The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After rejecting two plea offers, defendant Matthew Elton Phillips entered an open plea of no contest to first degree residential burglary (Pen. Code, § 459)*fn1 and admitted to four prior prison terms (§ 667.5, subd. (b)). Prior to sentencing, defendant moved to withdraw his plea, asserting that counsel and the trial court had misadvised him about being presumptively ineligible for probation when in fact he was absolutely ineligible. After the trial court rejected defendant's motion, defendant was sentenced to the maximum term of 10 years in state prison.
On appeal, defendant contends the trial court abused its discretion in denying his motion to withdraw his plea. Defendant argues the court should have granted the motion based on his counsel's ineffective assistance in advising him during the plea consideration process, an ineffectiveness that was buttressed by the prosecutor and by the trial court.
We conclude the trial court abused its discretion in denying defendant's motion to withdraw his plea. We are guided in this decision by two recent companion opinions from the United States Supreme Court that apply to defendant on his direct appeal here--Missouri v. Frye (2012) 566 U.S. ___ [182 L.Ed.2d 379] (Frye) and Lafler v. Cooper (2012) 566 U.S. ___ [182 L.Ed.2d 398] (Cooper). (See Griffith v. Kentucky (1987) 479 U.S. 314, 328 [93 L.Ed.2d 649, 661] [federal high court constitutional decisions apply that are issued while direct appeal pending]). The parties have filed supplemental briefing on these two decisions.
Frye and Cooper held that a defendant is entitled to effective assistance of counsel during plea negotiation and consideration, and applied the two-part Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674] (Strickland) ineffective assistance test of deficient performance and prejudice to this realm. (Cooper, supra, 566 U.S. ___ [182 L.Ed.2d at p. 406]; see Frye, supra, 566 U.S. ___ [182 L.Ed.2d at pp. 386-387].) We shall reverse and remand in accord with these two decisions.
FACTUAL AND PROCEDURAL BACKGROUND
After overwhelming evidence attributed a July 5, 2010 residential burglary to defendant, defendant was charged with felony first degree residential burglary. (§ 459.)*fn2
On July 20, 2010, the prosecution offered defendant a six-year prison term in exchange for pleading guilty.*fn3 As a result of defendant's waiving a preliminary hearing, that offer was to remain open for three weeks. On July 30, 2010, defense counsel informed defendant that he was presumptively ineligible for probation, but nevertheless probation was a possibility if defendant could overcome the presumptions. While defense counsel noted that probation was possible, he also stated that probation was unlikely and advised defendant to accept the six-year offer. On August 9, 2010, defendant rejected the prosecution's six-year offer based on the assumption, given to him by defense counsel, that probation, while unlikely, was possible.
On November 12, 2010, the prosecution offered defendant an eight-year prison term in exchange for defendant's guilty plea. Again, defendant rejected this offer on the assumption that probation was possible.
On that same November day, defendant, believing probation was possible, entered an "open plea" with admissions to all charges ...