Category Archives: Effective assistance of counsel

Effective assistance of counsel, Fines and fees, Standard of review

Case: 000341

Posted on by Gary McCurdy

Error and/or relief

The court ordered restitution in the amount of the manufacturer’s suggested retail price rather than the wholesale price of the goods taken from the retailer. The items had been returned to the retailer following the arrest. Rather than attempt to resell the items on its website advertising “like new” items for sale, the retailer simply destroyed them or donated the items. It was error to base the value of the loss at the manufacturer’s suggested retail price. We will vacate the restitution order and remand for a new restitution hearing.

First Holding:

The defendant did not object on the specific ground that the measure should have been the wholesale value, but that it should have been calculated using a diminished value. Nonetheless, even assuming defendant did not properly object to the trial court’s calculation of restitution, reviewing courts may address issues on appeal that present pure questions of law. Because the proper measure of restitution presents a pure question of law, and in light of defendant’s claim of ineffective assistance of counsel, we exercise our discretion to reach the merits.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 889

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [an appellate court has authority to reach a forfeited claim]

Second Holding:

We review a restitution order for abuse of discretion. A victim’s restitution right is to be broadly and liberally construed. When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.

Authority:

In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132

Third Holding:

A restitution order is not intended to provide the victim with a windfall; rather, it is intended to compensate for the victim’s actual loss. Here, there is no evidence in the record of any profits the retailer lost due to defendant’s crimes. As the People concede, giving the retailer restitution based on the retail value of the merchandise rather than the wholesale cost would provide a windfall, because such award would exceed the cost to replace those items.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172, 1178-1180 [holding that hat because prosecutor presented no evidence that the retailer lost any profit due to the defendants’ theft, the court’s restitution order based on the retail price of the merchandise was improper]

Discretion, Effective assistance of counsel, Sentencing

Case: 000307

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence and remand the matter for further proceedings on the firearm enhancements under Penal Code section 1385(c).

First Holding:

The defendant contends the court did not consider dismissing any of his four firearm enhancements under section 1385(c). He acknowledges his counsel didn’t ask the court to dismiss any of the enhancements, and he contends his attorney was constitutionally ineffective in that failure. The Attorney General contends the defendant has forfeited the issue. We exercise our discretion to consider the issue nevertheless, to resolve the defendant’s ineffective assistance of counsel claim. Trial courts have discretion to strike or dismiss firearm enhancements in the interest of justice under section 1385, which states that the court shall dismiss an enhancement if it is in the furtherance of justice to do so.

Authority:

PEN 12022.5(c)

PEN 1385(c)(1)

Second Holding:

Effective January 1, 2022, section 1385(c)(2) states sentencing courts shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. Of the nine mitigating circumstances listed in the statute, the only one that conceivably applies to the defendant is subparagraph (B): that multiple enhancements are alleged in a single case. Subparagraph (B) provides, “In this instance, all enhancements beyond a single enhancement shall be dismissed.”

Authority:

PEN 1385(c)(2)(B)

Third Holding:

The presence of an enumerated mitigating circumstance does not create a presumption in favor of dismissal. Instead, absent a finding that dismissal would endanger public safety, a court must assign significant value to the enumerated mitigating circumstances when they are present. In practice, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1032–1033

Fourth Holding:

However, section 1385(c) does not mean that, whenever a listed mitigating circumstance is present, the trial court must dismiss all enhancements unless it finds dismissal would endanger public safety. Even without a finding that dismissal would endanger public safety, the trial court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the presence of any listed mitigating circumstances. We can’t tell whether the court considered the requirements of section 1385. Remand therefore is necessary.

Authority:

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157

People v. Walker (2024) 16 Cal.5th 1024, 1029

Fifth Holding:

When considering whether to strike a firearm enhancement, a trial court considers the same factors considered when handing down a sentence in the first instance.

Authority:

Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 497

Duty of counsel, Effective assistance of counsel, Pleading, Sentencing, Sixth Amendment

Case: 000280

Posted on by Gary McCurdy

Error and/or relief

As to one of the counts the trial court improperly imposed an upper term sentence. The aggravating facts were found true by the judge rather than by the jury. Thus, we shall vacate the upper term sentence. On remand, the People may elect to retry the aggravating facts; if not, the court may proceed to resentencing.

First Holding:

The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.

Authority:

PEN 1170

Second Holding:

When a trial court imposes an upper term sentence by relying on aggravating facts not proven in compliance with section 1170(b)(2), the sentence must be vacated, and the matter must be remanded for resentencing unless the reviewing court finds that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 744–775

Third Holding:

In this case there was a jury trial, but the aggravating facts were not alleged in the information, they were not found true by the jury, and they were not stipulated to by the defendant. The error was prejudicial under the federal constitutional standard of review. Therefore, we must vacate the upper term sentence as to count six and remand for resentencing.

Authority:

PEN 1170(b)(2)

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Fourth Holding:

The People argue that the defendant forfeited this claim because he did not object to the error during the sentencing hearing. We agree that the defendant has forfeited this claim. However, we will exercise our discretion and not apply the forfeiture rule because it will have the effect of converting an appellate issue into a habeas corpus claim of ineffective assistance of counsel for failure to preserve the question by timely objection.

Authority:

People v. Butler (2003) 31 Cal.4th 1119, 1128

Duty of counsel, Effective assistance of counsel, Evidence, Standard of review

Case: 000279

Posted on by Gary McCurdy

Error and/or relief

We find merit in the defendant’s claim of prejudicially ineffective assistance with respect to the court’s admission of the law enforcement witness testimony, and therefore reverse.

First Holding:

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.

Authority:

EVID 353

People v. Flinner (2020) 10 Cal.5th 686, 726 [a defendant forfeits an argument on appeal where [s]he fails to object at all to the evidence in the trial court or when [s]he objects on substantively distinct grounds]

People v. Wilson (2025) 111 Cal.App.5th 1020, 1030 [defendant forfeited claim of prosecutor misconduct in closing argument, including based on an asserted violation of the Racial Justice Act, by failing to assign misconduct and request a jury admonishment]

Second Holding:

To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Authority:

People v. Rices (2017) 4 Cal.5th 49, 80

Strickland v. Washington (1984) 466 U.S. 668, 694

Third Holding:

In determining whether counsel’s performance was deficient, we exercise deferential scrutiny. The appellant must affirmatively show counsel’s deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. We presume counsel’s performance fell within the wide range of professional competence and that his or her actions and inactions can be explained as a matter of sound trial strategy. When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was no conceivable tactical purpose for counsel’s act or omission.

Authority:

People v. Loza (2012) 207 Cal.App.4th 332, 351

People v. Aguirre (2025) 18 Cal.5th 629, 679

People v. Mickel (2016) 2 Cal.5th 181, 198

Fourth Holding:

An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.

Authority:

People v. Gurule (2002) 28 Cal.4th 557, 609-610

People v. Torres (1995) 33 Cal.App.4th 37, 48 [counsel’s decision not to object is generally a matter of trial tactics]

Fifth Holding:

This is the rare case where there is no satisfactory explanation for counsel’s failure to object to the testimony of the two police officers concerning whether a drug exchange took place and the defendant’s involvement. Opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.

[GARY NOTE: the balance of this issue was very fact-dependent, with the court implicitly finding that there could have been no legitimate tactical reason for the attorney to not object to the testimony.]

Authority:

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77

People v. Torres (1995) 33 Cal.App.4th 37, 47

People v. Brown (1981) 116 Cal.App.3d 820, 827-829

People v. Duong (2020) 10 Cal.5th 36, 61 [trial court properly excluded proposed expert testimony that certain wounds were accidental and essentially that the defendant lacked the required intent, which was tantamount to expressing an opinion as to defendant’s guilt because it proposed to dispose of an essential element of the crime]

Effective assistance of counsel, Immigration

Case 000053

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion under Penal Code section 1473.7 to vacate his 2022 conviction by a no-contest plea. He contends he was unable to defend against and meaningfully understand the adverse immigration consequences of his conviction because of his defense counsel’s prejudicial errors. We conclude the defendant has met his burden of establishing error under section 1473.7. His counsel’s attempts to negotiate an immigration-safe plea were insufficient. Counsel proposed a plea that was unlikely to be accepted by the People, instead of a plea to an alternative, immigration-safe offense that was comparable to the People’s offer. The defendant also established by a preponderance of the evidence that, but for his counsel’s error, he would not have entered a plea. Accordingly, we reverse the denial of his motion and direct the superior court to vacate his conviction.

First Holding:

A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence if the conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of such grounds for relief.

Authority:

PEN 1473.7

Second Holding:

The moving party must also establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or a petitioner must first show that an error occurred—specifically, that he or she was unable to either meaningfully understand, defend against, or knowingly accept the immigration consequences of his conviction.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319

People v. Padron (2025) 109 Cal.App.5th 950, 958

Third Holding:

The focus of this showing is the defendant’s own error. To establish error, a petitioner may, but need not, prove he received ineffective assistance from his counsel.

Authority:

PEN 1473.7(a)(1)

People v. Padron (2025) 109 Cal.App.5th 950, 958-959

Fourth Holding:

Even if the motion is based upon errors by counsel, the moving party need not also establish a Sixth Amendment violation as by demonstrating that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.

Authority:

People v. Benitez-Torres (2025) 112 Cal.App.5th 1252, 1268

Fifth Holding:

The petitioner must demonstrate that the error was prejudicial.

Authority:

PEN 1473.7(a)(1)

People v. Vivar (2021) 11 Cal.5th 510, 528

 

Effective assistance of counsel, Sentencing

Case 000006

Posted on by Gary McCurdy

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