Opinion
C075751
12-07-2017
THE PEOPLE, Plaintiff and Respondent, v. MUHAMMAD TAHSEEN AFZAL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62120516)
A jury convicted defendant Muhammad Tahseen Afzal of one count of making a criminal threat and one count of assault by means of force likely to produce great bodily injury. The jury found true the allegation that defendant personally inflicted great bodily injury under circumstances involving domestic violence.
Defendant now contends his trial counsel rendered ineffective assistance. We will affirm the judgment.
BACKGROUND
W.K. and defendant began dating in mid 2012. W.K. used cocaine and ecstasy with defendant towards the end of 2012. Defendant became possessive and controlling at some point during their relationship. On one occasion, defendant got angry when he read a text message W.K. sent a friend; he grabbed W.K.'s arm, leaving bruises. On more than one occasion, defendant burned W.K. with cigarettes. W.K. continued to date defendant because she believed he was sincere when he apologized to her and that things would get better between them.
Toward the end of 2012, defendant told W.K. bizarre things such as that he thought there were two of her, he was on a reality show and W.K. was filming him, and that she was sending him creams in the mail to make him white. Sometimes defendant would say he was just kidding. Other times he acted like he was serious about his statement. One time defendant got violent and insisted W.K. was trying to poison him.
At defendant's request, W.K. met defendant at a bar on February 2, 2013. They had broken up, but W.K. agreed to meet defendant because he told her he wanted to talk. W.K. had one drink at the bar.
All subsequent dates refer to 2013 unless otherwise specified.
Defendant was very angry with W.K. He told her he had a knife. Nevertheless, W.K. agreed to go to her home with defendant. During the drive home, defendant said he wanted to cut W.K. up into little pieces and leave her in a field. Defendant's statement frightened W.K. Although defendant had threatened W.K. before, he had not made such graphic statements in the past. W.K. initially told defendant to leave, but she allowed him to enter her home after he apologized, said he would not hurt her, and gave her his knife, which she hid. The couple had sex.
At some point defendant got angry again. W.K. repeatedly told defendant to leave but he refused. He said he was sorry and things calmed down. But he made comments indicating he believed there were two W.K.s, he was being filmed for a reality show, and W.K. was making money off the show. W.K. could not reason with defendant.
Defendant got on top of W.K. and choked her with his hands. She blacked out. In the morning, defendant got up, kissed W.K. goodbye, and left like nothing had happened.
The incident was traumatic for W.K. and she could not remember a lot of what happened. She admitted she was still using drugs in February but said she was not drunk and did not pass out due to alcohol or drugs on the night of the choking incident. She did not call the police or seek medical attention. W.K. had sex with defendant two times at her home after the night of the choking incident.
Defendant sent W.K. the following text message on February 14: " 'Come to think of it [sic] you are not even real [W.K.] other [W.K.] is lil thick and tall and you are not i should have noticed long time ago I should have . . . [¶] . . . [¶] fuckin kill you a long time ago.' " When W.K. asked if defendant was serious defendant responded, " 'Serious messing time over long time ago now.' " Defendant told W.K. in a text message, " 'I don't give fuck its already bad I might as well kill ya and take it what it coming for me cuz I don't give fuck anymore ya screw me pretty well hurting is not even part of it.' " When W.K. said she would go to the police if defendant did not stop threatening to kill her, defendant texted, " 'Go for it I still take you out before if I feel like since ya destroy me anyway.' "
W.K. saw defendant two more times at her home after getting the last text message. But she applied for a restraining order against defendant on March 5. She described the choking incident and defendant's recent threats against her in her application. She stopped seeing defendant after she applied for the restraining order.
Defendant called W.K. more than once after she got the restraining order against him. She told him she obtained a restraining order and he could not call her again.
On March 6, defendant posted a message on W.K.'s Facebook page stating, " 'i get your fuckin game, someone have to mix something in my drink to make my blood pressure high as kite so i lose my weight therefore, i come to you where you save me so to speak. its fuckin sick game and i am tired of it getting sick. . .you keep on while I leave and sell my car and head back to my country!fuckin POS jewish shit.' "
On March 17, defendant sent the following text message to W.K.: " 'Your shit has gotten old. .if I do something wrong some time Muslim save me and other time Christian and then you come the Jew now I know even in my own home I have cancer as well which your people gave me you people have to take every single part of my body and brain which is not even humane the day I see you next time I AMA cut you in small pieces you fuckin pos Jew I should have done it long time ago.' " Defendant further texted, " 'guess I AMA man up now. [¶] You people really think you can change people out there like this you motherfucker must be dumb as it comes then. [¶] And you think it end in marrying you . .I will cut hooker cunt like in a second [sic] now . .done with all the Muslim bullshit you people started. [¶] If you people given me chance it would have [sic] been different but you people . . . [¶] . . . [¶] . . . think you are brilliant but now I swear to fuckin god I will cut your Jew throat.' " W.K. responded, " 'I called the cops . .do not come near me.' " And defendant answered, " 'Fuck the cop too and you too.' " He said, " 'Fuck u and that lil bastard too' " when W.K. told him to not go near her or her family. W.K. had a young son.
After he sent those text messages, defendant left W.K. a voicemail message that he was going to her home. W.K. was afraid and contacted the police. She was concerned defendant was mentally ill and her concern contributed to her fear. She had her son go home with a friend and she went to another friend's house, taking measures to park her car away from the friend's house.
On March 17, defendant sent W.K. another text message. He said, " 'Listen I am sorry, I might have close to losing it . .I didn't meant any of it . .but if ya ever listen to me or trusted me it wouldn't come to that. [¶] But the next time cop won't even stop me either . .enough is enough. .you fuckin kill me and my family while your is fine I can't have that.' "
Police arrested defendant on March 18. Defendant admitted sending threatening text messages to W.K. He told an officer that W.K. gave him diabetes and cancer and that she deserved to die. When the officer asked whether defendant intended to carry out his threats, defendant responded, " 'Maybe I just want to kill somebody.' "
In the discussion portion of this opinion, we will provide details about defense theories at trial and information elicited during cross-examination of W.K.
A jury convicted defendant of making a criminal threat (count one -- Pen. Code, § 422) based on defendant's March 17 statements to W.K., and it convicted him of assault by means of force likely to produce great bodily injury (count two -- § 245, subd. (a)(4)) based on the February 2 choking incident. The jury found true an allegation that defendant personally inflicted great bodily injury under circumstances involving domestic violence. (§ 12022.7, subd. (e).) The trial court sentenced defendant to eight years eight months in prison.
Undesignated statutory references are to the Penal Code.
STANDARD OF REVIEW
To establish ineffective assistance of counsel, defendant must prove (1) trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury); Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland.) We review trial counsel's performance with deferential scrutiny, indulging a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and recognizing the many choices that attorneys make in handling cases and the danger of second-guessing an attorney's decisions. (Maury, supra, at p. 389; Strickland, supra, at p. 689.) We accord " 'great deference to counsel's tactical decisions.' " (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel).) Counsel is not ineffective for failing to make a meritless objection or motion. (People v. Weaver (2001) 26 Cal.4th 876, 931.)
"It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
Defendant must affirmatively prove prejudice. (Mickel, supra, 2 Cal.5th at p. 198.) "[T]he record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (Maury, supra, 30 Cal.4th at p. 389.) It is not enough for defendant to show that errors had some conceivable effect on the outcome of the case. (People v. Ledesma (1987) 43 Cal.3d 171, 217.) Defendant must show a reasonable probability of a more favorable result. (Id. at pp. 217-218; Strickland, supra, 466 U.S. at pp. 693-694.)
DISCUSSION
I
Defendant argues his trial counsel was ineffective in not providing a court-appointed psychiatrist with copies of police reports and defendant's statements to W.K. to use in an evaluation of defendant's competency to stand trial. Defendant claims the psychiatrist could not fully evaluate defendant's competency due to trial counsel's omission.
A
We begin with additional background information. On April 12, the date for the preliminary hearing, assistant public defender Woodburn declared a doubt as to defendant's competency to stand trial. The record does not indicate the reason or reasons for Woodburn's doubt. The trial court suspended the criminal proceedings and referred defendant for an evaluation under section 1368.
Court-appointed psychiatrist Dr. Jason Roof interviewed defendant with the assistance of a translator. Defendant provided Dr. Roof with his social, educational, psychiatric, employment, substance use, medical, and legal history. Defendant's responses to Dr. Roof's questions were brief but "on topic." Defendant did not endorse any delusional material and he reported no difficulty working with his trial counsel.
Defendant scored 22 out of 25 on the Folstein Mini-Mental State Examination, which indicates absence of cognitive disorder. He received a score of 76 on the Georgia Court Competency Test. The test was designed to assess a person's ability to (1) comprehend the courtroom layout, (2) comprehend the functions of the court, (3) assist his or her attorney, and (4) comprehend the charges against him or her. A score of 70 or above indicated competency to stand trial. Dr. Roof concluded, with reasonable medical certainty, that at the time of his exam defendant was able to understand the nature of the criminal proceedings he faced and assist counsel in the conduct of a defense in a rational manner.
The trial court conducted a hearing on the issue of defendant's competency on May 22. Assistant public defender Chris Fishburn represented defendant at the hearing and for the remainder of the case. Fishburn agreed with Dr. Roof's opinion. The trial court concluded, based on Dr. Roof's report, that defendant was competent to stand trial.
At the conclusion of the competency hearing, defense counsel asked the trial court to reduce bail or to release defendant on supervised OR with conditions. In advocating for defendant's release, defense counsel echoed the statements in Dr. Roof's report that defendant reported no suicidal or homicidal ideations and did not pose an acute risk to himself or others. The trial court lowered defendant's bail and defendant was out of custody at the time of his trial.
B
The federal and California Constitutions and section 1367 prohibit the state from trying a criminal defendant while he or she is mentally incompetent. (§ 1367, subd. (a); Mickel, supra, 2 Cal.5th at pp. 194-195.) A defendant is mentally incompetent to stand trial if, as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (§ 1367, subd. (a).) The relevant issue is whether the defendant "lacks ' "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [or] a rational as well as factual understanding of the proceedings against him [or her]." ' " (Mickel, supra, at p. 195.)
Ineffective assistance of counsel claims are rarely successful on direct appeal because the appellate record will often not show why defense counsel acted or failed to act. (Mickel, supra, 2 Cal.5th at pp. 198-199.) The record here is silent about why defendant's trial counsel did not provide Dr. Roof a copy of any police report or information concerning defendant's statements to W.K. Counsel was never asked to explain his omission or decision.
Defendant fails to establish that his trial counsel's representation was deficient because the appellate record does not show there could be no rational purpose for counsel's omission. (Mickel, supra, 2 Cal.5th at pp. 198-200.) Defense counsel appears to have agreed with Dr. Roof's determination. Moreover, it is possible defense counsel used that finding to bolster a motion to reduce bail (a motion defendant had previously made unsuccessfully) so that defendant could be released from custody pending trial.
Defense counsel could have concluded from his observations of defendant's demeanor and conduct that, regardless of his past behavior, defendant was not then incompetent to stand trial. The issue under section 1367 is the defendant's present ability to understand the proceedings and consult with trial counsel in a rational manner. (§§ 1368, subd. (c), 1369, subd. (c); Mickel, supra, 2 Cal.5th at p. 195.) Evidence of defendant's prior bizarre conduct did not establish incompetency at the time of trial. (People v. Ramos (2004) 34 Cal.4th 494, 507-509; People v. Stewart (2004) 33 Cal.4th 425, 516-517.) Defendant responded appropriately to Dr. Roof's questions, "passed" the Georgia Court Competency Test, and expressed a desire to help his attorney. Moreover, after the trial court lowered his bail, defendant indicated he understood the trial court's admonishment that a restraining order was still in place and defendant could not contact W.K.
Defendant does not demonstrate that the trial court would have found him mentally incompetent if his trial counsel had provided copies of any police report and other information about defendant's conduct towards W.K. to Dr. Roof. Although Dr. Roof said he would review police records, rap sheets, or psychiatric records if made available to him and if the trial court wished, he did not say, as defendant claims in his appellate briefs, that he might be able to better assess defendant's competency if he was provided with reports and further information.
The case upon which defendant relies—People v. Solorzano (2005) 126 Cal.App.4th 1063—is inapposite. Unlike in Solorzano, defendant did not alert the trial court that he wanted substitute counsel and the trial court did not refuse to hear a motion under People v. Marsden (1970) 2 Cal.3d 118 to substitute defendant's trial counsel. (Solorzano, supra, at pp. 1066-1067.)
II
Defendant also argues his trial counsel provided ineffective assistance by failing to adequately voir dire prospective jurors about potential bias against Pakistani Muslims and about a crime by a Muslim against a Jewish person.
On this record and considering the entire voir dire of all prospective jurors, we conclude defendant fails to prove his trial counsel rendered constitutionally deficient representation. (People v. Cunningham (2001) 25 Cal.4th 926, 1004 (Cunningham) [asking general questions regarding possible bias rather than asking specific questions about bias against African-Americans or interracial dating was not ineffective assistance]; see People v. Holt (1997) 15 Cal.4th 619, 661 [the manner in which voir dire is conducted is not a basis for reversal unless the voir dire is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair].) Defendant's trial counsel questioned prospective jurors about racial and religious bias as follows:
"MR. FISHBURN: . . . [¶] I think some religious issues are going to come up, and it's going to come out that my client is Muslim. Obviously, he is a second-language speaker. His -- it's going to come out that he's from another country. [¶] The lady of justice is blind. She can't see what color his skin is. He's just a human being. [¶] Does anyone have any religious issues or other issues that would cause you to be prejudiced against my client?
"(No audible response.)
"MR. FISHBURN: Let me give you an easy example. Even though my client is not African-American, I think it would be important for me to note if someone was a member of the KKK. Simple stuff. [¶] Anyone part of an organization like that?
"(No audible response.)
"MR. FISHBURN: Anyone feel like they might have a tendency to favor the Government against him because of the color of his skin or his religion?
"(No audible response.)
"MR. FISHBURN: Is anyone here a Jewish person?
"(No audible response.)
"MR. FISHBURN: Can everybody assure me that you can separate religion, skin color, ethnicity, language from judging the facts of the case and the law?
"(No audible response.)" While defendant's trial counsel did not question potential jurors about their feelings towards Pakistanis, no evidence presented to the jury indicated defendant was Pakistani.
In addition, the trial judge specifically addressed racial and national origin bias during voir dire. He said to the venire, "In a perfect world, I wouldn't have to ask you if you might harbor some possible bias against a person because of his or her race or nationality or sexual orientation or social economic status or any of those sort of things, but it's important to all of the parties in this case that nationality, race, sexual orientation, anything, nothing, socioeconomic status, any of those things not play any part in your decision in this case. And if that is an issue, if that is something that is going to be difficult for you to follow, let me know when I get to you, and we'll have that discussion. . . . [¶] In this matter, as you know, as I've identified, the interpreters are here. I provide an interpreter for the Defendant in this case through the Court. An interpreter will be used to assist throughout the trial. If this in any way offends or bothers you in the least bit, I need to know that, ladies and gentlemen. . . . " The trial judge told prospective jurors each side was entitled to an unbiased and unprejudiced jury, and they must disclose whether they might be biased or prejudiced in any way when they are asked to do so.
Defense counsel questioned one prospective juror extensively about the juror's feelings toward non-English speaking people. While defense counsel ultimately excused that juror (Juror No. 1), he questioned that prospective juror thoroughly in the presence of the venire.
Defense counsel asked prospective jurors whether the case was "too close to home" or too close to a personal experience that they would not be a fair juror in the case. He asked whether there was a question the potential jurors thought they should have been asked that they had not been asked.
During the questioning of new prospective jurors following the exercise of challenges for cause and peremptory challenges, the trial court asked new potential jurors whether any of the questions the judge and counsel asked the first group of 18 prospective jurors raised any doubts about their ability to be fair and impartial in the case. Defense counsel further asked the new group of prospective jurors whether they could assure him they could see defendant "as a human being and set aside the color of his skin and the language he speaks and judge the case based on the facts and the law." He asked if anyone had a problem with the fact that defendant was using an interpreter. Following the final round of challenges and before the jury was sworn in, the trial judge again asked the jury if there was anything any of them needed to bring to the court's attention.
Where, as here, there is no explanation in the record for why defense counsel did not ask other specific questions regarding possible bias or prejudice, on direct appeal we reject the claim of ineffective assistance of counsel unless there simply could be no satisfactory explanation for counsel's omission or decision. (Mai, supra, 57 Cal.4th at p. 1009.) Defendant has not demonstrated that there could be no satisfactory explanation for counsel's conduct. His trial counsel could have reasonably concluded that the trial court and counsel's questions adequately explored the issue of potential bias.
Defendant also fails to demonstrate prejudice. He does not point to any part of the record indicating that any juror harbored a racial, national origin, or religious bias against defendant. "[M]ere speculation that additional questioning might have disclosed a ground for challenge is insufficient to warrant relief." (People v. Kipp (1998) 18 Cal.4th 349, 368.) And nothing in the record suggests it is reasonably probable that additional or different questions would have been more effective in uncovering bias or that a different jury would have returned a more favorable verdict. (People v. Staten (2000) 24 Cal.4th 434, 451-452; People v. Freeman (1994) 8 Cal.4th 450, 487 (Freeman).) The trial court instructed the jury not to let bias or prejudice influence its decision. (RT 35, 42, 229, 243) Absent evidence to the contrary, and defendant does not identify any, we presume the jury followed the trial court's instructions. (People v. Houston (2012) 54 Cal.4th 1186, 1211 (Houston).)
Defendant claims his trial counsel should have been aware of the demographic makeup of Placer County and determined whether there was systematic exclusion of Asians from the jury venire and, if warranted, moved for a more representative jury panel.
The federal and California Constitutions guarantee a defendant the right to trial before a jury drawn from a representative cross-section of the community. (People v. Mattson (1990) 50 Cal.3d 826, 842, superseded by statute on another ground, as stated in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.) "That guaranty mandates that 'the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.' [Citation.] The petit jury that actually tries the case need not itself mirror the community, however, and states are free to permit reasonable exemptions and to prescribe qualifications relevant to the ability to serve as a juror. [Citation.] [¶] When a fair cross-section challenge to the jury selection procedure is made, the defendant bears the initial burden of demonstrating a prima facie violation of the fair cross-section requirement. To do so he must show: '(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.' " (Mattson, supra, at p. 842.)
Defendant fails to established his ineffective assistance of counsel claim because on direct appeal, deficient performance must be shown based on the four corners of the record (Cunningham, supra, 25 Cal.4th at p. 1003) and the record does not contain evidence that defendant's trial counsel was not aware of the demographic makeup of Placer County or that trial counsel should have determined the jury-selection process systematically excluded Asians so as to merit a motion by defendant's trial counsel. (People v. Moore (1988) 47 Cal.3d 63, 86.) In fact, defendant says his jury was representative of the demographic makeup of Placer County.
III
Defendant next contends his trial counsel provided ineffective assistance by (1) choosing to present a defense theory other than one based on defendant's mental illness; (2) not moving to exclude and not objecting to evidence that W.K. suffered domestic abuse by persons other than defendant; (3) choosing a defense theory which allowed W.K. to testify about post traumatic stress disorder (PTSD) and to explain why she could not recall some details of what happened with defendant; and (4) suggesting that defendant's conduct toward W.K. was part of " 'rough sex.' "
A. Choice of defense theory
" 'When a defendant chooses to be represented by professional counsel, that counsel is "captain of the ship" ' " and can choose which defense to present as a tactical decision. (People v. Welch (1999) 20 Cal.4th 701, 728-729.) An attorney is not incompetent in choosing one defense theory over another. (Cunningham, supra, 25 Cal.4th at p. 1007.) That a defense theory was unsuccessful does not demonstrate incompetence. (People v. Cox (1991) 53 Cal.3d 618, 662, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The People's case turned on whether the jury believed W.K. The strategy defendant's trial counsel chose included attacking W.K.'s credibility. The defense theory was that defendant did not intend his statements to be understood as threats and W.K. was not in sustained fear for her safety as a result of defendant's March 17 text messages because defendant, a non-native English speaker, did not express himself well in English and W.K. did not take defendant's prior threats seriously. Defendant's trial counsel also argued defendant did not choke W.K., suggesting instead that W.K. fainted or lost consciousness because of alcohol or drug use. The record is silent about why defendant's trial counsel elected to pursue those defense theories rather than one based on mental illness. But defendant acknowledges the defense presented at trial was a result of counsel's strategic decision and there is evidence supporting that decision. To the extent defendant argues his trial counsel should have consulted an expert so that he could present a defense based on mental illness, his ineffective assistance claim fails because defendant does not demonstrate that an expert could have provided favorable testimony. (People v. Wash (1993) 6 Cal.4th 215, 269.) Defendant cannot establish a claim of ineffective assistance based on unsubstantiated speculation. (People v. Bolin (1998) 18 Cal.4th 297, 334.)
Defendant claims in his appellate reply brief that his trial counsel decided not to investigate presenting a mental health expert to explain defendant's conduct and decided not to attempt resolution through the mental health court. The claim is made without citation to the record and is forfeited. (People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14.) In any event, we looked but found no support in the record for defendant's assertions. --------
Because there was evidence supporting defendant's theory at trial and no evidence supports a defense based on a mental illness diagnosis, defendant fails to demonstrate his trial counsel's representation was deficient. (People v. Jackson (1980) 28 Cal.3d 264, 290, disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Moreover, defendant fails to demonstrate a reasonable probability that, but for his trial counsel's decision not to pursue a defense based on mental illness, defendant would have obtained a more favorable result because, as we have stated, no evidence in the record shows defendant was diagnosed with a mental illness or disorder.
(B) Not bringing an in limine motion and not objecting to evidence
Defendant says his trial counsel should have moved in limine to exclude evidence that W.K. was subjected to domestic violence by other men. Defendant also complains that his trial counsel did not object to W.K.'s direct examination testimony about her domestic violence history.
The trial court granted the People's in limine motion to admit defendant's prior acts of domestic violence against W.K. But there was no motion to exclude evidence of domestic violence against W.K. by other individuals.
W.K. testified on direct examination that there was domestic violence in her home when she was 15 and during her marriage when she was in her 20s. When the prosecutor asked W.K. why she would continue a relationship with defendant after he threatened to kill her, W.K. answered her conduct was a pattern from her childhood. She said she wanted to believe defendant when he apologized to her and promised to not hurt her again. Defendant's trial counsel did not object to the direct examination testimony.
The record does not disclose why defense counsel did not move to exclude evidence that W.K. suffered domestic abuse in prior relationships or why defense counsel did not object to admission of W.K.'s testimony about prior domestic abuse. Deciding whether to object to evidence is inherently tactical. (People v. Hillhouse (2002) 27 Cal.4th 469, 502) " '[A]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.' " (People v. Avena (1996) 13 Cal.4th 394, 421.)
Defendant's trial counsel could have concluded evidence concerning W.K.'s domestic abuse history was admissible. The count one charge of criminal threats required the People to prove that defendant's March 17 statements to W.K. actually caused W.K. to be in sustained fear for her own safety and W.K.'s fear was reasonable under the circumstances. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 228.) Defense counsel attempted to create reasonable doubt about those elements of the count one charge.
Defendant contends that W.K.'s references to a " 'cycle of violence' " and " 'PTSD' " are objectionable under Evidence Code section 352. Evidence Code section 352 gives the trial court discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. " 'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. . . . "The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." ' " (People v. Lopez (2013) 56 Cal.4th 1028, 1059, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Defendant fails to show how W.K.'s prior domestic abuse at the hands of third parties " ' " 'is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction.' " ' " (People v. Mendoza (2011) 52 Cal.4th 1056, 1091-1092.)
With regard to defendant's assertion that W.K.'s testimony about prior domestic abuse by third parties is objectionable because the prosecutor did not call an expert to lay the foundation for a PTSD diagnosis, the trial court sustained defense counsel's objection to that testimony. Defendant states general propositions about highly prejudicial and inadmissible evidence and cites numerous authorities following those general propositions in his appellate opening brief, but he makes no attempt to apply the authorities cited to the facts of this case. His undeveloped claims are forfeited. (Freeman, supra, 8 Cal.4th at p. 482, fn. 2; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136.) Trial counsel is not required to make meritless arguments (People v. Stratton (1988) 205 Cal.App.3d 87, 97 (Stratton)) and defendant has not shown that an limine motion or evidentiary objection in this case would have been meritorious.
Defendant also fails to demonstrate prejudice. He does not establish that the trial court would have likely excluded evidence of W.K.'s domestic abuse history had defendant's trial counsel moved for exclusion or objected to W.K.'s testimony. (See People v. Gonzalez (1998) 64 Cal.App.4th 432, 437-438; contra, Stratton, supra, 205 Cal.App.3d at pp. 93-94.)
(C) Eliciting damaging testimony
Defendant further complains that the defense theory his trial counsel presented allowed W.K. to testify about PTSD as a result of the choking incident and that she could not recall some specifics, testimony that was damaging to his case. Defendant says his trial counsel's attempts to impugn W.K.'s credibility and argument that she did not fear defendant merely served to bolster the People's position that defendant was a violent controlling person who preyed on W.K. because she was vulnerable.
To discredit W.K.'s testimony, defense counsel asked W.K. why she would allow defendant to go to her home and have sex with her the week after the choking incident if she was scared of defendant. W.K. replied that she did so because of her past domestic violence experience. She said she hoped defendant would keep his promise not to hurt her again and it was not "uncommon for people that repeat the cycle of domestic violence to hold on to that hope." Defendant's trial counsel objected to W.K.'s answer as lacking foundation and as improper opinion. The trial court overruled his objection. Later, when W.K. could not recall whether defendant made strange statements to her via text on New Year's Eve 2012, defendant's trial counsel asked if W.K. could not remember because defendant frequently said strange things during their relationship. W.K. said she could not remember because she was diagnosed with PTSD from the incident. The trial court sustained defense counsel's objection to W.K.'s answer.
That a tactical choice by trial counsel elicited damaging testimony from a witness does not necessarily establish ineffective assistance. (People v. Robertson (1982) 33 Cal.3d 21, 43, fn. 11.) To what extent and how to cross-examine witnesses is typically within the wide range of tactical decisions competent counsel must be allowed to make. (People v. Cleveland (2004) 32 Cal.4th 704, 746-747.) "Cross-examination is always a risky process—even experienced counsel conducting a brilliant cross-examination might inadvertently elicit damaging disclosures, a risk inherent in the tactical decision to conduct cross-examination." (People v. Ervin (2000) 22 Cal.4th 48, 94.) "Even where defense counsel may have ' "elicit[ed] evidence more damaging to [defendant] than the prosecutor was able to accomplish on direct" ' [citation], we have been 'reluctant to second-guess counsel' [citation] where a tactical choice of questions led to the damaging testimony." (People v. Williams (1997) 16 Cal.4th 153, 217 (Williams).)
The cross-examination questions which elicited the testimony defendant complains of on appeal are consistent with the defense theory presented at trial. Defendant's ineffective assistance claim based on W.K.'s cross-examination responses fails because there were plausible tactical reasons for trial counsel's actions. (Williams, supra, 16 Cal.4th at pp. 217-218.)
(D) Rough sex
Defendant argues his trial counsel provided ineffective assistance by suggesting defendant's conduct toward W.K. was part of " 'rough sex.' " But when defendant's trial counsel asked W.K. if she and defendant had rough sex, the prosecutor objected before W.K. could respond. Following an off the record discussion between the trial judge and counsel, defense counsel moved to a different subject. The jury did not hear anything further on that topic. Defendant does not point to any closing argument remarks relating to rough sex.
The trial court instructed the jury that nothing the attorneys said was evidence. The jury was specifically told the questions by the attorneys were not evidence. And the jury should not assume something was true just because an attorney asked a question. The trial court said an attorney's question was significant only if it helped the jury understand the witness's answer. We assume the jury followed the trial court's instruction and did not consider trial counsel's unanswered question concerning rough sex between defendant and W.K. (Houston, supra, 54 Cal.4th at p. 1211.) On this record, defendant's ineffective assistance claim lacks merit.
DISPOSITION
The judgment is affirmed.
MAURO, J. We concur: HULL, Acting P. J. RENNER, J.