Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. DF008416A. L. Bryce Chase, Judge.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.
Appellant Lorenzo Olivas, Jr., pled no contest to violating Vehicle Code section 2800.2, felony evading a police officer. In a bifurcated trial, the trial court found an alleged juvenile conviction true. The trial court sentenced Olivas to 32 months imprisonment, 16 months doubled because of the juvenile conviction. Olivas challenges the true finding on the juvenile conviction asserting it cannot be used to enhance punishment under the three strikes law. We disagree and affirm the conviction and sentence.
FACTUAL AND PROCEDURAL SUMMARY
The facts of the underlying offense to which Olivas pled are not in dispute and are not pertinent to the issue here. Nor is it disputed that he admitted committing a robbery in 2006, a violation of Penal Code section 212.5, subdivision (c), in juvenile court.
On September 25, 2007, Olivas pled no contest to the felony evading charge. By stipulation, the trial court bifurcated the issue of the validity of the juvenile conviction under the three strikes law. Both sides expressly waived a jury trial on the issue and agreed to a court trial.
On October 24, 2007, a court trial was held, evidence received and arguments heard. Olivas argued that the juvenile conviction could not be used to enhance an adult sentence as he did not have the right to a jury trial in the juvenile court. Thus, the use of the juvenile conviction violated the holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296.
The prosecution contended that the use of the juvenile conviction was proper, relying on several authorities including a decision of this court.
The trial court found the alleged juvenile conviction was true and could be used to enhance Olivas’s sentence.
DISCUSSION
There are two issues for us to resolve -- the People’s claim that the appeal should be dismissed and Olivas’s assertion that the use of the juvenile conviction violates his constitutional rights.
Dismissal of the Appeal
The People contend that Olivas waived his right to appeal the trial court’s ruling. This waiver occurred, according to the People, when Olivas accepted the plea bargain for a 32-month lid on his sentence. Thus, Olivas’s challenge of the ruling on the juvenile conviction is an attempt to improve his bargained-for sentence.
This contention has two major problems. First, Olivas did not agree to a specific sentence; he agreed to a lid. Such an agreement allows a defendant to urge the trial court, in its discretion, to give a more lenient sentence. Our Supreme Court has held so expressly in People v. Shelton (2006) 37 Cal.4th 759, 769. Also, contrary to the contention of the People, Shelton specifically held that a certificate of probable cause is not necessary when the trial court’s exercise of discretion is challenged on appeal. (Id. at p. 770.)
Second, and more fundamentally, Olivas’s appeal challenges a trial court’s decision after a trial. Olivas does not challenge the trial court’s exercise of its discretion at sentencing. The procedure used was agreed to by both parties. After announcing its decision, the trial court notified Olivas of his appeal rights without objection. Olivas is well within his rights to appeal the trial court’s decision.
Use of Juvenile Conviction
Olivas claims the trial court cannot use the juvenile conviction to enhance his sentence under the three strikes law. He contends that his inability to have a jury decide his culpability in the juvenile court prevents later use of the conviction.
The California Supreme Court has granted review in a number of appellate decisions addressing this issue, beginning with People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007, S154847.
This challenge has been rejected by a number of courts, including this one in People v. Fowler (1999) 72 Cal.App.4th 581. But, Olivas argues, Fowler preceded the United States Supreme Court’s decisions in Apprendi and Blakely. He contends the holdings of those cases mandate that a defendant have the right to have a jury make a decision on guilt before a conviction can be used to enhance a sentence.
Olivas acknowledges that Apprendi/Blakely held that a prior conviction need not be proved to a jury to be used to enhance a sentence. He argues, however, that the basis of that exception was the defendant’s right to a jury when the prior conviction occurred. There is no such right in juvenile court.
A number of decisions since Apprendi have disagreed with Olivas and have held that juvenile adjudications have sufficient procedural safeguards to permit a trial court to use them without violating the holdings of Apprendi/Blakely. (People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Palmer (2006) 142 Cal.App.4th 724, 733.) We agree with those decisions.
Olivas has another problem when arguing that his constitutional rights were violated. The juvenile conviction used here was the result of an admission by Olivas. There is no evidence that any lack of procedural safeguards coerced such an admission.
There was no error by the trial court.
DISPOSITION
The judgment is affirmed.