Error and/or relief:
The trial court did not actually dismiss a prior conviction it had agreed to dismiss under the bargain. The court modified the judgment by dismissing the prior conviction in keeping with the bargain. (It does not appear that the defendant was sentenced to time on the prior; simply the court forgot to dismiss it on sentencing.)
First Holding:
The appellate court reviews the record as it existed at time of the lower court’s ruling.
Authority:
In re Kenneth D. (2024) 16 Cal.5th 1087, 1102 [appellate court reviews record as it existed when lower court ruled]
People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [ineffective assistance must be demonstrated on appellate record]
Second Holding:
A certificate of probable cause is required to challenge on appeal a no contest plea on the grounds of ineffective assistance of counsel.
Authority:
PEN 1237.5
Rules of Court rule 8.304(b)
People v. Stamps (2020) 9 Cal.5th 685, 694-695
People v. Richardson (2007) 156 Cal.App.4th 574, 596 [pre-plea ineffective assistance of counsel]
Third Holding:
A claim of ineffective assistance of counsel requires not only a showing of deficient performance but also prejudice–a reasonable probability, sufficient to undermine confidence in the outcome, that but for counsel’s deficient performance, the result of the proceedings would have been different.
Authority:
Strickland v. Washington (1984) 466 U.S. 668, 687-688
People v. Patterson (2017) 2 Cal.5th 885, 900
Fourth Holding:
Where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, the court will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.
Authority:
People v. Nguyen (2015) 61 Cal.4th 1015, 1051
Fifth Holding:
Senate Bill No. 567 does not apply where defendant stipulated to upper term [this issue may still be pending in the Supreme Court].
Authority:
People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted Dec. 14, 2022, S277314 ]Although Senate Bill No. 567’s amendments to section 1170 apply to this case, defendant cannot benefit from them because he stipulated to the upper term]
People v. Todd (2023) 88 Cal.App.5th 373, review granted April 26, 2023, S279154 [disagreeing with Mitchell]
Sixth Holding:
Where not charged with substituted enhancement, the court has no authority to make findings that change the character of the crime or increase sentence.
Authority:
People v. Haskin (1992) 4 Cal.App.4th 1434, 1440 [because the defendant was not charged with a substituted enhancement, the trial court was without authority to make findings that change the character of the crime or enhancement so as to increase the sentence]
Seventh Holding:
The court must proceed in keeping with Penal Code section 1192.5 and abide by terms of agreement. Because the trial court may not proceed with regard to the plea in a manner other than as specified in the approved plea (§ 1192.5), the trial court’s silence at the sentencing hearing regarding the dismissal of the strike allegation was not an exercise of judicial discretion, but rather a mistake in creating a record of the judgment.
Authority:
PEN 1192.5
In re Candelario (1970) 3 Cal.3d 702, 705
