People v. McColm CA3 ( 2015 )

Filed 6/16/15 P. v. McColm 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Trinity)
THE PEOPLE, C072960
Plaintiff and Respondent, (Super. Ct. No. 11F187)
v.
PATRICIA ALICE MCCOLM,
Defendant and Appellant.
A jury found defendant Patricia Alice McColm guilty of eight counts of
knowingly procuring or offering a false instrument (a proof of service) for filing in a
public office. (Pen. Code,1 § 115, subd. (a).) The trial court denied probation and
sentenced defendant to an aggregate term of 3 years 4 months in state prison, consisting
of 16 months (the lower term) on count one; and a consecutive 8 months each on counts
three, four, and six.2
1 Further undesignated statutory references are to the Penal Code.
2 Defendant was sentenced to concurrent terms on the remaining counts.
1
Defendant appeals, contending (1) there is insufficient evidence to support her
convictions; (2) the trial court erred in refusing to give a unanimity instruction; (3)
defendant was not given adequate notice of the charges against her; (4) proofs of service
are not “instruments” within the meaning of section 115; (5) defendant’s trial counsel
was ineffective in failing to subpoena a key witness; (6) the trial court erred in denying
defendant’s change of venue motion; and (7) the trial court abused its discretion in
denying probation and imposing consecutive sentences.
We shall conclude that none of defendant’s contentions has merit, and thus, affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
This case concerns eight proofs of service filed by defendant in three separate
lawsuits pending against her in Trinity County.3 Each of the proofs of service contains a
declaration, executed by Jim Dahm, which states that Dahm served the documents listed
therein “by placing a true copy thereof enclosed in a sealed envelope with postage
thereon fully prepaid in the United States mail at Lewiston, California.”
Laurie Cooke, court services supervisor for the Trinity County Superior Court,
became suspicious when she saw that the “business/residence” address listed for Dahm
on the proofs of service was the same as that listed for defendant. She also observed that
some of the proofs of service indicated that Dahm resided in Trinity County, while others
3 Copies of the eight proofs of service were admitted into evidence. Exhibit No. 1 (count
one) had an execution and a filing date of July 1, 2011. Exhibit No. 2 (count two) had an
execution date of June 21, 2011, and a filing date of July 13, 2011. Exhibit No. 3 (count
three) had an execution date of July 7, 2011, and a filing date of July 13, 2011. Exhibit
No. 4 (count four) had an execution date of July 13, 2011, and a filing date of July 15,
2011. Exhibit No. 5 (count five) had an execution date of July 19, 2011, and a filing date
of July 21, 2011. Exhibit No. 6 (count six) had an execution date of July 19, 2011, and a
filing date of July 21, 2011. Exhibit No. 7 (count seven) had an execution date of August
24, 2011, and a filing date of August 25, 2011. Exhibit No. 8 (count eight) had an
execution date of September 16, 2011, and a filing date of September 20, 2011.
2
indicated that he resided in Shasta County. Concerned that the documents listed in the
proofs of service may not actually have been served by the individual listed (Dahm),
Cooke reported the irregularities to the marshal’s office. According to Cooke, it is
important that each document filed with the court be true and correct, and that documents
are served by a person not a party to the action in order to maintain the integrity of the
court file. She explained that judges rely on proofs of service in making decisions, such
as whether to enter a default judgment.
During cross-examination, Cooke explained that at some point the court executive
officer had assigned her to be defendant’s sole contact at the court. Cooke acknowledged
that her dealings with defendant had “been challenging,” and that she is the complaining
witness in a criminal complaint against defendant for harassment. She denied
“initiat[ing] this investigation” because she “had problems” with defendant. While she
had never gone back and reviewed a party’s proofs of service or referred proofs of
service for investigation during her 13 years with the court, she explained that no other
proofs of service had “dr[awn] a flag for me.”
Dahm testified that in the spring of 2011 defendant asked him to initial a small
stack of papers that she represented had something to do with Pacific Gas and Electric
Company (PG&E). Defendant told him where to place his initials. Dahm initialed the
documents on the same day in the same place but did not recall the exact date he did so.
He did not read the documents before initialing them. Defendant asked him to mail
documents but he refused because he “didn’t want to get too involved in whatever was
going on . . . .” When Dahm finished initialing the documents, defendant took them.
Dahm identified the initials on the eight proofs of service that form the basis of the
charges against defendant as his. On another occasion, Dahm signed (as opposed to
initialed) some documents for defendant.
3
DISCUSSION
I
Defendant’s Convictions Are Supported by Substantial Evidence
Defendant contends her convictions must be reversed because there is insufficient
evidence “that there were false statements in the proofs of service.” She is mistaken.
“In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.” (People v. Guerra (2006) 37 Cal. 4th 1067, 1129.) “We do not reweigh
evidence or reevaluate a witness’s credibility.” (Ibid.)
Defendant was convicted of eight counts of violating section 115, subdivision (a),
which states: “Every person who knowingly procures or offers any false or forged
instrument to be filed, registered, or recorded in any public office within this state, which
instrument, if genuine, might be filed, registered, or recorded under any law of this state
or of the United States, is guilty of a felony.” Each of the proofs of service that form the
basis of defendant’s convictions reflects that Dahm served the documents listed therein
“by placing a true copy thereof . . . in a sealed envelope with postage thereon fully
prepaid in the United States mail at Lewiston, California.” Dahm, however, testified that
defendant asked him to mail the documents, but he refused. From this evidence, the jury
reasonably could infer that the proofs of service were false, and that defendant knew they
were false when she caused them to be filed with the court. Such evidence is sufficient to
support defendant’s convictions for knowingly procuring or offering false instruments for
filing in violation of section 115, subdivision (a).
4
Defendant argues that while “the declaration as worded might be taken to mean
that the declarant personally placed the documents in a mail receptacle,” Code of Civil
Procedure section 1013a, subdivision (3) “provides for delegation of the clerical function
of actually placing the document in the mailbox.” There are at least two problems with
defendant’s argument. First, there is no evidence to support a finding that Dahm
delegated the task of mailing the documents listed in the proofs of service to anyone. To
the contrary, the only evidence is that defendant asked him to mail the documents, and he
refused. Second, while Code of Civil Procedure section 1013a, subdivision (3), relied on
by defendant,4 does set forth a method for service by mail that does not require that the
declarant personally place the documents in mail, the proofs of service at issue herein
state that Dahm “served the within [document(s)] . . . by placing a true copy thereof . . .
in the United States mail at Lewiston, California,” (italics added) which is consistent with
Code of Civil Procedure section 1013a, subdivision (1),5 not subdivision (3), which
4 Code of Civil Procedure section 1013a, subdivision (3) provides that proof of service
by mail may be made by the following method: “An affidavit setting forth the exact title
of the document served and filed in the cause, showing (A) the name and residence or
business address of the person making the service, (B) that he or she is a resident of, or
employed in, the county where the mailing occurs, (C) that he or she is over the age of 18
years and not a party to the cause, (D) that he or she is readily familiar with the business’
practice for collection and processing of correspondence for mailing with the United
States Postal Service, (E) that the correspondence would be deposited with the United
States Postal Service that same day in the ordinary course of business, (F) the name and
address of the person served as shown on the envelope, and the date and place of business
where the correspondence was placed for deposit in the United States Postal Service, and
(G) that the envelope was sealed and placed for collection and mailing on that date
following ordinary business practices.”
5 Code of Civil Procedure section 1013a, subdivision (1) provides that proof of service
by mail may be made by the following method: “An affidavit setting forth the exact title
of the document served and filed in the cause, showing the name and residence or
business address of the person making the service, showing that he or she is a resident of
or employed in the county where the mailing occurs, that he or she is over the age of 18
years and not a party to the cause, and showing the date and place of deposit in the mail,
5
requires additional averments where the declarant does not personally place the
documents in the United States mail.
Finally, whether there was sufficient evidence to support the prosecution’s
alternative theories -- that the proofs falsely represented Dahm’s address and the date the
proofs were signed -- is of no consequence. Where, as here, the alleged inadequacy of
proof is purely factual, “reversal is not required whenever a valid ground for the verdict
remains, absent an affirmative indication in the record that the verdict actually did rest on
the inadequate ground.” (People v. Guiton (1993) 4 Cal. 4th 1116, 1129.) As detailed
above, there is a valid ground for the jury’s verdict and no affirmative indication in the
record that the verdict rested on either of the alternative grounds urged.
II
The Trial Court Did Not Err in Refusing to Give a Unanimity Instruction
Defendant next contends that the trial court erred in refusing to give a unanimity
instruction because “[t]he prosecution presented three separate factual foundations for
each of the eight counts,” namely that “P.O. Box 113 was not Dahm’s residential or
business address,” the proofs of service were signed on a date other than that indicated,
and Dahm did not personally place the documents in the mail. Defendant’s contention
lacks merit.
“[C]ases have long held that when the evidence suggests more than one discrete
crime, either the prosecution must elect among the crimes or the court must require the
jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as
to the criminal act ‘is intended to eliminate the danger that the defendant will be
convicted even though there is no single offense which all the jurors agree the defendant
committed.’ [Citation.]” (People v. Russo (2011) 25 Cal. 4th 1124, 1132 (Russo).)
the name and address of the person served as shown on the envelope, and also showing
that the envelope was sealed and deposited in the mail with the postage thereon fully
prepaid.”
6
“On the other hand, where the evidence shows only a single discrete crime but
leaves room for disagreement as to exactly how that crime was committed or what the
defendant’s precise role was, the jury need not unanimously agree on the basis or, as the
cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.] The crime of
burglary provides a good illustration of the difference between discrete crimes, which
require a unanimity instruction, and theories of the case, which do not. Burglary requires
an entry with a specified intent. (Pen. Code, § 459.) If the evidence showed two
different entries with burglarious intent, for example, one of a house on Elm Street on
Tuesday and another of a house on Maple Street on Wednesday, the jury would have to
unanimously find the defendant guilty of at least one of those acts. If, however, the
evidence showed a single entry, but possible uncertainty as to the exact burglarious
intent, that uncertainty would involve only the theory of the case and not require the
unanimity instruction. [Citation.]” (Russo, supra, 25 Cal.4th at pp. 1132-1133, italics
added.)
Here, defendant was charged with eight counts of knowingly procuring or offering
a false instrument for filing in a public office. Each count involved a separate proof of
service, and thus constituted a discrete crime. Consequently, the jury was required to
agree that each proof of service offered was false; it was not, however, required to
unanimously agree as to the manner in which it was false. Accordingly, no unanimity
instruction was required. (Russo, supra, 25 Cal.4th at pp. 1132-1133.)
III
Defendant Was Given Adequate Notice of the Basis of the Charges Against Her
Defendant next contends that the trial court erred in overruling her “demurrer
based on the failure of the information to give notice of the basis for the allegations of
false documents.” Again, we disagree.
7
A complaint was filed on October 31, 2011, charging defendant with, among other
things, 13 counts of knowingly procuring or offering a false document (proof of service)
for filing.
On April 2, 2012, a preliminary hearing was held. At the hearing, David Cox, an
investigator for the Trinity County District Attorney’s Office, testified that he took over
an investigation initiated by the marshal’s office into whether “false documents had been
filed upon the court.” In doing so, he interviewed Dahm, “the person represented on
those documents” as having served as defendant’s process server. Dahm told Cox that
defendant said that Dahm could help her in her struggles against PG&E if he signed some
papers she had. Dahm signed a stack of papers defendant provided by placing his initials
on them, although he did not know what he was signing. He signed all the documents on
the same date, at his home, in defendant’s presence. He did not realize the documents
were proofs of service, never agreed to act as a process server for defendant, and never
served any document for her. Cox identified each of the proofs of service he reviewed
with Dahm, and the trial court took judicial notice of eight proofs of service. The
prosecutor argued that contrary to the information and representations set forth in the
proofs of service, the evidence showed that the proofs of service were signed on the same
date, and that “Mr. Dahm did not mail or serve or otherwise process anything.”
The trial court held defendant to answer on eight counts of knowingly procuring or
offering a false instrument for filing, and identified the filing date for each proof of
service that formed the basis of each count.
The following day, April 3, 2012, an information was filed charging defendant
with eight counts of knowingly procuring or offering a false instrument for filing. Those
counts are based on the same eight proofs of service relied on by the prosecution at the
preliminary hearing.
8
Thereafter, defendant filed a demurrer pursuant to section 952,6 claiming that the
information failed to give her adequate notice of the charges against her. The trial court
overruled the demurrer, finding that the information, on its face, provided adequate notice
of the charges against defendant.
“Due process of law requires that an accused be advised of the charges against
[her] so that [s]he has a reasonable opportunity to prepare and present [her] defense and
not be taken by surprise by evidence offered at [her] trial.” (People v. Jones (1990) 51
Cal. 3d 294, 317 (Jones).) “[N]otice is provided not only by the accusatory pleading but
also by the transcript of the preliminary hearing or the grand jury proceedings.
[Citations.] In addition, a ‘defendant may learn further critical details of the People’s
case through demurrer to the complaint or pretrial discovery procedures.’ [Citation.]”
(People v. Carrington (2009) 47 Cal. 4th 145, 183-184.)
Here, the preliminary hearing transcript and information provided defendant with
ample notice of the charges against her. Significantly, copies of the eight proofs of
service upon which the charges were based were introduced, and the prosecutor described
how the proofs were false: they were not executed on the dates indicated, and the
documents listed therein were not served by the declarant (Dahm). Nothing more was
required. (Jones, supra, 51 Cal.3d at p. 317.)
6 Section 952 provides in pertinent part: “In charging an offense, each count shall
contain, and shall be sufficient if it contains in substance, a statement that the accused has
committed some public offense therein specified. Such statement may be made in
ordinary and concise language without any technical averments or any allegations of
matter not essential to be proved. It may be in the words of the enactment describing the
offense or declaring the matter to be a public offense, or in any words sufficient to give
the accused notice of the offense of which he is accused.”
9
IV
A Proof of Service Constitutes an “Instrument” Within the Meaning of Section 115
Defendant next claims that “proofs of service are not ‘instruments’ within the
meaning of Penal Code § 115.” She is mistaken.
Section 115 “punishes offering a false instrument for filing.” (People v. Tate
(1997) 55 Cal. App. 4th 663, 664.) It was enacted in 1872 to protect the integrity of the
judicial process and public records. (People v. Hassan (2008) 168 Cal. App. 4th 1306,
1316.) While “[t]here currently is no precise, generally accepted definition of the term
‘instrument’ for purposes of Penal Code section 115” (People v. Murphy (2011) 52
Cal. 4th 81, 92), a document is considered an instrument if the information contained
therein “ ‘is of such a nature that the government is required or permitted by law, statute
or valid regulation to act in reliance thereon . . . .’ [Citation.]” (People v. Powers (2004)
117 Cal. App. 4th 291, 297.)
There can be no doubt that the information contained in a proof of service is of
such a nature that the government is required or permitted by law, statute, or valid
regulation to act in reliance thereon. Courts rely on proofs of service for timeliness and
notice. For example, as alluded to by Cooke, courts rely on proofs of service in
determining whether a summons and complaint were properly served, and a default
judgment properly entered. (See, e.g., Hearn v. Howard (2009) 177 Cal. App. 4th 1193,
1201-1204.)
A proof of service is an instrument within the meaning of section 115.
V
Defendant’s Trial Counsel Was Not Ineffective in Failing to Subpoena Kim Jesperson
Defendant next contends that her trial counsel was ineffective in failing to
subpoena Kim Jesperson as a defense witness to impeach Dahm’s testimony. We are not
persuaded.
10
At the conclusion of the prosecution’s case-in-chief, defendant’s trial counsel
moved to continue the trial one day in order to subpoena Jesperson, explaining that he
attempted to serve Jesperson at his home the night before and although Jesperson was
there, he refused to answer the door. Counsel claimed that Jesperson was a “material
witness in this matter,” who “would testify that he saw Mr. Dahm signing documents on
at least two occasions.” When defendant interjected, “three,” counsel noted, “[p]robably
even more” as to how many times Jesperson saw Dahm sign documents. The trial court
denied defendant’s motion to continue, reasoning that counsel had plenty of time to
subpoena Jesperson even if he was trying to evade service.
Defendant’s trial counsel responded that he had made earlier efforts to subpoena
Jesperson, explaining that he had spoken numerous times to an investigator “for whom
funds were ordered to help with investigation and just this exact type of thing.” The
investigator had exhausted most of those funds but assured counsel that “if there was
something that . . . we needed, she could do it and then we could ask for the funds at a
later time.” He spoke to the investigator two days before the prosecution rested and
confirmed that she had the subpoena. The following day, however, the investigator
advised him that she refused to serve the subpoena because she was told by the trial court
that “there was no money approved previously,” and that is why he (defendant’s trial
counsel) “ended up” attempting to serve Jesperson the night before. The trial court
affirmed its decision not to continue the trial, noting that Jesperson’s proffered testimony
“that documents were signed twice, or three times” was marginally relevant insofar as it
did not seem to impeach Dahm, who testified that “he maybe signed . . . twice. And he . .
. testified that he initialed some documents, and he also testified he signed some
documents.”
At that point, defendant requested a Marsden hearing to express her dissatisfaction
with assigned counsel. (See People v. Marsden (1970) 2 Cal. 3d 118, 124.) Defendant
claimed that counsel falsely told her that the investigator had been out to interview and
11
serve Jesperson with a subpoena. She also claimed that Jesperson had told her that he
saw Dahm sign documents at least three times, and that Dahm had said that everything on
the proofs of service was correct. The trial court denied defendant’s motion, stating that
counsel “has done a heck of a job. He can’t make Jesperson come here. He can’t break
his door down and subpoena him. You seem to have [an] enormous amount of contact
with Jesperson and a lot of sway with him, and he hasn’t come in at your request. . . .
And as we know lots of witnesses simply don’t want to be here, and he must be one of
them.”
On the date set for sentencing, defendant moved for a new trial and appointment
of conflict counsel, arguing, in part, that there was “new evidence” refuting Dahm’s
testimony. In particular, defendant’s trial counsel asserted, “Since the trial, the defendant
has spoken with Mr. Jesperson and he says he was not avoiding service. Further, he
informed [defendant] that he talked with Mr. Dahm about signing documents for her and
Mr. Dahm assured him that everything was above board and he was doing exactly what
the papers said he was.” The motion for new trial was denied.
To establish ineffective assistance of counsel, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms. (People v. Scott (1997) 15 Cal. 4th 1188, 1211-1212.)
Here, the record discloses that counsel arranged for an investigator to serve
Jesperson but was advised the day before the prosecution rested that the investigator
refused to serve the subpoena after learning that “there was no money approved
previously.” Defendant complains that “defense counsel could have secured a fee
authorization earlier but failed to do so,” and that “[t]his was beneath the fundamental
standard of care for the defense counsel.” Defendant’s argument ignores counsel’s
statement that he was assured by the investigator that funding for such could be obtained
after the fact. It also ignores counsel’s subsequent effort to serve Jesperson himself, and
Jesperson’s refusal to answer the door. With the benefit of hindsight, it is easy to argue,
12
as defendant does, that it would have been better to have begun the process of serving
Jesperson sooner and/or to have submitted a fee authorization request prior thereto.
Under the circumstances of this case, however, we cannot say that counsel’s choices were
unreasonable.
VI
The Trial Court Did Not Err in Denying Defendant’s Motions to Change Venue
Defendant next contends that the trial court erred in denying her motion to change
venue “because of a long-running feud between [defendant] and court staff, which
influenced the charging decision and the presentation of evidence, and led to a trial in a
hostile forum.” Again, we are not persuaded.
Prior to trial, defendant filed a motion to change venue, arguing that a fair trial in
Trinity County was unlikely given the animus court personnel had previously shown
toward her. The prosecutor opposed the motion, arguing defendant was “using her own
really belligerent behavior” toward court staff to justify a change of venue. The trial
court denied the motion, noting that it was not aware of any publicity surrounding the
case, a factor it was required to consider even if not advanced by defendant; restrictions
previously had been placed on defendant’s access to the courthouse due to her conduct;
and there was no evidence defendant’s conduct would change or that the situation would
otherwise be different in another county.
“A defendant’s motion for change of venue must be granted when ‘there is a
reasonable likelihood that a fair and impartial trial cannot be had in the county’ where the
charges were filed. (§ 1033, subd. (a).) . . . [¶] On appeal, the defendant must show both
error and prejudice, that is, ‘ “at the time of the motion it was reasonably likely that a fair
trial could not be had in the county, and that it was reasonably likely that a fair trial was
not had. [Citations.]” [Citation].’ ” (People v. Harris (2013) 57 Cal. 4th 804, 822.) As
we shall explain, defendant has failed to establish she did not in fact receive a fair and
impartial trial.
13
There is no evidence in the record that suggests that the jury was aware of any
animus on the part of court personnel toward defendant, much less that any such animus
had any bearing on the jury’s deliberations. None of the incidents referenced by
defendant were seen by the jury; indeed, all of them predated the seating of the jury in
this case. Moreover, defendant fails to point to any conduct that she contends influenced
the jury in this case. Defendant’s suggestion that animus lead the clerk’s office to “cut-
off investigation funds,” which in turn lead to the failure to subpoena Jesperson, is
specious. The record indicates that investigation funds were approved and had been
exhausted by the time the defense sought to subpoena Jesperson. There is no evidence
funds were cut off by the clerk’s office.
Defendant failed to establish she did not receive a fair and impartial trial.
Accordingly, her challenge to the court’s denial of her motion to change venue fails.
VII
The Trial Court Acted Within Its Discretion in Denying Probation and Imposing
Consecutive Terms
Finally, defendant contends the trial court abused its discretion by denying her
probation and sentencing her to consecutive prison terms. She also claims separate
prison terms were precluded under section 654. We disagree.
The probation report acknowledged that “the defendant is eligible for a grant of
probation,” but recommended probation be denied and defendant be committed to state
prison based primarily on her perceived inability to comply with the conditions of
probation (Cal. Rules of Court, rule 4.414(b)(4)).7 According to the report: “The
defendant has fought the judicial process and demonstrated time and again her inability to
follow even minimal directions of the Court. She has almost made a career of fighting
judicial process and standing up for what she believes are injustices placed upon her. Her
7 Further undesignated references to rules are to the California Rules of Court.
14
disdain for the process is overwhelming. There is little belief by the Probation
Department that the defendant would benefit from a grant of probation and [it is very
likely] that she would make a grant of probation a long painful process for herself,
Probation and the Court . . . .” The report also listed the following additional criteria
affecting probation: defendant was an active participant in the filing of the false proofs
of service with the court (rule 4.414(a)(6)); defendant had no prior record (rule
4.414(b)(1)); defendant was not currently on probation or parole (rule 4.414(b)(2));
defendant indicated she would be willing to comply with the terms of probation (rule
4.414(b)(3)); defendant will lose her Social Security benefits, home, and belongings if
incarcerated (rule 4.414(b)(5)); and defendant showed no remorse for her actions (rule
4.414(b)(7)).
As for the term of incarceration, the report recommended that defendant be
committed to state prison for an aggregate term of 6 years, consisting of 16 months (the
low term) on count one, and a consecutive 8 months on each of the remaining seven
counts. The report listed no circumstances in aggravation (rule 4.421), and defendant’s
lack of a prior record as a mitigating circumstance (rule 4.423(b)(1)).
At the sentencing hearing, the prosecutor asked the trial court to impose the
aggravated term of 7 years 6 months, citing the following circumstances in aggravation:
defendant induced Dahm to break the law by telling him his signature would help her in
her lawsuit against PG&E (rule 4.421(a)(4)); and she used planning and sophistication by
asking Dahm to sign a number of proofs of service which she used over a period of time
(rule 4.421(a)(8)).
The trial court denied probation and sentenced defendant to 3 years 4 months in
state prison, consisting of the low term of 16 months on count one, and a consecutive 8
15
months each on counts three, four, and six.8 Before doing so, the court observed that it
had never encountered anyone “who has been so abusive to everybody in court,”
including the judge, “whatever deputy district attorney is here, the court staff, the
reporters, [and] the bailiffs,” as defendant had been. Among other things, the court
recounted an incident wherein defendant had been excluded from the jury instruction
conference after repeatedly yelling and screaming and thereafter pounded on the door for
one-half hour until the deputy told her she would be arrested if she continued. The court
also noted defendant’s inability to follow court orders and failure to cooperate with
probation. The court dismissed defendant’s claim that she did not intend to break the
law, explaining that defendant has a juris doctorate and that “this isn’t just somebody
falling into a trap and not knowing what the law was and having somebody else sign it
for another reason.” The court also agreed that defendant “does not accept any
responsibility” for her actions, explaining that it was prepared to give her probation “if
there was any remorse, any apology, anything that showed shat she cared about
anything,” but stated that it “heard not a word of that.”
“A trial court has broad discretion to determine whether a defendant is suitable for
probation. [Citation.] The determination whether a case is an ‘unusual’ case is also
within the sound discretion of the trial court. [Citation.] An appellant bears a heavy
burden when attempting to show an abuse of such discretion. [Citation.] To establish
abuse, the defendant must show that, under all the circumstances, the denial of probation
was arbitrary, capricious or exceeded the bounds of reason. [Citation.]” (People v.
Bradley (2012) 208 Cal. App. 4th 64, 89.) In deciding whether to grant probation, the trial
court should consider the various factors enumerated in rule 4.414, although it can
consider other factors as well. (People v. Weaver (2007) 149 Cal. App. 4th 1301, 1312-
8 Defendant was sentenced to a concurrent 16 months on each of the remaining counts.
16
1313 (Weaver), disapproved on other grounds in People v. Cook (2015) 60 Cal. 4th 922,
939; rule 4.408(a).)
When, as here, “a person is convicted of two or more crimes . . . the second or
other subsequent judgment upon which sentence is ordered to be executed shall direct
whether the terms of imprisonment or any of them to which he or she is sentenced shall
run concurrently or consecutively.” (§ 669.) A trial court has discretion in deciding
whether to impose consecutive or concurrent terms and in exercising such discretion
should consider the factors set forth in rule 4.425. (People v. Rodriguez (2005) 130
Cal. App. 4th 1257, 1262-1263.)
A trial court is generally required to state reasons for denying probation and
imposing a prison sentence. (Weaver, supra, 149 Cal.App.4th at p. 1313.) Unless the
record shows otherwise, the trial court is deemed to have considered all relevant criteria
in making its discretionary sentencing choices. (Ibid.) In determining whether the trial
court abused its discretion in making a sentencing choice, we consider whether there is
substantial evidence to support a finding that a particular sentencing factor was
applicable. (Ibid.)
Defendant claims that the trial court improperly denied probation and sentenced
her to state prison “to rid the community of a source of official irritation.” Defendant’s
claim is not supported in the record. In deciding to deny probation and sentence
defendant to state prison, the trial court cited defendant’s inability to comply with the
terms of probation and her lack of remorse. Rule 4.414 expressly lists ability to comply
with reasonable terms of probation and whether the defendant is remorseful as factors
that should be considered by a trial court in deciding whether to grant or deny probation.
(Rule 4.414(b)(4), (7).) Based on our review of the record, we find there is sufficient
evidence to support the trial court’s findings that defendant lacked the ability to comply
with reasonable terms of probation and showed no remorse for her crimes. As detailed
by the trial court, defendant has a long history of failing to obey court orders, was abusive
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to court personnel throughout the trial, and refused to cooperate with probation until
ordered to do so by the trial court. Moreover, in her written statement to probation,
defendant failed to take any responsibility for her actions, showed no remorse, and
continued to blame others for her predicament. The trial court acted well within its
discretion in denying probation and sentencing defendant to state prison.
Assuming we conclude, as we have, that the trial court did not abuse its discretion
in denying probation and sentencing defendant to state prison, defendant contends that
“[n]o reasons were suggested to support the imposition of consecutive sentences, either in
the probation report or the sentencing transcript,” and consecutive sentences were not
justified because “the crimes were not independent of each other.”
As a preliminary matter, defendant failed to object to the imposition of
consecutive sentences below, and thus, forfeited the issue on appeal. (People v. Gonzalez
(2003) 31 Cal. 4th 745, 755-756.) In her reply brief, defendant asserts that her claim is
not that the trial court failed to give any reasons for imposing consecutive sentences but
that “regardless of the purported reasons for the sentencing choices, consecutive
sentencing was an abuse of discretion.” Defendant did not object on that ground below,
thereby forfeiting that issue as well. (Ibid.) Even if the issue had been preserved, it lacks
merit. Rule 4.425(a)(1) expressly lists “[t]he crimes and their objectives were
predominantly independent” as a relevant factor in deciding whether to impose
consecutive rather than concurrent sentences. Section 115, subdivision (a) prohibits
knowingly procuring or offering any false document for filing in any public office. Here,
the proofs of service that form the basis of counts one, three, four, and six were filed on
July 1, 13, 15, and 21, 2011, respectively. In addition, the proofs of service that form the
basis for counts one, three, four, and six pertains to different documents and were filed in
three separate cases. These facts support a finding that counts one, three, four, and six
were committed independent of one another.
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Lastly, defendant’s claim that the execution of separate sentences for each of his
convictions for offering a false instrument for filing violates section 654’s bar against
double punishment fails. Ordinarily, section 654 prohibits multiple punishments for
more than one offense where the offenses are committed during an “ ‘indivisible
transaction’ ” having a single criminal objective. (People v. Gangemi (1993) 13
Cal. App. 4th 1790, 1799.) However, a different rule applies to offering false instruments
for filing or recording in violation of section 115. (Gangemi, at p. 1800.) “For purposes
of prosecution under this section [115], each act of procurement or of offering a false or
forged instrument to be filed, registered, or recorded shall be considered a separately
punishable offense.” (§ 115, subd. (d).) “This language demonstrates an express
legislative intent to exclude section 115 from the penalty limitations of section 654.
Thus, the Legislature has unmistakably authorized the imposition of separate penalties for
each prohibited act even though they may be part of a continuous course of conduct and
have the same objective. . . . [E]ach false filing is separately punishable.” (Gangemi, at
p. 1800.)
DISPOSITION
The judgment is affirmed.
BLEASE , Acting P. J.
We concur:
HULL , J.
HOCH , J.
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