Cases Finding Ineffective Assistance
Category > Cases Finding Ineffective Assistance
Updated 3/6/2024Counsel rendered ineffective assistance in the capital trial by obtaining the appointment through fraudulent means, counseling defendant to confess to a series of robberies and failing to interview helpful witnesses.Defendant was convicted of capital murder and sentenced to death. However, it was determined in habeas corpus proceedings that trial counsel rendered ineffective assistance by obtaining his appointment to represent the defendant by fraud, counseling defendant to confess to a series of other robberies without safeguards to insure the confessions would not be used without a plea deal, and by failing to conduct a timely investigation of eyewitnesses who could have exculpated defendant and police officers who would have inculpated the codefendant. The murder conviction was reversed.id: 26655
Updated 3/5/2024Appellate counsel rendered IAC in failing to raise on appeal the trial court’s failure to instruct on heat of passion, and defendant’s habeas petition was timely even though it was filed five years after the decision highlighting the error.Defendant was convicted of second degree murder and there was some evidence in the record that showed he acted from passion rather than judgment. In 2013, a few years after his appeal was over, the court published People v. Thomas (2013) 218 Cal.App.4th 630, reversing the murder conviction for lack of an instruction on heat of passion. Appellate counsel in defendant’s case rendered ineffective assistance of counsel by failing to assert on appeal the trial court’s failure to instruct with CALCRIM on heat of passion voluntary manslaughter. Defendant’s habeas corpus petition filed in 2018, raising the present issue was not untimely even though five years had passed since Thomas, because he promptly filed the petition after learning about Thomas.id: 26798
Updated 2/26/2024Defense counsel rendered ineffective assistance by failing to present evidence that prior counsel presented at the original trial showing the alleged victim’s claim was false.Defendant was tried twice in an aggravated sexual battery case. The first trial ended in a hung jury where the jury was split 11-1 in favor of acquittal, and in the second trial he was convicted. The case hinged entirely on the credibility of the alleged victim. Trial counsel rendered ineffective assistance at the retrial in failing to show, as counsel had in the first trial, that the electronic door lock system hadn’t worked in years - thus disproving the victim’s claim that he had locked her in the car by pressing a button on the driver’s side door.id: 27012
Updated 2/22/2024Trial counsel rendered ineffective assistance by failing to investigate a mental health defense before supporting a guilty plea to the criminal threat charge.Defendant pled guilty to a charge of making a criminal threat. The trial court erred in denying his subsequent motion to withdraw the plea because trial counsel rendered ineffective assistance in failing to review defendant’s medical records that documented mental illness and would have provided a mental defense to the charge.id: 27097
Updated 2/18/2024Trial counsel rendered ineffective assistance in failing to consult with a time of death expert in a case where the prosecution’s timeline was critical.Defendant was convicted of the murder of a boyfriend. A witness who was the last person to see the defendant and the victim testified that he dropped the defendant off at her home at 1:20 a.m. on the night of the killing. That testimony was used to establish a timeline. Defendant argued that she was dropped off later at about 2:00 a.m. and called 911 almost immediately. Trial counsel rendered ineffective assistance by failing to consult a time of death expert given the importance of the time used to establish defendant’s guilt.id: 27117
Updated 2/4/2024The trial court erred in approving a plea bargain for human trafficking of a minor where it was undisputed that the victim was an adult.Defendant pled guilty to one count of human trafficking of a minor for sex act under Penal Code section 236.1(c), but the victim was 26 years old. He later challenged the sentence imposed for that offense. He did not seek a certificate of probable cause to appeal, but the appeal was treated as a petition for writ of habeas corpus. The court was not estopped from reviewing the plea bargain reached by the parties because the plea deal should never have been offered by the prosecution or approved by the court where the parties knew the victim was an adult. The conviction was reversed and the matter was remanded with the initial charges reinstated. id: 27352
Updated 2/4/2024Trial court rendered ineffective assistance by failing to object to inadmissible prejudicial testimony from psychiatric and CSAAS experts, and lay witnesses who described propensity evidence that exceeded the limits of section 1108.Defendant was convicted of multiple counts relating to the annoying or molesting of three children. Trial counsel rendered ineffective assistance by failing to object to inadmissible and prejudicial testimony in several respects. He failed to object to psychiatric testimony concluding that his “current criminal behavior” was consistent with his history of sexual offending. The expert improperly offered an opinion on guilt. Counsel also failed to object to the Child Sexual Abuse Accommodation Syndrome (CSAAS) testimony that went beyond reporting and suggested the alleged victims were actually sexually molested. And finally, counsel failed to object to inflammatory propensity evidence that exceeded the boundaries of Evidence Code section 1108, and addressed the emotional impact on the victims that would have been appropriate at sentencing but not at trial. Counsel’s mistakes when considered together required reversal of all convictions. id: 27346
Updated 2/3/2024Counsel’s failure to advocate for defendant at the resentencing amounted to the complete denial of counsel under Cronic.Defendant’s 2010 case was sent back for resentencing upon the recommendation of the CDCR. Trial counsel at resentencing did not remember the case, file any briefing before the resentencing and said almost nothing at the hearing. While the court had the authority to consider all sentencing options, it imposed a sentence that was similar to the original sentence. Trial counsel died from a brain tumor later that year. Trial counsel’s performance amounted to a complete denial of counsel within the meaning of United States v. Cronic (1984) 466 U.S. 648, 659.id: 27696
Updated 1/31/2024Appellate counsel rendered ineffective assistance by failing to include in the appeal an issue based on a brand new sentencing law.Appellate counsel rendered ineffective assistance of counsel by failing to include in the appeal an argument relating to a new sentencing statute that would have applied to defendant's case. The issue was properly raised by way of motion to recall the remittitur rather than by way of habeas corpus, which would also have been proper.id: 28039
The prosecutor’s CSAAS expert erred by introducing statistical evidence of false allegations by children. Defendant was convicted of multiple lewd acts on a child. The prosecution’s expert, Dr. Urquiza introduced inadmissible statistical evidence regarding false allegations that went beyond the permissible scope of child sexual abuse accommodation syndrome (CSAAS). Defense counsel rendered ineffective assistance by not objecting to this evidence.id: 26164
Trial counsel erred by soliciting an opinion from the detective on the alleged child molest victim’s credibility. Trial counsel rendered ineffective assistance by asking the lead detective for an opinion regarding the accuser’s credibility. The detective testified that he believed the accuser was truthful, but police officers are not qualified to give opinions on the credibility of accusers.id: 26165
Trial counsel rendered ineffective assistance by failing to introduce DNA evidence of a third party whose skin was found under the victim’s fingernails. Defendant was charged in 2018 for a murder that took place in 1983 following an investigation that produced DNA evidence in 2008. DNA from an unknown male was later found to match Kevin Sennett from Texas who had no connections to California, the victim or the defendant. The trial court granted the defense motion to introduce evidence of the DNA match to Sennett to support the third party culpability defense. Trial counsel thereafter rendered ineffective assistance by failing to introduce that evidence as the defense presented no other witnesses and defendant did not testify. id: 27392
Trial counsel rendered ineffective assistance by failing to move to suppress defendant’s statement for lack of Miranda advice after the questioning became adversarial and custodial.The interrogation was not “custodial” when it began, but it later became custodial and defendant should have received Miranda warnings when the detectives essentially told defendant that they would not leave and he could not go home until he told them the truth based on the evidence they had against him. Trial counsel rendered ineffective assistance of counsel by failing to move to suppress defendant’s statement based on the lack of Miranda advice.id: 25786
Counsel failed to properly advise the defendant of immigration consequences for purposes of section 1473.7, by informing him the conviction “could” (not “would”) result in deportation. The trial court erred in denying defendant’s Penal Code section 1473.7 motion to vacate his conviction where trial counsel did not know that pleading guilty to violating Health and Safety Code section 11378 would mandate deportation, and advised defendant that the conviction “could” result in deportation.id: 25880
Trial counsel rendered ineffective assistance by failing to object to the prosecution’s motion to add counts and a GBI enhancement allegation after defendant waived his right to a preliminary hearing.When a defendant has waived his or her right to a preliminary hearing, an information cannot thereafter be amended to add additional charges or conduct enhancement allegations. Defense counsel rendered ineffective assistance by failing to object to the prosecution’s motion to amend the information to add two counts and a great bodily injury enhancement after defendant waived a preliminary hearing.id: 24604
Supreme Court says counsel must advise defendant of immigration consequences of conviction.Defendant, a lawful permanent resident of the United States, pleaded guilty to state narcotics offenses. As a result, the government sought to deport him. In a state post- conviction proceeding, defendant alleged that his counsel had failed to inform him that a guilty plea to a narcotics offense would result in his deportation and that counsel's failure to advise him of the immigration consequences of his plea was ineffective assistance of counsel. In a 5-4 decision written by Justice Stevens, the Supreme Court held that an attorney must advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. According to the Court, the extent of the advice that counsel must give depends
on the complexity of the immigration law affecting the noncitizen. When the consequences of a conviction can be easily determined because conviction requires mandatory deportation, counsel must advise the defendant of that fact. The Court rejected the argument that counsel is ineffective only when counsel gives a defendant "misadvice." The Court declined to decide whether defendant had been prejudiced by counsel's failure to advise him of the immigration
consequences of his plea. Justice Alito, joined by the Chief Justice, concurred in the judgment. Justice Scalia, joined by Justice Thomas, dissented.id: 22912
Capital counsel rendered ineffective assistance by failing to request funding for a forensic expert based on mistaken belief that available funding was limited.Trial counsel rendered ineffective assistance under the Sixth Amendment by failing to seek additional funds to hire a forensic at defendant’s capital trial where the failure was not based on strategy but rather on a mistaken belief that available funding was capped at $1,000. id: 23885
Trial counsel rendered ineffective assistance by failing to request the claim-of-right instruction where the defense was relying on that theory.Defendant was convicted of grand theft auto arising from an improper lien sale. Defense counsel argued in closing argument that defendant claimed a right to the vehicle. The trial court did not err by failing to give the standard claim-of-right instruction (CALCRIM 163) sua sponte because it only served to negate the required mental state. However, trial counsel rendered ineffective assistance by failing to request the instruction since he was relying on the claim of right defense. While there was no reason on the record as to why counsel failed to request the instruction, none was required because there could be no satisfactory explanation for failing to request the instruction. id: 23863
Defense counsel rendered ineffective assistance by failing to object to the prosecutor’s improper use of a diagram of California when explaining the reasonable doubt standard.The prosecutor committed misconduct during closing argument by using a diagram showing certain boundaries of California when describing the reasonable doubt standard. The diagram was unrelated to the facts of the case, and drew on the jurors knowledge of the state rather than the relevant facts. The prosecutor also incorrectly stated its burden was met if the jury thought its case was reasonable. The prosecutorial misconduct issue was forfeited because trial counsel failed to object. But counsel’s failure to object amounted to ineffective assistance of counsel in this case where the evidence of guilt was close.id: 23893
Trial counsel rendered ineffective assistance by failing to object to the increased restitution fine that did not apply to defendant’s earlier crimes.The trial court erred by imposing the $280 restitution fine because the $200 figure increased to $280 in 2013, after defendant had committed the present crimes. Trial counsel’s error constituted the ineffective assistance of counsel since there could be no valid tactical reason for failing to object to the court’s mistaken use of the minimum statutory fine that was in effect at the time of sentencing. id: 23624
Defense counsel rendered ineffective assistance by failing to file a new notice of appeal following the post-judgment restitution order.Trial counsel did not know the law required the filing of a separate notice of appeal following a post-judgment restitution order even though he had filed a notice of appeal following the conviction. Failure to file the notice of appeal under these circumstances constituted the ineffective assistance of counsel. The request for leave to file the late notice was treated as a habeas corpus petition and granted.id: 23621
69 years-to-life for minor who was convicted of murder was cruel and unusual and trial counsel rendered ineffective assistance by failing to object.Defendant was convicted of first degree murder he committed as a 17 year-old. His sentence of 69 years-to-life (including two firearm use enhancements) was the functional equivalent of life without parole, and as such it constituted cruel and unusual punishment. Trial counsel rendered ineffective assistance of counsel by failing to object to the sentence on this ground.id: 23658
Double jeopardy barred retrial where the jury was discharged before delivering a verdict and trial counsel then rendered IAC by failing to plead once in jeopardy.Double jeopardy bars a retrial on a substantive offense when jurors reached a verdict on the substantive offense but deadlocked as to an enhancement. The trial court should have taken a verdict on the substantive offense and declared a mistrial as to the enhancement only. Discharging the jury without the verdict was tantamount to an acquittal. Trial counsel thereafter rendered ineffective assistance by failing to advise defendant to plead once in jeopardy. id: 23218
Trial counsel rendered IAC by failing to adequately investigate the validity of the strike prior allegation and allowing defendant to admit a strike he did not suffer.Defendant was convicted of aggravated assault and thereafter agreed to admit a prior strike allegation. It was later discovered that his prior juvenile adjudication was for grand theft, not robbery , and therefore did not constitute a strike prior under the three strikes law. Trial counsel rendered ineffective assistance by failing to adequately investigate the validity of the allegation and allowing defendant to admit a strike he did not suffer.id: 23300
Defense counsel rendered ineffective assistance by the failing to raise the issue of the time value of money at the restitution hearing where the court calculated the victim's future pension benefits.The trial court's restitution order overstated the victims actual economic loss by thousands of dollars because it did not account for the time value of money when determining economic loss based on diminished or lost stream of future payments. Trial counsel rendered ineffective assistance by failing to raise the issue of the time value of money. The matter was remanded for a new restitution hearing where defendant will not be entitled to a jury hearing. id: 23576
The trial court abused its discretion in failing to account for the time value of money when awarding restitution, and trial counsel rendered ineffective assistance in failing to raise the issue.Defendant was convicted of drunk driving causing injury. When calculating restitution, the court computed the victim’s $246.50 in pension benefits and multiplied that by a calculated likely lifespan resulting in a payment of $70,000. However, the court abused its discretion in failing to account for the time value of the money. The possession of the money up front is worth something. And trial counsel rendered ineffective assistance by failing to raise the issue of the time value of the money. The matter was remanded for a new hearing although defendant was not entitled to a jury trial on the issue.id: 23065
Trial counsel rendered ineffective assistance of counsel by failing to object to the court’s response to jury questions regarding aiding and abetting.The trial court erred by instructing the jury that an aider and abettor is “equally guilty” as the perpetrator pursuant to former CALCRIM No. 400 because an aider and abettor’s mental state is personal and not tied to the mental state of the perpetrator. Trial counsel’s failure to object to the instruction, as well as the court’s response to two jury questions on the issue showing the jurors’ confusion, constituted the ineffective assistance of counsel and required reversal of the murder conviction.id: 22763
Trial counsel rendered ineffective assistance by arguing against defendant's motion to withdraw his plea and revealing privileged communications in the process.Defendant was deprived of his right to the effective assistance of counsel when, after he indicated a desire to withdraw his guilty plea, his court-appointed counsel provided a report to the court concluding there was no basis for the motion, and revealed privileged communications between himself and defendant. In light of the complete deprivation of his right to counsel, prejudice was presumed and reversal was required.id: 19535
Defense counsel rendered ineffective assistance by failing to renew a Kellett motion where the second case was based on facts that formed the basis of his original no contest plea.Defendant pled no contest to providing false information to a police officer in violation of Penal Code section 31 based on conduct that took place at the scene of an accident on February 5th. He was later prosecuted for presenting a false insurance claim under section 550, subd.(a)(1). The prosecution claimed the new charge was based on February 9th events where defendant lied to his insurance company about driving a rental car at the time of the accident. However, after the preliminary hearing it was clear the second charge was not based on statements to the Esurance representative but rather on the false information defendant gave to the accident victim which caused her to file a claim with his company. This all stemmed from conduct that occurred on February 5th and about which the prosecution knew. The second prosecution was barred by Kellett v. Superior Court (1966) 63 Cal.2nd 822, and defense counsel rendered ineffective assistance by not renewing a motion to dismiss that charge.id: 22516
Trial counsel rendered ineffective assistance by failing to challenge the prosecution’s medical expert who exaggerated facts in concluding the evidence supported the charges.Defendant was convicted of multiple counts of child molest involving claims of forcible intercourse with his stepdaughter and weaker claims involving a second child. At trial, the defendant’s stepdaughter recanted and denied all previous claims. The prosecution presented medical testimony of a doctor who concluded the evidence was consistent with the molest allegations even though there were no physical findings. Trial counsel rendered ineffective assistance by failing to obtain the photographs taken during the examination that showed there had been no intercourse and by failing to seek an independent medical opinion challenging the prosecution’s expert. id: 22368
The trial court erred by not recording the true finding on the verdict and ordered the jury back to deliberate further, and trial counsel rendered ineffective assistance by failing to object. The jury found the weapon use allegation not true, but changed its mind after the court sent it back for further deliberations. However, Penal Code section 1161 required the entry of a verdict or finding indicating the jury’s decision to acquit. The issue was not forfeited for lack of an objection because defendant’s substantial rights were violated. Assuming an objection was required, then trial counsel rendered ineffective assistance by failing to object. id: 22398
Trial counsel rendered ineffective assistance at the suppression hearing by failing to investigate the availability of percipient witnesses or have an investigator seek to dispute the officer’s claim that he could see defendant run a stop sign from his location.Defendant facing drug charges moved to suppress the evidence arguing the initial stop by police was pretextual. After the suppression motion was denied he alleged trial counsel who presented the motion rendered ineffective assistance. The trial court, following an evidentiary hearing, found no ineffective assistance. However, trial counsel did render ineffective assistance during the suppression hearing by failing to promptly investigate the availability of percipient witnesses and perceive the need for and obtain a qualified investigator to produce affirmative evidence that the officer could not have seen what he claimed he saw from his location. If the investigator assigned by the county was overloaded with work, counsel should have moved to withdraw from the case or request funding for a private investigator. id: 21651
Trial counsel rendered ineffective assistance by failing to object to an amended charge added to an information after defendant waived his right to a preliminary hearing.Defendant argued trial counsel was ineffective for failing to object to the amendments set forth in the amended informations which were filed after defendant waived a preliminary hearing. Counsel was ineffective in failing to object to the second amended information which added a count that was not included in the amended complaint to which defendant waived his right to a preliminary hearing. Counsel was not ineffective in failing to object to the amended informations regarding the other charges because they were effectively pled in the amended complaint and there was no substantial variance between the amended complaint and the amended informations.id: 21174
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
Defense counsel rendered ineffective assistance by failing to object to the prosecutor's misstatements of law regarding concurrent intent.Defendant was convicted of four counts of willful and premeditated attempted murder. The trial court did not err by failing to instruct sua sponte that in order to find defendant guilty of a count of attempted murder, it was necessary to find he had the specific intent to kill the person named as the victim in that count. However, the prosecutor committed misconduct by misstating the law when arguing it was unnecessary to find such intent if the named victim was in the "zone of danger" created when defendant fired gunshots indiscriminately at a group of people. Defense counsel was prejudicially ineffective in failing to object to the prosecutor's misstatements of law as to three of the attempted murder counts.id: 18597
Counsel rendered IAC by failing to appeal the denial of a motion to dismiss where the evidence did not show the minor was in the stolen vehicle, and the minor did not waive the right to challenge the denial of the motion by later testifying.Following the denial of the motion to dismiss for insufficient evidence, the juvenile court sustained the petition alleging receiving stolen property. However, the minor was denied the effective assistance of counsel by counsel's failure to file an appeal from the judgment. The IAC was prejudicial as there was insufficient evidence to sustain the petition where the only evidence presented showed that four youths exited and fled from a stolen car. The minor was not identified. Moreover, the minor did not waive the right to challenge the denial of the motion to dismiss by thereafter testifying in his own defense. Even considering the minor's testimony there was insufficient evidence to sustain the petition where the minor said he was a back seat passenger and hardly knew the driver.id: 17818
The deputy public defender rendered ineffective assistance where his failure to properly investigate the case was caused by his excessive caseload and limited resources of his office. The superior court erred in denying the juvenile’s motion for a new jurisdictional hearing which was based on a claim of ineffective assistance of counsel. The deputy public defender who represented defendant admitted first that he did not know the law and believed he could not request a continuance of more than 7 days. However, more importantly, he declared that his excessive caseload and the limited resources of the public defender’s office made it impossible to effectively represent his client. This was a conflict of interest which he raised with his supervisor but no action was taken. The error was prejudicial where the case was close and counsel noted his failure to investigate was not a tactical decision. id: 20858
The prosecutor committed misconduct by arguing the jury need not find an intent to kill as to each victim in the "zone of danger" when defendant indiscriminately fired shots, and defense counsel rendered ineffective assistance in failing to object. Defendant was convicted of four counts of attempted murder after firing two shots in the direction of four men, including one shot fired near the first victim and the second fired near the group of three. The trial court did not err in failing to instruct that the jury had to find that as to each victim, the defendant harbored the specific intent to kill. However, the prosecutor erred by arguing that it was unnecessary to find each intent if the named victim was in the "kill zone" or "zone of danger" created when defendant fired shots indiscriminately into a group of people. Defense counsel rendered ineffective assistance in failing to object to the improper argument.id: 19144
Trial counsel rendered ineffective assistance by failing to object to a hearsay statement where the declarant lacked personal knowledge.Defendant was convicted of two counts of continuous sexual abuse of a child under Penal Code section 288.5. One victim, D., testified that defendant did not molest her but told police he did, although she did not provide a time frame as required by the statute. The gap was filled by the testimony of another alleged victim, L., who repeatedly stated she did not know defendant had abused D. until the day the girls reported the abuse to the police. Hearsay testimony regarding L.'s statement regarding defendant's molestation of D. was inadmissible because L. lacked personal knowledge of when defendant's abuse of D. occurred. Trial counsel rendered ineffective assistance by failing to object to the inadmissible evidence used to prove the time frame element of the section 288.5 charge.id: 19384
Defense counsel rendered ineffective assistance in failing to object to the trial court's order that defendant be shackled and wear prison clothing at trial. The trial court violated defendant's due process rights by ordering that he be shackled and wear a prison jumpsuit at trial. Defense counsel rendered ineffective assistance in failing to object to the order and there was no plausible tactical reason to not object in light of the inherently prejudicial nature of prison garb. The failure to object was not harmless.id: 19274
Defense counsel rendered ineffective assistance by allowing impeachment of defense witnesses with evidence of misdemeanor arrests and convictions.Defense counsel rendered ineffective assistance by failing to object to the impeachment of defense witnesses by misdemeanor arrests and convictions. A person can only be impeached with evidence of prior misdemeanor conduct that involves moral turpitude. The prosecutor improperly used the arrest evidence to show the witnesses had an untrustworthy and criminal character. The error was prejudicial since the case involved a credibility contest between the police and the defense witnesses.id: 18589
Counsel was deficient in failing to challenge the officer's testimony expressing an opinion as to the definition of the crimes, the fact that the crimes were committed, and defendant's guilt.The opinions of the testifying officer as to the definitions of robbery and extortion, the fact that the crimes were actually committed, and defendant's guilt were improper. Defense counsel was deficient in allowing the officer's testimony to go unchallenged. However, counsel's failure to challenge the improper opinion testimony did not require reversal where the properly admitted evidence supported every element of the charged crimes and the improper testimony did not affect the outcome of the trial.id: 12286
Trial counsel was ineffective in failing to adequately investigate available evidence of abuse defendant suffered as a child, and counsel lacked a sufficient basis to make a reasoned strategy decision to forego further investigation and not to present any evidence at the penalty phase.Defendant's trial counsel failed to conduct an adequate investigation in preparation of the penalty phase for the capital trial. Evidence could have been discovered that would have shown the severe physical and emotional abuse defendant suffered as a child. He could have shown that as a young boy he was housed in an institution for abused children that was staffed by abusive, violent adults, and that he was later placed in juvenile correctional facilities that were known for crowding, neglect, and abuse. Trial counsel's limited investigation was inconsistent with the prevailing professional norms. Counsel lacked a sufficient basis upon which to make a reasoned strategic decision to forego further investigation or for the decision not to present any evidence at the penalty phase.id: 18026
Defense counsel rendered ineffective assistance of counsel in failing to object to the prosecutor's taking the stand and testifying that she believed the key witness' earlier inculpatory statements to law enforcement.The credibility of the key prosecution witness was the critical issue as she was the only person to provide inculpatory information to law enforcement. Defense counsel did not object when the prosecutor took the stand to impeach the exculpatory testimony of that witness. On cross-examination, the prosecutor testified as to her personal belief in the witness' credibility at the time of the inculpatory information. The prosecutor later argued, without objection, that as an advocate and a witness, that defendant was guilty. However, the state bar rules of professional conduct prohibit a lawyer from action as an advocate and a witness. Defense counsel rendered ineffective assistance of counsel by failing to protect her client against the abrogation of that rule.id: 16747
Counsel was incompetent in advising defendant to waive jury trial on the enhancement where the court had discharged the jury after the guilty verdict.The trial court discharged the jury after it returned a guilty verdict but before the issue of the prior convictions was tendered to it. Counsel was incompetent for advising defendant to waive a jury trial on the enhancement allegation, since <i>People v. Wojahn</i> (1984) 150 Cal.App.3d 1024, provides that in such situations double jeopardy prohibits the impanelling of a new jury, and absent the waiver of the court would have been compelled to dismiss the allegation.id: 11983
Defendant may not be convicted of an offense not shown by the evidence at the preliminary hearing.Defendant was convicted of being a felon in possession of a firearm. The evidence showed two completely different incidents, involving two separate weapons, that could have supported two charges of violating Penal Code section 12021, subdivision (a). However, defendant was only charged with a single violation and the evidence presented at the preliminary hearing portrayed only a single incident. To the extent the jury could have convicted defendant for the other possession, which the prosecutor's argument and the court's instructions indicated it could, the evidence would have been based on an event that was not the subject of the preliminary hearing. Such a conviction is improper. Defense counsel rendered ineffective assistance by not objecting when it became clear the jury was being asked to convict based on either incident.id: 15755
Defendant made a prima facie case showing counsel was ineffective prior to the plea due to her failure to investigate and prepare for trial, and her incorrect advice regarding the potential sentence.In the habeas corpus petition, defendant made a prima facie showing of entitlement to a hearing on the issues in support of his request to withdraw his guilty plea due to the ineffective assistance of counsel. Defendant presented evidence of counsel's habit of disregarding the needs of her clients. A review of her file showed she did not investigate the case. She was also unprepared for trial as she was not prepared to present a defense, and stated her "plan" was to attack the credibility of the state's witnesses. Moreover, there was evidence the plea was coerced where counsel first advised defendant the plea offer would be in the range of 12 years, and then presented an ultimatum of taking the plea with a 24-year offer, or have a sham trial in which no evidence would be presented.id: 14938
Since the alleged victim had earlier moved out of the house, defendant did not violate the Home Equity Sales Contract Act, and defense counsel rendered ineffective assistance by permitting the guilty plea.Defendant pled guilty to a violation of the Home Equity Sales Contract Act, under Civil Code section 1695. The Act prohibits unfair practices by those seeking to acquire residences from distressed homeowners. By its terms, the Act applies when the owner of a residence in foreclosure is approached while residing in the home. No crime was committed in the present case since the alleged victim moved out of the house in question several weeks before she was approached by defendant. Defense counsel rendered ineffective assistance of counsel by advising or permitting the guilty plea.id: 16543
Trial counsel rendered ineffective assistance by failing to bring a motion to dismiss due to precharging delay.Defendant was prosecuted in 2011 for a deadly shooting that took place in 1992. By the time of trial, an eyewitness who had exonerated defendant could not be found. Defendant was charged with first degree murder but was convicted of second degree murder. Trial counsel rendered ineffective assistance by failing to move to dismiss the case based on precharging delay.id: 24928
Appellate counsel was removed by the court following a fourth unsuccessful try at filing a comprehensible opening brief. Defendant received the ineffective assistance of appellate counsel where appellate counsel tried four times to file an opening brief, and each time the brief was incomprehensible. The court took the unusual step of removing counsel and instructed the California Appellate Project to appoint new counsel assuming defendant qualified.id: 23362
Trial counsel rendered IAC in seeking conditional release of the SVP defendant under section 6608 rather than 6605 where the prosecution had a heavier burden. Defendant sought a conditional release as a sexually violent predator under Welfare and Institution’s Code section 6608 where the SVP bears the burden of proof. Trial counsel rendered ineffective assistance of counsel in failing to proceed under section 6605 where the state has the burden of showing SVP status beyond a reasonable doubt. There could be no legitimate tactical reason for not proceeding under section 6605.id: 23043
Prosecutor’s statement regarding the facts of the crime at the out-of-state plea hearing were inadmissible to prove the strike prior and counsel rendered ineffective assistance by failing to object to the admission of other statements from the parties.The trial court erred in admitting, over defendant’s objection, the prosecutor’s statement reciting the alleged facts relating to the prior assault in Washington. This hearsay evidence was not admissible as an adoptive admission. Moreover, the unsworn statements of defendant, his attorney and the victim made to the Washington court after it had accepted the guilty plea were also inadmissible to prove the strike and the failure to properly object to the admission of those statements constituted the ineffective assistance of counsel. The remaining admissible evidence was insufficient to support the finding that the Washington assault prior was a strike. id: 22192
Supreme Court finds ineffective assistance in failure to investigate capital defendant's background. After being convicted of capital murder at a bench trial, defendant elected to have a jury determine whether he should receive the death penalty. His counsel then moved for a bifurcated hearing so that they could first present evidence that defendant did not commit the murder, then if necessary, present a mitigation case. When that motion was denied, counsel argued to the jury that defendant did not commit the offense and did not present a mitigation case. The jury sentenced defendant to death. In post-conviction proceedings, defendant showed that his counsel had not conducted a thorough investigation into his background and history and that such an investigation would have revealed evidence that as a child and teenager defendant suffered severe psychological, physical, and sexual abuse. By a 7-2 vote, the Supreme Court held that counsel failed to conduct an adequate investigation into defendant's background; that the failure to investigate fell below an objective standard of reasonableness; and that counsel had conducted a reasonable investigation then would have been able to present a powerful case in mitigation that had a reasonable probability in change the result at the death penalty phase of trial.id: 20154
Counsel rendered ineffective assistance based upon a mistake of law to which counsel failed to object. The sentencing court denied defendant's Romero motion to
dismiss a strike prior because defendant had been warned of its consequences when he suffered the prior conviction in 1999. However, defendant could not have been so warned because
violation of Penal Code section 422 was not included in the list of serious felonies for purposes of the three strikes law until 2000. Trial counsel rendered ineffective assistance by failing to inform the court of this fact.id: 19023
Trial counsel rendered ineffective assistance by failing to review the probation file prior to the revocation hearing.The attorney who represented defendant at his probation revocation hearing rendered ineffective assistance of counsel by failing to review defendant's probation file and present it as evidence to impeach the probation officer's testimony. The file completely contradicted the probation officer's recollection that defendant had never even reported, and supported defendant's own version of his efforts to comply with terms and conditions of probation.id: 18934
Defense counsel erred by allowing jurors to consider defendant's colorful invocation of the right to counsel as an adoptive admission.Defense counsel rendered ineffective assistance by allowing the prosecution to argue defendant's colorful invocation of the right to counsel ("Fuck you. I want to talk to my lawyer.") was an adoptive admission. In context, the first part of the invocation was not severable as an adoptive admission. Moreover, there was nothing ambiguous about the invocation.id: 18594
Counsel may have rendered IAC by failing to advise defendant of the mandatory deportation following a plea of guilty to marijuana for sale charge.Defendant argued trial counsel rendered ineffective assistance by failing to advise defendant he would be subject to mandatory deportation and exclusion from the United States for conviction of the charge to which he pled. Considering the relatively innocuous facts of the crime, defendant's lack of a criminal record, and serious collateral consequences, counsel's failure to investigate, advise, and utilize defense alternatives to a plea of guilty may have constituted the ineffective assistance of counsel. The court issued an order to show cause for a hearing on the matter.id: 17721
Counsel was ineffective in failing to discover a peremptory challenge had previously been filed against the judge who ultimately tried the case.Defendant was denied the effective assistance of counsel because his trial attorney failed to review the case file and discover that a Code of Civil Procedure section 1.70.6 peremptory challenge had previously been filed against the trial judge who ultimately tried his case. The judgment was therefore void and a new trial was required.id: 15882
Defense counsel rendered ineffective assistance of counsel by advising defendant not to testify where his testimony was necessary and he was not subject to substantial impeachment.The trial court did not abuse its discretion in granting the new trial motion based on the ineffective assistance of counsel where counsel advised defendant not to testify, he was not subject to substantial impeachment, and he was the only witness who could provide a plausible explanation for his presence in the victims' homes.id: 15883
Ineffective assistance of counsel required reversal of the death verdict where counsel deceived defendant and the court to get appointed and counsel failed to do any investigation into defendant's background.Defendant was convicted of intentionally killing a police officer and several counts of robbery. On appeal, the robbery convictions were reversed due to instructional error. In the present habeas corpus petition, the Court determined trial counsel rendered ineffective assistance of counsel. Trial counsel sought appointment to the case by way of deceit. A doctor who later testified at trial posed as a clergyman, and along with counsel told defendant a group of black businessman wanted to help defendant by retaining counsel. This was a ploy to ultimately get counsel appointed after defendant dismissed the public defender. There was no evidence these "businessmen" ever existed. Counsel also misrepresented to defendant that he had certain arrangements with the prosecutor regarding the use of his statements. Moreover, counsel performed no investigation into defendant's background and uncovered no potentially mitigating evidence. Counsel was subsequently disbarred for misappropriating funds from a client in an unrelated case. The Court reversed the death sentence and remanded the case for a new penalty trial.id: 15884
Using false information in completing rental apartment applications is not a violation of section 532a and counsel rendered ineffective assistance in allowing defendant to plead guilty on that basis.Submitting false financial information to a potential landlord does not constitute making a false financial statement within the meaning of Penal Code section 532a, subdivision (1). Since trial counsel did not properly advise the defendant of the legal insufficiency of the two counts, the guilty plea was based on an erroneous understanding of the law. The case was remanded to provide defendant an opportunity to withdraw his guilty plea.id: 15885
Supreme Court finds defense counsel was ineffective during capital sentencing hearing.Defense counsel failed to prepare for sentencing until a week beforehand. He also failed to uncover extensive records graphically describing defendant's nightmarish childhood. In addition, he failed to introduce available evidence that defendant was "borderline mentally retarded" and had not advanced beyond sixth grade. In addition, counsel did not seek prison records recording defendant's commendations for helping to crack a prison drug ring and for returning a guard's missing wallet. Counsel also failed to discover the testimony of prison officials who described defendant as among the inmates least likely to act violently, dangerously, or provocatively, and was unaware of a prison minister who would have testified that defendant seemed to thrive in a more regimented environment. In an opinion written by Justice Stevens, the Supreme Court held that counsel's errors constituted ineffective assistance, which prejudiced the defendant and required habeas relief.id: 15067
Counsel's failure to request a jury instruction relating defendant's intoxication to the mental state required for first degree murder resulted in constitutionally deficient representation.Defendant was convicted of first degree murder. Defense counsel used the fact that defendant's blood alcohol was .32 percent to argue the jury could consider defendant's intoxication in determining the existence of malice aforethought or the intent to kill. However, counsel never requested an instruction relating intoxication to the issue of whether defendant's state of mind supported a first degree murder verdict. The failure to request the instruction resulted in constitutionally deficient representation. The conviction was reduced to second degree murder although the People may retry defendant for first degree murder on either a lying in wait or deliberate and premeditated theory as the evidence was sufficient as a matter of law to support either theory.id: 12291
Death penalty was reversed where counsel failed to undertake investigation of mitigating evidence and presented none at trial.Defense counsel visited defendant's home town in Mexico for two days to investigate his defense. Although counsel spoke with defendant's parents, he did not interview them regarding matters relevant to mitigation of penalty. There was no investigation conducted with respect to defendant's character background and conduct as a youth. Proper investigation would have provided compelling testimony about defendant's good qualities focusing on his generosity, consideration of others, and capacity for hard work. If this evidence were weighed against the relatively spare aggravating evidence <197> there was no proof of prior convictions or of uncharged acts of criminal violence <197> it is reasonably probable the jury would conclude life without possibility of parole was a sufficient punishment.id: 12292
Defense counsel rendered ineffective assistance at the guilt phase based on a lack of preparation and failure to object to prejudicial and irrelevant evidence.Defense counsel rendered ineffective assistance during the guilt phase of the trial where counsel 1) did not prepare adequately for trial or seek pretrial investigative funds; 2) elicited testimony from the murder victim's daughter that the victim told her defendant had killed another person; 3) failed to object to evidence that defendant was involved in an earlier armed confrontation stemming from a cocaine transaction; and 4) failed to object to evidence that defendant shot his mother-in-law. The cumulative effect of the ineffective assistance was prejudicial and required a reversal of the conviction and death sentence.id: 12293
Defense counsel was ineffective for failing to have capital defendant's blood tested where the defense was diminished capacity.Defendant was convicted of murder and the defense theory of diminished capacity relied entirely on alcohol consumption. Defense counsel ineffectively ren-dered assistance in failing to have defendant's blood tested for blood alcohol, in failing to have his statements transcribed and translated earlier, in failing to pursue the recommended further PCP testing, and in failing to present evidence of the PCP testing that had been done. Such evidence might have caused a reasonable jury to conclude defendant lacked the requisite mental state, and the error was therefore prejudicial.id: 12294
Defense counsel was ineffective in failing to correctly advise defendant of his maximum potential sentence before the guilty plea.Defendant pled guilty to 14 counts of robbery and one count of grant theft and received a 20-year sentence. However, the failure of defense counsel to correctly calculate the maximum potential sentence before permitting him to enter the plea (she advised him the maximum sentence was 38 years when, in fact, it was 27) was a dereliction of her duty. The error was compounded where the attorney appointed to represent defendant for the motion to withdraw the plea failed to discover the error. The error was prejudicial as it can be fairly concluded the failure to correctly advise defendant of the maximum sentence was a substantial inducement in his decision to plead guilty.id: 12295
Defense counsel's argument arguably amounted to a concession of guilt without any apparent strategy for using the concession during the penalty phase.Defendant argued counsel was ineffective for conceding guilt when, in closing argument, he stated defendant admitted to killing two people cold bloodedly on the streets in Los Angeles. He went on to explain that defendant should be believed when he claimed he did not intend to murder two victims, as he had no hesitation in admitting to police his guilt in other more serious matters. Normally such argument could be viewed as an attempt to preserve defendant's credibility in the penalty phase in light of overwhelming evidence of guilt. However, the record revealed counsel presented almost no evidence at the penalty phase of the trial. Even if there was no justification for the argument there was no prejudice given the evidence of overwhelming guilt.id: 12296
Counsel was ineffective in failing to present Battered Women Syndrome evidence where the prosecution's case rested on circumstantial evidence and exploitation of myths about battered women.Defendant was convicted of involuntary manslaughter after killing the man with whom she had been living. She claimed to have stabbed the man in self-defense. She argued on appeal that counsel was ineffective in failing to investigate or present evidence of Battered Women Syndrome (BWS). Contrary to defendant's first argument BWS evidence was not relevant in determining whether the defendant's use of deadly force was objectively reasonable. However, the failure to present BWS evidence was prejudicial in that the evidence was not only relevant, but critical in permitting the jury to evaluate defendant's testimony free of the misconceptions regarding battered women.id: 12287
Counsel was not ineffective in acceding to defendant's request to call witnesses even though counsel believed their testimony would be perjurious.Defense counsel believed defendant and two witnesses he wished to call would present perjurious testimony. Defendant insisted that such witnesses be called. Following several admonitions the trial court fashioned a procedure whereby the witnesses would be called by defense counsel and would then testify in a narrative fashion subject to questioning by defendant himself and cross-examination by the prosecutor. Defendant was also permitted to present closing argument relating to this testimony. On appeal, defendant argued trial counsel was incompetent because he acceded to defendant's requests to testify and to call the witnesses. However, defendant pursued this course of action against counsel's wishes and the advice of the court and was not denied the effective assistance of counsel.id: 12288
Counsel's failure to advise client of possible deportation constituted ineffective assistance of counsel.Counsel's failure to advise respondent of his right to request a recommendation against deportation from the sentencing court pursuant to 8 United States Code 1251(b)(2), where defendant was subject to deportation as a result of his conviction, rendered counsel's assistance constitutionally ineffective. The appropriate remedy was to vacate respondent's sentence and remand the matter for resentencing. On remand respondent should decide whether to request a recommendation against deportation.id: 12289
Counsel's failure to introduce available expert evidence that appellant lacked the capacity to harbor malice was not prejudicial.Appellant argued that trial counsel was ineffective for failing to introduce available expert evidence that he lacked the capacity to harbor malice. However, pursuant to Penal Code section 28 appellant's alleged lack of capacity to harbor malice was irrelevant. Pursuant to section 29, the expert's opinion as to whether he actually harbored malice was inadmissible. Further, the court found appellant consumed enough drugs to impair his faculties on the day of the accident. The error did not require reversal.id: 12290
Trial counsels's failure to investigate and raise a Massiah objection to the admission at trial of a tape recorded van conversation set up by police involving codefendants required reversal of the murder conviction.A codefendant agreed to cooperate with officers in exchange for some form of leniency. Officers arranged for the three codefendants to be transported together in a van. During the ride defendant made incriminating statements in response to codefendant's questions. The facts known to defendant's trial counsel relating to the tape recording of the van conversation should have prompted further investigation, and in light of the facts that would have been discovered following diligent investigation, trial counsel should have raised an objection to the admission of the tape recording on the ground that it was procured in violation of the Sixth Amendment. Counsel's deficient performance was prejudicial as there was a reasonable probability that , absent the tape recording, there would have been a result more favorable to defendant.id: 11395
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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