Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. NA072096 Gary J. Ferrari, Judge.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Tannaz Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.
COOPER, P. J.
Ronnie Eugene Randall appeals following his conviction by jury of second degree burglary (Pen. Code, § 459; undesignated section references are to that code), with findings by the court of a prior “strike” adjudication in juvenile court, and of four prior prison terms served for further convictions (§ 667.5, subd. (b)). His base term sentence was doubled under the Three Strikes laws (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), to four years, and the court imposed an additional four consecutive years for the prior prison terms.
On appeal from the judgment, appellant contends that his juvenile adjudication could not constitutionally be used to enhance his sentence, because he was not afforded a jury trial in juvenile court. Several Courts of Appeal have addressed effectively the same contention, and all but one have found it to be without merit. The remaining decision is currently under review by the Supreme Court. We agree with the majority of rulings, and affirm the judgment.
FACTS
The evidence at trial showed that near midnight on October 21, 2006, a nutrition store in Long Beach was burglarized by shattering the glass front door, and a gumball machine was taken. Alerted, police found the machine, which used quarters, in a lot across the street, with its coin reservoir broken open. Soon after, other officers detained appellant on a nearby street. He had glass particles on his hair and clothes, and 24 quarters in his pants pocket. Appellant made spontaneous admissions regarding the burglary just before being booked.
In a bifurcated trial of enhancement allegations, the court found that in 1979 appellant suffered a juvenile court adjudication for violation of section 211, robbery, which constituted a strike conviction under the Three Strikes Laws. (§§ 667, subd. (d)(3), 1170.12, subd. (b)(3).) Appellant’s base term accordingly was doubled.
Before imposing sentence, the trial court denied appellant’s motion to strike the strike, under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, because of appellant’s extensive criminal history between the juvenile offense and the present one.
DISCUSSION
Appellant challenges the constitutional validity of treating his former juvenile adjudication as a strike, and enlarging his sentence on account of it. As a matter of statutory law, it is clear that a prior juvenile adjudication of a serious or violent felony, incurred at age 16 or older (as was appellant’s), constitutes a “prior felony conviction” for purposes of the Three Strikes Laws. (§§ 667, subds. (d)(1), (3), 1170.12, subds. (b)(1), (3).) But, appellant contends, juvenile adjudications may not so be considered prior convictions, because they are made without a jury trial, and their use to enhance adult criminal sentences runs afoul of that federal constitutional right (U.S. Const., 6th & 14th Amends.)
Respondent preliminarily argues that appellant forfeited his contention by failing to assert it below. We disagree. Appellant challenges his enhanced sentence as constitutionally impermissible, and this claim of a categorically unauthorized sentence is reviewable without an objection at sentencing. (People v. Scott (1994) 9 Cal.4th 331, 354.)
Appellant derives his position from People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 17, 2007, S154847 (Nguyen), which held just as appellant now contends. Appellant relies principally on the rule of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), repeated in later United States Supreme Court decisions (e.g., Blakely v. Washington (2004) 542 U.S. 296, 301), that, “‘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.’” Appellant argues that a juvenile adjudication, rendered without a jury, cannot constitutionally serve as a “prior conviction” under Apprendi, because enhancement of an adult criminal sentence requires a jury determination, and cannot hinge on a nonjury adjudication, rendered for juvenile court purposes. Moreover, appellant urges, the fact that he was entitled to (but waived) jury determination of his prior juvenile adjudication for enhancement purposes in the present case (§ 1025, subd. (b)) is not curative, because the strike was based on his prior conduct, which was not found by a jury, rather than the fact of its adjudication.
Appellant’s opening brief was filed nine days before the grant of review in Nguyen.
See also Jones v. United States (1999) 526 U.S. 227, 249, noting that recidivism may be constitutionally distinguishable from other enhancement facts because “a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.”
Appellant’s position has been rejected by numerous California appellate courts, including three divisions of this district. (People v. Bowden (2002) 102 Cal.App.4th 387 (Div. Four); People v. Smith (2003) 110 Cal.App.4th 1072 (Div. Seven); People v. Pearson (2008) 165 Cal.App.4th 740 (Div. Six); accord, People v. Lee (2003) 111 Cal.App.4th 1310; People v. Superior Court (Andrades) 113 Cal.App.4th 817; People v. Buchanan (2006) 143 Cal.App.4th 139.) We agree with these holdings, for the following reasons.
First, there is no reasonable constitutional basis for disqualifying appellant’s juvenile adjudication as a strike. California’s juvenile delinquency process affords every constitutional right and safeguard that the Due Process Clause requires of juvenile adjudications. These include the right to notice of the charges, to counsel, and to proof of the charges beyond a reasonable doubt. (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 533.) They do not, however, include the right to jury trial. (Id. at p. 545.) If a juvenile adjudication of having violated a criminal law may constitutionally result in loss of the juvenile’s liberty, proof of that adjudication, beyond a reasonable doubt, constitutionally qualifies as a basis for sentence enhancement as a strike. (See People v. Lee, supra, 111 Cal.App.4th at p. 1316; People v. Bowden, supra, 102 Cal.App.4th at pp. 392, 394; People v. Fowler (1999) 72 Cal.App.4th 581, 586.)
Second, in no way does treatment of appellant’s juvenile adjudication as a strike conflict with Apprendi, supra, 530 U.S. 466. Apprendi does not define the substantive scope of permissible sentence-enhancing facts. Apprendi only prescribes that, with the exception of a prior conviction, those facts must be found by a jury. Even if, arguendo, a juvenile adjudication did not qualify as a prior conviction within the meaning of Apprendi,California yet requires – and appellant was entitled to – a jury finding of that adjudication before it could serve as a strike. (§ 1025, subd. (b).) Apprendi was fully complied with. (See People v. Smith, supra, 110 Cal.App.4th at p. 1079.)
DISPOSITION
The judgment is affirmed.
I concur: BIGELOW, J.
Flier, J., Concurring
I concur in the disposition.
I have strong reservations about using a juvenile adjudication as a strike prior. I do not believe that a delinquency proceeding should be treated as the equivalent of a criminal trial with a jury. That is an issue the California Supreme Court will resolve in People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847. Despite my concerns, I concur in the disposition, because appellant has four prior adult convictions, in addition to the juvenile case.