Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD202050, Bernard E. Revak, Judge.
BENKE, J.
BACKGROUND
On September 28, 2006, at approximately 5:00 p.m. a Mervyns loss prevention manager saw Ricardo Alfaro and two other people walk from the west exit side of the store. They each took clothing and started to exit the store without paying for the items. The store manager attempted to physically stop them before they could leave the store. He grabbed one of the men in a bear-hug. As the man began dragging the manager outside, Alfaro and the remaining companion began hitting the manager. Alfaro hit the manager three times on the right side of his head while his companion hit the manager on the left side of his head about two times. The manager fell to the ground and all three men ran away in opposite directions.
None of the merchandise taken by Alfaro and his companions was left behind.
A week after the thefts and assault at Mervyns, Alfaro was detained in an unrelated incident. The police officer who detained him recognized him from the videotape he retrieved from the Mervyns theft and assault. Alfaro was arrested. One of the men involved in the thefts later returned to the police two T-shirts of the type sold at Mervyns.
On October 11, 2006, the San Diego District Attorney filed a complaint, charging Alfaro with one count of robbery in violation of Penal Code section 211. Pursuant to sections 667, subdivisions (b) through (i), and 668, the complaint also alleged Alfaro suffered a prior conviction for violation of section 211 on December 29, 2005, when he was 17 years old.
All further statutory references are to the Penal Code unless otherwise specified.
On December 20, 2006, a jury found Alfaro guilty of count one. A court trial was held on the juvenile prior strike conviction and it was found true.
On February 22, 2007, the trial court denied Alfaro's motion to strike the juvenile prior. The court sentenced him to the lower term of two years, which it doubled pursuant to the strike prior for a total of four years.
Alfaro filed a timely notice of appeal.
DISCUSSION
Appellant's sole contention on appeal is that the trial court erred when it enhanced his sentence using the juvenile prior. Specifically, he argues the use of his juvenile prior violated the Sixth and Fourteenth Amendments pursuant to the reasoning in recent sentencing cases such as Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) ___ U.S. ____[127 S.Ct. 856].
As the Attorney General points out, appellant did not object at sentencing to the use of the prior juvenile adjudication. We conclude his failure to do so constitutes a forfeiture of the issue on appeal because, at the time of his sentencing, both Blakely and Cunningham were the law of California.
Appellant argues he should not be held to have forfeited the issue he now raises because the issue of using juvenile priors had not been resolved. However, a year before his sentence, arguments similar to those raised here, and based on the same reasoning, were rejected in People v. Palmer (2006) 142 Cal.App.4th 724, 730-731. There, the court held that a misdemeanor conviction from Nevada could still be used as a prior conviction in California even though Nevada law did not provide for a jury trial on the misdemeanor.
Even if the issue were not forfeited, we would conclude use of the prior juvenile adjudication was proper.
The issue is currently before our Supreme Court for review in a number of cases, including People v. Nguyen S154847. We are aware as well that another panel of this court has reached a different result than the one we reach here. (People v. Baltazar, D050137, unpublished opinion filed May 5, 2008.) We deny relief here without prejudice to appellant seeking further relief through the habeas corpus procedure should the California Supreme Court conclude prior juvenile adjudications cannot be used as strike priors.
California does not provide for a right to a jury trial in juvenile court proceedings. This difference between adult and juvenile proceedings is constitutional. (See People v. Fowler (1999) 72 Cal.App.4th 581, 586-587.) Section 667, subdivision (d)(3), provides that, within certain limitations applicable here, such juvenile adjudications may be used as prior convictions. In light of these provisions, case law in California has consistently held there is no constitutional impediment to using the juvenile adjudication to increase a defendant's sentence following a later adult conviction. (See People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1315-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1079; People v. Bowden (2002) 102 Cal.App.4th 387.)
We note as well that there are protections afforded to a defendant whenever a prior conviction is alleged. For example, a prior conviction, including prior juvenile adjudications, be proved beyond a reasonable doubt, and a defendant may request a jury trial on the question whether the defendant suffered the prior conviction. (§ 1025, subd. (b).) Here, appellant expressly waived his right to a jury and elected to proceed with a court trial.
We conclude the court properly enhanced appellant's conviction by using his prior juvenile adjudication.
The judgment is affirmed.
WE CONCUR: McCONNELL, P.J. HALLER, J.