Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF124796A. Michael B. Lewis, Judge
Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, and Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, A.P.J., Kane, J., and Poochigian, J.
Pursuant to a plea agreement, appellant Marlon Antoine Brown pled no contest to two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); counts 1, 2) and admitted an allegation that he had suffered a prior juvenile adjudication that qualified as a “strike.” The court imposed a prison term of eight years, consisting of the three-year midterm on count 1 plus one year on count 2, with each term doubled pursuant to the three strikes law (Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. (c)(1)).
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On appeal, appellant’s sole contention is that the use of his prior juvenile adjudication as a strike violates his right to a trial by jury and to due process under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. We will affirm.
Terms of the plea agreement included that appellant could challenge on appeal the constitutionality of the use of prior juvenile adjudication as a strike.
DISCUSSION
Appellant bases his argument chiefly on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). In that case, the United States Supreme Court held, “Other 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, italics added.) The court gave a variety of reasons for the prior conviction exception to the jury trial requirement for any fact used to increase the sentence for a felony conviction beyond the maximum term permitted by conviction of the charged offense alone, including, as our Supreme Court recently explained in People v. Nguyen (2009) 46 Cal.4th 1007, 1011 (Nguyen) the following: “prior convictions have been obtained in proceedings which themselves included substantial procedural protections, including proof beyond a reasonable doubt and the right to a jury trial.”
Appellant’s contention focuses on this principle. He argues that the three strikes law, by mandating increased sentences based on a prior juvenile adjudication, violated his constitutional right to trial by jury because the proceeding that led to that adjudication did not afford him the right to a jury trial. We disagree.
The California Supreme Court rejected this argument in Nguyen, which was decided after appellant filed his opening brief. There, the court held that “the absence of a constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi, preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person.” (Nguyen, supra, 46 Cal.4th at p. 1028.) The court first reasoned that the defendant’s claim did not come under the literal rule of Apprendi because that rule only requires that a jury in the current proceeding determine the existence of an alleged prior adjudication. (Id. at p. 1015.) Next, the court explained that prior juvenile adjudications substantially satisfy all the reasons why the court in Apprendi and related cases has concluded that prior convictions may be used to increase the maximum punishment for a subsequent adult offense without the need for jury findings in the later case. Like adult prior convictions, prior juvenile adjudications do not involve facts about the present offense that were withheld from a jury in the present case. Rather, they concern the defendant’s recidivism or status as a repeat offender, a basis on which courts acting without juries historically have imposed harsher sentences. Additionally, the prior criminal conduct comprising the recidivism was previously and reliably adjudicated in proceedings that included all the constitutional protections required for such proceedings. (Id. at p. 1021.) Thus, use of reliably obtained juvenile adjudications of past criminal conduct to enhance later adult criminal proceedings does not offend an adult defendant’s constitutional right to a jury trial in adult criminal proceedings. (Ibid.)
The Nguyen court summed it up this way: “[I]f the [juvenile offender] was not deterred, and thus reoffends as an adult, this recidivism is a highly rational basis for enhancing the sentence for the adult offense. So long as an accused adult is accorded his or her right to a jury trial in the adult proceeding as to all facts that influence the maximum permissible sentence, no reason appears why a constitutionally reliable prior adjudication of criminality, obtained pursuant to all procedural guarantees constitutionally due to the offender in the prior proceeding-specifically including the right to proof beyond a reasonable doubt-should not also be among the facts available for that sentencing purpose.” (Nguyen, supra, 46 Cal.4th at p. 1023.)
Thus, under Nguyen, there is no constitutional infirmity it imposing a three strikes law sentence based on appellant’s prior juvenile adjudication.
In his reply brief, appellant argues Nguyen was wrongly decided. However, we need not address this contention because as an intermediate appellate court we are bound to follow the decisions of this state’s highest court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant also claims, in an argument he asserts was not addressed in Nguyen, that increasing the sentence of an adult offender based on a prior juvenile adjudication runs counter to the “promise[]” contained in California law “to ameliorate … criminal conduct through both punishment and rehabilitative treatment,” a promise embodied in Welfare and Institutions Code section 203, which provides that a juvenile adjudication “shall not be deemed a conviction of a crime for any purpose....” Therefore, he argues, use of the juvenile prior as a strike “amounts to something akin to a bait-and-switch,” in “violat[ion] [of] the ‘fair notice’ due process guarantee” of the Fifth and Fourteenth Amendments to the United States Constitution. He bases this argument on Hicks v. Oklahoma (1980) 447 U.S. 343 (Hicks).
Hicks provides no support for appellant’s contention. In that case, the Oklahoma trial court instructed the jury in accordance with the recidivist statute then in effect that if it found Hicks guilty, it was required to impose a mandatory 40-year prison term. The jury returned a guilty verdict and imposed the mandatory term. (Hicks, supra, 447 U.S. at pp. 344-345.) Hicks unsuccessfully sought to have his sentence set aside after the Oklahoma Court of Criminal Appeals declared the mandatory 40-year sentence unconstitutional in another case. That court reasoned the unconstitutional statute did not prejudice Hicks because his sentence was within the range of punishment the jury could have imposed. The United States Supreme Court granted certiorari and vacated the judgment, ruling as follows: “Where[]... a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant’s interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion,... and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State.” (Id. at p. 346.)
As best we can determine, appellant likens himself to Hicks based on the claim that he (appellant) had a “substantial and legitimate expectation” (Hicks, supra, 447 U.S. at p. 346), based on California law, that his prior juvenile adjudication could not and would not be used in an adult criminal proceeding to increase his sentence. Whatever other defects there may be in this argument, it will suffice to note that the enactment of three strikes law, which by its terms is applicable “[n]otwithstanding any other law,” (Pen. Code, § 667, subd. (c)), ended whatever legitimate expectation appellant might have had that a prior juvenile adjudication could not adversely affect him in an adult criminal proceeding. The due process analysis in Hicks has no bearing on the instant case.
The version of the three strikes law set forth in Penal Code section 1170.12 provides, in substantively identical language, that its provisions apply “[n]otwithstanding any other provision of law....”
DISPOSITION
The judgment is affirmed.