Is counsel ineffective in advising a defendant not to testify in their opening statement?

885 (Burnett).) "Whether the failure to produce a promised witness amounts to ineffective assistance of counsel is a fact-based determination that must be assessed on a case-by-case basis. [Citation.] Foregoing the presentation of testimony or evidence promised in an opening statement can be a reasonable tactical decision, depending on the circumstances of the case." (People v. Stanley (2006) 39 Cal.4th 913, 955, italics added.)

For example, in People v. Frye, supra, 18 Cal.4th 894, defense counsel indicated in opening statement the defendant would testify. However, during trial defense counsel "perceived defendant was having difficulty remembering information" and advised the defendant not to testify. Because counsel's advice not to testify was a tactical decision based on observations of the defendant during trial, counsel was not constitutionally ineffective. (Id. at p. 983-984.)