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,

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 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.
2

INTRODUCTION

Appellant and defendant Relius Thomas appeals from the judgment 

following his conviction for stalking and making criminal threats against his exgirlfriend. 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))1and 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.
3

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 
4

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 
5

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.
6

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. 
7

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 
8

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 
9

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 
10

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 
11

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 
12

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 
13

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, 
14

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.)
15

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 
16

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 
17

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 
18

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 testimony4and 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.