P. v. Harris

Filed 9/14/07 P. v. Harris CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant was convicted by jury trial of attempted murder (Pen. Code, 187, 664), assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and first degree robbery in concert (Pen. Code, 213, subd. (a)(1)(A)). The trial court committed him to state prison for a term of 28 years and four months. On appeal, he asserts that (1) the trial court abused its discretion in denying his pre-trial Marsden[1] motion, (2) the trial court prejudicially erred and violated his constitutional rights when it instructed the jury that two witnesses were accomplices as a matter of law, (3) the trial courts imposition of a consecutive sentence for the robbery count violated Penal Code section 654, and (4) the trial courts imposition of an upper term for the attempted murder count violated his federal constitutional right to a jury trial. We conclude that the trial courts imposition of an upper term violated defendants federal constitutional rights, and therefore we reverse and remand for resentencing.

I. Factual Background

Defendant and Eric McClain were good friends, and McClain had been staying at defendants residence, with defendant and defendants girlfriend Jocelyn Jasper, for a couple of weeks prior to September 6, 2004. On September 6, 2004, Jocelyn Jaspers brother, Kenneth Jasper brought his friend Crystal N. and a man named either Ben or Anthony to defendants residence. Defendants friend Niiakwei Allotey was also visiting defendant. Crystal told everyone that a man named Robert Carr had tried to rape her, and she wanted revenge. She described Carr as a bookie and a drug dealer who had a nice vehicle, $15,000 or $20,000, drugs, and firearms. The group, led by defendant, came up with a plan to lure Carr to San Jose and rob him.

The plan was for Crystal to bring Carr to a particular location at the Oakwood Apartments, where the men would be waiting. One of the men was supposed to hold the dull side of a knife to Crystals throat, and a second man was supposed to hold a gun on Carr. A third man was supposed to tape up Carr with duct tape. The plan became rather sketchy after that, but they seemed to expect to take Carrs vehicle and money.

McClain was given a loaded pistol and told that he would be the man holding the gun on Carr. However, after McClain said I cant use a gun, the gunman role was given to Allotey, and McClain was assigned to hold the knife to Crystals throat. Ben/Anthony was expected to tape Robert Carr up with duct tape.

Crystal telephoned Carr, invited him to San Jose and suggested that she would have sex with him. Jocelyn Jasper got on the phone, pretended to be Crystals aunt, and told Carr that he could spend the night at her place. After spending a number of hours at defendants residence, the group went to the Oakwood Apartments (where none of them, except possibly Allotey, were living) in the early evening and spent the evening partying in the various common areas at this large apartment complex.

Carr arrived around 12:45 a.m. Crystal took Carr to a laundry room where the five men were waiting. Allotey pointed the gun at Carr. Carr knocked the gun out of Alloteys hand and tried to escape from the laundry room. Defendant, McClain and Kenneth Jasper tried to stop Carr, while Allotey tried to retrieve the gun. During this struggle, virtually all of Carrs clothing was torn off of his body, leaving him wearing just socks and one shoe. A piece of duct tape was stuck to Carrs arm. Allotey retrieved the gun. Defendant took Carrs pants.

Although he lost his clothing, Carr managed to escape from the laundry room and began screaming for help. McClain encountered Carr just outside the laundry room, and McClain stabbed Carr in the upper back and arm several times with a very large butcher knife with an eight-inch blade. Carr continued to scream for help, and McClain ran away and threw the bloody knife in a garbage can. Jocelyn Jasper was waiting in a car outside the apartment complex, and she drove them away from the Oakwood Apartments. The entire incident lasted no more than 10 to 15 minutes from the time Carr arrived to the time that the men reached the getaway car.

A citizen encountered Carr and called 911 at 1:06 a.m. When Carr arrived at the hospital about half an hour later, he was near death, and had lost about half the blood in his body. He had multiple stab wounds to his chest and left arm. Carr was hospitalized for six days and would not have survived without extraordinary medical intervention.

McClain was arrested 10 days later. Although he initially denied involvement, he eventually admitted that he had stabbed Carr and described the incident to the police. [Carr] was screaming, Help, help, help running out, running out, and I was froze, and, and . . . [defendant] runs out and grabs dude; boom, like that, snap, and hes like E,[[2]] hes all, E, get him, E, get him. And he was like, Dont let him get away; dont let that motherfucker get away. I fuckin, I fuckin chase after him, fuckin stab him. McClain claimed that he did not wanna kill him. He stabbed Carr [c]ause I have no choice, cause [defendant] told me to. And if I didnt do it, . . . I didnt wanna find out the consequences from [defendant].

II. Procedural Background

The original information jointly charged Crystal N., Kenneth Jasper, Jocelyn Jasper[3], Allotey, McClain, and defendant with attempted willful, deliberate and premeditated murder (Pen. Code, 187, 189, 664), assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), assault with a firearm (Pen. Code, 245, subd. (b)) and first degree robbery in concert (Pen. Code, 213, subd. (a)(1)(A)). It was further alleged that defendant had been armed with a firearm in the commission of the offenses (Pen. Code,  12022, subd. (a)(1)) and had suffered a prior serious felony conviction (Pen. Code,  667, subds. (a)(1), (b)-(i), 1170.12).

At the commencement of trial, the prosecution filed an amended information which eliminated the premeditation allegation, the assault with a firearm count, and all other defendants except for McClain and defendant. The prior conviction allegations were bifurcated, and defendant waived his right to a jury trial on those allegations and admitted them.

McClain conceded at trial that he was guilty of the assault and robbery counts, but he asserted that he did not intend to kill and therefore was not guilty of attempted murder. Jocelyn Jasper and Allotey testified at trial for the prosecution. McClain testified at trial on his own behalf and implicated defendant.

Defendant contended at trial that he had not been involved in any of the offenses. He testified at trial that he was unaware of any plan to rob Carr and had not participated in the robbery, assault, or stabbing. Defendant claimed he met up with the others in the car after the stabbing.

The jury deliberated for less than four hours. The jury found both defendant and McClain guilty of all of the charges and found the firearm allegations true. The trial court committed defendant to state prison for a term of 28 years and four months. Defendant filed a timely notice of appeal.

III. Discussion

A. Denial of Marsden Motion

Defendant claims that the trial court abused its discretion when it denied his pretrial Marsden motion.

1. Background

On August 23, 2005, as jury voir dire was about to begin, defendant requested a Marsden hearing. At the commencement of the Marsden hearing, the court allowed defendant to state his concerns.[4] Defendant asserted that his case had not been investigated, his witnesses had not been interviewed, and his subpoenas had not been put out. Defendant said he respected his appointed attorney, Wesley Schroeder, a whole lot and had nothing against him personally, but he felt that nothing has been done.

Defendant affirmed that Schroeder had assured him that he would represent me to the best that he could, but defendant was concerned that no motions had been filed and I dont even know the strategy. Defendant expressed concern that Schroeder was busy and has other things to do than his case. He complained that he had seen Schroeder six times in the last year. Defendant was disappointed that Schroeder had not insisted on a line-up. Defendant criticized the frequency and level of communication between him and Schroeder. Defendant said his relationship with Schroeder had broken down so that he no longer trusted or could communicate with Schoeder.

After defendant had been given the opportunity to fully state his concerns, the court asked Schroeder to respond. Schroeder, who had been practicing criminal law for over 30 years, explained that, for strategic reasons, he did not want there to be a line-up, and he noted that Carr had been unavailable for a line-up anyway. Even if Carr had been available and had failed to identify defendant in a line-up, Schroeder felt that this would not be helpful to defendants case, and the risk that Carr would identify defendant weighed strongly against seeking a line-up. Schroeder had investigated the case and, except for one person, had been unable to locate any alibi witnesses. All of the other witnesses to the crimes were defendants codefendants, and Schroeder could not speak to them directly because they were represented by counsel. Schroeder had investigated other potential witnesses, nearly all of whom were in jail and represented by counsel.

Schroeder had tried to convince defendant to waive time so that there would be more opportunity for investigation, but defendant had adamantly refused until it was too late. Schroeder acknowledged defendants concerns, and he affirmed that he would do the best I can to make him decide that he was incorrect in his feeling that Schroeder was not performing adequately. No motions had been filed because there were no motions to bring. Schroeder was working feverishly to prepare for trial.

The court then allowed defendant to respond to Schroeders statements. Defendant asked if Mr. Schroeder can get like a couple weeks or something like that so he can get out and talk to these people because its real vi[tal] to my case. This prompted Schroeder to ask the court to continue the case for two weeks so that he could do additional investigation. Schroeder explained that this additional investigation was necessitated by the change in circumstances arising from the codefendants, other than McClain, recently having chosen to enter into plea agreements and testify for the prosecution. The court advised Schroeder to make his continuance request in open court.

The court denied defendants Marsden motion. I dont feel that theres been a substantial showing that Mr. Schroeder has not or cannot provide adequate counsel for you and representation in this case. Im also not convinced that the two of you have reached a point that you are at each others throat about whats going on that this is going to reflect and require there to be ineffective representation in the future. At this point, defendant interjected Right. The court went on. So dealing with Mr. Schroeder in the past I know hes willing to talk to you, and youre willing to talk to him, and Ive actually seen you communicate right here and I think thats important. Defendant responded Right. Right. The court told defendant [y]ou always have a right, if you feel something is wrong, to bring to my attention through your attorney and Ill listen to you. Defendant said Okay.

After the Marsden hearing, defendant agreed to waive time, and Schroeder sought a two-week continuance. I would say within the neighborhood of two to three weeks at the most we can have the information that I need . . . . The court denied the request, but it made clear that it was open to Schroeder renewing the request if his investigation uncovered new evidence as trial progressed. Voir dire commenced that day. The jury was sworn six days later, and opening statements were heard that day. The prosecutions case-in-chief lasted for two weeks.

2. Analysis

[A] defendant is entitled to [substitute another appointed attorney] if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citation.] Furthermore, [w]hen a defendant seeks to discharge appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citation.] We review the courts rulings for an abuse of discretion. [] A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an irreconcilable conflict. When a defendant chooses to be represented by professional counsel, that counsel is captain of the ship and can make all but a few fundamental decisions for the defendant. (People v. Welch (1999) 20 Cal.4th 701, 728-729, internal quotation marks omitted.)

Defendant does not claim that the trial court failed to hear his complaints about Schroeder or that Schroeders responses did not demonstrate proper, competent representation. He claims that it is clear the attorney-client relationship had irretrievably broken down to the point that he did not trust Schroeder and they simply could no longer work together effectively.

The record does not support defendants claim. Although defendant made a single pro forma statement below that his relationship with Schroeder had broken down to the the point that he no longer trusted or could communicate with Schroeder, everything else that defendant and Schroeder said demonstrated quite the opposite.

Defendant made it clear at the outset that he had a whole lot of respect for Schroeder and thought well of him. Defendants primary concern was his belief that Schroeder had not had enough time to devote to this case and had not been able to complete his investigation. Schroeder explained that he had done a substantial amount of investigation, and he had tried to convince defendant to waive time so that there would be more time for investigation of the case. Schroeder was working very hard on the case, and he assured defendant that he would do his best. Defendant reacted favorably to Schroeders explanation and did not dispute it. Instead of urging the court to relieve Schroeder and appoint new counsel, defendant asked the court to give Schroeder more time to investigate the case, and Schroeder told the court that he would seek a continuance for that purpose. When the court denied defendants Marsden motion and explained that it was finding that defendant and Schroeder were able to communicate effectively, defendant interjected his agreement.

Schroeders explanation of his efforts adequately demonstrated that he was providing effective assistance to defendant. Since nothing other than defendants pro forma statement indicated that there was an unresolvable conflict between defendant and Schroeder, and defendant expressly indicated that he was willing to have Schroeder continue to work on his case and that he was able to communicate with Schroeder, the trial court did not abuse its discretion in concluding that the attorney-client relationship had not irredeemably broken down.

B. Accomplice Instruction

Defendant contends that the trial court prejudicially erred in instructing the jury that Jocelyn Jasper and Allotey were accomplices as a matter of law.

1. Background

The trial court instructed the jury on the need for corroboration of accomplice testimony and instructed the jury to view accomplice testimony with caution. The court also instructed the jury regarding who could be considered an accomplice. Merely assenting to or aiding or assisting in the commission of a crime without knowledge of the unlawful purpose of the perpetrator and without the intent or purpose of committing, encouraging, or facilitating the commission of the crime is not criminal. Thus, a person who assents to, or aids, or assists in, the commission of a crime without the knowledge and without the intent or purpose is not an accomplice in the commission of the crime. [] If the crimes charged in the information were committed by anyone, the witnesses Jocelyn Jasper and Niiakwei Allotey were accomplices as a matter of law, and their testimony is subject to the rule requiring corroboration.

Defendants trial counsel argued that Jocelyn Jasper had lied to protect her brother Kenneth Jasper, and both Jocelyn Jasper and Allotey had lied to obtain the benefits of their plea agreements with the prosecution. He specifically asked the jury to distrust their testimony and expressly referenced the accomplice instructions.

2. Analysis

Defendant claims that, as a result of the instruction that Jocelyn Jasper and Allotey were accomplices as a matter of law, the jury was not required to decide the dispositive factual issue in the case, i.e., whether appellant truly was their accomplice. Because the jury was essentially told that appellant was Jasper and Alloteys accomplices [sic], it was instructed the appellant was guilty. He maintains that this instruction violated his state and federal constitutional rights and that per se reversal is required.

If the undisputed evidence establishes that a witness is an accomplice, the jury should be so instructed. (People v. Barclay (1953) 40 Cal.2d 146, 151-152.) However, where a codefendant has made a judicial confession as to crimes charged, an instruction that as a matter of law such codefendant is an accomplice of other defendants might well be construed by the jurors as imputing the confessing defendants foregone guilt to the other defendants. (People v. Hill (1967) 66 Cal.2d 536, 555, italics added.) The question of whether there is a danger of the jury imputing the accomplice witnesss guilt to another defendant depends on the circumstances of the case. (People v. Bittaker (1989) 48 Cal.3d 1046, 1100.)

In this case, there was no danger that the jury would interpret the instruction as imputing to defendant the guilt of Jocelyn Jasper and Allotey. This is because the circumstances of this case are similar to those in People v. Williams (1936) 17 Cal.App.2d 122. In Williams, three men committed a robbery. Two of the three pleaded guilty in advance of trial. Leuty, one of those who pleaded, testified for the prosecution at Williamss trial. Williams complained on appeal that the trial court had prejudicially erred in instructing the jury that Leuty was an accomplice. The court rejected this contention. In other instructions the trial court referred to Leuty as the accomplice. The defendant asserts that was assuming a fact. It was, but properly so. The uncontradicted evidence showed Leuty to be an accomplice. No word in the instruction was to the effect that he was the accomplice of this defendant. That question was left for the determination of the jury. (People v. Williams, supra, 17 Cal.App.2d at p. 126, italics added.)

The instruction in this case told the jury that, [i]f the crimes charged in the information were committed by anyone, the witnesses Jocelyn Jasper and Niiakwei Allotey were accomplices as a matter of law. (Italics added.) As in Williams, no word in the instruction here told the jury that Jocelyn Jasper or Allotey was the accomplice of this defendant. The instruction left open who the jury might conclude Jocelyn Jasper and Allotey were the accomplices of. The jury could have drawn no adverse inference from the instruction, because McClain admitted his participation in the assault and robbery, making it undisputed that Jocelyn Jasper and Allotey were, at the very least, his accomplices. Whether they were also accomplices to defendant was left to the jury to determine. If the jury found that defendant had not participated in these crimes, the instruction would not tell the jurors that Jocelyn Jasper and Allotey were his accomplices, but quite the opposite. The instruction was conditional. If someone committed these offenses, Jocelyn Jasper and Allotey were that persons accomplices. As the instruction was not directed at defendant unless the jury found that he participated in the offenses, it did not direct the jury to make any factual determination with respect to him. The instruction was not erroneous.

C. Penal Code Section 654

Defendant argues that the trial court was obligated to stay punishment for the robbery count under Penal Code section 654 because the attempted murder and the robbery were two parts of an indivisible course of conduct.

At the sentencing hearing, defendants counsel asked the court to impose a concurrent term for the robbery count. Although, the defense does not argue that its 654, I dont believe that it arises or that its the same punishment. I think the intent element is obviously distinct and separate. [] I do believe that its abundantly clear that it arose out of the same operative facts, the same transaction that happened within seconds of the robbery attempt . . . and certainly the same course of conduct and certainly the same event certainly arise out of the same transaction, it is a single course of conduct that indicates an aberrant behavior on that particular instance. The prosecutor responded: Your honor, the way I understand the defense discussion is they are conceding that Count Three is not 654 . . . . The prosecutor argued that the stabbing was a totally separate act of violence which merited a consecutive term.

The trial court explicitly found that the provisions of 654 do not bar punishment on Count Number Three [the robbery count] . . . . [] In evaluating both the crimes of the attempted murder and robbery committed by the defendant in this case the court finds a completely separate intent and objective which were independent and not incidental to each other in their commission. The trial court imposed punishment for the attempted murder and robbery counts and stayed the punishment for the assault count under Penal Code section 654.

The initial inquiry in any section 654 application is to ascertain the defendants objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.) The defendants intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. (People v. Coleman (1989) 48 Cal.3d 112, 162, internal quotation marks and citation omitted.)

There was substantial evidence that defendant harbored separate intents as to the robbery and attempted murder. [W]hen the assault is not a means of perpetrating the robbery but is an act that follows after the robbery is completed, Penal Code section 654 does not prohibit the imposition of punishment for both the robbery and the assault. (Neal v. State of California (1960) 55 Cal.2d 11, 20.) Here, the evidence established that robbery was already complete when Carr was stabbed. The attempted murder was not a means of perpetrating the robbery but was instead an act that followed after the completion of the robbery. The evidence supported a finding that the attempted murder was not intended to facilitate the robbery but to prevent Carr from reporting the crime. The trial courts conclusion that the two offenses were independent and not incidental to one another was supported by the evidence. Hence, Penal Code section 654 did not bar imposition of punishment for both the attempted murder and the robbery.

D. Imposition of Upper Term

Sentencing in this case occurred after the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 but before the United States Supreme Courts decision in Cunningham v. California (2007) 127 S.Ct. 856 (Cunningham). The prosecutor asked the court to impose an upper term for the attempted murder count, and the court did so.[5] The reason[s] for the aggravated term are the following: The crimes involved great violence and great bodily harm and disclosed a high degree of cruelty and viciousness; [] The defendant in this case induced others to participate in the crimes and acted in a position of leadership; [] And the manner in which the crime was carried out did indicate planning and sophistication. Defendants counsel did not interpose any objection to the imposition of the upper term.[6]

In Cunningham v. California, supra, 127 S.Ct. 856, the United States Supreme Court held that Californias determinate sentencing law (the DSL) violates the Sixth Amendment because it does not require a jury finding beyond a reasonable doubt on the aggravating circumstance that is required for the imposition of an upper term. [T]he DSL violates Apprendis bright-line rule: Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Cunningham, at p. 868.) Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment. (Cunningham, at p. 870.)

The Attorney General contends that the error was harmless beyond a reasonable doubt. The jury did not find true beyond a reasonable doubt any aggravating circumstance, and defendant did not admit any aggravating circumstance, so reversal is required unless the error was harmless beyond a reasonable doubt. (Washington v. Recuenco (2006) 126 S.Ct. 2546.) The beyond-a-reasonable-doubt standard of Chapman requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Chapman, supra, 386 U.S. at p. 24, 87 S.Ct. 824.) To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. (Yates v. Evatt (1991) 500 U.S. 391, 403, 111 S.Ct. 1884, 114 L.Ed.2d 432.) Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is whether the . . . verdict actually rendered in this trial was surely unattributable to the error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182.) (People v. Neal (2003) 31 Cal.4th 63, 86.)

The Attorney General simply cannot meet his burden of proof in this case. None of the aggravating circumstances were submitted to the jury, and therefore these aggravating circumstances were left undecided by the jury. If the focus is what the jury actually decided and the question is whether the error tainted [the jurys] decision on the issue, it will rarely be the case that the absence of a jury verdict on an undecided issue was surely unattributable to the error of failing to submit the undecided issue to the jury. While this type of error is subject to harmless error review under the Chapman standard, the stringent burden of proof limits the situations where this heavy burden may be satisfied. If a defendant conceded the undecided issue at trial or the issues actually decided by the jury necessarily implied its conclusion on the undecided issue, the Chapman standard may be satisfied. And while there may well be other situations where the Chapman standard may be satisfied, this case simply does not present such a situation. Defendant did not concede any of the aggravating circumstances. The jurys verdicts did not necessarily imply any findings other than those which were elements of the offenses, and elements of an offense cannot be used as aggravating circumstances. (Cal. Rules of Court, rule 4.420(d).) While there is certainly substantial evidence supporting these aggravating circumstances, we are not convinced beyond a reasonable doubt that the failure to submit these issues to the jury and to require findings beyond a reasonable doubt on them was harmless beyond a reasonable doubt. The appropriate remedy is a remand for resentencing as provided for in People v. Sandoval, supra, 41 Cal.4th 825.

IV. Disposition

The judgment is reversed, and the matter is remanded for resentencing.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, Acting P.J.

_____________________________

Duffy, J.

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[1]People v. Marsden (1970) 2 Cal.3d 118.

[2] Defendants nickname was E.

[3] Joceyln Jaspers first name is spelled with a single n in the reporters transcript and with a double n in the information. We will use the spelling from the reporters transcript for consistencys sake.

[4] Defendant also told the court that he wanted to retain attorney William Welch to represent him, but Welch was currently unavailable and would not be available for at least another two weeks or so. The court initially deferred the issue of whether Welch could represent defendant since Welch had made no contact with the court and his availability was unknown. The court ultimately denied the request. Defendant does not claim on appeal that the trial court erred in any respect with regard to the potential substitution of Welch as defendants attorney.

The jury verdicts were returned in September 2005. In December 2005, prior to sentencing, defendant made another Marsden motion. This motion was denied, and defendant does not contend on appeal that the trial court erred in denying it. In February 2006, Welch substituted in as defendants counsel. Welch represented defendant at the September 2006 sentencing hearing. Defendant makes no contentions on appeal regarding Welchs representation of him. On the day of the sentencing hearing, a third attorney requested permission to substitute in as defendants counsel, but he was not ready to proceed and his request was denied as untimely.

[5] The court also imposed a doubled upper term for the assault count, but it stayed this punishment under Penal Code section 654.

[6] The Attorney General asserts that this claim was forfeited because defendant did not raise it below. In light of the timing of the sentencing hearing, defendants trial counsel did not waive this contention by failing to make a futile objection. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)