P. v. Thomas
Filed 2/25/13 P. v. Thomas CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
RELIUS
THOMAS,
Defendant and Appellant.
B236133
(Los Angeles County
Super. Ct. No. NA087606)
APPEAL from a judgment of the Superior Court of
County, James B. Pierce, Judge. Affirmed.
George W. Woodworth for Defendant and
Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys
General, for Plaintiff and Respondent.
introduction
Appellant and defendant Relius Thomas
appeals from the judgment following his conviction for
against his ex-girlfriend. He contends
that there was insufficient evidence to support the conviction for stalking,
that the trial court committed prejudicial misconduct
in instructing the jury, and that he received ineffective assistance of
counsel. We affirm the judgment.
factual and procedural background
Charges
Thomas was charged in count 1 with
stalking (Pen. Code, § 646.9, subd. (b))
and in counts 2-6 with making criminal threats (§ 422). It was further alleged that he had three
prior convictions for felonies (§ 1203, subd. (e)(4)), two prior
convictions of a serious felony (§ 667, subd. (a)(1)) and four prior
strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Thomas pled not guilty and denied the
special allegations. The case proceeded
to jury trial.
Evidence at Trial
A.
Thomas and Rochelle Goodwin dated on
and off for 12 years, until Goodwin ended the relationship in July 2010 due to
Thomas’s insecurity and threats he made against her. Thomas began telephoning Goodwin and
repeatedly showing up at her house.
Sometimes he would ask her to get back together with him, and sometimes
he would cuss her out, call her names, and threaten her. Goodwin changed her phone number.
On October 4, 2010, Thomas came to Goodwin’s door and
asked to come in. She said no and asked
him to leave, and he cussed at her and threatened to get her and kill her, and
threw a glass of wine on her face. She
was afraid. At this point, Goodwin’s
adult daughter Cherrell Gayden was approaching the front of the house, and
Thomas came towards Gayden as if he was going to attack her. He left when he saw that Goodwin was calling
the police. A recording of Goodwin’s 911
call was played for the jury, as were subsequent 911 calls. The next day she obtained a restraining order
that required Thomas to stay 100 feet away from Goodwin and Gayden. Gayden lived in the duplex behind Goodwin’s
duplex.
On October 19,
2010, Gayden
passed Thomas on the sidewalk near her home.
She called 911 because she was scared.
On October 26, 2010, Goodwin obtained a
Thomas that was effective for two years.
On October 29, 2010, Gayden saw Thomas sitting near the
church that was directly across from her house, and she called 911. That same day, Thomas knocked on Goodwin’s
door for 45 minutes and accused her of talking to another man. She called 911 again. She had a security alarm system installed.
Sometime in November 2010 Thomas left
Goodwin a note at her house that said, “I seen you and your friend. You better call me the next time. You will get it or your house, your car. Call me ASAP.
Jail don’t care.†Goodwin
interpreted the note as a threat by Thomas to hurt her.
On November 5, 2010, Gayden and Goodwin saw Thomas
hiding behind a cabinet at the end of their driveway. They called 911. Two days later, Goodwin saw Thomas standing
on the sidewalk in front of her house.
He told her, “I’m going to get you†and called her names. He seemed to be getting angrier with each
contact, and she felt afraid and believed he could carry out his threats. Three days later, on November
10, 2010,
Goodwin again called 911 after she saw Thomas standing at her front window
looking into the house. On November
12, 2010,
she saw him parked down the street from her house and called 911.
A neighbor saw Thomas peeking over the
fence into Goodwin’s property from the property next door. Goodwin set up a booby trap consisting of
Christmas bells tied on a swing in the corner of her backyard, so that if
Thomas tried to jump over the fence the bells would ring. On November 19, 2010, Gayden heard the bells ring and saw
Thomas in the backyard and alerted Goodwin.
Thomas called Goodwin a bitch, cussed her out, and threatened, “I’m
going to get your bitch ass.†He also
threatened that he was going to blast her, which she and Gayden interpreted to
mean that he was going to shoot her with a gun.
They were afraid and called 911.
A male voice can he heard on the 911 recording saying “Bitch.†The recording also captures Goodwin
repeatedly screaming, “Get away from here!â€
The responding police officer, Officer
Robert Paul, arrived on the scene and observed Thomas quickly get into a car
and drive away at a high rate of speed.
Goodwin and Gayden were yelling, “That’s him.†Officer Paul attempted to chase Thomas’s car
but his lead was too great. When Officer
Paul returned to the scene, Goodwin and Gayden were crying and said they were
afraid that Thomas would come back again.
They also were angry that he kept getting away. Gayden noticed a rag stuffed in the tailpipe
of Goodwin’s car and showed it to the police officer. The gas tank was also open. Thomas previously had threatened to put sugar
in the tank.
At approximately 4:00 a.m. on November
24, 2010, Gayden looked out the window and noticed that her mother’s porch
light was off, while it had been on when her mother left the house early in the
evening to spend the night at a friend’s house.
Gayden heard footsteps and then a car speed away. She went outside and saw that Goodwin’s decorations
and plants on the front porch had been cut up and everything had been torn
down. She noticed a note on the door
with blood on it. When the sun came up
she went outside to inspect the damage and saw Thomas on the sidewalk in front
of the house. He said, “Tell your mom
there’s no love over here. I’m going to
get her. I’m going to get her.†He got in his car and drove off as she called
911. Gayden saw that the light bulb on
the porch light had been unscrewed and there was blood on it.
was also blood on the porch and the sidewalk.
The bloody note said, “Bitch, I am going to kill you.†Goodwin recognized the handwriting as
Thomas’s.
Later that same day, Gayden and
Goodwin found a second note inside their mailbox, also with blood on it. It read, “I’m going to kill you on my mother
and brother, you no dick sucking bitch.â€
Goodwin testified that Thomas used the expression “on my mother and
brother,†referring to his deceased mother and brother, when he was upset and
meant to do what he said he was going to do.
She recognized the handwriting on the second note as Thomas’s. Goodwin was afraid that he would shoot or
stab her and kill her. She knew he had
owned a gun in the past. She again
called 911.
title="">[2]
That night Thomas again appeared
outside Goodwin’s front door. He said he
was going to blast Goodwin, and she feared he had a gun. She called 911 again.
On November 26, 2010, Goodwin called
911 seven times after Thomas came to her house repeatedly. On November 29, 2010, Thomas came to
Goodwin’s house again and spoke to her through the locked door. He told her he had been watching her leave
every day and had seen someone come to her house. He said, “I’m going to get you, bitch. I’m going to kill you, bitch.†At 2:33 a.m. the following night, November
30, 2010, her alarm sensor went off.
Goodwin saw Thomas at her front window, looking in. She called 911.
One of Goodwin’s neighbors testified
that at 2:50 a.m. one night in late November 2010, she saw Thomas peeking in
the front window of Goodwin’s house and then going around and peeking in the
side window. Gayden’s cousin, Sherita
Kamil Travis, testified that on five to seven occasions in October and November
2010, she visited Goodwin’s home and saw Thomas aggressively pacing back and
forth in front of Goodwin’s house, sitting in a car, or running into Goodwin’s
backyard and jumping over a fence.
Goodwin became very scared and started crying on each occasion when
Thomas appeared.
Goodwin did not see Thomas again until
Christmas Eve. She ran into him at the
home of Thomas’s sister, when Goodwin stopped by to see a newborn baby. She was startled to see Thomas in the house,
but she did not leave. She was a little
bit fearful but did not think he would do anything to her with his family
there. When she was leaving, he said,
“You’re not going to tell me bye?†She
kept walking and said, “Don’t get up.
Stay where you are. Leave me
alone.†He followed her out to her car,
saying he wanted to talk to her. They
talked for a few minutes, and she told him he had to stop what he was doing and
leave her alone. She denied that she sat
in the car with him. Even though she
felt fearful while talking to him, she was “not really getting results from the
police,†and thought that if she talked to him, she could convince him to leave
her alone. Thomas told her he at least
wanted to be friends, and that he would not hurt her. He said he was just upset that she had told
him they were done. Goodwin left in her
car.
B.
Thomas did not
testify in his defense.
Thomas’s sister, Vonnie, testified
that the day before Thanksgiving 2010, Goodwin came to her house. Thomas was there. After Goodwin spoke with Vonnie, she went
into the living room, took Thomas’s hand, and they went outside and
talked. Goodwin was there for two to
three hours, and she and Thomas did not fight.
On Christmas Eve 2010, Goodwin came by Vonnie’s house to wish her a
merry Christmas. Thomas was there and
Goodwin talked with him. She stayed for
30 to 40 minutes and she looked happy, not mad.
Vonnie identified Thomas’s handwriting
on the note that began, “I seen you and your friend.†However, she denied that the two bloody notes
were written in Thomas’s handwriting.
Thomas’s niece, Shaquita, testified
that she saw Goodwin twice between October and December 2010. In early November, Shaquita came home and
found Goodwin and Thomas outside the house in Goodwin’s car. Goodwin held Shaquita’s new baby and did not
appear to be afraid of Thomas. Shaquita
went into the house, but Goodwin remained there talking to Thomas for two to
three hours. The two did not appear to
be arguing. On Christmas Eve, Goodwin
again came to Shaquita’s house knowing that Thomas was inside. Goodwin led him outside and the two sat in
Goodwin’s car and talked for two to three hours.
On cross-examination, Goodwin
acknowledged Thomas had not physically abused her during their 12-year
relationship. She admitted that she
drove Thomas to the hearing on the temporary restraining order, explaining that
Thomas had claimed he would not come otherwise, and she believed she needed him
to be there for the court to grant the order.
Goodwin admitted she had been convicted of welfare fraud approximately
20 years before.
C.
Vonnie previously had been convicted
of the felony offense of possession of a
controlled substance while armed.
She was convicted in a different case of transporting or selling PCP,
also a felony.
Verdicts and Sentencing
The jury returned guilty verdicts on
count 1 and counts 3-5, but found Thomas not guilty of count 2. A mistrial was declared as to count 6 after
the jury deadlocked on the charge.
Thomas waived a jury trial on the prior convictions and admitted them,
and the court found them true.
The court denied Thomas’s motion for a
new trial on grounds of ineffective assistance of counsel. After granting Thomas’s section 1385 motion,
the court struck two of his more remote prior strikes and sentenced him to 25
years to life in prison as the base term in count 1, plus five years each for
the two prior serious felony convictions.
The concurrent sentences on counts 3 through 5 were stayed pursuant to
section 654.
Thomas timely appealed.
discussion
I.
Thomas contends that insufficient
evidence was presented at trial to support his conviction for stalking. “In assessing a claim of insufficiency of
evidence, the reviewing court’s task is to review
the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—such that a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt.†(People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “We resolve all conflicts in the
evidence and questions of credibility in favor of the verdict, and indulge
every reasonable inference the jury could draw from the evidence.†(People
v. Mendez (2010) 188 Cal.App.4th 47, 56.)
“A reversal for insufficient evidence ‘is unwarranted unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
supportâ€â€™ the jury’s verdict.
[Citation.]†(
357; see People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 646.9, subdivision (a) provides
in pertinent part that “[a]ny person who . . . willfully and maliciously
harasses another person and who makes a credible threat with the intent to
place that person in reasonable fear for his or her safety, or the safety of
his or her immediate family is guilty of the crime of stalking.†Subdivision (b) of section 646.9 provides for
a harsher penalty for stalking “when there is a temporary restraining order,
injunction, or any other court order in effect prohibiting the behavior
described in subdivision (a) against the same party.â€
The statute defines “harasses†to mean
“engages in a knowing and willful course of conduct directed at a specific
person that seriously alarms, annoys, torments, or terrorizes the person, and
that serves no legitimate purpose.â€
(§ 646.9, subd. (e).)
“Course of conduct†means “two or more acts occurring over a period of
time, however short, evidencing a continuity of purpose.†(Id.,
subd. (f).) Further, “‘credible threat’
means a verbal or written threat, including that performed through the use of
an electronic communication device, or a threat implied by a pattern of conduct
or a combination of verbal, written, or electronically communicated statements
and conduct, made with the intent to place the person that is the target of the
threat in reasonable fear for his or her safety or the safety of his or her
family, and made with the apparent ability to carry out the threat so as to
cause the person who is the target of the threat to reasonably fear for his or
her safety or the safety of his or her family.
It is not necessary to prove that the defendant had the intent to
actually carry out the threat.†(
subd. (g).)
A. “No
Legitimate Purposeâ€
Thomas first contends there was
insufficient evidence that his repeated appearances at Goodwin’s home “serve[d]
no legitimate purpose†such that his conduct fell within the definition of
harassing behavior. (§ 646.9, subd.
(e).) Instead, he contends that the
evidence at trial showed that he was “calling on her to revive his relationship
with her†and was motivated by a “normal and natural intent and purpose of any
boyfriend – that of trying to get back with his girlfriend.â€
In determining whether a defendant’s
purpose in contacting the stalking victim could be considered “legitimate,†we
consider the issue from “the view of the victim or a reasonable person,†not
the defendant. (People v. Tran (1996) 47 Cal.App.4th 253, 260 (Tran).) In
stalking the victim, a woman he knew from a club where they were both regular
customers. He wanted to have a romantic
relationship and wanted her to leave her husband. She repeatedly told him she did not want to
see him, and he began to threaten to hurt her and her husband and to damage her
car. On one occasion, he smashed the
windows of her car, and after another occasion when she saw him sitting in his
car outside her apartment, her roommate’s car window was discovered
broken. (Id. at pp. 257-258.) One
evening, the defendant brandished a hammer trying to prevent the victim from
leaving the parking lot of the club. (
outside the victim’s home wielding a long knife and began chasing the victim’s
husband, who was holding the couple’s baby at the time. (Ibid.)
The defendant argued that the element
of the stalking statute requiring that “the objectionable conduct ‘serve[] no
legitimate purpose,’ is unconstitutionally vague and gives the violator no
sufficiently definite basis for ascertaining what purposes are
‘legitimate.’†(Tran, supra, 47 Cal.App.4th at p. 259.) He contended that the wording “allows the
jurors to impose their own moral judgment on his actions, which he may have
believed had a legitimate purpose, i.e., to convince [the victim] to leave her
husband and pursue a romantic relationship with him.†(Id.
at p. 260.) The court rejected the
argument that the defendant’s desire to have a romantic relationship with the
victim constituted a “legitimate purpose†such that his behavior fell outside
the stalking provision. The court concluded that an ordinary person
understands the conduct prohibited by section 646.9, namely following or
harassing a person and making a credible threat with intent to place the person
in reasonable fear of personal or family safety, and “[a]ny ulterior desire by
defendant cannot excuse his commission of the prohibited acts.†(Id.
at p. 260.) The court found that the “[d]efendant cannot genuinely question
that his acts of threatening [the victim] with a knife or hammer and chasing
her husband and baby while wielding a long knife are prohibited, even if he
somehow hopes the acts will persuade [the victim] to leave her husband.†(Ibid.)
Similarly, Thomas’s desire to have
Goodwin take him back as her boyfriend does not constitute a “legitimate
purpose†that renders the stalking statute inapplicable. An obsessive attraction to the victim is a
trait shared by many defendants convicted under the
one-sided, unwanted romantic interest deemed a legitimate purpose for conduct
that otherwise would be considered harassing.
Moreover, Thomas’s repeated visits to
Goodwin’s house beginning in early October 2010 were inherently unlawful
because they violated restraining orders that were in place. “Legitimate†is “[t]hat which is lawful,
legal, recognized by law, or according to law.â€
(Black’s Law Dict. (5th ed. 1979) p. 811.) Because Thomas’s contacts with Goodwin were
unlawful due to the restraining order, they cannot have served a legitimate
purpose.
Finally, Thomas’s argument that he was
only trying to get back with his girlfriend unfairly minimizes his disturbing
criminal behavior that included leaving Goodwin bloody notes in which he
threatened to kill her, making repeated verbal threats to “blast†her,
destroying her property, and entering her backyard by climbing over neighbors’
fences. No reasonable person could find
a legitimate purpose for such conduct.
Therefore, sufficient evidence supported the jury’s conclusion that
Thomas’s conduct had no legitimate
purpose.
B.
Thomas also contends that there was
insufficient evidence that Thomas made a “credible threat†with the intent to
place Goodwin in reasonable fear for her safety or the safety of her immediate
family. (§ 646.9, subd. (a).) Thomas contends both that Goodwin did not
actually fear that Thomas would hurt her or a family member, and that any such
fear was not reasonable.
Thomas relies on testimony from his
niece Shaquita that on approximately November 24, 2010, Goodwin and Thomas sat
in Goodwin’s car talking for two to three hours, and on Christmas Eve, Goodwin
talked with Thomas for another two to three hours outside Shaquita’s home. He contends that the fact that Goodwin sat in
the car with him for this length of time demonstrates that she was not afraid
of him. He also relies on Goodwin’s
testimony that when she spoke with Thomas on December 24, 2010, he told her he
wanted to at be friends and would not hurt her.
Finally, he relies on evidence that Thomas never physically abused
Goodwin while they were together. He
contends that given this evidence, the jury could not reasonably find that
Goodwin had reason to fear for her safety or the safety of her immediate
family. We disagree.
First, Thomas ignores the
that she never sat in a car with him.
“The testimony of one witness, if believed, may be sufficient to prove
any fact.†(People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508; Evid. Code,
§ 411.) Because we resolve all
conflicts in the evidence and questions of credibility in favor of the verdict
(People v. Mendez, supra, 188
Cal.App.4th at p. 56), we must credit Goodwin’s account that she did not sit in
the car with Thomas.
Moreover, Thomas ignores Goodwin’s explicit
testimony that she was afraid that Thomas was going to kill her or hurt her
family members. She testified that even
when she spoke to Thomas on Christmas Eve at Thomas’s sister’s house, she
remained fearful, but she did not believe he would do anything with his family
there. Further, Gayden gave
corroborating testimony regarding the fear that Thomas’s conduct induced. Gayden’s cousin, Travis, testified that she
saw Goodwin looking scared and crying on the five to seven occasions that
Travis was visiting them while Thomas was lurking near her home. In addition, Officer Paul testified that
Goodwin was scared and crying on one instance when Thomas got away on November
19, 2010, after threatening her.
Further, Thomas ignores the evidence
of the measures Goodwin took to protect herself, including obtaining
system, calling 911 repeatedly, and constructing a booby trap to alert her if
Thomas jumped the fence into her backyard, all of which further support the
conclusion that she was afraid for her and her family’s safety. Sufficient evidence was thus presented at
trial that Goodwin actually feared for her safety.
Nor can the reasonableness of
Goodwin’s fear seriously be questioned.
Despite Goodwin’s efforts to deter him, Thomas’s conduct escalated in
severity in October and November 2010 to the point that he left her death
threats with his blood on them. We
cannot agree with Thomas that his repeated threats to blast her, get her, and
kill her reasonably should have been considered “empty remark[s],†particularly
when Goodwin knew that Thomas had owned a gun in the past and had physically
abused his former wife. Thomas’s statement
to Goodwin on Christmas Eve 2010 that he would not hurt her does not negate the
reasonableness of Goodwin’s fears to the contrary. “[I]t is a sad truth, and one commonly
reported, that persons . . . in the grips of an obsession, have killed or
harmed the object of that obsession, even while maintaining that they have no
desire to cause harm.†(
287, 298 (Falck).) Sufficient evidence was presented that
Goodwin reasonably feared that Thomas would hurt her.
Finally, sufficient evidence was
provided at trial from which to infer that Thomas intended to make Goodwin fear
for her safety.
title="">[3] Thomas’s intent to cause fear in Goodwin may
be shown from the surrounding facts and circumstances. (Falck,
supra, 52 Cal.App.4th at p. 299; People
v. Thomas (2011) 52 Cal.4th 336, 355 [“Mental state and intent are rarely
susceptible of direct proof and must therefore be proven
circumstantially.â€].) Such intent can
easily be inferred from the death threats Thomas made towards Goodwin, particularly
the bloody notes promising that he would kill her, including a promise made “on
my mother and brother.†From such a note
it is difficult to devise any intent other than to make Goodwin afraid that he
was going to kill her. Even without such
explicit threats to “blast†her or kill her, the persistent visits to her home
after she obtained a restraining order, including instances where he destroyed
her property, reasonably could be considered evidence of an intent to place
Goodwin in fear. (People v. Uecker (2009) 172 Cal.App.4th 583, 597 [“[I]t can be
inferred defendant intended to place [the victim] in reasonable fear for her
safety from his persistent phone contacts with her despite her attempts to end
themâ€]; Falck, supra, 52 Cal.App.4th
at p. 299 [“it can be inferred that appellant intended to cause fear in the
victim from the fact that he insisted on maintaining contact with her although
she clearly was attempting to avoid himâ€].)
Sufficient evidence was presented at trial that Thomas acted with the
intention of inducing fear in Goodwin.
II. Judicial
Misconduct
Thomas was charged with five counts of
making criminal threats, and ultimately was convicted of three of the
counts. During defense counsel’s opening
statement, he twice referred to the criminal threat counts as counts for “terrorist†threats. At the conclusion of the statement, the
prosecutor asked the court, “[C]ould we correct the record? It’s not terrorist threats. It’s criminal threats.†The court immediately instructed the jury as
follows, “There’s been a change in the name of the crime, ladies and
gentlemen. They are synonymous. They are interchangeable. But the technical term now is criminal threats.â€
Thomas contends that the trial court
confused the jury, because the term “terrorist†has taken on such a
the terrorist attacks on innocent people in recent times. He contends that the trial court’s error in
equating “terrorist threats†and “criminal threats†constituted judicial
misconduct that irreparably prejudiced him in the eyes of the jury. We reject his argument.
First, we note that Thomas forfeited
the argument because his counsel did not object to the court’s equation of
terrorist and criminal threats. (
1237 [“As a general rule, judicial misconduct claims are not preserved for
appellate review if no objections were made on those grounds at trial.â€];
914.) Even assuming Thomas’s claim is properly
before us, it fails on the merits.
The current heading of title 11.5 of
the Penal Code, which contains section 422, is labeled “Criminal Threats.†(§ 422.)
However, before legislative amendments to section 422 in 2000, that
heading was labeled “Terrorist Threats†not “Criminal Threats.†(Stats. 2000, ch. 1001, § 4; Stats.
1988, ch. 1256, § 4, p. 4184; People
v. Toledo (2001) 26 Cal.4th 221, 224, fn. 1.) The text of the statute was the same before
and after the amendments. (
p. 224, fn. 1.) Thus, until 2000, a
violation of section 422 was labeled a “terrorist threat,†even though the body
of the statute did not reference “terrorists†or “terrorism.†(People
v. Moore (2004) 118 Cal.App.4th 74, 78-79.)
Even after the 2000 amendment, courts sometimes still refer to
violations of section 422 as “terrorist threats.†(E.g., In
re Q.N. (2012) 211 Cal.App.4th 896, 899; People v. Gerold (2009) 174 Cal.App.4th 781, 784;
1425, 1430.) Therefore, the trial court
accurately told the jury that the terms “criminal threats†and “terrorist
threats†are used interchangeably.
We do not credit Thomas’s argument
that the court’s clarification tainted Thomas in the minds of the jury and
caused them to consider him in a worse light given the terrorist attacks on
Americans early in this century. There
was no suggestion during the trial that Thomas was involved in political or
nationalistic terrorism, and the court correctly instructed the jury on the
elements of section 422, which likewise do not reference
misconduct, and Thomas suffered no prejudice.
III. Ineffective
Assistance of Counsel
Thomas contends that his trial counsel
was ineffective in two ways: (1) in
failing to object to the trial court’s statement to the jury that the phrases
“terrorist threats†and “criminal threats†are synonymous; and (2) in failing
to convince the trial court to permit him to cross-examine Goodwin regarding
Thomas’s allegation that she had stolen money from him while he was in
jail.
To prove ineffective assistance of
counsel, Thomas must show that (1) his counsel’s representation fell below an
objective standard of reasonableness, and (2) the deficiency resulted in
demonstrable prejudice. (
333.) “A reviewing court will indulge in
a presumption that counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.
Defendant thus bears the burden of establishing constitutionally
inadequate assistance of counsel.
[Citations.]†(
1211.)
“Tactical errors are generally not
deemed reversible; and counsel’s decisionmaking must be evaluated in the
context of the available facts.†(
623.) On a direct appeal, we may reverse
a conviction on the ground of ineffective assistance of counsel “only if the
record on appeal affirmatively discloses that counsel had no rational tactical
purpose for his act or omission.†(
572, 581; see People v. Jones (2003)
29 Cal.4th 1229, 1254.)
We conclude that Thomas has failed to
meet the standard for proving ineffective assistance of counsel on a direct
appeal. With respect to the trial
court’s admonition to the jury that the phrases “terrorist threats†and
“criminal threats†were interchangeable, we have concluded above that the trial
court accurately commented on the state of the law. Therefore, defense counsel did not fall below
the standard of professional competence to which counsel is held in failing to
object to the trial court’s instruction.
With respect to Thomas’s argument that
defense counsel should have more vigorously sought leave to cross-examine
Goodwin on the issue of whether she stole money from him, the record
demonstrates a “rational tactical purpose†for his counsel’s failure to press
the issue despite its potential relevance.
(People v. Fosselman, supra,
33 Cal.3d at p. 581.)
The record reveals the following:
Before defense counsel began his
cross-examination of Goodwin, the prosecutor stated, “I want to make sure that
[counsel] is not going to cross-examine about the allegations of the victim’s
stealing money from him.†Defense
counsel stated he did not see any reason why he could not. The prosecutor explained, “The defendant was
in custody from another case from . . . at least February until July. In February he signed a document. . . . They were still friendly, right, February
2010. . . . She visited him in jail, and
he signed a document allowing her to access his accounts to pay his bills because
he was in custody. And we sat down – the
former attorney believed that she made this all up because she stole his
money. We sat down with the former
attorney with all of the documentation and proved that every single penny that
she took out for him was paying his bills, and that attorney was satisfied. . .
. That attorney would never have brought
it up. So any accusation of the victim
stealing money from the defendant is a can of worms.†The prosecutor stated he had the records, and
was happy to sit down with defense counsel.
The court asked if any charges were brought against Goodwin, and the
prosecutor said no.
Defense counsel argued that “the
defendant believes she made many of the allegations in
the Social Security Administration and the County’s in-home supportive services
unit, because she was also a caretaker receiving moneys from the County to take
care of him, take care of his house, in-home supportive services.†He argued that although no charges were
brought against her based on the alleged theft, a formal complaint was
made. The court stated:
“THE COURT: You said . . . there was a formal complaint
against your client. Would [Goodwin] be
able to bring those up?
“[DEFENSE COUNSEL]: No, Your Honor.
“THE COURT: Then you can’t either.
“[DEFENSE COUNSEL]: All right.
“THE COURT: Same rules for both sides.â€
As demonstrated by the foregoing,
defense counsel presented an argument justifying cross-examination of Goodwin
regarding the theft allegations, and the prosecutor indicated that the
documentary records showed that the allegations were unfounded and that
Thomas’s previous counsel had conceded as much.
The trial court ruled against the admission of the testimony
and defense counsel reasonably did not further object to the decision given the
prosecutor’s explanation and offer of proof.
In sum, Thomas has not demonstrated that his trial counsel’s conduct
fell below the standard for competent representation.
disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
name="_ftn1" title="">[1] All
undesignated statutory references are to the Penal Code.
parties stipulated at trial that the blood on both notes was Thomas’s. A handwriting expert testified that there
were indications to suggest that it was Thomas’s handwriting on the notes, but
he could not render a more conclusive opinion.
