People v. Green CA3

DISCUSSION

I Imposition of Upper Term Defendant contends the trial court abused its discretion in sentencing him to the upper term in case No. 11F04884 based on its erroneous consideration of (1) defendant’s

and a plea of no contest has the same effect as a guilty plea for our purposes (Pen. Code, § 1016), we construe the record as a whole to reflect a plea of no contest. Undesignated section references are to the Penal Code.

2 use of a gun in the commission of the act that constituted the basis of the probation violation and (2) defendant’s performance on probation in the cases for which he was being sentenced. Defendant’s failure to object in the trial court would generally result in a forfeiture of this claim. (People v. Scott (1994) 9 Cal.4th 331, 354.) But we address defendant’s claim because he has asserted ineffective assistance of counsel, and we agree with defendant and the Attorney General that there is no reasonable tactical basis for failing to object in this instance, and that if counsel had objected, the outcome of the sentencing proceeding likely would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 695 [80 L.Ed.2d 674, 693, 698];…