"Ineffective Assistance of Counsel" in California Criminal law

Every defendant charged with a crime is entitled not just to a lawyer, but to a competent lawyer.

If it can be shown that a California criminal defense attorney failed to represent his client competently, this could be the basis to get a prior conviction overturned.

We're a law firm of former police and former prosecutors with great experience helping clients attack prior convictions based on ineffective assistance of counsel.

Lawyer incompetence can be shown where the attorney failed to

  • investigate and prepare for the case adequately,
  • raise or vigorously argue the appropriate motions,
  • object to improper evidence or testimony,
  • address concerns about potential prosecutorial misconduct or jury misconduct, or
  • present enough mitigating circumstances to obtain a less severe sentence.

In the article below, we will explain California law as to ineffective assistance of counsel and the remedies available to you if it can be established.

confused attorney scratching his head
"Ineffective assistance of counsel" refers to situations where an attorney's performance is so flawed that it deprives the defendant of his/her 6th Amendment right to a fair trial.

Legal Definition of "Ineffective Assistance of Counsel" in California

Simply put, "ineffective assistance of counsel" refers to situations where an attorney's performance is so flawed that it deprives the defendant of his/her Sixth Amendment right to a fair trial.1

But before a defendant can obtain relief for this claim, he/she has the burden of proving

  1. that the attorney's conduct was deficient because his/her representation fell below an objective standard of reasonableness under prevailing professional norms, and
  2. that the attorney's failure to act competently resulted in prejudice to the defendant.2

Let's take a closer look at each of these components to gain a better understanding of their meanings.

1. The attorney's conduct was deficient

As Ventura criminal defense attorney Darrell York3 explains, "There is a strong presumption that an attorney's conduct falls within the range of reasonable professional assistance."4 This means that the reviewing court will not second-guess an attorney's tactical decisions unless

  1. there is an obvious indiscretion, or
  2. the attorney is asked to explain his/her conduct and either cannot do so or doesn't offer a satisfactory explanation.5

Put another way, "a reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.6

Examples of cases where a California ineffective assistance of counsel claim was denied

The following cases are examples of situations where the court found that the alleged "deficient" acts were acceptable according to reasonable professional standards of conduct.

  • Defendant's motion to replace counsel for ineffectiveness was denied where defendant's complaints merely showed disagreement about tactics and would have resulted in a significant court delay or mistrial because of the timing of the motion.7
  • The court held that the fact that the defense attorney (1) failed to impeach a witness with his prior inconsistent statement, and (2) failed to object to potentially prejudicial photographs could have been part of the defense strategy and therefore did not qualify as incompetence.8
  • The court denied the defendant's motion for ineffective assistance of counsel when.at the defendant's insistence.his defense attorney "put on" a witness who gave damaging testimony.9

Examples of cases where a California ineffective assistance of counsel claim was granted

Conversely, the following are examples of cases where the defense attorney's conduct fell below the standard for reasonable assistance.

  • In a case where the critical issue was the identification of the defendant.and the defense lawyer failed to challenge an extraordinarily suggestive photographic identification that would have likely been excluded if the defense had made a timely objection at trial.the attorney's failure deprived the defendant of constitutionally adequate assistance.10
  • The defense lawyer's failure to file an appeal in a juvenile proceeding where there was insufficient evidence to sustain the petition was considered ineffective assistance of counsel.11
  • The fact that the defense attorney failed to object to testimony.or raise a Penal Code 1538.5 motion to suppress evidence.concerning a telephone call that was intercepted during an illegal search and seizure (linking the defendant to the crime) was enough to prove that the attorney was deficient in his duties.12
2. The attorney's incompetence resulted in
prejudice to the defendant

Even if the defendant proves that his/her attorney's conduct was deficient.in that it fell below acceptable standards of reasonableness.an ineffective assistance of counsel claim will not stand unless that deficiency caused actual prejudice.

"Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"13

Example: Even though the defense attorney was deficient in failing to present mitigating evidence during the penalty phase of a capital trial, an ineffective assistance of counsel claim was denied.  This is because despite the attorney's incompetence, the evidence was so damaging that there was no reasonable probability of a better result.14

The Defendant Has the Burden of Proving Both Incompetence and Prejudice

When a court is evaluating a California ineffective assistance of counsel claim, the court doesn't need to

  1. address the claims in any particular order, or
  2. even address both claims if the defendant hasn't presented sufficient evidence as to each individual claim. 15

This means that if the court recognizes that either part of the test has not been met.that is, (1) that the attorney's performance was not deficient, OR (2) that the deficiency, if it did exist, did not result in prejudice.the court need not delve into a further investigation of the facts before denying the motion.

Remedies for a California Claim of Ineffective Assistance of Counsel

If the court grants a defendant's motion for ineffective assistance of counsel, there are essentially three remedies that are available.

If the complaint arises while the case is pending.and the defendant requests a substitution of counsel while the case is ongoing (known as a Marsden motion).the court may appoint a new California criminal defense attorney.  Depending on the circumstances of the case at that point, the new attorney may file a motion for a new trial.

If the complaint is filed after the court proceedings and is based on the attorney's jury trial or pretrial conduct, the court will reverse the guilty verdict, and grant a motion for a new trial.

If the complaint arises from a sentencing hearing, the court will vacate the sentence and resentence the defendant.16

Call us for help.
Female operator smiling
Call us for help...

If you or a loved one is in need of help with an ineffective assistance of counsel and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California. For cases in Colorado, please see our article on ineffective assistance of counsel in Colorado.

Legal References:

1People v. Lucas (1995) 12 Cal.4th 415, 436.  (""A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15.)")

2People v. Lewis (1990) 50 Cal.3d 262, 288.  ("To establish entitlement to relief for [a California claim of] ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings. ( People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1]; People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal.Rptr. 855, 659 P.2d 1144]; see also Strickland v. Washington (1984) 466 U.S. 668, 687-696 [80 L.Ed.2d 674, 693-699, 104 S.Ct. 2052].)")

3Ventura criminal defense attorney Darrell York uses his former experience as a Glendale Police Officer to represent clients at the Ventura Hall of Justice, the Van Nuys courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Lancaster courthouse, the San Fernando courthouse, and the Criminal Courts Building.

4People v. Lucas (1995) 12 Cal.4th 415, 436-437.  ("Reviewing courts defer to counsel's reasonable tactical decisions in examining a [California] claim of ineffective assistance of counsel (see People v. Wright (1990) 52 Cal.3d 367, 412 [276 Cal.Rptr. 731, 802 P.2d 221]), and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ( Strickland v. Washington (1984) 466 U.S. 668, 689 [80 L.Ed.2d 674, 694, 104 S.Ct. 2052] ( Strickland ).)")

5People v. Holt (1997) 15 Cal.4th 619, 703.  ("We presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions. ( Strickland v. Washington (1984) 466 U.S. 668, 690 [104 S.Ct. 2052, 2065-2066, 80 L.Ed.2d 674]; People v. Freeman (1994) 8 Cal.4th 450, 513 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.5th 888].).A court reviewing the conduct of counsel must in hindsight give great deference to counsel's tactical decisions. ( In re Fields (1990) 51 Cal.3d 1063, 1069-1070 [275 Cal.Rptr. 384, 800 P.2d 862].)")

See also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.  ("On appeal, defendant argued counsel was ineffective for not making the motion. We have repeatedly stressed "that '[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] ... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected." ( People v. Wilson (1992) 3 Cal.4th 926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212], quoting People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].)")

6People v. Carter (2003) 30 Cal.4th 1166, 1211.

7People v. Smith (2003) 30 Cal.4th 581.

8People v. Frierson (1979) 25 Cal.3d 142.

9People v. Galan (1989) 213 Cal.App.3d 864, 869.  ("The Supreme Court has said that "when a defendant insists on a course of action despite his counsel's contrary warning and advice, he may not later complain that his counsel provided ineffective assistance by complying with his wishes.")

10People v. Nation (1980) 26 Cal.3d 169.

11In re Anthony J. (2004) 117 Cal.App.4th 718.

12People v. Ledesma (1987) 43 Cal.3d 171.

13People v. Lucas (1995) 12 Cal.4th 415, 436.

14In re Ross (1995) 10 Cal.4th 184.

15Strickland v. Washington (1984) 466 U.S. 668, 697.  ("."there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."")

16People v. Barocio (1989) 216 Cal.App.3d 99.



Free attorney consultations...

The attorneys at Shouse Law Group bring more than 100 years collective experience fighting for individuals. We're ready to fight for you. Call us 24 hours a day, 365 days a year at 855-LAW-FIRM for a free case evaluation.

Regain peace of mind...

Shouse Law Defense Group has multiple locations throughout California. Click Office Locations to find out which office is right for you.

Office Locations

Shouse Law Group has multiple locations all across California, Nevada, and Colorado. Click Office Locations to find out which office is right for you.

Call us 24/7 (855) 396-0370