INTRODUCTION
Before the trial court accepts a defendant’s guilty or no contest plea, the court must advise the defendant of his or her maximum possible sentence if convicted of all charges. Failure to do so may be good cause to allow the defendant to withdraw the plea. In advising the defendant of the maximum possible sentence, does the court have to take into account the potential consequences of Penal Code section 654?* 1 Our answer is no.
Defendant Vaughn Archer appeals from the trial court’s order denying his motion to withdraw his no contest plea. Archer contends that the trial court overstated the maximum sentence he faced if convicted on all nine of the charges against him when the court advised him that he faced a maximum sentence of 34 years four months to life. Archer asserts that the trial court should have taken into account that section 654 would have applied to stay the sentences on some of the charges, and that, considering section 654, the maximum sentence Archer actually faced was 23 years to life. Archer contends that had he known his maximum sentence was 23 years to life rather than 34 years four months to life, he would not have accepted the negotiated disposition of 27 years four months. We conclude the trial court did not abuse its discretion in denying Archer’s motion to withdraw his plea, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Crimes
At 6:00 a.m. on October 27, 2011, Hagi Ahmad was sitting in his car with the windows up in front of a convenience store before his class at Los Angeles Trade Technical College. While he was waiting for the store to open so he could buy some food for breakfast before school, he saw Archer “punching” the car windows and saying something Ahmad could not hear. When Ahmad opened the car door and asked him what he wanted, Archer pulled on the door and said, “Okay, I own you now. Give me my car keys.” Ahmad tried to close the door and said, “This is not your car. This is my car.” Archer overpowered Ahmad, took the key out of his hand, punched him, and
Archer left, only to return and start hitting and kicking Ahmad again. Archer took Ahmad’s watch and cell phone and tried unsuccessfully to take the rings off his fingers. Archer then dragged Ahmad by the hood of his sweatshirt about a block and left him in the middle of the intersection, where a car almost hit him. Archer went back to Ahmad’s car and drove it away.
Approximately half an hour later, Jon Murga was withdrawing cash from an automated teller machine. As he drove to the loading dock of a produce distributor to pick up some produce for a grocery store he owned, he noticed a car following him. Murga parked near the loading dock and was putting down the seats in his car when Archer approached. Archer was very animated and was trying to engage Murga in conversation, but Murga ignored him. Archer then demanded Murga’s car keys. He grabbed a crowbar that was on the backseat of Murga’s car and started chasing Murga with the crowbar. Archer approached Murga swinging his fists, and Murga ran into the middle of the street and tripped on a pothole. Archer assaulted him and took the car keys.
Murga called for help and a dispatcher from the produce distributor, Kipp Skaden, came to his aid. Archer attacked Skaden and Murga with the crowbar and hit Skaden on the head and elbow. Archer then went back to Murga’s car and drove away. Murga’s wallet and passport were in the car, along with clothing and other personal items. Skaden’s injuries required stitches. The police recovered Murga’s car, passport, and credit cards, as well as Ahmad’s cell phone, at a hotel in Van Nuys, California, where Archer had gone after committing the crimes.
The People, in the second amended information, charged Archer with nine counts: (1) second degree robbery (§211; Ahmad); (2) carjacking (§ 215, subd. (a); Ahmad); (3) second degree robbery (§ 211; Murga); (4) carjacking (§ 215, subd. (a); Murga); (5) assault with a deadly weapon (§ 245, subd. (a)(1); Ahmad); (6) assault with a deadly weapon (§ 245, subd. (a)(1); Murga); (7) assault with a deadly weapon (§ 245, subd. (a)(1); Skaden); (8) battery with serious bodily injury (§ 243, subd. (d); Ahmad); and (9) kidnapping to commit robbery (§ 209, subd. (b)(1); Ahmad). The information alleged with respect to counts 3, 4, 6, and 7 that Archer had used a deadly and dangerous weapon (a tire iron against Murga and Skaden) pursuant to former section 12022, subdivision (b)(2), and with respect to count 7 that Archer had personally inflicted great bodily injury (on Skaden) pursuant to former section 12022.7, subdivision (a). The information further alleged with respect to counts 1, 2, 5, 8, and 9 that Archer had personally inflicted great bodily injury
B. The Plea Agreement
On November 1, 2012, Archer appeared in court with his attorney. The People offered Archer 27 years four months, and Archer responded with a counterproposal of 16 years. The trial court stated, “It’s not ‘Let’s Make a Deal.’ Their offer is 27 years, 4 months, which is what you’re facing on everything other than the kidnapping. For kidnapping, you’re facing life in prison. If you’re convicted on everything, then the sentence you’re facing is 34 years, 4 months to life.” Archer stated, “That’s a lot of time for a person that does not have no strikes or no prior violence.” The trial court stated, “I agree. It’s a lot of time. It’s easy for us to say. We don’t have to do the time. . . . But on the other hand, you have to face the fact that, if you’re convicted, you’re looking at 34 years, 4 months to life. Basically, you’re going to die in prison. The People’s offer would be to allow you to have a life after you do your time.” The trial court added that at 85 percent, Archer would “have to do 23 years and ... a fraction [of] years before you would be paroled. If you’re convicted on everything, there’s no guarantee you would ever be paroled.” After a pause in the proceedings, the court stated, “I can’t get to a number less than 27 [years], 4 [months] on an open plea.”
After a recess, counsel for Archer told the court that Archer wanted to accept the People’s offer. The court stated that it would postpone sentencing to allow Archer to obtain his general equivalency diploma (G.E.D.) and participate in a merit program. The court then turned to the People’s second amended information, which required several corrections. The most significant correction was that the parties had confirmed that Archer had no prior strikes, and therefore the People moved to dismiss the strike allegations that the People had alleged in a prior information. The court granted the motion to dismiss, stating, “now we’re going to strike those [allegations] so that he doesn’t have all of those pending, and the calculation I had . . . made as to his maximum time was on—assuming those are stricken.” Counsel for Archer said his client would be admitting the four prior prison term allegations. The trial court then stated that Archer would receive a total sentence of 27 years four months.* 2
After a recess, counsel for Archer reported that Archer wanted to accept the offer and continue with his plea. Archer acknowledged that no one had used any force to make him enter his plea or made him any promises about what would happen to him or his case other than what had been discussed in court. Archer stated that he understood and gave up his rights to a speedy trial, to confront and cross-examine witnesses, against self-incrimination, to present a defense, and to use the subpoena power of the court at no expense to him.
3
Archer then entered his pleas of no contest and admitted the remaining allegations. The court found, “Having heard the defendant being advised and questioned concerning his rights and the consequences of his plea and being satisfied with the answers to those questions, and the defendant being represented by counsel and consulting with counsel as he deemed appropriate, I find that the defendant has knowingly, expressly, intelligently and understanding^ waived and given up his rights and entered a plea that’s, in fact, free and voluntary and made with an understanding of the nature of the plea and the consequences thereof. I accept his plea, and he’s convicted upon his plea.” The court, after a time waiver, set probation and sentencing for
C. The Motion to Withdraw the Plea
On February 19, 2013, Archer appeared in court with his attorney. The trial court indicated it was prepared to impose the agreed-upon sentence of 27 years four months. Counsel for Archer advised the court, however, that Archer wanted “to make a motion to withdraw his plea at this point” because “he has received information that there is new evidence.” The court stated, “It sounds like buyer’s remorse to be honest. I will put it over and give you an opportunity to make a presentation to the court.”
On March 25, 2013, Archer made a motion to represent himself pursuant to
Faretta v. California
(1975)
On July 8, 2013, Archer filed his motion to withdraw and change his plea, based on “fraud, duress, denial of effective assistance of counsel, and mistake ignorance or inadvertence or another factor overreaching the exercise of clear and free judgment.” Archer asserted that the trial court, the prosecutor, and defense counsel “used fraud [and] duress to illegally induce [an] involuntary plea of trickery and deception and illegal threats of 34 years to life.” Archer stated in his declaration that under section 654 the court could not punish him for both assault and robbery, that his “maximum potential time was miscalculated” as “33 years to life,” and that he agreed to 27 years four months because of the threat that he “would never get out unless I took this time.” Archer argued in his memorandum of points and authorities that his former attorney’s “permitting him to enter a plea that resulted in years difference of imprisonment constitutes a [dereliction] of his duty to ensure defendant entered his plea with full awareness of the relevant circumstances and the likely consequences of his actions.” Archer referenced the trial court’s statement that he was “going to die in prison” and his statement at the hearing that he felt pressured into pleading guilty.
The People opposed the motion. The People argued that Archer “has not provided one specific instance” of “fraud, mistake, inadvertence, ignorance, and ineffective assistance of counsel,” and “has not pointed to any specific fact or piece of evidence that caused him to be misled or is an indication of fraud.”
On August 2, 2013, the trial court sentenced Archer pursuant to the plea agreement. The court granted Archer’s request for a certificate of probable cause. Archer filed a notice of appeal that same day.
DISCUSSION
Archer argues that the trial court “erred in denying his motion to withdraw his guilty plea” because the court misstated “the maximum term of imprisonment he faced if he went to trial” as 34 years four months to life, when, if section 654 applied to some of the charges, the maximum term Archer faced was 23 years to life. Archer does not directly challenge the trial court’s calculation of 34 years four months to life as the maximum prison term, but he argues that the court should have applied section 654 in calculating his potential maximum sentence and that had the court done so the court would have calculated, and advised Archer of, a lower maximum sentence. Archer contends that the trial court’s failure to advise him of the effect section 654 could have on his maximum prison term violated his rights under section 1018, 4 and that the court’s “substantial misstatement of the maximum term he faced if convicted as charged renders his plea subject to withdrawal.” Archer asserts that he “sought to withdraw his guilty plea prior to the imposition of sentence, after learning of the true maximum term he faced if he were convicted after trial; a term significantly less onerous [than] stated by the court.”
A. Burden of Proof and Standard of Review
“A decision to deny a motion to withdraw a guilty plea ‘ “rests in the sound discretion of the trial court” ’ and is final unless the defendant can show a clear abuse of that discretion. [Citation.] Moreover, a reviewing court must adopt the trial court’s factual findings if substantial evidence supports them. [Citation.]”
(People v. Fairbank
(1997)
B. Archer Has Not Met His Burden of Showing the Trial Court Abused Its Discretion in Denying Archer’s Motion to Withdraw His Plea
A trial court may allow a defendant to withdraw his or her guilty or no contest plea under section 1018 for good cause shown by clear and convincing evidence. (See
People v. Williams
(1998)
Because “[t]he trial court has broad latitude in determining whether section 654, subdivision (a) applies in a given case”
(People
v.
Garcia
(2008)
Moreover, the nature of the inquiry under section 654 is intensely factual and cannot be determined in advance, particularly where, as here, there has not been a trial. “ ‘Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the “intent and objective” of the actor.’ [Citation.]”
(People v. Retanan
(2007)
The applicability and operation of section 654 in the absence of a trial or evidentiary hearing is particularly problematic in this case because of the multiple incidents of criminal activity by Archer and the several instances where Archer attacked, paused, and resumed his assault on his victims. With respect to Ahmad, the testimony at the preliminary hearing was that Archer (1) beat and punched Ahmad and took his car keys; (2) dragged Ahmad to the sidewalk and hit and kicked him there; (3) left and then returned sometime later to attack Ahmad again; (4) took Ahmad’s watch and cell phone and attempted to steal his rings; and (5) dragged Ahmad into the middle of the street where a car almost ran him over. With respect to Murga, the testimony was that Archer (1) assaulted Murga with a crowbar; (2) took his car keys after he fell; (3) attacked Murga a second time and attacked Skaden; and (4) took Murga’s car, stealing his wallet and other personal items with it. Section 654 very well may have applied to some of the charges against Archer. But to calculate the precise effect of section 654 on Archer’s sentence at the time of the entry of his plea, without the benefit of a trial or evidentiary hearing, would be speculative. The trial court’s failure to give an advisory opinion on the effect of section 654 on Archer’s maximum sentence, before hearing all of the evidence either at trial or an evidentiary hearing, was not clear and convincing evidence of good cause under section 1018 for Archer to withdraw his plea. (See
People v. Nocelotl
(2012)
Even Archer’s proposed anticipatory application of section 654 is premised on speculation. For example, Archer asserts that “the five counts involving Mr. Ahmad must be broken up into two separate incidents,” and had Archer “been convicted following trial any sentence on counts [1], [5], and [8] would have to be stayed.” Archer states that, “To the extent that the assault (count [5]) and/or the battery (count [8]) involved the altercation immediately following [Archer] throwing Mr. Ahmad out of the car, these counts would be ‘folded into’ the caijacking alleged in count [2].” Perhaps, but perhaps not.
Nor, contrary to Archer’s assertion, did the trial court’s failure to perform a section 654 analysis amount to a failure to advise him of the consequences of his plea. The trial court must advise the defendant “ ‘of the direct consequences of the conviction such as the permissible range of punishment provided by statute . .. .’ [Citation.]”
(People v. Barella
(1999)
People
v.
Goodwillie
(2007)
Finally, even if the trial court had misadvised Archer, Archer would not be entitled to withdraw his plea of guilty because he did not make a sufficient showing of prejudice. A defendant, on direct appeal or habeas, “is entitled to relief based upon a trial court’s misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement.”
(In re Moser, supra,
Archer cites
In re Carabes
(1983)
C. Archer Did Not Receive Ineffective Assistance of Counsel
Archer argues that the attorney representing him at the time he entered his guilty plea “did not offer competent advice on the law with respect to the maximum sentence [Archer] faced if convicted at trial; in fact, the record shows that it was [Archer] himself who figured out that . . . section 654 would prohibit the court from running sentences on all counts consecutively if [Archer] went to trial and were convicted as charged.” Archer complains that his attorney “was silent in the face of a misrepresentation of the maximum term by the trial court.”
Archer is correct that he is entitled to effective assistance of counsel in determining whether to accept or reject a plea bargain. (See
Lafler v. Cooper
(2012) 566 U.S._,_ [
The order is affirmed.
Perluss, P. J., and Zelon, J., concurred.
On October 14, 2014, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied January 14, 2015, S221503.
Notes
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
All statutory references are to the Penal Code.
The court calculated this sentence as follows: 12 years on count 4, carjacking (principal term, Murga) (high term of nine years plus three years for the personal use of a deadly weapon); two years on count 1, second degree robbery (Ahmad) (one-third the middle term of three years plus one year for infliction of great bodily injury); two years eight months on count 2, carjacking (Ahmad) (one-third the middle term of five years plus one year for infliction of
Counsel for Archer joined in the waivers and concurred in the plea.
Section 1018 provides in pertinent part: “On application of the defendant at any time before judgment... the court may ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.”