California, United States of America
The following excerpt is from People v. Ortiz-Sanchez, C092916 (Cal. App. 2021):
Defendant argues the trial court misunderstood the scope of its sentencing discretion under section 1203, subdivision (e)(2) when it found he was presumptively ineligible for probation, thus requiring remand for resentencing. Having failed to object at the sentencing hearing, defendant alternatively argues his counsel was ineffective for failing to make this argument. As outlined in detail above, while the pretrial proceedings show the parties repeatedly litigating whether defendant could be found to have "used" a gun for purposes of the sentencing hearing, when it came time to have that hearing, neither party addressed that issue with the court, nor asked the court to make the findings required for presumptive ineligibility to apply. This omission is unfortunate, and in light of defendant's alternative ineffective assistance of counsel claim, we exercise our discretion to review this claim on the merits. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
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