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People v. Delouth

California Court of Appeals, Fifth District
Jul 15, 2008
No. F053791 (Cal. Ct. App. Jul. 15, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No. BF116974A, Arthur E. Wallace, Judge.

Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Ardaiz, P.J., Gomes, J. and Dawson, J.

On December 15, 2006, the Kern County District Attorney filed an information charging appellant Leon Ray Delouth, Jr. in count 1 with attempted murder (Pen. Code, §§ 187, 664) with personal use of a firearm (Pen. Code, § 12022.53, subd. (b)); in count 2 with attempted murder; in count 3 with discharging a firearm with gross negligence (Pen. Code, § 246.3); in count 4 with possession of a controlled substance for sale (Health & Saf. Code, § 11351.5); in count 5 with failure to register as a sex offender (Pen. Code, § 290, subd. (a)(1)(D)); and in count 6 with possession of a firearm by a person who had suffered a juvenile adjudication for a prior violent offense (Pen. Code, § 12021.1, subd. (c)). It was further alleged as to all counts that Delouth had previously committed first degree robbery, (Pen. Code, § 212.5, subd. (b)), a serious and violent felony, (Pen. Code, §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and had served a prior prison term (Pen. Code, § 667.5, subd. (b)).

Pursuant to a negotiated plea bargain, Delouth entered a plea of no contest to count 4 and admitted the allegation that he had previously committed a serious and violent felony. In exchange, the remaining counts were dismissed. Before sentencing, Delouth filed a motion to strike the allegation that he had previously committed a serious and violent felony within the meaning of the three strikes law, on the ground that the offense was a juvenile adjudication. The court denied the motion to strike, and imposed the mitigated term of three years in state prison, doubled pursuant to Penal Code section 667, subdivision (e)(1), for a total of six years.

On appeal, Delouth contends that his prior juvenile adjudication may not serve as a strike because he was not afforded the right to a jury trial in the juvenile wardship proceeding. We disagree and will affirm the judgment.

FACTS

The facts of the offenses are not relevant to the issue on appeal and those related to the admitted count will be summarized briefly. The police went to Delouth’s residence to do a parole search. They found the front door open and saw Delouth and three others inside the residence. Delouth began manipulating items in his waistband. The police feared that Delouth may have been reaching for a firearm and ordered him to stand up, at which point they saw cocaine on Delouth’s pants. The police discovered more cocaine in Delouth’s hands and also found currency on his person in several denominations.

DISCUSSION

A prior juvenile adjudication may serve as a strike.

The People assert several procedural bars to Delouth’s claim of error. First, the People submit that Delouth is estopped from challenging the sentence imposed because he accepted it as part of a negotiated plea bargain. We agree. Delouth, facing the possibility of a life term in prison, negotiated for the benefit of a six-year term, which included the admission of the prior adjudication as a strike. Because he received the benefit of this bargain, he waived the right to challenge this sentence. (People v. Cepeda (1996) 49 Cal.App.4th 1235, 1239.) As People v. Nguyen (1993) 13 Cal.App.4th 114 explained:

“Where defendants have pleaded guilty in return for a specified sentence, appellate courts are not inclined to find error even though the trial court acts in excess of jurisdiction in reaching that figure, as long as the court does not lack fundamental jurisdiction. [Citations.] The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to ‘trifle with the courts’ by attempting to better the bargain through the appellate process.” (People v. Nguyen, supra, 13 Cal.App.4th at pp. 122-123.)

People v. Collins (1978) 21 Cal.3d 208, which Delouth cites, is distinguishable. In Collins, the conduct that the defendant admitted pursuant to the plea was subsequently decriminalized. Conversely, under current law as set forth below, Delouth’s juvenile adjudication may be used as a strike to enhance his sentence.

We need not consider the remaining procedural bars the People assert because, in any event, the challenge fails on the merits.

Delouth contends a prior juvenile adjudication may not subject him to the provisions of the three strikes law because there is no right to a jury trial in juvenile wardship proceedings. He relies on People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007, S154847, and U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187, to support his contention. Delouth’s argument ignores the case law which holds that a prior juvenile adjudication may serve as a strike even though there was no right to a jury trial. (See, e.g., People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Fowler (1999) 72 Cal.App.4th 581, 587; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 825-835.) Moreover, this court and other California courts have found Tighe unpersuasive. (People v. Buchanan, supra, at p. 149; People v. Bowden (2002) 102 Cal.App.4th 387, 393.) Therefore, the trial court did not err in using Delouth’s prior juvenile adjudication as a strike prior to enhance his sentence.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Delouth

California Court of Appeals, Fifth District
Jul 15, 2008
No. F053791 (Cal. Ct. App. Jul. 15, 2008)
Case details for

People v. Delouth

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LEON RAY DELOUTH, JR., Defendant…

Court:California Court of Appeals, Fifth District

Date published: Jul 15, 2008

Citations

No. F053791 (Cal. Ct. App. Jul. 15, 2008)