Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR463909
NEEDHAM, J.
Appellant Darrell Moore appeals from an order revoking his probation and executing a previously suspended upper-term prison sentence. We reject his claim that in so doing, the court violated his rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. 270 [127 S.Ct. 856] (Cunningham).
I. Background
Appellant pled guilty to a single count of unlawful sexual intercourse with a minor under Penal Code section 261.5, subdivision (d). On September 7, 2005, he was sentenced to the four-year upper term, with execution of that sentence suspended pending the successful completion of probation. On November 2, 2006, a petition was filed to revoke appellant’s probation based on his conviction of new offenses and his failure to report to his probation officer, to keep probation informed of his whereabouts or to participate in sex offender counseling. The court revoked appellant’s probation following a contested hearing and, on December 28, 2006, executed the previously suspended four-year sentence.
The probation department’s report on the revocation proceedings contained the following summary:
“Defendant Moore was placed on a grant of formal probation in September 2005, following [a] felony conviction of Section 261.5(d) PC. In that offense, the defendant engaged in a three-month sexual relationship with a 15-year-old victim. In addition, the minor victim advised officers that the defendant would accompany her while she engaged in prostitution and provided her with protection during these acts. Both the victim and the defendant acknowledged they were financially supported by the proceeds from the victim’s prostitution acts. At the time of sentencing in that matter, the defendant described his role in the victim’s prostitution as ‘not my forte.’
“After his release from custody in this matter, the defendant relocated to Solano County, where he received courtesy supervision from the Solano County Probation Department. Within a few months, the defendant stopped reporting to the Solano County Probation Department and failed to provide verification of his enrollment in sex offender counseling as directed. Shortly thereafter, the defendant relocated to Southern California to ‘start a new life’ without gaining the permission of the Probation Department. In October [2006], the defendant was arrested and convicted in Southern California for violations of Section 422 PC and 243(e)(1) PC. In that offense, the defendant became physically and verbally abusive to the victim after she refused to engage in prostitution acts to financially support the defendant.”
II. Discussion
Appellant argues that the four-year upper term violated his constitutional rights to a jury trial and to a conviction under a standard of proof beyond a reasonable doubt because it was based on factors in aggravation that were neither admitted by him nor found true by a jury under that standard. We disagree.
Preliminarily, we note that the four-year term now challenged by appellant was imposed in 2005, at his original sentencing hearing, with its execution suspended. His failure to file a timely appeal from that hearing would ordinarily bar his current challenge to the length of the sentence, as that judgment has become final. (People v. Howard (1997) 16 Cal.4th 1081, 1084; People v. Amons (2005) 125 Cal.App.4th 855, 869-870; People v. Preyer (1985) 164 Cal.App.3d 568, 576.) He argues, however, that this rule should not be applied to his case, because he was not advised of his right to appeal when the sentence was imposed. (See Cal. Rules of Court, rule 4.305.) The People do not argue otherwise and we conclude that under the specific circumstances of this case, the challenge to the sentence is cognizable in the current appeal from the order revoking probation and executing the previously suspended prison sentence.
Turning to the merits, appellant relies on the rule that under the federal Constitution, any factor increasing the penalty for a crime beyond the statutory maximum is akin to an element of the offense and must be submitted to the jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542U.S. at pp. 303-304.) In Cunningham, the court analyzed California's Determinate Sentencing Law (DSL) and concluded that under the three-tiered sentencing structure applicable to most offenses, the middle term was the statutory maximum because the upper term could not be imposed absent additional factual findings. (Cunningham, supra, 127 S.Ct. at pp. 868, 871; see also Pen. Code, § 1170, subd. (b).) Cunningham held that the DSL ran afoul of the principles set forth in Apprendi and Blakely to the extent it allowed the imposition of an upper term sentence based on aggravating factors that were found true by the trial court using only a preponderance of the evidence standard. (Cunningham, 166 L.Ed.2d at p. 876, 127 S.Ct. at p. 871, disapproving People v. Black (2005) 35 Cal.4th 1238, judg. vacated and cause remanded sub nom. Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36, 127 S.Ct. 1210].)
There are two exceptions to this rule. “First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction.” (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) This latter “recidivism” exception arises from Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres), which, despite some criticism, has not been disapproved by the United States Supreme Court. Our own Supreme Court has recognized this a recidivism exception to Apprendi/Blakely/Cunningham and concluded that it encompasses a finding that prior convictions are “numerous or of increasing seriousness” under California Rules of Court, rule 4.421(b)(2). (People v. Black (2007) 41 Cal.4th 799, 818-820 (Black II).)
Further references to rules are to the California Rules of Court.
The trial court in this case selected the four-year upper term because it found that (1) appellant’s prior convictions as an adult and sustained petition as a juvenile were numerous; and (2) appellant was on probation when he committed the current offense. In support of the first factor, the court relied on the probation report, which shows that appellant suffered a juvenile adjudication for robbery with a firearm enhancement in 1997, a misdemeanor conviction for disturbing the peace in 2003, and a misdemeanor conviction of assault likely to cause great bodily injury in 2003.
Appellant argues that a prior juvenile adjudication cannot be considered as a factor in aggravation under the recidivism exception because (1) it is not a “conviction” within the meaning of Almendarez-Torres, and (2) there is no right to a jury trial in such proceedings, which is one of the main justifications for allowing a prior conviction to be found true by the judge alone. Appellant reasons that when the juvenile adjudication is disregarded, his two prior adult convictions fail to qualify as factors in aggravation because they were neither “numerous” nor “of increasing seriousness” under rule 4.421(b)(2). (See People v. Berry (1981) 117 Cal.App.3d 184, 191 [two prior convictions were not “numerous,” although they may be considered as aggravating factors under catch-all provision of Cal. Rules of Court, former rule 408(a), now rule 4.408(a), which allows the court to consider non-enumerated factors “reasonably related to the decision being made.”].)
We disagree with appellant and conclude that juvenile adjudications fall within the recidivism exception Almendarez-Torres. Although a juvenile does not have the right to a trial by jury, a number of procedural safeguards render an adjudication reliable—the right to notice, the right to counsel, the right to confront and cross-examine witnesses, the privilege against self-incrimination and, importantly, a standard of proof beyond a reasonable doubt. (See Welf. & Inst. Code, §§ 658, 679, 702.5; In re Winship (1970) 397 U.S. 358, 364.) A number of courts have recognized that prior juvenile adjudications may be used to enhance a sentence without violating the defendant’s constitutional rights. (People v. Lee (2003) 111 Cal.App.4th 1310, 1313-1316 [increased sentence under Three Strikes law]; People v. Bowden (2002) 102 Cal.App.4th 387, 391-394 [same]; State v. Merrills (2007) 37 Kan.App.2d 81, 82-83 [rejecting claim that juvenile adjudications could not be considered under recidivism exception to Apprendi and Blakely].)
The question of whether a prior juvenile adjudication of a criminal offense can subject a defendant to the provisions of the Three Strikes law is currently pending before the California Supreme Court in People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 15, 2007, S154847. Two other cases have been granted review with briefing deferred on the related issue of whether a juvenile adjudication falls within the recidivism exception to Apprendi-Blakely-Cunningham for purposes of imposing an upper term sentence. (People v. Tu (2007) 154 Cal.App.4th 735, review granted Dec. 12, 2007, S156995; People v. Grayson (2007) 155 Cal.App.4th 1059, review granted Dec. 19, 2007, S157952.)
We are not persuaded by the decision to the contrary in U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194 (Tighe), which limited the recidivism exception “to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt.” As noted by the dissenting opinion in Tighe, “when a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi is focused) in using that adjudication to support a later sentencing enhancement.” (Tighe, at p. 1200 (dis. opn. of Brunetti, J.).) Similarly, there is no constitutional impediment to using a juvenile conviction to impose an upper term sentence.
The trial court was entitled to rely on appellant’s juvenile adjudication for robbery when it determined his prior convictions and juvenile adjudications were numerous. Appellant thus had three prior adjudications/convictions, a number sufficient to be considered “numerous” under rule 4.421(b)(2). (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098, citing with approval in Black II, supra, 41 Cal.4th at p. 818.) Consideration of this factor fell squarely within the recidivism exception to Apprendi-Blakely-Cunningham. (Black II, at pp. 818-820.)
Although appellant also discusses why the prior convictions were not “of increasing seriousness” under rule 4.421(b)(2), the trial court did not characterize them in this way and did not purport to rely on their increasing seriousness as a factor in aggravation.
Because the court properly determined that appellant’s prior criminal history was an aggravating circumstance, the upper term was the statutory maximum and appellant was not entitled to a jury determination of additional facts relied upon by the court at sentencing. “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to a jury trial.” (Black II, supra, 41 Cal.4th at p. 812.) It is therefore unnecessary to determine whether the additional factor relied upon by the court—appellant’s commission of the current offense while on probation—falls within the recidivism exception.
The issue of whether a judge may evaluate a defendant’s performance on probation when imposing the upper term is currently pending before our Supreme Court in People v. Towne, review granted July 14, 2004, S125677.
III. Disposition
The judgment is affirmed.s
We concur. JONES, P. J., SIMONS, J.