Carrillo

Petitioner Pedro Zumudio Carrillo (Carrillo) was charged with various crimes, including committing murder for the benefit of a criminal street gang. Defense counsel, as a trial tactic, elected not to move prior to trial to suppress Carrillo’s confession, deciding instead to allow the jury to hear Carrillo’s tape-recorded interview with the police in its entirety. After a portion of the taped interview was played for the jury, the trial court concluded Carrillo’s confession had been coerced. The court found that defense counsel’s failure to move to suppress the confession constituted ineffective assistance per se and sua sponte declared a mistrial. Carrillo asserts in this proceeding in prohibition that the double jeopardy provisions of the state and federal Constitutions bar retrial. We agree and grant his petition.

I. FACTS

On May 3, 2005, an information was filed charging Carrillo with first degree murder, two counts of assault with a firearm, attempted second degree robbery and making criminal threats. It was alleged the murder was committed while Carrillo was engaged in the commission of the attempted robbery, and that a principal personally and intentionally…