Filed 10/27/15 P. v. Gabaldon CA3
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C076944

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F02595)

         v.

LINDA TAMMY GABALDON,

                   Defendant and Appellant.




         A jury convicted defendant Linda Gabaldon of murdering her roommate, and
former girlfriend, Rebecca Brau. Prior to trial, the trial court ruled three of defendant’s
prior felony convictions could be used to impeach her credibility, but the convictions
would be referred to only as felony crimes of moral turpitude without mention of the
specific offenses. The trial court then modified its ruling to provide that information
about the specific offenses would be admitted if defendant’s expert considered the
specific felonies as part of the basis of her opinion.
         Defendant appeals her conviction contending: (1) the prosecutor engaged in
misconduct by violating the trial court’s ruling on the use of her prior felony convictions;

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and (2) her trial attorney provided ineffective assistance of counsel when he failed to
adhere to the trial court’s ruling regarding her prior convictions and failed to object to the
prosecutor’s misconduct as to cross-examination on those convictions. We find
defendant forfeited the claim of prosecutorial misconduct by failing to object. We also
conclude there was a reasonable tactical explanation for trial counsel’s decision to specify
the nature of defendant’s prior convictions on direct examination and, similarly, for not
objecting to the prosecutor’s cross-examination about those convictions. Accordingly,
we affirm the judgment.
                              I. PROCEDURAL HISTORY
        An information charged defendant with first degree murder. (Pen. Code, § 187,
subd. (a).)1 The information also alleged defendant had intentionally and personally
discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and had
a prior strike conviction (§ 667, subds. (b)-(i)).
        A jury found defendant guilty of first degree murder and found the firearm
enhancement true. In bifurcated proceedings, the trial court found the prior strike
allegation true. The trial court sentenced defendant to an aggregate term of 75 years to
life.
                             II. FACTUAL BACKGROUND
        Defendant met Brau almost 30 years before the trial. About 17 years into their
friendship, the relationship became intimate. When defendant went to prison, in 2001,
she and Brau remained in contact and defendant identified Brau as her significant other.
After being released from prison in 2012, and completing a mandatory drug treatment
program, defendant moved in with Brau. By April 2013, defendant had been living with
Brau and her children for several months. Defendant and Brau occasionally argued.




1   Undesignated statutory references are to the Penal Code.

                                               2
Defendant claimed the arguments were not just verbal, but also physical. Brau repeatedly
hit defendant and was very abusive, demanding and aggressive when she was drunk,
which was every day. One time Brau hit defendant with a belt to her leg and another
time Brau punched defendant in the chest twice. After one argument, Brau threw water
at defendant and hit her arm.
       On April 23, 2013, defendant called the Sacramento County Sheriff’s Department
to report “her roommate was dead on the floor. Possibly shot in the head.” Brau had four
gunshot wounds. One wound was just below her chin with stippling, another was at the
back right side of her head, the third was near her right armpit, and the fourth near her
right abdomen. The stippling near the chin indicated the shot had been fired at close
range, less than 18 inches. Brau also had blunt force injuries to her head and legs. The
gunshot wounds to the head and abdomen were fatal in and of themselves. Without
immediate medical attention, the other two gunshot wounds could have also been fatal.
Some of the shots could have been fired when Brau was already on the ground. Deputies
found a large bullet embedded in the carpet padding under Brau, which was consistent
with a bullet passing through the body while it was lying on the ground.
       When sheriff’s deputies arrived at the scene, defendant was “moaning loudly,” she
“was making crying noises,” but she was not shedding any tears and her face was not red
or puffy. Brau was lying on the ground, on her back, arms over head, and there was “a
lot of blood around her head.” Defendant denied there were any guns in the house and
the deputies did not find any weapons at the scene. There were sheets on the bed covered
with a large amount of blood. The sheets had clearly been on the victim previously. It
also appeared from the blood patterns that Brau’s arm had been moved at some point.
       Deputies took samples from defendant’s hands and found particles associated with
gunshot residue. Nothing at the scene indicated an intruder had broken into the house
and there were no signs of a robbery.



                                             3
       Deputy Michael Heller interviewed defendant at the scene. Defendant explained
that she and Brau had recently been in an altercation, after which defendant had moved
out of the house. Brau later convinced defendant to move back in. She had last seen
Brau the night before the shooting. She had gone out in the morning to the post office,
returned to the home, and stayed in her room until 1:30 or 2:00 p.m. Brau’s son called
defendant around 2:45 p.m. and asked her to pick him and his sister up from school,
because Brau had not. Defendant left to pick the children up, but returned after she was
informed she was not authorized to do so. When she returned home, she saw Brau on the
floor with blood everywhere. She claimed she had not heard anything, but acknowledged
she had moved a sheet and pillowcase from the ground near Brau to the top of the bed.
       At trial, defendant provided a version of events that differed from what she had
told Deputy Heller. She testified that the night before the killing, Brau was drinking and
she and defendant started arguing. The next morning, as defendant was getting ready to
go to the post office, Brau stood in the hallway pointing a gun at defendant and said,
“You, bitch. Come here.” Defendant walked toward Brau and Brau backed up into the
bedroom, still pointing the gun at defendant. Defendant tried to grab the gun from Brau,
and as they struggled, the gun went off and Brau fell.
                                       III. TRIAL
       The People made a motion in limine to allow impeachment of defendant with her
three prior felony convictions for robbery and resisting arrest in 2001 and battery on a
noninmate in 2008. The trial court ruled it would allow impeachment that “defendant has
been convicted of two felony crimes of moral turpitude in 2001, and a felony crime of
moral turpitude in 2008.” The People sought clarification of the ruling relative to the
expert witness’s testimony. Specifically, the prosecutor inquired about the ability to
cross-examine the expert on her opinion by “asking her about instances because
[defendant’s] a battered woman yet we know there’s a battery on an inmate that she got
convicted and did extra time. I understand the Court wanting to make it moral turpitude

                                             4
for that purpose, but I would request to [be] able to approach and talk about its relevancy
at that time under those circumstances.” The trial court recognized the proffered defense
and defense expert “muddie[d] the water” on the limited use of the prior convictions, and
stated, “I believe that if this does come in, it is a factor in which [the expert] took into
consideration for the basis of her opinion. It will be allowed in.”
       During direct examination, defense counsel asked defendant about her prior
convictions.
       “[DEFENSE COUNSEL]: Let me talk to you about your prior felony conviction.
You have a prior felony conviction for robbery, correct?
       “[DEFENDANT]: Yes.
       “[DEFENSE COUNSEL]: That was in the year approximately 2000?
       “[DEFENDANT]: Yes.
       “[¶] . . . [¶]
       “[DEFENSE COUNSEL]: Also in year 2000 you had a felony conviction for
resisting arrest?
       “[DEFENDANT]: Yes.
       “[DEFENSE COUNSEL]: And based on those two felony convictions at some
point you were sentenced to prison?
       “[DEFENDANT]: Yes.
       “[DEFENSE COUNSEL]: Do you recall how long your prison sentence was?
       “[DEFENDANT]: Six years, eight months. Then added for the other one was
four years.
       “[DEFENSE COUNSEL]: The other one being battery on a non-inmate?
       “[DEFENDANT]: Yes.
       “[DEFENSE COUNSEL]: So at some point, were you actually released from the
original sentence and then taken back into custody because of the alleged battery on a
non-inmate?

                                               5
       “[DEFENDANT]: Yes.
       “[¶] . . . [¶]
       “[DEFENSE COUNSEL]: Okay. When you first went to prison, did you have
any problems adjusting?
       “[DEFENDANT]: Yes.
       “[DEFENSE COUNSEL]: And those problems were basically you got into fights
with some other inmates?
       “[DEFENDANT]: Yes.”
       Later, on cross-examination, the People also asked about defendant’s prior
convictions.
       “[PROSECUTOR]: Okay. At some point you got into the criminal behavior that
led to your three convictions that [defense counsel] talked about?
       “[DEFENDANT]: Yes. . . .
       “[PROSECUTOR]: Did you—you pled guilty to the robbery?
       “[DEFENDANT]: Yeah.
       “[PROSECUTOR]: Was that March of 2011?
       “[DEFENDANT]: Yes.
       “[PROSECUTOR]: You pled guilty to felony resisting arrest with police officers?
       “[DEFENDANT]: Yes.
       “[PROSECUTOR]: From those two cases, [defense counsel] said you got
sentenced to six years, eight months in prison?
       “[DEFENDANT]: Yes, I did.
       “[PROSECUTOR]: Now, while you were in prison, you committed your third
felony, a battery on a non-inmate?
       “[DEFENDANT]: The incident happened, yes.
       “[PROSECUTOR]: You pled guilty to that, right?
       “[DEFENDANT]: Uh-huh.

                                            6
       “[PROSECUTOR]: Yes?
       “[DEFENDANT]: Yes.
       “[PROSECUTOR]: You got an additional four years for battery on a non-inmate?
       “[DEFENDANT]: Yes. Officer said I assaulted her. I didn’t. There was no
serious injury. I should have fought it, but I did not.
       “[PROSECUTOR]: You pled guilty to a felony battery on a non-inmate, right?
       “[DEFENDANT]: Yeah. Yes.”
       Later in cross-examination, as the prosecutor questioned defendant further on her
allegations of abuse by Brau, he asked why defendant had not done something to defend
herself. Defendant answered, “I’m on high risk parole. Couldn’t touch anybody. I’d go
[to] prison like that. There’s no way. I would never harm [Brau] or hit [Brau] or
anything. I don’t believe in violence.” After getting further clarification on the self-
defense training defendant had received, the prosecutor asked why defendant had not
moved out after Brau’s alleged abuse. Defendant answered:
       “[DEFENDANT]: She apologized, then she said that she— because I’m passive
and because I cared about her, and I loved the kids.
       “[PROSECUTOR]: You’re passive?
       “[DEFENDANT]: Yes. I grew accustomed to the living arrangement. I forgave
her again. Told her if she hit me one more time, I would leave.
       “[PROSECUTOR]: [Defendant], you had a felony conviction for resisting arrest.
You held a knife at police officers, right?
       “[¶] . . . [¶] [Sustained objection to answer as unresponsive]
       “[PROSECUTOR]: [Defendant], you indicated to the Court that you’re passive in
nature. I’m asking you, didn’t you plead guilty to felony resisting arrest in which you
held a knife at police officers?
       “[DEFENDANT]: No. Held a knife to my own wrist.



                                              7
         “[PROSECUTOR]: When they sprayed you with mace, you didn’t drop the knife,
did you?
         “[DEFENDANT]: Then I went blind. I don’t remember.
         “[PROSECUTOR]: They had to spray you again with mace and still wouldn’t
drop the knife.
         “[DEFENDANT]: I can’t recall. A long time ago.
         “[PROSECUTOR]: You pled guilty to a battery on a non-inmate while in prison,
right?
         “[DEFENDANT]: Yes, I did.
         “[PROSECUTOR]: That’s not passive behavior is it? Just yes or no.
         “[DEFENDANT]: No.
         “[PROSECUTOR]: And the robbery that you pled guilty to, you actually sat on
someone’s chest and beat them about the face or head; isn’t that right?
         “[DEFENDANT]: Never touched Gordon. I was falsely accused of robbery.
Falsely accused of assault. I never touched that man.
         “[PROSECUTOR]: You pled guilty to it?
         “[DEFENDANT]: I didn’t have no choice due to the fact of me going over there
asking him a favor, asking him for money to put this woman in a motel. She robbed him.
I was responsible, so I took six years, eight months for robbery. Yes, I did.
         “[PROSECUTOR]: You never—
         “[DEFENDANT]: Never touched him. Never touched him.
         “[PROSECUTOR]: The battery on a non-inmate wasn’t your fault either, right?
         “[DEFENDANT]: The battery on non-inmate, I was flushing tobacco down the
toilet. The officer grabbed me remanded me, threw me on the ground and said I assaulted
her with my elbow. I never touched that cop. No physical injury on the report as well.
There’s nothing there.



                                             8
        “[PROSECUTOR]: So we have a robbery you pled guilty to in which the
accusation was you beat a person, and got personal items from them that you say you
never touched him but pled guilty?
        “[DEFENDANT]: Pled guilty only because I went to his—
        “[PROSECUTOR]: Yes?
        “[DEFENDANT]: Yes.
        “[PROSECUTOR]: Then you have a battery on a non-inmate that apparently you
committed a battery on a correctional officer, in which now you’re saying a second time
you did not touch the person, yet you pled guilty, right?
        “[DEFENDANT]: You can look at the report. I’m not lying.
        “[PROSECUTOR]: Just asking if you pled guilty to a second case in which—
        “[DEFENDANT]: Yes. Only because I was—I had tobacco and flushed it, yes, I
[was] responsible for that.
        “[PROSECUTOR]: Then the felony resisting arrest, you had a knife, and you say
the knife was only used on your own wrist and you never resisted arrest of the officers,
but you pled guilty to that also, right?
        “[¶] . . . [¶] [Sustained objection to answer as non-responsive]
        “[PROSECUTOR]: Would it be fair to say that you pled guilty to three felony
crimes that involved some degree of violence, all of which you deny ever occurring?
        “[DEFENDANT]: You can look at the report. I’m not lying. Yes.
        “[PROSECUTOR]: In this particular instance, you’re denying shooting Rebecca
Brau?
        “[DEFENDANT]: Never touched Rebecca Brau. Struggled with her.
        “[PROSECUTOR]: This was [Brau’s] fault? She had the gun, and she shot
herself during the struggle?
        “[DEFENDANT]: I don’t understand how this happened. Yes.”



                                              9
        Dr. Linda Barnard testified on defendant’s behalf as an expert in domestic
violence. In addition to interviewing defendant about her history of abuse with Brau,
amongst other things, Dr. Barnard reviewed police reports for this incident, arrest reports
for defendant’s prior felonies, a toxicology report, the coroner’s report, a police report of
a March 2013 domestic violence call from defendant regarding Brau, defendant’s prison
medical records, and the transcript of the sheriff’s interview of defendant from the night
of the shooting. Dr. Barnard also discussed all three prior convictions and their
underlying facts with defendant in her examination. Dr. Barnard concluded defendant
had been the victim of intimate partner battering. On direct examination, she testified she
based this conclusion on her examination of defendant and the materials she reviewed in
preparation for that examination.
                                     IV. DISCUSSION
        Each of defendant’s claims on appeal relates to the trial court’s in limine ruling on
the permissible use of her prior convictions, and both defense counsel and the People’s
examinations of defendant relative to these convictions. Defendant contends the
prosecutor committed misconduct by not following the ruling. Defendant also argues
defense counsel was ineffective for not adhering to the ruling himself, and for failing to
object to the prosecutor’s detailed inquiries about defendant’s prior convictions.
A. Prosecutorial Misconduct
        Defendant contends the prosecutor committed misconduct by “violating the court
order regarding the permissible scope of impeachment of [defendant] with her prior
felony convictions.” Defendant forfeited this claim by failing to object and request
curative admonitions in the trial court. (People v. Lopez (2008) 42 Cal.4th 960, 965-
966.)
        Recognizing that the failure to object and request a curative admonition forfeits
this issue on appeal, defendant contends this claim may be considered here, because
“ ‘the case is closely balanced and there is grave doubt of defendant’s guilt, and the acts

                                              10
of misconduct are such as to contribute materially to the verdict . . . ’ (People v. Lambert
(1975) 52 Cal.App.3d 905, 908.).” The cases stating this rule have long since been
overruled on this point (People v. Green (1980) 27 Cal.3d 1, 28-34, overruled on other
grounds as noted in People v. Dominguez (2006) 39 Cal.4th 1141, 1155, fn. 8), and the
“close case” exception once used to avoid the forfeiture rule is no longer recognized
(People v. Cain (1995) 10 Cal.4th 1, 48).
       Moreover, we do not agree the prosecutor violated the trial court ruling. The
People sought to admit defendant’s prior felony convictions to generally challenge her
credibility. (Evid. Code, § 788.) The trial court ruled that the prosecution could impeach
defendant’s credibility by indicating she had been convicted of three crimes of moral
turpitude, without specifying the nature of the specific convictions. To the extent
defendant complains that the prosecution improperly cross-examined her regarding the
specific nature of the prior convictions, she is estopped from making this claim. Defense
counsel identified the nature of the convictions on direct examination.2 “Since defendant
is responsible for the introduction of the evidence, [s]he cannot complain on appeal that
its admission was error.” (People v. Moran (1970) 1 Cal.3d 755, 762.)
       As to the cross-examination on the facts underlying defendant’s convictions, we
do not agree this was included within the scope of the court’s ruling. The in limine ruling
pertained to a prior conviction being offered as a specific instance of conduct “tending to
prove a trait of [defendant’s] character,” (Evid. Code, §§ 787, 788) such as dishonesty.
The questioning on the facts underlying defendant’s convictions was not offered as
evidence of a character trait to attack defendant’s general credibility. Rather, it was
offered as testimonial contradiction, to contradict and disprove defendant’s specific
testimony that she was nonviolent and passive. (Evid. Code, § 780, subd. (i); People v.



2Defendant also raises claims of ineffective assistance of counsel regarding this conduct.
We address those claims separately below.

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Cooks (1983) 141 Cal.App.3d 224, 324; People v. Reyes (1976) 62 Cal.App.3d 53, 65.)
This was proper cross-examination and not precluded by the trial court’s in limine ruling.
B. Ineffective Assistance of Counsel
       Defendant raises two claims of ineffective assistance of counsel. First, defendant
claims counsel was ineffective by eliciting testimony on the specific nature of her prior
convictions, despite the trial court’s ruling admitting only a description of the convictions
as involving moral turpitude. Second, defendant claims counsel was ineffective by
failing to object to the prosecutor’s alleged misconduct in cross-examining defendant as
to facts underlying her prior convictions. We conclude defendant has not demonstrated
that counsel’s representation was deficient.
       In order to prove ineffective assistance of counsel, defendant must show: “(1) that
counsel’s representation fell below an objective standard of reasonableness; and (2) that
there is a reasonable probability that, but for counsel’s unprofessional errors, a
determination more favorable to defendant would have resulted.” (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1126 (Rodrigues); see also Strickland v. Washington (1984)
466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) “If the defendant makes an insufficient
showing on either one of these components, the ineffective assistance claim fails.”
(Rodrigues, supra, at p. 1126.)
       “We presume ‘counsel’s conduct falls within the wide range of reasonable
professional assistance’ [citations], and accord great deference to counsel’s tactical
decisions. [Citation.]” (People v. Lewis (2001) 25 Cal.4th 610, 674 (Lewis).) “[W]hen
the reasons for counsel’s actions are not readily apparent in the record, we will not
assume constitutionally inadequate representation and reverse a conviction unless the
appellate record discloses ‘ “no conceivable tactical purpose” ’ for counsel’s act or
omission.” (Id., at pp. 674-675; cf. People v. Ray (1996) 13 Cal.4th 313, 349 [“In order
to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must
affirmatively disclose the lack of a rational tactical purpose for the challenged act or

                                               12
omission”].) “ ‘[T]he defendant must overcome the presumption that, under the
circumstances, the challenged action “might be considered sound trial strategy.” ’
[Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 446.)
       It is not deficient performance for defense counsel to fail to make “objections that
counsel reasonably determines would be futile,” (People v. Price (1991) 1 Cal.4th 324,
387) or objections that “would have likely been overruled by the trial court. (See, e.g.,
People v. Osband (1996) 13 Cal.4th 622, 678 [counsel not ineffective in failing to make a
futile objection to introduction into evidence a photograph of the crime scene]; People v.
Sanchez [(1997)] 58 Cal.App.4th [1435,] 1450 [counsel not ineffective in failing to object
to introduction of the gang evidence likely to be admissible in any event].)” (People v.
Mendoza (2000) 78 Cal.App.4th 918, 924 (Mendoza).)
                      1. Ineffective Assistance of Counsel in Direct Examination
       Defendant contends she received ineffective assistance of counsel “by her
counsel’s ignorance of a favorable in limine ruling.” She asserts “[d]espite the fact that
defense counsel obtained a partially favorable ruling on his motion in limine to exclude
for impeachment purposes evidence of [defendant’s] prior felony convictions, based on
his direct examination of [defendant], it appears he completely forgot the court’s ruling.”
Specifically, defendant complains counsel was ineffective by eliciting testimony on direct
examination of defendant about her prior convictions, referencing the specific offenses of
robbery, resisting arrest, and battery on a noninmate; rather than referring to the crimes
simply as involving moral turpitude. We disagree.
       Even “where defense counsel may have ‘ “elicit[ed] evidence more damaging to
[defendant] than the prosecutor was able to accomplish . . .” ’ [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).)
Here, the record does not affirmatively establish there was “ ‘ “no conceivable tactical
purpose” ’ ” for trial counsel’s questions. (Lewis, supra, 25 Cal.4th at p. 675.) To the

                                             13
contrary, defense counsel may have elicited specifics about the prior convictions because
he knew the specifics were going to be admissible because they were considered by
defendant’s expert.
       Defense counsel provided the expert with the materials she relied upon in forming
her opinion. Therefore, he knew that the details of the prior convictions, including the
specific charged offenses and underlying factual details, were included in that
information. Based on the trial court’s pretrial ruling, defense counsel also knew the
prosecution would be able to cross-examine defendant’s expert on those specific charged
offenses. Knowing the specific offenses for which defendant was convicted would be
admitted in cross-examination of the expert, defense counsel’s choice to preemptively
bring the prior convictions out in defendant’s testimony could have been to limit or
reduce their potential impact on the jury. It could also “be fairly characterized as a
reasonable tactical choice designed to demonstrate defendant’s candor and honesty to the
jury.” (Mendoza, supra, 78 Cal.App.4th at p. 928.) As acknowledged by defendant on
appeal, her credibility was imperative to her defense. The attempt to minimize the impact
of the prior convictions on defendant’s credibility was a reasonable tactical choice.
Accordingly, we cannot find counsel’s performance was deficient and defendant’s claim
of ineffective assistance of counsel fails. (Williams, supra, 16 Cal.4th at p. 218.)
              2. Ineffective Assistance of Counsel in Cross-Examination
       Defendant contends trial counsel was also ineffective for failing to object to the
prosecutor’s “improper cross-examination” as to the facts underlying her prior
convictions. “An attorney may choose not to object for many reasons, and the failure to
object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th
495, 540.)
       “Evidence tending to contradict a witness’s testimony is relevant for purposes of
impeachment.” (People v. Cunningham (2001) 25 Cal.4th 926, 1025; see also Evid.
Code, § 780, subd. (i).) Even a so-called collateral matter may be relevant to a witness’s

                                             14
credibility, particularly as to the existence or nonexistence of any fact testified to by the
witness. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) As discussed above, the cross-
examination of defendant, relative to the facts underlying her convictions, was a proper
effort to contradict specific testimony by defendant that she was passive and nonviolent.
It did not run afoul of the trial court’s in limine ruling, and it was likely admissible under
Evidence Code section 780, subdivision (i).
       In addition, the evidence also would have likely been admissible under Evidence
Code section 1103, which sets forth exceptions to the general rule that character evidence
is inadmissible to prove acts consistent with that character on a specific occasion. (Evid.
Code, § 1101, subd. (a).) One such “exception allows a criminal defendant to offer
evidence of the victim’s character to show the victim acted in conformity with it. (Evid.
Code, § 1103, subd. (a)(1).) If the defendant offers evidence showing the victim has a
violent character, then the prosecution may offer evidence of the defendant’s violent
character to show the defendant acted in conformity with it. (Evid. Code, § 1103, subd.
(b).)” (People v. Myers (2007) 148 Cal.App.4th 546, 552.) “In other words, if . . . a
defendant offers evidence to establish that the victim was a violent person, thereby
inviting the jury to infer that the victim acted violently during the events in question, then
the prosecution is permitted to introduce evidence demonstrating that (1) the victim was
not a violent person and (2) the defendant was a violent person, from which the jury
might infer it was the defendant who acted violently.” (People v. Fuiava (2012)
53 Cal.4th 622, 696.) Defendant offered evidence that the victim, Brau, was violent and
acted violently on the morning of the shooting. She testified Brau had been abusive and
violent toward her on a number of occasions, including hitting her with a belt, punching
her in the chest, throwing water at her and hitting her arm. She also testified that the
struggle started with Brau pointing a gun at her and saying, “You, bitch. Come here.”
The People were entitled to rebut the evidence that Brau was a violent person with



                                              15
evidence that defendant was a violent person. The facts underlying her convictions were
evidence on that point.
       Because there were two independent grounds on which the facts underlying
defendant’s convictions could have been admitted, trial counsel could have reasonably
determined that any objection to the cross-examination regarding those facts was futile or
likely to be overruled. Accordingly, the failure to object in these circumstances was not
ineffective assistance of counsel.
                                     IV. DISPOSITION
       The judgment is affirmed.



                                                        /S/

                                                 RENNER, J.


We concur:



       /S/

NICHOLSON, Acting P. J.



       /S/

MAURO, J.




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