Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA073867. Robert M. Martinez, Judge.
Donna L. Harris, 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, Paul M. Roadarmel, Jr., Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellant Guillermo Anthony Velez appeals from the judgment entered following a jury trial in which he was convicted of one count of first degree murder and one count of second degree murder, with a multiple murder special circumstance. The jury further found that during the commission of these offenses appellant personally and intentionally discharged a firearm, causing death or great bodily injury. The jury also convicted him of possession of a firearm by a convicted felon. The trial court sentenced appellant to consecutive terms of life in prison without possibility of parole, 30 years to life, plus five years in prison.
Appellant contends the trial court erred by deleting from the standard form instruction on self-defense a paragraph stating that he was not required to retreat, refusing to issue a bench warrant for a coroner’s employee who tested one of the victims for gunshot residue, and treating his prior juvenile adjudication as a “strike prior” although he had no right to a jury trial in the juvenile court proceedings. We conclude the trial court committed prejudicial instructional error and reverse.
BACKGROUND
On the afternoon of June 27, 2005, appellant and his brother Chris arrived at the home of Gretchen Handley, whom appellant had been dating for several months. John William Vargas and Mauricio Ramos Venegas were also present. Appellant knew that Handley had just returned from Mexico with Venegas and Vargas. Handley testified that appellant, Vargas, and Venegas sat outside drinking beer together. At some point, Vargas, Venegas, appellant, and Chris left. Vargas and Venegas returned first, followed by appellant. Handley heard the shots, looked out the front door, and saw appellant near her father’s truck, aiming a shotgun toward her house. Handley’s son, Michael Hale, testified he heard running footsteps outside, followed by a number of gunshots that sounded as if they were fired by a shotgun. All of the shots sounded the same. He looked out the front door and saw appellant standing near one of the cars in the driveway. Hale saw appellant twice fire a shotgun toward the back of the house, toward the place where Venegas’s body was found. Appellant then got into the passenger side of Chris’s dark-colored SUV, which was parked in the street in front of Handley’s house. Neighbor Robert Gehres saw a man walking up the driveway firing a pump action shotgun toward a body lying between two cars. The gunman walked all the way to the front of a truck parked in the driveway, around the point where the body lay. Gehres heard three or four shots within the span of six or seven seconds. All of the shots sounded the same. The driver of a dark SUV called, “Anthony, let’s get going,” and the shooter got into the SUV, which drove away.
Before receiving a threatening phone call from appellant, Handley told the police that she did not know the identity of the gunman. Hale initially told the police that appellant was not the gunman, but he changed his story at the police station.
Vargas’s body was found between two vehicles parked in the driveway at Handley’s house. He suffered two fatal shotgun wounds: one that entered his neck and traveled downward into his chest, and one that entered his upper abdomen and also traveled downward. In addition, Vargas had gunshot wounds to his right wrist and left ankle and facial abrasions that may have resulted from small bits of hard material striking his face. The deputy medical examiner opined that the wounds were caused by slugs, not buckshot. Venegas’s body lay about 35 to 40 feet away, in a narrow space between the side of the house and a fence. He suffered shotgun wounds to his left forearm, lower right leg, and head. The head wound was massive and fatal. The deputy medical examiner recovered a slug from Venegas’s head, which he believed also caused the forearm injury. This could occur if Venegas held his arm in front of his face. The wound to Venegas’s leg shattered the bone and was disabling. Sheriff’s deputies recovered five expended shotgun shells. The prosecution’s firearms examiner testified that the magazine of a pump action shotgun commonly holds five shells. A small revolver containing four live rounds and one expended round lay near Vargas’s hand. Venegas was unarmed.
Appellant was arrested on July 12, 2005. At trial, he testified that he went to Handley’s house on the day of the crimes because Vargas called him and asked to meet him there. Vargas shook hands with appellant and said he had just been speaking with Vargas’s brother Frank, whom appellant knew to be a member of the Mexican Mafia. Appellant once attended a meeting at which Frank ordered others to “whack” particular individuals.
Appellant further testified that while at the house, Handley said, “I told you not to take my dope the night before.” Vargas told appellant he wanted appellant to put him in touch with appellant’s friend “Sleepy.” Appellant offered to take Vargas to Sleepy’s house. Appellant’s brother returned, and appellant told Vargas to follow them. Venegas and Vargas followed appellant and his brother in their own car. Appellant got lost, and he eventually noticed that Vargas and Venegas were no longer following him. Appellant returned to Handley’s house. Vargas and Venegas were in the driveway. They angrily accused appellant of purposely misleading them. Appellant saw the handle of a gun sticking out of Vargas’s waistband. Appellant apologized and told them he had Sleepy’s phone number on an old cell phone, which he would retrieve. Appellant went home, found the phone, and placed his loaded pump action shotgun in the backseat, beneath some clothing.
Appellant testified that he returned to Handley’s house, where Vargas and Venegas were still standing in the driveway. Appellant approached and gave them Sleepy’s phone number. One of them announced that Frank wanted to talk to appellant. Vargas made a phone call and handed appellant the phone. Frank screamed and cursed at appellant. He insisted appellant meet with him that night. Vargas and Venegas laughed during appellant’s call with Frank. When Vargas took the phone back, he told Frank that appellant had angered him. Vargas then said, “Okay. I’ll take care of it. Don’t worry about it.” Appellant told Vargas and Venegas that he was not going to meet them that night and they could not come to his home.
Appellant testified that he walked back toward his truck, which was parked on the street, just past the driveway. Just as he reached his truck, he heard a gunshot fired from behind him. Appellant retrieved his shotgun, and went back around his truck. Vargas and Venegas were standing side-by-side, between a truck belonging to Handley’s father and a car parked in the driveway. The father’s truck was between appellant and the men, but appellant could see them through its windows. Appellant did not see a weapon, but he saw one of the men attempt to pick up a black object. Appellant was frightened. He “just started shooting.” He aimed at the driver’s side window of the father’s truck and fired. He came around the truck, then “walked around and kept on shooting.” He continued to walk and fire at Vargas and Venegas as rapidly as he could chamber the next round. He was aiming at Vargas, who was “crouching down in a firing position,” and at Venegas, who appeared to be reaching for something or trying to shield himself with Vargas. Appellant did not see a gun in Venegas’s possession that day. Venegas moved toward the back of Handley’s house. Appellant testified that at the time he thought Venegas might attempt to jump the fence “and he would have been gone unless he was planning to get in a position to shoot back or try to kill me.” Appellant fired at Venegas. Venegas turned toward appellant while making a sweeping motion with his hand. Appellant fired until his gun was empty, then jumped in his truck and left. He discarded the shotgun in a dumpster.
The jury convicted appellant of first degree murder with respect to Venegas and the lesser included offense of second degree murder with respect to Vargas. Appellant admitted all prior conviction allegations, including an allegation he had suffered a prior serious or violent felony conviction within the scope of the Three Strikes Law.
DISCUSSION
1. Self-defense instructions
a. No duty to retreat
The trial court instructed the jury on self-defense using CALCRIM No. 505. At the urging of the prosecutor, and without objection from defense counsel, the trial court omitted from the instruction the following optional paragraph: “A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death/great bodily injury has passed. This is so even if safety could have been achieved by retreating.” The court apparently accepted the prosecutor’s argument that because appellant was a convicted felon, he was obliged to retreat before using a firearm in self-defense. The prosecutor cited People v. King (1978) 22 Cal.3d 12 (King), and the bench note for CALCRIM No. 2514.
CALCRIM No. 2514 pertains to temporary possession of a firearm by a felon for self-defense. The portion of the bench note in question states, “If this instruction is given with other self-defense instructions, the court should delete from the other instructions any portion stating that the defendant need not retreat. ([King, supra, 22 Cal.3d at p. 24] [if defendant is a convicted felon, he or she is obliged to try to retreat before using a firearm in self-defense].)” The trial court did not instruct the jury with CALCRIM No. 2514.
Appellant contends that the trial court erred by deleting from CALCRIM No. 505 the paragraph regarding retreat.
“[A] trial court in a criminal case is required--with or without a request--to give correct jury instructions on the general principles of law relevant to issues raised by the evidence.” (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.) This includes instructions regarding a defense if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
In King, supra, 22 Cal.3d 12, the defendant was convicted only of possession of a firearm by a felon. (Pen. Code, § 12021.) The trial court instructed the jury regarding self-defense, defense of others, and defense of habitation, which apparently led to the defendant’s acquittal on two counts of assault with a deadly weapon. The trial court refused, however, to instruct that the necessity of using a firearm for self-defense, etc. provided a defense against the firearm possession charge. (King, supra, 22 Cal.3d at pp. 19-20.) The Supreme Court reversed, stating, “We conclude, therefore, that the prohibition of [Penal Code] section 12021 was not intended to affect a felon’s right to use a concealable firearm in self-defense, but was intended only to prohibit members of the affected classes from arming themselves with concealable firearms or having such weapons in their custody or control in circumstances other than those in which the right to use deadly force in self-defense exists or reasonably appears to exist. Thus, when a member of one of the affected classes is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate section 12021. As in all cases in which deadly force is used or threatened in self-defense, however, the use of the firearm must be reasonable under the circumstances and may be resorted to only if no other alternative means of avoiding the danger are available. In the case of a felon defending himself alone, such alternatives may include retreat where other persons would not be required to do so.” (Id. at p. 24.)
King, supra, 22 Cal.3d 12, addressed only availability of a defense against a charge of possession of a firearm by a felon. Because the parameters of the self-defense claim regarding the assault counts in King were not in controversy, King did not establish that a different standard applies to a felon’s self-defense claim asserted in opposition to a charge of murder or other violent act committed with a firearm. Language used in any opinion is to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition it did not consider. (McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38.) With respect to a charge of violent conduct, as opposed to mere possession of a firearm, a felon has the same right of self-defense as any other person, and need not retreat. (People v. Rhodes (2005) 129 Cal.App.4th 1339, 1346 (Rhodes).)
In Rhodes, supra, 129 Cal.App.4th 1339, the defendant was not charged with possession of a firearm. The trial court in Rhodes, however, gave a modified version of CALJIC No. 12.50 – the predecessor of CALCRIM No. 2514 – that told the jury it was legal for a felon to possess a gun if certain conditions were satisfied, including that “[t]he use of the firearm … was resorted to only if no alternative means of avoiding the danger were available.” (Id. at p. 1345.) Although the trial court in Rhodes instructed upon self-defense, it refused to instruct the jury with CALJIC No. 5.50, which would have informed the jury that the right of self-defense did not require an assailed person to retreat. (Id. at p. 1343.) As in the present case, the trial court in Rhodes based its decision upon the use note for CALJIC No. 12.50, which advised courts not to instruct with CALJIC No. 5.50 if the defendant was a convicted felon. (Id. at p. 1345.)
The appellate court in Rhodes, supra, 129 Cal.App.4th 1339, concluded that the trial court erred by giving CALJIC No. 12.50 and refusing CALJIC No. 5.50, and that these errors were exacerbated by the prosecutor’s numerous statements in argument that Rhodes had a duty to retreat before using a gun in self-defense. (Id. at pp. 1345-1348.) The court stated, “The effect of giving CALJIC No. 12.50, not giving CALJIC No. 5.50, and the district attorney’s emphasis on the trial court’s erroneous instruction of the law was prejudicial. The cumulative effect of these misdeeds was to impose upon Rhodes the duty to retreat when there was no such duty.” (Id. at p. 1348.) Applying Chapman v. California (1967) 386 U.S. 18 (Chapman), the Rhodes court found the errors prejudicial. (Rhodes, supra, 129 Cal.App.4th at p. 1348.)
The present case differs from Rhodes in that the trial court here did not instruct the jury that appellant had a duty to retreat or resort to alternative means before acting in self-defense. The trial court here thus committed only one of the two errors found in Rhodes. The court nonetheless erred by omitting the “no retreat” paragraph from CALCRIM No. 505.
“Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant’s rights under both the United States and California Constitutions.” (People v. Flood (1998) 18 Cal.4th 470, 479-480 (Flood).) In Flood, the California Supreme Court held that instructional error that “improperly describes or omits an element of an offense, or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal....” (Id. at pp. 502-503.) Rather, misdirection of the jury on an element of an offense “falls within the broad category of trial error subject to Chapman review.” (Id. at p. 503.)The United States Supreme Court later reached the same conclusion in Neder v. U.S. (1999) 527 U.S. 1, 15 (Neder).
Flood and Neder addressed the failure to instruct on an element of an offense, not a defense or justification that negates an element of the offense. However, the failure to instruct fully and accurately on a justification that negates an element of a charged offense implicates the same constitutional considerations as the failure to instruct on an element of the charged offense. Where the defendant has produced evidence sufficient to raise a reasonable doubt as to whether or not he acted in self-defense, the prosecutor must prove beyond a reasonable doubt that the defendant did not act in self-defense. (People v. Tewksbury (1976) 15 Cal.3d 953, 963; People v. Lee (2005) 131 Cal.App.4th 1413, 1429.) “The accused has no burden of proof or persuasion, even as to his defenses.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1214-1215.) Accordingly, where self-defense negates an element of the charged offense, the failure to give complete and accurate instructions on self-defense is subject to harmless error analysis under Chapman, supra, 386 U.S. at p. 24.
Here, self-defense negated the “unlawful killing” element of the charged offenses of murder. The jury was instructed, “If a person kills with a legally valid excuse or justification, the killing is lawful and he or she has not committed a crime. If there is no legally valid excuse or justification, the killing is unlawful and, depending on the circumstances, the person is guilty of either murder or manslaughter.” (CALCRIM No. 500.) The justification of self-defense therefore went directly to an element of the charged offenses and directly affected appellant’s guilt or innocence. As did the court in Rhodes, supra, 129 Cal.App.4th at p.1347, we therefore analyze the effect of the instructional error according to Chapman, i.e., respondent has the burden of proving beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.)
As in Rhodes, determining the effect of the trial court’s error requires consideration of the prosecutor’s arguments. The prosecutor repeatedly told the jury that the law required appellant to retreat, rather than use a firearm. In his closing argument, the prosecutor stated, “In ordinary cases, an ordinary citizen has no duty to retreat. But the law with respect to convicted felons like the defendant here is a little different. The defendant because he is a convicted felon must try to retreat before using a firearm in self-defense. That’s what the law is.” Defense counsel effectively conceded the legal issue, arguing “Now, the prosecutor said, well, he has to try to retreat. He has to try to retreat. I suggest to you is [sic] that he did retreat when he says, ‘I’m out of here. I don’t want anything to do with this.’” Defense counsel then argued that retreat was impossible: “And they know where he lives. Is there any retreat for him? Is there any retreat from a bullet that’s fired on him? … There’s no retreat.” In rebuttal, the prosecutor argued, “He doesn’t retreat or even try to retreat like he’s supposed to do because he’s a convicted felon.” In concluding his argument, the prosecutor summarized the jury’s options with respect to the self-defense claim: “[I]f you believe that Mr. Vargas shot that gun first, … if you believe that and you believe that the defendant was trying to retreat and that it was reasonable for him to do what he did then you find him not guilty of killing Mr. Vargas between those cars. [¶] On the other hand, if you think it’s unreasonable, if you think he didn’t try to retreat and, moreover, if you think that the victims didn’t shoot at the defendant first, that Mr. Vargas didn’t shoot at him, then find the defendant guilty with respect to Mr. Vargas as well.”
The trial court instructed the jury that it “must follow the law” as the court explained it, and that the jury must follow the court’s instructions if the jury believed “that the attorney’s comments on the law conflict[ed] with” the instructions. However, the prosecutor’s arguments regarding appellant’s duty to retreat did not conflict with the court’s instructions, which did not address that issue. Given defense counsel’s effective concession that appellant was obliged to retreat and the absence of a contradictory instruction by the court, it would be quite reasonable for the jury to conclude that the law required appellant to attempt a retreat before using a gun to defend himself. Indeed, such a conclusion was warranted under the circumstances. Respondent also cites the court’s instruction that neither the questions nor the arguments of counsel constituted evidence. The error, however, involved a point of law. It is not reasonably likely that jurors would conclude the latter instruction applied to the prosecutor’s argument that appellant was required to retreat.
Respondent also argues the error was harmless because the jury’s verdict shows that it rejected unreasonable or imperfect self-defense, upon which it was also instructed. Respondent argues this shows “the jury did not find that appellant was in imminent danger,” and the jury therefore would not have found appellant was entitled to stand his ground and defend himself. We disagree with respondent’s analysis and conclusions. If the jury believed counsel’s arguments that the law required appellant to attempt to retreat before using the gun in self-defense, the jury was likely to conclude that the retreat rule applied to both self-defense and unreasonable or imperfect self-defense. CALCRIM No. 571 informed the jury that “[t]he difference between complete self-defense and imperfect self-defense depends on whether the defendant’s belief in the need to use deadly force was reasonable.” Therefore, if the jury believed that appellant was required to attempt to retreat before using the gun in self-defense, it would be entirely reasonable and consistent with the jury instructions for the jury to conclude that an imperfect self-defense theory also did not apply unless appellant retreated.
Self-defense requires an actual and reasonable belief in the need to defend against an imminent danger of death or great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) The circumstances must be sufficient to place a reasonable person in fear, and the killer must have acted solely from such fears. (Pen. Code, § 198.) Self-defense is limited to the use of force that reasonably appears to be necessary to resist the other party’s misconduct; the use of excessive force destroys the justification. (People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.) A defendant may, if reasonably necessary, pursue his assailant until the danger has passed (People v. Collins (1961) 189 Cal.App.2d 575, 588), but the right of pursuit ends when the attacker is disabled (People v. McCurdy (1934) 140 Cal.App. 499, 503) or has fled or otherwise withdrawn from the combat (People v. Pinholster (1992) 1 Cal.4th 865, 966; People v. Keys (1944) 62 Cal.App.2d 903, 916-917). The right to exercise self-defense endures only as long as the real or apparent danger. (People v. Pinholster, supra, 1 Cal.4th at p. 966.)
In accordance with these principles, the jury was instructed that justification on a self-defense theory required that “[t]he defendant used no more force than was reasonably necessary to defend against” the danger of “being killed or suffering great bodily injury.” The court further instructed that “The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified.”
A loaded revolver with one spent round lay near Vargas’s hand. Nothing in the record established that the revolver was not fired during this episode. Independent witnesses described all the shots as sounding the same, and, apart from appellant’s testimony, there was no way to determine who fired first. If the jury credited appellant’s testimony that one of the victims fired a shot at him before he even retrieved his shotgun from his car, it would have been reasonable for the jury to conclude that appellant possessed an actual and reasonable belief in the need to shoot back at his assailant to defend himself against an imminent danger of death or great bodily injury. Appellant testified to several events, statements, and observations preceding the shooting that could reasonably be viewed as adding to his belief in the need to defend himself. Handley accused appellant of stealing her drugs and used words suggesting that retribution would be forthcoming: “I told you not to take my dope ….” Vargas and Venegas became angry with appellant and accused him of purposely misleading them on the journey to find Sleepy’s house. Appellant saw the handle of a gun sticking out of Vargas’s waistband. Appellant knew the victims were associated with the Mexican Mafia -- a notorious and violent prison gang. Vargas indicated that Frank, a Mexican Mafia member, had spoken of appellant and wanted to talk to appellant. When Vargas put appellant on the phone with Frank, Frank was quite angry with appellant and demanded a meeting. After appellant handed the phone back to Vargas, Vargas promised Frank that he would “take care of it,” which apparently referred to the dispute involving appellant. Appellant then informed Vargas and Venegas that he would not attend a meeting and directed them not to come to his house.
Given these antecedents, the jury could reasonably conclude that when appellant heard a gunshot from the vicinity of the victims, he reasonably believed they were firing at him. Appellant testified that he was frightened and “just started shooting.” At one point he saw one of the victims attempt to pick up a black object, which may have been the revolver. Appellant also described Vargas as “crouching down in a firing position,” which may have accounted for the trajectory of Vargas’s bullet wounds. Appellant thought Venegas appeared to be reaching for something at one point and that Venegas might be getting into a position to fire upon him. When Venegas ran, appellant thought he might be going for a weapon. After appellant fired at Venegas once, Venegas turned toward appellant while making a sweeping motion with his hand. Such a motion could be seen as consistent with turning to aim a gun at appellant. According to the testimony of the independent witnesses, all of the gunfire occupied less than ten seconds.
A properly instructed jury that evaluated the rapidly evolving events from the perspective of a reasonable person who found himself in a gun battle -- a person who was afraid and whose adrenalin was flowing -- might well conclude that appellant’s entire course of conduct was justified as self-defense. Even if appellant actually continued to fire at the victims after they were disabled, he may not have realized their status before firing off the next round. A rapidly-evolving gun battle does not permit calm reflection, consideration of all available options, or a re-evaluation of the situation in a detached manner following each shot. “Where the peril is swift and imminent and the necessity for action immediate, the law does not weigh in too nice scales the conduct of the assailed and say he shall not be justified in killing because he might have resorted to other means to secure his safety.” (People v. Collins, supra, 189 Cal.App.2d at p. 589, citing People v. Hecker (1895) 109 Cal. 451, 467 [“Those cases where the assailed is not required to look to escape as an avenue of safety arise, as has been before discussed, where the peril is swift and imminent, and the necessity of action immediate. Therein the law does not weigh in too nice scales the conduct of the assailant, and say he shall not be justified because he might have resorted to other means to secure his safety. The suddenness of the attack puts him to the wall.”].) Thus, a jury that had been properly instructed that appellant had no duty to retreat, could reasonably have concluded that appellant acted in an actual and reasonable belief in the need to defend himself against an imminent danger of death or great bodily injury, and that he used no more force than was reasonably necessary under the circumstances.
We find the arguments of the parties significant in assessing the prejudicial effect of the trial court’s error. The prosecutor repeatedly exploited the instructional error by telling the jury that appellant was required to retreat, rather than use a gun. Defense counsel essentially agreed by repeating the prosecutor’s statement that appellant had a duty to retreat and arguing, alternatively, that appellant tried to retreat or retreat was impossible. Because the trial court never contradicted these arguments with a proper instruction informing the jury that appellant had the same right as anyone else to stand his ground or even pursue his assailant, the jury very likely believed counsels’ misstatement of the law. Under the circumstances, we cannot conclude trial court’s error was harmless beyond a reasonable doubt. Accordingly, we reverse.
Given this disposition, we need not address appellant’s remaining instructional error or the trial court’s refusal to issue a bench warrant for coroner’s examiner Cole.
2. Juvenile adjudication used as a strike prior
Appellant admitted the allegation that he had one prior serious or violent felony conviction within the scope of the Three Strikes Law, but expressly noted that it was a juvenile adjudication. The court imposed a second strike term for second degree murder and possession of a firearm.
Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny, appellant contends that use of his prior sustained juvenile petition to sentence him under the Three Strikes Law violated his federal constitutional rights to due process and a jury trial because he did not have a right to a jury trial in the juvenile court proceedings.
Appellant’s claim has no merit. Apprendi essentially requires any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum to be charged, submitted to a jury, and proved beyond a reasonable doubt. (530 U.S. at p. 490.) Appellant had a right to a jury trial on the truth of the strike allegations, but waived it. It is of no constitutional significance that he had no right to a jury trial in the prior juvenile proceedings. Apprendi is simply inapplicable in this context. (People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 821, 830-834.) For the reasons discussed extensively in Andrades, we reject appellant’s claim.
The same issue is currently pending before the California Supreme Court in People v. Nguyen (S154847), review granted October 10, 2007, in which the majority of the Court of Appeal found the use of a juvenile adjudication as a strike violated Apprendi.
DISPOSITION
The judgment is reversed and the cause remanded.
We concur: MALLANO, P. J., ROTHSCHILD, J.