Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super. Ct. No. SWF018325 Patrick F. Magers, Judge.
James R. Bostwick, Jr., 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, and Lynne McGinnis, Gil Gonzalez, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of possessing marijuana for sale (Health & Saf. Code, § 11359) (count 1) and transporting more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a)) (count 2). After defendant waived his right to a jury trial on the prior strike conviction allegation, in a bifurcated proceeding, the court found true that defendant had sustained a prior strike conviction within the meaning of Penal Code sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1). Defendant was sentenced to a total term of four years in state prison as follows: the low term of two years on count 2, doubled to four years due to the prior strike conviction; his sentence on count 1 was stayed pursuant to Penal Code section 654. Defendant’s sole contention on appeal is that use of a prior juvenile adjudication as a “strike” under the three strikes law denied him due process and the right to trial by jury. We reject this contention and affirm the judgment.
I
The details of defendant’s criminal conduct are not relevant to the limited issue defendant raises in this appeal. Those details are summarily set out in the parties’ briefs, and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issues we must resolve in this appeal.
Defendant contends that the trial court erred by imposing sentence based upon his prior juvenile adjudication. He argues that because there are no jury trials in juvenile court, using the juvenile adjudication to enhance his sentence violates his right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi).
Apprendi addressed the effect of the federal due process clause on a criminal defendant’s right to have the jury decide certain facts alleged in the accusatory pleading. In Apprendi the Supreme Court held, “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, supra, 530 U.S.at p. 490.) California procedures for proving prior convictions comply with Apprendi standards. (People v. Bowden (2002) 102 Cal.App.4th 387, 393.) “ . . . California’s Three Strikes law requires that a prior conviction (including a prior juvenile adjudication) be proved beyond a reasonable doubt, and it provides for the right to a jury trial on the question whether a defendant has suffered a prior conviction. [Citation.]” (People v. Lee (2003) 111 Cal.App.4th 1310, 1316.) California courts have uniformly held that using prior juvenile adjudications as strikes or prior convictions to enhance sentences is consistent with Apprendi. (People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830; Lee, at p. 1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1077, fn. 4; Bowden, at p. 394.)
Defendant notes that in U.S. v. Tighe (9th Cir.2001) 266 F.3d 1187 (Tighe), a divided Ninth Circuit panel held that “nonjury juvenile adjudications” are not prior convictions under Apprendi and may not be used to enhance a sentence. (Tighe, at p. 1194.) It said, “Apprendi’s narrow ‘prior conviction’ exception is limited to prior convictions resulting from proceedings that afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt.” (Ibid., fn. omitted.) In other words, the majority in Tighe determined that, if a prior juvenile adjudication is being relied upon to increase the defendant’s punishment, the conduct underlying that adjudication must first be proved beyond a reasonable doubt in a proceeding in which the right to a jury trial exists.
But we are not bound by the opinions of the lower federal courts. (People v. Cleveland (2001) 25 Cal.4th 466, 480; see also People v. Williams (1997) 16 Cal.4th 153, 190 [“[d]ecisions of lower federal courts interpreting federal law are not binding on state courts”].) The Ninth Circuit has not been consistent on this issue. In U.S. v. Williams (9th Cir.1989) 891 F.2d 212, a different unanimous Ninth Circuit panel held that “it was not a violation of [the defendant’s] due process rights for the sentencing judge to use his prior, non-jury, juvenile adjudications to enhance his sentence under the sentencing guidelines.” (Id. at p. 215.) Moreover, we agree with Justice Brunetti’s dissenting opinion in Tighe, which concludes that the majority misinterpreted Apprendi. Apprendi neither excluded juvenile adjudications from the prior conviction exception nor concluded that they were constitutionally infirm. As Justice Brunetti correctly notes, the Tighe majority ignored McKeiver v. Pennsylvania (1971) 403 U.S. 528, 547 [91 S.Ct. 1976, 29 L.Ed.2d 647], which held that “jury trials are not constitutionally required for juvenile adjudications . . . .” (Tighe, supra, 266 F.3d at p. 1198 (dis. opn. of Brunetti, J.).)
California and federal courts from other circuits have also concluded that Tighe is wrong and that “the procedural safeguards provided in juvenile adjudications are sufficient to satisfy the concerns of the Supreme Court in Apprendi.” (People v. Lee, supra, 111 Cal.App.4th at p. 1316; see also People v. Bowden, supra, 102 Cal.App.4th at p. 393; U.S. v. Jones (3rd Cir. 2003) 332 F.3d 688, 696; U.S. v. Smalley (8th Cir.2002) 294 F.3d 1030, 1033; U.S. v. Davis (7th Cir. 1995) 48 F.3d 277, 279; McCullough v. Singletary (11th Cir. 1992) 967 F.2d 530, 532.) “Since a juvenile constitutionally -- and reliably [citation] -- 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.” (People v. Fowler (1999) 72 Cal.App.4th 581, 586, fn. omitted.) “We therefore conclude that juvenile adjudications can rightly be characterized as ‘prior convictions’ for Apprendi purposes . . . .” (Smalley, at p. 1033.) There was no error.
Under Apprendi, a defendant is only entitled to a jury trial on those facts that increase the penalty for his crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490.) The essential factual predicate for increased punishment under the three strikes law is the existence of a prior qualifying conviction or adjudication, not proof of the underlying criminal conduct. (See Pen. Code, § 667, subd. (c).) Defendant did have the right to have a jury decide whether he had suffered the prior juvenile adjudication alleged in this case. (See Pen. Code, § 1025, subd. (b).) However, he waived that right and opted to have the court decide the issue. Under these circumstances, he cannot complain that he was denied the right to due process or trial by jury. (People v. Bowden, supra, 102 Cal.App.4th at pp. 392-393.)
II
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING,J.