Opinion
F060596 Super. Ct. No. BF131503A
08-16-2011
THE PEOPLE, Plaintiff and Respondent, v. BOUNTHAN SEE, Defendant and Appellant.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
On appeal, defendant Bounthan See argues that using his prior juvenile criminal adjudication as a "strike" to enhance his sentence violates the Fifth, Sixth, and Fourteenth Amendments of the federal Constitution. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
On May 27, 2010, the district attorney filed an amended three-count information charging See with (1) battery resulting in serious bodily injury (Pen. Code, § 243, subd. (d)); (2) assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)); and (3) carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)). With respect to all counts, it was alleged that See had five prior felony offenses within the meaning of sections 667 and 1170.12. The alleged prior convictions were all adjudicated in juvenile court.
Subsequent statutory references are to the Penal Code.
On June 8, 2010, See entered a plea of no contest to count 2 and admitted the five prior felony convictions. The remaining counts were dismissed. The plea form See signed provided that he preserved for appeal the issue of the use of juvenile court convictions as "strikes." The court struck four of the five prior convictions for purposes of sentencing and imposed a middle term of six years in prison.
DISCUSSION
See's only argument on appeal is that the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as construed by Apprendi v. New Jersey (2000) 530 U.S. 466, bar the use of a prior juvenile criminal adjudication to enhance See's sentence in the current adult criminal proceeding. As See acknowledges, however, our Supreme Court has rejected this argument in People v. Nguyen (2009) 46 Cal.4th 1007, 1014, 1025. Since our Supreme Court's decision is binding on this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we must affirm the judgment.
DISPOSITION
The judgment is affirmed.