What is the test for ineffective assistance of counsel?

professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966.)

Battery is not a lesser included offense of attempted rape, because a touching does not need to occur in an attempted rape. (People v. Marshall (1997) 15 Cal.4th 1, 39.) There is nothing in the record indicating why trial counsel failed to object to the trial court incorrectly instructing the jury that battery is a lesser included offense of attempted forcible rape. For the sake of judicial efficiency, we will assume there is no possible satisfactory explanation for trial counsel's failure to raise an objection, and therefore assume counsel's performance was deficient.

We now turn to the issue of prejudice. Battery is a lesser included offense of forcible rape. (People v. Lema (1987) 188 Cal.App.3d 1541, 1545.) The offense charged in count 3 was forcible rape. ( 261, subd. (a)(2).) Accordingly, the trial court was incorrect when it instructed the jury that battery was a lesser included offense of the other lesser included offense in count 3attempted forcible rape; however, the trial

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