Opinion
H036138
09-14-2011
THE PEOPLE, Plaintiff and Respondent, v. JUAN CORTEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. Nos. SS101505A)
In this appeal, Juan Cortez (appellant) challenges the imposition of certain gang and alcohol related probation conditions, which were imposed by the court after he pleaded no contest to one count of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), one count of being a felon in possession of ammunition (§ 12316, subd. (b)(1)), and one misdemeanor count of inflicting corporal injury on a cohabitant. (§ 273.5)
All undesignated section references are to the Penal Code.
Facts and Proceedings Below
The facts are taken from the preliminary hearing in this case. Further, given the nature of the issues in this case we briefly summarize the facts of the underlying offenses.
On March 10, 2010, Monterey County Sheriff's deputies responded to a call regarding a physical domestic dispute involving a handgun. The complaining witness told Deputy Ted Brown that she was sitting outside her residence in her truck talking on her cell phone when her boyfriend, appellant, came out of the residence. Appellant appeared to be angry. He took the cell phone away from her and asked her with whom she was speaking. As she walked away from appellant she felt an unknown object lightly press against her abdomen and the right side of her neck. Appellant got into his white Honda with Utah license plates and drove away.
Appellant returned about 20 minutes later and was gathering his clothes in his and his girlfriend's room when deputies arrived. Deputy Mendoza searched the white Honda after appellant gave his consent. When the deputy looked in the trunk he saw a backpack in which he located a loaded handgun, 10-12 rounds of ammunition, a blue handkerchief and photograph album. Deputy Brown took a photograph of the trunk area of appellant's car, which showed the photograph album open to a particular page. The photograph that was showing in the album was of appellant throwing "Sureño street gang symbols, hand signals" and holding a weapon.
According to the complaining witness's mother, her daughter told her that appellant hit her in the head with a pistol while they were in their room.
The Monterey County District Attorney charged appellant in an amended information with assault with a firearm (§ 245, subd. (a), count one); possession of a firearm by a felon (§ 12021, subd. (a)(1), count two); carrying a concealed firearm in a vehicle (§ 12025, subd. (a)(1), count three); possession of ammunition by a prohibited person (§ 12316, subd. (b)(1), count four) and misdemeanor infliction of corporal injury on a spouse or cohabitant (§ 273.5, count five). As to count two, the information alleged that appellant had a prior felony conviction for having unlawful sexual intercourse with a minor (§ 261.5, subd. (d)).
Initially, appellant pleaded not guilty to all counts. Thereafter, appellant withdrew his not guilty pleas and, as noted, pleaded no contest to one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), one count of being a felon in possession of ammunition (§ 12316, subd. (b)(1)), and one misdemeanor count of inflicting corporal injury on a cohabitant. (§ 273.5.)
At sentencing, the court placed appellant on probation on certain conditions, including that he is "to totally abstain from the use of alcoholic beverages"; is "not [to] purchase or possess alcoholic beverages"; and is to "[s]tay out of places where alcohol is the main item of sale." Further, appellant is "not to be present in any area [he] know[s], or reasonably should know, or that [he is] told by [his] probation officer to be a gang-gathering area"; "not associate with any individuals [he] know[s], or reasonably should know, to be gang members, drug users or who are on any form of probation or parole supervision"; "not possess, wear, use or display any item [he] know[s], or reasonably should know, or have been told by [his] probation officer to be associated with membership or affiliation in a gang, including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign or paraphernalia, to include the color blue"; and "not obtain any new gang-related tattooing upon [his] person while on probation supervision."
Discussion
Gang Conditions
In his report, the probation officer noted that inside the backpack found in appellant's car were several photo albums containing photographs of appellant "with what appeared to be family o[r] friends. Many of the photographs showed [appellant] with other males posing, while holding large caliber, semi-automatic weapons, and several other types of rifles."
The probation report noted that jail records showed that appellant "previously was housed with Sureno's [sic], but, upon booking, said he has always been a 'Paisa.' " There is no explanation in the probation report of what this term means. We will not hazard a guess as to what this means in the vernacular.
The defendant denied any gang involvement. As to the photograph of him holding a weapon, appellant told the probation officer that it was during a vacation to Mexico in 2004. Appellant said that a friend's uncle was a " 'cop' and that some of the weapons in the photograph were department issued weapons."
Over the objection of defense counsel, the court imposed the gang conditions as outlined ante. Counsel argued that there was no connection between the instant charges and gang activity.
The court imposed the gang conditions reasoning that "not only was the firearm found in defendant's vehicle, there was additional ammunition, there was a photo album with photographs of defendant displaying the weapons with other persons who were displaying weapons. [¶] I do think that, in order to assist the defendant in a successful recovery and completion of probation, these are definitely appropriate."
Appellant asserts that this court should strike the gang conditions because there was no showing that the offense was gang related or that he had ever been involved in gang activity.
Under section 1203.1, a court granting probation may impose "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (§ 1203.1, subd. (j).) "The primary goal of probation is to ensure '[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.' [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).)"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.]" (Id. at pp. 1120-1121.)
"The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute." (Carbajal, supra, 10 Cal.4th at p. 1121.) As interpreted by the Supreme Court, section 1203.1 requires "probation conditions [that] regulate conduct 'not itself criminal' be 'reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation]" (Ibid.)As a result, "[g]enerally, '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . ." [Citation.]' [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)Thus, "even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]" (Id. at p. 380.)
However, "[p]robation conditions restricting a probationer's exercise of his constitutional rights are upheld only if narrowly drawn to serve the important interests of public safety and rehabilitation, and if they are 'specifically tailored to the individual probationer.' [Citation.]" (People v. Smith (2007) 152 Cal.App.4th 1245, 1250.) In this case, this additional requirement applies because the condition prohibiting association with known gang members impinges on defendant's constitutional right of freedom of association. (U.S. Const., 1st Amend.; Cal. Const., art. I, § 1; People v. Lopez (1998) 66 Cal.App.4th 615, 627-628 (Lopez); cf. People v. Garcia (1993) 19 Cal.App.4th 97, 102 [condition prohibiting association with drug users and dealers].)
"We review conditions of probation for abuse of discretion. [Citations.]" (Olguin, supra, 45 Cal.4th at p. 379.) "As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ' " 'exceeds the bounds of reason, all of the circumstances being considered.' " [Citations.]' [Citation.]" (Carbajal, supra, 10 Cal.4th at p. 1121.)
In In re Laylah K. (1991) 229 Cal.App.3d 1496 (Laylah K.) (disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 983, fn. 13), the court upheld a probation condition barring the minor from associating with gang members. In Laylah K., two minors, and others, assaulted a woman. During the assault they asked her why she was wearing red clothing. The probation report noted that the comment had gang overtones and that the minors' aunt had said they associated with gang members. One of the minors admitted that he had friends who were gang members and that a gang member was with them when they committed the assault. In imposing the condition, the trial court agreed with the probation officer's conclusion that the minors' assault was an apparent effort to defend against a challenge to the gang territory. Additionally, the court was concerned that both minors were runaways beyond parental control. (Id. at pp. 1500-1501.) In upholding the condition, the appellate court found that the trial court reasonably could have found that the minors were in danger of succumbing to gang pressures and falling under their influence. "Association with gang members is the first step to involvement in gang activity." (Id. at p. 1501.) Accordingly, the court found that the condition was reasonably related to preventing future unlawful conduct. (Ibid.)
Hence, appellate courts, including this one, have routinely upheld probation conditions barring association with gang members where there is some evidence in the record connecting the probationer with a gang, gang members, or gang activity. (E.g., In re Shaun R. (2010) 188 Cal.App.4th 1129, 1136 [minor admitted gang affiliation; when arrested was wearing gang clothing, had gang references on his cell phone, and had two tattoos ]; People v. Leon (2010) 181 Cal.App.4th 943, 947 [defendant admitted a gang enhancement allegation under § 186.22, subd. (b)(1) (a)]; Lopez, supra, 66 Cal.App.4th at p. 622 [defendant was a self admitted gang member with a tattoo of XIV on his left thumb and XIV on his stomach.]; In re Michael D. (1989) 214 Cal.App.3d 1610, 1616, [minor was a self-confessed member of Middleside gang in Santa Ana]; In re Vincent G. (2008) 162 Cal.App.4th 238, 242 [minor wore gang colors and gang paraphernalia including a belt buckle with the letter N]; cf. People v. Peck (1996) 52 Cal.App.4th 351, 362-363 [prohibiting association with drug users where defendant used drugs ]; In re Peeler (1968) 266 Cal.App.2d 483, 492-493 [same].)
Here, there is absolutely no evidence that appellant's offenses were gang related; nothing that shows that the gun and ammunition he possessed had anything to do with a gang or a gang life-style. Nevertheless, respondent argues that appellant's possession of the blue bandanna alongside the fully loaded gun, his photos showing him with other males dressed in blue holding rifles and making gang hand signals and his past criminal record and repeated disregard for the law warranted a conclusion by the trial court that the gang probation conditions were warranted.
First, we point out that respondent is distorting the record. The evidence was that there was one photograph of appellant along with others (there is no evidence they were all male) throwing Sureño hand gang symbols and holding weapons. There was no mention that the people in the photograph were dressed in blue. That being said, the photograph does show that appellant has at least a passing fascination with gangs and gang culture. Moreover, we have to question how appellant would know what Sureño hand gang symbols are unless he has some association with gangs or gang members.
In Lopez, supra, 66 Cal.App.4th 615, the fact that there was "insufficient [evidence] to show that [Lopez's] crime was in some manner gang related" did not prevent the court from upholding a gang restriction condition. (Id. at p. 626.) In upholding the restriction, the court considered that despite being in his early 20's, Lopez's "consistent and increasing pattern of criminal behavior warranted [the] conclusion by the trial court that [his] disassociation from gang-connected activities was an essential element of any probationary effort at rehabilitation . . . ." (Ibid.)
We find appellant's case to be similar to Lopez. Reminiscent of Lopez, appellant is young-approximately 28 years of age at the time of sentencing, has shown an increasing pattern of criminal behavior as indicated in the probation officer's report, and has been shown to have at least a passing association with criminal street gang members or a fascination with the gang lifestyle as evidenced by the photograph of him holding a weapon and throwing gang signs. Consequently, we conclude that the gang conditions are narrowly drawn and related to appellant's successful rehabilitation and have a logical nexus to preventing future criminality. Where, as here, there is an indication of present or past gang association or affiliation, gang conditions bear a reasonable relationship to future criminality. (See Lopez, supra, 66 Cal.App.4th at pp. 624-626 [although first adult felony was not gang related, probation report disclosed that Lopez admitted membership in the Norteño gang]; see also In re Martinez (1978) 86 Cal.App.3d 577, 581 [past behavior may justify a condition aimed at deterring future criminality].) The imposition of the gang conditions is not beyond the bounds of reason in this case.
Appellant's criminal record dates back to 2002 and includes numerous Vehicle Code violations committed on separate occasions, two misdemeanor violations of section 272, subdivision (a)(1) [contributing to the delinquency of a minor], and a felony violation of section 261.5, subdivision (d) [unlawful sexual intercourse] as well as his current violations of sections 12021, subdivision (a)(1) [felon in possession of a firearm] and 12316, subdivision (b)(1) [felon in possession of ammunition].
In a second challenge to the gang conditions, appellant argues that they are vague and overbroad because they lack an actual knowledge requirement. Specifically, appellant challenges the language "or reasonably should know," which is present in all the gang conditions.
Relying on two cases from this court—People v. Leon, supra, 181 Cal.App.4th 943 (Leon) and People v. Gabriel (2010) 189 Cal.App.4th 1070—appellant argues that the inclusion of the phrase "or reasonably should know" raises vagueness and overbreadth problems.
In Leon, this court stated: " 'In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.]' [Citation.]" (Leon, supra, 181 Cal.App.4th at p. 948.) "But the Supreme Court has recognized that '[a] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]' [Citation.] Also, '[a] probation condition "must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated," if it is to withstand a challenge on the ground of vagueness. [Citation.]' [Citation.]" (Id. at pp. 948-949.) "Given 'the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights,' the knowledge requirement in probation conditions 'should not be left to implication.' [Citation.]" (Id. at p. 950.) Accordingly, this court modified a probation condition, which had read " 'No association with gang members' " to read " 'You are not to associate with any person you know to be or the probation officer informs you is a member of a criminal street gang.' " (Id. at pp. 949-950.)
Other gang related conditions were modified to include a knowledge element. (Leon, supra, at p. 951-952.)
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. [Citations.]' " (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) "The vagueness doctrine ' "bars enforcement of 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' " [Citations.]' " (Ibid.)
In Sheena K., our Supreme Court invalidated a condition of probation "forbidding [the probationer's] association with 'anyone disapproved of by probation'. . . ." (Sheena K., supra, 40 Cal.4th at p. 889.) The court held that "in the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague. . . . [T]he probation condition did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer." (Id. at pp. 891-892, italics added, fn. omitted.)
Sheena K. and Leon invalidated probation conditions based on the absence of, respectively, "an express requirement of knowledge" (Sheena K., supra, 40 Cal.4th at p. 891) and "an explicit knowledge requirement" (Leon, supra, 181 Cal.App.4th at p. 951). Despite this sweeping language, however, we are not persuaded that either case stands for the proposition that, as appellant suggests, a probation condition, in order to pass constitutional muster, requires "actual knowledge" regarding the conduct that is prohibited. In neither Sheena K. nor Leon was the challenged condition one similar to those at issue in this case, which can be violated where the probationer engages in some conduct he or she "reasonably should know," rather than actually knows to be prohibited. "Cases are not authority for propositions they do not consider." (People v. Martinez (2000) 22 Cal.4th 106, 118.)
Certainly, the gang conditions here do contain an express knowledge requirement. The question is whether the phrase "or reasonably should know" is akin to the word "suspect" that this court found wanting in People v. Gabriel, supra, 189 Cal.App.4th 1070 (Gabriel).
In Gabriel, this court held that the word "suspect" in a probation condition lacked sufficient specificity and thus failed to provide the defendant with adequate notice of what was expected of him when he lacked actual knowledge. (Id. at p. 1073.) Specifically, this court pointed out, "To 'suspect' is 'to imagine (one) to be guilty or culpable on slight evidence or without proof' or 'to imagine to exist or be true, likely, or probable.' (Merriam-Webster's Collegiate Dict. (10th ed.1999) p. 1187 (Webster's ).) To 'imagine' is 'to form a notion of without sufficient basis.' (Webster's, at p. 578.)" (Ibid.) Thus, we concluded, "Given this lack of specificity, the word 'suspect' fails to provide defendant with adequate notice of what is expected of him when he lacks actual knowledge that a person is a gang member, drug user, or on probation or parole. Moreover, inclusion of this word renders the condition insufficiently precise for a court to determine whether a violation has occurred." (Ibid.)Thus, to have a "suspicion" is "[t]he act of suspecting something . . . on little evidence or without proof." (American Heritage Dict. (3d College ed.1997) p. 1368.) In contrast, "reasonably should know" requires an objective standard—something with a minimal level of objective justification.
In People v. Turner (2007) 155 Cal.App.4th 1432 (Turner ), the court, relying on Sheena K., held unconstitutionally vague a probation condition that directed the defendant to " '[n]ot associate with persons under the age of 18 unless accompanied by an unrelated responsible adult . . . .' " (Turner, supra, at p. 1435.) The court stated: "A person may reasonably not know whether he or she is associating with someone under the age of 18. Fair notice, as described in Sheena K., is not possible unless the probation condition is modified to require that defendant must either know or reasonably should know that persons are under 18 before he is prohibited from associating with them." (Id. at p. 1436, italics added.) The court modified the condition accordingly. (Ibid.)
In the context of penal statutes our Supreme Court has explained that constructive, as opposed to actual knowledge does not offend the Fourteenth Amendment to the United States Constitution. Moreover, the court has determined that culpability based on the "reasonably should know" constructive knowledge standard is not vague or overbroad. (People v. Rodriguez (1986) 42 Cal.3d 730, 780-783; People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691; accord People v. Mathews (1994) 25 Cal.App.4th 89, 98.) Accordingly, we reject appellant's challenge to the gang conditions on the ground that the phrase "or reasonably should know" is vague or overbroad.
Further, in In re Jorge M., (2000) 23 Cal.4th 866, the Supreme Court determined that proving a violation of the Assault Weapons Control Act requires a showing "that a defendant charged with possessing an unregistered assault weapon knew or reasonably should have known the characteristics of the weapon bringing it within the registration requirements of the AWCA." (Id. at pp. 869-870.) The court rejected a suggestion that such an interpretation was unconstitutional. The Supreme Court stated, "That a criminal statute contains one or more ambiguities requiring interpretation does not make the statute unconstitutionally vague on its face [citation], nor does it imply the statute cannot, in general, be fairly applied without proving knowledge of its terms." (Id. at p. 886.) Acknowledging that its " 'reasonably should have known' formulation departs somewhat from the usual description of criminal negligence" (id. at p. 887, fn. 11), the court asserted that its formulation of the scienter element "is sufficient to protect against any significant possibility of punishing innocent possession." (Id. at p. 886.)
Next, appellant challenges the gang condition ordering him not to wear any gang clothing or display any gang paraphernalia "to include the color blue." He asserts that this condition is either impermissibly vague or overbroad "depending on how the condition scans grammatically."
In full, the court ordered the following: "Do not possess, wear, use or display any item you know, or reasonably should know, or have been told by your probation officer to be associated with membership or affiliation in a gang, including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign or paraphernalia, to include the color blue."
Appellant argues that the phrase "to include the color blue" is vague as to whether it means that he is prohibited from wearing "all blue items" or only those blue items "associated with membership or affiliation in a gang."
Respondent counters that the probation condition as ordered "clearly refers to any item associated with membership or affiliation in a gang, 'including but not limited' to any article of clothing [and other items specified] with the color blue. In sum, appellant is not only prohibited from possessing, wearing or using any items that he knows or reasonably should know are gang affiliated, but specifically those items listed that are blue, the Sureno gang color."
Frankly, we believe that the addition of the phrase "to include the color blue" is superfluous to this gang condition. For a Sureño, gang clothing is simply any clothing that is blue. (See People v. Valdez (1997) 58 Cal.App.4th 494, 499, fn. 2 [expert testified that Hispanic gangs fall into Norteño and Sureño categories, that Norteño gangs identify with the color red, and that Sureño gangs identify with the color blue].) However, the addition of the phrase "to include the color blue" does not make the condition vague.
Appellant asserts that prohibiting him "from wearing all blue clothing and accessories is overbroad because it encompasses too much legitimate expression . . . too many wearable items that have nothing to do with gangs but which otherwise involve protected speech." Appellant argues that a prohibition condition that prohibits him from wearing all blue clothing significantly limits how he may express his political beliefs and his support for his favorite sports team. That may be so; however, we remind appellant that "[i]nherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' [Citations.] Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." (U.S. v. Knights (2001) 534 U.S. 112, 119 .)
As noted, blue clothing identifies the wearer as a possible member of the Sureños and is a magnet for both friendly and unfriendly gang members' attention. Although the condition does impose a limitation on appellant's constitutional right to freedom of speech/expression, it is closely tailored to the purpose of the condition. That is, to prevent appellant, who has at a minimum a fascination for the gang life-style, from associating with Sureño gang members or finding himself being confronted by Norteño gang members and the ensuing mayhem that that can cause. Thus, the condition is carefully tailored to foster appellant's rehabilitation and to protect public safety. Thus, it is not overbroad. (See Sheena K., supra, 40 Cal.4th at p. 890, [a probation condition that imposes limitations on a person's constitutional rights will not be held to be unconstitutionally overbroad if the condition is closely tailored to the purpose of the condition].)
In conclusion, we reject both appellant's vague and overbroad challenges to the inclusion of the phrase "to include the color blue" as used in the gang condition ordering him not to wear any gang clothing or display any gang paraphernalia.
Alcohol Conditions
Finally, appellant claims that the trial court erred in imposing various probation conditions related to alcohol, including that he abstain from drinking alcohol, that he not be in places where alcohol is the main item for sale, and that he not use or possess alcohol. Appellant did not object to the alcohol related conditions when they were imposed. Accordingly, appellant has forfeited this particular issue. (People v. Welch (1993) 5 Cal.4th 228, 234-235 (Welch).)
In Welch, supra, 5 Cal.4th 228, the defendant, who was convicted of welfare fraud, challenged eight probation conditions, claiming that they were overly broad and unreasonable. (Id. at p. 232.) These objections were not raised by her trial counsel. (Ibid.) The Supreme Court held that the challenges to the probation conditions were forfeited. It explained: "[The] failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal. [Citations.] No different rule should generally apply to probation conditions under consideration at the same time. A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. The parties must, of course, be given a reasonable opportunity to present any relevant argument and evidence. A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis. [Citations.]" (Id. at pp. 234-235, fn. omitted.)
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Alternatively, appellant asserts that if the issue has been forfeited counsel provided ineffective assistance by failing to object.
A criminal defendant has the right to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) A claim of ineffective assistance of counsel requires a two part showing—first, performance that was deficient and second, prejudice resulting from such deficient performance. (People v. Weaver (2001) 26 Cal.4th 876, 961.) The first element "requires a showing that 'counsel's representation fell below an objective standard of reasonableness.' [Citations.]" (In re Marquez (1992) 1 Cal.4th 584, 602-603, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.) " 'In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny . . .' and must 'view and assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.' [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) The prejudice element requires a showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to defendant, that is a probability sufficient to undermine confidence in the outcome. (In re Ross (1995) 10 Cal.4th 184, 201.)
" 'The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 656.) An ineffective assistance claim will be rejected unless there is a showing that there was no rational explanation for defense counsel's act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442; People v. Mitcham (1992) 1 Cal.4th 1027, 1058.) Thus, " '[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected. [Citations.]" (People v. Wilson (1992) 3 Cal.4th 926, 936.)
"Preliminarily, we note that rarely will an appellate record establish ineffective assistance of counsel. [Citation.]" (People v. Thompson (2010) 49 Cal.4th 79, 122.) Therefore, such ineffective assistance contentions are generally decided in habeas corpus proceedings. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
In this instance, the record offers no explanation concerning the reasons appellant's trial counsel failed to object to the alcohol conditions. Given the fact that appellant rarely consumes alcohol, he may well have instructed his attorney not to object believing that the conditions would not be onerous. (Cf. In re Luis F. (2009) 177 Cal.App.4th 176, 182-183 [counsel's failure to object to probation condition requiring minor to continue to take prescribed medications—where record did not show reason for counsel's action and minor may have instructed counsel not to object—did not constitute ineffective assistance of counsel].)
Accordingly, we reject appellant's assertion, based upon ineffective assistance of counsel, that we should consider his forfeited challenge to the alcohol related probation conditions. Appellant has not established that there was ineffective assistance of counsel in connection with his trial counsel's failure to object.
Disposition
The judgment is affirmed.
ELIA, J. WE CONCUR: RUSHING, P. J. PREMO, J.