(Super. Ct. No. CRF011577)
The opinion of the court was delivered by: Mauro , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Michael Wayne Perez pleaded guilty to second degree murder and admitted an enhancement for personal use of a firearm. Prior to sentencing, defendant moved to withdraw his plea, asserting that he had relied on incorrect advice from his attorney and believed that he had preserved his right to appeal the denial of a prior motion to suppress evidence. The trial court denied the motion to withdraw the plea and sentenced defendant pursuant to the plea agreement.
Defendant contends on appeal that the trial court abused its discretion in denying his motion to withdraw the plea. Defendant asserts that he received ineffective assistance of counsel and relied on the incorrect advice of his attorney in entering the plea. The People agree that the trial court's order denying his motion to withdraw the plea should be reversed, and that defendant should be given the opportunity to withdraw his plea.
We agree that defendant received ineffective assistance of counsel, and that defendant relied on counsel's advice in entering his plea. We will reverse and remand to give defendant an opportunity to withdraw his plea.
In November 2001, defendant was charged by indictment with seven counts, including first degree murder with special circumstances (Pen. Code,*fn2 §§ 187, subd. (a), 190.2, subd. (a)(22)), three counts of attempted first degree murder (§§ 664, subd. (a), 187, subd. (a)), two counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)) and one count of resisting an executive officer (§ 69). In addition, enhancement allegations included committing the offenses for the benefit of a street gang (§ 186.22, subd. (b)(1)), personally using a firearm (§ 12022.53, subds. (b) & (e)(1)) and personally discharging a firearm (§ 12022.53, subds. (c) & (e)(1)). The indictment charged 14 co-defendants with various offenses in addition to the murder and attempted murders, including kidnapping, rape, robbery, burglary, spousal abuse, child endangerment, assault with a firearm, false imprisonment, dissuading a witness and various drug offenses. Faustino Romero was one of the co-defendants named in the indictment.
In 2001, defendant filed a motion to suppress statements he made to law enforcement after a claimed Miranda*fn3 violation. In February 2004, the trial court denied the motion to suppress.
In October 2005, the parties negotiated a plea agreement. Defendant agreed to testify against co-defendant Faustino Romero and cooperate fully with law enforcement prosecuting the case against all of the co-defendants. Defendant would plead guilty to second degree murder and admit the enhancement for personal use of a firearm. In exchange, all other charges and enhancements would be dismissed with a Harvey*fn4 waiver.
In discussing the plea with his trial counsel, Don Masuda, defendant expressly indicated he wanted to preserve his right to appeal the denial of his motion to suppress. Masuda advised him he would be able to appeal that denial. To memorialize the preservation of this appellate issue, defense counsel crossed out waiver No. 6 on the plea form, which stated: "I waive all right to appeal on both the judgment of the Court and any decisions on motions which precede this plea or judgment. Appeal is not waived as to sentencing errors." Defendant did not initial that waiver language. The trial court did not give advisements on the waiver of appellate rights, relying on the waivers in the plea form.
Defendant entered the plea as negotiated and sentencing was deferred pending his testimony against Romero and cooperation with law enforcement against his co-defendants. Defendant would not have entered the plea if he ...