Can a motion alleging ineffective assistance of counsel succeed?
California, United States of America
The following excerpt is from People v. Dunham, E058891 (Cal. App. 2014):
682, fn. 7, distinguished on other grounds as stated in People v. Mendez (1999) 19 Cal.4th 1084, 1103-1104.) Even if this had been alleged, such an argument would not have prevailed in this case. Defendant does not argue that his counsel failed to argue a theory that he wanted; rather, defendant seeks a further bite at the apple on an argument specifically made by his trial counsel in his section 995 motion. Evidence was presented and evaluated on the motion, and after losing the battle in the trial court defendant pled guilty, waiving the argument that the elements of all counts were not met. (People v. Marlin (2004) 124 Cal.App.4th 559, 567.) As there was no failure of defendant's counsel to make an argument that defendant believes should have been made at the trial court level, had defendant made the argument of ineffective assistance of counsel, that argument would fail.
The judgment is affirmed.
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