P. v. Dryden

Filed 6/20/06 P. v. Dryden CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Thomas James Borris, Judge. Affirmed.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Sharon L. Rhodes and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

In an earlier opinion, this court remanded defendant Kenneth Wayne Dryden's case for resentencing, because we could not determine whether the trial court had exercised its discretion to impose consecutive rather than concurrent sentences. (People v. Dryden (May 25, 2005, G033990) [nonpub. opn.].) At the resentencing hearing, the trial court imposed the same consecutive sentences it had originally imposed, and explained it had, on both occasions, intended to exercise its discretion to impose consecutive sentences. Defendant waived his right to challenge the sentence by failing to object to it in the trial court. Even if we reached the merits, we would conclude the trial court properly exercised its discretion. We affirm.

Statement of Facts[1]

Defendant was charged with and convicted by a jury of (1) second degree robbery in violation of Penal Code sections 211, 212.5, subdivision (c), and 213, subdivision (a)(2) (count 1); (2) evading a pursuing peace officer while driving recklessly in violation of Vehicle Code section 2800.2 (count 2); and (3) assault with a deadly weapon on a police officer in violation of Penal Code section 245, subdivision (c) (count 3). The second amended information alleged defendant had suffered eight prior felony convictions in Texas, which constituted both strike priors and serious felony priors within the meaning of Penal Code sections 667, subdivisions (a)(1), (d) and (e)(2), 1170.12, subdivisions (b) and (c)(2), and 1192.7, subdivision (c). Defendant waived a jury trial on the prior conviction allegations, and admitted the prior convictions. The trial court sentenced defendant to a total prison term of 152 years: (1) 43 years to life for count 1; (2) 25 years to life for count 2; (3) 44 years to life for count 3; and (4) five years for each of the eight serious prior felony convictions. Defendant appealed.

In an unpublished opinion, this court affirmed defendant's convictions, but reversed his sentence. (People v. Dryden, supra, G033990.) In relevant part, we concluded that the trial court had the discretion to impose consecutive or concurrent sentences under Penal Code section 667, subdivision (c)(6) and (7), but the appellate record indicated the trial court might have misunderstood the scope of its discretion. (People v. Dryden, supra, G033990.) We remanded the case to allow the trial court to exercise its discretion in sentencing defendant.

On remand, the trial court imposed the same 152-year sentence. Defendant again appealed.

Discussion

In order to challenge a criminal sentence, a defendant must make a timely and meaningful objection in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 351.) Here, defendant did not raise any objection during his resentencing hearing.

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