Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA096496, Patrick T. Meyers, Judge.
Gloria C. Cohen, 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, Linda C. Johnson and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
John Anthony Romero appeals from the judgment entered following a jury trial in which he was convicted of second degree robbery, count 1 (Pen. Code, § 211), dissuading a witness from reporting a crime, count 2 (Pen. Code, § 136.1, subd. (b)(1)), possession of a controlled substance, heroin, count 3 (Health & Saf. Code, § 11350, subd. (a)) with the finding as to all counts that at the time he committed the offenses he was released from custody on his own recognizance within the meaning of Penal Code section 12022.1. Following a court trial, appellant was found to have suffered a prior juvenile adjudication for discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3), a serious or violent felony within the meaning of the “Three Strikes” law (Pen. Code, § 1170.12, subds. (a) - (d) and 667, subdivision (b) through (i).) Additionally, he was found to have served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Appellant was sentenced to prison for a total of eight years and contends the federal constitution prohibits the use of a juvenile adjudication as a strike under the Three Strikes law. For reasons stated in the opinion we affirm the judgment.
It was stipulated that on June 21, 2006, and July 26, 2006, appellant was out of custody on his own recognizance in Los Angeles County Superior Court case number VA095458, a felony case different from the instant case.
FACTUAL AND PROCEDURAL BACKGROUND
As appellant’s claim relates only to a sentencing issue, it will suffice to observe that on June 21, 2006, at approximately 8:30 p.m., appellant and a companion robbed Jesse Moreno of his wallet containing more than $1,000. Appellant’s companion told Moreno that if he “reported anything to anybody that they would find out.”
On July 26, 2006, appellant was arrested at his house. Inside his residence, Los Angeles County Sheriff’s Detective Phillip Santisteven found a tin box containing a clear plastic bag with six dark-colored bindles resembling heroin. It was stipulated that the six containers enclosed an estimated total weight of approximately 1.74 grams of a solid substance and that two containers were tested and enclosed approximately 0.77 grams of solid substance containing heroin.
DISCUSSION
Appellant was sentenced to prison for eight years, consisting of in count 1, the low term of two years, doubled by reason of the Three Strikes law, plus one-third the middle term of two years, for count 3, similarly doubled to one year, four months. Sentence for count 2 was ordered stayed pursuant to Penal Code section 654. Pursuant to Penal Code section 12022.1, appellant was sentenced to a consecutive term of two years for having committed the instant crimes while released on his own recognizance in case number VA095458. In case number VA095458, appellant was sentenced to one-third the middle term of two years, or eight months. Prior prison term enhancements in both cases were stricken.
This term was not doubled because there was no strike allegation.
Appellant asserts his sentence cannot be doubled under the Three Strikes law based on a juvenile adjudication. He contends because the juvenile adjudication was produced without a jury trial or waiver of a jury trial, its use as a strike violates his constitutional rights to due process and trial by jury. Appellant notes the issue of whether a juvenile adjudication can be used as a prior strike is currently pending before the California Supreme Court in People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847. He also acknowledges his contention has previously been rejected by various courts, including this court. In People v. Bowden (2002) 102 Cal.App.4th 387 we agreed that “‘[s]ince a juvenile constitutionally―and reliably [citation]―can be adjudicated a delinquent without being afforded a jury trial, there is no constitutional impediment to using that juvenile adjudication to increase a defendant’s sentencing following a later adult conviction.’ [Citation.]” (Id. at p. 392.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.