People v. Williams CA4/1 ( 2014 )

Filed 12/16/14 P. v Williams CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064688
Plaintiff and Respondent,
v. (Super. Ct. No. SCE328118)
JAMES EARL WILLIAMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, William J.
McGrath, Jr., Judge. Affirmed.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland, Robin Urbanski and Alastair J. Agcaoili, Deputy Attorneys General,
for Plaintiff and Respondent.
In this shoplifting and robbery case involving the theft of merchandise from two
retail stores on three separate occasions in 2013, a jury convicted James Earl Williams of
four offenses: petty theft at a Walmart store in February (count 1: Pen. Code, § 484) (all
further statutory references are to the Penal Code); burglary and petty theft at the same
Walmart store in March (counts 2 & 3: §§ 459, 484, respectively); and robbery at a
Marshalls store in January (count 4: § 211). Williams thereafter admitted to be true
sentence enhancement allegations that he had suffered several specified theft-related prior
convictions (§ 666, subd. (a)), numerous specified probation denial priors (§ 1203, subd.
(e)(4)), and two prison priors (§§ 667.5, subd. (b), 668). The court sentenced Williams to
an aggregate state prison term of four years four months.
On appeal, Williams challenges his convictions based on three contentions. First,
he contends there is insufficient evidence to sustain his count 4 robbery conviction
because, under the reasoning of People v. Mungia (1991) 234 Cal.App.3d 1703, it is
"doubtful" that any force he exerted when he collided with the Marshalls loss prevention
officer─Juan Ruiz─as he (Williams) was running from the store while carrying the
property he had stolen "would constitute the 'force' necessary to constitute the robbery
force element."
Second, he contends his robbery conviction also must be reversed because the
court prejudicially erred in denying his request for an instruction under CALCRIM No.
3404 on the defense of accident. In support of this claim, Williams asserts that "the
instruction was justified by the evidence that Ruiz essentially caused the collision and [he
(Williams)] made physical contact [with Ruiz] only by mistake and misfortune."
Last, he contends that all four of his convictions should be reversed because his
Sixth Amendment right to effective assistance of counsel was violated when his trial
2
counsel failed to subpoena and call at trial two witnesses whose testimony (he asserts)
"would have helped [his] case by raising reasonable doubt."
For reasons we shall explain, we reject these contentions and affirm the judgment.
FACTUAL BACKGROUND
A. January 20131 Robbery at Marshalls (Count 4)
On January 5 Juan Ruiz was working as a loss prevention officer at the Marshalls
store in El Cajon. Using a surveillance camera, Ruiz watched Williams walk into the
shoe department, select a pair of Adidas shoes, and then, after trying them on, put them
into a shopping bag he had carried into the store. Ruiz testified the shopping bag had
comic characters on it and appeared to be empty before Williams put the shoes in it.
Armando Valdez, a loss prevention officer who worked with Ruiz that day, also
watched Williams from the camera room of the store as Williams selected the Adidas,
pulled the security sensors off the shoes, and placed the shoes in the bag he was carrying.
Valdez later went to the shoe department and found the Adidas box he had seen Williams
replace on the shelf after he removed the shoes. Only the security sensors were left in the
box.
Ruiz─who is six feet tall, weighs 340 pounds, and was dressed in plain
clothes─went to the floor of the store and was behind Williams when Williams walked
out of the store. Ruiz testified that he ran around in front of Williams as Williams ran
outside the store without paying for the merchandise he was carrying. Ruiz identified
1 All further dates are to the calendar year 2013.
3
himself as a Marshalls loss prevention officer and showed Williams his Marshalls
identification card. Ruiz tried to prevent Williams from leaving by cutting in front of
Williams and turning to face him. Ruiz testified that Williams ran into him with one
hand up and "pushed [him] out of the way" by putting his hand on Ruiz's shoulder.
Ruiz testified that when Williams pushed him out of the way, he (Ruiz)
"disengage[d]" in accordance with a Marshalls policy requiring its personnel to stop
apprehension attempts once a person places a hand on an employee. Williams ran
through the parking lot carrying the merchandise he had taken. Ruiz then called the
police.
B. February Petty Theft at Walmart (Count 1)
On February 24, in the men's department of a Walmart store in La Mesa, Williams
quickly selected a number of items of men's clothing from the store displays without
looking at their prices. A Walmart asset protection associate testified that this sort of
"quick selection" indicates suspicious activity.
After taking the merchandise, Williams rode the store escalators to the automotive
department on the second floor. He went down an aisle, pulled a reusable bag out of his
pocket, and placed the merchandise inside the bag. Williams left the store with the
merchandise without paying for it.
Near the exit, a Walmart asset protection associate approached Williams,
identified herself as Walmart security, and asked him to return to the store. Williams did
not comply with her request and fled through the parking lot with the merchandise he had
taken.
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C. March Burglary and Petty Theft at the Same Walmart (Counts 2 & 3)
On March 1 at the same La Mesa Walmart, Williams selected pieces of both men's
and women's clothing and placed them inside a shopping cart. He then moved to the
stationery department, which is the department closest to the exit. There he placed the
merchandise he had taken into two reusable bags he had brought with him to the store.
He then placed the bags into the shopping cart and left the store without the bags or
merchandise.
A few minutes later, Williams returned to the Walmart stationery department,
grabbed the reusable bags containing the merchandise he had selected, and left the store
with the merchandise without paying for it. La Mesa police arrested Williams a few
minutes later outside the store.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE (COUNT 4: ROBBERY)
Williams first contends there is insufficient evidence to sustain his count 4 robbery
conviction because, under the reasoning of People v. Mungia, supra, 234 Cal.App.3d
1703, it is doubtful that any force he exerted when he collided with the Marshalls loss
prevention officer─Ruiz─as he (Williams) was running from the store carrying the
property he had stolen "would constitute the 'force' necessary to constitute the robbery
force element." We reject this contention.
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A. Applicable Legal Principles
1. Robbery
"Robbery is defined as 'the felonious taking of personal property in the possession
of another, from his person or immediate presence, and against his will, accomplished by
means of force or fear.'" (People v. Anderson (2011) 51 Cal.4th 989, 994 (Anderson),
quoting Pen. Code, § 211.)
In Anderson, the California Supreme Court explained that "[r]obbery is larceny
with the aggravating circumstances that 'the property is taken from the person or presence
of another . . . ' and 'is accomplished by the use of force or by putting the victim in fear of
injury.' [Citation.] In California, '[t]he crime of robbery is a continuing offense that
begins from the time of the original taking until the robber reaches a place of relative
safety.' [Citation.] It thus is robbery when the property was peacefully acquired, but
force or fear was used to carry it away." (Anderson, supra, 51 Cal.4th at p. 994.)
Anderson also explained that "[t]he intent required for robbery has been described
as the specific intent to deprive the victim of the property permanently. [Citations.]
Thus, 'the act of force or intimidation by which the taking is accomplished in robbery
must be motivated by the intent to steal . . . .'" (Anderson, supra, 51 Cal.4th at p. 994.)
The amount of force required to sustain a robbery conviction is "some quantum of
force in excess of that 'necessary to accomplish the mere seizing of the property.'"
(Anderson, supra, 51 Cal.4th at p. 995.) Even a "slight push" or "tap" against the victim
is sufficient. (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved on other
grounds in People v. Mosby (2004) 33 Cal.4th 353, 365, fns. 2, 3.)
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2. Standard of review
When assessing a challenge to the sufficiency of the evidence supporting a
conviction, we apply the substantial evidence standard of review, under which we view
the evidence "in the light most favorable to the judgment below 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. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v.
Virginia (1979) 443 U.S. 307, 319.) "The same standard of review applies to cases in
which the prosecution relies mainly on circumstantial evidence." (People v. Maury
(2003) 30 Cal.4th 342, 396.)
We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate
the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v.
Jones (1990) 51 Cal.3d 294, 314.) "Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34
Cal.4th 1149, 1181.) Thus, "[c]onflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment." (People v. Maury, supra, 30 Cal.4th
at p. 403.)
"If the defendant fails to present us with all the relevant evidence, or fails to
present that evidence in the light most favorable to the People, then he cannot carry his
burden of showing the evidence was insufficient because support for the [trier of fact's]
verdict may lie in the evidence he ignores." (People v. Sanghera (2006) 139 Cal.App.4th
1567, 1574.)
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B. Analysis
We are guided in our analysis by the decision in People v. Garcia, supra, 45
Cal.App.4th at page 1246. In Garcia "[t]he evidence [showed that the] defendant
approached the cashier while the register drawer was open and gave her a slight push,
'like a tap,' on her shoulder with his shoulder. Fearful defendant might be armed, the
cashier moved away. Defendant then reached into the open register, grabbed the money
and escaped. The cashier was not injured." (Ibid.) In concluding the "slight push" was
sufficiently forcible to establish the force element of robbery, the Court of Appeal stated:
"The defendant did not simply brush against the cashier as he grabbed for the money. He
intentionally pushed against her to move her out of the way so he could reach into the
register. . . . [P]ushing the cashier went beyond the 'quantum of force which [was]
necessary' to grab the money out of the cash register. We agree defendant appears to
have been rather polite in his use of force, giving the cashier a mere 'tap.' Nevertheless,
for purposes of the crime of robbery, the degree of force is immaterial." (Ibid.)
Similarly here, substantial evidence supports Williams's count 4 robbery
conviction by establishing that Williams, like the defendant in Garcia, accomplished the
theft by pushing the victim out of the way. Specifically, Ruiz testified that he identified
himself to Williams as a Marshalls loss prevention officer and showed Williams his
Marshalls identification card after Williams exited the store without paying for the
merchandise he was carrying. Ruiz also testified that he tried to prevent Williams from
leaving by running in front of him to cut him off and then turning around to face him.
Ruiz further testified that Williams ran into him with one hand up, "pushed [him] out of
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the way" by putting his hand on Ruiz's shoulder, and then ran away with the stolen
merchandise.
Ruiz's foregoing testimony constitutes substantial evidence from which a
reasonable trier of fact could find that Williams, in accomplishing his theft of the
Marshalls merchandise, pushed the loss prevention officer out of the way as Williams
was running away from the store with the merchandise, and this forcible act was
motivated by his intent to steal the merchandise.
Williams contends, however, that the evidence is insufficient to support his
robbery conviction because "it was not [he] who applied force, but [Ruiz] and the law of
physics" that applied force, and, thus, "the only physical contact was caused by an act
over which [he (Williams)] had no control."
Williams's attempt to characterize his physical contact with Ruiz outside the
Marshalls store as an inadvertent and unintentional collision is unavailing. In applying
the substantial evidence standard of review, as already discussed, we must view the
evidence in the light most favorable to the judgment (People v. Johnson, supra, 26 Cal.3d
at p. 578), and we do not reweigh the evidence, resolve conflicts in the evidence, or
reevaluate the credibility of witnesses (People v. Ochoa, supra, 6 Cal.4th at p. 1206;
People v. Jones, supra, 51 Cal.3d at p. 314). Here, Ruiz explicitly testified on direct
examination that Williams "pushed me out of the way and ran to the parking lot." (Italics
added.) When questioned further by the prosecutor, Ruiz reiterated, "I ran in front of
[Williams], and he . . . just pushed me out of the way." (Italics added.) The prosecutor
asked Ruiz to more specifically describe what Williams did, and Ruiz replied that
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Williams "used one hand to push me out of the way." (Italics added.) Later, when
defense counsel cross-examined Ruiz and characterized Williams's physical contact with
Ruiz as "run[ning] into you," Ruiz disagreed and stated, "Actually it was more of a push."
Williams's claim that it was Ruiz, not Williams, who applied the force during the
collision is meritless because it is based not on the evidence viewed in the light most
favorable to the judgment, but on an interpretation that essentially asks this court
improperly to reweigh Ruiz's testimony, give little weight to his testimony that Williams
was running from the store with stolen merchandise after Ruiz identified himself as a loss
prevention officer, and to disregard Ruiz's explicit and repeated testimony showing that
Williams did not just run into Ruiz, but rather he used one hand to push Ruiz out of the
way. Ruiz's testimony is substantial evidence from which a reasonable jury could find
that Williams used force to retain the merchandise he was carrying after the Marshalls
loss prevention officer tried to stop him, and in doing so he was motivated by the intent to
steal that merchandise. By failing to present all the relevant evidence on the issue of
whether the force he used force in stealing the merchandise was sufficient to constitute
robbery, and in failing to present the evidence in the light most favorable to the People,
Williams has failed to meet his burden of showing the evidence is insufficient to support
his robbery conviction. (See People v. Sanghera, supra, 139 Cal.App.4th at p. 1574.)
Relying on People v. Mungia, supra, 234 Cal.App.3d 1703, and highlighting
Ruiz's testimony that he (Ruiz) is six feet tall and weighs 340 pounds, Williams asserts
that Ruiz "was younger and 90 pounds bigger than [him]," and, thus, "it is doubtful" that
any force he (Williams) exerted when he collided with Ruiz as he was running away from
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the store with the merchandise "would constitute the 'force' necessary to constitute the
robbery force element."
Williams's reliance on Mungia is unavailing. In that purse-snatching robbery case,
the Court of Appeal concluded that substantial evidence supported the jury's implied
finding that the defendant used sufficient "force" within the meaning of the robbery
statute (§ 211) to satisfy the force element of that offense because it showed the
defendant first "shoved" his eight-months-pregnant victim "to overcome any resistance
by her," and "then, in a separate motion, snatched the purse from her shoulder." (People
v. Mungia, supra, 234 Cal.App.3d at pp. 1708-1709.) The Court of Appeal reasoned that
that the defendant's larger size and greater strength supported the jury's finding that he
used more force than was necessary to accomplish the snatching of the purse. (Id. at p.
1709.) The Mungia court did not hold, as Williams suggests, that a defendant uses
insufficient force to satisfy the force element of robbery when he collides with a victim
who is younger and larger than the victim.
For all of the foregoing reasons, we conclude the evidence is sufficient to support
the jury's finding that Williams used sufficient force to satisfy the force element of
robbery.
II. CLAIM OF INSTRUCTIONAL ERROR
Williams also claims his robbery conviction must be reversed because the court
prejudicially erred in denying his request for an instruction under CALCRIM No. 3404
on the defense of accident. In support of this claim, Williams asserts that the instruction
was justified by the evidence that the Marshalls loss prevention officer, Ruiz, essentially
11
caused the collision outside the store, and that [he (Williams)] made physical contact
[with Ruiz] only by accident and misfortune. We reject Williams's claim of instructional
error.
A. Background
After both parties rested their cases, defense counsel requested that the court
instruct the jury with CALCRIM No. 3404 as follows on the defense of accident:
"The defendant is not guilty of robbery if he acted without the intent
required for that crime but acted instead accidentally. You may not
find the defendant guilty of robbery unless you are convinced
beyond a reasonable doubt that he acted with the required intent."
Acknowledging that the requisite intent for robbery is an intent to steal, Williams's
counsel asserted that "there is a component that there has to be a use of force and not
some type of incidental contact" and claimed that the instruction was appropriate because
Williams lacked the intent to push Ruiz or use force against him.
The prosecutor objected to the instruction on the grounds that the requisite intent
for robbery is only the intent to steal, and, thus, the defense theory of accident was
incorrect as a matter of law and would potentially confuse the jury.
The court denied defense counsel's request for an instruction on the defense of
accident under CALCRIM No. 3404, finding that the only evidence offered at trial was
that Williams pushed Ruiz out of the way as he fled the scene with the stolen
merchandise, which suggested that Williams acted intentionally, and thus the contact was
not an incidental contact.
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B. Applicable Legal Principles
"'The trial court has the duty to instruct on general principles of law relevant to the
issues raised by the evidence [citations] and has the correlative duty "to refrain from
instructing on principles of law which not only are irrelevant to the issues raised by the
evidence but also have the effect of confusing the jury or relieving it from making
findings on relevant issues."'" (People v. Alexander (2010) 49 Cal.4th 846, 921, quoting
People v. Saddler (1979) 24 Cal.3d 671, 681.) Thus, a trial court should not give a
requested instruction that is irrelevant or inapplicable to the issues and evidence in the
case. (People v. Cross (2008) 45 Cal.4th 58, 67; accord, People v. Guiton (1993) 4
Cal.4th 1116, 1129 ["It is error to give an instruction which . . . has no application to the
facts of the case."].)
We review de novo a claim of instructional error. (People v. Posey (2004) 32
Cal.4th 193, 218.)
C. Analysis
We conclude that (1) the court did not err in denying Williams's request for an
instruction on the defense of accident under CALCRIM No. 3404 and that (2) even if we
were to assume the court erred, the assumed error was harmless under any standard of
prejudice. Our decision is supported by the decision in Anderson, supra, 51 Cal.4th 989.
In Anderson a jury convicted the defendant of first degree felony murder with the
special circumstance of killing during the course of a robbery based on evidence that, in
attempting to steal the victim's car, he killed her by running over her while he was driving
the car out of the apartment complex at night. (Anderson, supra, 51 Cal.4th. at pp. 992-
13
993.) On appeal, the defendant conceded both that he committed a forcible act against
the victim and that the act was motivated by his intent to steal the victim's car. (Id. at p.
993.) Relying on his own testimony that he swerved the car before he ran over the
victim, that he had been thinking about getting away, and that he had not contemplated
that he might hit someone, the defendant claimed that the trial court erred in failing to
give a sua sponte instruction on the defense of accident. (Id. at p. 993.) In support of this
claim of error, the defendant argued that his forcible taking of the car was not a robbery
unless he applied the force with the intent to frighten the victim or strike her with the
stolen car. (Id. at pp. 994-995.) The California Supreme Court rejected this argument and
the defendant's claim of instructional error, explaining that the requisite intent for robbery
is the "specific intent to deprive the victim of the property permanently" (that is, the
intent to steal) (id. at p. 994), not the "intent to apply force against the victim or to cause
the victim to experience fear." (Id. at p. 995.) The Supreme Court reasoned that, "[a]s
defendant's theory of accident concerning the use of force added a nonexistent element of
intent to the offense, an instruction on that theory would have been improper even upon
defense request." (Id. at p. 999.)
The same reasoning applies here. Williams's claim that he was entitled to an
instruction on the defense of accident is based on his assertion that the physical contact
between Ruiz and him occurred simply by accident. However, as Anderson explains, the
accidental use of force in perpetrating a theft is not a defense to a robbery charge because
the requisite intent for robbery is the specific intent to steal, not the intent to "apply force
against the victim or to cause the victim to experience fear." (Anderson, supra, 51
14
Cal.4th. at p. 995.) Like the rejected theory of accident in Anderson, Williams's theory of
accident improperly adds to the crime of robbery what the Anderson court described as a
"nonexistent element of intent," specifically, the "intent to cause the victim to experience
force of fear." (Id. at p. 999.)
Williams's reliance on People v. Gonzales (1999) 74 Cal.App.4th 382, is
unavailing. In Gonzales, the Court of Appeal held that the trial court erred in failing to
instruct the jury sua sponte on the defense of accident where the defendant was charged
with corporeal injury on a cohabitant and substantial evidence supported the defendant's
theory that the victim's injuries were caused by an accident.2 (Id. at p. 390.) In so
holding, the Court of Appeal reasoned that the accident instruction was appropriate
because the defendant's theory of accident, if believed by the jury, would have negated
proof of an element of the offense, namely, the intent to inflict willful corporal injury on
the victim. (Ibid.) Here, in contrast, Williams's accident theory would not have negated
an element of the charged offense because, as already discussed, robbery does not require
an intent to apply force (or fear) against the victim. (Anderson, supra, 51 Ca1.4th at p.
995.) Thus, Gonzales is not applicable.
Even if we were to assume the court erred, we would conclude that any such error
was harmless under any standard of prejudice because no evidence supported Williams's
2 In Anderson, supra, 51 Cal.4th at page 998, footnote 3, the Supreme Court
disapproved Gonzales, supra, 74 Cal.App.4th 382, "to the extent [it] hold[s] a sua sponte
instruction on accident is required when the defense is raised to negate the intent or
mental element of the charged crime."
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theory that his collision with Ruiz was accidental. Williams did not testify at trial, and
Ruiz consistently and repeatedly testified that Williams pushed him out of the way as
Williams ran away from the Marshalls store carrying the stolen merchandise.
For all of the foregoing reasons, we conclude the court properly denied Williams's
request for a defense-of-accident instruction.
III. CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL
Last, Williams claims that all four of his convictions should be reversed because
his Sixth Amendment right to effective assistance of counsel was violated when his trial
counsel failed to subpoena and call at trial two witnesses─Officer Reilly3 of the El Cajon
Police Department and Walmart Loss Prevention Officer Michael Perez─whose
testimony "would have helped [his] case by raising reasonable doubt." We reject this
claim.
A. Background
At Williams's request the court held a Marsden4 hearing during which Williams
sought to relieve his counsel in part because she had decided not to call Officer Reilly
and Perez as defense witnesses. At the hearing Williams's defense counsel explained that
she had reviewed prior statements from both Officer Reilly and Perez, and she had
decided that calling them as witnesses would not be in Williams's best interests.
3 Officer Reilly's full name does not appear in the record.
4 People v. Marsden (1970) 2 Cal.3d 118.
16
With respect to Officer Reilly, defense counsel told the court that Officer Reilly's
report of the January robbery at the Marshalls store indicated that Williams had pushed
the loss prevention officer, Ruiz, not on the sidewalk curb as he testified at trial, but in
the parking lot. Defense counsel explained that she made the "tactical decision" not to
call Officer Reilly both because this discrepancy was not sufficiently significant to
undermine Ruiz's testimony, and because she thought it was not a good idea to have
Officer Reilly give testimony that would have "highlight[ed] that a push happened as
opposed to perhaps incidental or accidental contact."
Williams told the court that his counsel should have called Perez as a witness
because Perez could not positively identify Williams at the preliminary hearing as the
perpetrator of the March theft committed at the Walmart store. Defense counsel
responded by indicating to the court that Perez's testimony was unhelpful because two
eyewitnesses had testified and had positively identified Williams as the perpetrator of that
offense.
The court denied Williams's Marsden motion for new appointed counsel.
B. Applicable Legal Principles
The law governing Williams's ineffective-assistance-of-counsel claim is settled. A
criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S.
Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S.
668, 684-685 (Strickland); People v. Frye (1998) 18 Cal.4th 894, 979 (Frye).) To
establish a denial of the right to effective assistance of counsel, a defendant must show
(1) his or her counsel's performance was below an objective standard of reasonableness
17
under prevailing professional norms, and (2) the deficient performance prejudiced the
defendant. (Strickland, at pp. 687, 691-692; Frye, at p. 979.)
To demonstrate prejudice, a defendant asserting an ineffectiveness claim on appeal
must show a reasonable probability he or she would have received a more favorable
result had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp.
693-694; Frye, 18 Cal.4th at p. 979.) "A reasonable probability is a probability sufficient
to undermine confidence in the outcome." (Strickland, at p. 694.)
Strickland explained that "[j]udicial scrutiny of counsel's performance must be
highly deferential [because] [i]t is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable." (Strickland, supra, 466 U.S. at p. 689,
italics added.) Strickland also explained that reviewing courts "must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound trial strategy.'" (Ibid.)
The California Supreme Court has explained that "'[w]hen a defendant makes an
ineffectiveness claim on appeal, the appellate court must look to see if the record contains
any explanation for the challenged aspects of representation.'" (People v. Kelly (1992) 1
Cal.4th 495, 520.) "A reviewing court will not second-guess trial counsel's reasonable
tactical decisions." (Ibid.)
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C. Analysis
Applying a highly deferential standard of scrutiny and indulging a strong
presumption that the conduct of Williams's trial counsel fell within the wide range of
reasonable professional assistance, as we must (Strickland, supra, 466 U.S. at p. 689), we
reject Williams's ineffective-assistance-of-counsel claim because the decisions made by
his trial counsel not to call Officer Reilly and Perez as defense witnesses were reasonable
tactical decisions that this court will not second-guess. (See People v. Kelly, supra, 1
Cal.4th at p. 520.)
Specifically, defense counsel's decision not to call Officer Reilly was a sound trial
tactic because, as she explained to the court at the Marsden hearing, Officer Reilly's
testimony would have "highlight[ed]" the testimony of Marshalls's loss prevention
officer, Ruiz, that Williams pushed Ruiz out of the way as Williams fled the scene with
the stolen merchandise.
Defense counsel's decision not to call Perez, who was one of Walmart's loss
prevention officers, also was a sound trial tactic because, as defense counsel explained to
the court, two witnesses had already positively identified Williams as the perpetrator of
the March 2013 theft committed at the Walmart store. Also, the reporter's transcript of
Perez's testimony at the preliminary hearing in this matter shows that, had he testified at
trial, he could have offered further inculpatory evidence against Williams because his
preliminary hearing testimony confirmed key aspects of the crime. For example, Perez
testified at the preliminary hearing that Williams placed merchandise in a reusable bag he
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had brought with him, he first left the bag in the greeting card department, he went
outside the store for a few minutes, and then he returned to the store and grabbed the bag.
As sound tactical reasons supported defense counsel's decisions not to call Officer
Reilly and Perez as witnesses, we conclude Williams has failed to meet his threshold
burden of demonstrating that his counsel's performance was below an objective standard
of reasonableness under prevailing professional norms. Accordingly, we need not
address Williams's related contention that he suffered prejudice as a result of the claimed
ineffective assistance of counsel, and, thus, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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