Filed 5/14/13 P. v. Woods 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----



THE PEOPLE,                                                                                  C071103

                   Plaintiff and Respondent,                                     (Super. Ct. No. CRF11541)

         v.

PARIS LORENZO WOODS,

                   Defendant and Appellant.




         After pleading no contest to one charge of second degree robbery, defendant Paris
Lorenzo Woods was sentenced to the upper term of five years in prison. On appeal,
defendant contends the trial court abused its discretion by imposing the upper-term
sentence because: (1) his punishment was significantly harsher than the penalty imposed
on one of his crime partners; (2) the court improperly considered his jailhouse behavior
as an aggravating factor; and (3) the court gave only minimal consideration to mitigating
factors. We conclude that defendant forfeited these arguments by failing to object to the
judgment after pronouncement. Nevertheless, we address the merits of these arguments
through the lens of ineffective assistance of counsel and conclude that imposing the
upper-term sentence was not an abuse of discretion and therefore defense counsel‟s


                                                             1
forfeiture of these arguments did not constitute ineffective assistance of counsel.
Accordingly, we affirm.
                      FACTUAL AND PROCEDURAL BACKGROUND
       Early one morning in the fall of 2011, defendant, along with several copartners in
crime, stole marijuana from a medical marijuana garden located at a private residence.
While the parties were in the process of stealing the marijuana, the owner of the home,
Francisco, was alerted to the commotion and went to investigate. When he did so, he saw
two men standing by his marijuana plants; one of the men yelled, “ „Get back in your
house, mother fucker.‟ ” Three gunshots followed. Francisco ran back inside his home
and told his wife, Cynthia, to get their 10-year-old son out of the master bedroom. While
doing so, Cynthia heard two more gunshots and the sliding glass door in the master
bedroom shattered. After the gunfire ceased, Cynthia called 911. Francisco returned to
the backyard in time to see approximately eight males running toward three different
vehicles.
       Defendant waited by the vehicles outside of the victim‟s yard during the
commission of the crime and then helped load a tarp full of marijuana into the back of
one of the getaway vehicles. Defendant next attempted to flee the premises, but found
his car would not start. Following the lead of others, defendant left the vehicle and took
off on foot.
       Denia Douglas, the driver of one of the other getaway vehicles, was stopped and
detained for questioning soon thereafter by Yuba County sheriff‟s deputies. Defendant
and one of the others involved in the robbery, Joshua Johnson, were also detained by
deputies when they were found walking north on Highway 70 -- wearing black clothing
and smelling of marijuana. When the deputies interviewed these three detainees, Douglas
and Johnson each gave incriminating statements about themselves and defendant.
Defendant, however, denied any involvement in the incident -- instead claiming that he



                                             2
and Johnson were visiting girls in Sacramento, took a wrong turn on their way back to
Fairfield, then ran out of gas and began walking.
       Two days later, defendant was charged with discharging a firearm at an inhabited
dwelling, second degree robbery, and assault with a firearm. Defendant pled no contest
to second degree robbery in exchange for the prosecutor‟s agreement to drop all other
charges. At the plea hearing, the court informed defendant that it could impose a
sentence of either two, three, or five years for second degree robbery. Defendant said
that he understood the offer and accepted it.
       At the sentencing hearing, defense counsel advocated for probation based on
defendant‟s minor role in the crime, his insignificant criminal record, and his successful
completion of juvenile probation. Defense counsel argued that, “at the very worst this
would be a low-term case . . . .”
       The prosecution argued for the maximum sentence of five years based on the
violent nature of the crime, defendant‟s lack of cooperation with law enforcement, and
his misbehavior in jail. In addition, the victim, Cynthia, testified as to how the robbery
traumatized her and her family and caused significant, long-lasting emotional impacts.
       In response to these arguments, the court stated, “I‟m denying probation in this
matter because it‟s not the acceptable result for this crime. The defendant has had no
remorse. He is a danger to society. And I have no reason to believe that he could be
released to the public and not generate further crimes.”
       Regarding the proper sentence to impose, the court said the following: “Now I‟m
looking at the choice here; two, three or five. And I can consider that -- when imposing
the term of imprisonment prescribed by law, what does the defendant have in his criminal
past. I‟m looking at the letters that his family writes saying that he‟s a nice person to
them. Although the victim says he sure wasn‟t nice. He has a juvenile record. Solano
County, misdemeanor, a misdemeanor. A misdemeanor disturbing the peace;
misdemeanor battery in ‟06. He‟s had his probation violated and reinstated and

                                                3
terminated successfully. That went in his favor. Lack of record somewhat weighs in his
favor. He wasn‟t on parole or probation when this crime was committed. That weighs in
his favor. But I‟m seeing a lack of remorse. And I can understand Probation‟s position
that -- and I‟m finding -- the crime involved great violence. There are many types of
robberies, but this crime involved great violence. A great threat of bodily harm. The
people in the house could have been killed. There is a high degree of cruelty, viciousness
and callousness in the execution of this crime. The victims are particularly vulnerable.
As [Cynthia] stated, they [we]re asleep in their home when they [we]re intruded upon by
multiple armed assailants who [struck] with gunfire. I‟m finding also that the matter was
planned, sophisticated and professional in the way it was carried out. The defendant
wasn‟t coming up here to meet girls. [Defendant] just wasn‟t sitting in the back seat [sic]
snoozing. He was out there committing this crime, and he‟s lied to me.
       “There‟s a high degree of monetary loss; over $10,000 in this case. This is violent
conduct showing that the defendant is a danger to society and also considering the fact
that he can‟t seem to conduct himself appropriately in the Yuba County Jail. If he‟s
going to conduct himself in such a fashion dealing with other prisoners and displaying
disrespect to the staff who is trying to supervise him, that doesn‟t tell me he could be very
good released back into society.1




1      The jailhouse misbehavior referred to here is based on the following four
disciplinary incidents:

       “On October 14, 2011, [defendant] and co-defendant Johnson continually were
disrespectful towards Yuba County Jail Commissary staff person Charlotte. [Defendant]
and Johnson were heard . . . yell[ing] „Bitch‟ towards Charlotte. Charlotte advised the
inmates their attitude and was [sic] unacceptable. [Defendant] and Johnson interrupted
her while she was giving the advisement by calling her a bitch. [Defendant] was the
main instigator.


                                             4
       “Looking at the overall job a judge has, my choice of two, three or five years, two
is not acceptable in this case. It‟s not long enough for what‟s been done here. It‟s
unacceptable to me. It is my intent to sentence [defendant] to the longest term possible
because I think that even five years is insufficient for the crime that these folks have
suffered. Just sitting there in their own house, minding their own business, their home is
shot up. Their property was taken. They‟re viciously attacked. They still suffer the
consequences today of what the defendant and his friends did. The defendant is
absolutely unapologetic and unremorseful for this crime. That is what threw me over the
top to five years. Very violent crime. These folks [we]re armed. This [wa]s well
planned out. People could have been killed. And the defendant never fessed up to what
he did. He‟s lying still.
       “So I‟m selecting the upper term of five years in state prison for this matter. I‟m
denying probation. . . . .
       “The circumstances in mitigation are insignificant compared to the aggravated
fashion in which this crime was committed.”
       Following the pronouncement of sentence, defense counsel did not make any
objections. Defendant filed a timely appeal.



      “On January 21, 2012, [defendant] entered into a cell that was being cleaned
without permission and jumped onto the top bunk of the unoccupied cell.

        “On February 28, 2012, [defendant] was returning from having a visit. Inmate
Robinson pushed [defendant] into the sally port area. A physical altercation ensued and
deputies intervened. Robinson was observed striking [defendant] with a fist to the face,
while [defendant] was in a „headlock‟ position. [Defendant] told deputies „Robinson and
other crip gang members were forcing their politics on the blacks and that he was tired of
it, so he was assaulted for not following politics.‟ [Defendant] was placed into an
alternate pod for his safety.

      “On March 6, 2012, [defendant] failed to make his bed per Yuba County Jail rules.
[Defendant] was directed to make his bed. [Defendant] complied with the deputy.”

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                                       DISCUSSION
       We are faced with two issues on appeal: first, did defendant forfeit his right to
challenge the court‟s imposition of the upper-term sentence by failing to object to the
sentence after pronouncement, and second, if so, did such forfeiture constitute ineffective
assistance of counsel? We answer the first question in the affirmative, and the second in
the negative.
                                               I
         Defendant Forfeited His Right To Challenge The Upper-Term Sentence
       The People contend defendant is precluded from challenging imposition of the
upper term because defense counsel failed to object to its imposition after the judgment
was pronounced. While acknowledging that “his counsel did not specifically object to
some of the factors relied on by the court which are now being challenged[,]” defendant
nevertheless claims that by advocating for probation, or alternatively, the lower term
sentence, his counsel impliedly objected to the upper-term sentence and preserved the
issue for appeal. Defendant is wrong.
       In People v. Scott (1994) 9 Cal.4th 331, our Supreme Court held that lack of a
timely and meaningful objection to a sentencing decision may forfeit a party‟s claim of
error on appeal. The court in Scott explained that this forfeiture rule extends all the way
to “claims involving the trial court‟s failure to properly make or articulate its
discretionary sentencing choices. Included in this category are cases in which the stated
reasons allegedly do not apply to the particular case, and cases in which the court
purportedly erred because it double-counted a particular sentencing factor, misweighed
the various factors, or failed to state any reasons or give a sufficient number of valid
reasons.” (Id. at p. 353.) Defendant‟s challenges to the sentence imposed fall squarely
within this category.
       It was not enough for defense counsel to request probation, or alternatively, the
lower term sentence. (See People v. de Soto (1997) 54 Cal.App.4th 1, 9-10 [“The reason

                                              6
for the rule is obvious; there can be no objection before the court makes the necessary
sentencing choices”].) “[C]ounsel is charged with understanding, advocating, and
clarifying permissible sentencing choices at the hearing. Routine defects in the court‟s
statement of reasons are easily prevented and corrected if called to the court‟s attention.”
(People v. Scott, supra, 9 Cal.4th at p. 353.) Therefore, if defendant wished to preserve
for appeal the specific sentencing issues he raises here, his trial counsel needed to
specifically and timely object to the imposition of the upper-term sentence after it was
pronounced. (See de Soto, at pp. 9-10.) Thus, defendant‟s challenges to the upper-term
sentence were forfeited.
                                              II
               Failure To Object To Imposition Of The Upper-Term Sentence
                    Did Not Constitute Ineffective Assistance Of Counsel
       In the alternative, defendant claims that if his challenges to the imposition of the
upper-term sentence were forfeited, this forfeiture constituted ineffective assistance of
counsel and therefore we should address the underlying merits of the claims anyway.
       A claim of ineffective assistance of counsel has two components: “ „First, the
defendant must show that counsel‟s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires showing that
counsel‟s errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.‟ [Citation.]
       “To establish ineffectiveness, a „defendant must show that counsel‟s
representation fell below an objective standard of reasonableness.‟ [Citation.] To
establish prejudice he „must show that there is a reasonable probability that, but for
counsel‟s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the

                                              7
outcome.‟ ” (Williams v. Taylor (2000) 529 U.S. 362, 390-391 [146 L.Ed.2d 389, 416],
quoting Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698]; In re
Jones (1996) 13 Cal.4th 552, 561.) We must address the underlying merits of
defendant‟s arguments to determine if counsel was ineffective in failing to preserve
these issues for appeal. (See People v. Burgener (2003) 29 Cal.4th 833, 887.)
       We keep in mind that, if defendant‟s claims were preserved for appeal, the
standard of review facing these claims would have been abuse of discretion. (See People
v. Bradford (1976) 17 Cal.3d 8, 20 [on appeal, a sentencing order will be upheld unless
there is a clear showing of abuse].) “In reviewing for abuse of discretion, we are guided
by two fundamental precepts. First, „ “[t]he burden is on the party attacking the sentence
to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.” ‟ [Citations.] Second, a „ “decision will not be reversed
merely because reasonable people might disagree. „An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial
judge.‟ ” ‟ [Citations.] Taken together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
       Starting with the first prong of ineffective assistance of counsel -- deficiency --
defendant has the burden of proving that, with the above understanding of abuse of
discretion in mind, it was unreasonable (see People v. Lucas (1995) 12 Cal.4th 415, 436)
for defense counsel not to object to the court‟s imposition of the upper-term sentence on
at least one of the following grounds: (1) The court improperly imposed a harsher
penalty on defendant than was imposed on one of his crime partners who also pled no
contest to the same offense; (2) The court improperly considered defendant‟s jailhouse



                                               8
behavior as an aggravating factor; or (3) The court did not adequately consider the
circumstances in mitigation.
       We will not consider defense counsel ineffective for failing to object to the upper-
term sentence on the above stated grounds if making such objections clearly would have
been futile. (See People v. Diaz (1992) 3 Cal.4th 495, 562 [no claim for ineffective
assistance of counsel based on defense counsel‟s failure to make a futile objection].)
                                              A
                     Imposing A Harsher Penalty On Defendant Than
                   Was Imposed On One Of Defendant’s Crime Partners
       Defendant argues that the trial court clearly abused its discretion by imposing a
five-year sentence on him when Douglas, one of his crime partners charged with the
same offense, “was placed on probation for five years and [was] only required to serve
four months in the county jail.” Defendant cites no authority to support his proposition
that this type of variation in sentencing among crime partners evidences abuse of
discretion by the court. In fact, case law is to the contrary: “Evidence of the disposition
of a codefendant‟s case . . . is not relevant to the decision at the penalty phase, which is
based on the character and record of the individual defendant and the circumstances of
the offense.” (People v. Mincey (1992) 2 Cal.4th 408, 476; see also 22A Cal.Jur.3d § 366
[“The trial court‟s sentencing discretion under the determinate sentencing law must be
exercised in a manner . . . that is based upon an individualized consideration of the
offense, the offender, and the public interest,” italics added].)
       While we recognize that some of the aggravating factors the court considered in
determining defendant‟s sentence were related to the nature of the crime committed --
and that these factors must have been the same for Douglas and defendant -- there were
also individual factors the court considered that differentiated defendant‟s sentencing
determination from Douglas‟s. For example, at defendant‟s sentencing hearing, the court
noted that defendant had not been “conduct[ing] himself appropriately in the Yuba

                                               9
County Jail” and that “[if] he‟s going to conduct himself in such a fashion dealing with
other prisoners and displaying disrespect to the staff who is trying to supervise him, that
doesn‟t tell me he could be very good released back into society.”2 In addition, the court
noted that defendant had a juvenile record, that “defendant never fessed up to what he
did[,]” was “lying still[,]” and “[wa]s absolutely unapologetic and unremorseful for this
crime.”
       As the People argued at trial, “[Douglas] is remarkably dissimilar from
[defendant]. [Douglas] cooperated with law enforcement from the moment she was
contacted by them. She took them to the location. She explained everything that
occurred from the moment they left Fairfield. She cooperated with law enforcement in
any and every way that law enforcement asked her to. And she had absolutely no prior
criminal record, juvenile or otherwise.” These notable differences between defendant
and Douglas, tied to the requirement that courts make individualized sentencing
determinations (see People v. Sandoval (2007) 41 Cal.4th 825, 847), go to show that it
was clearly within the discretion of the court to impose a harsher sentence on defendant
than the sentence received by Douglas.
       Therefore, because it was clearly not an abuse of discretion for the court to
sentence defendant to a higher term than Douglas received, it was accordingly not
unreasonable for defense counsel to forfeit this claim by failing to object to the upper-
term sentence on this ground. Such an omission did not constitute ineffective assistance




2       We are aware that one of defendant‟s claims on appeal is that it was improper for
the judge to consider his jailhouse behavior when making the sentencing determination.
If that were indeed the case, it would be improper for us to consider this as an
individualized factor for defendant‟s higher sentence term. However, as will be
discussed in Section IIB of this opinion, it was not improper for the judge to consider
defendant‟s postconviction behavior when determining what sentence to impose.
Therefore, it is also proper to include this factor in our analysis at this point.

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of counsel. (See People v. Thompson (2010) 49 Cal.4th 79, 122 [“Counsel is not
ineffective for failing to make frivolous or futile motions”].)
                                              B
                Defendant’s Jailhouse Behavior As An Aggravating Factor
       Defendant argues that the trial court improperly considered his postarrest,
jailhouse behavior when determining what sentence term to impose. Specifically, citing
subdivisions (a) and (b) of rule 4.421 of the California Rules of Court, defendant argues
that his “post-crime behavior in jail was not a factor related to the crime. [Citation.]
Moreover, it was not behavior, such as poor performance on probation or parole, that
would argue for an increased prison term.” While it is true that poor jailhouse behavior is
not specifically listed as an aggravating factor in our rules of court, the rules also provide
that “the sentencing judge may consider circumstances in aggravation or mitigation, and
any other factor reasonably related to the sentencing decision.” (Cal. Rules of Court,
rule 4.420(b), italics added.) In addition, the rules declare that “[t]he enumeration in
these rules of some criteria for the making of discretionary sentencing decisions does not
prohibit the application of additional criteria reasonably related to the decision being
made.” (Cal. Rules of Court, rule 4.408(a), italics added.)
       Defendant‟s briefs conveniently omit any mention of the above quoted provisions
and any analysis as to why his jailhouse behavior is not “reasonably related to the
decision being made.” (Cal. Rules of Court, rule 4.408(a).) On the other hand, the court
at the sentencing hearing explained why defendant‟s jailhouse behavior was relevant to
the sentencing determination when it stated that “[i]f he‟s going to conduct himself in
such a fashion [in Yuba County Jail] . . . that doesn‟t tell me he could be very good
released back into society.” This consideration of the societal impact of the sentencing
decision comports with our Supreme Court‟s directive “ „that sentencing decisions must
take into account “the nature of the offense and/or the offender, with particular regard to
the degree of danger both present to society.” ‟ ” (People v. Cheatham (1979) 23 Cal.3d

                                              11
829, 835.) Thus, the court‟s consideration of defendant‟s postarrest, jailhouse behavior
was both relevant and proper in relation to the court‟s sentencing determination.
       To the extent defendant might be arguing it is per se inappropriate to consider
postconviction behavior for sentencing, this is inaccurate. In People v. Foley, (1985) 170
Cal.App.3d 1039, 1047, this court, considering whether postconviction behavior could be
considered in a resentencing hearing, observed that Penal Code section 1170, subdivision
(b), which lays out the guidelines for determinate sentencing, “provides in pertinent part
that, in setting a term, „the court may consider . . . other reports including reports received
pursuant to Section 1203.03. . . .‟ [Citation.] Since a diagnostic evaluation pursuant to
section 1203.03 is made in a prison setting and is appropriate only „In any case in which a
defendant is convicted of an offense punishable by imprisonment in the state prison,‟ the
statute clearly contemplates that the sentencing judge be able to consider a defendant‟s
postconviction behavior in prison in setting a term. [Citation.] If a defendant‟s
postconviction behavior in prison is relevant to setting his term at his original sentencing,
we can see no reason why it would not be relevant to the setting of his term upon
resentencing.”
       Thus, as laid out above, because consideration of defendant‟s postarrest, jailhouse
behavior was neither irrelevant nor per se inappropriate, it was undoubtedly within the
discretion of the court whether to include this factor in the sentencing determination.
Furthermore, because an objection to the upper-term sentence based on this consideration
would clearly have been futile, the failure of defense counsel to make the objection does
not establish ineffective assistance of counsel. (See People v. Thompson, supra, 49
Cal.4th at p. 122.)
                                              C
                      The Court’s Consideration Of Mitigating Factors
       Lastly, defendant argues that “the five-year term must be vacated and the cause
remanded” because “the circumstances in mitigation were given minimal consideration

                                              12
by the court.” The specific mitigating factors defendant is referring to are “the passive
role [defendant] played in the commission of the robbery[,]” defendant‟s “almost non-
existent” criminal history prior to the robbery, and the fact that defendant was not on
probation at the time of the offense. In opposition to this argument, the People correctly
point out that “the record clearly demonstrates that the trial court considered these factors
before imposing the upper term.”
       “[T]he „weighing‟ of aggravating against mitigating circumstances is not a
mechanical or numerical process, but rather entails . . . determining the appropriate
punishment based upon all relevant evidence.” (People v. Davenport (1985) 41 Cal.3d
247, 280.) The court, in considering all relevant evidence in mitigation and aggravation
at the sentencing hearing, specifically noted that defendant had only a juvenile record and
that this “somewhat weighs in his favor.” In addition, the court stated that defendant
“wasn‟t on parole or probation when this crime was committed. That weighs in his
favor.” And at the beginning of the sentencing hearing, the court asked the parties to
stipulate that it could consider the extent of defendant‟s involvement in the crime for
sentencing purposes -- namely that he never entered the victims‟ yard during the
commission of the robbery. Nevertheless, when weighed against the aggravating factors
such as defendant‟s “lack of remorse”; that “this crime involved great violence. . . . [and]
[a] great threat of bodily harm”; the “high degree of cruelty, viciousness and callousness
in the execution of this crime”; the vulnerability of the victims who were “asleep in their
home when they [we]re intruded upon by multiple armed assailants who str[uck] with
gunfire”; the “plan[ning], sophisticat[ion] and professional[ism] in the way [the robbery]
was carried out”; the “high degree of monetary loss; over $10,000 in this case”; and
defendant‟s poor jailhouse behavior since the arrest, the court expressly found “[t]he
circumstances in mitigation are insignificant compared to the aggravated fashion in
which this crime was committed.”



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       On appeal, this court is not in a position to tell the trial court how it should have
weighed the mitigating and aggravating factors when making this sentencing
determination; “ „it is the sentencer that decides how much weight to give to the . . .
factors, and that decision is not amenable to appellate review.‟ ” (People v. Brown
(1988) 46 Cal.3d 432, 470.) Because the trial court did in fact recognize the mitigation
factors in question and expressly included these factors in the sentencing decision, we
cannot say that the weight attributed to these factors constituted an abuse of discretion.
(See People v. Evans (1983) 141 Cal.App.3d 1019, 1022 [“A sentencing court has wide
discretion in weighing the aggravating and mitigating factors [citations]. There was no
abuse of that discretion here, as the record amply supports a finding the superior court
considered all relevant factors and made a reasonable decision as to their relative
weight”].)
       As with the previous two challenges asserted against the sentencing determination,
it is apparent that if defense counsel had made an objection on this ground, the objection
would have been overruled. Thus, the actions of defense counsel in this instance did not
rise to the level of deficiency. (See People v. Thompson, supra, 49 Cal.4th at p. 122.)
       Because none of defense counsel‟s failures to object amount to deficiency under
the first prong of the ineffective assistance of counsel test, it is unnecessary to address
whether these omissions caused prejudice to defendant as required under the second
prong of the test -- although, based on the above analysis, it is apparent that prejudice
would not be found either.




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                                 DISPOSITION
     The judgment is affirmed.



                                   ROBIE       , Acting P. J.



We concur:



     BUTZ        , J.



     MAURO          , J.




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