APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. (Super. Ct. No. F07900951).
The opinion of the court was delivered by: Vartabedian, Acting P. J.
CERTIFIED FOR PUBLICATION
Defendant Daniel Rodriguez Orozco entered a no contest plea to one count of second degree murder and admitted a firearm enhancement (Pen. Code, § 12022.5) and a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)). As part of his plea bargain, he agreed to what was characterized as an all-encompassing waiver of appellate rights, including any challenges based on ineffective assistance of counsel. Although the form he executed was entitled "Waiver of Appellate Rights," it included waiver of the right to bring a motion to withdraw his plea.
At the time of sentencing, defendant requested a continuance to retain private counsel and sought to bring a motion to withdraw his plea, which could include a challenge of the effectiveness of his counsel. His request was denied because the trial court determined he waived such rights at the time of his plea. Defendant claims the trial court erred in failing to consider his motions. We reverse, finding a defendant cannot be found to have waived his presentence right in the trial court to challenge the effectiveness of his counsel when the claimed ineffectiveness relates to the advice he received at the time he entered the plea containing that purported waiver.
Defendant was charged with the first degree murder of Elliot Flores occurring on December 28, 2006. In addition, it was alleged that he personally and intentionally discharged a firearm resulting in death, within the meaning of Penal Code section 12022.53, subdivision (d); personally used a firearm pursuant to Penal Code section 12022.5, subdivision (a); and committed the crime for the benefit of a criminal street gang in violation of Penal Code section 186.22, subdivision (b)(1). He was also charged with the second crime of active participation in a criminal street gang pursuant to Penal Code section 186.22, subdivision (a).
On September 9, 2008, defendant signed a standard waiver of rights and plea form. It was agreed he would plead guilty to one count of second degree murder (for a term of 15 years to life) and would admit the personal use of a firearm allegation (for a consecutive sentence of 10 years) and admit the gang allegation (for an additional and consecutive sentence of 10 years). The standard form also stated that he was agreeing to a waiver of appellate rights.
In addition to the standard waiver of rights and plea form, defendant also signed a separate document entitled "Waiver of Appellate Rights." This latter form was an all-encompassing waiver form that expressed the waiver of all issues in the case, both prior to the entry of the plea and subsequent to the plea agreement. Not only did the waiver include any right to a direct appeal of any matter in the case, it also included a waiver of his right to collaterally attack any issue of fact or law. Defendant purported to waive the right to allege that he received ineffective assistance of counsel in any matter, including any advice regarding the entry into the plea agreement. In addition to waiving all appellate rights, the agreement contained a clause that stated defendant waived his right to move to withdraw his guilty plea.
The court held a hearing on September 9, 2008, to advise defendant of his rights and for defendant to enter his plea. The court advised defendant of the standard rights he was waiving by entering into the plea deal, and defendant expressly waived these rights on the record. Defendant pleaded no contest to second degree murder and admitted the firearm and gang enhancements. In addition, the trial court advised defendant that he had the right to appeal numerous aspects of his case and asked him if he was waiving his appellate rights. Defendant agreed to the waiver.
At the outset of the sentencing hearing on October 21, 2008, defense counsel advised the court of defendant's desire to hire private counsel, Nick Reyes, to review his plea and possibly ask for a withdrawal of his plea. Defense counsel noted that defendant's waiver of appellate rights included a waiver of the right to withdraw his plea.
In addition to detailing defendant's history with different counsel, the prosecutor commented that defendant had waived his right to appeal. The trial court agreed that defendant had clearly waived his appellate rights. In addition, the court said that defendant had not yet retained Reyes, Reyes was not in court, and the court intended to proceed with sentencing.
Defense counsel stated that based on the nature of the case it was important to put on the record that defendant was asking for time to hire private counsel and to make a motion to withdraw his plea. The court responded that the case had been pending for quite some time and no retained counsel was present in court. The court found no good cause to continue the matter. The court then noted that proposed retained counsel, Reyes, was in court. Reyes was asked if he had been retained, and he replied that he had not been retained.
Quoting from the waiver of appellate rights form, the court in particular noted the portion where defendant waived his right to move to withdraw his guilty plea. The court continued, "It is an all- encompassing waiver. [When] [i]t was entered into the Court addressed the ...