Filed 2/25/13 P. v. Thomas CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B236133
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA087606)
v.
RELIUS THOMAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles 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 stalking and making criminal threats 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))1 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. Prosecution Evidence
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
1
All undesignated statutory references are to the Penal Code.
2
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 permanent restraining order against 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
3
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!‖
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
4
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. There 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.‖ 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 911.2
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
2
The 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.
5
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.
6
B. Defense Evidence
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
7
for the court to grant the order. Goodwin admitted she had been convicted of
welfare fraud approximately 20 years before.
C. Rebuttal Evidence
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. Sufficiency of the Evidence
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
8
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 support‖‘ the jury‘s verdict. [Citation.]‖ (People v. Zamudio (2008) 43 Cal.4th
327, 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.‖
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.‖ (§ 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
9
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.‖ (Id., subd. (g).)
A. ―No Legitimate Purpose”
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.‖
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 Tran, the defendant was convicted of 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. (Id. at p. 257.) In the last
10
encounter, the defendant appeared 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 stalking statute. The statute would be eviscerated
11
were such 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.‖ (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. “Credible Threat”
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
12
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 contradictory testimony from Goodwin 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 restraining orders, installing a security system,
13
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.‖ (People v. Falck (1997) 52 Cal.App.4th 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.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.‖].) Such intent can easily be inferred from
3
It need not be shown that Thomas actually intended to carry out the threat. (Falck,
supra, 52 Cal.App.4th at p. 295; People v. Carron (1995) 37 Cal.App.4th 1230, 1240.)
14
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 them‖]; 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 him‖].) 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.‖
Thomas contends that the trial court confused the jury, because the term
―terrorist‖ has taken on such a hateful connotation in this country given the
15
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. (People v. Sturm
(2006) 37 Cal.4th 1218, 1237 [―As a general rule, judicial misconduct claims are
not preserved for appellate review if no objections were made on those grounds at
trial.‖]; People v. Abel (2012) 53 Cal.4th 891, 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. (People v. Toledo, supra,
26 Cal.4th at 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; People v. Gaut (2002) 95
Cal.App.4th 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
16
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 terrorism. In sum, the court committed no judicial
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. (People v. Bolin, supra, 18
Cal.4th at p. 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.]‖ (People v. Carter (2003) 30 Cal.4th 1166,
1211.)
―Tactical errors are generally not deemed reversible; and counsel‘s
decisionmaking must be evaluated in the context of the available facts.‖ (People v.
Hart (1999) 20 Cal.4th 546, 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
17
omission.‖ (People v. Fosselman (1983) 33 Cal.3d 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
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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 retaliation for his complaints to both 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.‖
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 testimony4 and defense counsel reasonably
4
The trial court appears to have mistakenly inferred that a complaint was brought
against Thomas, when defense counsel indicated that a complaint was brought against
Goodwin based on the alleged theft. Thomas does not argue that the trial court abused its
discretion with respect to this ruling, and in any event, based on the prosecutor‘s
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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.
argument and offer of proof, we conclude that the decision to preclude cross-examination
on this issue was not an abuse of discretion.
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