Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIF128721, RIF142291 & RIF129913, Bernard Schwartz, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut J.
In three separate criminal proceedings, defendant, Barry Dean Gutierrez, was convicted of unlawful taking of an automobile (Veh. Code, § 10851, subd. (a)), and separate offenses of possessing a sharp instrument in a penal institution (Pen. Code, § 4502, subd. (a).) Two of the three cases (RIF128721, RIF129913) alleged two Strike allegations based on juvenile adjudications, and a prison prior enhancement, while the third case (RIF142291) alleged only one Strike and two prison priors. In RIF129913, the court struck the two Strikes. In RIF142291, the defendant pled guilty and admitted one Strike and two prison priors. In RIF128721, the two Strikes were found true, along with a prison prior, and defendant was sentenced to a term of 25 years to life plus one year for the prison prior, with consecutive terms of two years each for the other cases.
On appeal, defendant asserts (1) use of his two prior juvenile adjudications as Strikes violated his constitutional rights to due process and jury trial, (2) the evidence is insufficient to establish that his prior juvenile adjudications qualify as Strikes, and (3) the trial court abused its discretion in denying his motion to dismiss his strike. We disagree.
BACKGROUND
A detailed recitation of the underlying facts of the individual cases is not pertinent to the issues on appeal. It suffices to summarize the events as follows:
Case No. RIF128721
On February 24, 2006, before 4:00 a.m., G. Lopez went outside to start his girlfriend’s car. He started the car and went back into the residence to wait for his girlfriend to finish getting ready for work. Shortly after that, his girlfriend announced she was leaving for work and exited the residence, only to reenter immediately, saying that her car was gone. Lopez noticed a bike was there.
Lopez and his girlfriend located the Lo Jack card for the vehicle and contacted police. Officer Melendez responded to the call but before reaching Lopez’s residence, dispatch informed him that the vehicle was equipped with the Lo Jack system, so he activated it. The signal led the officer to the car’s location. The vehicle was unoccupied when the officer found it, but he thought he saw a person at the rear of the residence where the car was parked. When backup officers arrived, the residence was searched and the defendant was found in a bedroom and arrested.
On October 17, 2006, defendant was charged with the unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a), count 1), and receiving stolen property (the car). (Pen. Code, § 496, subd. (a), count 2.) The information also alleged defendant had previously been convicted of a felony for which he had served a prison term (prison prior) (Pen. Code, § 667.5, subd. (b)), as well as two prior serious or violent felony adjudications under the Strikes law. (Pen. Code, § 667, subds. (c), (d)(3), (e)(2).)
On April 17, 2008, after a bifurcated trial, defendant was convicted of count 1 and acquitted on count 2 by a jury. Following a court trial, the prison prior and the two Strike allegations were found to be true. At sentencing, defendant’s Romero motion (per People v. Superior Court (Romero) (1996) 13 Cal.4th 497) was denied and he was sentenced to state prison for the indeterminate term of 25 years to life for count 1, plus one year for the prison prior, for a total term of 26 years to life. On June 3, 2008, defendant appealed.
Case No. RIF129913
Defendant was detained at Robert Presley Detention Center on the automobile-taking charges. On April 19, 2006, during a routine search of cells and inmates, deputy sheriff Wells conducted the search of defendant. Defendant was instructed to strip down to his boxers and was then escorted into the hallway where defendant was instructed to face the wall, putting his hands behind his head, with fingers interlocking, and putting his elbows on the wall. The deputy searched the waistband of defendant’s underwear and noticed toilet paper protruding from his buttocks. The deputy continued his search using the blade of his hand, going up between the buttock cheeks and felt a hard object, a shank wrapped in toilet paper, which was removed.
On October 17, 2006, defendant was charged with possession of a sharp instrument while confined in a penal institution. (Pen. Code, § 4502, subd. (a).) The information also alleged the same two Strikes at issue in case No. RIF128721. (Pen. Code, § 667, subds. (c), (d)(3), (e)(2).) On October 1, 2007, following a jury trial on the substantive count, defendant was convicted of the charge. Defendant made a motion to strike the Strike allegations on the ground the juvenile priors did not qualify as strikes, which was denied on October 5, 2007. Following a court trial, the two Strike allegations were found to be true. However, on February 8, 2008, the court exercised its discretion to dismiss one of the Strikes. (Pen. Code, § 1385.)
On May 28, 2008, defendant was sentenced to two years on this case, which was ordered to run consecutive to the term imposed in case No. RIF128721. On June 3, 2008, defendant appealed.
Case No. RIF142291
Because defendant pled guilty, little background is available about this offense. The complaint alleged that defendant possessed a sharp instrument while confined in Robert Presley Detention Center on September 12, 2007, while awaiting trial on case Nos. RIF128721 and RIF 129913. (Pen. Code, § 4502, subd. (a).) It also alleged two prison priors (Pen. Code, § 667.5, subd. (b)), and one Strike. (Pen. Code, § 667, subds. (c), (e)(1).) Defendant pled guilty at the time of his arraignment on the complaint, and admitted the prison priors as well as the Strike, in return for a stipulated sentence of eight years in state prison.
Defendant was originally sentenced to the eight-year term pursuant to the agreement at the time of the plea, but on May 28, 2008, after the trial on the priors in case No. RIF128721, the sentence on case No. RIF 142291 was vacated. The court imposed one-third the midterm (three years, doubled to six years due to the Strike), or two years for the substantive charge, and struck the enhancements for the prison priors. The modified two-year term was ordered to run consecutive to case No. RIF128721. Defendant filed a timely notice of appeal.
DISCUSSION
The sole issues presented in this appeal relate to defendant’s sentence under the Three Strikes law.
1. Defendant’s constitutional rights were not violated by using his prior juvenile adjudications to impose a sentence under the Three Strikes law.
Defendant contends that because juveniles are not entitled to a jury trial, use of prior juvenile court adjudications to increase his sentence beyond the statutory maximum violates his rights to a trial by jury and due process of law. This was resolved by the recent opinion of the California Supreme Court in People v. Nguyen (2009) 46 Cal.4th 1007, holding that a juvenile adjudication can be used to increase a sentence under the Strikes law. (Id. at pp. 1010, 1019, 1028.)
The United States Supreme Court has held that “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. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].) Defendant relies on United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, which held that juvenile adjudications could not be used to enhance an adult offender’s sentence. However, that authority is not persuasive and has been rejected by a number of other courts. (See People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 831-834 [discussing the treatment of Tighe in subsequent decisions].) In light of the recent holding of Nguyen, there was no error in the court’s use of the juvenile adjudications as Strikes in this case.
2. There is substantial evidence to support the finding that the prior convictions qualified as Strikes.
Defendant argues there was insufficient evidence to support the finding that the two juvenile adjudications constituted strikes. In support of his position, defendant argues that (a) under the least adjudicated elements test, a conviction for assault with a deadly weapon without proof that a deadly or dangerous weapon was personally used does not qualify as a strike; (b) the prior adjudication for carjacking does not qualify as a strike without evidence that defendant used a weapon; and (c) the fact defendant admitted the strike allegation relating to the carjacking adjudication in another criminal case does not establish that the adjudication qualified as a strike.
3. Admissibility of Defendant’s Admission of the Strike Allegation in Another Case
When he pled guilty in case No. RIF142291, the defendant admitted the strike allegation relating to the carjacking adjudication pursuant to a plea bargain. In the court trial on the priors in case No. RIF128721, the prosecution introduced evidence that in RIF142291, defendant admitted the Strike allegation. Defendant argues it was prejudicial error to admit this evidence to prove the truth of the Strike allegation. We agree it was error, but find it was harmless.
A plea of guilty may be admissible in a subsequent civil action on the independent ground that it is an admission (Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 605-606), but an admission of an allegation pursuant to a plea agreement does not qualify as an admission. An admission is defined as an extrajudicial recital of facts by the defendant that tends to establish his guilt when considered with the remaining evidence in the case. (People v. Brackett (1991) 229 Cal.App.3d 13, 19.) The admission in question in this case was not an “extrajudicial statement.”
An admission of guilt pursuant to a plea bargain does not necessarily tend to establish guilt, since a person may plead guilty or admit an enhancement or other special allegation as a result of a compromise of the parties (plea bargain), rather than as an expression of guilt. (People v. Camp (1970) 10 Cal.App.3d 651, 653, 654.) Of course, the prior conviction is admissible for impeachment, should the defendant take the witness stand. (Evid. Code, § 788.) But that did not occur here.
An admission accompanying a guilty plea is therefore not res judicata, and a defendant is not collaterally estopped to deny the matter in a subsequent proceeding, any more than the dismissal or order striking such an allegation in one case precludes the People from alleging the same matter in a subsequent proceeding. (See People v. Rice (1988) 200 Cal.App.3d 647, 654.) After all, the increased penalty for a prior is attributable solely to the new, rather than the former, crime, requiring the People to plead and prove the prior conviction in any new criminal prosecution. (See People v. Monge (1997) 16 Cal.4th 826, 839, affirmed by Monge v. California (1998) 524 U.S. 721 [118 S.Ct. 2246, 141 L.Ed.2d 615], citing Rice, supra, at pp. 654-656.)
However, the error does not warrant reversal. The improper introduction of an admission does not require reversal unless the defendant can show that a different result would have been achieved in the absence of the error. (People v. Lewis (2008) 43 Cal.4th 415, 499, 500; People v. Watson (1956) 46 Cal.2d 818, 836.) The People did not rely exclusively on the defendant’s judicial admission of the allegation. Documentary evidence was admitted showing the juvenile court had sustained the petitions relating to both prior serious felonies and establishing that both crimes qualified as Strikes. Any error was harmless.
b. Whether the Juvenile Priors Qualify as Strikes.
The defendant claims there is insufficient evidence that his juvenile adjudications qualify as Strikes. We disagree.
A prior juvenile adjudication constitutes a prior felony conviction under the Strikes law if: (A) The juvenile was 16 years of age or older at the time he or she committed the prior offense; (B) The prior offense is listed in subdivision (b) of section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a felony; (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law; and (D) The juvenile was adjudged a ward of the juvenile court within the meaning of section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of section 707 of the Welfare and Institutions Code. (Pen. Code, § 667, subd. (d)(3).)
During the court trial relating to the Strike allegations, the court reviewed the contents of the juvenile court file relating to defendant’s prior adjudications. (Case No. J90638). The carjacking petition and adjudication included a true finding that the defendant had been armed with a deadly or dangerous weapon. (Pen. Code, § 12022, subd. (b).) The offense of carjacking while armed with a dangerous or deadly weapon, is listed in Welfare and Institutions Code, section 707, subdivision (b)(25). The carjacking prior thus qualified as a Strike. (Pen. Code, § 667, subd. (d)(3)(B).)
The trial court ordered a transfer of defendant’s juvenile court file, J90638, and took judicial notice of that file to determine whether the carjacking and aggravated assault adjudications involved a weapon. We have reviewed the juvenile court file as well, and take judicial notice of its contents. (Evid. Code, §§ 452, subd. (d), 459.)
Regarding the assault with a deadly weapon Strike, an assault by means of force likely to produce great bodily injury, is included in Welfare and Institutions Code section 707, subdivision (b), although it would not necessarily qualify as a Strike. (People v. Rodriguez (1998) 17 Cal.4th 253, 261.) However, for purposes of Welfare and Institutions Code section 707, subdivision (b), an assault by means of force likely to produce great bodily injury includes the offense of assault with a deadly weapon. (In re Sim J. (1995) 38 Cal.App.4th 94, 97-98.) The words “with a deadly weapon or instrument” in subdivision (a) of Penal Code section 245, simply describes one of the many possible “means of force likely to produce great bodily injury.” (See In re Pedro C. (1989) 215 Cal.App.3d 174, 182-183.)
Here, the juvenile court found the offenses committed in both petitions were section 707, subdivision (b) offenses. The petition filed on April 17, 1997, alleged assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1), which was adjudicated on September 16, 1997. This prior is alleged as the first Strike in the Information. The juvenile court file also contains a petition filed on November 3, 1997, alleging a carjacking offense, in violation of Penal Code section 215, which was adjudicated on November 24, 1997. This prior is alleged as the second Strike in the Information. On January 12, 1998, the juvenile court conducted a disposition hearing for both petitions. The minutes of that hearing state: “Court finds the following offenses fall under 707(b) WIC – 215 PC; 245(a)(1) PC.” (See Jud. Ntc.)
Because the petition and the adjudication included a finding that the assault with a deadly weapon was by means likely to produce great bodily injury, the offense was found to be a Welfare and Institutions Code section 707, subdivision (b) offense by the juvenile court. The assault with a deadly weapon qualifies as a Strike, within the meaning of Penal Code sections 667, subdivision (d)(3)(B) and 1192.7, subdivision (c) (31).
3. The trial court did not abuse its discretion by declining to exercise its discretion to dismiss the Strike allegations.
Defendant contends the trial court abused its discretion by denying his request that the court exercise its discretion to strike the Strike allegations (Pen. Code, § 1385). We disagree.
A trial court may exercise its discretion and dismiss a prior strike conviction if the dismissal is in the furtherance of justice. (Pen. Code, § 1385; People v. Williams (1998) 17 Cal.4th 148, 158.) A court’s refusal or failure to strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)
A trial court may strike a Strike. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) In exercising its discretion, the trial court must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th 148, 161.)
Reviewing defendant’s background, character, and prospects, this defendant is not outside the spirit of the Three Strikes scheme. He had not been rehabilitated despite opportunities as a juvenile, and his prospects for future rehabilitation are dim, given his adult criminal history. In addition to the crimes of which he was convicted while at liberty, he continued to commit crimes in custody, and was an admitted gang member.
The trial court’s refusal to strike the Strikes was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur, Ramirez P. J., Hollenhorst J.