Trial counsel’s failure to seek suppression of defendant’s un-Mirandized statements to police constituted prejudicial ineffective assistance of counsel (IAC), mandating reversal of defendant’s conviction. A jury convicted Torres of committing lewd acts on a minor (Pen. Code, § 288, subd. (a)) and found true that he engaged in substantial sexual conduct (Pen. Code, § 1203.066, subd. (a)(8)). On appeal Torres argued the failure of his trial attorney to file a motion to suppress his un-Mirandized statements to police constituted prejudicial IAC. Held: Reversed. To establish a claim of IAC a defendant must show that his attorney’s performance fell below a reasonable standard of care under prevailing professional norms and that he suffered prejudice from the deficient performance. Where a claim of IAC is premised on a failure to seek suppression of evidence obtained in violation of the Constitution, the defendant must show the motion was meritorious and there is a reasonable probability the verdict would have been different had a suppression motion been granted. Miranda requires that a person subjected to custodial interrogation be warned he has the right to remain silent, that any statements he makes may be used against him, and he has the right to an attorney. Weighing the totality of the circumstances here, the court concluded that Torres was in custody, as a reasonable person would not have believed he was free to terminate the interrogation and leave. As a result, a custodial interrogation occurred without the administration of Miranda warnings. Torres’s statements to police were crucial to the prosecution, as there were no witnesses to the alleged offense and no physical evidence showed that a molestation had occurred. The complainant could not identify Torres at trial and admitted she did not know the difference between the truth and a lie. “Accordingly, defense counsel’s failure to file a motion to suppress amounted to prejudicial ineffective assistance of counsel.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D072610.PDF