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The People v. Michael Wayne Perez

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


August 30, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL WAYNE PEREZ, DEFENDANT AND APPELLANT.

(Super. Ct. No. CRF011577)

The opinion of the court was delivered by: Mauro , J.

P. v. Perez

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

BACKGROUND*fn1

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 had known his appellate rights were waived by the plea.

In early 2009, defendant was told by a jailhouse lawyer, "KO," that Masuda had given him "bad advice" on the appealability of the motion to suppress. But prior to testifying in Romero's trial, defendant asked Masuda about the appealability of the motion to suppress and Masuda reassured him his appellate rights on that issue had not been waived. Nonetheless, defendant told Masuda he did not want to testify at Romero's trial. Defendant stated he did not want to testify because it was his belief that if he did not testify against Romero he would effectively be withdrawing his plea, the charges against him would be reinstated, and the full panoply of his appellate rights would be restored.

Defendant ultimately testified in Romero's trial under a grant of immunity. Masuda ensured defendant had immunity because otherwise "it would completely blow the issue of preserving the right to appeal since he would have testified to the same thing that he tried to suppress." When he testified, defendant believed Masuda's assurances that he had retained his right to appeal the denial of his motion to suppress. Defendant would not have testified at the trial if he had known his appellate rights had not been preserved. Both before and after he testified, defendant attempted unsuccessfully to research the issue himself and determine whether he had retained his appellate rights. Defendant again informed Masuda of his confusion and concerns about the status of his appellate rights. It remained Masuda's position throughout the proceedings that defendant's right to appeal the denial of his motion to suppress had been preserved.

Because of defendant's concerns about appealability, defendant informed Masuda he wanted to withdraw his plea. In September 2009, conflict counsel was appointed to represent defendant on a motion to withdraw his plea. The motion was filed in February 2010. Following an evidentiary hearing in March 2010 at which both Masuda and defendant testified, the trial court denied the motion.

In April 2010, the trial court sentenced defendant in accordance with the plea to a determinate term of four years eight months and an indeterminate term of 15 years to life. The trial court granted defendant's request for a certificate of probable cause.

DISCUSSION

Defendant contends that he received ineffective assistance of counsel when his attorney repeatedly advised him that he had preserved his right to appeal the denial of his motion to suppress. Defendant further contends that he relied on this advice in entering the plea. Under the circumstances, defendant asserts that the trial court abused its discretion in denying his motion to withdraw the plea.

The People agree that the trial court's order denying defendant's motion to withdraw his plea should be reversed, and that defendant should be given the opportunity to withdraw his plea.

Section 1018 permits the withdrawal of a plea where a defendant shows good cause by clear and convincing evidence. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142.) Good cause can be established by "[m]istake, ignorance or any other factor overcoming the exercise of free judgment." (People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617.) In addition, where a defendant's plea is induced by misrepresentations of a fundamental nature, a judgment based upon the plea must be reversed. (People v. Coleman (1977) 72 Cal.App.3d 287, 292.) A plea may not be withdrawn, however, "'simply because the defendant has changed his mind.'" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Good cause for withdrawal of a guilty plea must be shown by clear and convincing evidence and the statute must be liberally construed to promote justice.*fn5 (People v. Cruz, supra, 12 Cal.3d at p. 566; People v. Huricks, supra, 32 Cal.App.4th at p. 1207.) We review the denial of a motion to withdraw for an abuse of discretion. (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496.)

Good cause to withdraw a plea may be established based on ineffective assistance of counsel. "[A] defendant 'is entitled to representation at every step of the proceedings, including the aid of counsel to enable an intelligent decision as to his plea.' [Citations.] Where a defendant has been denied the effective assistance of counsel in entering a plea of guilty, he is entitled to reversal and an opportunity to withdraw his plea if he so desires." (People v. McCary (1985) 166 Cal.App.3d 1, 7, see also In re Alvernaz (1992) 2 Cal.4th 924, 934.) "In order to establish ineffective assistance of counsel, a defendant must not only show his or her counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate but also that he or she was prejudiced thereby." (People v. Johnson (1995) 36 Cal.App.4th 1351, 1356.)

Defendant has established that his trial attorney was deficient. Counsel represented repeatedly to defendant that he had preserved his right to appeal the denial of his motion to suppress. But counsel's advice was wrong, because in entering the plea, defendant actually lost his right to appeal the denial of his motion to suppress. It has long been the law that "an extra-judicial statement relating to [defendant's] guilt of a charged crime does not, by reason of a claim that it was involuntarily or improperly induced, raise an issue on appeal based on 'constitutional, jurisdictional or other grounds going to the legality of the proceedings' resulting in the plea." (People v. DeVaughn (1977) 18 Cal.3d 889, 896.) Thus, in this case, the denial of defendant's motion to exclude extra-judicial statements based on a claimed Miranda violation is not cognizable on appeal, even though defense counsel crossed out the waiver of appellate rights language on the plea form.*fn6 This is because the plea itself must be deemed to admit all matters essential to the conviction. (People v. DeVaughn, supra, 18 Cal.3d at p. 895.) Defense counsel should have been aware of this well-established rule of law, and his contrary advice to defendant fell below the standard of a reasonably competent professional.

Defendant has also established he was prejudiced by counsel's incorrect advice. In the context of a plea of guilty, "[p]rejudice occurs if counsel's acts or omissions adversely affect defendant's ability to knowingly, intelligently and voluntarily decide to enter a plea of guilty. [Citation.] If counsel's acts or omissions appear to result in defendant's entering a plea under the influence of 'mistake, ignorance or inadvertence or any other factor overreaching defendant's free and clear judgment' which would justify withdrawal of his plea, he was ineffectively represented by counsel." (People v. Hunt (1985) 174 Cal.App.3d 95, 105.)

The record establishes that the appealability of the denial of the motion to suppress was important to defendant. Both defense counsel and defendant testified that they addressed this point throughout their discussions of the plea. The plea form corroborates this testimony, in that the express waiver of appellate rights was crossed out and not initialed by defendant. Defendant's conduct after the plea further substantiates the importance of this issue to him. When informed by KO, the jailhouse lawyer, that the denial of the motion to suppress was not appealable, defendant revisited the issue with Masuda. Masuda again advised defendant his appellate rights had been preserved. Defendant considered breaching the plea agreement by refusing to testify in Romero's trial, at least in part because of the appealability issue. To further reassure defendant, defense counsel obtained a grant of immunity for defendant's testimony against Romero to make sure that the testimony could not be used to incriminate defendant if he were successful in his appeal of the denial of his motion to suppress. The record establishes that counsel gave defendant deficient advice about the consequences of his plea (see People v. Johnson, supra, 36 Cal.App.4th at pp. 1357-1358) and this deficient advice "was a substantial inducement in defendant's decision to plead guilty." (People v. McCary, supra, 166 Cal.App.3d at p. 10.)

Prejudice is also established because counsel's deficient advice affected the voluntariness of defendant's plea. A plea is involuntary when induced by misrepresentation or improper promises (Brady v. United States (1970) 397 U.S. 742, 755 [25 L.Ed.2d 747, 760]), and a defendant's lack of understanding about "the nature of the constitutional protections that he is waiving" can also render a plea involuntary. (Henderson v. Morgan (1976) 426 U.S. 637, 645, fn. 13, [49 L.Ed.2d 108, 114, fn. 13].) To be valid a guilty plea must be based on a defendant's full awareness of the relevant circumstances and the likely consequences of his action, "'"including the actual value of any commitments made to him by the court, prosecutor, or his own counsel . . . ."'" (Brady v. United States, supra, 397 U.S. at pp. 748, 755 [25 L.Ed.2d at pp. 756, 760].) "The defendant can be expected to rely on counsel's independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial." (In re Alvernaz, supra, 2 Cal.4th at p. 933.)

Defense counsel's deficient advice resulted in defendant entering a plea while unaware of the relevant circumstances and likely consequences of his action. Defendant's plea was involuntary and defendant has established prejudice.

Defendant has established both prongs of a claim of ineffective assistance of counsel. Under the circumstances, defendant must be given an opportunity to withdraw his guilty plea.

DISPOSITION

The judgment is reversed and the matter remanded to the trial court to allow defendant to withdraw his guilty plea. If defendant moves to withdraw his plea, the trial court must grant his motion. If defendant does not move to withdraw his plea

within 60 days of the filing of the remittitur in the trial court, the trial court shall reinstate the judgment.

I concur: RAYE , P.J. ROBIE ,J.


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