Opinion
Santa Clara County Super. Ct. No. CC651540
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
Defendant Edward Gutierrez was convicted after jury trial of two counts of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)), one count of assault with a deadly weapon (§ 245, subd. (a)(1)), one count of vandalism (§ 594, subds. (a), (b)(1)), one count of possession of a billy club (§ 12020, subd. (a)(1)), and one count of misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). As to one of the burglary counts, the jury found true the allegations that a person other than an accomplice was present in the residence at the time of the burglary (§ 667.5, subd. (c)(21)) and that defendant personally used a deadly and dangerous weapon, a billy club (§ 12022, subd. (b)(1)). Regarding the count for vandalism, the jury found true the allegation that there was $400 or more in damage. In a bifurcated proceeding, the court found true the allegations that defendant had three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and three prison priors (§ 667.5, subd. (b)). After the court struck two of defendant’s three strikes, including a strike that was based on a juvenile adjudication, defendant was sentenced to 27 years and four months in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court’s finding that his prior juvenile adjudication constituted a strike violated the Sixth and Fourteenth Amendments of the United States Constitution because he was not convicted of the juvenile prior by a jury.
Defendant’s argument must be rejected in light of the recent decision by the California Supreme Court in People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen), which is controlling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, after correcting clerical errors, we will affirm the judgment as modified.
The trial court orally imposed a court security fee of $100, reflecting defendant’s five felony convictions, and orally imposed an additional $20 court security fee for defendant’s misdemeanor conviction, for a total of $120. The abstract of judgment, however, only reflects a court security fee of $100. The trial court also orally imposed an AIDS education fee not to exceed $70, but that fee is not reflected in the abstract of judgment. We will order the abstract amended accordingly to include these amounts.
II. FACTUAL AND PROCEDURAL BACKGROUND
On April 28, 2008, defendant was charged by second amended information with two counts of first degree burglary (§§ 459, 460, subd. (a); counts 1 & 3), one count of assault with a deadly weapon, a billy club (§ 245, subd. (a)(1); count 2), two counts of vandalism causing $400 or more in damage (§ 594, subds. (a), (b)(1); counts 4 & 5), one count of possession of a billy club (§ 12020, subd. (a)(1); count 6), and one count of misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); count 7). The information also alleged that as to one of the burglary counts (count 1), a person other than an accomplice was present in the residence at the time of the burglary (§ 667.5, subd. (c)(21)) and defendant personally used a deadly and dangerous weapon, a billy club (§ 12022, subd. (b)(1)). The information further alleged that defendant had three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), one of which was based on a juvenile adjudication for robbery (§ 211), two prior serious felony convictions (§ 667, subd. (a)), and had served three prior prison terms (§ 667.5, subd. (b)).
The Trial Evidence
The evidence at defendant’s jury trial revealed the following.
On December 14, 2006, about 12:30 or 1:00 a.m., defendant entered Nicacio Hernandez’s home with a baseball bat on his shoulder. Hernandez did not know defendant, but was able to identify him later. Defendant hit Hernandez on the back of the head with a “very hard” “blow,” causing Hernandez to fall to the ground.
Juan Jimenez Rosas lived on the same street as Hernandez. On December 14, 2006, about 12:30 a.m., Rosas and his roommate came home and discovered their front door open. They had previously locked the door before leaving. Items inside the residence had been disturbed. A bottle of water was empty, the microwave was open, a coffee can had been emptied on the floor, a speaker and a vanity were broken, all the lights were on, clothing had been taken out from drawers, and a mattress was moved from the bed. Rosas later discovered that his Kodak camera was missing. At some point, an officer showed Rosas a camera, and it was the one that was missing from his house.
On December 14, 2006, about 12:45 a.m., Anthony Garcia was awoken by pounding on the door. He saw someone, who he later identified as defendant, in front of his house. Garcia’s fiancée, Susan Crisham, called the police. Garcia heard “a bunch of bashing and smashing” and then heard the alarm on Crisham’s Acura Vigor, which was parked in front of their carport. Garcia saw defendant hit the car with an object and then run off. There was a flower pot in the vehicle’s windshield, which was broken in two places, there was damage to the hood, which had a broken pot on it, and there was damage to the front fender. The total amount of damage to the vehicle was $995.22.
On December 14, 2006, about 12:45 a.m., Santa Clara County Deputy Sheriff Steve Gorshe responded to the vandalism call at the Garcia and Crisham residence. While at that location, Deputy Sheriff Gorshe received a call concerning a man matching the description that had been provided by Garcia. Defendant was eventually located in a backyard that was a few houses down and around the corner from the Garcia and Crisham residence. A billy club was found where defendant had been standing in the backyard. The club looked like a “table leg drilled out with some duct tape.”
Based on defendant’s behavior, including sweating profusely in the cold, smacking his lips, and being agitated and fidgety, Deputy Sheriff Gorshe believed that defendant might be under the influence of a stimulant. Sergeant Nuno Ribeiro of the Santa Clara County Sheriff’s Department also observed defendant on December 14, 2006, and found him to have the “classic symptoms of being under the influence of [a] stimulant,” including dilated pupils, “watery eyelids,” profuse sweating, and fidgeting.
The Santa Clara County Sheriff’s Office conducted a search of defendant’s residence, which was near Rosas’s residence. Rosas’s Kodak camera was found inside defendant’s backpack at defendant’s residence.
Alice King, a supervising criminalist with the Santa Clara County Crime Laboratory, testified that defendant’s blood tested positive for methamphetamine and amphetamine. She explained that methamphetamine is a stimulant. Within hours of consuming it, a person’s blood pressure and body temperature will “go up,” and the person tends to sweat, have dilated pupils, and be very agitated and talkative. As time passes, a person may experience paranoia and hallucination.
The Verdicts, Findings on the Priors, and Sentencing
During the jury trial on the charged crimes, and outside the jury’s presence, defendant waived his right to a jury trial on the prior allegations. The court trial was held on May 5, 2008. The prosecutor presented documentary evidence in support of the prior allegations, including the prior juvenile adjudication that was alleged as one of defendant’s three strikes. Defense counsel argued that the juvenile adjudication should not qualify as a strike because defendant was denied a right to a jury trial in the juvenile proceeding, and he objected based on state and federal due process grounds. The court took the matter under submission.
On May 7, 2008, the jury found defendant guilty of two counts of first degree burglary (§§ 459, 460, subd. (a); counts 1 & 3), one count of assault with a deadly weapon (§ 245, subd. (a)(1); count 2), one count of vandalism (§ 594, subds. (a), (b)(1); count 4), one count of possession of a billy club (§ 12020, subd. (a)(1); count 6), and one count of misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); count 7). As to count 1 for burglary, the jury found true the allegations that a person other than an accomplice was present in the residence at the time of the burglary (§ 667.5, subd. (c)(21)) and that defendant personally used a deadly and dangerous weapon, a billy club (§ 12022, subd. (b)(1)). Regarding the charge of vandalism in count 4, the jury found true the allegation that there was $400 or more in damage. Defendant was found not guilty of the vandalism charged in count 5 (§ 594, subds. (a), (b)(1)).
On May 8, 2008, the trial court found true the allegations that defendant had three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), one of which was based on a juvenile adjudication. The court also found true the allegations that defendant had two prior serious felony convictions (§ 667, subd. (a)) and three prison priors (§ 667.5, subd. (b)).
In August 2008, defendant filed a motion pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to strike the strikes. The People filed opposition.
On September 5, 2008, a hearing was held on defendant’s Romero motion. Two individuals, a friend and a family member of defendant, addressed the court, and the court heard argument from defense counsel. Following an unreported, in-chambers conference with counsel, the court indicated that the hearing would be continued. The court explained that the probation department had recommended that defendant be sentenced “under the Three Strikes law to over a hundred years,” and the court did not have “a really good reason not to do this.” The court observed that defendant had been given chances before, yet he was back in court again, and it questioned why it should “allow other people to be at risk because [defendant] can’t figure it out.” The court wanted to consider the matter further, and it wanted defendant to “think about it” and to provide something in writing to the court, if he had “something to say.”
The continued hearing on defendant’s Romero motion was held on September 19, 2008. The trial court indicated that it had received an eight page letter from defendant. After hearing argument from counsel, the court explained its decision to strike some, but not all, of defendant’s strikes. The court stated: “I’m glad you wrote the letter because the letter to me is a little bit more consistent with the way the friends and family describe you, and I hadn’t see that. But the letter does express some remorse. It does express some concern about the fact that you victimized people and that you’d hurt people. And you hurt your family, and you hurt your friends. And it provided me with something where I can say, you know what, it’s probably appropriate not to send this person to prison for the rest of their life. [¶]... [¶]
“The reason I’m not going to strike all the strikes are because not only did I sit through a pretty horrendous trial, but I do want to note that there have been previous times when the court could have imposed life sentences on you. One time where the district attorney took it upon themselves not to charge you with a felony, which would have resulted in a life sentence because they saw something that they didn’t believe was a life sentence type of exposure.
“And then there was a time when you were in front of a different judge and you were looking at a life sentence and that judge looked at you and probably read letters that were in the file and said, I’m striking priors and I’m not going to send this person to prison.
“Unfortunately what happened after those two huge breaks is this case.... [T]his is not a case where you decided just to get high and you didn’t hurt anybody. This is a case where you got high and you went on a rampage and you hurt people, and you broke into their houses and you vandalized their things. And for that reason... I’m just not willing to strike all the prior convictions. And even if I did that, you’d still be going to prison for a long time.
“But like I said at some point a judge needs to be more concerned with people who are out there living lives, decent lives, obeying the law, sitting in their living rooms watching TV at night; I’ve got to be more concerned with their safety and less concerned with your life.... I’m not going to send you to prison for the rest of your life.
“I hope you get out at some point. I hope you get your drug problem under control. It is obvious to me from the letters that I’ve gotten from everybody that you are a person that can contribute to our community and have done so, and I hope you are going to be in a position both in prison and when you get out to do it in the future.
“And it doesn’t make me feel good to give you this long prison sentence but it’s something that, number one, you’ve earned;
“and number two, the way it’s charged I don’t have a whole lot of discretion.”
The court struck two of defendant’s three strikes, including the strike that was based on a juvenile adjudication. The court explained that “they’re approximately 25 years old,” defendant’s crimes “were decreasing in seriousness, at least until this last episode,” and defendant had expressed remorse in a letter to the court. The court explained that defendant would be sentenced pursuant to the Three Strikes law.
The trial court ultimately sentenced defendant to 27 years and four months in prison as follows: for count 1, a term of nine years (the midterm doubled plus one year pursuant to section 12022, subdivision (b)(1)); for count 2, a concurrent term of six years (the midterm doubled); for count 3, a consecutive term of two years and eight months (one-third the midterm, doubled); for count 4, a consecutive term of one year and four months (one-third the midterm, doubled); for count 6, a consecutive term of one year and four months (one-third the midterm, doubled); a consecutive term of 10 years for the prior serious felony convictions (a five-year term for each of the two prior serious felony convictions); and a consecutive term of three years for the prison priors (a one-year term for each of the three prison priors). Defendant was granted a total of 761 days of custody credits. Regarding count 7, misdemeanor being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)), defendant was ordered to serve 90 days in county jail, with 90 days credit. The court made a general order of restitution and ordered defendant to pay various fines and fees, including a court security fee totaling $120 and an AIDS education fee not to exceed $70.
Defendant filed a timely notice of appeal on October 1, 2008.
III. DISCUSSION
On appeal, defendant contends that “the trial court’s finding that [his] juvenile conviction constituted a strike violated [his] right to be convicted by a jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.” Defendant asserts that his case “must be remanded to permit the trial court to reconsider its sentencing decision,” because it was “predicated on the erroneous legal conclusion that [he] had suffered three strike prior convictions when in reality he had only suffered two.”
At the time he filed his opening brief on appeal, defendant recognized that the issue was pending before the California Supreme Court. He explained that he was raising the issue “to preserve his claim” pending a decision by the California Supreme Court.
The Attorney General argues that a prior juvenile adjudication is properly considered a strike. The Attorney General also contends that defendant’s “claim is moot in light of the trial court’s dismissal of the juvenile prior.” The Attorney General asserts that “the court’s sentencing decision rested not on any mistake on the number of valid prior strikes [defendant] suffered, but on the ‘horrendous’ facts of this case, the fact that the strikes were dismissed in a previous case and [defendant] reoffended, and the fact that [defendant] ‘earned’ a long prison sentence.”
In reply, defendant contends that the trial court’s “erroneous belief that [his] juvenile prior was a strike formed a part of the trial court’s overall evaluation of [his] record,” and “[t]he case should be remanded to permit re-sentencing in light of an accurate overall view of the nature of [his] record.”
During the pendency of defendant’s appeal, the California Supreme Court concluded in Nguyen, supra, 46 Cal.4th at page 1010 that the federal constitution allows the use of a prior juvenile adjudication as a strike under the Three Strikes law, even though there was no right to a jury trial in the juvenile proceeding. We asked the parties for supplemental briefing concerning whether, to the extent the trial court considered defendant’s prior juvenile adjudication in sentencing him, the issue now being raised by defendant is moot.
In supplemental briefing, defendant argues that his appeal is not moot. He acknowledges that his claim concerning the use of a juvenile adjudication as a strike has been resolved against him in view of Nguyen, but he contends that the United States Supreme Court may overturn Nguyen. He maintains that “ ‘mootness’ is a doctrine that is applied when it is factually impossible to grant relief, not when it is legally impossible.” According to defendant, “there is no factual reason barring this Court from granting [his] appeal,” rather “this Court cannot legally grant [his] relief because the intervening Nguyen decision, which this Court must follow, prevents it from doing so.”
The Attorney General continues to argue that defendant’s “conclusion that his sentence was adversely affected” by the trial court’s “erroneous consideration” of his prior juvenile adjudication as a strike “is moot,” but the Attorney General’s supplemental brief concludes with the following statement: “Of course, technical mootness aside, Nguyen requires rejection of [defendant’s] claim on the merits.”
Because defendant has requested that we address the merits of his argument concerning the use of a juvenile adjudication as a strike, and in view of the Attorney General’s statement that “Nguyen requires rejection of [defendant’s] claim on the merits,” we will consider the merits of defendant’s argument on appeal even if it is technically moot, as the Attorney General has argued, due to the trial court striking the strike that was based on defendant’s juvenile adjudication.
As we have stated, the California Supreme Court recently concluded in Nguyen, supra, 46 Cal.4th at page 1010 that the federal constitution allows the use of a prior juvenile adjudication as a strike under the Three Strikes law, even though there was no right to a jury trial in the juvenile proceeding. Based on Nguyen, we therefore reject defendant’s contention that the trial court’s finding that his prior juvenile adjudication constituted a strike violated his jury-trial right under the federal constitution. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
IV. DISPOSITION
The abstract of judgment is ordered amended to state that the court security fee is $120, rather than $100, and to state that defendant shall pay an AIDS education fee not to exceed $70. In addition, the drug program fee of $150 and penalty assessment of $367.50 are ordered stricken from the abstract of judgment. As so modified, the judgment is affirmed. The clerk of the superior court shall modify the abstract of judgment as ordered herein and forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: MCADAMS, J., DUFFY, J.
We also observe that the abstract of judgment refers to a drug program fee of $150 pursuant to Health and Safety Code section 11372.7, subdivision (a), plus a penalty assessment of $367.50. The court did not orally impose a drug program fee and it is not mandatory. We will order the drug program fee and penalty assessment stricken from the abstract of judgment.