Opinion
H043424
07-19-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO CHISLOM VEGA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1229580)
Defendant Francisco ChislomVega appeals his conviction following a plea bargain asserting that his prior juvenile adjudication for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) was improperly used to enhance his sentence as a strike.
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant concedes that we are bound by People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen), wherein our Supreme Court held that prior juvenile adjudications may be used to increase a sentence under the "Three Strikes" law without violating the right to a jury trial. He brings this appeal to preserve his federal appellate rights.
STATEMENT OF THE CASE
The underlying facts of this case are omitted because they are not relevant to the issues on appeal.
Defendant was charged in 2015 with carjacking (§ 215; count 1), assault with a semiautomatic firearm (§ 245, subd. (a)(2); counts 2 and 3), buying or receiving a stolen motor vehicle, with a prior conviction (§ 496d/666.5; count 4), reckless driving while trying to elude a pursuing police officer (Veh. Code, § 2800.2, sub. (a); count 5), resisting arrest (§ 69; count 6), unlawfully possessing controlled substances while armed with a loaded firearm (Health & Saf. Code, § 11370.1; count 7), being a felon in possession of a firearm (§ 29800, sub. (a)(1); count 8), being a felon in possession of ammunition, (§ 30305, subd. (a)(1); count 9) and receiving stolen property (§ 496, subd. (a); counts 10 and 11.)
The information alleged that as to count one, defendant personally used a firearm, within the meaning of section 12022.53, subdivisions (b) and (e)(1). It was also alleged that defendant had been convicted of a serious felony within the meaning of section 667, subdivision (a), and had a prior juvenile adjudication that constituted a strike under sections 667, subdivisions (b)-(i)/1170.12.) In addition, the information alleged that defendant had served four prior prison terms within the meaning of section 667.5, subdivision (b).
On February 25, 2015, defendant pleaded no contest to counts 1, 2, 3, 5, 6, 7, 8, 9 and 10, and the court dismissed counts 4 and 11. His plea bargain included a promise of a minimum sentence of 21 years and four months and a maximum sentence of 27 years and eight months. As to count one, defendant admitted that he personally used a firearm and that he had suffered a prior conviction that qualified as a violent felony under section 667, subdivision (a), a prior juvenile adjudication alleged as a strike prior and that he had served four prior prison terms. At the sentencing hearing, the court denied defendant's Romero motion and committed him to state prison for an aggregate term of 27 years 8 months. Defendant filed a timely notice of appeal.
People v. Romero (1996) 13 Cal.4th 497. --------
DISCUSSION
Defendant argues on appeal that the court erred in using his prior juvenile adjudication as a strike, because it violated his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process.
Defendant's constitutional arguments are based on Apprendi v. New Jersey (2000) 530 U.S. 466, in which the court stated 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." (Id. at p. 490.) Defendant asserts that because his prior juvenile adjudication was not submitted and proven to a jury, it may not be used to enhance his sentence as a strike. While acknowledging that Nguyen, supra, 46 cal.4th 1006, states otherwise, and is binding on this court, defendant raises the arguments here to preserve the issue for federal appellate review.
Here, we are bound by the California Supreme Court authority in Nguyen, supra, 46 Cal.4th 1007. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The trial court did not err in using defendant's prior juvenile adjudication as a strike to enhance his sentence.
DISPOSITION
The judgment is affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.