Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F02010
BUTZ, J.After pleading guilty to second degree robbery (Pen. Code, § 211), defendant Michael Mason was sentenced to 10 years in state prison. Mason’s sentence was doubled pursuant to the trial court’s finding that his prior juvenile adjudication for robbery constituted a strike. (§§ 211, 667, subd. (b)-(i), 1170.12.)
Undesignated statutory references are to the Penal Code.
Defendant appeals, contending that the trial court erred in using his juvenile adjudication as a prior conviction to enhance his sentence in violation of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and the Sixth and Fourteenth Amendments. We shall affirm.
PROCEDURAL HISTORY
The facts underlying defendant’s conviction are not necessary to disposition of the appeal. We summarize the procedural history leading up to his sentencing.
In an information, defendant was charged with second degree robbery (§ 211) and assault with a firearm (§ 245, subd. (a)(2)). It was further alleged that defendant had a prior adjudication for robbery in juvenile court, a serious felony within the meaning of the three strikes law. (§§ 211, 667, subds. (b)-(i), 1170.12.)
Defendant entered into a negotiated plea agreement whereby he pleaded no contest to the robbery count, in exchange for a dismissal of the firearm count, with a stipulated upper term of five years in prison. He waived his right to a jury trial on the alleged prior juvenile adjudication with the understanding that, if the trial court found it to be true, he would be sentenced to 10 years in prison. Prior to sentencing, defendant filed points and authorities challenging the constitutionality of using his juvenile adjudication to enhance his sentence under the three strikes law.
The trial court held a hearing on whether it could use defendant’s prior juvenile adjudication as a strike for the purposes of sentencing. At its conclusion, the judge stated that “The court is . . . inclined at this time to find the reasoning in People v. Lee [(2003) 111 Cal.App.4th 1310 (Lee)], People v. Smith [(2003) 110 Cal.App.4th 1072 (Smith)] and People v. Buchanan [(2006) 143 Cal.App.4th 139 (Buchanan)]. Accordingly, I find the prior conviction to be true.” The trial court then sentenced Mason to five years in state prison, doubled pursuant to his prior juvenile adjudication, for an aggregate term of 10 years.
DISCUSSION
Defendant argues that it was unconstitutional for the trial court to increase his maximum sentence “on the basis of a non-jury juvenile adjudication.” He urges this court to adopt the view of the Ninth Circuit in United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe) that Apprendi bars the use of juvenile adjudications to enhance adult sentences over the statutory set maximum.
In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455], italics added.) In Tighe, the Ninth Circuit Court of Appeals decided that a prior non-jury juvenile adjudication cannot be used to increase the penalty beyond that authorized for the current offense alone and found that, under Apprendi, a “prior conviction” can be so used only if “obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt.” (Tighe, supra, 266 F.3d at p. 1194; id. at p. 1197.)
Decisions of a federal court interpreting federal law are not binding on this court. (People v. Williams (1997) 16 Cal.4th 153, 190.) Moreover, as defendant acknowledges, the reasoning of Tighe has been repeatedly rejected by appellate courts in this state. (See Buchanan, supra, 143 Cal.App.4th at p. 149; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834 (Andrades); Lee, supra, 111 Cal.App.4th at pp. 1315-1316; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394 (Bowden).)
The overwhelming majority of California appellate courts have concluded that, because a juvenile can be constitutionally adjudicated as a delinquent without a jury trial, use of the juvenile adjudication to increase a defendant’s sentence is not prohibited by the due process clause. (Andrades, supra, 113 Cal.App.4th at pp. 830-831; Lee, supra, 111 Cal.App.4th at p. 1316; Bowden, supra, 102 Cal.App.4th at pp. 393-394.) These decisions also point out that California’s three strikes law, unlike the federal sentencing law at issue in Tighe, requires that a prior conviction (including a prior juvenile adjudication) be proved beyond a reasonable doubt, and provides for the right to a jury trial on the issue of whether a defendant has suffered a prior conviction. (See Andrades, supra, 113 Cal.App.4th at pp. 833-834; Lee, supra, 111 Cal.App.4th at p. 1316; Bowden, supra, 102 Cal.App.4th at pp. 392-393.) These procedural safeguards satisfy the due process concerns expressed in Apprendi. (Andrades, supra, 113 Cal.App.4th at pp. 833-834.)
In one contrary case, a divided panel of the Sixth Appellate District held otherwise. However, the California Supreme Court granted review in that case on October 10, 2007. (People v. Nguyen, review granted Oct. 10, 2007, S154847.) Review in that case is still pending.
This court rejected the Tighe view in People v. Palmer (2006) 142 Cal.App.4th 724, 732. Although the conviction in Palmer was not a juvenile conviction but rather an out-of-state misdemeanor conviction for drunk driving, its analysis is equally applicable, since in both cases the defendant’s sentences were enhanced by virtue of convictions arising from proceedings that did not afford the right to a jury trial. As we explained, “We respectfully decline to follow the Tighe, supra, 266 F.3d 1187, majority opinion and follow the reasoning of Bowden [upholding the constitutionality of using a juvenile conviction to enhance a defendant’s sentence following a later adult conviction]. Similar reasoning applicable to the use of a prior juvenile adjudication to which no right to a jury trial attached applies here to the use of a prior Nevada misdemeanor driving-under-the-influence conviction to which no right to a jury trial attached.” (Palmer, at p. 733.)
Finally, our decision in Palmer is supported by the California Supreme Court’s rejection of the argument that the federal right to jury trial includes the right to a jury determination on prior conviction allegations. (People v. Black (2007) 41 Cal.4th 799, 819, fn. 8.)
We conclude that defendant’s prior juvenile adjudication for robbery did not offend his due process rights and was properly used by the trial court to enhance his sentence.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., DAVIS, J.