Effective Assistance, Legal Issues
Category > Effective Assistance, Legal Issues
Ineffective assistance of counsel claim can be included in a motion for new trial. The trial court erred by finding it lacked the authority to rule on a claim of ineffective assistance of counsel as part of a new trial motion. While ineffective assistance is not one of the nine grounds listed in Penal Code section 1181, the courts have found that for purposes of judicial economy it makes sense to rule on the issue as part of the motion. However, defendant’s claim that trial counsel erred by failing to call a certain witness was not accompanied by a declaration from counsel as to his reasoning, and so, there was no evidence to support the claim.id: 25429
Defendant was deprived of competent counsel at his preliminary hearing where counsel had been suspended by the bar, but relief was unavailable where he waited until after his conviction to raise the issue.Defendant was deprived of the right to competent counsel at his preliminary hearing and arraignment where counsel was on a suspended status for not paying bar dues and for acts and omissions related to his law practice. Had he pursued relief in a timely manner he could have had the information set aside. However, relief was no longer available to him after he was tried and convicted in a trial that was unrelated to the defect.id: 24022
The trial court erred by refusing to conduct a Marsden hearing at defendant’s SVP trial.Defendant in an SVP trial has a constitutional right to the effective assistance of counsel, and as part of that right, to a Marsden hearing. The trial court erred by refusing to conduct a hearing, and reversal for a postrial Marsden hearing was required under the Chapman standard since the right to the effective assistance of counsel in the civil proceeding is protected by federal due process principles.id: 23333
The trial court used the wrong test for prejudice in denying defendant’s motion to withdraw his guilty plea due to the lack of advice as required by section 1016.5.The trial court erred by denying defendant’s motion to withdraw the guilty plea due to the lack of an advisement of immigration consequences as required by Penal Code section 1016.5 because it found there was no reasonable probability he would have obtained a better result by rejecting the plea bargain. That was not the correct test to establish prejudice and relief is available if the defendant establishes he or she would have rejected the deal to accept or attempt to negotiate another if properly advised.id: 23297
A claim of ineffective assistance of counsel in connection with the making of the waiver agreement cannot be barred by the agreement that is the product of the alleged
ineffectiveness.Defendant entered a no contest plea. As part of the plea bargain, he
agreed to what was characterized as an all-encompassing waiver of appellate rights, including
any challenges based on the ineffective assistance of counsel. While the form referred to
“appellate rights”, it included waiver of the right to bring a motion to withdraw the plea. At
sentencing, he moved to retain counsel and sought to withdraw the plea due to the ineffective
assistance of counsel. It was determined that he had waived the right to due so. However, a
defendant cannot be found to have waived his presentence right in the trial court to challenge the
effectiveness of counsel when the claimed ineffectiveness relates to the advice he received at the
time he entered the plea containing that purported waiver.id: 21328
The gag order barring defense counsel from discussing with defendant the contents of the accomplice’s declaration violated defendant’s right to the effective assistance of counsel.The trial court issued a gag order which prevented defense counsel from discussing with defendant the contents of a declaration by an accomplice who would testify against defendant at trial. However, the order unjustifiably infringed on defendant’s constitutional right to the effective assistance of counsel and defendant was entitled to a reversal of the attempted murder conviction without a showing of prejudice. The court also found the requirement in the agreement that the witness tell the truth was not coercive and that defendant was not entitled to see earlier unsigned versions of the witness’s declaration. id: 21097
The minor received ineffective counsel where his deputy public defender had an unworkable caseload and the office may have lacked funds for other services, resulting in counsel’s failure to investigate potentially exculpatory evidence and an insufficient continuance request based on mistake of law.The minor received ineffective assistance of counsel at his jurisdictional hearing where counsel failed to investigate potentially exculpatory evidence, sought an inadequate continuance based on a mistake of law, and failed to move for substitute counsel knowing he lacked the time and resources needed to properly defend the minor. Counsel was a deputy public defender who noted in a declaration that he had an unworkable caseload and that there were inadequate funds in his office to fund his defense. The trial court erred in denying the minor’s motion for a new jurisdictional hearing.id: 20923
Supreme Court rejects per se duty for counsel to consult with defendant about filing an appeal.The Ninth Circuit's decision in this case, <i>Ortega v. Roe</i>, 160 F.3d 534 (9th Cir. 1998), held that a habeas petitioner need only show that his counsel's failure to file a notice of appeal was without the petitioner's consent. The Supreme court reversed that decision in an opinion written by Justice O'Connor, ruling that "[we cannot say, as a constitutional matter, that in every case counsel's failure to consult with a defendant about an appeal is necessarily unreasonable, and therefore deficient." "We instead hold that counsel has a constitutionally-imposed duty to consult with a defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonable demonstrated to counsel that he was interested in appealing." To show prejudice, defendant need only show that "counsel's constitutionally deficient performance deprived] a defendant of an appeal that he otherwise would have taken." Justice Breyer concurred separately. Justice Souter, joined by Justices Stevens and Ginsburg concurred and dissented, arguing that the lawyer here was obliged to consult with her client and her failure was objectively unreasonable.id: 15064
Superior court erred by attempting to compel a declaration from an attorney (after his competence had been challenged) without first issuing the writ of habeas corpus.When a defendant seeks to invalidate his conviction by claiming that his trial attorney failed to preserve an allegedly crucial objection, the superior court does not have the power to order the trial attorney to explain his action, or inaction, either in person or by declaration, before the issuance of the writ of habeas corpus.id: 15881
Updated 3/6/2024Failing to contest certain charges and referring to defendant as a “bad guy” during closing argument did not establish a McCoy violation absent evidence that defendant’s objective was to maintain his innocence as to all counts.Defendant argued that trial counsel committed error under McCoy v. Louisiana (2018) 138 S. Ct. 1500, by commenting during closing argument that defendant was a bad guy, and by failing to contest every charge when addressing the jury. However, there was no error as the record did not reflect a directive to counsel that defendant’s objective was to maintain his innocence on all charges.id: 26561
Updated 3/6/2024The trial court did not err in granting the state bar’s motion to quash defendant’s subpoena for his trial counsel’s performance in other cases.Defendant’s retained trial counsel resigned from the state bar with charges pending after his capital trial. He subpoenaed counsel’s bar records in an effort to see whether counsel had performed deficiently for other clients during this time period. The trial court did not err by granting the state bar’s motion to quash on the grounds the documents were privileged.id: 26646
Updated 3/6/2024Retained counsel’s inexperience did not establish deficient performance in the capital case and her brief absences for state bar interviews did not show an unfair trial.Defendant was convicted of capital murder and sentenced to death. He moved for new trial arguing that his retained counsel, who was young and inexperienced, prepared no real defense. However, counsel’s failure to present a brain damage defense did not establish a deficient performance where there were legitimate reasons for not pursuing such a defense. Moreover, even though counsel was absent at times due to her meetings with state bar investigators, she was present for most of the trial, and co-counsel was present when lead counsel was absent.id: 26647
Updated 3/4/2024There was no McCoy violation where defendant gave trial counsel different explanations as to what happened, and there was no evidence on the record to show he ever wanted to proclaim his innocence.Defendant argued that trial counsel’s decision to concede that defendant was guilty of voluntary manslaughter violated his constitutional right to choose his defense under McCoy v. Louisiana (2018) 138 S.Ct. 1500. He claimed that he wanted counsel to argue factual innocence. However, unlike the situation in McCoy, there was no evidence in the record showing that defendant wanted to proclaim his innocence before or during trial. In fact, he gave trial counsel multiple explanations about what happened on the night of the crime.id: 26853
Updated 3/4/2024There was no McCoy violation where defendant did not object to counsel’s concession before the closing argument.Defendant argued that he was entitled to relief under McCoy v. Louisiana (2018) 138 S. Ct. 1500, because it was clear from the record that he wanted to assert his innocence at trial but counsel conceded guilt to a lesser murder. However, defendant asserted his innocence during and not before counsel’s closing argument and so it could not be said that counsel made the concession over defendant’s objection. Defendant was entitled to the retroactive application of McCoy where he had raised the issue in his earlier direct appeal.id: 26858
Updated 2/26/2024There was no McCoy violation where counsel conceded guilt on two counts and there was no showing that defendant disagreed with the strategy. Defendant was convicted of several offenses following a high-speed police chase. He argued a McCoy v. Louisiana (2018) 138 S.Ct. 1500 violation after defense counsel conceded two counts during closing argument. However, there was no stipulation of guilt and the prosecution still had the burden of proving the counts. Moreover, there is nothing in the record showing defendant disagreed with the strategy.id: 26363
Updated 2/22/2024There was no McCoy violation where defendant did not disagree on the record with counsel’s decision to concede certain counts during argument.Defendant argued that trial counsel violated his right of self-determination under McCoy v. Louisiana (2018) 138 S. Ct. 1500, when she conceded some of the charged offenses during closing argument. However, there was no evidence in the record showing that defendant disagreed with her strategy, and his trial testimony suggested that he supported the decision.id: 27052
On remand, after an IAC finding, the trial court was not required to replace the original lawyer unless the defendant asked.Defendant failed to appear for most of his burglary/drug possession trial and he was convicted. Defense counsel filed a motion for new trial but then erroneously conceded that the motion was untimely. The court of appeal found counsel rendered ineffective assistance by conceding. On remand, the trial court held a new hearing on the motion for new trial, and defendant’s trial counsel again appeared on his behalf. While counsel’s previous ineffective assistance afforded sufficient grounds to relieve him and appoint new counsel on remand, the trial court was not required to do so unless and until defendant asked it to.id: 25465
Vehicle Code section 41403 does not permit a defendant to move to strike a prior conviction in a drunk driving case based on the ineffective assistance of counsel.In Garcia v. Superior Court (1997) 14 Cal.4th 953, the court found that a defendant could not move to strike a prior conviction alleged as an enhancement, on the basis of ineffective assistance of counsel in the prior case. Contrary to defendant’s claim, Vehicle Code section 41403, which provides procedural rules for authorized challenges, does not allow a different result.id: 25207
Defendant was not denied the effective assistance of his defense investigator where the investigator was distracted by his own criminal charges while preparing for trial. Defendant argued he was denied the effective assistance of a defense investigator who was arrested shortly after the death verdict. He claimed the investigator was distracted by his own problems and failed to interview (or locate) two potential witnesses because of his problems. However, a newly appointed investigator without known problems couldn’t locate the witnesses either. And the investigator’s failure to deny pressuring a witness not to testify, the record did not show the investigator to be a liar or suppression of evidence. id: 24244
Supreme Court holds waiving final argument in death penalty case was not ineffective assistance.Defense counsel called the jury's attention to the mitigating evidence during opening statements at the death penalty hearing, and then cross-examined prosecution witnesses but called no witnesses himself. The junior prosecutor then gave a low-key closing argument, and defense counsel waived final argument, in order the prevent the lead prosecutor, by all accounts an extremely effective advocate, from arguing in rebuttal. The jury imposed the death penalty, but on habeas review, the Sixth Circuit found defense counsel was ineffective in failing to subject the state's death penalty call to "meaningful adversarial testing." The Supreme Court granted certiorari, and in an 8-1 opinion written by Justice Rehnquist, held that the state court's decision affirming the death sentence was neither "contrary to" not involved "an unreasonable application of clearly established federal law" under 28 U.S.C. id: 20139
Delay in payments to counsel during capital case did not result in ineffective assistance. Trial counsel were not paid for their services for up to two months during the capital trial due to finding shortfalls in the county’s budget. While the delay was likely stressful for counsel there was no showing that it led to ineffective assistance.id: 23588
There was no Sixth Amendment violation where the jail personnel improperly read defendant’s confidential legal materials but did not convey any information to the prosecutor.The Sacramento County Sheriff’s Department improperly intruded into and read privileged and confidential defense strategy documents in the jail. However, there was no Sixth Amendment violation where there was no evidence that the confidential information was actually conveyed to the prosecution team.id: 21311
The trial court did not err at the penalty phase retrial in precluding evidence that a former trial counsel rendered ineffective assistance. At defendant’s penalty phase retrial, his trial counsel from the original trial testified that defendant punched him in the head during a jail visit. The defense sought to introduce evidence that counsel had rendered ineffective assistance that would show why he was frustrated. However, the determination of whether a trial lawyer renders ineffective assistance is a legal issue and not a factual one to be presented to a jury. The trial court did not err in refusing to permit the testimony.id: 20857
The trial court lacked jurisdiction to address a claim of ineffective assistance of counsel in the context of a section 1016.5 motion regarding lack of advice as to immigration consequences.Penal Code section 1016.5 allows a court to vacate a conviction only if the trial court has failed to advise the defendant of potential adverse immigration consequences at the time of the plea. The statutory motion cannot be used to assert defense counsel's failure to provide effective representation relating to immigration consequences.id: 20081
There was no attorney-client privilege violation where the prosecutor called the defense criminalist to testify at the Kelly hearing where the expert was the only percipient witness to the tests done by the police criminalist and he was only asked about his initialing the lab results.A police criminalist scraped a dried stain from a knife defendant was carrying. The amount of material taken from the knife was only sufficient to perform one blood typing test. The defense was informed and a defense expert observed the testing of the material. The prosecutor called the defense expert at the Kelly hearing (challenging the testing procedure). The defense argued the court erred in denying the defense request to exclude all evidence of the defense expert's participation in the dried stain testing and the ruling violated the attorney-client privilege and right to the effective assistance of counsel. However, the defense expert was the only percipient witness to the tests and the defense challenged the police criminalist's procedures and results. The prosecutor did not question the defense expert on reports he prepared for the defense but rather his act of initialing the lab notes of the police criminalist. There was no statutory or constitutional violation in questioning the defense expert on that topic.id: 17093
There is no federal constitutional right to the effective assistance of a mental health expert.Defendant argued he was deprived of the effective assistance of a psychologist at trial in violation of his federal constitutional right to due process of law. He claimed the defense expert witnesses who testified regarding his mental condition were incompetent in their psychological testing and in the presentation of their testimony, and as a result of their incompetence he was denied the opportunity to present the defense of lack of intent to kill. However, there is no federal constitutional right to the effective assistance of a mental health expert. That defendant's chosen experts did not, in his opinion, provide sufficiently persuasive testimony, did not establish a violation of a federal constitutional safeguard.id: 12285
The prosecution was not barred from using evidence from a previous trial at which defendant received ineffective assistance of counsel.Defendant's capital conviction was reversed due to the ineffective assistance of counsel. He argued the prosecutor at the retrial should have been barred from using the testimony from the first trial to impeach witnesses. However, the use of the prior testimony that may have been a product of counsel's ineffective assistance, did not deny defendant a fair trial where he had a full opportunity to rehabilitate the witnesses.id: 19213
The court did not err in ruling the new trial motion alleging IAC filed immediately after the guilt verdicts should be litigated during the habeas corpus proceedings.After the guilt phase verdicts, defendant moved for a new trial alleging the ineffective assistance of counsel. The court sought to determine whether defendant was seeking replacement counsel, pro per status, or substitute counsel to file the new trial motion. The court ultimately ruled that the claim should be litigated later during habeas corpus proceedings. The trial court did not err in refusing to decide the merits of the claim.id: 18732
A trial court's decision to grant a new trial based upon the ineffective assistance of counsel is reviewed for an abuse of discretion.After the jury convicted defendant of murder, the trial court granted the motion for a new trial based on the ineffective assistance of counsel. Following the granting of such a motion, the appellate court may not conduct a de novo review, but must affirm the determination unless it constituted an abuse of discretion. The trial court did not abuse its discretion in granting the new trial motion in the present case where defense counsel failed to call defendant to the stand and that prevented her from telling the jury why she acted as she did.id: 18202
A habeas corpus petitioner may not raise a claim of error absent an objection regarding the issue in the trial court.In his petition for writ of habeas corpus challenging his capital murder conviction, defendant raised several issues that could not have been raised on direct appeal because of the defendant's failure to raise them in the trial court by way of a pretrial motion. However, the Supreme Court ruled the failure also precluded consideration of the issues in a postconviction habeas proceeding, unless the claim depends substantially on facts the petitioner did not know, and could not have reasonably known, at the time of trial. In situations where petitioner's rights are violated at trial and counsel does not object, petitioner's recourse is to assert in the petition a claim of ineffective assistance of counsel.id: 18066
The refusal to appoint new counsel to present penalty phase argument after waiver of argument by current counsel was not erroneous if it is determined current counsel honored defendant's wishes and were not ineffective in waiving penalty phase argument.Defendant argued reversal of the death sentence was required where the court accepted defense counsel's waiver of penalty phase argument to the jury on his behalf after no mitigating evidence was presented. Specifically, he claimed the court was duty-bound to appoint new counsel for that single purpose once defendant responded affirmatively to the court's inquiry whether he would accept the proposed substitution of counsel. Initially, the issue of whether defense counsel rendered ineffective assistance of counsel in waiving penalty phase argument (possibly in accordance with defendant's wishes) will be resolved in a fully developed factual record in a habeas corpus proceeding. If it is determined that counsel were not ineffective in honoring their client's wishes, there would be no error by the trial court in deferring to counsel's judgment and determining not to substitute new counsel in the eleventh hour of trial.id: 17269
Counsel did not err in failing to present new evidence post-trial where the witness said he was lying, and only corrected that statement after counsel said they would not present perjured testimony.After trial, defense counsel informed the court a witness provided new information that might exonerate defendant. The witness originally said the information he could present was a lie, but he later said it was the truth. Defense counsel did not know whether it was true or not but informed the court they were not comfortable presenting the information. While attorneys may not present false testimony, they may present evidence they suspect is false. Defendant argued trial counsel was ineffective in failing to present the evidence since there was no ethical problem regarding knowledge of the falsity of the evidence. However, the record shows counsel acted properly since the witness changed his story only after counsel informed him they would not present perjured testimony.id: 15878
Defendant did not receive ineffective assistance of counsel where, during trial, counsel's license to practice law was suspended for unrelated reasons.During trial, defense counsel was suspended from the practice of law based upon an incident in another criminal matter. The Supreme Court granted the parties' request to stay the suspension order making it effective 90 days after the finality of the opinion. Defendant did not receive ineffective assistance simply because counsel was ordered suspended from the practice of law for unrelated reasons. Moreover, there was no conflict of interest in that defense counsel sought to ingratiate himself with the prosecutor to assist in postponing the suspension until after the trial. There was no indication counsel sought or contemplated the prosecutor's intervention on his behalf.id: 15879
Filing of a habeas petition alleging IAC entitles the prosecution to access to the confidential funding requests made pursuant to section 987.9.The filing of a writ of habeas corpus alleging, among other things, claims of ineffective assistance of counsel due to counsel's failure to investigate and/or prepare a defense, constitutes raising by collateral review an issue or issues related to the recorded portions of the record created pursuant to Penal Code section 987.9. No further litigation is required for the prosecution to gain access to the confidential funding requests pursuant to section 987.9.id: 15880
Defendant is not entitled to simultaneous representation by two attorneys, one of whom is challenging the other's competence.Defendant argued he was entitled to the appointment of separate counsel to assist in presenting the ineffective assistance aspects of his new trial motion. However, while a defendant may seek substitute counsel at any stage of the proceedings, a defendant is not entitled to simultaneous representation by two attorneys, one of whom is challenging the other's competence. The court did not err in denying separate counsel for that limited purpose.id: 15849
Tension between right to effective counsel and speedy trial was not a constitutional violation where defendant never objected to the delay.Defendant argued he only waived his speedy trial rights in order to obtain the effective assistance of counsel which he had been denied due to the appointment of an inexperienced lawyer. He claimed that being forced to choose between his right to the effective assistance of counsel and his right to a speedy preliminary hearing violated his due process rights. However, in light of defendant's failure to object to the delay, there was no due process violation.id: 15835
Supreme Court holds petitioner procedurally defaulted his ineffective assistance claim.In a per curiam opinion, the Supreme Court held that petitioner procedurally defaulted his claim that execution by lethal gas was unconstitutional, because he failed to raise it before filing his first federal habeas petition. At the time of his direct appeal, there was sufficient debate about the constitutionality of lethal gas executions that he could not show cause for his failure to raise the claim. The court also rejected his alternative argument that his ineffective assistance of counsel claim sufficed as cause. He specifically waived the claim that his trial counsel was ineffective, representing to the district court prior to filing his first federal habeas petition that there was no basis for such a claim. In addition, the Arizona court held that petitioner's ineffective assistance arguments were barred by a state procedural rule. Justices Souter, Ginsburg and Breyer concurred in the judgment but did not reach this issue. Justice Stevens dissented.id: 15145
Supreme Court holds ineffective assistance will not always excuse procedural default.Under <i>Murray v. Carrier</i>, 477 U.S. 478, 488-89 (1986), counsel's ineffectiveness in failing to properly preserve a claim in state court will constitute "cause" to excuse the defendant's procedural default. However, in this opinion written by Justice Scalia, the Supreme Court clarified that an ineffective assistance claim can <i>only</i> serve as cause to excuse the procedural default of another habeas claim if the petitioner can satisfy the "cause and prejudice" standard with respect to the ineffective assistance claim itself. That is, the ineffective assistance claim must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default doctrine would be frustrated if federal review were available even though the state court could not have entertained the claim under its procedural rules.id: 15061
Supreme Court says AEDPA permits habeas relief if state court was objectively unreasonable.Under 28 U.S.C. § 2254(d)(1), as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) federal courts may grant habeas relief to state prisoners only if the state court adjudication "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." In an opinion by Justice O'Connor as to Part II, the Supreme Court held that the Fourth Circuit erred in holding that a state court decision was "unreasonable" only if the state court applied federal law in a manner that reasonable judges would <i>all</i> agree was unreasonable. This is misleading because it is a "subjective" inquiry. Instead, the federal court should ask whether the state court's application of clearly established federal law was <i>objectively</i> unreasonable. Finally, the phrase "clearly established federal law as determined by the Supreme Court," refers to the "holdings," as opposed to the dicta of the Supreme Court. Whatever would qualify as an "old rule" under <i>Teague v. Lane</i>, 489 U.S. 288 (1989) will constitute "clearly established federal law," but with one caveat: the source of this clearly established law is restricted to the Supreme Court's jurisprudence.id: 15062
Supreme Court describes standards for evaluating effective assistance of appellate counsel.After holding that the filing of a California <i>Wende</i> brief is not per se ineffective assistance, the Supreme Court remanded to determine whether there were meritorious issues that should have been raised by appellate counsel. The court said this claim should be evaluated by the standard in <i>Strickland v. Washington</i>, 466 U.S. 668 (1984). The defendant must first show that his counsel was objectively unreasonable in failing to find arguable issues for appeal. He then has the burden of demonstrating prejudice, i.e. that he would have prevailed on appeal. Thus, the defendant must show actual prejudice, as the case does not fall within any of the three categories of cases in which prejudice will be presumed. That is, defendant was not denied counsel, nor did the state interfere with counsel's assistance, nor was counsel burdened with an actual conflict of interest ("although in such a case we do require the defendant to show that the conflict adversely affected his counsel's performance").id: 15065
Supreme Court upholds California's Wende variation on Anders brief for indigent criminal appeals.In <i>Anders v. California</i>, 386 U.S. 738 (1967), the Supreme Court struck down California's procedure which had allowed appointed counsel to file a conclusory letter stating that the appeal had "no merit." Thereafter, in <i>People v. Wende</i>, 25 Cal.3d 436, 600 P.2d 1071, California adopted a new procedure. However, unlike the procedure suggested in <i>Anders</i>, counsel under <i>Wende</i> neither explicitly states that his review has led him to conclude that an appeal would be frivolous nor requests to withdraw; instead he is silent on the merits of the case and offers to brief issues at the court's direction. In a 5-4 opinion written by Justice Thomas, the Supreme Court held that the <i>Anders</i> procedure is not exclusive and the states are free to adopt different procedures as long as they adequately safeguard defendant's right to appointed counsel. The majority found the <i>Wende</i> procedures were adequate, pointing out that it mitigates one of the problems critics have found with <i>Anders</i>, namely, the requirement that counsel violate his ethical duty as an officer of the court (by presenting frivolous arguments) as well as his duty to further his client's interest (by characterizing the clients claims as frivolous). The case was remanded to the Ninth Circuit to evaluate the petitioner's ineffective assistance claim with no presumption of prejudice. Justices Stevens, Ginsburg, Souter and Breyer dissented.id: 15066
Postconviction exoneration is a prerequisite to prevailing on a claim of legal malpractice.A former criminal defendant must obtain exoneration by postconviction relief as a prerequisite to obtaining relief for legal malpractice. However, the statute of limitations for the malpractice action should be stayed during the period in which the plaintiff timely and diligently pursues postconviction remedies.id: 14999
Trial court did not err in denying defendant's request for a new attorney to investigate a new trial motion based on incompetence of counsel.Defendant argued the trial court abused its discretion in failing to appoint substitute counsel for the purpose of investigating a claim of incompetence of trial counsel and his request for substitute counsel. However, the court's inquiry into defendant's Marsden motion was adequate. It considered the specific examples of counsel's inadequate representation that defendant enumerated, all of which were based upon acts or omissions which occurred at trial or the effect of which could be evaluated by what occurred at trial. Thus, the court was fully justified in ruling on the motion for new trial without substituting new counsel.id: 12272
An evidentiary hearing was needed to determine whether the prosecutor had offered a plea bargain which offer was never communicated to defendant.On the fist day of trial, defense counsel placed on the record the contention that a plea bargain had been offered to defendant by the district attorney's office prior to the preliminary hearing but that defendant's counsel at that time had failed to communicate the offer to defendant. Following his conviction defendant petitioned for a writ of habeas corpus asserting that he had been denied the effective assistance of counsel. The matter was transferred to the superior court for a hearing to determine whether defendant was told of the offer and whether he would have accepted the offer if it had been communicated to him.id: 12279
Counsel's inexperience with jury trials did not render his representation ineffective.Midway into the trial defense counsel informed the court that his client wanted another attorney to represent him. There was no breakdown in the attorney-client relationship but appellant lacked confidence in counsel due to his lack of trial experience. The court conducted an inquiry and was told that counsel had been practicing law since 1970 and had two previous jury trials. He had represented over 4,000 clients in immigration cases. By the time the motion was made the court had already observed counsel's performance before the jury for 36 days of trial and had an opportunity to evaluate counsel's adequacy as a trial attorney. The court found no basis to remove counsel and his trial inexperience did not establish ineffective assistance.id: 12280
Defendant did not receive ineffective assistance where the court refused to accord appointed status to his attorney in order to assure that the attorney was paid.A defendant in a criminal proceeding, who becomes indigent after retaining defense counsel, is not necessarily denied effective representation by reason of a trial court decision not to accord appointed status to his counsel in order to assure that the attorney is paid. The attorney in the instant case was willing to represent the defendant who did not seek counsel's discharge or replacement.id: 12281
Defendant must request that substitute counsel be appointed to argue the new trial motion based on ineffective assistance.Absent a request that the court appoint substitute counsel to prepare and present a motion for new trial based on inadequate representation, the procedures articulated in <i>People v. Stewart</i>, (1985) 171 Cal.App.3d 388, concerning the appointment of such counsel are not required. Since the defendant did not request substitute counsel, the court was only required to consider and rule on defendant's motion for a new trial.id: 12282
Disciplinary proceedings pending during an attorney's representation of defendant during a capital case did not render the assistance of counsel ineffective.Defendant's lead counsel in his capital case was disbarred eight months after the court and defendant learned of the pending disciplinary action (based primarily upon financial transactions with clients) and one month after completion of the penalty phase. He argued the failure of the court to remove counsel denied him rights under the Sixth, Eighth and Fourteenth Amendments. However, there was no indication on the record that counsel's representation was less than competent or that counsel was ineffective solely on the basis of the disciplinary action pending against him. Moreover, there was no violation of a similar state constitutional provision. There was no indication that the disciplinary proceedings influenced the pace of counsel's representation.id: 12283
Suspension of defense counsel's license to practice law during trial with no showing of incompetence was insufficient to establish the denial of the right to effective counsel.Defendant argued he was denied his state constitutional right to counsel because his trial attorney was suspended from practice during the last three days of his six-day trial. However, that fact, in and of itself, is insufficient to establish defendant was denied his right to effective counsel.id: 12284
Court of Appeal erred in reversing conviction due to ineffective assistance of counsel based on the failure to file a suppression motion because the trial record may not have contained all of the relevant facts.Defense counsel did not move to suppress evidence under Penal Code section 1538.5. The Court of Appeal reversed defendant's conviction based on ineffective assistance of counsel where the trial record showed the officer illegally commanded the defendant to submit to a pat down search. However, additional facts in the record may well have justified the officer's conduct. The issue should have been raised and litigated in a habeas corpus proceeding. An appellate court should not declare that a police officer acted unlawfully, suppress relevant evidence, set aside a jury verdict, and brand a defense lawyer incompetent unless it can be truly confident all the relevant facts have been developed and the police and prosecution had a full opportunity to defend the admissibility of the evidence.id: 11798
The participation in a fair trial that results in conviction makes moot and harmless defense counsel's misadvise during plea bargaining negotiations.Appellant argued that had he received adequate counsel during the plea bargaining stage he would have accepted the bargain, entered a guilty plea, and suffered a much lighter penalty than that received after the jury verdict of guilty. However, the participation in a fair jury trial preserves all of the defendant's basic constitutional trial rights, thereby rendering any error of counsel at the plea bargaining stage legally harmless.id: 11572
Where a defendant moves to withdraw a plea based upon ineffective assistance of counsel, he must present a colorable claim that he was ineffectively represented.Defendant argued he was deprived of his right to counsel based upon trial counsel's refusal to pursue and argue defendant's motion to withdraw his plea of nolo contendere. However, the error of which defendant complains is ineffective assistance of counsel. Where a defendant seeks to withdraw a plea on the ground that his attorney has not provided adequate representation the court should first listen and consider the defendant's reasons for making the claim. If the defendant presents a colorable claim the court should appoint new counsel to fully investigate the motion. A defendant presents a colorable claim when he credibly establishes the possibility that counsel failed to perform with reasonable diligence and that as a result, a determination more favorable to defendant might have resulted in the absence of counsel's failings.id: 11519
Defendant may not challenge a prior on the ground of ineffective assistance of counsel in the course of a current prosecution for a noncapital offense.A defendant whose sentence for a noncapital offense is subject to enhancement because of a prior conviction may not employ the current prosecution as a forum for challenging the validity of the prior conviction based upon alleged ineffective assistance of counsel in the prior proceeding.id: 9386
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245