(Super. Ct. No. CRF11541)
The opinion of the court was delivered by: Robie , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 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 co-partners 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 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 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.*fn1
"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 ...