Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael A. Cowell, Judge, Los Angeles County Super. Ct. No. VA088344.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
BOLAND, J.
INTRODUCTION
Appellant Miguel Angel Miranda challenges his assault with a firearm convictions on the grounds the trial court committed various sentencing errors. We conclude remand is required for resentencing because appellant’s juvenile criminal threats adjudication did not qualify as a strike.
BACKGROUND AND PROCEDURAL HISTORY
Appellant repeatedly fired a gun at two basketball players and their coach as they waited outside a high school gymnasium. Neither the players nor the coach were injured.
A jury could not reach a verdict on charges of attempted murder. It convicted appellant of three counts of assault with a firearm and found, with respect to each count, that appellant personally used a gun in the commission of each offense. Appellant admitted an allegation he had suffered a prior serious or violent felony conviction within the scope of the Three Strikes law. The court sentenced appellant to a second strike term of 18 years in prison.
DISCUSSION
1. Appellant’s prior juvenile adjudication does not constitute a “strike.”
The information alleged, and appellant admitted, that in 2001 he was adjudicated a ward of the juvenile court for making criminal threats, in violation of Penal Code section 422. The trial court therefore doubled the base term of four years for each count.
The court made the sentences on the three counts concurrent.
Appellant contends the court imposed an unauthorized sentence and his trial attorney rendered ineffective assistance because criminal threats is not an offense listed in Welfare and Institutions Code section 707, subdivision (b) and therefore does not constitute a “strike.” Respondent concedes the error.
A prior juvenile adjudication constitutes a strike only if the appellant was adjudged a ward of the juvenile court because he committed an offense listed in Welfare and Institutions Code section 707, subdivision (b). (Pen. Code, § 667, subd. (d)(3).) A violation of Penal Code section 422 is not among the offenses listed in Welfare and Institutions Code section 707, subdivision (b). Accordingly, the judgment must be reversed and the matter remanded for resentencing outside of the Three Strikes law.
2. The court may clarify the record or exercise discretion regarding the enhancement term on remand.
The trial court imposed a 10-year enhancement on each count under Penal Code section 12022.5, subdivision (a). In doing so, the court stated, “because of the 12022.5 allegation the court has to has [sic] add an additional consecutive term of ten years.”
Appellant contends the court’s statement shows that it did not understand it had discretion to impose a term of 3, 4, of 10 years under Penal Code section 12022.5, subdivision (a).
Respondent does not concede the error, but agrees that the court should be permitted to clarify its reasoning or correct its error on remand. We agree. The court’s statement suggests it did not understand its discretion, but it simply may have misspoken. Remand for resentencing will afford the court an opportunity to exercise its discretion.
3. The trial court permissibly imposed upper terms.
The trial court imposed the upper term for each count. It explained that it found no factors in mitigation and the following factors in aggravation: the crime involved a threat of great bodily injury, the victims were particularly vulnerable, appellant was on probation or parole at the time of the charged offenses, and his performance on probation or parole was unsatisfactory.
Citing Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856], Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant contends the imposition of the upper terms violated his right to a jury trial, in that it was based upon facts found by the court, not a jury.
Apprendi, supra, 530 U.S. 466, essentially requires any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum to be charged, must be submitted to a jury and proved beyond a reasonable doubt. (Id. at p. 490.) Apprendi explained that recidivism is distinguishable from other matters used to increase a sentence because (1) recidivism traditionally has been used by sentencing courts to increase the length of a sentence, (2) recidivism does not relate to the commission of the charged offense, and (3) prior convictions result from proceedings that include substantial procedural protections. (Id. at p. 488.) The recidivism exception to Apprendi has been deemed by many courts to extend beyond the mere fact of a prior conviction to include closely related matters, such as the nature of the prior conviction. (People v. Thomas (2001) 91 Cal.App.4th 212, 222-223; People v. McGee (2006) 38 Cal.4th 682, 702-707.)
The trial court’s choice of the upper term in this case was based in part upon recidivism-type factors, i.e., appellant was on probation at the time of the charged offenses and his performance on probation was unsatisfactory. The other two factors cited by the court were not a proper basis for an upper term, but “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial.” (People v. Black (2007) 41 Cal.4th 799, 812.) Accordingly, the trial court permissibly imposed upper terms.
DISPOSITION
The judgment is reversed and the case is remanded for resentencing.
We concur: COOPER, P. J. FLIER, J.