Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 200164
Siggins, J.
Daniel R. Williams appeals his jury convictions for stalking, second degree burglary, and making criminal threats. He contends his trial counsel was ineffective because she offered into evidence the text of a federal court decision pertaining to Williams’s prior conviction for making an interstate threat to injure a woman. We conclude the circumstances surrounding counsel’s action indicate she made a tactical decision to offer the evidence that we will not second-guess on appeal. (See Strickland v. Washington (1984) 466 U.S. 668, 689; People v. Blomdahl (1993) 16 Cal.App.4th 1242, 1248.) We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Williams’s Communications With Aguirre
San Francisco Deputy Public Defender Carmen Aguirre represented Williams on an earlier misdemeanor charge for approximately 10 days in 2006. A few months later, she received an e-mail from him. The subject line said, “Hello, Carmen Marie, ” and the body of the e-mail referred to a federal court decision by its citation number “356 F.3d 1045.” When Aguirre read the decision, she learned it referred to a case involving federal charges brought against Williams for making threats against one of his former college professors. Aguirre did not respond.
But she got several more e-mails from Williams the same day. Each directed her to pay attention to him and made sexually suggestive comments. Many more such e-mails and voicemails from Williams continued over the next several months. Some of them contained references to Adam Gasner, who was appointed to represent Williams after Aguirre’s representation ended, and suggested there was a sexual relationship between the two attorneys. One of the e-mails to Aguirre told her “you are in more trouble now than you’ve ever been in during the course of your existence, ” and again included the citation to the federal court decision.
Aguirre became increasingly concerned about the threatening tone of Williams’s communication, and became “really scared” after she reread the federal decision. After one e-mail from Williams to Aguirre stated “that the world would be a better place without people like you and Mr. Adam Gasner, ” she became “extremely concerned.” Aguirre also learned that information was posted on the Craigslist website that included allegations she was having an affair with Gasner and a citation to Williams’s federal case. Aguirre became angry and remained afraid. At about this time Aguirre was startled when Williams walked up close to her in a courthouse hallway and lunged towards her. As the sexually suggestive and threatening e-mails continued, Aguirre grew more afraid, but she refrained from calling the police because she was concerned that doing so could jeopardize her relationships with other clients.
Williams continued to post on Craigslist and his posts said things were going to happen on September 28. On September 26, he left Aguirre a voicemail that said, “you’re gonna explain to me what’s going on with you, or I’m gonna get rid of you... you know, I mean-in terms of your license, it’s not that that’s any kind of physical threat.” The messages continued, and on September 28, Gasner called Aguirre and told her that Williams broke into his office. That same day Williams went to Aguirre’s office looking for her and left a note asking to speak with her. He also left her voicemails that stated, “[s]o, here’s how it’s gonna go. I’m getting rid of Jeff Adachi, I’m getting rid of Adam (Gasner) and I’m getting rid of you, too. I’m tired of the three of you. You can all bite me from here on out.” Aguirre was afraid Williams would try to shoot her. Just as she was going to meet with police to discuss Williams’s messages, she realized he was following her as she left the courthouse. She heard Williams yelling her name, and instead of meeting with police, Aguirre had another client escort her to her office. Aguirre was “just terrified.”
A few months after Williams was arrested and an investigator told him to leave Aguirre alone, he left a profanity-laced voicemail for her. Williams continued to leave Aguirre voicemails that referred to the opinion in his federal case, and claimed that anyone who tried to forcibly medicate him would die.
B. Williams’s Communications With Gasner
Gasner assumed representation of Williams from Aguirre on the misdemeanor charge. In June of that year, Williams sent Gasner an e-mail saying he was upset because he had not received some bank cards he had directed be sent to Gasner’s office. He warned Gasner “if you are around 850 Bryant, be careful you don’t get punched in the mouth!” The next day, Williams sent Gasner another e-mail that mentioned Portland, where Gasner knew Williams was involved in a federal stalking case, and he taunted Gasner about contacting the district attorney to report Williams’s threats. In e-mails over the following weeks, Williams threatened to assault Gasner and made references to Gasner’s family. Gasner was frightened, but hesitated to do anything about the threats because “[c]alling the police on your own client can be a difficult thing for a defense lawyer.” In one of the e-mails, Williams told Gasner, “I will not hesitate to kill you.”
On September 28, Williams left Gasner a threatening voicemail and a note that told Gasner to stay away from Aguirre and threatened, “I will fuck you up. I am not kidding.” Later that day, Williams was in Gasner’s office, yelling and stomping. Gasner feared Williams was there to kill or assault him. When Gasner would not let him into the office, Williams yelled he would come back another day.
C. Procedural Background
A September 2008 information charged Williams with stalking and making criminal threats against Aguirre and Gasner, and second degree burglary of Gasner’s office. Williams testified and admitted that he sent the messages to Aguirre and Gasner, but claimed that he did not intend to threaten them with violence, but was instead trying to communicate his displeasure with the quality of their legal representation. Williams said he cited the decision in his federal case in order to identify himself in the e-mails.
The charges were originally filed in November 2006, but suspended and reinstated following Williams’s commitment to Napa State Hospital as incompetent.
The jury found Williams guilty of all the charges except making criminal threats to Aguirre. Williams was sentenced to three years, eight months in state prison, with 1, 160 days of custody credits, and was ordered to stay away from Aguirre and Gasner for 10 years and to pay restitution and other fines and fees. He timely appealed.
In April 2009, this court granted Williams’s request to replace his court-appointed appellate counsel. In July 2009, we denied Williams’s request to represent himself on appeal. We have subsequently denied Williams’s repeated requests to replace his current court-appointed counsel and/or to represent himself. In May 2010, we received a letter prepared by Williams in propria persona that he designated as a “friend of the court” brief. We ordered that the letter would be reviewed when the appeal was considered on its merits, “in order to ascertain whether he has raised any matters of which we must take cognizance. (People v. Clark [(1992)] 3 Cal.4th [41, ] 173.)” We conclude the letter raises no meritorious issues. (See ibid.)
DISCUSSION
To prevail on a claim of ineffective assistance of counsel, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness” and that, but for counsel’s errors, there is a “reasonable probability” the result of the proceeding would have been different, i.e. “a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at pp. 687, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “Judicial scrutiny of counsel’s performance must be highly deferential.... Because of the difficulties inherent in making the evaluation, a court 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.’ ” (Strickland v. Washington, supra, at p. 689.) “ ‘Ordinarily, matters involving trial tactics are not subject to judicial hindsight and the courts will not attempt to second-guess trial counsel....’ ” (People v. Blomdahl (1993) 16 Cal.App.4th 1242, 1248.) When “ ‘the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[, ]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ’ the claim on appeal must be rejected.” (People v. Wilson (1992) 3 Cal.4th 926, 936; quoted with approval in People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Williams contends his trial counsel was ineffective because she caused to be admitted into evidence the text of the federal court decision Williams identified in his e-mails to Aguirre and Gasner. That case is U.S. v. Williams (9th Cir. 2004) 356 F.3d 1045.)
In Williams, the Ninth Circuit reversed a condition of supervised release that required Williams to take psychotropic and other medications because the district court imposed the mandatory medication condition without making medically informed findings. (U.S. v. Williams, supra, 356 F.3d at pp. 1053, 1056-1057.) In its discussion of the background of the case, the court’s opinion states that while Williams was a student at Portland Community College, one of his teachers reported that Williams expressed a desire to start a relationship with her, and called her after she declined his offer. (Id. at p. 1047.) Nearly a year later, the teacher reported receiving harassing e-mails from Williams that included such veiled threats as “ ‘10 to 1 [I] can find out where you live, ’ ” “ ‘are you able to walk down the street alone without looking over you [sic] shoulder every time your [sic] hear the faintest noise?, ’ ” “ ‘if I have to kill you I am also willing to do that, ’ ” “ ‘so I may be seeing you shortly, id [sic] say it would be time to start paying up before a crazed hooligan finds you on the way to your car or maybe even in the comfort of your own home, ’ ” “ ‘you must think that ending your life is something that ill [sic] think twice about, ’ ” and “ ‘your [sic] still gonna pay up whether or not if I have to beat it out of you.’ ” (Id. at p. 1048.)
In addition to providing specific examples of Williams’s threats, the decision summarized Williams’s criminal history that included a 1999 conviction for misdemeanor harassment, disorderly conduct, attempted assault and assault (arising out of an alcohol-fueled incident at Portland State University); a March 1999 violation of a condition of his ensuing probation that he not contact any employee of an Oregon institution of higher education; an April 1999 probation violation based on a positive test for marijuana and his failure to complete a psychological evaluation; that a substance abuse evaluation showed he was cocaine and methamphetamine dependent; other probation violations involving marijuana use, failing to participate in drug treatment, and absconding from supervision; and a January 2000 hospitalization following an arrest that was later dismissed for vandalism, throwing projectiles at a vehicle, and threatening with a weapon. (U.S. v. Williams, supra, 356 F.3d at p. 1049.)
Williams argues that the admission of the text of the federal decision allowed the jury to consider the following inadmissible evidence: (1) a prior diagnosis that Williams was cocaine and methamphetamine dependent; (2) prior probation violations that included marijuana use, his failure to participate in drug treatment, and absconding from supervision; (3) his hospitalization in San Francisco, where he refused treatment, when he sent the Portland Community College teacher the threatening e-mails; (4) the federal trial judge’s observation that Williams’s messages constituted a serious threat “in the sense that the defendant is not able to control his conduct while delusional”; (5) defense counsel’s representation to the district court that Williams accepted responsibility, and would “not do this sort of thing again;” and (6) that before his plea, Williams was committed to the federal mental center as a danger to himself or others, and was subjected to involuntary treatment in order to render him competent to stand trial. (See U.S. v. Williams, supra, 356 F.3d at pp. 1048-1050.)
Williams says “[t]here ‘simply could be no satisfactory explanation’ for trial counsel to cause such damaging evidence to be admitted, ” and that there is a reasonable probability the trial would have resulted more favorably to him if it had not been admitted. But the circumstances surrounding trial counsel’s request to admit the entire text of the federal opinion indicate it was a tactical decision that is not subject to second-guessing by this court. (See People v. Blomdahl, supra, 16 Cal.App.4th at p. 1248.)
The prosecutor moved in limine to introduce testimony from the victim and prosecutor in the federal case on the basis that it was admissible to prove Williams’s intent under Evidence Code section 1101, subdivision (b), and also to show that Williams’s communications reasonably aroused fear in Aguirre and Gasner. Following extensive argument, the court disallowed the proposed testimony, because although it was relevant, it would be more time-consuming than probative pursuant to section 352. The court said it was willing to revisit the issue as the case progressed.
To prove the criminal threats charges, the prosecution was required to show “the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety....” (Pen. Code, § 422.) To prove the stalking charge, the prosecution had to show “a credible threat with the intent to place that person in reasonable fear for his or her safety....” (§ 646.9, subd. (a).)
The trial court later determined the text of Williams’s federal decision was admissible to the extent Aguirre and Gasner had read it because it could have bearing on whether they had reason to be in fear. Defense counsel agreed with the court that the entire decision should come in for that purpose, but continued to oppose the prosecutor’s attempt to prove the underlying facts of Williams’s federal crime under Evidence Code section 1101, subdivision (b). The court reserved its ruling until Williams finished his direct testimony.
Aguirre’s direct and cross-examination explored several details in the federal decision. She testified that she read the federal decision and she feared for her safety because it was clear that Williams was threatening her. Gasner testified that reading the federal decision increased his fear of Williams because he knew Williams was “capable and intended to scare [him].” Williams acknowledged during his testimony that the basis of his plea bargain in the federal case was his admission that he had threatened to kill the complaining witness.
The prosecutor renewed his argument that the conduct underlying Williams’s federal crime should be admitted under Evidence Code section 1101, subdivision (b), when the court was discussing jury instructions. The prosecution proposed a modified form of the standard instruction on the proper application of evidence relating to uncharged conduct, CALCRIM No. 375. The proposed instruction allowed the jury to consider the federal crime as relevant to Williams’s intent and knowledge, and the reasonableness of the complaining witness’s fear. But it also referred to the fact that Williams harassed another individual who had sought a restraining order. Defense counsel objected to any consideration of Williams’s federal crime on the issue of intent, and argued it was “only relevant for the purposes of [the complaining witnesses’s] fear, ” and “the entire [opinion in U.S. v. Williams] should come in for that.” Defense counsel also objected to the portion of the instruction that stated Williams harassed another individual who sought a restraining order.
When the court stated it would instruct the jury with CALCRIM No. 375 “as offered” by the prosecution, defense counsel argued it should be modified to delete any reference to Williams harassing another individual who sought a restraining order. Instead, she offered that the federal opinion should be admitted in its entirety. The only reservation the prosecutor had about its admission was that Williams’s mental state as described in the federal opinion could be interpreted to negate the specific intent that would be required to convict him of the current state charges. Defense counsel contended that Aguirre’s testimony and credibility “cannot be assessed properly without the jury looking at that opinion and seeing what it contained and what it did not contain.” She also agreed there was “no evidence to say [Williams] can not form the specific intent because he’s mentally ill.” The court admitted the entire federal opinion into evidence, and granted defense counsel’s request to remove from the prosecution’s proposed form of CALCRIM No. 375 the phrase that allowed the jury to consider uncharged conduct against another person who sought a temporary restraining order.
From this colloquy we conclude that defense counsel made a strategic choice to admit the full text of U.S. v. Williams. One reason for her action could have been an impression that reading the opinion would cause the jury to question whether Aguirre’s fear of Williams was reasonable. It also could have factored into her calculus that her offer to admit the full decision would favorably influence the trial court’s willingness to strike the specific portion of the instruction that referred to Williams’s harassment of another person who sought a restraining order. Since there are tactical reasons that may explain counsel’s offer of the federal decision into evidence, we will not second guess her strategy or conclude that her assistance was ineffective. (See People v. Blomdahl, supra, 16 Cal.App.4th at p. 1248; U.S. v. Williams, supra, 356 F.3d at p. 1050; see also People v. Jenkins (1975) 13 Cal.3d 749, 755 [“ ‘The decisions which counsel must make in the courtroom will necessarily depend in part upon what he then knows about the case, including what his own client has told him. There may be considerations not shown by the record, which could never be communicated to the reviewing court as a basis for its decision. Thus, the appellate court’s inability to understand why counsel did as he did cannot be a basis for inferring that he was wrong’ ”].) Williams has not shown that he received ineffective assistance of counsel in this case.
We need not determine whether the trial court actually granted defense counsel’s request to modify CALCRIM No. 375 to delete any reference that Williams may have harassed another individual who sought a restraining order as a quid pro quo for the admission of the entire federal opinion. But the court’s explanation suggests a linkage between the two rulings: “because I’m going to allow the federal opinion in, I think that 375, the first paragraph, should stop with the case citation. And then you can just argue the rest of it based on the information that’s contained in the case, itself. So the phrase ‘and that defendant may have harassed another individual who sought a restraining order’ is out.”
Because we conclude Williams has not shown defense counsel’s representation fell below an objective standard of reasonableness, we need not address the additional issue of whether he has shown prejudice under the applicable legal standard.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J.Pollak, J.