Opinion
NOT TO BE PUBLISHED
Santa Clara County Super Ct. No. CC765235.
Duffy, J.
The defendant herein, Pedro Herrera, pleaded no contest to two firearms charges and admitted, for sentencing purposes, to adjudicated misconduct as a juvenile that, if committed by an adult, would have constituted a crime. He contends on appeal that it violated his constitutional rights to use the adjudication to punish him under the “Three Strikes” law. He also argues that the trial court should have used its legal authority to ignore the adjudication in sentencing him.
We will affirm the judgment.
BACKGROUND
I. Facts
Because defendant pleaded no contest, we take the facts from the probation report. Police approached defendant and another man in a park. One of the men threw an object into nearby bushes. The police instructed defendant to stand by while they investigated. An officer searched the bushes and recovered a loaded handgun. Defendant tried to flee but officers caught up with him. He resisted arrest and was subdued with a Taser device. Thereafter he admitted carrying the handgun.
II. Convictions and Sentence
Defendant pleaded no contest to the felony of being a former adjudicated ward of the juvenile court under 30 years old and possessing a firearm with that status (Pen. Code, § 12021, subd. (e)) and the misdemeanor of resisting a peace officer (§ 148, subd. (a)(1)). Thereafter the trial court found true the allegation that he had a prior adjudication as a juvenile that implicated the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). In addition, it denied defendant’s motion to dismiss his strike prior in the interests of justice pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court was faced with a plea agreement that guaranteed defendant a maximum 32-month sentence whether or not it elected to sentence him as a second-strike offender. Because of defendant’s youth and his lack of prior prison terms, the court chose to sentence him to the 16-month mitigated-term sentence for the violation of section 12021, subdivision (e). It then doubled that sentence under the Three Strikes law as a second strike determinate term. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) The result matched the maximum sentence agreed on in the plea agreement.
All further statutory references are to the Penal Code.
Defendant filed a notice of appeal stating that the appeal was based on “the sentence or other matters occurring after the plea.” He did not obtain a certificate of probable cause (see § 1237.5).
DISCUSSION
I. Treating Juvenile Adjudication as a Strike Under the Three Strikes Law
Defendant claims that because he had no right to a jury trial for the juvenile adjudication, the trial court violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution when it allowed the adjudication to be treated as a strike under the Three Strikes law and thereby caused his sentence to be doubled in length.
A. Preservation of the Claim for Appeal
The trial court recited its understanding of the agreement and defendant agreed that the recitation was correct. The court stated: “The agreement in your case is as follows: You will plead guilty or no contest to count 2, which is a felony charge of possession of a firearm by a former juvenile offender. And you will plead guilty or no contest to count 3, a misdemeanor charge of resisting an officer. You have an allegation of a strike prior, and my understanding is that you are going to waive a jury trial on that strike prior and try that issue of the truth of the allegation in a court trial before me, and you will not—the agreement is that you will not receive more than 32 months in the state prison—whether or not it’s found to be true or not, not more than 32 months; do you understand the agreement?” Defendant responded “Yes” and told the court that there were no other conditions to the plea.
Despite the fact that the plea colloquy showed that defendant was reserving only the truth of the allegation for trial, the parties’ trial briefs for the court trial discussed the issue defendant raises here, the issue was raised during the hearing, and the trial court ruled on the constitutionality of applying defendant’s juvenile adjudication under the Three Strikes law.
Section 1237.5 provides, “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
“ ‘[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself’ and thus requires a certificate of probable cause.” (People v. Shelton (2006) 37 Cal.4th 759, 766.) “[T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term.” (Id. at p. 768.)
“Of course, a prosecutor and a defendant may enter into a negotiated disposition that expressly recognizes a dispute or uncertainty about the trial court’s authority to impose a specified maximum sentence—because of Penal Code section 654’s multiple punishment prohibition or for some other reason—and preserves the defendant’s right to raise that issue at sentencing and on appeal.” (People v. Shelton, supra, 37 Cal.4th at p. 769.)
Whether defendant reserved the right to challenge the constitutionality of the Three Strikes sentencing scheme is a close question. He did not reserve it when the trial court queried him about the scope of the trial on the prior adjudication. The court stated that the agreement contemplated that (1) defendant would plead guilty or no contest to two of the three charged counts, (2) the maximum sentence would be 32 months in prison, and (3) defendant reserved the right to challenge the truth of the strike prior allegation in a court trial. But that was all. Defendant listened to the trial court’s recitation of the agreement and agreed that it constituted the whole substance of it.
Yet something may have happened following the plea colloquy that the record did not capture, because at the court trial the prosecutor said to the court: “You said there were two issues on whether or not the defendant’s juvenile adjudication can be used as a—to a right to a jury trial.” (Sic.) In a later session, the court ruled that considering defendant’s juvenile adjudication under the Three Strikes law was valid. Evidently the parties and the court agreed that defendant had preserved the juvenile adjudication constitutionality issue. In that case, it would fall outside the scope of the plea and we may address it on appeal. (People v. Shelton, supra, 37 Cal.4th at p. 769.)
“ ‘Because the question whether defendant has preserved his right to raise this issue on appeal is close and difficult, we assume he has preserved his right, and proceed to the merits.’ ” (People v. Ayala (2000) 23 Cal.4th 225, 273.)
B. The Merits of the Claim
A claim similar or identical to defendant’s is awaiting resolution in our Supreme Court. (People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847.) Pending its resolution in that court, we adhere to precedent and conclude that it was constitutional for the trial court to consider defendant’s juvenile adjudication, notwithstanding that a juvenile court judge, not a jury, adjudicated the juvenile delinquency petition.
With regard to due process, “A juvenile has the right to notice of the charges against him or her, the right to counsel, the privilege against self-incrimination, the right to confrontation and cross-examination, the protection against double jeopardy, and the allegation must be proved beyond a reasonable doubt.” People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 834.) Accordingly, “ ‘juvenile adjudications, like adult convictions, are so reliable that due process of law is not offended’ ” in this context. (Id. at p. 832)
Nor was there any infringement of the constitutional rights to a jury trial. Neither the federal nor the California constitutions afford a minor a right to have a delinquency petition adjudicated by a jury (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545 (plur. opn. of Blackmun, J.); see id. at p. 551 (conc. opn. of White, J.) [agreeing with the plurality but speaking only of due process]; see also id. at p. 557 (conc. opn. of Harlan, J.); People v. Superior Court (Carl W.) (1975) 15 Cal.3d 271, 274.) But criminal defendants are statutorily entitled to trial by jury in superior court on the question whether they suffered a juvenile adjudication that qualifies as a strike. (People v. Superior Court (Andrades), supra, 113 Cal.App.4th at p. 833.) In our view, to the extent that any jury trial guaranty is implicated by Three Strikes prior-offense litigation, it is satisfied by the procedural protections that cloak juvenile delinquency proceedings combined with the statutory right to jury trial in adult court on the truth of strike allegations. As this court stated in Andrades, supra, at page 833, when “ ‘ “a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (under which Apprendi focused)” ’ ”—a focus that includes the Sixth Amendment’s jury-trial right as applied to the states by the due process clause of the Fourteenth Amendment (Apprendi v. New Jersey (2000) 530 U.S. 466, 476-477)—“ ‘ “in using that adjudication to support a later sentencing enhancement.” ’ ” Defendant, therefore, was not deprived of the protection of the Sixth Amendment to the United States Constitution or article I, section 16 of the California Constitution.
Defendant calls to our attention U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194 and Butler v. Curry (9th Cir. 2008) 528 F.3d 624. This court is not required to follow the precedents of the Ninth Circuit Court of Appeals. A “holding of the federal court, although entitled to respect and careful consideration, would not be binding or conclusive on the courts of this state.” (Bank of Italy etc. Assn. v. Bentley (1933) 217 Cal. 644, 653.) Hence, to the extent that Tighe and Butler provide reasoning contrary to that of People v. Superior Court (Andrades), supra, 113 Cal.App.4th 817, we decline to rely on them for guidance. In fact, in Andrades we declined to follow Tighe. (Id. at pp. 833-834.) We in turn decline to follow Butler to the extent that it reaffirms Tighe on this issue (Butler, supra, at pp. 644-645, 647, fn. 15; see also id. at p. 646). We reject defendant’s constitutional claims.
II. Denying Defendant’s Motion to Dismiss the Three Strikes Law Conviction
Defendant claims that the trial court abused its discretion in denying his motion to dismiss his strike prior under People v. Superior Court (Romero), supra, 13 Cal.4th 497. He contends that his case is unusual because he has only one adult conviction and his juvenile adjudication “is being used against him twice. It is the predicate for the adult offense he is charged with (possession of a firearm by a former juvenile offender) and it results in a doubling of his sentence due to the classification of the juvenile adjudication as a strike.” He calls to our attention positive aspects of his background and character that he presented to the trial court in support of his motion. Finally, he notes that the probation officer said that but for his second-strike status the officer would have recommended that he be placed on probation.
At the hearing on defendant’s motion, the trial court ruled against him for reasons it explained: “Mr. Herrera, in considering the motion that your attorney has brought on your behalf, the most important consideration is the current offense. And in looking at that current offense, it involves possession of a loaded firearm. You also ran from the police. [¶] I then look at the strike. Now, the strike is from 2005, so it’s fairly recent. It was a crime of violence, it’s a 245. You were on probation for that and that probation involved gang conditions. And according to the juvenile probation department, on occasions they noted that you were in possession of gang indicia which was a violation of the gang orders, and that you did not obtain employment as required by the probation. And that it did not appear that you were willing to leave the lifestyle involving the gang. [¶] According to the probation report here and the police report that they summarized you’re a validated Norteño gang member, and although you were youthful at the time and still are, obviously, it’s a reach for the Court, in considering your background and characteristics and the past performance that you’ve had on probation, it’s difficult to come to the conclusion that you would not be a threat to the public safety. [¶] And in so saying that, it appears that when you look at everything, that you’re not outside the spirit of the three strike law. So the motion to strike under Romero is denied.”
A “court in exercising its discretion under the Three Strikes law ‘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.’ ” (In re Large (2007) 41 Cal.4th 538, 552.)
A trial court’s discretion, however, is limited in the context of a motion to dismiss one or more strike priors. “ ‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
We cannot say that the trial court abused its discretion in finding that no exception to the Three Strikes sentencing regimen should be made in defendant’s case. The court’s reasons speak for themselves, are sensible, and are entitled to deference. We deny defendant’s claim.
DISPOSITION
The judgment is affirmed.
I CONCUR: Bamattre-Manoukian, Acting P. J.
McAdams, J.
I respectfully dissent.
For the reasons stated in our majority opinion in People v. Nguyen, review granted July 30, 2007 (S154847), I find the use of defendant’s juvenile prior adjudication under the Three Strikes Law as unconstitutional under Apprendi v. New Jersey (2000) 530 U.S. 466, 490 and I would reverse. See also the dissenting opinion of Justice Zelon in People v. Del Rio (2008) 165 Cal.App.4th 439, 441-444.