Opinion
B162899.
11-26-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALBERTO MENDEZ, Defendant and Appellant.
Jill D. Lansing, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
David Alberto Mendez appeals from the judgment entered upon his conviction by jury of attempted willful, deliberate and premeditated murder in which he personally used and discharged a firearm, causing great bodily injury, and personally inflicted great bodily injury causing the victim to suffer paralysis, and upon his conviction of possession of methamphetamine (Pen. Code, §§ 664/187, subd. (a), 12022.53, subds. (b), (c), (d), 12022.7, subd. (b); Health & Saf. Code, § 11377, subd. (a)). He was found to have sustained a prior conviction within the meaning of the three strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). He was sentenced as a second-strike defendant to 14 years to life with a 25-year-to-life firearm use enhancement on the attempted murder count, and to a concurrent term of 16 months for possession of methamphetamine.
Unless otherwise specified, all further statutory references are to the Penal Code.
Appellant contends (1) that the use of a juvenile adjudication as a strike denied him due process and the right to trial by jury; and (2) that the trial court relied upon improperly admitted evidence to find the prior true, denying him due process.
Respondent contends (1) that the trial court erred by imposing one-third the midterm for a concurrent count, and (2) that the abstract of judgment is erroneous and must be corrected.
We remand the matter for imposition of a concurrent term on count 2, possession of methamphetamine, and for correction of the abstract of judgment, and otherwise affirm.
FACTS
Appellant does not challenge the sufficiency of the evidence to support his conviction of attempted willful, deliberate and premeditated murder and possession of methamphetamine. It will suffice to observe that on the night of December 1, 2001, appellant attended a gathering of friends. He appeared agitated and ingested cocaine. Tommy Partida, a long-time friend or acquaintance of appellants who belonged to a rival gang, was also at the party. At some point, appellant said, "Im sorry" and shot Partida in the back of the neck. Partida was hospitalized for three months. The bullet remained lodged in his spine and he was paralyzed from the neck down. A search of appellant following his arrest revealed a baggie of methamphetamine.
TRIAL ON THE PRIOR CONVICTION ALLEGATION
The information alleged within the meaning of the three strikes law that appellant had suffered a juvenile adjudication in case No. GJ001713 in 1991 for assault with a firearm. At the court trial on the allegation, the prosecutor introduced certified copies of the chronological index of proceedings in case No. GJ001713; a Welfare and Institutions Code section 602 petition filed on August 19, 1991, in that matter which alleged, inter alia, that on or about August 13, 1991, David Alberto Mendez, born on October 16, 1974, violated section 245, subdivision (a)(2); the minute order in that matter for August 27, 1991, bearing the name Alberto Mendez, indicating that the petition filed on August 19, 1991, was sustained as to that count upon the admission of the minor, and listing conditions of probation; and a Los Angeles county jail booking report filed with regard to the August 15, 1991, arrest of David Alberto Mendez, whose date of birth was October 16, 1974, for assault with a firearm.
The booking report indicated "T/T of female & `Pasadena L/Bicep T/T of `Mendez on back (2" Letters)." The minute order enumerating the conditions of probation stated, "No tattoos or marks allowed on person," and a handwritten notation under this indicated, "`Girl L Arm [¶] `Mendez Back [¶] `3 dots L Hand."
Over appellants objection, Detective Matt Williams, the investigating officer, was permitted to examine appellant outside the courtroom for tattoos. Williams testified that appellant had several tattoos including three dots on his left hand, the name "Mendez" on his back, a picture of a female under the word "Pasadena" on his left bicep, and a picture of a girl with a rose on the inside of his left bicep. In his opinion, the description of the tattoos in the documentation matched appellant.
Defense counsel objected to the admission in evidence of the booking report, arguing that it was hearsay, irrelevant and not credible, and citing an appellate court case for the proposition that the trial court may not go beyond the record of conviction to establish the prior juvenile adjudication. The prosecutor stated that the booking and property report was introduced to establish identity, the fact that appellant was the individual who suffered the true finding on the petition. Defense counsel argued that the report was also not part of the record of conviction for purposes of establishing identity. The trial court overruled the objection, stating that the cited case "does not appear to address identification issues which is what we are wrestling with in our case."
Defense counsel argued that the evidence failed to establish that appellant was the person who suffered the sustained petition, asserting that appellant had additional tattoos besides the three indicated in the documentation. The trial court found that the prosecution had established appellants identity beyond a reasonable doubt, stating, "Tattoos to be added is not unusual. Now, if there was a record of a tattoo that did not show on Mr. Mendezs body, then this would be a much different situation. Subtraction of tattoos is extremely difficult as I understand it but its fairly easy to add tat[t]oos."
SENTENCING
The court imposed an indeterminate life sentence with a minimum parole eligibility term of seven years, doubled to 14 years under the three strikes law, for the attempted willful, deliberate and premeditated murder. A consecutive enhancement of 25 years to life was imposed for the discharge of a firearm causing great bodily injury. The court imposed a concurrent term for the possession of methamphetamine, comprised of one-third the midterm or eight months, doubled to 16 months under the three strikes law.
DISCUSSION
I. Apprendi does not require reversal of the finding on appellants strike prior conviction.
Appellant requested a jury trial on the issue of his guilt of, and the nature of, the assault with a firearm, the juvenile offense underlying the prior strike allegation. The trial court denied that request. Appellant thereupon waived his right to a trial by jury on the prior conviction allegation. Defense counsel subsequently argued that use of the prior adjudication as a strike constituted a violation of appellants rights to due process, because appellant had not been given the opportunity for a jury trial on the adjudication. The trial court overruled the objection.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, (Apprendi), the United States Supreme Court stated, "Other 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." In U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe), the majority held that a juvenile adjudication does not fall within the prior conviction exception set forth in Apprendi. Relying on Tighe, appellant asserts that the true finding on his strike allegation must be reversed because he was denied due process and his right to a jury trial on issues used to increase his maximum sentence. He argues that there are two different interpretations of the holding in Tighe, one being "that the absence of a jury finding that the prior was true was the flaw, and the other [being] that . . . the use of a prior in which there was never a right to a jury determination on the truth of the underlying offense" was the flaw. He relies on the latter interpretation, contending that he was thereby denied due process and the right to a jury trial by the use of his juvenile adjudication as a strike. This contention lacks merit.
The majority opinion in Tighe explained that the rationale behind excepting prior convictions from the Apprendi rule is that, "unlike virtually any other consideration used to enlarge the possible penalty for an offense, . . . a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." (Jones v. United States (1999) 526 U.S. 227, 249 (Jones).) The Tighe majority stated, "Thus, Jones recognition of prior convictions as a constitutionally permissible sentencing factor was rooted in the concept that prior convictions have been, by their very nature, subject to the fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to a jury trial." (Tighe, supra, 266 F.3d at p. 1193.) The majority concluded, "Apprendi s narrow `prior conviction exception is limited to prior convictions resulting from proceedings that afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt." Since the defendants juvenile adjudication was not obtained by means of a jury trial, its use violated Apprendi. (Id. at pp. 1194-1195, fn. omitted.)
In Apprendi, the court referred to "[b]oth the certainty that procedural safeguards attached to any `fact of prior conviction, and the reality that [the defendant] did not challenge the accuracy of that `fact in his case . . . ." (Apprendi, supra, 530 U.S. at p. 488.)
We do not find the majority opinion in Tighe persuasive. Apprendi does not require that the trial court submit to the jury in the instant case the actual conduct underlying the prior juvenile adjudication, but requires only that it submit to the jury the "fact that increases the penalty for a crime beyond the prescribed statutory maximum" (Apprendi, supra, 530 U.S. at p. 490), here the existence of a prior qualifying conviction.
We are, of course, not bound by lower federal court opinions, even as to federal questions. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.)
The majority of Division Seven of this court came to the same conclusion in People v. Smith (2003) 110 Cal.App.4th 1072, 1077-1079. In Smith, the majority stated, in response to a similar argument, "We believe Smiths argument misapprehends Apprendi and Tighe and hold, as has Division Four of our court in People v. Bowden (2002) 102 Cal.App.4th 387 (Bowden), that a juvenile adjudication may be used as a strike to enhance an adult offenders sentence notwithstanding the absence of the right to a jury trial in delinquency proceedings." (Smith, supra, at p. 1075.) The Smith majority stated, "`"By enacting the three strikes law, the Legislature has . . . simply . . . said that, under specified circumstances, a prior juvenile adjudication may be used as evidence of past criminal conduct for the purpose of increasing an adult defendants sentence. . . . Since a juvenile constitutionally — and reliably (McKeiver v. Pennsylvania [(1971) 403 U.S. 528, 547]) — can be adjudicated a delinquent without being afforded a jury trial, there is no constitutional impediment to using that juvenile adjudication to increase a defendants sentence following a later adult conviction." (Bowden, supra, 102 Cal.App.4th at p. 392 . . . .)" (Smith, supra, at p. 1079, fn. omitted.)
It is well established that there is no constitutional right to trial by jury in a juvenile proceeding. (McKeiver v. Pennsylvania, supra, 403 U.S. at p. 545.) Thus, the dissenting judge in Tighe reasoned, "In my view, the language in Jones stands for the basic proposition that Congress has the constitutional power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant presumably received all the process that was due when he was convicted of the predicate crime. For adults, this would indeed include the right to a jury trial. For juveniles, it does not. Extending Jones logic to juvenile adjudications, when a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement." (Tighe, supra, 266 F.3d at p. 1200 (dis. opn. of Brunetti, J.), original italics.)
Refusing to follow Tighe, another federal appellate court explained, "The Supreme Court stated in Apprendi that prior convictions are excluded from the general rule because of the `certainty that procedural safeguards, such as trial by jury and proof beyond a reasonable doubt, undergird them. [Citation.] The Court went on to state that `there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, on the one hand, and accepting the validity of findings of facts by judges that are subject to a lesser standard of proof, on the other. [Citation.] We think that while the Court established what constitutes sufficient procedural safeguards (a right to jury trial and proof beyond a reasonable doubt), and what does not (judge-made findings under a lesser standard of proof), the Court did not take a position on possibilities that lie in between these two poles. In other words, we think that it is incorrect to assume that it is not only sufficient but necessary that the `fundamental triumvirate of procedural protections, as the Ninth Circuit put it, underly an adjudication before it can qualify for the Apprendi exemption." (U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032 (Smalley).)
The court in Smalley continued, "We do not think, moreover, that Jones meant to define the term `prior conviction for constitutional purposes as a conviction `that has been established through procedures satisfying fair notice, reasonable doubt and jury trial guarantees. [Citation.] We read Jones instead to mean that if prior convictions result from proceedings outfitted with these safeguards, then they can constitutionally be used to increase the penalty for a crime without those convictions being submitted and proved to a jury. Our confidence in this reading is bolstered by the fact that in explaining the exception for prior convictions, the Apprendi court itself talks about only the right to a jury trial and proof beyond a reasonable doubt. We think it notable, moreover, that Apprendi does not even refer to the language in Jones, quoted above, upon which the Tighe court based its conclusion." (Smalley, supra, 294 F.3d at p. 1032.)
The Smalley court concluded that a juvenile adjudication is sufficiently reliable to come within the Apprendi exception for prior convictions without offending due process, because it encompasses the constitutional rights to notice, counsel, confrontation and cross-examination, and the privilege against self-incrimination, and it must be based on proof beyond a reasonable doubt. (Smalley, supra, 294 F.3d at p. 1033.) Division Four of this court has relied upon similar reasoning in arriving at the same determination. (Bowden, supra, 102 Cal.App.4th at pp. 393-394.) In accordance with this more persuasive authority, we reject appellants contention.
II. The trial court properly considered the tattoo evidence at the trial on the prior strike allegation.
Appellant contends that the notations regarding tattoos on the minute order listing the conditions of probation, and the booking report indicating the presence of tattoos, were not part of the "record of conviction" and were erroneously admitted. He claims that there was, therefore, insufficient evidence to establish that he was the individual who suffered the juvenile adjudication. This contention is without merit.
To establish "the substance" of a prior conviction, that is, to determine whether a prior conviction is for a serious felony, the trial court may look to the entire record of conviction. (People v . Guerrero (1988) 44 Cal.3d 343, 355.) While, as appellant indicates, there has been considerable litigation over what constitutes the record of conviction for this purpose, his argument that the evidence submitted here was not part of the record of conviction is misplaced.
The trial court did not consider the tattoo evidence to establish the nature of the juvenile adjudication, that is, to establish that the juvenile adjudication was for a serious felony, a matter which was uncontested below. Rather, it considered the tattoo evidence to establish appellants identity as the person who suffered the juvenile adjudication. The Guerrero rule limiting proof of a prior conviction to the record of conviction applies "only to proof of `the circumstances of the prior crime" and thus is inapplicable where the issue is the identity of the defendant as the person who suffered the prior. (People v. Martinez (2000) 22 Cal.4th 106, 117-118.)
We need not discuss whether the booking report was properly admitted for proof of identity over appellants hearsay objection, since there was no objection to the introduction of the minute order of the juvenile proceeding which similarly listed David Alberto Mendezs tattoos. Moreover, even apart from the tattoo evidence, the evidence established that the David Alberto Mendez who suffered a sustained juvenile adjudication for assault with a firearm was born on appellants birthdate, as shown on the information in the current case, and that the minors mothers fairly unique first name, Eustolia, was the same as that of appellants mother, who testified at trial. Even were the documentary tattoo evidence erroneously admitted, appellants claim that the evidence was insufficient to establish that he suffered the prior strike would fail. (People v. Sarnblad (1972) 26 Cal.App.3d 801, 805-806.)
III. The concurrent sentence for possession of methamphetamine must be modified.
As respondent points out, the trial court erred in calculating the concurrent sentence for possession of methamphetamine as double one-third the midterm. For a defendant with one prior strike conviction, "the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction." (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) The sentencing rules set forth in the determinate sentencing scheme apply under the second-strike provisions of the three strikes law, because sentencing provisions outside the three strikes law are given full effect "except for those provisions that the Three Strikes law expressly abrogates." (People v. Nguyen (1999) 21 Cal.4th 197, 203.) A consecutive sentence, but not a concurrent sentence, is reduced to one-third the midterm. (See § 1170.1, subd. (a).)
The three strikes law also incorporates section 1170 with respect to the choice of the lower, middle or upper term. (People v. Nguyen, supra, 21 Cal.4th at pp. 205-206.) Since we cannot determine whether the trial court would have selected the lower, middle or upper term (16 months, two years or three years) for the concurrent sentence for possession of methamphetamine, the matter must be remanded for resentencing limited to this issue.
IV. The abstract of judgment must be corrected.
As respondent also points out, the abstract of judgment erroneously indicates that the sentence for count 2, possession of methamphetamine, was stayed pursuant to section 654. On remand, the trial court is directed to prepare a corrected abstract of judgment reflecting that the term imposed is to run concurrently. (People v. Mitchell (2001) 26 Cal.4th 181, 188.)
DISPOSITION
The matter is remanded for resentencing limited to the issue of the choice of the lower, middle or upper term for the concurrent sentence on count 2, possession of methamphetamine, and for the preparation of an amended abstract of judgment reflecting that the sentence imposed on count 2 is to be served concurrently. In all other respects, the judgment is affirmed.
We concur: BOREN, P.J., NOTT, J.