People v. Howard CA4/1

Filed 7/7/16 P. v. Howard CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D069940

Plaintiff and Respondent,

v. (Super. Ct. No. RIF1400698)

MARK ANTHONY HOWARD,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County, Rafael A.

Arreola, Judge. Affirmed.

Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
 Mark Anthony Howard appeals a judgment following his jury conviction of two

counts of robbery (Pen. Code, § 211).1 On appeal, he contends the trial court erred by

not adequately stating reasons for its denial of probation and sentencing choices. He

further contends that if he waived or forfeited that contention on appeal for failure to

object below, he was denied his constitutional right to effective assistance of counsel.

FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 2012, Howard and another man, both wearing masks and gloves,

entered a jewelry store in a Riverside mall. One held a gun and the other a hammer.

They announced: "You know what this is. You know what this is. Get to the ground."

Two store employees and a customer complied and lay down on the floor. The two

robbers yelled, screamed, and used derogatory language.

The robbers took money out of the cash register, smashed display cases with the

hammer, and took jewelry valued at over $17,000. They fled through the mall's back

service area, discarded clothing along the way, got on a motorcycle, and sped away. One

of the robbers tossed a gun, subsequently determined to be a toy gun painted black, into

the bushes.

Police found evidence left behind by the robbers (e.g., the gun, a bandanna,

gloves, money, an earring, and several store price tags). Howard's DNA was found on

the bandanna and a glove. There was a motorcycle similar to the one used by the robbers

parked in the driveway of Howard's home and registered in his name. A search of

1 All statutory references are to the Penal Code.
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Howard's home found jewelry stolen from the jewelry store. A mallet and a pair of shoes

similar to the ones worn by one of the robbers were found in a car parked at Howard's

home and registered in his name. A business card for the jewelry store was also found.

An information charged Howard with two counts of robbery by means of force

and fear (§ 211). At trial, the prosecution presented evidence substantially as described

above. In his defense, Howard testified that he did not rob the jewelry store. He worked

next door to the jewelry store. He denied that the shoes found in his car were his. He

explained there were many youths in his program for youths who had access to his home

and motorcycle, and he suspected one of the youths probably committed the robbery.

The jury found Howard guilty on both robbery counts. The trial court denied probation

and sentenced him to an aggregate sentence of four years in prison. Howard timely filed

a notice of appeal.

DISCUSSION

I

Waiver or Forfeiture of Sentencing Error

Howard contends the trial court erred by not stating its reasons, or not adequately

stating its reasons, for denying probation, imposing the middle term for his first robbery

offense, and imposing a consecutive term for his second robbery offense. However, as

we explain below, he has waived or forfeited that contention on appeal because he did not

object on those grounds at the time of his sentencing.

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 A

At Howard's sentencing hearing, the trial court stated it had received, read, and

considered the probation report, the defense sentencing memorandum that included many

letters in support of Howard, and the prosecution's sentencing brief. The probation report

discussed factors relating to a grant or denial of probation and recommended the court

deny probation. It also discussed various circumstances in aggravation and the absence

of circumstances in mitigation, and recommended the court impose the middle term of

three years for the first robbery offense and a consecutive one-year term for the second

robbery offense. The court also heard testimony from two witnesses in support of

Howard and arguments by Howard's counsel and the prosecutor.

The trial court then denied probation and imposed a four-year prison term on

Howard, stating:

"I'm going to conclude that neither the circumstances in aggravation
nor any circumstances in mitigation outweigh each other. So the
midterm is the appropriate term in this case. So as to Count 1, I'm
going to sentence you to the midterm recommended in [the]
probation [report], three years, and probation is denied by the
way. . . . I have to find unusual circumstances to do that [i.e., grant
probation] and there aren't any. So you'll be sentenced to three years
on Count 1, as recommended by probation; there will be a
consecutive one-third of the midterm for Count 2 for an additional
year, for a total of four years."

Howard did not object to the court's stated reasons, or the lack of reasons, for its choices.

B

"Where the defendant is eligible for probation, the court must state its reasons for

selecting a prison commitment as its sentencing choice. This obligation to state reasons

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is satisfied by an explanation of why probation has been rejected in favor of

imprisonment." (People v. Leung (1992) 5 Cal.App.4th 482, 506.) "A sentencing court

must state its reasons for denying probation." (People v. Mehserle (2012) 206

Cal.App.4th 1125, 1157.)

Pursuant to section 1170, "a trial judge has the discretion to impose an upper,

middle or lower term based on reasons he or she states." (People v. Wilson (2008) 164

Cal.App.4th 988, 992.) "When a judgment of imprisonment is to be imposed and the

statute specifies three possible terms, the choice of the appropriate term shall rest within

the sound discretion of the court. . . . The court shall select the term which, in the court's

discretion, best serves the interests of justice. The court shall set forth on the record the

reasons for imposing the term selected . . . ." (§ 1170, subd. (b).) "The court shall state

the reasons for its sentence choice on the record at the time of sentencing." (§ 1170,

subd. (c).) A trial court has "broad discretion . . . in selecting the base term [citation] and

in choosing whether to impose concurrent or consecutive terms [citation]." (People v.

Monge (1997) 16 Cal.4th 826, 850-851.) "Sentence choices that generally require a

statement of a reason include: [¶] (2) Imposing a prison sentence and thereby denying

probation; . . . (4) Selecting one of the three authorized prison terms referred to in section

1170[, subdivision] (b) for either an offense or an enhancement; [and] (5) Imposing

consecutive sentences[.]" (Cal. Rules of Court, rule 4.406(b).)2 "The decision to impose

consecutive sentences is . . . a 'sentence choice' for which, under the determinate

2 All rule references are to the California Rules of Court.

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sentencing law, the trial court must give reasons." (People v. Champion (1995) 9 Cal.4th

879, 934.) If a trial court does not adequately state reasons for its sentencing choices,

that error is harmless and does not require remand for resentencing if it is not reasonably

probable a more favorable sentence would have been imposed in the absence of the error.

(People v. Davis (1995) 10 Cal.4th 463, 552.)

C

Howard argues the trial court erred by not stating reasons, or not adequately

stating reasons, for its decisions to deny probation and impose the middle term for his

first robbery offense, and a consecutive term for his second robbery offense. However,

we conclude he has waived or forfeited any challenge on appeal to those decisions by not

timely objecting below when the court could have easily remedied the purported errors.

In People v. Scott (1994) 9 Cal.4th 331, at page 353, the California Supreme Court

held that "the waiver doctrine should apply to claims involving the trial court's failure to

properly make or articulate its discretionary sentencing choices." The court stated that

the waiver doctrine would apply to "cases in which the court purportedly erred because it

. . . failed to state any reasons or give a sufficient number of valid reasons." (Ibid.) The

court explained: "Routine defects in the court's statement of reasons are easily prevented

and corrected if called to the court's attention. As in other waiver cases, we hope to

reduce the number of errors committed in the first instance and preserve the judicial

resources otherwise used to correct them." (Ibid.) Accordingly, Scott held:

"[C]omplaints about the manner in which the trial court exercises its sentencing

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discretion and articulates its supporting reasons cannot be raised for the first time on

appeal." (Id. at p. 356.)

The People assert, and Howard concedes, that defense counsel did not object to

the trial court's statements of reasons, or the lack of reasons, for its sentencing choices

during the sentencing hearing when the court could have easily corrected any

deficiencies. Because Howard did not timely object below to the trial court's statements

of reasons, or the lack of reasons, for its choices in denying probation, imposing the

middle term for his first robbery offense, and imposing a consecutive term for his second

robbery offense, we conclude he has waived or forfeited challenges to his sentencing on

those grounds and cannot raise those challenges on appeal for the first time. (People v.

Scott, supra, 9 Cal.4th at pp. 353, 356.)

II

Ineffective Assistance of Counsel

Howard alternatively contends that if he waived or forfeited his challenge on

appeal to the trial court's statements of reasons, or absence thereof, for its sentencing

choices because his defense counsel did not object below on those grounds, he was

denied his constitutional right to effective assistance of counsel.

A

A criminal defendant is constitutionally entitled to effective assistance of counsel.

(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466

U.S. 668, 684-685 (Strickland); People v. Pope (1979) 23 Cal.3d 412, 422 (Pope),

disapproved on another ground by People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn.

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10.) To show denial of the right to counsel, a defendant must show: (1) his or her

counsel's performance was below an objective standard of reasonableness under

prevailing professional norms; and (2) the deficient performance prejudiced the

defendant. (Strickland, at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171,

216-217 (Ledesma); Pope, at p. 425.) To show prejudice, a defendant must show there is

a reasonable probability that he or she would have received a more favorable result had

his or her counsel's performance not been deficient. (Strickland, at pp. 693-694;

Ledesma, at pp. 217-218.) "A reasonable probability is a probability sufficient to

undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.)

It is the defendant's burden on appeal to show that he or she was denied effective

assistance of counsel and is entitled to relief. (Ledesma, at p. 218.)

"In evaluating a defendant's claim of deficient performance by counsel, there is a

'strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance' [citations], and we accord great deference to counsel's tactical

decisions. [Citations.] . . . Accordingly, a reviewing court will reverse a conviction on

the ground of inadequate counsel 'only if the record on appeal affirmatively discloses that

counsel had no rational tactical purpose for his act or omission.' " (People v. Frye (1998)

18 Cal.4th 894, 979-980.)

However, a court need not address the issue of whether a defendant's counsel

performed deficiently before it addresses the issue of whether the defendant was

prejudiced by that purported deficient performance. "If it is easier to dispose of an

ineffectiveness claim on the ground of a lack of sufficient prejudice, which we expect

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will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 697;

see also In re Alvernaz (1992) 2 Cal.4th 924, 945.)

B

Assuming arguendo Howard's counsel performed deficiently as he asserts, we

nevertheless conclude he has not carried his burden on appeal to show that such deficient

performance prejudiced him. (Strickland, supra, 466 U.S. at pp. 687, 691-692, 697;

Ledesma, supra, 43 Cal.3d at pp. 216-217; Pope, supra, 23 Cal.3d at p. 425.) Based on

our review of the record, we conclude it is not reasonably probable Howard would have

obtained a more favorable result at his sentencing hearing had his counsel not performed

deficiently as he asserts by not timely objecting to the trial court's statements of reasons,

or the lack of reasons, for its choices in denying probation, imposing the middle term for

his first robbery offense, and imposing a consecutive term for his second robbery offense.

Alternatively stated, our confidence in the outcome of Howard's sentencing hearing is not

undermined by the purported deficient performance of his counsel.

Regarding the trial court's decision to deny probation, the probation report stated

there were no facts relating to Howard's crimes that supported a grant of probation. (Rule

4.414(a).) In support of a grant of probation, the report stated Howard had satisfactorily

performed on prior probation or parole and was not currently on probation or parole, was

willing to comply with conditions of probation, and had the ability to comply with

reasonable conditions of probation. (Rule 4.414(b)(2), (3), (4).) However, in support of

a denial of probation, the report stated the nature and circumstances of Howard's crimes

were serious compared to other instances of robbery, his victims were vulnerable, he

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inflicted physical or emotional injury, the degree of monetary loss to the victims was

great, and the manner in which he carried out his crimes showed criminal sophistication

or professionalism. (Rule 4.414 (a)(1), (3), (4), (5), (8).) Also in support of a denial of

probation, the report stated Howard's prior record of criminal conduct indicated a pattern

of regular or increasingly serious criminal conduct and that he was not remorseful. (Rule

4.414(b)(1), (7).) The probation report recommended that Howard be denied probation.

The prosecution's sentencing brief also requested that the trial court deny Howard

probation, arguing the factors in support of denying probation far outweighed the factors

in support of granting probation. The prosecution described many of the factors listed in

the probation report as supporting a denial of probation. In denying probation, the trial

court considered and weighed the probation report, the prosecution's sentencing brief, and

the defense sentencing memorandum that included letters in support of Howard. By

stating there were no unusual circumstances that supported a grant of probation, the trial

court implicitly indicated its belief that the factors in support of a denial of probation

outweighed the factors in support of a grant of probation and that Howard should not

therefore be granted probation. There is nothing in the record, including the defense

sentencing memorandum, Howard's community involvement, his steady work history, or

the many letters in his support, that shows it is reasonably probable the court would have

granted him probation had his counsel objected to the court's statement of reasons, or the

lack of reasons, for its denial of probation. Howard does not persuade us to reach a

contrary conclusion.

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 Regarding the trial court's imposition of the middle term for Howard's first

robbery offense, the probation report stated circumstances in aggravation included that

his crimes involved great violence, great bodily harm, the threat of great bodily harm, or

other acts disclosing a high degree of cruelty, viciousness, or callousness; the manner in

which the crimes were committed showed planning, sophistication, or professionalism;

and the crimes involved an actual taking or damage of great monetary value. (Rule

4.421(a)(1), (8), (9).) It also stated circumstances in aggravation included that Howard

had engaged in violent conduct that indicated a serious danger to society and his prior

convictions were numerous or of increasing seriousness. (Rule 4.421(b)(1), (2).) The

report stated there were no circumstances in mitigation. (Rule 4.423(a), (b).) The

probation report recommended that the court impose the middle term of three years in

prison for Howard's first robbery offense. The prosecution's sentencing brief also

requested that the court impose the middle term of three years for Howard's first robbery

offense, arguing the factors in aggravation far outweighed the factors in mitigation. The

prosecution noted Howard's crimes involved great violence in that he and his partner

made everyone in the jewelry store fear for their lives by wearing masks, yelling and

screaming at them, making them get on the ground, and brandishing a gun (albeit a fake

one) to further instill and promote violence. In imposing the middle term of three years

in prison for Howard's first robbery offense, the court considered and weighed the

probation report, the prosecution's sentencing brief, and the defense sentencing

memorandum that included letters in support of Howard. By finding neither the

circumstances in aggravation nor any circumstances in mitigation outweighed each other,

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the court clearly weighed the relevant sentencing factors and concluded the appropriate

term for Howard's first robbery offense was the middle term. There is nothing in the

record, including the defense sentencing memorandum, Howard's community

involvement, his steady work history, or the many letters in his support, that shows it is

reasonably probable the court would have imposed a lesser sentence for his first robbery

offense had his counsel objected to the court's statement of reasons, or the lack of

reasons, for its imposition of the middle term. Howard does not persuade us to reach a

contrary conclusion.

Regarding the trial court's imposition of a consecutive term for Howard's second

robbery offense, the probation report cited the circumstances in aggravation and

circumstances in mitigation, as discussed above, and recommended that the trial court

impose a consecutive term for his second offense. Likewise, the prosecution's sentencing

brief discussed the circumstances in aggravation and circumstances in mitigation and

requested that the court impose a consecutive term for Howard's second robbery offense

based on the many circumstances in aggravation.

In imposing a consecutive one-year term for Howard's second robbery offense, the

trial court considered and weighed the probation report, the prosecution's sentencing

brief, and the defense sentencing memorandum that included letters in his support.

Although the court did not expressly state any reasons for that sentencing choice, it

presumably weighed the relevant sentencing factors and concluded the appropriate term

for Howard's second robbery offense was a consecutive one-year term. There is nothing

in the record, including the defense sentencing memorandum, Howard's community

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involvement, his steady work history, or the many letters in his support, that shows it is

reasonably probable the court would have imposed a concurrent sentence for his second

robbery offense had his counsel objected to the court's lack of a statement of reasons for

its imposition of a consecutive one-year term. Howard does not persuade us to reach a

contrary conclusion.

Because Howard was not prejudiced by his counsel's purported deficient

performance, he was not denied his constitutional right to effective assistance of counsel.

(Strickland, supra, 466 U.S. at pp. 687, 691-692, 697; Ledesma, supra, 43 Cal.3d at

pp. 216-217; Pope, supra, 23 Cal.3d at p. 425.)

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.

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