People v. Williams CA3, C090169

Williams pled no contest to felony discharging a firearm with gross negligence (count 2) and felony assault likely to produce great bodily injury (count 4); two other counts were dismissed.
Plea agreement and court’s oral recitation: three years’ probation; if Williams had no probation violations during the first 18 months, he "may withdraw his plea" as to count 2 and have it dismissed.
Probation terms required reporting, program participation, abstention from alcohol/drugs, and no law violations.
Over the probation period Williams repeatedly failed to comply (late reporting, program nonparticipation, possession of marijuana and ammunition, alcohol-related incident, altercations with his mother); a revocation petition was filed March 20, 2019.
Williams admitted two violations; the court revoked probation, denied reinstatement, and sentenced him to three years (midterm for the assault; the firearm term stayed under § 654).
Williams appealed, arguing the court should have dismissed count 2 because there were no violations "sustained or pending" during the first 18 months, and alternatively claimed ineffective assistance of counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether sentence exceeded plea because count 2 should have been dismissed at 18 months	Williams forfeited the right to withdraw because the plea made withdrawal his obligation; he never timely moved, so right lost	Williams says no violations were sustained or pending during the first 18 months, so he was entitled to dismissal	Forfeited: withdrawal was the defendant’s duty; he failed to timely assert it and thus lost the right; judgment affirmed
Whether counsel was ineffective for not seeking withdrawal or raising the plea term	Record lacks basis to show deficient performance; counsel may have had reasonable tactical reasons	Counsel’s failure deprived Williams of the plea benefit and was prejudicial	No ineffective assistance: record permits plausible strategic explanations; claim fails

U.S. v. Olano, 507 U.S. 725 (1993) (forfeiture is failure to timely assert a right)
In re Sheena K., 40 Cal.4th 875 (2007) (forfeiture rule applies at sentencing)
People v. Scott, 15 Cal.4th 1188 (1997) (two-prong ineffective-assistance standard)
People v. Maury, 30 Cal.4th 342 (2003) (strong presumption counsel’s conduct is reasonable; tactical choices reviewed with deference)
People v. Jones, 29 Cal.4th 1229 (2003) (no ineffective-assistance finding on appeal when conceivable tactical reasons exist)
King v. Superior Court, 107 Cal.App.4th 929 (2003) (forfeiture results in loss of a right regardless of defendant’s knowledge)
People v. Harvey, 25 Cal.3d 754 (1979) (dismissal of counts and waiver procedure)