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    Criminal Defense Division

    “Ineffective Assistance of Counsel” – The Law in California

    Can my criminal case be overturned for "Ineffective Assistance of Counsel"?

    If you are a defendant in a California criminal case, you can claim ineffective assistance of counsel (“IAC”) if your defense attorney’s incompetence hurt your case. A successful IAC claim could be grounds to

    • overturn your conviction or
    • vacate a sentence.

    Graphic that shows possible examples of ineffective assistance of counsel in California, such as failing to file motions or object to testimony

    Ineffective assistance of counsel violates your right to effective counsel – and thus a fair trial – as guaranteed by the Sixth Amendment to the U.S. Constitution. It does not matter whether your attorney was court-appointed or retained by you.

    In this article, our California criminal defense attorneys discuss the following topics re. ineffective assistance of counsel (IAC):

    attorney meeting with in-custody client in an orange jumpsuit

    “Ineffective assistance of counsel” is when a criminal defense attorney fails to represent their client competently.

    1. The Test for IAC

    California courts have adopted the federal “Strickland Rule” to determine whether an attorney committed ineffective assistance of counsel.

    The Strickland Rule has two prongs you have to prove by a “preponderance of the evidence.” In other words, you have to show it is more likely than not that:

    1. Your lawyer’s performance fell below an objective standard of reasonableness, and
    2. Your lawyer’s failure to act competently prejudiced you.1

    We discuss these two elements in detail below.

    1) “Reasonableness” Meaning

    When deciding if your attorney’s work product fell short of “reasonableness,” California courts will consider things like:

    • prevailing professional norms,
    • any ethical duties imposed on your attorney,
    • court rules,
    • strategies your lawyer used or adopted,
    • your behavior and education, and
    • available evidence.

    In applying this standard, judges rarely second-guess a lawyer’s judgment and are “highly deferential” to them. Courts are also hesitant to question a lawyer’s tactical decisions unless your attorney:

    1. committed an obvious indiscretion,
    2. cannot explain their conduct, and/or
    3. cannot offer a satisfactory explanation for their actions.2

    2) “Prejudice” Meaning

    When deciding if your attorney’s failures prejudiced you, California courts will consider whether there is a reasonable probability that the result of your proceedings would have been different but for your attorney’s errors.

    Like reasonableness, courts will determine “prejudice” by looking at all of the circumstances in a case. Courts also focus on the fundamental fairness of your case’s conclusion.3

    Aggravated attorney talking on two landlines and a cell phone at the same time

    The test for ineffectiveness is based upon weighing the facts of every case; therefore, California courts do not impose mechanical rules to determine ineffectiveness.

    2. Examples

    Below are real examples where California courts considered whether a criminal defense attorney committed ineffective assistance of counsel. (Remember, the outcome of these cases could have been different if there were different facts.)

    There WAS Ineffective Assistance of Counsel

    • Failing to challenge the photographic identification of the accused.4
    • Failing to file an appeal in a juvenile proceeding.5
    • Failing to object to testimony regarding evidence obtained via an illegal search and seizure.6
    • Failing to file an appeal, even when the accused signed an appeal waiver.7

    There WAS NO Ineffective Assistance of Counsel

    • Disagreeing with the defendant on trial tactics and strategy.8
    • Being intoxicated throughout the trial.9
    • Being mentally ill during the trial.10
    • Failing to impeach a witness with his prior statements.11
    • Putting on a witness who gave testimony damaging to the accused.12

    POSSIBLE Ineffective Assistance of Counsel

    • Not explaining to an immigrant defendant the consequences of taking – or rejecting – a plea.13
    • Having a conflict an interest.14
    • Omitting a jury instruction on a potential viable defense.15
    • Failing to get an expert witness to study incriminating photographs.16
    • Failing to request DNA testing in a murder case.17
    • Failing to do sufficient legal research, leading to a failure to file vital motions.18
    • Failing to object to a recording of the defendant giving incriminating testimony without an attorney present (called a “Massiah claim”).19
    judge in court speaking to a defendant in a wooden courtroom

    An attorney’s acts or omissions must be prejudicial to qualify as ineffective assistance of counsel.

    3. How can I claim IAC?

    There are many opportunities during the life of your California criminal case where you can alert the court that your attorney’s representation is prejudicing you. As discussed below, claiming ineffective assistance of counsel can result in you getting a new lawyer and having convictions or sentences overturned.

    Marsden Motion

    If you want to fire your court-appointed attorney in California on the grounds of ineffective assistance of counsel, you can file a Marsden motion with the court. You can bring this motion at any time, even during your trial.

    In a Marsden motion, you typically ask:

    • that a new private attorney substitute in or
    • for the judge to appoint a new deputy public defender.20

    The court then holds a “Marsden hearing” to consider your request and issue a ruling.

    Motions for a New Trial

    If you are convicted at trial, you can ask that same trial judge for a new trial due to ineffective assistance of counsel (or any other relevant grounds). If the judge finds in your favor, they will reverse your guilty verdict and order a new trial.21

    Note that most motions for a new trial are rejected. This is because judges are hesitant to grant “do-overs” and admit that big mistakes occurred at trials they presided over.

    Direct Appeal

    An appeal is when you ask a higher court – the California Court of Appeals – to review your case or sentencing for “reversible errors” such as ineffective assistance of counsel. If you lose the appeal, you can file another appeal with the California Supreme Court.

    Note that with appeals, you typically cannot submit any new information. You must rely only on “the record” of what occurred during your case.

    If the court finds that your attorney was ineffective – and your case was prejudiced as a result – then the appeals court would “remand” the case back to trial court for a new trial or a new sentence.22

    Petition for Writ of Habeas Corpus

    This is typically the last resort to argue ineffective assistance of counsel. Unlike an appeal, a habeas corpus petition allows you to present new evidence outside the trial record to prove that your attorney’s performance at sentencing was deficient and prejudiced your sentence.

    This new evidence could include:

    • affidavits from witnesses your attorney failed to call at sentencing,
    • documents your attorney failed to present,
    • your own testimony regarding communications with your attorney about sentencing strategy,
    • testimony from your previous attorney explaining their actions (or inactions) at sentencing, and/or
    • expert testimony from another attorney explaining how your original attorney’s performance fell below the standard of care for a sentencing hearing.

    You file habeas corpus petitions in the trial court where you were originally convicted. If it is rejected, you can file it with the California Court of Appeal. If that does not work, you can then file it with the California Supreme Court.

    If you win the petition based on IAC, the court may take such actions as:

    • ordering your release from custody,
    • modifying your sentence, or
    • ordering a new trial or resentencing.23
    Attorney devilishly wringing his hands against a bookshelf of law books

    The Sixth Amendment states, “In all criminal prosecutions, the accused shall…have the Assistance of Counsel for his defence.”

    4. Criminal vs. Civil Cases

    The Sixth Amendment right to competent representation applies if you are facing misdemeanors or felony charges. Furthermore, this right extends to every critical stage of the criminal court process, such as your:

    However, the right to competent representation does not “attach” in civil cases (such as personal injury lawsuits).24 If your attorney in a civil case is being incompetent, you can consider suing them for legal malpractice. and filing a complaint against them with the state bar.

    Attorney resting with his feet on his desk in his office

    Criminal defendants are advised to hire private counsel if they can afford them since public defenders are so overworked.

    Additional Resources

    For more in-depth information, refer to these scholarly articles:

    Legal References:

    1. Strickland v. Washington (1984) 466 U.S. 668 (“The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result…The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ‘ample opportunity to meet the case of the prosecution to which they are entitled.'”). Strickland helped form a compromise between the varying tests used by federal courts to decide if a lawyer was competent and the different tests used by state supreme courts. See also People v. Lewis (1990) 50 Cal.3d 262.
    2. See same. In re. Valdez (2010) 49 Cal. 4th 715.
    3. Same.
    4. People v. Nation (1980) 26 Cal.3d 169.
    5. In re Anthony J. (2004) 117 Cal.App.4th 718.
    6. People v. Ledesma (1987) 43 Cal.3d 171.
    7. Garza v. Idaho (2019) 139 S.Ct. 738.
    8. People v. Smith (2003) 30 Cal.4th 581.
    9. People v. Garrison, 47 Cal. 3d 746 (1989).
    10. Smith v. Ylst, 826 F.2d 872 (9th Cir. 1987).
    11. People v. Frierson (1979) 25 Cal.3d 142.
    12. People v. Galan (1989) 213 Cal.App.3d 864.
    13. People v. Patterson (2017) 2 Cal.5th 885
    14. See, for example, People v. Vivar (2021) 11 Cal. 5th 510; People v. Mai (2013) 57 Cal. 4th 986.
    15. See also People v. Lasko (2000) 23 Cal.4th 101.
    16. See also In re. Long (2020) 10 Cal.5th 764.
    17. See also People v. Smothers (2021) 64 Cal.App.5th 646.
    18. See also is In re Visciotti (1996) 14 Cal.4th 325.
    19. Massiah v. U.S. (1964) 377 U.S. 201.
    20. People v. Marsden (1970) 2 Cal.3d 118. See also California Constitution, Article 1, Section 15.
    21. California Penal Code 1181 PC.
    22. California Penal Code 1237 PC.
    23. Cal. Const., art. I, § 11.
    24. Gideon v. Wainright (1963) 372 U.S. 335.

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