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THE PEOPLE v. BARRY THOMPSON

November 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BARRY THOMPSON, JR., DEFENDANT AND APPELLANT.



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

CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

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.

FACTUAL AND PROCEDURAL BACKGROUND

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).

DISCUSSION

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. [ΒΆ] . . . 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) ...


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