Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CRF03428, CRF06560
SIMS, Acting P.J.
Defendant Susan Lee Couture seeks to appeal from a final judgment following a plea of no contest to two counts of offering false or forged instruments for filing, in violation of Penal Code section 115, subdivision (a). We shall conclude defendant’s failure to obtain a certificate of probable cause (§ 1237.5; Cal. Rules of Court, rule 8.304(b) ) prevents her challenge that the documents she falsified were not “instruments” within the meaning of section 115, and this forfeiture is not avoided by her claim of ineffective assistance of counsel. Defendant also raises sentencing contentions, which we shall address and reject. We shall affirm the judgment.
Undesignated statutory references are to the Penal Code. Section 115, subdivision (a), provides: “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.”
Undesignated rule references are to the California Rules of Court.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with two counts of offering false or forged instruments for filing (§ 115, subd. (a)), and two counts of preparing false documents for a fraudulent purpose upon any trial, proceeding, or inquiry (§ 134 ). The offenses were alleged to have occurred between May 1, 2006, and June 30, 2006. It was also alleged that the offenses were committed while defendant was released on bail or her own recognizance (§ 12022.1, subd. (a)) for a prior offense.
Section 134 provides, “Every person guilty of preparing any false or antedated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.”
As reflected in a sequence of probation reports:
At the time of the current offenses, defendant was on probation for a 2003 conviction for second degree burglary (§ 459), where she took personal checks from the home of the victims, forged the checks, and cashed them at a market.
The current offenses occurred between May and June 2006, when she submitted two false letters to be used by the court in connection with her sentencing on probation violations and her request not to be incarcerated. Defendant submitted a letter to a probation officer, addressed to the Yuba County Public Defender’s Office, which purported to be signed by defendant’s employer, and which asserted defendant was a full time employee and an asset to the employer. The letter contained false information, and the employer’s signature was forged by defendant. Defendant also submitted a letter from a Dr. William Whang, addressed, “To whom it may concern,” stating defendant’s daughter (born in 1990) had been in a vehicle accident, underwent surgery, and would require three months of restricted activity and several months of physical therapy. After the forgery of the employment letter was discovered, defendant was questioned and admitted to police that the doctor’s letter was also falsified, in that the vehicle accident happened years earlier, the doctor wrote the letter years earlier, and defendant had changed the date on the doctor’s letter to make it look current.
The People assert there is some question as to whether the documents in the record on appeal are the correct documents, because neither letter expressly stated a need for defendant to remain free from incarceration. However, such an implication may be deduced from the letters.
In the 2006 probation revocation proceedings for which defendant submitted the false letters, the trial court reinstated her probation.
On the current offenses, defendant on March 7, 2007, entered a plea of no contest to the two section 115 counts (offering false or forged instruments for filing). Defendant stated she understood the plea put her in violation of a previous grant of probation. The prosecutor agreed to a dismissal of the section 134 counts (preparing false documents for a fraudulent purpose upon any trial, proceeding, or inquiry) and the section 12022.1 enhancement. Defendant acknowledged her understanding that, if the court denied probation, the court could impose a sentence up to a maximum of four years and four months.
The trial court accepted defendant’s plea and sentenced her to the maximum term of four years and four months (three years for the first forgery count, an eight-month consecutive term for the second forgery, and an eight-month consecutive term for the burglary for which she was on probation). The court advised defendant she had limited appeal rights, must file an appeal within 60 days, and must request an attorney from the appellate court if she wanted an attorney appointed.
Although defendant was represented by counsel during the foregoing proceedings, she filed her notice of appeal in propria persona. She checked the box that the appeal was based on the sentence or other matters occurring after the plea, and she handwrote under “Other” that she was claiming a drug counselor’s bias affected the sentencing and ineffective assistance of counsel. Although the form advised her of the need to request a certificate of probable cause in order to challenge the validity of the plea, defendant did not request a certificate of probable cause. She did, however, request appointment of counsel and now has appellate counsel.
DISCUSSION
I. Lack of Certificate of Probable Cause
Defendant argues her conduct did not violate section 115, and, due to ineffective assistance of counsel, she does not need a certificate of probable cause to challenge her conviction on the section 115 violations. We disagree.
“[S]ection 1237.5 provides that a defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless he has filed in the superior court a statement of certificate grounds, which go to the legality of the proceedings, including the validity of his plea, and has obtained from the superior court a certificate of probable cause for the appeal. [Citation.]” (People v. Mendez (1999) 19 Cal.4th 1084, 1095; see also, rule 8.304.) This requirement of a certificate of probable cause does not apply to post-plea claims, including sentencing issues, which do not attack the plea’s validity. (People v. Buttram (2003) 30 Cal.4th 773, 776; rule 8.304(b).)
Defendant did not obtain a certificate of probable cause, yet she seeks to challenge her conviction on the pre-plea ground that she could not have violated section 115 (offering false or forged instruments for filing) because the documents she falsified were not “instruments” within the meaning of section 115. She cites People v. Soriano (1992) 4 Cal.App.4th 781, which held a defendant’s claim that a forged document was not an “instrument” under section 115 was a claim of legal impossibility, rather than insufficiency of the evidence, and was therefore cognizable on appeal following a negotiated plea, as long as the procedural requirements of section 1237.5 were met. Here, however, defendant did not meet section 1237.5’s requirements.
Defendant argues trial counsel was ineffective for failing to know and advise her that the documents she falsified were not “instruments” within the meaning of section 115. She argues we should excuse her failure to obtain a certificate of probable cause because her trial counsel rendered ineffective assistance of counsel by allegedly failing to advise her (in filing her notice of appeal in propria persona) that she needed to request a certificate of probable cause.
Thus, defendant complains of both pre-plea and post-plea conduct by her trial counsel. The People claim defendant cannot complain of post-plea ineffective assistance of counsel, because defendant took over her own representation after sentencing and filed her own appeal. Defendant replies she was abandoned by trial counsel, who failed to advise her of the requirement of a certificate of probable cause (a point on which defendant, of course, cites no evidence in the record).
As to the pre-plea conduct of trial counsel -- i.e., counsel’s alleged failure to assert the defense of the supposed inapplicability of section 115 -- this contention is barred on appeal by defendant’s failure to obtain a certificate of probable cause. Thus, a defendant is entitled to effective assistance of counsel when entering a plea (People v. Maguire (1998) 67 Cal.App.4th 1022, 1027-1028), and ineffective assistance of counsel is an issue for which a certificate of probable cause is required (In re Chavez (2003) 30 Cal.4th 643, 649-651). People v. Stubbs (1998) 61 Cal.App.4th 243, dismissed an appeal where the defendant claimed ineffective assistance of counsel prior to entry of a guilty plea but failed to obtain a certificate of probable cause. Stubbs noted the California Supreme Court has frowned on the practice of appellate courts maneuvering around section 1237.5 by treating appeals as writs for habeas corpus, because the practice frustrates the purpose of section 1237.5, which is to weed out frivolous appeals by subjecting issues to screening at the superior court level. (Stubbs at p. 245.) Accordingly, we will not address defendant’s claims that the letters she falsified were not “instruments” under section 115, or that counsel was ineffective in failing to pursue this asserted defense.
As to defendant’s claim of post-plea ineffective assistance of counsel (i.e., counsel’s alleged failure to tell defendant she needed to request a certificate of probable cause), even assuming such a claim could be made to a reviewing court without a certificate of probable cause, the record before us is inadequate to determine ineffective assistance of counsel.
Thus, in order to establish ineffective assistance of counsel, defendant bears the burden of showing (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to defendant. (People v. Hawkins (1995) 10 Cal.4th 920, 940.)
Here, even assuming defendant is correct that trial counsel was required to advise defendant about section 1237.5, there is no evidence before us that trial counsel failed to advise defendant regarding section 1237.5. There is merely an assertion to that effect by defendant’s appellate counsel. The record does not show the circumstances under which defendant assumed her own representation or what conversation, if any, took place regarding post-plea proceedings. Moreover, the “notice of appeal” form filled out by defendant expressly advised: “If your appeal challenges the validity of the plea you must complete the Request for Certificate of Probable Cause on the other side of this form. (Pen. Code, § 1237.5.)”
Thus, the record does not establish ineffective assistance of counsel.
Defendant argues we should excuse her failure to secure a certificate of probable cause under In re Benoit (1973) 10 Cal.3d 72, which held that where an incarcerated defendant’s attorney agrees to file a notice of appeal but neglects to do so in a timely fashion, the appellate court may construe the defendant’s untimely notice of appeal as having been timely filed if the defendant displayed diligence. However, this constructive filing principle would not help defendant, because the principle merely excuses an untimely filing, and defendant never sought a certificate of probable cause. Moreover, the California Supreme Court has “expressly decline[d] to extend the holding of [Benoit] to situations in which an attorney not only does not agree to prepare or file a statement of reasonable grounds for appeal [under section 1237.5], but also does not agree to represent the defendant.” (In re Chavez, supra, 30 Cal.4th at p. 658.) Chavez said an untimely filing of a section 1237.5 statement of reasonable grounds for appeal was subject to Benoit’s constructive filing principle, but the principle did not apply where the only delay attributable to the attorney consisted of failing to inform the defendant as early as possible that the attorney did not agree to represent the defendant on appeal. (Ibid.)
Here, defendant never filed a request for a certificate of probable cause and does not contend she relied on trial counsel to do so.
We conclude the lack of a certificate of probable cause is fatal to defendant’s challenge to the conviction for the section 115 violations, despite her claims of ineffective assistance of counsel.
II. Sentencing
A. Background
At sentencing, the trial court stated it had read and considered the probation officer’s reports. The court stated:
“In 06-560 [the current case], [defendant] on March 7th, 2007, entered a negotiated plea of no contest to Counts I and III, each being a violation of Penal Code Section 115(a). Terms of the plea was [sic] that the remaining counts and the 12022.1 enhancement be dismissed and/or struck.
“As to both cases, she is statutorily eligible for a probation grant or reinstatement on probation. I do not believe the 414 criteria [rule 4.414] justify a probation grant or reinstatement in either case.
“Under Rule [4.]425, I believe that sentencing should be consecutive between cases and between counts and that the upper term is appropriate. Indicated disposition is to sentence the Defendant to state prison in 06-560 upper term on Count I, consecutive eight months on Count III, consecutive eight-month sentence in 03-428.”
After hearing from counsel, the trial court stated:
“In trying to arrive at an appropriate disposition in any case, one of the compelling factors that at least I look at is what the Defendant has done, is willing to do. Unfortunately for [defendant], she has put herself in a position that no matter what she says it is not believed in any way, shape or form.
“The [4.]414 criteria do not justify a probation grant or a reinstatement. Probation is denied. [¶] You agree that I can give her her parole and appeal rights once as to both cases?
“[Defense counsel]: Yes, Your Honor.
“THE COURT: In 06-560, Defendant’s prior conviction is an aggravating factor. The Court does not believe there is any believable evidence of any mitigating circumstances.
“[Defendant], for Count I, a violation of Penal Code Section 115(a), it’s the judgment and sentence of the Court you be sentenced to state prison for the upper term of 36 months. For Count III, a violation of Penal Code Section 115(a), based on my earlier comments about Rule [4.]425, you’re sentenced to a term of eight months, that to be served consecutively to the other term imposed.
“[¶] . . . [¶]
“Turning to 03-428, based on my earlier comments about Rule [4.]425, for a violation of Penal Code Section 459, second degree burglary, it’s the judgment and sentence of the Court the Defendant be sentenced to state prison for a term of eight months, that to be served consecutively to the other terms imposed.”
B. Upper Term
Defendant contends the trial court failed to articulate a reason for imposing the upper term and violated her right to a jury trial by sentencing her to the upper term without a jury finding on aggravating factors. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403]; Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856].)
However, a trial court may use the fact of a prior conviction to impose an upper term sentence without submitting the matter to a jury. (People v. Black (2007) 41 Cal.4th 799, 812-818 (Black).) Defendant acknowledges we are bound by Black (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450), but she seeks to preserve her right to argue in another forum that Black was wrongly decided. We note that, after defendant filed her appellate briefs, the United States Supreme Court on January 14, 2008, denied certiorari in Black (169 L.Ed.2d 813).
Here, defendant argues the only reason stated by the court was “what the [d]efendant has done, is willing to do,” which defendant construes as ambiguous.
However, the trial court also said that, as to the section 115 conviction, “Defendant’s prior conviction is an aggravating factor. The Court does not believe there is any believable evidence of any mitigating circumstances. [¶] [Defendant], for Count I, a violation of Penal Code Section 115(a), it’s the judgment and sentence of the Court you be sentenced to state prison for the upper term of 36 months.”
Defendant argues the trial court did not state the prior conviction was the reason for the upper term, because the court merely said the prior conviction was “an” aggravating factor. We disagree with defendant’s tortured reading.
We conclude the trial court properly sentenced defendant to the upper term based on the prior conviction without need for a jury trial. Since we conclude there was no error, we need not address defendant’s claim that counsel was ineffective in failing to preserve the issue for appeal or the parties’ arguments as to a remedy for error.
C. Consecutive Sentencing
Defendant raises a variety of challenges to the consecutive sentencing.
She first argues the trial court abused its discretion in sentencing her to a consecutive, rather than a concurrent, term for the second count of violating section 115. Defendant cites a case concerning section 654, which prohibits punishment under multiple statutes for a single course of conduct incidental to a single objective. (People v. Watts (1999) 76 Cal.App.4th 1250, 1264-1265 [substantial evidence review applies to trial court’s determination of multiple objectives].)
Defendant acknowledges section 654 does not apply to section 115. Thus, section 115, subdivision (d), states, “For purposes of prosecution under this section, 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.” People v. Gangemi (1993) 13 Cal.App.4th 1790, held section 115 is excluded from the limitations of section 654, and the imposition of separate penalties for each prohibited act is permissible under section 115, even though they may be part of a continuous course of conduct and have the same objective. (Gangemi, supra, at p. 1800.)
Defendant argues this limitation on section 654 does not apply here, because her falsified letters were not “instruments” within the scope of section 115. We have already explained this contention is barred by her plea and the absence of a certificate of probable cause. Accordingly, we need not address defendant’s argument that the sentence violated section 654.
Defendant next complains the trial court failed to state its reasons for imposing consecutive sentences, as required by rule 4.406(b), which provides, “Sentence choices that generally require a statement of a reason include: . . . [¶] (5) Imposing consecutive sentences.”
Here, the trial court said: “Under Rule [4.]425, I believe that sentencing should be consecutive between cases and between counts and that the upper term is appropriate.” The court then stated its intent to sentence defendant to the upper term on Count I, a consecutive eight-month term on Count III, and a consecutive eight-month term on the prior burglary. The court then allowed the attorneys to address the court. Defense counsel addressed the court but did not argue the court had failed to state reasons. After hearing from the attorneys, the court said, “For Count III, a violation of Penal Code Section 115(a), based on my earlier comments about Rule 425, you’re sentenced to a term of eight months, that to be served consecutively to the other term imposed,” and “based on my earlier comments about Rule 425, for a violation of Penal Code Section 459, second degree burglary, it’s the judgment and sentence of the Court the Defendant be sentenced to state prison for a term of eight months, that to be served consecutively to the other terms imposed.”
Defendant made no objection in the trial court that the court failed to state its reasons for consecutive sentencing, even though the court allowed counsel to argue the matter after the court indicated its intended disposition. Accordingly, the contention is forfeited. (People v. Scott (1994) 9 Cal.4th 331, 353, 356 [absent a timely objection, defendant cannot assert on appeal fact-based contentions about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons].)
Defendant argues that, to the extent her attorney failed to object in the trial court, the failure constituted ineffective assistance of counsel. However, defendant misperceives the scope of review by arguing (1) it is “possible” the court might have sentenced defendant concurrently had the court been pressed to clarify its reasons, and (2) it is a lawyer’s job to preserve issues for appeal. It is not reasonably probable that a request for clarification of reasons would have led to a lesser sentence. Thus, the probation report recommended consecutive sentencing on the grounds the burglary was independent of and committed at a separate time from the section 115 violations, and the second section 115 violation was committed while defendant was on probation, and her prior performance on probation was unsatisfactory.
We conclude defendant fails to show grounds for reversal based on an inadequate statement of reasons for consecutive sentencing.
Finally, defendant argues imposition of consecutive sentencing violated her right to a jury trial. She acknowledges Black, supra, 41 Cal.4th 799, which is binding on this court, held that imposition of consecutive terms upon facts not found by a jury does not violate the Sixth Amendment right to trial by jury. She summarily challenges Black in order to preserve the issue for further review. As noted, the United States Supreme Court has since denied certiorari in Black.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J. CANTIL-SAKAUYE, J.