Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct.No. FVI700355 J. David Mazurek, Judge.
John L. Staley, 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, Senior Assistant Attorney General, Lynne McGinnis, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI P. J.
I
The facts pertaining to the underlying offenses are not contained in the record on appeal. Defendant pled guilty prior to the preliminary hearing and a probation report was not prepared.
On March 1, 2007, the San Bernardino County District Attorney filed a felony complaint charging defendant and appellant Ucoby Marque Hardy with (1) possession of a firearm by a felon under Penal Code section 12021, subdivision (a)(1) (count 1); (2) unlawful possession of ammunition under section 12316, subdivision (b)(1) (count 2); and (3) making criminal threats under section 422 (count 3).
All further statutory references are to the Penal Code unless otherwise indicated.
The complaint also alleged that defendant had served one prior prison term within the meaning of section 667.5, subdivision (b), and had suffered a prior strike conviction within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i).
On July 18, 2007, defendant pled guilty to count 1 and admitted the prior strike allegation. In exchange, the remaining counts and allegations were dismissed. As part of defendant’s plea agreement, defendant waived his appellate rights.
The trial court sentenced defendant to two years eight months in state prison; the sentence comprised of the low term of 16 months as to count 1, doubled pursuant to the strike allegation.
On August 27, 2007, defendant filed a notice of appeal and request for certificate of probable cause. On August 29, 2007, the superior court issued a certificate of probable cause. On appeal, defendant contends that his sentence should be vacated because the trial court erred in using defendant’s juvenile adjudication to double his sentence under the “Three Strikes” law. For the reasons set forth below, we shall affirm the judgment.
II
ANALYSIS
A. Waiver of Appeal Rights
As a preliminary matter, the People contend that defendant’s appeal should be dismissed because he waived his right to appeal in the plea agreement.
“[A]n express waiver of the right of appeal made pursuant to a negotiated plea agreement is valid provided defendant’s waiver is knowing, intelligent and voluntary.” (People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 (Vargas); accord, People v. Panizzon (1996) 13 Cal.4th 68, 83 (Panizzon).) “The voluntariness of a waiver is a question of law which we review de novo. [Citation.] To make this determination, we examine the particular facts and circumstances surrounding the case, including the defendant’s background, experience and conduct. [Citation.]” (Vargas, at p. 1660.)
Determining that a defendant may waive the right to appeal, however, does not define the scope of the waiver. (People v. Nguyen (1993) 13 Cal.App.4th 114, 119.) In the context of a plea bargain, the question of the scope of a waiver is usually approached as a question of contract interpretation: “to what did the parties expressly or by reasonable implication agree?” (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157 (Uriah R.).) “As a general proposition, a broad or general waiver, such as ‘I waive my appeal rights,’ will include error occurring prior to the waiver, but not subsequent error because the defendant could not make ‘a knowing and intelligent waiver of the right to appeal any unforeseen or unknown future error . . . .’” (Ibid., quoting Vargas, supra, 13 Cal.App.4th at p. 1662.) If, however, the defendant agrees to a plea bargain which includes a specific or indicated sentence, “as opposed to a [sentencing] matter [that is] left open or unaddressed by the deal,” and if that is the sentence actually imposed, the waiver will foreclose appellate review of the sentence. (Panizzon, supra, 13 Cal.4th at p. 86; see also Vargas, at p. 1662; Uriah R., at p. 1157.)
Here, the facts show that defendant voluntarily and intelligently waived his appellate rights. The plea agreement indicated that defendant would receive a two-year eight-month sentence. The agreement also included a waiver of any appeal: “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.”
At the hearing, defendant acknowledged that he would be sentenced to two years eight months in state prison.
The trial court asked defendant:
“Okay. And, [defendant], my understanding of the agreement in your case is that you’re going to be pleading guilty to a violation of Penal Code Section 12021[,] subdivision (a), a felon in possession of a firearm. That’s punishable by up to a year in the county jail, 16 months, two or three years in state prison.
“You’re also going to be admitting a prior what is known as a serious or violent prior felony conviction, also what is known as a strike, for a violation of Penal Code Section 211 on or about December 22nd, 1999. That has the effect of doubling any sentence you’re going to receive, and you’re going to do that because you’re going to receive 32 months or two years eight months in state prison. Any other counts and allegations would be dismissed.
“Is that your understanding of what’s happening in your case.”
Defendant responded, “Yes, sir.”
Thereafter, at the end of the hearing, the trial court sentenced defendant to the bargained for term of two years eight months.
In People v. Nguyen, supra, 13 Cal.App.4th at page 124, the court noted that “a bargained waiver of appellate rights can be an effective tool for judicial economy. It provides a means of eliminating appeals directed solely toward ‘technical’ sentencing issues, and precludes unfair attempts to alter the bargain. The defendant, court, and skilled counsel can determine in any given case whether the proposed disposition merits such a waiver.” We agree.
Moreover, there was no question here about the sentence to which the parties to the bargain expressly agreed. (Uriah R., supra, 70 Cal.App.4th at p. 1157.) Because the indicated sentence was the one actually imposed, defendant’s waiver forecloses our review. (Ibid.)
Nonetheless, in the interests of justice and to forestall any alleged claim of ineffective assistance of counsel, we address defendant’s contention.
B. Use of Defendant’s Juvenile Adjudication As a Strike to Double Defendant’s Sentence for the Underlying Offense
Defendant was sentenced to the low term of 16 months in state prison. The sentence was doubled to 32 months because defendant had a juvenile adjudication, which was used to double his sentence pursuant to section 667, subdivision (e)(1), of the Three Strikes law. Section 667, subdivision (e)(1), provides that, if a defendant has “one prior felony conviction that has been pled and proved, the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction.”
On appeal, defendant asserts his prior juvenile adjudication was improperly treated as a strike because he did not have a right to a jury trial in that juvenile proceeding. Defendant’s argument is based on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe). We reject defendant’s contention.
The issue is currently pending review in the California Supreme Court in People v. Nguyen, review granted October 10, 2007, S154847.
Penal Code section 667, subdivision (d)(3), provides that “[a] prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if: [¶] (A) The juvenile was 16 years of age or older at the time he . . . 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. [¶] (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).” (Italics added.) It is undisputed that defendant met all of these qualifications.
In Apprendi, the United States Supreme Court stated that, “[o]ther 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, supra, 530 U.S. at p. 490, italics added.) Thus, under Apprendi, the federal Constitution does not require a jury finding on the fact of a prior conviction as a prerequisite to its use as a strike for sentencing purposes. (People v. Epps (2001) 25 Cal.4th 19, 23, 28.)
In Tighe, supra, 266 F.3d at page 1189, a defendant was sentenced pursuant to the Armed Career Criminal Act (18 U.S.C. § 924(e)), which mandates additional prison time for felons who possess firearms and have three prior convictions for specified offenses. The majority opinion in Tighe explained that the rationale behind the rule excepting prior convictions from the requirement that any fact increasing the penalty for a crime beyond the statutory maximum be proved to a jury beyond a reasonable doubt is that, “unlike virtually any other consideration used to enlarge the possible penalty for an offense, . . . a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” (Jones v. United States (1999) 526 U.S. 227, 249.) The Tighe majority stated, “Thus, Jones’ recognition of prior convictions as a constitutionally permissible sentencing factor was rooted in the concept that prior convictions have been, by their very nature, subject to the fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to a jury trial.” (Tighe, at p. 1193.) The majority concluded, “the ‘prior conviction’ exception to Apprendi’s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendi’s ‘prior conviction’ exception.” (Tighe, at p. 1194.)
We are, of course, not bound by the decisions of the lower federal courts, even on federal questions. (People v. Cleveland (2001) 25 Cal.4th 466, 480.) Furthermore, defendant’s exact contention was rejected in People v. Bowden (2002) 102 Cal.App.4th 387. The court in Bowden disagreed with the Ninth Circuit’s holding in Tighe and essentially concluded that “‘[s]ince a juvenile constitutionally . . . can be adjudicated a delinquent without being afforded a jury trial, there is no constitutional impediment to using that juvenile adjudication to increase a defendant’s sentence following a later adult conviction.’” (Id. at p. 394.) We agree with Bowden. The trial court properly doubled defendant’s sentence, pursuant to section 667, subdivision (e)(1).
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P. J., KING, J.