1 Filed 4/1/15 P. v. Murray CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

## COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (San Joaquin)

----

THE PEOPLE, Plaintiff and Respondent,

v. TERRANCE EDWARD MURRAY, Defendant and Appellant. C070936 (Super. Ct. No. SF109498A)

Defendant Terrance Edward Murray appeal s after conviction upon a plea of no contest to residential burglary (Pen. Code, § 459, count 1; unless otherwise stated, statutory section references that follow are to the Penal Code); two counts of residential robbery (§ 211, counts 2 and 3); threatening a witness (§ 140, count 4) ; carjacking (§ 215, subd. (a), count 5); and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a), count 6). He also pleaded no contest to various enhancements, including personal use of a firearm during the commission of the o ffenses. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) The court sentenced defendant in accordance with the plea bargain to 15 years in state prison, consisting of the middle term of five years on count 5 (§ 215, subd. (a))2 plus an additional 10 years for the personal use of a firearm. (§ 12022.53, subd. (b).) The court imposed concurrent sentences on the remaining charges and enhancements.
Defendant raises three conten tions on appeal. First, he claims the trial court erred in denying his motion to withdraw his plea because alleged mental deficiencies rendered his plea involuntary and his counsel was inef fective representing hi m during the plea. Next, he contends the court denied him the fundamental right to be present when the court imposed sentence. Finally, pursuant to section 654, he argues the court should have stayed the sentences on count 1 and its enhancement as well as on count 6.
We find neither an abuse of discretion in denying defendant’s motion to withdraw his no contest plea nor ineffective representa tion when the plea was taken. We also conclude any alleged error in sentencing defendant in his absence was harmless on this record. We do agree, however, that section 654 mandates that the sentences on count 1
and its enhancement and on co unt 6 be stayed to avoid th e prohibition against multiple punishments. We shall direct the trial court to modify the judgment so that the sentence on count 1 for burglary and the enhanced te rm provided in section 12022.5, subdivision (a), as well as the sentence on count 6 for unlawfully taking a vehicle are stayed pursuant
to section 654. As so modified, we affirm.

F ACTS AND P ROCEEDINGS In 2004, Jeffrey Jones shot Dewayne Jack son when Dewayne tried to break up a barroom brawl. Because Dewayne Jackson and his brother, Dwight Jackson, share the same surname, we will refer to them by their first names. Dewayne was paralyzed by the shooting and is confined to a wheelchair. Su bsequently, Dewayne testified against Jones
at Jones’ criminal trial and Jones was sentenced to 44 years in prison. Approximately four years later, on Sept ember 12, 2008, Dewayne and his brother Dwight went to a house in Stockton where Dewayne’s friend, Mario, ran a makeshift3 barbershop. Several people were there when they arrived, including defendant and his friend Anthony Crosby. Dewayne greeted everyone, but defendant would not respond. After speaking with someone on his cell phone, defendant leftthe room and went outside. Dewayne, Dwight, and Crosby, along with two others, stay ed in the house. Defendant returned 30 minutes later carrying two guns , described as a black .9 m illimeter semiautomatic and a black .22 caliber gun, and pointed th e guns directly at Dewayne. Defendant told Dewayne he was “sorry for [Dewayne’s] situation,” but that defendant’s brother had shot Dewayne and De wayne had sent him to prison for 44 years by testifying against him. Defendant or dered Dewayne to “give up everything.” Dewayne threw a necklace chain, a small am ount of cash and a gold grill (caps for his teeth) from his mouth on the floor. Defendant ordered Crosby to re trieve the items. Defendant then turned the guns on Dwight, checked his pockets, and told Dwight to give up whatever he had. Defendant took Dwight’s car keys, wallet, two cell phones, and his Army dog tags, and hand ed the items to Crosby. De fendant walked to the door, told Dewayne, “You’re going to get yours,” a nd then left. Crosby left as well. Dwight ran to the front door of the ho use and saw defendan t and Crosby talking near Crosby’s car. Dwight peeked out the frontdoor and asked defenda nt if he was going to steal his car. Defendant responded yes. Dwight asked him not to steal his car and defendant asked Dwight to come outside to speak with him. Given that defendant had two guns, Dwight refused. Defendant then looked inside Dwight’s car, opened the door and motioned for Crosby to drive off in his own car. Defendant then got into Dwight’s car and drove away. Dwight called the po lice to report the stolen vehicle. The following day, as Dwight was leaving a retail establishment parking lot, he saw Crosby drive into the lot. Dwight ca lled the police and later law enforcement stopped the car Crosby was driving. Dwight picked both Crosby and defendant from a photographic lineup as the people who robbed him.4 During preliminary hearing proceedi ngs approximately two months later,
defendant’s father delivered a pillow case containing two pellet guns to the office of
defendant’s counsel. His father claimed he received the pellet guns from defendant’s cousin, who had purportedly gotten the guns from defendant the day before his arrest.
An information filed in November 2008 charged defendant with first degree residential burglary (§ 459, count 1), two co unts of first degree residential robbery (§ 211, counts 2 and 3), threatening a witne ss (§ 140, count 4), car jacking (§ 215, subd. (a), count 5), and the unlawful driving or ta king of a vehicle (Veh. Code, § 10851, subd. (a), count 6). Various firearm enhancements were also alleged. (§ 12022.5, subd. (a) and 12022.53, subd. (b).) A month later, in Decembe r 2008, the court suspende d criminal proceedings pursuant to section 1370 to de termine defendant’s mental co mpetence. Over the course of the next several months, the court appo inted four different doctors to evaluate
defendant.
Dr. Chellsen assessed defendant in January 2009 and found him competent to
stand trial. In Dr. Chellsen ’s opinion, defendant was malinge ring, exaggerated his mental deficiencies, and had “considerably more unde rstanding of the nature and purpose of the proceedings pending against hi m than he is willing to ack nowledge.” In diagnosing defendant as malingering, Dr. Chellsen noted , “[defendant] failed all of the malingering screening tests administered to him, which st rongly supports the contention that he is exaggerating the extent of his deficits, since even individuals with significant developmental disabilities performreasonably well on these.” In February 2009, Dr. Phillips, a clinical psychologist, reported that defendant did not meet the criteria for a diagnosis of Mental Retardation as his scores on tests measuring his cognitive abilities were in the av erage range and his Full Scale IQ was 95. Dr. Phillips did note, however, that defendant was experiencing psychiatric symptoms at5 that time. A month later Dr. Phillips reiterated his determ ination that defendant did not have a developmental disability , noting defendant had receive d a high school diploma. Dr. Cavanaugh evaluated defendant in March 2009 and concluded defendant was “clearly malingering mental illness” and that he was “capabl e of knowing and understanding the nature and pu rpose of proceedings taken against him.” He therefore opined defendant was competent for trial. According to Dr. Cavanaugh’s report, “[defendant] likely is not very cooperativ e with his attorney, but his malingered symptomatology and behavior ar e consciously produced.” Dr. Rogerson also assessed defendant in March. Dr. Rogerson diagnosed defendant with malingering. He concluded defendant was competent to stand trial and was able to rationally assist counsel if he so chose. Dr. Weiss evaluated defendant in April 2009. Unlike Drs. Chellsen, Cavanaugh, and Rogerson, she found him inco mpetent to stand trial based on a lack of understanding of the charges against him. According to Dr. Weiss, defendant’s thought process was coherent and goal directed, but he had little motivation to help himself in the legal process. Based on Dr. Weiss’s report, in June 2009 the court found defendant incompetent to stand trial and committed him to the Department of Mental Health at Napa State Hospital. In October 2009, Dr. Kokubun, a psychologi st, evaluated defendant while at Napa State Hospital. He first considered whet her defendant was experiencing psychiatric symptoms of a severity that would preclude his ability to understand legal proceedings or assist his attorney in presenting a defense. Dr. Kokubun concluded that defendant was feigning psychotic and co gnitive symptoms since his reported symptoms were
inconsistent from interviewer to interviewer, were atypical a nd not generally observed or reported with genuine psychosis , and were inconsistent with his observed behaviors. Dr. Kokubun opined that defendant possessed the capa city to understand the nature of the criminal proceedings against him and had an adequate factual understanding6 of his legal situation, but that he wa s “volitionally attempting to appear trial incompetent.” “It [was] highly unlikely th at [defendant] would have the ability to remember everyday informati on, but not have the ability to remember information only related to trial competency.” Defendant’s “selective and specific reported lack of knowledge and reported memory impairment as relates to court proceeding and his cases, combined with the test result suggesting feigning memory deficit, [was] highly suggestive of intentional mini mization of his knowledge and understanding of the legal proceeding.” Based on Dr. Kokubun’s report, Napa St ate Hospital filed a Certification of Mental Competency in November 2009. The court then appointed Dr. Weiss to
reexamine defendant. Dr. Weiss again opined that defendant wa s incompetent because he demonstrated a limited understanding of the charges agai nst him and he woul d have significant difficulties rationally assisting hi s attorney. During their interview, defendant referred to his attorney as a witch who put hexes on people.
While Dr. Weiss considered the issue of malingering, she said there was limited information to support such a conclusion. But, Dr. Weiss did not have access to the reports from Drs. Chellsen, Cavanaugh, and Rogerson, who all diag nosed defendant as malingering. Nor did she have access to D r. Kokubun’s report from Napa State Hospital, which gave a detailed summary supporting the multiple malingering diagnoses. In December 2009 the parties stipulated to submit the compet ency issue to the court based on Dr. Weiss’s report. The court found defendant remained incompetent. He was returned to Napa State Hospital in April 2010. In June 2010, Dr. Singh, a staff psychiat rist at Napa State Hospital evaluated defendant. Dr. Singh considered the po ssibility that defendant was experiencing psychotic symptoms as reported by Dr. Wei ss, but concluded “with a reasonable degree of medical certainty” that defendant was “f eigning psychotic and cognitive symptoms.”7 He based his conclusion on many of the sa me reasons cited by Dr. Kokubun, including inconsistent and atypical psychiatric symp toms and screening test scores in the malingering range. Like Dr. Kokubun, he opined that defendant had the capacity to understand the pending charges as well as the criminal proceedings against him, and that he had the ability to communicate clearly, re call past events and learn new information, make decisions, concentrate and answer qu estions directly, and cooperate with his attorney. On July 26, 2010, Napa Stat e Hospital filed a Certificati on of Mental Competency. The court found defendant comp etent pursuant to section 13 72 and reinstated criminal proceedings. On January 6, 2011, defendant pleaded no co ntest to all counts as part of a plea agreement. Prior to the change of plea, th e court and the parties engaged in extensive
discussions about the case. And at defendant ’s request, the prosecutor also met with
defendant and his counsel for an hour and 40 mi nutes to discuss the terms of the plea. Before taking the plea, the court explaine d that defendant could either accept the proffered terms or proceed to tr ial. When defendant responde d that it seemed like he had no choice, the court said it would leave it up to him and acknowledged defendant was facing exposure with both good and bad points if he tried the case. The court informed
defendant that he would recei ve a 15-year sentence under the deal, which would limit his potential exposure to a 30-year sentence. Defendant questioned why he was not entitled to another preliminary hearing after being deemed competent and also inquired about receiving the prosecutor’s pre-preliminar y hearing offer of 13 years. The court then explained that the deal required defendant to plead “no contest,”
and that “no contest” meant defendant was admitting the offe nses. Defenda nt responded
that he understood. After the court told defe ndant he had to serve at least 85 percent of the sentence given the seriousness of the charge s, defendant countered that he thought he
was entitled to half time since it was his first offense and he did not have a record or any8 strikes. His belief was based on discussions with other jail inmates. The court reiterated that he had to serve 85 percent and not half time and defendant said he understood. His attorney had also repeatedly advised him he would have to serve 85 percent of the

sentence. When the court told defendant he woul d have five strikes on his record by pleading to all charges, defe ndant said he thought he wo uld receive 15 years and no
strikes. The court told him no and defend ant said he understood. Defendant later questioned how he could receive five strikes, and the court explained that burglary, robbery, robbery, carjacking, and intimida ting a witness with th e personal use of a firearm all qualified as strikes. Defenda nt commented that “that’s crazy.” At that point, the following exchange t ook place between defendant and the court: “If you want to go to trial, al l you’ve got to tell me is I don’t want to do this. . . . You may win, you may lose. Like I told you ear lier, I don’t want any misunderstanding later.
That’s not a threat. It coul d go in your favor or it coul d go horribly against you. You heard the evidence. It’s not like you didn’t s ee it. . . . You know th at there’s evidence in the case and you know the extent of the evid ence. What do you want to do?” Defendant responded, “I’m going to take the deal.” The court advised defendant that by plead ing he was giving up the right to a judge or jury trial, the right to cross examine w itnesses, the right to prove his innocence, his right to testify, the right against self incrim ination, and his right to ask for less time or reopen the case or appeal. After each separate advisement, defendant affirmatively responded that he understood the rights he was giving up. When asked how he wished to plead to c ount 1, defendant stated: “I don’t even know what to say right now.” His attorney told him to say “no contest,” and he asked,
“What that mean?” As the court did before , she said “no contes t means I admit the charge.” Defendant then said, “Yeah. No co ntest.” When asked how he wished to plead9 to the associated firearm enhancement, defenda nt asked his attorney if he should say the same thing and she nodded affi rmatively. Defendant then stated, “No contest.” Defendant pleaded no contest to counts 2 through 4 and the alleged enhancements, reaffirmed he wanted to plead no contest to those charges and enhancements following a discussion about pleading pursuant to People v. West (1970) 3 Cal.3d 595, and finally pleaded no contest to count 5 and its corresponding enhancemen t and count 6. The court ordered a probation report and set th e matter over for sentencing. In March 2011, defendant requested a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ) to relieve his appointed counsel. After listening to defendant’s concerns, the court denied his Marsden motion. During the hearing defendant also aske d to withdraw his plea. Claiming his
counsel coerced him into taki ng the deal, and that he did not understand what was happening at the change of plea hearing, defe ndant sought to reopen his case. He again stated he did not understand how other jail inmates had received lesser sentences for allegedly more serious crimes. The court ag reed to appoint a new lawyer for the sole purpose of filing a motion to withdraw his plea. In January 2012, defendant moved to withdraw his plea pursuant to section 1018. At the hearing defendant tried to introduce newly discovered evid ence, which consisted of a purported statement by Dewayne that someone other than defendant had robbed him. Defendant refused to address the plea withdr awal motion and would not respond to the court’s repeated inquiries regarding whether he wanted to testify about the grounds for withdrawing his plea. Although defendant claimed he did not understand, the court found otherwise given the length of time defendant had been in court, the plea transcript, the hour and 40 minutes he spent with the prosecutor, and hi s own attorney’s motion to withdraw the plea. The court ultimately removed defendan t from the courtroom fo r being obstreperous
and difficult.10 After defendant was removed from the courtroom, his specially-appointed counsel questioned his trial counsel, Ms . Bossi, about investigating the case, her contacts with defendant, and the circumst ances surrounding the plea. While she believed defendant
suffered from some form of mental retardati on, and that they sometimes had difficulty communicating, in her opinion defendant unders tood the facts that had to be established to prove each of the charged offenses and unde rstood the direct consequences of his plea. Although she believed he was “unhappy” ab out it, ultimately she believed defendant understood the plea and the purpose for entering into it. The court found an absence of good cause to withdraw the plea. In denying the motion, the court noted the lengthy plea disc ussions and that the prosecution presented ample evidence of defendant’s guilt during the preliminary hearing. Given the overwhelming evidence of defendant’s guilt, it was likely he would have been convicted if the case proceeded to trial. Conviction w ould have meant “pretty much a life sentence in terms of thirty plus years,” and defendant was aware of that fa ct. According to the court, “the plea amply reflect[ed] that [def endant] truly understood the gravity of the plea, that he understood why he was pleading, that he pled because it was in his own best
interest to avoid a trial with a sentence that could be double that amount. And then he entered his plea knowingly, voluntarily and willingly in this case.” The court relieved defendant’s special c ounsel, reappointed his trial counsel and sentenced him according to the negotiated disposition. Because defendant had previously been removed from the courtroom for being un cooperative, he was not present when the court pronounced the sentence. Pursuant to the plea agreement, the court sentenced defendant to a total determinate term of 15 ye ars in state prison, im posed as follows: the middle term of five years on count 5, with an additional 10 years for the personal use of a firearm within the meaning of section 12022. 53, subdivision (b). The court imposed the following concurrent sentences on the remain ing offenses: on count 1, the middle term of two years, plus a four-year term for th e personal use of a firearm (§ 12022.5, subd.11 (a)); on counts 2 and 3, the middle terms of four years each, plus an additional 10 years each for the personal use of a firearm (§ 1202 2.53, subd. (b)); on count 4, the middle term of three years, plus an additional four years for the personal use of a firearm (§ 12022.5, subd. (a)); and, on count 6, the middle term of two years. On April 20, 2012, defendant’s former sp ecial counsel filed a notice of appeal and filed a request for a certificate of probabl e cause on defendant’s behalf. The court granted the request.

D ISCUSSION

I

The Motion to Withdraw the Plea
Defendant contends the tria l court abused its discreti on in denying his motion to withdraw his no contest plea because he su ffered from diminished capacity and mental disabilities when he entered the plea. He al so contends his counsel was ineffective in assisting him when the court took his plea.
Section 1018 allows a defenda nt to withdraw his guilty plea before the entry of judgment upon a showing of good cause. ( People v. Weaver (2004) 118 Cal.App.4th 131, 145 ( Weaver); ( People v. Cruz (1974) 12 Cal.3d 562, 56 6 [where a defendant was represented by counsel at the time of the plea, the court has discretion whether to permit withdrawal of the plea upon a showing of good cause].) Section 1018 provides, “[o] n 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. ” (§ 1018.) A defendant bears the burden of establishing good cause for such a withdrawal, based on clear and convincing evidence. ( Weaver, supra, 118 Cal.App.4th at p. 145.) “M istake, ignorance or any other factor overcoming the exercise of free judgmen t is good cause for withdrawal of a guilty plea.” ( People v. Cruz , supra , 12 Cal.3d at p. 566.)12 A trial court’s denial of a motion to with draw a guilty plea w ill not be disturbed unless abuse of discretion is shown. ( People v. Holmes (2004) 32 Cal.4th 432, 442-443; People v. Wharton (1991) 53 Cal.3d 522, 585.) We “m ust adopt the trial court’s factual findings if substantial evidence supports them.” ( People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) Pleas resulting from a bargain, moreover, “ ‘should not be set aside lightly and finality of proceedings should be encouraged.’ ” ( Weaver , supra , 118 Cal.App.4th at p. 146.) In the present matter, the trial court did not abuse its discretion in denying defendant’s motion to withdraw his plea based on his purported mental deficiencies. Five
of the six doctors who eval uated defendant’s mental st ate and capacities over the preceding few years found th at defendant was malingeri ng regarding his purported mental defects and that he had a greater unde rstanding of the nature and purpose of the proceedings against him than he admitted. According to Dr. Chellsen, defendant “failed all of the malingering screening tests administ ered to him, which strongly supports the contention that he is exaggera ting the extent of his deficits, since even individuals with significant developmental disabilities pe rform reasonably well on these.” Similarly, one of his treating psychologists at Napa State Hospital noted, “ ‘During the group, his speech was clear and coherent , without evidence of distraction or disorganization or other signs or indications that he wa s hearing voices. Mr. Murray remembered the plea of “no contest” from th e Court competency group he attended the previous day. During a discussion of eviden ce and how it is used in Court, when an argument about the merits of a particular football player were discussed as a metaphor for the Court process, Mr. Murray was able to state that he could use “statistics” as a form of evidence to support his argument.’ ” The reportalso concluded that defendant “retains an ability to communicate clearly,” “to rememb er and recall things,” “to learn new information,” to “make decisions,” and “t o cooperate and follow instructions.”13 Another report from Napa State Hospital states defendant had “past experience with the legal system as he ha[d] numerous previous charges and convictions,” and, therefore, it was unlikely defendant “lack[e d] familiarity with legal processes and procedures.” The report also found that de fendant’s “thought process was consistently linear and goal-directed. His speech was coherent and clear. When he did not understand the question, he appropriately asked for a cl arification (e.g., ‘What does X mean?’ ‘I don’t know that word’).” Defenda nt demonstrated the ability to ask such clarifying questions during the ch ange of plea hearing. These medical evaluations support the tria l court’s finding that defendant did in fact understand the plea proceedings a lthough he claimed otherwise. While it is true that his trial counsel, Ms. Bossi, testified at the withdrawal hearing that she believed defendant was mentally re tarded, she also acknowledged that trained medical professionals who evaluated defendan t found otherwise. Indeed, those same professionals determined that defendant’s cognitive testing “i ndicate[d] that all subscales were in the average range . . . ,” and thatdefendant did “not have a developmental disability.” And, although he had previously received spec ial education classes, a report dated May 9, 2005, recommended that he “b e exited from Special Education.” He had also earned a high school diploma. In any event, even defendan ts with “borderline level[s] [of] intelligence”--a le vel that has been described as “just above the level that qualifies for mental retardation”-- have been found to possess the abi lity to validly waive various trial rights. (See e.g., People v. Young (2005) 34 Cal.4th 1149, 1213 [defendant with borderline intellig ence able to understand and waiv e his right to be present in courtroom].) And even though Ms. Bossi and defenda nt may have had some difficulties communicating, she admitted they were able to work through those issu es. In explaining defendant’s alleged difficulty in understandin g how he could be convicted of a firearm enhancement when he claimed he used only pellet guns, Ms. Bossi acknowledged that14 many of her other clients similarly find it diffi cult to believe they could be convicted on eyewitness testimony alone even when no gun is found. In other words, the problem was not unique to defendant or his a lleged mental deficiencies. Ms. Bossi also testified that, in her opini on, defendant understood the factual basis of the charges and the nature of the facts that had to be proved regarding each element of
the offenses. He understood the credits he w ould receive. Both she and the court advised defendant of his constitutional rights as well as the direct conseque nces of pleading no contest, and Ms. Bossi was satisfied that defendant understood the consequences of taking the plea. Although defendant ma y have been unhappy, she believed he “understood the plea and what was required to convict him and why he was entering the plea.” The record, moreover, reveals that the court, the prosec utor, and defense counsel spent a great deal of time explaining th e plea agreement and defendant’s rights to defendant prior to taking his plea. At defe ndant’s request, the prosecutor did something he had never done before--he personally met with defendant and hi s counsel for an hour and 40 minutes to discuss the terms of the plea. At the withdrawal hearing, the trial c ourt specifically found that defendant did understand the proceedings alth ough he claimed otherwise. As noted above, the record amply supports this factual finding. Nothing in this record convinces us that defendant’s purported diminished capacity or mental disabilities pr evented him from entering a voluntary plea. That defendant later regrette d the decision does not mean the trial court abused its discretion in denying hi s motion to withdraw the plea. ( People v. Knight (1987) 194 Cal.App.3d 337, 344 [“Postplea a pprehension (buyer’s re morse) regarding the anticipated sentence, even if it occurs well before sentencing , is not sufficient to compel the exercise of judicial discretion to pe rmit withdrawal of the plea of guilty”].)
We also find meritless defendant’s conten tion that Ms. Bossi failed to represent him effectively during the plea. To establish ineffective assistance of counsel, defendant15 must show, by a preponderance of the eviden ce, that his counsel’s representation fell below the standard of a comp etent advocate and a reasonable probability exists that, but for counsel’s errors, the result would have been different. ( People v. Ledesma (1987) 43 Cal.3d 171, 216-218 ( Ledesma ).) A “reasonable prob ability” is a probability
sufficient to undermine conf idence in the outcome. ( People v. Bolin (1998) 18 Cal.4th 297, 333.) We presume that counsel’s conductfell within the “wide range of reasonable professional assistance.” ( People v. Maury (2003) 30 Cal.4th 342, 389.) In determining whether counsel’s perfo rmance was deficient, we exercise deferential scrutiny and “assess the reasonablen ess of counsel’s acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.” ( Ledesma, supra, 43 Cal.3d at p. 216.) “Although de ference is not abdication [citation], courts should not second-guess reasonable, if di fficult, tactical decisions in the harsh light of hindsight.” ( People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.) Before permitting a client to foreclose a ll possibility of defense by submitting to conviction without a hearing, counsel has a dut y to investigate carefully all defenses of fact and of law that may be available to th e defendant and confer with him about them. ( People v. McCary (1985) 166 Cal.App.3d 1, 8-9 [d efendant’s counsel did not satisfy threshold competency standard s where he failed to determin e a charged enhancement was
invalid and failed to inform the defendant of this fact during plea negotiations].) Counsel is ineffective if he fails to perform these obligations and such failure results in the withdrawal of a potentially meritorious defense. ( People v. Maguire (1998) 67 Cal.App.4th 1022, 1028.) “[W]here ineffec tive assistance of co unsel results in the defendant’s decision to plead guilty, the defe ndant has suffered a constitutional violation giving rise to a claim for re lief from the guilty plea.” ( Ibid. ) The record on appeal does not disclose a basis for finding counsel failed to investigate either facts or law in the manne r required of a reasonably competent diligent attorney, nor does the record establish that Ms. Bossi failed to fully communicate with16 defendant about the plea and its ramificati ons. Rather, the record shows Ms. Bossi, a criminal attorney with over 20 years experi ence who had handled thousands of serious and violent felony cases, me t with defendant several times and spoke with him telephonically on numerous oc casions to discuss his case, possible defenses, and the evidence against him. Ms. Bossi enlisted a private investigator to interview witnesses and to investigate the pellet guns defendant clai med he used during the inci dent. She had extensive negotiations with the prosecuto r about whether the guns were real or pellet guns. She subpoenaed records and cross examined key witnesses during the preliminary hearing. She also attempted to interv iew Crosby, the codefendant wh o agreed to testify against
defendant that the firearms he used were ac tual guns rather than pellet guns. She read Crosby’s anticipated testimony to defendant and explained how damaging such testimony
would be to his defense that the guns were not real, especi ally since both of the victims already testified the guns were real during the preliminary hearing. During the change of plea hearing, Ms. Bo ssi explained legal terms in ordinary language which was easily understandable. Fo r example, when defendant asked what the term “no contest” meant, she explained it meant to “admit” the charges. Such an explanation was given even thou gh one of his treating psycho logists found that defendant had previously understood the meaning of th at precise phrase, and despite the court explaining the term several times during the same hearing. She explained the credits to which defend ant was entitled as well as the number of strikes defendant would receive by pleadi ng no contest to the charges. She also repeatedly informed defendant he would have to serve at leas t 85 percent of his sentence. She explained the constitutional rights that de fendant would be waiv ing by accepting the plea agreement.17 Ms. Bossi’s representation of defendant duri ng the change of pl ea was more than adequate. Because his counsel was not in effective, defendant cannot establish any constitutional violation warranting re lief from his no c ontest plea.

II
Defendant’s Presence at Sentencing
Defendant maintains that the trial cour t violated his statut ory and constitutional rights by sentencing him to the terms of th e negotiated disposition in his absence. We need not decide whether the court erred by imposing sentence without defendant present, however. Even assuming an erro r occurred, we find it harmless. In a felony case, a criminal defendant ha s the statutory right to be present during the critical stages of trial, including when sentence is impos ed. (§ 977, subd. (b)(1); 1043, subd. (a).) The federal a nd state constitutions also guara ntee a criminal defendant’s right to be personally present at trial. (U .S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 15.) A defendant, however, does not have a right to be present at every hearing. ( People v. Virgil (2011) 51 Cal.4th 1210, 1234 ( Virgil ).) Instead, presence is required only if it bears a reasonable and substantial re lation to a defendant’s full opportunity to defend against the charges. ( Ibid. ) “The same analysis applies under article I, section 15 of the California Constitution.” ( Id. at p. 1235.) And “ ‘[t]he standard under sections 977 and 1043 is similar.’ ” ( Ibid. ) The defendant, moreover, must show that any violation of this right resulted in prejudice or violated the defendant’s right to a fair and impartial trial. ( Virgil, supra, 51 Cal.4th at p. 1234.) For federal c onstitutional errors, the court applies the Chapman harmless beyond a reasonable doubt standard. ( People v. Davis (2005) 36 Cal.4th 510, 532 [citing Chapman v. California (1967) 386 U.S. 18, 23 [17 L.Ed.2d 705]].) “Error
under sections 977 and 10 43 is state law error only, and ther efore is reversible only if ‘ “it is reasonably probable that a result more fa vorable to the appealing party would have18 been reached in the absen ce of the error.” ’ ” ( Id. at pp. 532-533.) Because defendant must show prejudice from any pur ported violation of the right to be present, we turn to
that issue first. Here, defendant contends that had he be en present for sentencing, he might have prevented the court from imposing concurrent sentences for burglary in count 1 and vehicle theft in count 6, which he argues shou ld have been stayed under section 654. We conclude, however, that the trial court’s a lleged error in senten cing defendant without him being present was not prejudicial. We note first of all that, in part III of this opinion, we correct the error about which defendant complains. In any event, defendant had previously pleaded no contest to all of the charges and enhancements. Thus, the issue of defendant’ s guilt had already been settled. The court merely imposed the previously agreed upon disposition. Defendant simply speculates that his presence might have prevented the alleged sentencing error which we shall momentarily co rrect. Mere speculation that defendant’s presence would have contributed to his defens e is insufficient to es tablish the requisite prejudice, however. ( People v. Waidla (2000) 22 Cal.4th 690, 741-742 [speculation that defendant’s personal presence was necessary or bore a reasonably substantial relation to a full opportunity to defend insufficient to establish right to be present].) Finally, even if the court erred in imposin g sentences for counts 1 and 6, the court imposed concurrent and not consecutive sent ences for those offenses. As defendant concedes, “neither of those failures change[s ] the length of the sentence.” While the law does require that sentences be stayed to the extent section 654 prohibits multiple punishments, courts have recognized that “t here appears to be little practical difference between imposing concurrent sentences . . . a nd staying sentence[s]” under section 654. ( People v. Jones (2012) 54 Cal.4th 350, 353.) Such “little practical difference” evidences a lack of prejudice for purposes of defendant ’s absence from the sentencing hearing.19 Thus, even if the court erred in sent encing defendant in his absence, we are convinced beyond a reasonable do ubt that the alleged error wa s harmless. We therefore reject defendant’s presence argument.

III

Section 654
Defendant contends the trial court erre d by sentencing him concurrently for the burglary and vehicle theft offenses alleged in counts 1 and 6 because they were essential parts of the robberies and carjacking in count s 2, 3, and 5 for which the court already imposed sentence. Although he could be co nvicted of each offense, defendant argues section 654 precludes punishing him for both the robberies and burglary, and for the carjacking and vehicle th eft. We agree. Before turning to the merits, we firs t address respondent’s contention that defendant forfeited the issue by fa iling to object to the sentence below. While it is true
defendant did not raise sec tion 654 when the court actu ally imposed the sentences following the hearing on defend ant’s motion to withdraw his plea, defense counsel did alert the court to potential section 654 issues during the change of plea hearing. At that time, the court acknowledged that section 6 54 might bar multiple punishments in this case, especially concerning the bur glary and carjacking offenses. In any event, even if defense counsel s hould have raised a sec tion 654 objection at the sentencing hearing rather than at the change of plea hear ing, we agree with defendant
that the issue is not forfeited. “Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.” ( People v. Perez (1979) 23 Cal.3d 545, 550, fn.3.) We thus address defendant’s section 654 challenge. Section 654 provides in pertinent part: “( a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that20 provides for the longest potential term of impr isonment, but in no case shall the act or omission be punished under more than one provision.” The statute does not prohibit multiple convictions for the same con duct, only multiple punishments. ( People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) “In su ch a case, the proper procedure is to stay execution of sentence on on e of the offenses. [Citation.] The quoted language bars multiple punishment[s] where th e convictions arise out of an indivisible transaction and have a single intent and objective. [Citati ons.] Whether a defendant did in fact have multiple objectives is generally a question of fact for the trial court, and its decision will be upheld on appeal if supporte d by substantial evidence.” ( Ibid. ) “The divisibility of a course of conduc t depends upon the in tent and objective of
the defendant. If all the offenses are incide ntal to one objective, the defendant may be punished for any one of them, but not for mo re than one. On th e other hand, if the
evidence discloses thata defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations . . . . [Citations.] The princi pal inquiry in each
case is whether the defendant’s criminal inte nt and objective were single or multiple.
Each case must be determined on its own facts. [Citations.]” ( People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) In this case, defendant was punished co ncurrently for one co unt of burglary and two counts of robbery, one for each victim. A person is guilty of burglary whenever he
enters a house with the intent to commit larceny or any felony . (§ 459.) “Robbery is the felonious taking of personal property in th e possession of another, from his person or immediate presence, and against his will, ac complished by means of force or fear.” (§ 211.) “It is settled law that section 654 bars punishment for bo th burglary and robbery where the sole purpose of the burglary was to effectuate the robbery.” ( People v. Smith (1985) 163 Cal.App.3d 908, 912 ( Smith ).) We believe the instant case falls squarely
within the above rule.21 Defendant was already present at the ho use when Dewayne and Dwight arrived.
Defendant then left the house and returned a short time later carrying two guns, which he pointed at Dewayne and Dwight only. His sole purpose in entering the house the second time was to rob the victims of their persona l belongings as retribution for Dewayne testifying against defendant’s brother in an earlier criminal proceedi ng that resulted in his brother receiving a 44-year prison sentence. Because the court imposed concurrent four-year sentences for each of the robberies against Dewayne and Dwight, secti on 654 prohibits imposi ng a concurrent twoyear term for the burglary in count 1 sinc e the burglary’s only purpose was to carry out the robberies. ( Smith, supra, 162 Cal.App.3d at p. 912.) It also prohibits imposing a concurrent four-year term for the section 12 022.5, subdivision (a) enhancement attached to count 1. ( Id. at p. 914 [when the sentence for the unde rlying offense of burglary is stayed, no “punishment” is imposed, and, th erefore, the attached gun enhancement must also be stayed].) The concurrent sentences for the burglary in count 1 and its firearm enhancement should have been imposed and stayed under section 654. ( Ibid. ) Defendant also pleaded no contest to carjacking (§ 215, subd. (a), count 5) and unlawfully taking a vehicle (Veh . Code, § 10851, subd. (a), c ount 6). The court used the carjacking in count 5 as the base term for se ntencing. It imposed the midterm of five years, plus a 10-year firearm enhancement un der section 12022.53, su bdivision (b). The court imposed a concurrent two-year sentence for unlawfully taking a vehicle as alleged
in count 6. A person is guilty of unlawfully taking a vehicle whenever he drives or takes a vehicle, without the vehicle owner’s consent, and with the intent to deprive the owner of title or possession of the vehicle either perman ently or temporarily. (Veh. Code, § 10851, subd. (a).) A person is guilty of carjacking whenever, through force or fear, he takes a vehicle in another’s possession against that person’s will and with the intent to either22 permanently or temporarily deprive the person of possession of the vehicle. (§ 215, subd. (a).) Here, not only was Dwight th e person in possession of th e car but he was also the car’s owner. In taking the vehi cle, defendant possessed the si ngle intent or objective of depriving Dwight of the car. Gi ven this singular intent, defe ndant cannot be punished for both offenses under section 654. Having imposed the sentence for carjacking in count 5, the court should have imposed and stayed th e two-year sentence for unlawfully taking Dwight’s vehicle in count 6. ( People v. Alford (2010) 180 Cal.App.4th 1463, 1469 [“to implement section 654, the trial court mu st impose sentence on all counts, but stay execution of sentence as necessary to prevent multiple puni shment[s]”].)

D ISPOSITION The trial court is directed to modify the judgment so that the sentence for burglary
and the associated firearm enhancement under section 12022.5, subdivision (a), as well as the sentence for unlawfully taking a vehicle in violation of Vehicl e Code section 10851, subdivision (a), are imposed and stayed pursuant to section 654. The court shall amend the abstract of judgment accor dingly and forward a copy thereof to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

HULL , J.

We concur:

BLEASE , Acting P. J.

NICHOLSON , J.