described above that the
defendant forfeited those claims by failing to raise them before
the trial court or on direct appeal. (Id. at pp. 198-200.)
We are aware of no cases applying these general rules of
forfeiture to Napue error, and for good reason. As the United
States Supreme Court explained in Glossip, it is “the
prosecution’s duty to correct false testimony ‘when it appears.’ ”
(Glossip, supra, 604 U.S. at p. 253, fn.10, quoting Napue, supra,
360 U.S. at p. 269.) Thus, “even if the defense had made a
conscious choice not to raise the [issue of the false testimony],
that would be irrelevant.” (Glossip, supra, at p. 253, fn.10.) To
require Melson to object to the introduction of false testimony at

17
trial in order to preserve the issue would be incompatible with
this rule.
We also disagree with the People’s contention that Melson
should have brought his Napue claim in his appeal. Raising a
Napue claim in an appeal is often impractical because the
ordinary appellate record may not include all information
necessary to adjudicate Napue error. In particular, “[t]o establish
a Napue violation, a defendant must show that the prosecution
knowingly solicited false testimony or knowingly allowed it ‘to go
uncorrected when it appear[ed].’ ” (Glossip, supra, 604 U.S. at
p. 246, italics added, quoting Napue, supra, 360 U.S. at p. 269.)
The question of what a prosecutor knew or should have known
often cannot be answered without an evidentiary hearing like the
one in this case. In this way, claims of Napue error are similar to
“claims of ineffective assistance [of counsel, which] are often more
appropriately litigated in a habeas corpus proceeding” and for
which “the rules generally prohibiting raising an issue on habeas
corpus that was, or could have been, raised on appeal” do not
apply. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
Indeed, Melson first filed his habeas petition simultaneously with
his direct appeal. He appears to have addressed Napue error in
the habeas petition rather than the direct appeal specifically to
facilitate the use of evidence from outside the appellate record.
For these reasons, we conclude Melson did not forfeit his
claims of Napue error.
D. Was the Testimony False?
To establish a Napue violation, a defendant must first show
“that the testimony was actually false.” (U.S. v. Renzi, supra,
769 F.3d at p. 751.) Highly misleading statements may be
deemed false for purposes of a Napue analysis, even if they are

18
not technically false. (In re Hill (2024) 104 Cal.App.5th 804,
830.) But “[m]ere inconsistencies between a witness’s testimony
and her prior statements do not prove the falsity of the
testimony.” (People v. Vines (2011) 51 Cal.4th 830, 874, overruled
on another ground in People v. Hardy (2018) 5 Cal.5th 56, 104.)
At the evidentiary hearing, the trial court rejected Melson’s
Napue claim in part because it “found [Sabino’s and Araiza’s]
statements more to be prior inconsistent statements and not false
testimony . . . . I didn’t find them to be false statements at all.”
This conclusion is correct as to many statements from both
Sabino and Araiza. Their claims regarding the events of the
shooting varied in particular aspects from their initial interviews
with the police to the preliminary hearing to the first trial and
the second trial, and we cannot say which version was accurate.
(See People v. Vines, supra, 51 Cal.4th at pp. 874-875.)
That analysis does not apply to statements Sabino and
Araiza made regarding what they told the police. Sabino testified
he told police that the shooter had a tattoo, but the transcripts of
his police interviews show he said during both interviews that he
had not seen a tattoo. Araiza testified that she told police she
saw Melson fleeing from the scene of the shooting, but the
transcript of her police interview shows she told police she did not
see any Black men when she ran outside her house after the
shooting. Even if the error resulted from nothing more than
faulty memory, these portions of the witnesses’ testimony were
untrue and thus meet the definition of false testimony.
The People concede that Sabino’s testimony on the tattoo
was “indisputably inaccurate,” but they argue it does not
constitute false testimony under Napue because “Sabino’s
testimony, taken as a whole, did not give the jury the false

19
impression that (1) during his police interviews, he actually told
the police the shooter had a tattoo over his eyebrow and (2) there
was no evidence that Sabino had not actually mentioned the
tattoos. The parties presented evidence showing that Sabino’s
initial testimony that he told the police about the tattoos was not
accurate.” The People point to additional evidence that called
into question the accuracy of Sabino’s claim, including that he
had told police he identified Melson primarily by his mouth,
because he had been wearing a hat and a hoodie, and that his
memory of the interview might be compromised because he was
in shock at the time. In addition, the People note that defense
counsel asked one of the detectives who interviewed Sabino about
the tattoo, and the detective testified that Sabino had not
mentioned the tattoo.
The People likewise concede that Araiza’s testimony was
“incorrect,” but argue it was not false for purposes of Napue
“because her testimony, taken as [a] whole, did not give the jury
the false impression that she actually had made these prior
statements.” On further questioning by the prosecutor, Araiza
stated that she could not remember everything she told the
police, and she might not have told the police she saw Melson
fleeing the scene with a gun.
In support of their position, the People cite case law
indicating that a violation of due process occurs if a witness’s
“testimony, taken as a whole, gave the jury [a] false impression.”
(Alcorta v. Texas (1957) 355 U.S. 28, 31 [78 S.Ct. 103, 2 L.Ed.2d
9 ]; accord, In re Hill, supra, 104 Cal.App.5th at p. 831.) But
these cases involve situations in which a witness’s testimony is
merely misleading. In such a case, “outright falsity need not be
shown if the testimony taken as a whole gave the jury a false

20
impression.” (People v. Westmoreland (1976) 58 Cal.App.3d 32,
42, citing Alcorta, supra, at p. 31.) We are aware of no case in
which a court held that literally false testimony was not false for
purposes of Napue because the testimony did not give the jury a
false impression. This case presents no reason to depart from the
general rule. Although both Sabino and Araiza expressed
uncertainty about what they told the police, they did not disavow
their testimony. Sabino reaffirmed on cross-examination that he
told police about the tattoo. As to Araiza, the prosecutor
reinforced the testimony by stating during his opening statement
that Araiza would testify she told police she saw Melson after the
shooting, and by repeating in his closing argument that Araiza
identified Melson as the shooter during her police interview. The
witnesses’ testimony qualifying or expressing uncertainty about
what they previously said is more directly relevant to the
questions of materiality and to whether the prosecutor corrected
the false testimony. We analyze those issues further in those
sections below.
E. Did the Prosecution Know or Have Reason to Know
of the Falsity?
The second step in a Napue analysis is to determine
whether “the government knew or should have known that [the
testimony] was false.” (U.S. v. Renzi, supra, 769 F.3d at p. 751.)
At this stage, “the governing federal decisions establish that the
trial prosecutor’s lack of personal knowledge of the false and
misleading nature of a prosecution witness’s testimony is not
controlling. The United States Supreme Court has held that the
state’s duty to correct false or misleading testimony by
prosecution witnesses applies to testimony which the prosecution
knows, or should know, is false or misleading (see United States

21
v. Agurs [(1976)] 427 U.S. [97,] 103 [96 S.Ct. 2392, 49 L.Ed.2d
342 ]), and has concluded this obligation applies to testimony
whose false or misleading character would be evident in light of
information known to other prosecutors, to the police, or to other
investigative agencies involved in the criminal prosecution. (See,
e.g., Giglio v. United States [(1972)] 405 U.S. 150, 154 [92 S.Ct.
763, 31 L.Ed.2d 104 ] [information known to prior prosecutor];
United States v. Bagley [(1985)] 473 U.S. 667, 670-672 & fn. 4
[105 S.Ct. 3375, 87 L.Ed.2d 481 ] [information known to federal
investigators]; Barbee v. Warden, Maryland Penitentiary (4th
Cir.1964) 331 F.2d 842, 846 [information known to investigating
police officers].” (In re Jackson (1992) 3 Cal.4th 578, 595.)
Under this standard, the government knew Sabino and
Araiza testified falsely. The People argue this is not the case
because the prosecutor did “not intend[] for Sabino to testify that
he had told the police about the tattoo.” The People further note
that the trial court, at the conclusion of the evidentiary hearing,
found “there’s nothing done in bad faith” with respect to the false
testimony from Sabino and Araiza. That may be the case, and
indeed, nothing in this opinion should be interpreted as implying
the prosecution (or Sabino or Araiza) acted in bad faith. But the
prosecutor’s subjective knowledge or intent is not decisive. (See
In re Jackson, supra, 3 Cal.4th at p. 595.) A Napue violation does
not require bad faith or the solicitation of false evidence, but
merely that “the [s]tate . . . allows it to go uncorrected when it
appears.” (Napue, supra, 360 U.S. at p. 269.) The prosecutor had
access to the recordings of Sabino and Araiza’s police interviews,
as well as to the detectives who conducted them. Indeed, in the
evidentiary hearing, the prosecutor testified that when Sabino
testified about what he had told the police, the prosecutor

22
conferred with the detective regarding whether Sabino had
claimed to have seen a tattoo during his police interviews.
The People also argue the prosecutor corrected Sabino’s
false testimony by “[taking] steps to clarify it,” including
“elicit[ing] Sabino’s testimony that he might not have
remembered everything he told the police during his two
interviews” and “elicit[ing] Detective Flaherty’s testimony that
Sabino had not been fully cooperative during the interviews and
appeared to be in shock.” As to Araiza, the People contend the
prosecutor corrected the testimony by questioning her as to
whether she actually saw Melson fleeing with a gun and getting
her to admit that she did not remember clearly what she told the
police. The People conclude that “Napue does not require that a
prosecutor present specific evidence to correct a witness’s false
testimony.”
Although there is a paucity of case law regarding what
steps a prosecutor must take to correct a witness’s false
testimony, Glossip makes clear that impeaching a witness’s
credibility in general is insufficient. (See Glossip, supra, 604 U.S.
at pp. 249-250 [rejecting the argument that there was no Napue
error because the false testimony had been impeached on other
grounds].) A general, non-specific question from the prosecutor to
a witness about whether he or she remembers precisely what the
witness told the police does not correct a specific false statement
from that witness, not least of all because such a question gives
no indication to the jury which part of the witness’s testimony is
known to be false. Without an effort by the prosecutor to inform
the jury more specifically what testimony was false, or to confront
the witness about the specific falsity, the prosecutor did not
correct the false testimony.

23
F. Was the False Testimony Material?
The final step in showing a Napue violation is whether the
false testimony was material. (U.S. v. Renzi, supra, 769 F.3d at
p. 751.) “[M]ateriality . . . requires courts to assess whether ‘the
error complained of’ could have contributed to the verdict.”
(Glossip, supra, 604 U.S. at p. 253.) Courts have frequently
emphasized that this standard is relatively “lenient.” (Dickey v.
Davis (9th Cir. 2023) 69 F.4th 624, 637.) It “is considerably less
demanding than the standard for Brady [v. Maryland (1963) 373
U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215 ]] claims, which requires
that a petitioner show ‘there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.’ [Citations.] The Supreme
Court has explained that Napue’s materiality threshold is lower
‘not just because [Napue cases] involve prosecutorial misconduct,
but more importantly because they involve a corruption of the
truth-seeking function of the trial process.’ ” (Dickey, supra, at
p. 637, quoting United States v. Agurs, supra, 427 U.S. at p. 104.)
“This standard is equivalent to the harmless beyond a
reasonable doubt standard for determining whether
constitutional error is prejudicial.” (In re Hill, supra, 104
Cal.App.5th at p. 835.) Thus, to establish materiality, it is not
necessary to show that false testimony “directly affected the
trial’s outcome.” (Glossip, supra, 604 U.S. at p. 253.)
Glossip illustrates how the materiality standard applies in
a case where, as here, the false testimony is relevant primarily to
a witness’s credibility. In that case, the prosecution accused the
defendant, Richard Glossip, of hiring Justin Sneed to kill
Glossip’s employer. The primary evidence of Glossip’s
involvement was testimony from Sneed himself, who agreed to

24
testify against Glossip in a plea deal to avoid the death penalty.
(Glossip, supra, 604 U.S. at p. 233.) The prosecution theorized
that Sneed “had no propensity to violence except at Glossip’s
direction.” (Id. at p. 236.) On direct examination, Sneed
acknowledged he was prescribed lithium after his arrest. He
explained, “When I was arrested I asked for some Sudafed
because I had a cold, but then shortly after that somehow they
ended up giving me [l]ithium for some reason, I don’t know why.
I never seen no psychiatrist or anything.” (Id. at p. 235.)
Years later, the state turned over eight boxes of previously
undisclosed prosecution documents pertaining to the case. In one
of the boxes “ ‘was a page of notes handwritten by [the head
prosecutor] during a pretrial interview with Sneed,’ indicating
‘that Sneed had told [the prosecutor] that he was “on lithium” not
by mistake, but in connection with a “Dr. Trumpet.” ’ ” (Glossip,
supra, 604 U.S. at p. 239.) Glossip deduced this was a reference
to Dr. Larry Trombka, the only psychiatrist who worked in the
Oklahoma County jail while Sneed was in custody there. Sneed’s
previously withheld medical records “showed that Sneed had
received lithium to treat his undisclosed bipolar disorder.” (Ibid.)
The Supreme Court held that the prosecutor committed
Napue error by failing to correct Sneed’s false testimony
regarding the reason for his lithium prescription. The court
reasoned that the testimony was material: “Because Sneed’s
testimony was the only direct evidence of Glossip’s guilt of capital
murder, the jury’s assessment of Sneed’s credibility was
necessarily determinative here. Besides Sneed, no other witness
and no physical evidence established that Glossip orchestrated
[the] murder. Thus, the jury could convict Glossip only if it
believed Sneed. [¶] Had the prosecution corrected Sneed on the

25
stand, his credibility plainly would have suffered. That
correction would have revealed to the jury not just that Sneed
was untrustworthy (as amicus points out, the jury already knew
he repeatedly lied to the police), but also that Sneed was willing
to lie to them under oath.” (Glossip, supra, 604 U.S. at pp. 248-
249.)
The facts here are not as egregious as in Glossip, but the
false testimony in this case had a similar effect.
1. Sabino
Sabino was the prosecution’s primary witness. He saw the
shooting up close and was the only witness who testified that
Melson fired the gun. Even better for the prosecution, he had no
apparent bias against Melson. He was not a gang member and
claimed he had never met Melson before. The primary weakness
in his testimony was the reliability of his identification of Melson.
Because the shooter was wearing both a hoodie and a beanie,
Sabino primarily saw the bottom part of the shooter’s face, and
he saw it only briefly, in a highly stressful and traumatic
situation. As he acknowledged during his second interview with
the police, his identification of Melson was only a “best guess.”
The claim that he saw Melson’s tattoo shored up this
weakness considerably. It provided a concrete basis for the
identification—Sabino did not choose Melson’s photo because he
generally resembled the shooter, but because he had a specific
tattoo Sabino remembered seeing. This claim would be stronger
still if Sabino told police about the tattoo within days of the
shooting. In that case, it would mean the tattoo was a part of
Sabino’s identification from the beginning.
The revelation that Sabino had not actually told the police
about the tattoo, but instead affirmatively denied seeing any such

26
tattoo, would have had the opposite effect. It would mean Sabino
either misremembered an important part of his identification of
Melson, or that he was lying. Either way, the correction of the
false testimony might have created a doubt in the jurors’ minds
about the credibility of Sabino’s identification, especially in
combination with Sabino’s admission that he primarily saw the
lower part of the shooter’s face.
The People argue Sabino’s false testimony was not material
because the jury heard other testimony indicating that Sabino
did not tell the police about the tattoo. 4 In particular, they point
to the cross-examination of one of the detectives who interviewed
Sabino. As noted above, after the detective testified about what
Sabino said he remembered about the shooter, Melson’s attorney
asked, “So there was no mention of—him saying a tattoo or
anything of that nature?” The detective replied, “No, not at that
time.”
As an initial matter, the detective’s testimony did not
satisfy the prosecutor’s responsibility to correct Sabino’s
testimony as it was elicited by Melson’s attorney on cross-
examination. (See Glossip, supra, 604 U.S. at p. 252 [“the Due
Process Clause imposes ‘ “the responsibility and duty to correct” ’

4 The People also claim that a “recording of [Sabino’s
second police] interview was played at trial and a transcript was
provided to the jury.” If the jury had seen the entire recording, it
might have significantly reduced the materiality of Sabino’s false
testimony, because the jury would have seen for itself that Sabino
shook his head when asked if the shooter had a tattoo. But as
Melson notes in his traverse, the record shows that the jury saw
only a small portion of the interview, which did not contain any
discussion of tattoos.

27
false testimony on ‘representatives of the [s]tate,’ not on defense
counsel”], quoting Napue, supra, 360 U.S. at pp. 269-270.) Nor
did the defense counsel’s cross-examination of the detective
sufficiently deflect the materiality of Sabino’s false testimony. 5
First, the statement that Sabino did not mention a tattoo “at that
time” is not the same as a statement that Sabino affirmatively
denied seeing a tattoo during both police interviews. Second, the
prosecutor made no attempt to confront Sabino with his
statements to police that he did not see a tattoo so that the jury
could evaluate Sabino’s demeanor to that revelation in real time.
Third, the prosecutor relied on Sabino’s trial testimony about the
tattoo during closing argument (albeit not the portion saying he
told detectives about it), but Melson’s attorney made no mention
of the detective’s statement during closing arguments that
Sabino’s memory of the tattoo was a recent development. Finally,
as we explain in more detail below, “prejudice analysis requires a
‘cumulative evaluation’ of all the evidence.” (Glossip, supra, 604
U.S. at p. 251.) The materiality of Sabino’s false testimony must
be considered in conjunction with the other errors in the case,
including that of Araiza’s false testimony.

5 We do not mean to imply the detective’s testimony on
cross-examination has no impact on the materiality analysis. To
the contrary, the testimony was particularly useful in impeaching
Sabino because the detective was a prosecution witness and was
part of the People’s prosecution team who had no reason to testify
favorably on behalf of Melson. We merely conclude that,
although the cross-examination of the detective on this point was
helpful to Melson’s case, it did not fully blunt the force of Sabino’s
earlier false testimony.

28
2. Araiza
Araiza’s false testimony had a similar effect of bolstering
her credibility and usefulness to the prosecution. Araiza told
three different versions of what she saw when she came out of
her house after the shooting. In her police interview, she said she
did not see any Black men. At the preliminary hearing and again
in the first trial, she testified she saw Chops and two other
unidentified Black men fleeing the scene, but she did not say she
saw Melson. Finally, at the second trial, she testified she saw
Melson holding what appeared to be a gun and fleeing along with
Chops. Testifying that she told the police she saw Melson after
the shooting made it appear as if she had been telling a more
consistent story all along.
Araiza’s false claim about what she said in her police
interview went essentially unchallenged. As noted above, the
prosecutor never corrected it. Instead, the prosecutor reinforced
the error by saying during his opening statement before Araiza
testified that she was “going to tell you that she saw—this is
what she told the detective when they interviewed her, that she
saw Chops and someone that resembled [Melson] running from
the scene,” (italics added), testimony that the prosecutor should
have known would be false. Defense counsel cross-examined
Araiza about how often she had seen Melson before and how well
she could see the aftermath of the shooting given lighting
conditions and her distance from the scene, but he never
impeached her with her statement to police that she not only did
not see Melson but saw no Black men at all right after the
shooting. Then, at the end of the trial, the prosecutor repeated
Araiza’s false testimony during closing argument and relied on it

29
to argue for a conviction, saying that when Araiza was
interviewed by the police “[s]he I.D.’s Mr. Melson as the shooter.”
Araiza was much farther away at the time of the shooting,
she disagreed with Sabino as to the color of Melson’s hoodie, and,
contrary to the prosecution’s theory, she testified that Chops was
the shooter rather than Melson. But she was still one of only two
witnesses who directly connected Melson to the crime. Her false
testimony thus contributed to the verdict.
3. Defense Counsel’s Lack of Preparation as a
Contributing Factor
Because we do not analyze the materiality of a Napue
violation in isolation (Glossip, supra, 604 U.S. at p. 251), we
consider not only the effect of Sabino’s and Araiza’s false
testimony, but also the related issue of Melson’s attorney’s
preparation to cross-examine them. Melson raised the issue of
insufficient trial preparation in his habeas petition, noting that
there was no indication that his attorney had taken any notes
prior to the retrial, nor that he had reviewed the recording of
Araiza’s police interview or Melson’s first police interview. At the
evidentiary hearing, Melson’s attorney claimed he took notes, but
also claimed he turned over all his trial materials. The materials
the attorney turned over included no such notes, nor transcripts
of the two police interviews.
A lack of adequate preparation can alone demonstrate
ineffective assistance of counsel. (See In re Edward S. (2009) 173
Cal.App.4th 387, 407 [“a defense attorney who fails to investigate
potentially exculpatory evidence, including evidence that might
be used to impeach key prosecution witnesses, renders deficient
representation”].) In addition, “[f]acts set forth in the return that
are not disputed in the traverse are deemed true.” (People v.

30
Duvall (1995) 9 Cal.4th 464, 477.) This is because courts must be
able to examine the return and traverse in order “to determine
whether there are facts legitimately in dispute that may require
holding an evidentiary hearing.” (Id. at p. 485.)
In this habeas proceeding, the People have never contested
Melson’s allegations regarding his attorney’s preparation to
cross-examine Sabino and Araiza. 6 This is presumably because
they drew the same obvious inference we do from the record—
that defense counsel did not take notes and did not have a copy of
the police interview transcripts despite their production to
Melson’s prior trial counsel. 7 This would explain why Melson’s
attorney did not raise the inconsistencies between the witnesses’
statements in those interviews with their trial testimony on
cross-examination.
We need not decide whether this lack of preparation alone
constituted ineffective assistance of counsel under the standard
established in Strickland v. Washington (1984) 466 U.S. 668 [104
S.Ct. 2052, 80 L.Ed.2d 674 ]. Instead, we view it as one part of
the analysis of the materiality of the Napue violations. We infer
that Melson’s attorney’s lack of preparation left him unable to
counter Sabino’s and Araiza’s false testimony, and the cross-
examination of both witnesses amply supports that inference.

6 Nor did the trial court make any factual findings at the
conclusion of the habeas evidentiary hearing regarding defense
counsel’s preparation to cross-examine Sabino and Araiza about
their prior statements to police.
7 There is one exception: the record suggests that at some
point Melson’s attorney obtained a copy of the transcript of
Sabino’s second police interview.

31
4. The People Fail to Show a Lack of Prejudice
Melson’s first trial ended in a hung jury, with nine jurors
voting to convict, and three to acquit. At the second trial, both of
the prosecution’s key witnesses changed their stories to claim
falsely that they had told the police certain key identifying facts
about Melson from the get-go. Melson’s attorney, who had failed
to prepare adequately to cross-examine those witnesses,
challenged the false testimony only in part and only as to Sabino,
and then failed in his closing argument even to mention the
detective’s contradiction of Sabino’s claim. The prosecutor did
not correct the false testimony, and in fact repeated Araiza’s false
testimony during closing argument. The result was a conviction.
Take away those errors, and the evidence at the retrial was
basically the same as it was the first time around when three
jurors voted to acquit. In such circumstances, the People have
not shown beyond a reasonable doubt that Sabino’s and Araiza’s
false testimony did not contribute to the guilty verdicts. (Glossip,
supra, 604 U.S. at p. 246.) We therefore grant Melson’s petition
and vacate the judgment of conviction.

32
DISPOSITION
The writ of habeas corpus is granted and Melson’s
judgment of conviction is vacated. The matter is remanded to the
superior court for further proceedings, including for the People to
elect whether to retry Melson.
CERTIFIED FOR PUBLICATION

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

33