WHITE, P. J. I concur in the judgment.
Appellant’s opening brief states “. . . appellant pleaded guilty and waived his 1538.5 rights. (R.T.C.O.P. 34 et seq.)” The record designated,1 in my [565]view, repudiates in material part appellate counsel’s assessment of its content. Appellant did plead “guilty” to all crimes charged and “no contest” to alleged enhancements. And the court did accept the “pleas” obviously contemplating execution of the indicated' sentence bargain (12 years state [566]prison) it struck with appellant’s counsel during recess. However, the record is devoid of any specific and express showing that (1) appellant [567]possessed a full understanding of his statutorily afforded right of appeal (Pen. Code, § 1538.5, subd. (m)) and (2) that appellant prior to pleading [568]guilty freely, voluntarily, knowingly and expressly waived the said right. The absence of any showing on the face of the record of advice and waiver prior to appellant’s pleas confessing guilt, compels, I would think, a determination at law that appellant did not knowingly and intelligently waive his right to receive appellate review of adverse pretrial rulings as regards search and seizures issues incident to his cause.
Apparently during recess, albeit off the record, defense counsel communicated to the court that appellant agreed to the court’s condition compelling appellant to waive his Penal Code section 1538.5, subdivision (m) right of review before the court would accept his pleas of guilt. Apparently concurrently therewith defense counsel also advised the court of his intention to file an appeal in effect testing on appellant’s behalf the viability of the court’s condition. I think it a reasonable inference that this pragmatic court’s response to defense counsel’s stated stratagem was probably essentially the same as later stated of record to appellant, i.e., “Mister, you can raise it on appeal, but I won’t ‘honor’ ... it with a certificate of probable cause,” [569]“as far as I’m concerned you [he] are [is] giving it up ... if you [he] plead[s] guilty.”
On this record, then, the court must be perceived as assuming if not presuming that because he “want[ed] to enter a plea of guilty” appellant possessed an adequate understanding of the law relating to his statutory right of appeal; and by pleading guilty he signaled his desire to voluntarily waive and give up the same.
But, of course, at law the trial court could not presume appellant’s waiver and neither can this court. It is settled doctrine that a defendant who enters a plea of guilty simultaneously waives or forfeits important constitutional rights. But such waiver by guilty plea is void in violation of the due process clause unless it is “ ‘an intentional relinquishment or abandonment of a known right or privilege’ (Johnson v. Zerbst, 304 U.S. 458, 464 (1938).” (See Boykin v. Alabama (1969) 395 U.S. 238, 242-243, fn. 4 [23 L.Ed.2d 274, 89 S.Ct. 1709]; see also In re Tahl (1969) 1 Cal.3d 122, 132 [81 Cal.Rptr. 577, 460 P.2d 449], cert. den. 398 U.S. 911 [26 L.Ed.2d 72, 90 S.Ct. 1708]; In re Yurko (1974) 10 Cal.3d 857, 863.) Courts indulge every reasonable presumption against waiver of fundamental constitutional rights and never presume acquiescence in the forfeiture of fundamental rights. (Johnson v. Zerbst, supra, 304 U.S. at p. 464 [23 L.Ed.2d at p. 274].) Consequently, Boykin/Tahl/Yurko hold that at law there is no valid waiver of an accused’s constitutional or fundamental rights in the absence of a specific and express showing on the face of the record that the rights were fully known to and expressly waived by the accused.
As regards waiver thereof, I think that statutory rights are no less important or fundamental than constitutional rights. No sound, logical or compelling reason exists for sanctioning less than full compliance with a Boykin/ Tahl/Yurko standard as regards waiver of statutory rights when conditioning a “guilty” plea. Conversely, every consideration I can think of dictates that this court require compliance. Notably, appellant’s statutory right to further appellate review of the validity of search and seizure is predicated upon his conviction by decision or plea. Manifestly, then, the accused does not forfeit or waive section 1538.5, subdivision (m) by judicially confessing his crime in the absence of an express waiver on the record. Moreover, the statutory right to appeal provides the only direct means of securing to the accused upon conviction one’s constitutionally afforded liberty and security interests against unwarranted governmental intrusion. (U.S. Const., 4th Amend.) Clearly, then, the trial court was required to provide this reviewing court with a record requiring no speculation or presumption that upon being fully advised by the court (or counsel in the court’s presence) appellant expressly waived the statutory right to review preserved search and seizure issues. [570](Id., In re Yurko at p. 861.) Obviously, the trial court in this instance failed in this regard, a fact seemingly the court itself appreciated. Consequently, the court subsequent to accepting appellant’s pleas of guilt is noted to observe (see fn. 1) “He is not trying to hurt you, Mister. I forgot to ask you a couple of questions.” I would think that “couple of questions” were in fact three, i.e., (1) You understand you have a right under the statutory law even though you plead “guilty,” to appeal this court’s earlier rulings that your arrest and confession and other evidence were lawfully obtained by the police, etc.? (2) Understanding that right and having it in mind, do you give it up? (3) Other than your expectation that you will receive 12 years punishment as presently indicated, have any other promises been made to you inducing you to give up your right to appeal? The trial court’s discretion is broad and no recitation of a formula by rote is required so long as it does not require inference to determine specific advisement and express waiver of rights prior to a guilty plea. (See In re Tahl, supra, at p. 132.)
Consequently, counsel’s (Mr. Harmon) and the court’s questioning subsequent to receiving appellant’s guilty pleas are insufficient upon which to base a finding of waiver. Appearing as afterthought subsequent to formal change of plea, they require that this court presume that appellant’s affirmative responses thereto accurately reflected his state of mind prior to or at the time of pleading guilty. In any case, court and counsel’s voir dire missed the mark in failing to exact an express waiver. The trial court’s observation that “. . . an appellate court might say something otherwise” was accurate if not prophetic. On review of this record I, for one, conclude that appellant did not knowingly, intelligently and expressly waive his statutory section 1538.5, subdivision (m) right of review. Moreover, in light of appellant’s protestation, notably after the fact of pleading guilty, that “. . . my attorney didn’t talk to me about that” and “my lawyer told me something else,” thereby contradicting his counsel’s version of advice given and received, I hold that, at best, appellant pled guilty with mental reservations, if not in a state of total confusion, as regards waiving his right of appeal. Every reasonable presumption against waiver, when applied, reinforces my conviction that a finding of nonwaiver is compelled.
I would, then, rule on the merits of the search and seizure issues presented by appellant were it not for the fact that at law his counsel on appeal has not perfected the issues for review. Appellant’s opening brief challenges the affidavit supporting the search warrant as misleading the issuing magistrate by virtue of the affiant officer’s either intentional omission or reckless disregard of material facts that when added would upon retesting result in quashing the search warrant for lack of probable cause. (See People v. Kurland (1980) 28 Cal.3d 376, 387 [168 Cal.Rptr. 667, 618 P.2d 213], [571]cert. den. 451 U.S. 987 [68 L.Ed.2d 844, 101 S.Ct. 2321]; see also People v. Cook (1978) 22 Cal.3d 67 [148 Cal.Rptr. 605, 583 P.2d 130].)
Appellant’s remaining contention on appeal, i.e., insufficient probable cause for appellant’s warrantless arrest resulting in illegal acquisition of his confession and incriminating physical evidence is premised upon a favorable ruling finding Kurland error. Counsel for appellant has not augmented the record with the questioned affidavit and search warrant, effectively preventing this court from adding and retesting per Kurland. Instead appellate counsel has impermissibly attached to appellant’s opening brief as Exhibit “A” apparent photocopies of the “Affidavit for Search Warrant” and incorporated supporting witness statements taken by the police for appellate review. The People’s responding brief accurately pointed out that “the affidavit and warrant are not currently part of the appellate record.” “Matters not presented by the record cannot, of course, be considered on the suggestion of counsel in briefs or in affidavits attached thereto. [Citation.]” (See People v. Szeto (1981) 29 Cal.3d 20, 35 [171 Cal.Rptr. 652, 623 P.2d 213].) We cannot “add and retest” to that which is not before us. Appellant has not filed a responsive closing brief.
Accordingly, I concur in the judgment.
Appellant’s petition for review by the Supreme Court was denied November 14, 1985.
“The Court: Mr. Charles, you are on trial, the jury is out, and I understand you want to enter a plea of guilty; is that right?
“Now, I said he could plead no contest to the enhancement clause, but I said nothing but he plead guilty. He is guilty as the actor. He is guilty on an aiding and abetting theory, because he is legally responsible for things that ‘Noonie ’ Owens did.
“Do you understand that?
“The Defendant: Yes, sir.
“The Court: Now do you wish to plead guilty?
“The Defendant: Yes.
“The Court: You understand, and you understand if you plead guilty, I say also then I am not going to honor any request of you to challenge the search. Do you understand that?
“Now, that does not mean that some lawyer can’t raise it, but I am saying, as far as I’m concerned, you are giving it up. Do you understand that?
(The defendant nods affirmatively.)
“The Court: Please answer out loud, because my Reporter has to—
“The Defendant: Yes.
“The Court: You understand you have a right to a jury trial? They are actually deliberating now.
“The Defendant: Yes.
“The Court: You give that right up when you plead guilty? Do you understand that?
(The defendant nods affirmatively.)
“The Court: And that is what you want to do; is that right?
(The defendant nods affirmatively.)
“The Court: All right. So I don’t see why I have to go through—
“All right, and you understand you are not only giving up your right to trial but you are giving up your right to remain silent? Do you understand that? You don’t have to plead' guilty. You have a right to go ahead and say, ‘Finish my trial. Let the jury understand it’?
“The Defendant: Yes.
“The Court: All right.
“Confrontation. Well, he has already been confronted, so he is not waiving confrontation in this sense, because he has had the whole trial in front of him.
“Mr. Harmon [Deputy district attorney]: He is waiving it because he is bypassing it.
“The Court: You understand that you have heard the witnesses and you had a right to hear the witnesses? Right?
(The defendant nods affirmatively.)
“The Court: To the charge of attempted murder, as charged in the first count, what do [565]you plead?
“The Defendant: Guilty.
“The Court: Did you use a knife?
“The Defendant: No contest.
“The Court: No contest.
“I have advised him that I would accept the plea of no contest, but that still—
“You understand in pleading no contest, you still can be held responsible? Do you understand that?
“The Defendant: Does that mean when I get to the place where I’m going, that they could—
“The Court: When you get to the place that you are going, I will give you all the time that they can give you, regardless of what you admit. I will set the number of years, and they cannot increase this thing, the number of, because of this. Do you understand that? “The Defendant: Yes.
“The Court: Did you inflict great bodily injury?
“The Defendant: No contest.
“The Court: To the charge you did commit burglary by entering the residence of Mrs. Burdack with the intention of stealing?
“The Defendant: Guilty.
“The Court: And did you use a knife?
“The Defendant: No contest.
“The Court: I don’t think he has to admit the infirm clause. I think that it is an issue of fact. It is pleaded, and the woman testified.
“Do you stipulate that the victim was over 60?
“Mr. Costain: Yes, your Honor.
“Mr. Harmon: Can you ask Mr. Charles?
“The Court: Sir, he has already admitted the infliction of great bodily injury.
“Mr. Harmon: Does not that add?
“Mr. Costain: Just for the probation.
“The Court: The infirm clause declares him ineligible for probation.
“Mr. Harmon: You are right.
“The Court: We looked that up.
“The Clerk: The disposition?
“The Court: As to the infirm clause the defendant stipulates that the victim was over the age of 60.
“Now, he has already independently entered a plea of no contest to the serious bodily injury. He knows he is going to prison.
“Mr. Costain: That’s correct.
“The Clerk: That is a first-degree burglary, too, which you did not state.
“The Court: That’s right.
“You understand that you are pleading guilty to first-degre [sic] burglary?
“The Defendant: Yes.
“The Court: To the charge of rape, what is your plea?
“The Defendant: Guilty.
“The Court: And did you act in concert with another person?
“The Defendant: Yes.
“The Court: And did you use a knife?
“The Defendant: No contest.
“The Court: And did you inflict great bodily injury?
“The Defendant: No contest.
“The Court: There is an infirm clause that has already been stipulated, that the victim [566]was over—
“Do you stipulate as to the infirm clause to all the counts that have been alleged?
“Mr. Costain: Yes.
“The Court: To the charge of attempted robbery, as charged in the fourth count as amended, what is your plea?
“The Defendant: Guilty.
“The Court: Did you use a knife?
“The Defendant: No contest.
“The Court: Did you inflict great bodily injury?
“The Defendant: No contest.
“The Court: The infirm clause is admitted by stipulation.
“Did you commit the crime of arson in connection with Section 451A and 45 IB?
“The Defendant: Guilty.
“The Court: Did you distroy [szc] the telephone—did you disconnect or did you sever the telephone or the telephone lines?
“The Defendant: Guilty.
“The Court: Very well.
“The Clerk: The prior?
“The Court: I’m striking the prior because it is not—/ will strike the prior at this time on the grounds that it is legal surplusage.
“I can take judicial notice of a file I have here on my desk that the defendant was, in fact, convicted in 1978, but it is not a separately served prison prior.
“Very well. Is time for sentence waived?
“Mr. Costain: Yes.
“Mr. Harmon: Can I just ask a couple of questions?
“The Court: Yes, sir.
“/ represented to your attorney that my present intent is to give you 12 years in prison. “Do you understand that?
“The Defendant: Yes.
“The Court: And that means that you would have to serve eight calendar years. Do you understand that?
“The Defendant: I don’t get Sage time and good time?
“The Court: Yes. You get the time you have been in jail and the good-time credits but— “Now I want you to understand one thing. You have been in custody since how long? “Mr. Harmon: May of ’81.
“The Defendant: May 21.
“Mr. Harmon: May 21st.
“The Court: You will get the actual days, but your good time, work time, does not go to your in-time. You are going to have to serve 96 months in.
“The Defendant: What do you mean by that?
“The Court: I mean—all right, you were arrested in May.
“Mr. Costain: May of ’81, May 21st.
“The Court: So let’s say—what date was it? About the middle of the month?
“Mr. Harmon: May 21.
“Mr. Costain: He should get out May 21 of 1989. That is the simplest way to say that. “The Defendant: I don’t get good time?
“The Court: Good time counts on parole, doesn’t count toward the time in.
“The Defendant: I don’t get work time?
“The Court: On parole.
“The Defendant: Okay.
“The Court: But not as a time in.
“Do you understand what I am talking about? You have got to do eight years in, 96 [567]months now, and that leaves four more years. Right?
“The Defendant: That is how much time I have got to do? Four more years?
“The Court: No. You have got to do 96 months less how many months has he been in? “Mr. Costain: About 16.
“The Court: All right, so you have got to do 80 months.
“Now you (indicating) wanted to say something?
“Mr. Harmon: Just wanted to ask him some questions.
“Mr. Costain had you sign a form? Right?
“The Defendant: Yes.
“Mr. Harmon: Did you read that over? Are you able to read?
“The Court: He is not trying to hurt you, Mister. I forgot to ask you a couple of questions.
“The Defendant: I know how to read.
“Mr. Harmon: Okay. Were you able to understand the information on the form?
“The Defendant: Yes.
“The Court: And you signed your name each time? Right?
“The Defendant: Yes.
“Mr. Harmon: Now are you pleading guilty after you have discussed this case with Mr. Costain, guilty and no contest, the way that you said?
“The Court: What he is asking, have you had a full chance to talk to Mr. Costain? Is that right?
“The Defendant: Yes, I did.
“Mr. Harmon: And nothing about what has been happening to the jury has any effect on you pleading guilty, has it?
“The Court: Well, I don’t think—
“Have you followed your attorney’s advice in pleading guilty?
“The Defendant: Have I followed my attorney’s advice?
“The Court: Yes.
“The Defendant: Yes. Do you want me to answer your question?
“Mr. Costain: I don’t think that that is an entirely proper question to ask him.
“The Court: Mr. Costain did not threaten you in any fashion?
“The Defendant: No.
“The Court: All right.
“Mr. Harmon: Okay. Just a couple of other questions.
“Now, the motion. Remember the motion about whether or not you were arrested properly and whether or not Mr. Owens was arrested properly? Do you remember that?
“The Defendant: Yes, I remember it.
“Mr. Harmon: Okay. Now, one of the things that you have to do and one of the conditions in order to get the 12 years that the judge is going to give you, you have to agree to give up your right to appeal that. Do you understand that?
“Do you understand?
“The Defendant: Yes.
“Mr. Harmon: Okay.
“The Defendant: You see, my attorney didn’t talk to me about that.
“Mr. Harmon: All right. Let me ask some questions. I think he has got some questions to ask you about that.
“You realize that in order to get the 12 years that the judge is going to give you, that you are agreeing to give up your right to appeal that motion? Do you realize that?
“The Defendant: Yes.
“Mr. Harmon: And you are doing that so that you can get the 12 years, aren’t you? I mean that is one of the reasons that you are giving it up; isn’t it?
“The Court: You are giving up your right to appeal so that you don’t get stuck with [568]more than 12 years.
“The Defendant: I am pleading guilty so that I don’t get more than 12 years.
“The Court: That’s right, and in doing that, you are also giving up your right to appeal.
Right?
“The Defendant: Yes.
“Mr. Harmon: And you realize that one of the reasons he is agreeing to give you 12 years is because you gave up your right to appeal that. Do you understand that?
“The Court: Do you understand what he is saying?
(The defendant nods affirmatively.)
“The Court: I would not agree—sir, put another way, I would not agree to 12 years if you weren’t giving up your appeal. Do you understand that?
“The Defendant: Yes, I understand that. My lawyer told me something else.
“The Court: I know what your lawyer told you, and he can discuss that, but that is what the record reads.
“As far as I’m concerned, you have no right to appeal.
“Now, an appellate court might say something otherwise but I say when you take advantage of this plea and you plead guilty under those circumstances.
“And I’m fully aware of the provisions of the code.
“Mr. Costain: I want to put on the record, too, that I have explained to Mr. Charles that he has given up the right to appeal under 1538.5 and I have also explained to him that I don’t think that this issue is valid or, at least, that the issue is unsettled in the California courts, and I would file an appeal on that issue.
“The Court: And I would deny a certificate of probable cause.
“Mr. Harmon: Let me state my position very briefly.
“I totally disagree with the Court indicating what you are going to sentence him. I’m going to do everything within my effort to convince you that that is improper, that he should get a much more severe sentence.
“I do this not out of any effort to make your judgment look bad but because that is what I think should be done.
“The Court: Mr. Harmon, you fully declared that to me, and I told you at the time I understand what you wish to do, and you do what you think is legally appropriate for you to do.” (Italics added.)