When will a defendant's claim that his attorney's failure to object to the dual use of facts constitute ineffective assistance of counsel?

California, United States of America


The following excerpt is from People v. Wise, C055490 (Cal. App. 5/19/2008), C055490 (Cal. App. 2008):

Moreover, even if the claim had not been forfeited, we would reject it. The trial court relied on several factors in addition to the use of a weapon when imposing the upper term, placing particular emphasis on the victim's vulnerability. "When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper." (People v. Price (1991) 1 Cal.4th 324, 492.) Improper dual use of facts "`does not necessitate resentencing if "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error."'" (People v. Osband (1996) 13 Cal.4th 622, 728.) Accordingly, defendant's claim that his attorney's failure to object to the dual use of facts constituted ineffective assistance of counsel fails, as defendant has not demonstrated a reasonable probability he would have obtained a more favorable outcome had his attorney's performance been different. (See People v. Jackson (1996) 13 Cal.4th 1164, 1217.)

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