What is the test to sustain a claim of ineffective representation by reason of failure to call a witness?

California, United States of America


The following excerpt is from People v. Mohammed, A128190 (Cal. App. 2011):

"In addition, the defendant must establish that counsel's actions were not based on a strategic decision. [Citation.] ' " '[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." ' [Citations.]" (People v. Ramirez (2011) 193 Cal.App.4th 613, 621-622.) " ' "To sustain a claim of inadequate representation by reason of failure to call a witness, there must be a showing from which

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it can be determined whether the testimony of the alleged additional defense witness was material, necessary, or admissible, or that defense counsel did not exercise proper judgment in failing to call him." ' [Citations.] Where the record is silent as to the reasons for particular actions of trial counsel, an appeal is not the proper vehicle for determining competency." (Id. at p. 622.) " 'Because the appellate record ordinarily does not show the reasons for defense counsel's actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.' [Citation.]" (People v. Lucero (2000) 23 Cal.4th 692, 728-729.)

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