NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

THE COURT*

STATEMENT OF THE CASE

On August 10, 2010, appellant, Jesus Cristobal Nuno, was charged with felony animal cruelty (Pen. Code, § 597, subd. (a)).1 The information further alleged three prior prison term enhancements (§ 667.5, subd. (b)) and a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)). At the conclusion of a jury trial on January 7, 2011, Nuno was found guilty of animal cruelty.2 In a bifurcated proceeding, the trial court found not true one prior prison term enhancement and found the other two prior prison term allegations true. The court struck appellant's prior serious felony conviction.

On February 8, 2011, the court sentenced appellant to the upper term of three years for animal cruelty plus a consecutive term of one year for one of the enhancements. The court struck the other prior prison term enhancement. Nuno received custody credits of 210 days for time served plus conduct credits of 210 days for total custody credits of 420 days. The court imposed a $200 restitution fine.

Appellant filed a timely notice of appeal. Appellant contends on appeal that his trial counsel was ineffective for allegedly permitting a defense witness to corroborate the prosecution's case. We find no error and affirm the judgment.

FACTS

Prosecution Case

On the morning of July 12, 2010, Timothy Cunningham was employed as a property manager at a complex located on K Street in Bakersfield. Cunningham saw Nuno strike a small Chihuahua in the head once with a metal baseball bat. The dog was cowering before Nuno struck it and was not barking. The blow from the bat made a loud "thud" that Cunningham could hear from 80 feet away and caused the dog to immediately fall to the ground.

After Nuno hit the dog, he poked it with his bat, grabbed it by its tail, took a few steps backward, and in a sidearm motion threw the dog over a fence onto K Street. Nuno walked into his home for a moment and then drove away in his car. Cunningham did not see skid marks or tire marks near the dog. He also did not see any traffic on the street. Cunningham went home and called the police. After 15 or 20 minutes, while Cunningham was talking to the animal control officer, Nuno drove back, but did not stop at his residence.

Ronda Choate, an Animal Control Officer, and Bakersfield Police Officer Glen Davis arrived at the scene shortly after Cunningham called.3 Choate had tended to dead animals on the road every day for four years prior to this incident. Animals killed on the road by cars usually have black marks on them. Unless the animal is large, its body can be in pieces.

The Chihuahua had no tire marks on it and there were no tire marks on the street. During the 30 minutes she was investigating this case, Choate did not see a single vehicle on the street. Choate did not believe the Chihuahua was hit by a car. In Choate's experience, she had never seen an animal that was hit by a car that looked like the Chihuahua. When Nuno drove back to the scene, Cunningham identified him to Choate as the perpetrator.

Dr. Julie Mischke was a veterinarian and had performed 50 to 100 necropsies on large and small animals. Dr. Mischke performed a necropsy on the Chihuahua. Whether small or large, dogs hit by cars get tossed onto the pavement. When this happens, veterinarians see fractures, bleeding, and frayed nails. They also see black marks from the road and oil. Often there is road base, or gravel, in the animal's wounds.

During the necropsy of the Chihuahua, Dr. Mischke found soft fluctuant swelling on the head. There was also bleeding from the nose and ears. There were no internal injuries or fractures on the dog other than to its skull. Dr. Mischke found no frayed nails, tire or oil marks, or abrasions on the dog. The only bruising was on the head region. Dr. Mischke noted that had a car hit the dog in the head with enough force to crush the skull, she would expect to see injuries to the neck, abrasions on the skin, and possibly other fractures. Dr. Mischke concluded that the dog was not hit by a car. The Chihuahua suffered multiple fractures to the skull. There were bone fragments embedded in its brain. In Dr. Mischke's opinion, the Chihuahua died from blunt force trauma to its head. Such trauma is consistent with being hit in the head with a baseball bat.

Defense Case

Elvira Nuno, appellant's wife, testified that they never had a baseball bat in their home. Her children played with a wiffle bat. When Elvira Nuno was five months pregnant, Cunningham told her she was "hot" and offered her a ride. She believed the comment was made with a sexual connotation. There are many stray dogs running around the neighborhood around the Nuno home. They have called animal control about the stray dogs. To Elvira Nuno's knowledge, the little Chihuahua was never endangered by her husband and was never injured by him.

Kariana Sotelo lived in an apartment managed by Cunningham when she was 17 to 18 years old. Sotelo was passing out fliers with two of her little sister's preschool teachers. Sotelo and the teachers saw what they thought was an open house. Cunningham invited them to come inside. As Sotelo was walking into the residence, Cunningham smacked her bottom and said, "yeah, you get in there." Sotelo and the teachers then left the residence.4 Sotelo called the police to report the incident, but did not seek a restraining order on Cunningham because she was moving. Sotelo's mother confirmed that they called the police after the incident.

The defense called on Dr. Charles Ulrich, a veterinarian in practice for almost 30 years. Dr. Ulrich had performed at least 1,000 necropsies. Dr. Ulrich had studied Dr. Mischke's report. Dr. Ulrich agreed with Dr. Mischke that the Chihuahua had blunt force trauma that was the cause of death and that it "suffered a severe blow to the head." Dr. Ulrich, however, did not agree with Dr. Mischke that the dog was struck only one time. Dr. Ulrich also detected injuries toward the Chihuahua's nose.

Although Dr. Ulrich agreed that the dog died from blunt force trauma, he thought that the fragments of bone in the brain were a contributing cause, but not the primary cause of death. Dr. Ulrich believed the dog was hit at least twice and that the dog's injuries could have been caused by a motor vehicle if it was hit by the undercarriage of the vehicle. Because this part of the vehicle has a lot of irregular structures, the dog could be hit simultaneously by two portions of the vehicle's undercarriage.

Dr. Ulrich conceded on cross-examination that it was "possible" the Chihuahua suffered its injuries as the result of being hit with a metal baseball bat, though the injuries could have been caused by another heavy object, like a pipe. When asked if it was more likely that the injuries were caused by a baseball bat, or another heavy object, or by a car, Dr. Ulrich testified he thought it was "probably a little more likely" that the injuries were caused by a bat or pipe as opposed to a vehicle.

Explaining his statement that the dog was hit by a baseball bat or other heavy object rather than a car, Dr. Ulrich stated that it was "hit either simultaneously in two different places or hit two different times." Dr. Ulrich noted that when dogs are hit by cars, they are often thrown, causing multiple injuries. Dr. Ulrich said that dogs hit by cars don't always show tire marks. He also said that he could not "determine the exact agent that caused this trauma." Dr. Ulrich stated it was a close call between being hit by a heavy object or a car, but that it was more likely the dog was hit by a bat or a pipe.

DISCUSSION

Nuno argues that his counsel's use of Dr. Ulrich as an expert was disastrous to his defense because Dr. Ulrich corroborated the prosecutor's expert, Dr. Mischke, when he conceded that the Chihuahua could have been killed by a bat or other similar object.

The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel's decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed 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 simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for 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 which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)

Nuno argues that Dr. Ulrich corroborated Dr. Mischke's testimony. We disagree with this characterization. Dr. Ulrich only agreed that the dog could have been hit by a bat rather than a car. Although Dr. Ulrich believed that the former was more likely than the latter, he unequivocally stated that he did not know the exact agent that caused the dog's trauma. Dr. Ulrich also said it was a close call as to what could have caused the trauma to the dog's head. Dr. Ulrich also believed the dog had been hit twice and that being run over by the undercarriage of a vehicle could cause simultaneous injuries. Dr. Ulrich further explained to the jury that a dog could be hit by a car and not receive tire marks or other signs of trauma from the road.

We agree with respondent that this testimony, especially viewed as a whole, created doubt as to Dr. Mischke's testimony that the Chihuahua definitely sustained head trauma from a bat and not from a car. The evidence was not ironclad, but it did not have to be to raise the possibility of reasonable doubt for the jury. Defense counsel's choice to have Dr. Ulrich testify was the type of tactical decision we do not second-guess on appeal.5 (See People v. Knight (1987) 194 Cal.App.3d 337, 346.) We do not find that trial counsel's choice to permit Dr. Ulrich to testify was below professional norms. To prevail on a claim of ineffective assistance of counsel on appeal, a defendant must demonstrate counsel's representation was below professional norms and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (See Strickland v. Washington (1984) 466 U.S. 668, 687, 695.) The absence of Dr. Ulrich's testimony, however, would have left no possible explanation for the death of the Chihuahua other than Cunningham's account, and the testimony of Officer Choate and Dr. Mischke concerning the cause of death. There would have been no alternative theory for the cause of death before the jury. We agree with respondent that Nuno has failed to show that in the absence of Dr. Ulrich's testimony, the outcome of the case would have been different.

DISPOSITION

The judgment is affirmed.