Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, John L. Martinez, Judge., Los Angeles County Super. Ct. No. BA293852.
Susan Cardine, 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, Lawrence M. Daniels and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Davond Gordon appeals from the judgment entered following a jury trial in which he was convicted of selling a controlled substance, heroin (Health & Saf. Code, § 11352, subd. (a)) and his admission that he suffered a prior conviction or juvenile adjudication of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)) and a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a). He was sentenced to prison for the middle term of four years, doubled by reason of the strike conviction, for a total of eight years. He contends increasing the punishment based upon a prior juvenile adjudication violates the Sixth Amendment right to a jury trial. He also requests that this court review the sealed transcript of the Pitchess motion. For reasons stated in the opinion we affirm the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL AND PROCEDURAL SUMMARY
On November 22, 2005 at approximately 5:00 p.m., Los Angeles Police Officer George Mejia was working at an observation post in the area of 7th Street and San Julian Street in Los Angeles. Using binoculars, he saw an individual, “Mr. King,” approach appellant and engage in a conversation. King put his hand into his right pants pocket, removed green currency and handed it to appellant. Appellant accepted the currency and placed it in his pocket. Appellant then reached into the front pocket of his hooded sweatshirt, removed something and handed it to King. King looked down at the item that was in his hand and Officer Mejia observed that King was holding a red, small toy balloon. Officer Mejia knew that red toy balloons are a common way in which tar heroin is packaged and sold in the area. King clenched his fist and began walking southbound on San Julian Street. Officer Mejia advised his partner, Officer Singh, to call the arresting officers and detain King and appellant. As King walked southbound and just prior to being detained, he made a tossing motion with his right hand. Officer Mejia observed other officers detain appellant and King.
The red balloon was recovered and later determined to contain heroin. Following appellant’s arrest, he was searched and $377 in cash was recovered from his front pants pocket.
DISCUSSION
I
Appellant contends increasing his punishment based upon a prior juvenile adjudication violates his Sixth Amendment right to a jury trial. He claims that while under certain circumstances the Three Strikes law allows a juvenile adjudication to be used as a strike, constitutional concerns are raised in light of Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296. Appellant notes that Apprendi held that except for the fact of a prior conviction, any fact used to increase a criminal defendant’s prison sentence must be pleaded and proven beyond a reasonable doubt. Appellant argues that because appellant was not entitled to a jury trial at the juvenile court adjudication, the exception of Apprendi does not apply. (See U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187.) Appellant acknowledges this argument has been rejected by this court as well as other California appellate courts and circuit courts.
In People v. Bowden (2002) 102 Cal.App.4th 387, this court rejected the argument raised by appellant and stated Apprendi and Tighe had no direct application. “In both of those cases the fact that increased the defendant’s sentence above the statutory maximum was not tried or proved by the usual criminal standards in the trial of the current case, but was a factual finding solely by a sentencing judge ostensibly as a sentencing consideration. This is not at all like proof of a strike under California’s Three Strikes law. Under the Three Strikes law a qualifying prior conviction must, in the current case, be pleaded and proved [citation], beyond a reasonable doubt [citations], and the defendant has a statutory right to a jury trial, at least on the issue whether the defendant suffered the prior conviction. [Citations.] Because the context is so different, Apprendi and Tighe do not apply here.” (People v. Bowden, supra, 102 Cal.App.4th at pp. 392-393; see also People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 833-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1314-1315; People v. Smith (2003) 110 Cal.App.4th 1072, 1077-1078; People v. Fowler (1999) 72 Cal.App.4th 581, 585-586.)
Review was granted on October 10, 2007, in People v. Nguyen (2007) 152 Cal.App.4th 1205, a case upon which appellant relies.
II
Prior to trial, appellant brought a Pitchess motion requesting personnel records of the officers who observed the alleged drug sales and who arrested him. Appellant alleged these officers were “lying and framing him.” The court granted the Pitchess motion as to the officer who made the observation relative to “false reporting.” At appellant’s request, this court has reviewed the sealed transcript of the in camera hearing and finds the trial court properly turned over all relevant discoverable evidence. (See Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024; People v. Mooc (2001) 26 Cal.4th 1216, 1232.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.