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November 30, 2010


APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed. (Super.Ct.Nos. SWF022938, SWF022939, SWF022940, SWF022941, SWF022942, SWF022943 & SWF023856)

The opinion of the court was delivered by: Ramirez P. J.

P. v. Thompson



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Defendant and appellant Barry Thompson, Jr., appeals the sentence imposed after a jury conviction for multiple counts of burglary and attempted burglary (Pen. Code, §§ 459, 664),*fn1 as well as one count of grand theft (§ 487, subd. (a)). He argues the trial court relied on invalid reasons in imposing the upper term on the principal offense.


On March 27, 2009, the trial court granted a motion to consolidate seven separate cases against defendant. An amended information charged defendant with eight counts. At the time of trial, the court allowed the People to dismiss one count of burglary. A second amended information alleged the following seven counts: residential burglary (§ 459) (counts 1 & 4); grand theft (§ 487, subd. (a)) (count 2); and attempted residential burglary (§§ 459, 664) (counts 3, 5, 6, & 7). As to counts 3 and 4, it was specially alleged that someone other than an accomplice was present inside the residences at the time the offenses were committed. (§ 667.5, subd. (c)(21).)

At trial, defendant was connected to the crimes by fingerprint evidence and eyewitness identification. Evidence indicated defendant's modus operandi was to remove window screens and enter homes through windows while a getaway car waited outside.

The jury found defendant guilty on all seven counts. The jury also found both special allegations to be true. The trial court sentenced defendant to a total of 10 years in state prison. To reach the total term, the court imposed the upper term of six years on count 1 and two years on count 2, which was stayed pursuant to section 654. On count 4, the court imposed a consecutive term of one year four months. The court then added consecutive terms of eight months for each of the remaining offenses (counts 3, 5-7).


Defendant challenges only the upper term of six years imposed on count 1. Defendant contends the trial court improperly double-counted a sentencing factor by relying on multiple convictions to impose consecutive sentences and the upper term.*fn2 Defendant also argues the trial court inappropriately relied on his absence from a portion of his trial as an aggravating factor. According to defendant, it was improper for the trial court to rely on his absence from trial because it is not a recognized factor in aggravation.*fn3 Citing our Supreme Court's decision in People v. Scott (1994) 9 Cal.4th 331 (Scott), the People argue we should not consider defendant's arguments because he forfeited them by failing to object on these grounds at the time of sentencing. We agree with the People.

In Scott, supra, 9 Cal.4th at page 353, our Supreme Court decided that the waiver doctrine applies "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. [¶] . . . Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." The waiver rule applies so long as the trial court gives the parties "any meaningful opportunity to object." (People v. Gonzalez (2003) 31 Cal.4th 745, 752.) Contrary to defendant's contention, the trial court need not give the parties a tentative sentence before the actual sentence is imposed in order for the waiver rule to apply. (Ibid.)

Defendant argues we should not apply the waiver rule set forth in Scott because he did not have a meaningful opportunity to object. The record belies his assertion. Defendant had ample time and opportunity to present his sentencing arguments to the court and to object. The record shows defendant was aware of the sentence the People were requesting prior to the sentencing hearing from the sentencing brief filed on August 27, 2009. In the sentencing brief, the People requested the upper term on count 1, as well as consecutive sentences on all remaining counts. The People argued consecutive sentencing was justified because the offenses were predominately independent of one another and involved separate acts of violence. The People also mentioned aggravating factors to justify an upper term. One of these factors was the seriousness of the offenses based on the jury's finding that someone other than an accomplice was inside the residence during one of the burglaries and one of the attempted burglaries.*fn4 In addition, the People mentioned the high value of the property stolen (counts 1 & 2),*fn5 the emotional trauma to the seven families who were the victims of the offenses, and defendant's lack of remorse as demonstrated by his failure to timely appear for court.

A probation report, also filed prior to sentencing, was somewhat more favorable to defendant. The report cited rule 4.413 of the California Rules of Court and acknowledged defendant was a youthful offender with no significant record of prior criminal offenses, thereby suggesting this could be an "unusual case" in which it was possible for the court to grant probation. However, the probation officer recommended denial of probation and a prison sentence because defendant's behavior in being absent from court indicated he was not "amenable to probation supervision." The probation officer recommended the "lower term" with concurrent terms on each count, apparently because defendant had no prior record. On the other hand, the probation officer cited rule 4.421 of the California Rules of Court as an aggravating factor. In the opinion of the probation officer, the number of similar offenses over a "short time frame" was indicative of "more serious criminal conduct," and the circumstances and modus operandi suggested planning and sophistication.

The record does not indicate defense counsel filed a sentencing memorandum in response to the People's request for a 10-year prison term. However, at the sentencing hearing, defense counsel asked the court to follow the probation officer's recommendation. She also raised a number of mitigating factors and offered testimony by defendant's grandmother, sister, cousin, and girlfriend. Defendant also spoke directly to the court and apologized to the court for his absences during trial and to his family and the victims for what he did to them.

After defendant spoke directly to the court, the prosecutor said, "If I may briefly be heard?" The court said, "Yes." The prosecutor then reiterated the People's position that the court should impose the upper term on count 1 and consecutive sentences on all remaining counts. At that time, one of the victim's also asked to be heard and argued the court should impose "the maximum of ten years."

The court then stated: "[T]he court feels the upper term is warranted. The Court chooses the upper term for a number of reasons: [¶] First, the defendant was convicted of a string of residential burglaries and attempted residential burglaries, including an allegation that the home was occupied at the time one of the burglaries was committed. [¶] . . . [¶] He, obviously, has no regard for the law, given that he fled his own trial. [¶] The strongest possible message needs to be sent to the defendant . . . . [¶] . . . [¶] Now, regarding Counts 4, 5, 6 and 7, the Court finds that these crimes were independent acts that were considered separate and apart from one another with different targets and victims and, therefore, should be sentenced consecutively."

In our view, the record shows there was nothing to prevent defense counsel from directly objecting to the court's stated reasons for imposing the upper term and consecutive sentences. The record shows the court was careful to consider any and all viewpoints at the sentencing hearing. For example, the trial court heard arguments from both counsel, testimony from a number of defense witnesses and a victim, and responded, "Yes," when the prosecutor asked to "briefly be heard." We therefore have no doubt the court would have fairly heard and considered any objection by defense counsel at any time during the proceeding. Under these circumstances, the practical and straightforward waiver rule in Scott would be meaningless were we to directly address the merits of defendant's claims of sentencing error.

Defendant also contends his claim of sentencing error cannot be waived. In support of this argument, defendant cites the line of cases, which includes Cunningham v. California (2007) 549 U.S. 270. He argues his absence from trial could not be used by the trial court as an aggravating factor without violating his Sixth Amendment right to a jury trial because the issue was not submitted to the jury. However, defendant's reliance on this line of cases is misplaced. Defendant was not sentenced under the sentencing scheme found unconstitutional in Cunningham. In addition, amendments to section 1170, subdivision (b), allow trial courts to select among the lower, middle, and upper terms specified by statute without stating facts or weighing aggravating and mitigating circumstances. (People v. Sandoval (2007) 41 Cal.4th 825, 847, citing § 1170, subd. (c), as amended.) Rather, "a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions." (Id. at p. 848.)

Alternatively, defendant cites Strickland v. Washington (1984) 466 U.S. 668 and argues he was denied the effective assistance of counsel guaranteed to him by the federal Constitution because his attorney did not object to the court's reasons for imposing an upper term. He believes the record shows there was no valid tactical reason for counsel's alleged failure to object. However, trial counsel's failure to make a futile objection does not constitute deficient performance. (People v. Diaz (1992) 3 Cal.4th 495, 562-563.) The record shows counsel offered relevant, competent evidence, and she zealously argued the court should follow the more lenient sentencing recommendation made by the probation officer. Even if defendant could show counsel should have objected, it would not have had any effect on the outcome. As we read the record, consecutive sentences and the upper term were well within the trial court's discretion based on the facts of the case and aggravating factors set forth in the probation report and/or the People's sentencing memorandum. On the record, the court expressed a strong desire to impose the upper term. Based in part on the presence of occupants in two of the homes when one of the burglaries and one of the attempted burglaries were committed, the court expressed great concern about the seriousness of the offenses. Under these circumstances, it would have been futile for counsel to make the objection defendant now proposes. We must therefore reject defendant's ineffective assistance of counsel claim.


The judgment is affirmed.



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