What is the legal test for a claim of ineffective assistance of counsel based on a trial attorney's failure to make a motion or objection?

California, United States of America


The following excerpt is from People v. Palacios, F062060 (Cal. App. 2012):

"A claim of ineffective assistance of counsel based on a trial attorney's failure to make a motion or objection must demonstrate not only the absence of a tactical reason for the omission [citation], but also that the motion or objection would have been meritorious, if the defendant is to bear his burden of demonstrating that it is reasonably probable that absent the omission a determination more favorable to defendant would have resulted." (People v. Mattson (1990) 50 Cal.3d 826, 876.) "Defendant has the

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burden of establishing, based on the record on appeal [citations] and on the basis of facts, not speculation [citation], that trial counsel rendered ineffective assistance." (Id. at pp. 876-877.) "'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."'" (People v. Weaver (2001) 26 Cal.4th 876, 925 (Weaver)) Whether to object to arguably inadmissible evidence is an inherently tactical decision; hence, failure to object rarely establishes counsel's incompetence. (People v. Maury (2003) 30 Cal.4th 342, 415-416, 419.) "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (Weaver, supra, 26 Cal.4th at p. 926.)

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