This case illustrates the difficulty an appellate court is likely to encounter in deciding a competency of counsel claim on appeal in the absence (at least) of some opportunity for allegedly incompetent counsel to respond and explain. I do not know, and am unable to determine from the record, whether the reason trial counsel gave for stipulating that all contraband in the trunk was seized properly (namely, that the police officer “made a plain view observation once the trunk was opened”) reflected (a) a mistake of fact (since the marijuana was in closed bags); or (b) what turned out to be a mistake *671of law in lieu of People v. Dalton (1979) 24 Cal.3d 850 [157 Cal.Rptr. 497, 598 P.2d 467], which was pending before the Supreme Court at the time of the suppression hearing; or (c) a cover for some other motivation, such as (following my colleagues’ hypothesis) to keep the trial court from learning at that point the extent of defendant’s illicit holdings. If it was a mistake of fact, then it may well have reflected incompetence on the part of counsel in failing to investigate adequately. If it was a mistake in what turned out to be the law, then the question would exist as to whether competent counsel in a case involving suppression of evidence should reasonably be expected to raise issues pending in cases before the Supreme Court. If it was for some other reason, then we should be told what that reason was and be provided with some evidence by which to evaluate its justification.1
Since it is trial counsel who is in the best position to come forward with evidence as to these matters, and since his professional reputation (not to speak of potential liability), is at stake, for an appellate court to determine the competency of his trial performance without hearing from him raises in my mind serious questions not only of compliance with the Pope rationale but of due process as well. Thus, while I have reservation concerning some of the propositions contained in the majority opinion,2 I join in the result because I believe the record does not *672adequately “illuminate the basis for the challenged acts or omissions” or provide a basis for us “to intelligently evaluate whether counsel’s acts or omissions were within the range of reasonable competence.” (People v. Pope, supra, 23 Cal.3d at p. 426.)
A petition for a rehearing was denied February 27, 1980, and appellant’s petition for a hearing by the Supreme Court was denied March 27, 1980.
Pope requires us to “see if the record contains any explanation for the challenged aspect of representation,” and if it does to “inquire whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.” (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859].) A literal reading of that mandate would confine our consideration to the explanation which trial counsel gave at the time of his stipulation. The majority opinion impliedly assumes, and I agree, that it may be appropriate in certain cases to look further for an explanation of counsel’s conduct.
To list my reservations briefly: (a) In my view, the issue presented by appellant’s reliance on People v. Dalton, supra, 24 Cal.3d 850, is not whether counsel must have the “prescience” to anticipate a particular ruling, but whether he has an obligation to be aware of and assert issues which are pending for determination on appeal, and which may be useful to his client, (b) I am not so sure that it would have made “scant difference” whether the proof showed possession of 24 Thai sticks alone or 24 Thai sticks and “three large bags of marijuana inside” a blue flight bag. I note that defendant had been charged with possession for sale and transportation of marijuana, and that he pled guilty to the lesser offense. It would appear that a defendant is entitled to make “informed decision [s]” (see People v. Shells (1971) 4 Cal.3d 626, 631 [94 Cal.Rptr. 275, 483 P.2d 1227]), and exclusion of some of the seized evidence may have affected his decision whether to plead guilty, even assuming the remainder of the evidence would have supported a conviction at trial. (Cf. People v. Rios (1976) 16 Cal.3d 351, 357-358 [128 Cal.Rptr. 5, 546 P.2d 293]; People v. Hill (1974) 12 Cal.3d 731, 769 [117 Cal.Rptr. 393, 528 P.2d 1] [overruled on other grounds, 18 Cal.3d 896].) (c) I would be disinclined to assume that the trial judge did not read or consider the prosecutor’s *672points and authorities, or to posit the principle that it is defendant’s burden to show that he in fact read them, but I would want to hear from trial counsel, if relevant to his explanation, why he thought it useful not to object. I note also that trial counsel made no argument based on lack of exigent circumstances, but that question has not been raised.