Opinion
H029440
12-1-2006
THE PEOPLE, Plaintiff and Respondent, v. JANET MARIE HOWAY, Defendant and Appellant.
Defendant, Janet Marie Howay appeals from a judgment entered after she pleaded no contest to one felony count of vandalism (Pen. Code, § 594, subds. (a) & (b)(1)). After the trial court sentenced her to 60 days in county jail, three years probation and imposed a variety of fines, the defendant filed a timely notice of appeal and concurrently requested and received a certificate of probable cause. Appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) which stated the case and the facts but raises no specific issues. We notified defendant of her right to submit written argument in her own behalf, and thereafter, she filed a brief raising a number of issues. We asked counsel for appellant and respondent to submit further briefing on two issues raised by the defendants brief. After further consideration of the record and all of the briefing submitted in this matter, we will affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The defendant claims to suffer from hemorrhagetic menstrual periods which make her "crazy." During one of these episodes, she broke into the home where her estranged husband lives with their children. While there, she vandalized his bedroom, writing obscenities on the wall about his new girlfriend, and damaged the garage door by running her car into it. She later called her estranged husband and left a message admitting to everything she had done and offering to pay for any damage.
Defendants divorce attorney represented her in the criminal case and negotiated a plea bargain with a 60 day jail term, three years probation plus fines if she admitted the one count of felony vandalism. Defendant accepted the plea, and the trial court imposed the agreed upon sentence. At sentencing, the court also imposed numerous probation conditions, including that defendant not possess or consume alcohol or illegal drugs, or go to places where illegal drugs are used or sold or alcohol is the major item of sale, and that she complete a substance abuse program and a certified domestic violence program. After sentencing, defendant apparently wished to withdraw her plea, despite her full admission to the offense. However, no motion to withdraw plea was ever filed. She requested and received a certificate of probable cause, and this timely appeal ensued.
On appeal, defendants counsel filed a brief pursuant to Wende, supra, 25 Cal.3d 436. Defendant filed a timely response to the Wende brief, raising the points which she had raised in her request for a certificate of probable cause. This court asked counsel for both respondent and appellant to file supplemental briefs addressing the issues raised by the defendant, and we now consider these issues on their merits.
We asked counsel to address the following questions:
DISCUSSION
Defendants main contentions are that the substance abuse and domestic violence probation conditions imposed by the trial court are not related to the offense (People v. Lent, supra, 15 Cal. 3d at p. 486), and that she received ineffective assistance of counsel. Respondent contends that defendant has waived the probation condition issue by failing to object to the conditions at the trial court. Respondent further contends that even if she had objected, the conditions are proper because they reasonably relate to the offense and are supported by the evidence.
The probation report prepared prior to defendants sentencing recommended both the conditions to which the defendant now objects. During the sentencing hearing, the trial court read all of the terms of probation, and defendant accepted them without objection. A defendants failure to object to the challenged conditions waives the issue on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.) Defendant, here, did not object at sentencing, even though she had prior warning in the probation report that such conditions might be imposed. She cannot object to the conditions for the first time on appeal. Therefore, her claim that the probation conditions are unreasonable is waived.
Defendant additionally contends that by failing to object to the probation conditions, she received ineffective assistance of counsel. "A defendant claiming ineffective assistance of counsel under the federal or state Constitutions must show both deficient performance under an objective standard or professional reasonableness and prejudice under a test of reasonable probability of a different outcome." (People v. Osband (1996) 13 Cal.4th 622, 664.) Here, defendant argues that counsels failure to object to these conditions, which are wholly unrelated to the charges of which she was convicted, demonstrates the requisite deficient performance.
Where a claim of ineffective assistance of counsel is raised on appeal and, where as here, "the record contains no explanation for the challenged behavior; an appellate court will reject the claim of ineffective assistance "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . . " (People v. Osband, supra, 13 Cal.4th at pp. 700-701.) Although the record here contains no explanation for the challenged behavior, defendant contends that there can be no explanation for the failure to object to the unrelated conditions. Respondent, on the other hand, argues that the record sheds no light as to why counsel failed to object to the conditions, and that, in any case, the conditions are justified based on the record.
From the record before us, we cannot determine counsels motivation for failing to object, but cannot say that there could be no satisfactory explanation. The probation report states, and defendant has not denied, that she has had a drinking problem in the past. Given the admittedly erratic conduct leading to this incident, and her history of drinking, the drinking condition cannot be said to be completely unrelated. Similarly, the domestic violence conditions also appear to be related. The victim is defendants estranged husband. Defendant was angry that the victims girlfriend had moved into the house so she broke into and defaced his home. Because the defendant and victim are in the process of getting a divorce, considering the attack under the rubric of domestic violence is not unreasonable. Under these circumstances, and based on the record before us, both the drinking and the domestic violence conditions are reasonably related to the offense. If the conditions are reasonably related, counsel was justified in not objecting because the reasonable assumption that such objections would be overruled is a rational tactical basis for not objecting. (People v. Samayoa (1997) 15 Cal.4th 795, 848.)
To the extent the defendant wishes to rely on evidence outside the record of her current status or the motivation for counsels conduct, her claim is not cognizable on appeal. (See People v. Shoals (1992) 8 Cal.App.4th 475, 501.) Therefore, because we cannot say that counsel had no satisfactory basis for not objecting to either condition, we must reject the ineffective assistance of counsel claim.
Even if defendant had a cognizable ineffective assistance claim on appeal, she would have to show not only that counsels conduct fell below the standard of care, but that she was prejudiced by the conduct. (People v. Anderson (2001) 25 Cal.4th at 543, 569; see Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Pope (1979) 23 Cal.3d 412, 426.) In a situation where she readily admitted the vandalism offense which caused thousands of dollars worth of damage and she received minimal jail time and fines, and where both probation conditions were supported by the evidence, the defendant is unable to show that she would have received a better outcome but for counsels ineffective assistance. Therefore the judgment must be affirmed.
DISPOSITION
The judgment is affirmed.
We concur:
Premo, J.
Elia, J.
1) Are the probation conditions imposed by the trial court reasonably related to the offense to which the defendant pleaded no contest? (People v. Lent (1975) 15 Cal.3d 481.)
2) Does the defendant have an arguable claim on appeal of ineffective assistance of trial counsel?