Does the Attorney General have any grounds to claim that appellant forfeited his right to challenge his sentence by failing to object when the court gave him the upper term on the robbery count?

As a preliminary matter, the Attorney General claims appellant forfeited his right to challenge his sentence by failing to object when the court gave him the upper term on the robbery count. However, in imposing that term, the court made clear it was essentially relying on the same aggravating factors it cited in denying appellant's request for probation. Given that defense counsel vigorously challenged the applicability of those factors at that time, and the court found his arguments unavailing then, there was no need for counsel to reiterate them when appellant's final sentence was announced. By that time, the battle was over and appellant was excused from further contesting his sentence. (See People v. McKinnon (2011) 52 Cal.4th 610, 654 [under futility exception to forfeiture rule, a party is not required to raise objections or points that have already been rejected by the trial court].)

On the merits, appellant argues he was not actively involved in the robbery, nor was it planned, sophisticated or particularly egregious. (See rules 4.421(a)(1), (8).) In so arguing, appellant reiterates his claim the robbery was a spontaneous event that was largely carried out by his cohorts. However, for the reasons explained in the preceding section, we disagree with this characterization of the crime. Not only could the jury reasonably find appellant conspired to rob Capune, the trial court, bound only by the preponderance-of-the-evidence standard (People v. Scott (1994) 9 Cal.4th 331, 349-350), could reasonably conclude appellant played a major role in the robbery by bumping into

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