Filed 5/7/14 P. v. Killebrew CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. LLOYD GLENN KILLEBREW, Defendant and Appellant. F066871 (Super. Ct. No. BF145238A)


### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Kern Coun ty. John W. Lua, Judge. John Hardesty, under ap pointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Atto rneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P.J., Go mes, J., and Poochigian, J.2 INTRODUCTION

On December 11, 2012, an information was filed agai nst appellant, Lloyd Glenn Killebrew, charging him with felony burglary of an inhab ited dwelling house (Pen. Code, § 460, subd. (a), count 1), 1 corporal injury of the mother of his child, Patricia Pollard (§ 273.5, subd. (a), count 2), us ing force or violence to inflic t great bodily injury (§ 243, subd. (d), count 3), felo ny threat of death or great bod ily harm (§ 422, count 4), felony attempt to deter an executive officer from the performance of his or her duty (§ 69, count 5), and dissuading a witness by force or thr eat (§ 136.1, subd. (c)(1), count 6). The information further alleged one prior serious felony convicti on within the meaning of the three strikes law (§§ 667, subds. (c)-(j ) & 1170.12, subds. (a)-(e)), a five-year enhancement for a prior serious felony convic tion (§ 667, subd. (a)), six prior prison term enhancements (§ 667.5, subd. (b)), and a great bodily injury enhancement (§ 1022.7, subd. (a)). At his arraignmen t on December 17, 2012, appella nt denied the allegations. The jury trial commenced on February 5, 2013. On Fe bruary 8, 2013, the jury found appellant not guilty of count 1, burgl ary, and count 5, de terring an executive officer. The jury convicted appellant of th e remaining allegations and found true the great bodily injury allegation. In a bifurc ated bench trial, the court found true the remaining special allega tions and enhancements. On March 12, 2013, the trial court senten ced appellant to the upper term of four years on count 2, doubled pursuant to the thr ee strikes law to eight years. The court imposed consecutive terms of five years for th e great bodily injury enhancement and the prior serious felony conviction enhancement. The court imposed a consecutive term of two years on count six. The court imposed fi ve consecutive terms of one year for five prior prison term enhancements. The court st ayed appellant’s sentence on the remaining

1 Unless otherwise indicated, all statut ory references are to the Penal Code.3 counts pursuant to section 65 4. Appellant’s total prison term was set at 25 years. Appellant was granted custody credits of 115 days for actual time in custody, 17 days for conduct credits, and total custody credits of 132 days. Appellant contends the trial court erre d in permitting testimony from the victim concerning past incidents of domestic vi olence. We find no error and affirm the judgment.
FACTS Trial Testimony and R ecorded Conversations On the evening of November 18, 2012, a ppellant knocked on th e door of Patricia Pollard’s sister’s apartment. Pollard was inside with her adult daughter, Kamesha Killebrew, and other family members. Kame sha let appellant inside. While asking Kamesha where he could find Pollard, appellant looked through rooms searching for her.
Pollard was in the bathroom.
Pollard testified she did not see Kame sha open the door, but heard appellant’s voice in the apartment. Polla rd said she heard a knock on the bathroom door some seconds after she heard appellant’s voice. Appellant opened th e door, entered the bathroom, and closed the door behind him. Pollard stated that she did not recall arguing with appellant and he did not hit her. Pollard denied te lling a police officer about the argument and the hitting. Pollard admitted sh e suffered an injury that evening that resulted in her knocking out a front tooth and requiring treat ment, including dental work and stitches to her lip. Pollard explained th at she injured herself “from going down and bumping the counter.” The evening of the incident, Pollard told the responding police officer that she was hiding from appellant in the restroom and appellant hit her in the
mouth.
Kamesha testified she saw blood on her mo ther’s face 15 or 20 minutes after appellant entered the bathroom. Sometime th at evening, Kamesha called 911. Kamesha4 could not remember if she retrieved a knife, c onfronted appellant, or told him to leave.
Kamesha could not remember other details of what happened that evening.
Bakersfield Police Officer David Hamma re sponded to the domestic disturbance call and met Kamesha in an alley just north of the apartment. Kamesha’s conversation with Hamma was recorded and pl ayed for the jury as a prio r inconsistent statement. During that conversation, Kamesha explaine d to Hamma that she heard her father banging on the bathroom door and then heard arguing coming from inside the bathroom. Kamesha opened the door and saw her moth er’s mouth bleeding and missing a front tooth. Appellant stood there looking. Kamesh a went to the kitchen, grabbed a knife, and stood between them. Kamesha told appellant to leave and said she was about to call the police. When appellant did not move, Kamesha exit ed the apartment and called the police. As Kamesha was talking to Officer Hamma out side the apartment, she told him that appellant had threatened to kill her. Kame sha explained she was going back to the apartment to get her children and her niece. Kamesha said appellant was angry because she had called the police. Appellant told Ka mesha he was going to kill her and that she
was dead. Officer Hamma then responde d to the apartment. While Hamma talked to Pollard,
she removed a tooth from her mouth. Pollard did not appear to Hamma to be under the influence of alcohol. Officer Hamma phot ographed Pollard and the scene. One photograph depicted blood on a bathmat. There were photographs of Pollard’s tooth
inside and outside of its sock et. Hamma arrested appellant and transported him to jail. The jury was also shown photogra phs taken of appellant’s knuckles. A recording of telephone conversations between appellant and Pollard while appellant was incarcerated in jail were played for the jury and were admitted as prior
inconsistent statements to Pollard’s trial te stimony. Appellant aske d Pollard why she set5 him up with a million dollar bail. When appe llant asked Pollard why she told authorities that he hit her, she replied, “Well didn’t you?” After appe llant repeated the question, Pollard told appellant that she told i nvestigators he hit her because he did. Appellant described the case against hi m as “bullshit” and “motherf**king bullshit.” Pollard told appella nt that she lost her tooth a nd needed stitches in her lip. Appellant told Pollard that he was “going to pay for all this shit,” but could pay for nothing in jail. Appellant complained to Polla rd that he had many charge s. Pollard replied that she heard what appellant said and he was ta lking like she had someth ing to do with the charges against him. Appellant responded, “You do!” Pollard replied with, “No,” to appellant’s response. Later, a ppellant asked Pollard why she told the police that he hit her, again Pollard replied that it was because he did. Appellant asked Pollard, “why in the f**k” was he in jail. Pollard replied because she lost a tooth and required s titches. Appellant asked Pollard how could he “pay for it” while he was in jail. Pollard responded th at it should never have happened. Appellant complained that he faced a sentence of 40 or 50 years and commented that Pollard was
cool with that. Pollard said she was cool with it in the beginning and that was “why [appellant] got away with so much.” Pollard elaborated that appellant could not be “tripping” like he was around Pollar d’s children and around her sister. Appellant again said he did not unders tand why Pollard did what she did and accused Pollard of wanting him to suffer. Po llard said she did not want appellant to suffer. Appellant replied that was what she was doing and Pollard “gave these
motherf**kers ammunition to f* *k me.” Pollard pointed out that appellant did this to
himself. Pollard then said th at she did not want to see appellant locked up and asked appellant what could be done about it now. Appellant responded that Pollard should “[g]o deal with it.”6 Pollard told appellant that she was just s itting in the restroom, using the toilet, and
did not have time to buckle he r clothes before appellant opened the door and started hitting her. Appellant admitted he “was wrong,” he was “hell wrong man.” Appellant then started complaining ag ain about Kamesha and the allegations against him. He was particularly upset at th e allegation that he intimidated a witness and said, “[t]hey got your motherf**king daughter w ith their bullshit.” Pollard told appellant
that Kamesha was afraid of him and was scar ed to come home. Pollard asked appellant
about his threat to kill Kamesh a. Appellant denied making th at statement. Pollard told appellant he did threaten Kamesha. Appellant replied, “She’s got to be f**ked up.” Appellant told Pollard that she had to get him out of this situation. Evidence of Prior Domestic Violence Appellant made an in limine motion to pr eclude evidence of his prior instances of
domestic violence under Evidence Code secti on 1109. Appellant challenged the prior acts on the grounds that they were uncorr oborated, remote in time, and unduly prejudicial. At the in limin e hearing, defense counsel furt her argued that the prosecution had not complied with the 30-day notice requi rement of Evidence Code section 1109 in order to produce past incide nces of domestic violence. The trial court asked the prosecutor if he would be introducing the prior domestic violence episodes as evidence of Pollard’s state of mind a nd not pursuant to Evidence Code section 1109. The prosecutor replie d affirmatively and al so noted they were relevant to the burglary allegation concerning appellant’s intent when he entered the
residence. The court found the incidences of prior domestic violence were not being admitted pursuant to Evidence Code section 1109, but as circumstantial evidence of appellant’s state of mind on the burglary alle gation and for the victim’s state of mind, her credibility, and the jury’s unde rstanding of the vic tim’s position as she testified. The court ordered that the prosecution could not argue any prior domestic violence incidences7 to show the appellant’s propens ity to so act pursuant to Ev idence Code section 1109, but only to show state of mind. The jury heard a recordin g of Officer Hamma’s questi oning of Pollard on the evening of the incident. Polla rd told Hamma that there was a prior incident of domestic violence by appellant on her that was reported. Pollard said it was “years ago.”
ADMISSION OF PRIOR DOMESTIC VIOLENCE Appellant contends that the trial court e rred in admitting the ta pe in which Pollard mentioned a prior act of domestic violence. Appellant argues that the trial court failed to consider the prejudice of the statement under Evidence Code section 352 and to consider it as inadmissible hearsay pursua nt to Evidence Code secti ons 1250 and 1252. Appellant further argues that admission of this stat ement violated his Fourteenth Amendment due process rights and his trial counsel was ine ffective for failing to request a limiting instruction as to how the jury could consider the evidence. We reject these contentions and affirm the judgment. Respondent does not argue that Pollard’s challenged statemen t was admissible to show her state of mind during the attack or a ppellant’s intent upon entering the residence with regard to the burglary count. Rather, the People co ncede that defense counsel did not request a specific limiting instruction c oncerning the statement and the issue is waived for appellate review. 2 Because appellant has also ra ised the issue of ineffective assistance of trial counsel for failing to seek a limiting instruction to the jury, we do not reject this issue on a theory of forfeiture or waiver. We agree with the People, however, that the statement was admissible to explain Pollard’s conduct on the night of the incident in light of her inconsistent testimony at

2 The trial court did instruct the jury with CALCRIM No. 303, which states in relevant part: “[C]ertain evidence was adm itted for a limited purpose. You may consider that evidence only for that purpose and for no other.”8 trial. We further agree with the People’s ar gument that any error in the admission of this testimony or in the failure to give a limi ting instruction to the jury was harmless.
Evidence that a witness is afraid to testify or fears retaliation for doing so is relevant to the credibility of th at witness and is admissible. An explanation of the basis
for the witness’s fear is also relevant on the question of hi s or her credibility and is well
in the discretion of the trial court to admit. There is no requirement to show threats against the witness were personally made by the defendant or the witness’s fear of retaliation is directly linke d to the defendant. ( People v

. McKinnon (2011) 52 Cal.4th 610, 668.) We agree with the People that Pollard’s recorded statement to Officer Hamma on the evening of the incident was admissible to show her fear of appellant, as well as her inconsistent trial testimony in which she denied being hit by appellant and claimed not to remember what happened that evening. If the trial cour t did not make its ruling based on this theory, it does not matte r for purposes of appellate review. Appellate courts normally affirm a judgment that reaches a corr ect result, whether or not the trial court’s reasoning was correct. ( People v

. Geier (2007) 41 Cal.4th 555, 582; People v

. Zapien (1993) 4 Cal.4th 929, 976.) We review judi cial action on appeal, not the trial court’s legal reasoning for a ruling. ( People v

. Franklin (2003) 105 Cal.App.4th 532, 535.) We
find no error in the trial court’s admission of Pollard’s statement concerning a prior domestic violence incident involving appellant. Furthermore, we do not find the admission of this statement prejudicial under the
facts of this case. The statement was not n early as inculpatory as statements made the night of the incident by Kamesha, as well as Pollard’s recorded statement to Officer Hamma that appellant hit her that evening. The prosecution’s case was complicated by
the fact that at trial both Kamesha and Pollard either de nied the allegations against appellant or claimed not to remember what ha ppened. Even so, the recorded statements9 of both witnesses the evening of the incident were cons istent and detailed accounts of appellant’s conduct. The prosecutor also played tapes of telephone conversations between appellant and Pollard from jail indicating appellant’s culpability. Key parts of this evidence were also corroborated by Office r Hamma’s testimony and photographs taken of appellant’s knuckles and Pollard’s injuries. Even if we were to
find error in the trial court’s admission of Poll ard’s statement concerning a prior incident, as well as its failure to give a specific limiting instruction, the error would be harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Finally, we reject a ppellant’s argument that his tria l counsel was ineffective for failing to request a limiting instru ction on the cha llenged statement. 3 As noted above, we do not find there any legal error. Trial counse l, therefore, was not ineffective for failing to request a limiting instruction. Also, the challenged statement was a very limited
comment. Trial counsel could le gitimately have had a sound tr ial tactic in not requesting a further limiting instruction so it wo uld not be emphasized to the jury.

3 Appellant’s challenges can be construed to be a challenge to the effectiveness of his trial counsel. The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffectiv e assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also pr ejudice. A court must indulge a strong presumption that counsel’s conduct falls with in the wide range of reasonable professional assistance. Tactical erro rs are generally not deemed reversible. Counsel’s decisionmaking is evaluated in the context of th e available facts. To the extent the record fails to disclose why counsel acted or faile d to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there si mply could be no satisfactory ex planation. Prejudice must be affirmatively proved. The record mu st affirmatively demonstrate a reasonable probability that, but fo r counsel’s unprofessional errors , the result of the proceeding would have been different. ( People v

. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions that are futile. ( Id . at p. 390; also see People v

. Mendoza (2000) 24 Cal.4th 130, 166.)10 DISPOSITION The judgment is affirmed.