Filed 9/15/14 Modified and Certified for Pub. 10/14/14 (order attached)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                            DIVISION SEVEN


THE PEOPLE,                                                    B250502

        Plaintiff and Respondent,                              (Los Angeles County
                                                               Super. Ct. No. BA390420)
        v.

VAUGHN ARCHER,

        Defendant and Appellant.




        APPEAL from an order of the Superior Court of Los Angeles County, Carol H.
Rehm, Jr., Judge. Affirmed.
        Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Chung Mar and Jessica C.
Owen, Deputy Attorneys General, for Plaintiff and Respondent.


                                         ____________________
                                   INTRODUCTION


       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, 4 months to life.
Archer asserts that the trial court should have taken into account that Penal Code
section 6541 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, 4 months to life, he would not have accepted the negotiated
disposition of 27 years, 4 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 threw him




1      All further section references are to the Penal Code.


                                             2
on the street. Archer then took Ahmad over to the sidewalk and punched and kicked him
in his head, chest, and leg.
       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
credits 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);


                                             3
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 section 12022,
subdivision (b)(2), and with respect to count 7 that Archer had personally inflicted great
bodily injury (on Skaden) pursuant to 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 (on Ahmad) pursuant to section 12022.7, subdivision (a). The
information also alleged that all counts other than count 5 were serious or violent
felonies, and that Archer had suffered four prior convictions for which he had served
prior prison terms (§ 667.5, subd. (b)).


       B.     The Plea Agreement
       On November 1, 2012 Archer appeared in court with his attorney. The People
offered Archer 27 years and 4 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


                                              4
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, 4 months.2
       The prosecutor asked Archer a series of questions about his understanding of the
proposed disposition and gave him various advisements. Archer acknowledged that he
understood the proposed disposition and had no questions, that he had spoken with his
attorney and wanted to go forward with the proposed disposition, and that his no contest
plea was the same as a guilty plea. Archer was advised and acknowledged that as a result
of his plea he was “going to have lots of strikes” and the commission of another crime
could result in “an immense sentence.” Archer was further advised and stated he
understood that when he was released from prison he would be on parole for a period of


2       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 great bodily injury); one year, eight months on count 3,
second degree robbery (Murga) (one-third the middle term of three years plus eight
months for personal use of a deadly weapon); two years on count 5, assault with a deadly
weapon (Ahmad) (one-third the middle term of three years plus one year for infliction of
great bodily injury); one year on count 6, assault with a deadly weapon (Murga) (one-
third the middle term of three years); two years on count 7, assault with a deadly weapon
(Skaden) (one-third the middle term of three years plus one year for infliction of great
bodily injury); and four years for four prior prison terms. Under the plea agreement, the
court would dismiss counts 8 and 9.


                                             5
three years, that he would have to pay restitution, and that he would be eligible for
conduct credit of up to 15 percent while he was imprisoned. When asked if he had any
questions, however, Archer made a reference to the amended information and stated that
he did not “feel right with this” and he was “in the dark.” Archer stated, “Now, I feel
that, if I don’t take this deal, then I’m going to get life. So I feel like I have no choice but
to take this case.” The trial court stated, “If you’re convicted of all counts, you’re facing
34 years, 4 months to life. That’s correct.” Archer stated he felt pressured into taking the
deal and was expressing his concerns.
       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 understandingly 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
February 19, 2013. Archer stated that he wanted “to apologize for [his] attitude. It’s a lot
of time.” The court stated, “No problem. Your apology’s accepted.” The court
concluded, “Mr. Archer, I’ll see you back in February. You keep working on those
programs, and I hope things work out on them for you.”


3      Counsel for Archer joined in the waivers and concurred in the plea.


                                               6
        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, 4 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) 422 U.S. 806, 835-836 [95 S.Ct. 2525, 45 L.Ed.2d 562]. The court
granted the motion and gave Archer time to prepare and file his motion to withdraw his
plea.
        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 and
4 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



                                              7
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.”
       After Archer filed a peremptory challenge to the trial judge who had been hearing
his case, a different judge heard Archer’s motion to withdraw his plea. On July 31, 2013
the trial court denied Archer’s motion. The court stated: “Nothing on this record
demonstrates how, Mr. Archer, you would have prevailed had you gone to trial or what
evidence existed that might exonerate you. Nothing on this record demonstrates that the
People . . . offered you a better disposition or that they would have made such an offer.
Nothing on this record demonstrates that you were entering your plea under duress or
trickery or fraud. Everything was explained to you. You knew the maximum potential
you faced if you want to trial. You said you understood everything and this was the
disposition that you wanted. There’s nothing on this record that indicates anything your
attorney did prejudiced you. Nothing demonstrates that your attorney’s conduct in this
matter fell below the prevailing standard for the defense. And erroneous advice of
counsel does not require a grant of a motion to withdraw. . . . So the bottom line here,
Mr. Archer, is that you’ve demonstrated an insufficient basis to grant your motion, and
your motion is denied.”
       On August 2, 1013 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, 4 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, 4 months to life as the maximum prison
term, but he argues that the court should have applied section 654 in calculating his


                                             8
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 prejudicial mistake in advising a defendant of his or her maximum possible
sentence can constitute good cause for withdrawal of a plea. (See In re Moser (1993) 6
Cal.4th 342, 351-352; People v. Johnson (1995) 36 Cal.App.4th 1351, 1357.) We
conclude, however, that in advising Archer of the maximum sentence he faced, the trial
court did not have to determine what effect, if any, section 654 might have had on
Archer’s sentence had Archer proceeded to trial and been convicted on all charges and
allegations.


       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) 16 Cal.4th 1223, 1254; accord, People v. Breslin (2012) 205 Cal.App.4th 1409,
1416.) “‘Guilty pleas resulting from a bargain should not be set aside lightly and finality
of proceedings should be encouraged.’ [Citation.]” (People v. Weaver (2004) 118
Cal.App.4th 131, 146.) “[T]he fact that a hearing court’s ruling on a section 1018 motion


4       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.”


                                              9
is reviewed by us under the ‘abuse of discretion’ standard appropriately results in our
paying considerable deference to the hearing court’s factual findings: ‘“All questions of
the weight and sufficiency of the evidence are addressed, in the first instance, to the trier
of fact, in this case, the trial judge.”’” (People v. Nance (1991) 1 Cal.App.4th 1453,
1460, fn. 4.)


       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) 17 Cal.4th 148, 167.) “To establish good cause to withdraw a guilty
plea, the defendant must show by clear and convincing evidence that he or she was
operating under mistake, ignorance, or any other factor overcoming the exercise of his or
her free judgment, including inadvertence, fraud, or duress.” (People v. Breslin, supra,
205 Cal.App.4th at p. 1416; see People v. Johnson (2009) 47 Cal.4th 668, 679.) The
defendant may not withdraw a plea because the defendant has changed his or her mind.
(People v. Nance, supra, 1 Cal.App.4th at p. 1456; accord, People v. Huricks (1995) 32
Cal.App.4th 1201, 1208.)
       Failing to explain to Archer the possible effects section 654 might have on his
sentence was not a mistake, let alone a mistake that overcame Archer’s exercise of free
judgment, nor did it cause Archer to operate in ignorance when he entered his plea.
Section 654 gives the trial court the authority “‘to impose punishment for the offense that
it determines, under the facts of the case, constituted the defendant’s “primary objective”’
keeping in mind the overall purpose of section 654. [Citation.]” (People v. Cleveland
(2001) 87 Cal.App.4th 263, 268.) The court must stay execution of sentence on any
convictions arising out of the same course of conduct and committed with the same
objective. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.)
       Because “[t]he trial court has broad latitude in determining whether section 654,
subdivision (a) applies in a given case” (People v. Garcia (2008) 167 Cal.App.4th 1550,


                                             10
1564), the court cannot predict in advance how it will rule at sentencing. (See People v.
Ortiz (2012) 208 Cal.App.4th 1354, 1378 [“‘[w]hether section 654 applies in a given case
is a question of fact for the trial court, which is vested with broad latitude in making its
determination’”]; People v. Tarris (2009) 180 Cal.App.4th 612, 626 [“‘[t]he question
whether . . . section 654 is factually applicable to a given series of offenses is for the trial
court, and the law gives the trial court broad latitude in making this determination’”].)
The trial court has no obligation or even ability to determine how it (or another trial
court) will exercise its discretion at a future stage of the proceedings.
       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) 154 Cal.App.4th 1219, 1229.) “‘The defendant’s intent and objective present
factual questions for the trial court . . . .’ [Citation.]” (People v. Petronella (2013) 218
Cal.App.4th 945, 964.) The trial court usually makes these determinations after hearing
all of the facts and circumstances of the case at trial. (See People v. Ross (1988) 201
Cal.App.3d 1232, 1240 [“[t]he factual questions that are involved in determining the
applicability of the statute—for example, whether the defendant held multiple criminal
objectives—will in the vast majority of cases be resolved by the sentencing judge on the
basis of the evidence received during trial”].) Even where, as here, the defendant enters a
guilty plea and there is no trial, the trial court has the authority to conduct an evidentiary
hearing to determine whether and how to apply section 654. “[W]here the evidence
produced during trial sheds insufficient light on the [section] 654 issues or where, as here,
a guilty plea is entered and there is no trial,” the trial court may “hold an evidentiary
hearing to establish an otherwise nonexistent factual basis for a necessary sentencing
decision” under section 654. (Ross, supra, at pp. 1240-1241.) As Archer concedes, “the



                                               11
applicability of . . . section 654 can be somewhat tricky and is dependent on the particular
facts of the case.”
       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 crow bar; (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)
211 Cal.App.4th 1091, 1096 [“‘“burden is on the defendant to present clear and
convincing evidence the ends of justice would be subserved by permitting a change of
plea to not guilty”’”].)
       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


                                              12
car, these counts would be ‘folded into’ the carjacking alleged in count [2].” Perhaps, but
perhaps not. First, it is possible that Archer’s crimes against Ahmad would be “broken
up” into more than “two separate incidents.” The preliminary hearing testimony suggests
that Archer (1) used force to gain possession of Ahmad’s car, (2) took Ahmad to the
sidewalk and assaulted and battered him again after achieving his goal of obtaining
Ahmad’s car, (3) left Ahmad only to return and assault and batter him some more. Thus,
depending on what the evidence would have been at trial, Archer may have had more
than two intents and objectives just with respect to Ahmad. Similarly, Archer asserts
with respect to Murga that he “could not be separately sentenced for the carjacking and
the assault, counts [4] and [6],” because “the evidence shows that the assault on Mr.
Murga was no more than the force necessary to achieve the goal of carjacking.” Again,
not necessarily. According to the testimony at the preliminary hearing, Archer (1) used
force to obtain Murga’s car keys after Murga fell in the pothole, and then, rather than
driving away, (2) commenced a second attack when Skaden attempted to assist Murga.
The evidence at trial could show that in engaging in this conduct, Archer had two intents
and objectives: stealing Murga’s car and, once he had accomplished that by force, using
additional force to inflict further injury on Murga (as Archer had with Ahmad).
       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) 20 Cal.4th 261, 266; see Bunnell v. Superior Court (1975) 13
Cal.3d 592, 605.) In order to properly advise Archer of the maximum of the statutory
range of punishment, the trial court had to disregard factors, like section 654, that might
(or might not) reduce Archer’s sentence.
       People v. Goodwillie (2007) 147 Cal.App.4th 695, cited by Archer, is
distinguishable. In that case the court and the prosecutor erroneously advised the
defendant in plea discussions that the maximum conduct credit the defendant could earn
in prison was 15 percent, when in fact the maximum conduct credit the defendant could


                                             13
earn was 50 percent. (Id. at pp. 731-733.) The defendant rejected the prosecutor’s offer
of five years, four months, went to trial, and received an aggregate sentence of 10 years.
(Id. at pp. 706, 732.) The court held that “the court and the prosecutor had a duty not to
misinform [the defendant] as to his potential eligibility for 50 percent conduct credits,”
and that providing the defendant with this “inaccurate information . . . caused him to
reject an offer that was more favorable to him than the sentence he received after trial,
and deprived him of the opportunity to reach any other plea bargain.” (Id. at p. 733.)
Unlike the conduct credit limitation in Goodwillie, which would have automatically and
inexorably capped the defendant’s credit at a certain percentage regardless of the
defendant’s actual conduct in prison, the effect of section 654 on a sentence is speculative
and uncertain. (Cf. People v. Barella, supra, 20 Cal.4th at p. 272 [“a defendant is not
entitled to withdraw or set aside a guilty plea on the ground that the trial court, in
accepting the plea, failed to advise the defendant of a limit on good-time or work-time
credits available to the defendant”]; People v. Zaidi (2007) 147 Cal.App.4th 1470, 1486
[“good time/work time credits and eligibility for parole . . . depend on unknowable events
that occur after the defendant’s incarceration” and “possible early release is speculative
when the plea is taken and depends on facts that have not yet occurred”].)
       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, 6 Cal.4th at p. 352; see
People v. Breslin, supra, 205 Cal.App.4th at p. 1416 [“[t]he defendant must also show
prejudice in that he or she would not have accepted the plea bargain had it not been for
the mistake”].) Nowhere in his declaration in support of his motion to change his plea
did Archer ever state that he would not have accepted the plea bargain had it not been for
the claimed mistake. Archer stated in his declaration that he “pleaded guilty under duress
and ignorance, . . . to 27 years 4 months . . . on threat from counsel that [he] would never


                                              14
get out unless [he] took this time,” but he did not state that, had the court advised him of
the possible effects of section 654, he would not have accepted the deal and would have
insisted on going to trial. (See In re J.V. (2010) 181 Cal.App.4th 909, 914 [the “bare
assertion of prejudice is not enough”]; cf. People v. Zaidi, supra, 147 Cal.App.4th at pp.
1488-1489 [defendant made more than “a naked assertion” of prejudice when he
“supported his petition with a declaration that . . . [h]ad he known [registration as a sex
offender] was a lifetime requirement, he would never have entered his plea and would
have insisted on going to trial”].)
       Archer cites In re Carabes (1983) 144 Cal.App.3d 927. In that case the court
found that the defendant had met his burden of showing prejudice because “[p]romptly
after becoming aware of the parole consequence, [he] sought to withdraw his plea on the
ground he was not aware of this consequence,” from which “[t]he clear inference” was
that “had he been aware of the parole consequence, he would not have pled guilty.” (Id.
at p. 933.) Although there is no evidence of when Archer learned about the section 654
issue, the record suggests that he did not move “promptly.” In addition, in this case the
trial court accepted Archer’s plea on November 1, 2012, and Archer did not indicate that
he wanted to withdraw his plea until February 19, 2013, after the court had allowed him
to continue in several educational programs. Although we do not address the People’s
argument that Archer is estopped from challenging the validity of his plea because he
“accepted a benefit of the bargain,” the fact that, as the People argue, Archer “was
allowed to avoid the imposition of his sentence” to participate in the education programs
further distinguishes Carabes.


       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


                                             15
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) ___
U.S. ___, ___ [132 S.Ct. 1376, 1387, 182 L.Ed.2d 398]; In re Alvernaz (1992) 2 Cal.4th
924, 933; In re Vargas (2000) 83 Cal.App.4th 1125, 1133.) Archer, however, was not
denied effective assistance of counsel. As noted, the trial court did not misrepresent the
maximum term Archer faced if convicted, so counsel for Archer was not ineffective for
being silent in court in the face of a statement that was not a misrepresentation.
Moreover, there is no evidence that Archer received incorrect advice that caused him to
accept the plea deal. (See In re Alvernaz, supra, at p. 934 [“in order successfully to
challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant
must establish not only incompetent performance by counsel, but also a reasonable
probability that, but for counsel’s incompetence, the defendant would not have pleaded
guilty and would have insisted on proceeding to trial”]; cf. People v. Carter (2003) 30
Cal.4th 1166, 1211 [“[i]f the record on appeal sheds no light on why counsel acted or
failed to act in the manner challenged, an appellate claim of ineffective assistance of
counsel must be rejected unless counsel was asked for an explanation and failed to
provide one, or there simply could be no satisfactory explanation”].) Archer stated only
that his trial counsel failed to advise him about section 654 “prior to plea of guilty.”




                                              16
                                    DISPOSITION


      The order is affirmed.



                                                SEGAL, J.*


We concur:



             PERLUSS, P. J.



             ZELON, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                           17
Filed 10/14/14
                               CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                        DIVISION SEVEN


THE PEOPLE,                                            B250502

        Plaintiff and Respondent,                      (Los Angeles County
                                                       Super. Ct. No. BA390420)
        v.
                                                        ORDER MODIFYING OPINION
VAUGHN ARCHER,                                          AND CERTIFYING FOR
                                                        PUBLICATION,
        Defendant and Appellant.                        NO CHANGE IN JUDGMENT




THE COURT:
        It is ordered that the opinion filed herein on September 15, 2014, be modified as
follows:
        1. On page 2, after the Introduction heading, add the following paragraph as the
first paragraph:
                        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.

        2. On page 2, the new footnote 1, as indicated in the insert noted in No. 1 above,
is to read as follows:
                 1All   statutory references are to the Penal Code.
         3. On page 2, at the end of line 5, delete the words “Penal Code”; at line 6, after
“section 654” delete the footnote 1 designation, so that the sentence now reads in part:
                  Archer asserts that the trial court should have taken into account that
                  section 654 would have applied . . . .

         4.       On page 8, first full paragraph, the first sentence beginning “After Archer
filed” is modified to read as follows:
                         After Archer filed a peremptory challenge to the trial judge
                  who had been hearing his case (Hon. William C. Ryan), a different
                  judge (Hon. Carol H. Rehm, Jr.) heard Archer’s motion to withdraw
                  his plea.

         There is no change in the judgment.
         The opinion in the above-entitled matter filed on September 15, 2014 was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion meets the standards for publication specified in California Rules of Court,
rule 8.1105(c), and respondent’s request for publication pursuant to California Rules of
Court, rule 8.1120(a) is granted.
         IT IS HEREBY ORDERED that the words “Not to be Published in the Official
Reports” appearing on page 1 of said opinion be deleted and the opinion be published in
the Official Reports.




__________________                     ___________________                       ___________________
PERLUSS, P. J.                          ZELON, J.                                SEGAL, J.*




*
         Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.



                                                          2
