People v. Williams CA4/1

Opinion

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

4 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.

5 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.)

6 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.)

7 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

8 the way" by putting his hand on Ruiz's shoulder, and then ran away with the stolen

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

9 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

10 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.

12 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."

15 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.

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.)

18 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

19 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.