Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed., Super. Ct. No. SCD212623
HALLER, J.
A jury convicted Abel Rivera of assault with a deadly weapon or by means of force likely to produce great bodily injury, and found a gang enhancement allegation not true. Rivera contends (1) there is insufficient evidence to support the jury's guilty verdict; (2) the trial court abused its discretion in admitting expert testimony concerning the Mexican Mafia; and (3) the trial court violated his federal constitutional right to a jury when using his prior juvenile adjudication to enhance his sentence. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2007 Rivera and victim Rafael Banda were housed in a cell in Module 5-D of the jail. On the afternoon of July 17, they returned to their cell from the day room. Their cell door was locked at 4:16 p.m. At about 4:45 p.m., the jail authorities received a call reporting a "man-down" incident in their cell. Rivera had pushed an emergency button to summon assistance. The only two inmates housed in the cell were Rivera and Banda.
When deputy sheriffs arrived at the cell at about 4:50 p.m., Banda was sitting or leaning on the toilet and Rivera was standing over Banda holding a towel to Banda's head. Banda's head was bleeding and he was incoherent and unresponsive. He began to slump over, and the deputies assisted him down to the floor where he lost consciousness. When the paramedics arrived and began treating Banda, he regained consciousness. Deputy Terry Jackson asked him what happened, and he responded that he fell off his bunk.
Rivera likewise stated that Banda had fallen. Rivera was compliant with the deputies. The deputies observed blood on Rivera's hands but no injuries. There was blood on the toilet and on the floor by the toilet. Otherwise, the cell was in orderly condition and it did not appear as if the cell had been disturbed by a fight. A deputy sheriff inspected the other inmates on the floor and found no injuries, markings, or blood on any of them.
The only injury suffered by Banda was a four- to six-inch "straight line" injury on the left side of his head. Dr. Michelle McElroy, who treated Banda when he was admitted to the hospital's trauma center, opined that this injury was consistent with a cut from a sharp object. The injury was not consistent with a blow to the head from a fall because such a blow usually includes bruising around the area, torn off tissue, and a jagged rather than straight cut.
A videotape from a jail surveillance camera showed Rivera and Banda entering their cell after leaving the day room, and then (at 4:16 p.m.) their cell door locking. A few seconds later, a Hispanic-appearing man is seen repeatedly returning to their cell door and looking through the window into their cell. All the inmates on the floor were then locked in their cells except for two inmates (Charles Beckner and Richard Neff) who were cleaning the day room. Starting at about 4:20 p.m., the videotape depicts Beckner and Neff repeatedly walking up to Banda and Rivera's cell. Beckner and Neff appeared to be putting something (apparently rags) under Banda and Rivera's cell door and then pulling the items out and placing them in a trash can located in the module. Upon inspection of the trash can, the authorities found four paper bags containing rags with wet blood on them.
The testimony of the deputy who inspected the trash can does not specify exactly what was in the bags. However, the jury was shown the contents of the bags; in closing argument to the jury the prosecutor and defense counsel referred to the items as rags; and the exhibit list describes the items as rags.
When questioned by various individuals on different occasions, Banda at times retracted his statement that he had fallen, and instead stated that he was assaulted. When Dr. McElroy, as part of her routine questioning of trauma unit admittees, asked him if he fell, he responded no. The evening of the incident, during a casual conversation with Deputy Robert Russell (who was guarding Banda at the hospital), Banda stated that he had not fallen as he had previously stated, but rather he had been slashed with a razor blade by an inmate. Banda told Russell that after the attack, the blade had been flushed down the toilet and he and "his celly" had cleaned up the blood. Banda stated that the attack happened because of "prison politics" in 2004, he knew it " 'was coming,' " and he had been " 'dodging and ducking' " it for a long time. Banda did not identify who attacked him, but did say he was surprised at "who had actually hit him" because '' 'he thought he was a friend.' "
At trial, Deputy Russell testified that he recognized the defendant as the person he spoke to at the hospital, apparently confusing Rivera with Banda. There was no dispute, however, that the person guarded by Russell at the hospital was Banda.
When admitted to the hospital, Banda had a blood alcohol level of about.165. However, Dr. McElroy testified he did not appear confused and he was able to answer questions. Likewise, Deputy Russell testified Banda was coherent and able to talk. When Banda was interviewed later that night by detectives, the detectives observed that his speech was slurred. Banda may have been given morphine at the hospital. Banda also takes methadone for heroin addiction, but at the time of the incident he was not being provided methadone.
When questioned by detectives at about 9:00 p.m. that same night, Banda was initially reluctant to talk. He eventually told the detectives that the incident happened in the day room and that it arose from a "prior beef that had occurred when he was in prison that finally caught up to him." He stated he had been drinking with some inmates; someone hit him and a fight occurred; and he was able to "get some hits on" the person who started the fight before he (Banda) was "carted off." He stated, however, that he would not cooperate with any prosecution. Around 1:30 a.m., after examining a jail surveillance camera videotape that showed no fight in the day room, the detectives returned to the hospital. They told Banda that based on their examination of a jail videotape they knew the incident did not occur the way he had explained it. Banda nodded his head in a "yes motion," but stated he was not going to talk to them.
A written report prepared by one of the detectives mentioned that Banda had stated the prior problem had occurred at Folsom prison. In actuality, Banda had never been at that particular prison, although he had been in prison.
Banda made another disclosure two days after the incident, when he was being guarded at the hospital by Deputy Christopher Simms. Simms mentioned that the scar on Banda's head looked " 'pretty big.' " Banda replied, " 'Yeah.' " Simms then stated, " 'It was [Rivera],' " and Banda replied, " 'Yeah.' " Banda told Simms the incident occurred because of "prison politics."
Before trial, Banda (now released from jail) spoke on several occasions with representatives of the district attorney's office. During these communications, he variously stated that he was attacked in the day room or that he fell. He stated he did not want to be labeled a "snitch," he would not testify, and he did not want witness protection. Banda was eventually arrested for failing to comply with a subpoena to come to court. When interviewed after his arrest, he became extremely nervous when questioned about the specific statements he made to the deputies after the incident. He repeatedly stated he did not identify anyone, and claimed he told the deputy at the hospital that his cellmate was not his attacker.
At trial on direct examination, Banda initially adhered to his claim that the injury occurred when he fell. He stated he was drunk on inmate-made alcohol, he was trying to climb up to his bunk from a chair, and he fell and hit his head on either the table or the floor. He and Rivera used rags to stop the bleeding and to clean up the cell, and pushed the rags out under the door. He essentially denied making any statements to the authorities about being assaulted. However, on cross-examination, defense counsel elicited a new version of events from Banda. Banda now claimed that he had an argument with Rivera about his (Banda's) bringing a member of another race inside their cell in violation of the rules and that he suggested to Rivera that they settle the matter in their cell. He stated he had a razor blade in his pants; he started a fight with Rivera after the cell door closed; he tried to cut Rivera with the razor blade; and he was hurt when Rivera was defending himself. Banda testified that as he rushed Rivera with the blade in his hand, Rivera grabbed his hands and pushed them back behind his head; Banda cut himself with the razor blade as he tried to push his hands forward; and Rivera then tackled him down.
In addition to evidence based on Banda's statements, the prosecution presented additional evidence to support its theory that the incident was gang related. According to the testimony of a gang expert (Retired Detective Felix Aguirre), both Rivera and Banda were members of a Hispanic gang (Shelltown) and, upon incarceration, they were governed by the Mexican Mafia. The prosecution claimed that the Mexican Mafia had ordered Rivera to assault Banda as a form of discipline because Banda had violated a gang rule. Supporting this theory, Deputy Jackson testified that several weeks after the incident, a confidential informant told him that Mario Lopez, a Mexican Mafia "shot caller" incarcerated in Module 5-D at the time of the incident, had ordered Rivera to assault Banda because Banda had violated a gang rule by inviting an African-American inmate to his cell to perform a drug transaction. However, this was the first time Deputy Jackson had received information from this informant; thus, he could not attest to his reliability.
The Shelltown gang is divided into two closely-related groups, Shelltown Gamma Street Boys and Shelltown 38th Street. Rivera was a member of the former group, and Banda was a member of the latter group.
Detective Aguirre detailed how the Mexican Mafia controls incarcerated Hispanic gang members, which is part of "prison politics." The Mexican Mafia's control includes ordering assaults or murders when gang rules are violated, including such rules as not associating with other ethnic groups and not cooperating with the police. On cross-examination, Detective Aguirre acknowledged that at the time of trial Rivera and Banda were not currently documented by the San Diego police department as members of a gang. Further, Detective Aguirre testified that he had no information showing that Rivera was a member of the Mexican Mafia, or that he had been in contact with Shelltown gang members other than Banda while incarcerated.
A person is formally documented as a gang member if the person meets specific criteria. A gang member is purged from the San Diego police department's documentation system if there are no gang-related contacts with the police for a five-year period, even if the gang member is incarcerated during this time period. Rivera had been continuously in prison since 2001. Rivera had apparently once been documented in the system, whereas Detective Aguirre did not know if Banda had ever been documented.
The jury found Rivera guilty of assault with a deadly weapon or by means of force likely to produce great bodily injury, with true findings that he personally used a razor blade and personally inflicted great bodily injury. However, the jury rejected the allegation that the offense was committed for the benefit of a gang, finding the gang enhancement not true.
DISCUSSION
I. Sufficiency of the Evidence
Rivera asserts the evidence does not support the jury's guilty verdict because Banda's statements identifying him as the assailant to the authorities were inherently unreliable. He notes that Banda presented multiple versions of what occurred, including that he fell, he was assaulted in the day room, Rivera was the person who assaulted him, and he injured himself when he attacked Rivera and Rivera was defending himself.
In evaluating a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Substantial evidence is evidence that reasonably inspires confidence and is of credible and solid value. (People v. Raley (1992) 2 Cal.4th 870, 891.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Zamudio, supra, at p. 357.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Id. at p. 358.) It is the exclusive province of the jury to determine credibility and to resolve evidentiary conflicts and inconsistencies in testimony. (Id. at p. 357; People v. Young (2005)34 Cal.4th 1149, 1181.) Unless testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (People v. Young, supra, at p. 1181.)
The testimony concerning Banda's pretrial statements indicating that Rivera was the assailant was not physically impossible or inherently improbable. At the hospital on the night of the incident, Banda told Deputy Russell that he had been slashed with a razor, that the razor had been flushed down the toilet, and that his cellmate helped him clean up the blood. Two days later, Banda acknowledged to Deputy Simms that his assailant was his cellmate Rivera. These disclosures, made while the deputies were guarding Banda at the hospital, emerged during casual conversations and under circumstances where the deputies could build a rapport with Banda. The jury could reasonably infer the statements were credible because they were made when Banda was not being questioned for investigative purposes and hence he would be less likely to be monitoring his statements.
Further, the identification of Rivera as the assailant was consistent with the circumstantial evidence. Banda was found injured in his locked cell, and Banda and Rivera were the only two individuals in the cell. The medical evidence indicated that Banda's injury was consistent with a cut from a sharp object, not a blow from a fall. The jail videotape showing the two inmates outside the cell placing and retrieving rags under the cell door and the blood-soaked rags found in the trash can indicated that the jail inmates were assisting with the clean up of the blood. This evidence created a strong inference that Banda was cut with a sharp instrument while he was in his locked cell with Rivera. Under this theory, Banda either cut himself, or Rivera cut him. The jury could reasonably reject Banda's claim that he cut himself when Rivera was defending himself given that this claim was made for the first time at trial, and the claim contradicted the disclosures Banda made in unguarded moments indicating that he was cut by an assailant. The jury reasonably elected to credit Banda's pretrial statements to the authorities reflecting that Rivera cut him with a razor.
The jury was not required to reject Banda's pretrial statements implicating Rivera merely because Banda at other times (including at trial) claimed Rivera was not the assailant. Various witnesses, including the gang expert, testified that there was a high risk of retaliation when an inmate cooperates with the authorities. At trial, Banda himself acknowledged "snitches" can get attacked. From this evidence, the jury could reasonably infer that Banda was afraid to identify Rivera and hence he repeatedly fabricated explanations of his injury with a view to ensuring that he was not seen as a "snitch."
To support his challenge to the sufficiency of the evidence, Rivera also notes that the prosecution's theory of the case was that Rivera cut Banda because he was ordered to do so by the Mexican Mafia, whereas the jury rejected the gang enhancement allegation. This factor does not defeat the sufficiency of the evidence in support of the verdict. The jury could have concluded that the prosecution proved beyond a reasonable doubt that Rivera cut Banda, but that it did not carry its burden to prove beyond a reasonable doubt the reason for the attack so as to establish the gang enhancement. The prosecution was not required to prove the motive for the attack to establish the offense of assault, and the jury's rejection of the gang enhancement did not defeat the identification and circumstantial evidence supporting the jury's conclusion that Rivera assaulted Banda.
II. Admission ofGang Expert Testimony Regarding the Mexican Mafia
Rivera asserts the trial court should have excluded the gang expert's testimony concerning the Mexican Mafia under Evidence Code section 352 because the high potential for prejudice outweighed the minimal relevance of the evidence. He asserts there was insufficient evidence of Mexican Mafia involvement in the incident to warrant expert testimony regarding this "notorious prison gang."
Prior to trial, the prosecutor moved to admit expert testimony concerning the Mexican Mafia to show Rivera's identity as the assailant and his motive for attacking Banda. Further, the prosecutor maintained the evidence was relevant to explain Banda's inconsistent statements generated by his fear of retaliation and to prove the crime was for the benefit of a gang to support the gang enhancement allegation. The prosecutor argued that its claim that the assault was the result of an order from the Mexican Mafia to Shelltown gang member Rivera was supported by the victim's statements that he incurred the injury because of "prison politics" and that he had it "coming to him" from a previous prison stay.
To assist the trial court in evaluating the proffered evidence, Detective Aguirre testified at a pretrial hearing, providing essentially the same information that he provided at trial. Aguirre stated the Mexican Mafia is a prison gang that was formed to control activities in prison on behalf of the Hispanic population. When a member of a street-level Hispanic gang goes to prison in Southern California, his street-level gang identification is not his primary identifier. Rather, the Hispanic gang member "falls under the umbrella of the Mexican Mafia" regardless of whether he wants this identification. Thus, a Shelltown gang member (such as Rivera) who goes to prison is under the Mexican Mafia and he puts his Shelltown membership "on the back burner" while in custody.
Detective Aguirre explained that the Mexican Mafia has strict rules that control activities within the prisons, and a violation of those rules can lead to an assault ordered by the Mexican Mafia. For example, an assault may be ordered against a gang member because he violated the rule against being a "snitch" by giving information to the police. A Hispanic gang member's reference to "politics" in the prison system can be a reference to the Mexican Mafia rules that he must abide by in prison. Mexican Mafia "politics" can also operate in the jails. Detective Aguirre opined that if a Shelltown gang member slashed another inmate in jail because of "prison politics," this would increase the stature of the gang member within Shelltown and the Mexican Mafia and build fear within the gang culture. On the other hand, if the Shelltown gang member failed to follow a Mexican Mafia order to commit an assault when he had contact with the targeted person, the gang member would suffer consequences. Further, it would be expected that the victim would not be cooperative with the police and would, for example, make up a story or say he does not remember because the victim does not want to be labeled a "snitch."
Opposing the proffered testimony, Rivera acknowledged that gang evidence may be permissible given the gang enhancement allegation. However, he argued references to the Mexican Mafia were more prejudicial than probative because there was an insufficient showing that the incident was related to the Mexican Mafia. The trial court rejected his contention, finding the evidence was more probative than prejudicial on the issues of identity, intent, motive, victim fear creating falsification of testimony, and the gang enhancement. The court cited the victim's statement reflecting that he was aware that "this came down because of some event that occurred when he was previously in prison," and concluded the relevancy of testimony concerning the Mexican Mafia was compelling in view of "the control as to the Mexican Mafia down... the chain of command to Shelltown...."
To be admissible, expert opinion testimony must be related to a subject that is sufficiently beyond common experience so that the opinion of the expert would assist the trier of fact. (Evid. Code, § 801, subd. (a).) Evidence regarding gang sociology and psychology is a proper subject for expert opinion testimony because it is sufficiently beyond common experience that it would assist the jury. (People v. Gonzalez (2006) 38 Cal.4th 932, 945; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550-1551; People v. Martinez (2003) 113 Cal.App.4th 400, 413.) Gang evidence is generally admissible to address such matters as identity, intent, motive, inconsistent witness statements because of fear of retaliation, and commission of a crime to benefit a gang to prove a gang enhancement. (People v. Gonzalez, supra, 38 Cal.4th at pp. 945-946; People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550; People v. Albarran (2007) 149 Cal.App.4th 214, 224; People v. Martinez, supra, 113 Cal.App.4th at pp. 413-414.)
However, even relevant gang evidence should be excluded if the probative value is substantially outweighed by the probability that the evidence would be unduly prejudicial. (Evid. Code, § 352; People v. Carter, supra, 30 Cal.4th at p. 1194; People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Undue prejudice does not exist merely because highly probative evidence is damaging to the defense case, but rather arises from evidence that uniquely tends to evoke an emotional bias against the defendant or to cause the jury to prejudge the issues based on extraneous factors. (People v. Jenkins (2000) 22 Cal.4th 900, 1008; People v. Branch (2001) 91 Cal.App.4th 274, 286.) Trial courts are required to carefully scrutinize gang evidence under Evidence Code section 352 because it may have a highly inflammatory effect on the jury. (People v. Carter, supra, 30 Cal.4th at p. 1194; People v. Avitia, supra, 127 Cal.App.4th at pp. 192-193.) Given this high potential for prejudice, gang evidence should not be admitted if it is only tangentially relevant to the charged offenses. (People v. Albarran, supra, 149 Cal.App.4th at p. 223.)
We apply the abuse of discretion standard to evaluate the trial court's admission of the gang evidence. (People v. Gutierrez (2009) 45 Cal.4th 789, 819.) The trial court's ruling will not be disturbed on appeal unless the court acted unreasonably under the circumstances of the particular case. (Id. at pp. 819-820.)
Here, the defendant and the victim were identified as members of Hispanic gangs, and the crime occurred while they were incarcerated. Thus, according to the information provided by the gang expert, their conduct during the relevant time period was governed by the Mexican Mafia. Further, the victim's statements to the authorities that the attack concerned "prison politics" and that he had it "coming to him" from a previous prison experience pointed to a connection between the crime and some authority governing the prison. The gang expert indicated that a reference to "prison politics" by a Hispanic gang member inmate can refer to control by the Mexican Mafia in the prison or jails.
In his briefing on appeal, Rivera asserts that Detective Aguirre could not "testify unequivocally that the Mexican Mafia's system of control and discipline extended from prisons into the jail where Banda suffered his injury." When asked at the pretrial hearing whether the Mexican Mafia's "politics" also existed in the jail system, Aguirre responded, "I believe they do as well, yes." No information was provided to the trial court indicating that the jail system was immune from the reach of the Mexican Mafia. On this record, the trial court reasonably concluded there was sufficient evidence that the Mexican Mafia's control was operative within the jail so as to warrant admission of the evidence for the jury's consideration. At trial, Detective Aguirre affirmatively testified that the Mexican Mafia had control over the jails as well as the prisons.
Given the showing that the Mexican Mafia's code of conduct was operative over the defendant and the victim in the setting where the crime occurred and the victim's statements suggesting the incident was related to issues of inmate "political" control within detention facilities, the trial court reasonably concluded the expert testimony concerning the Mexican Mafia was highly relevant to the issues of identity, intent, motive, witness credibility, and benefit to a gang for purposes of the gang enhancement. The expert's description of how the Mexican Mafia operated was relevant to support the prosecution's theory that the injury was caused by an attack by Rivera because he had the intent and motive to commit the crime as an incarcerated Hispanic gang member subject to the orders of the Mexican Mafia.
Further, the information that the Mexican Mafia maintained control by ordering assaults against "snitches" was relevant to explain why the victim gave contradictory explanations and refused to identify an assailant. The information that an assault on an inmate pursuant to an order from the Mexican Mafia would increase the stature of the assailant and instill fear of the gang was relevant to show the crime was for the benefit of a gang to support the gang enhancement. Also, there was nothing about the testimony concerning the Mexican Mafia that was extraneous to the issues that might have improperly inflamed the jury when evaluating the evidence.
Rivera contends the evidence concerning the Mexican Mafia should have been excluded under Evidence Code section 352 because the circumstances of the crime itself did not show Mexican Mafia involvement, but rather it was only the expert's testimony that tied the crime to the Mexican Mafia. To support his position, he notes that in another case where evidence concerning the Mexican Mafia was admitted, the defendant had a Mexican Mafia tattoo and the assault victim's name was found on a "green light" (i.e., assault) list. (People v. Gonzalez, supra, 126 Cal.App.4th at pp. 1544-1546, 1551.) We are not persuaded. As stated, the fact that both the defendant and the victim were identified as members of Hispanic gangs, coupled with the expert testimony that the Mexican Mafia governs incarcerated Hispanic gang members and the victim's statements reflecting the incident was connected to inmate maintenance of discipline within the detention facilities, sufficed to show a connection to the Mexican Mafia. That is, to the extent the crime may have been gang related, it was reasonable for the court to conclude the Mexican Mafia was a highly relevant gang at issue. Rivera does not contend, nor does the record show, the trial court could not reasonably conclude there was sufficient evidence to submit the gang enhancement and other gang-related issues to the jury. Although the jury ultimately concluded the prosecution did not prove the gang enhancement, this does not mean the jury was not entitled to consider highly probative gang-related evidence.
Rivera also asserts the trial court's statements during the pretrial hearing suggest it did not properly understand its duty to weigh the probative value of the evidence against its potential for prejudice, but rather the court thought the evidence only needed to be helpful to the jury to be admitted. The record does not support this contention. At the commencement of its explanation of its ruling, the trial court explicitly stated that the issue before it was probative value versus prejudice. Thereafter, defense counsel emphasized to the court that it was objecting to gang evidence concerning the Mexican Mafia (as opposed to Shelltown gang evidence); argued there was "almost no evidence" of Mexican Mafia involvement; and asked if the court was "actually finding that the use of the expert opinion about Mexican Mafia is more probative than prejudicial[.]" The court responded affirmatively, stating that it concluded the probative value outweighed prejudice and explaining why the evidence was highly probative in this particular case. Although the court noted the expert testimony need only be helpful to the jury, when read in context the record reflects the court was referring to the initial admissibility standard for expert evidence before it applies the Evidence Code section 352 analysis. The record shows the trial court properly performed the requisite balancing when rendering its ruling regarding the Mexican Mafia evidence.
The trial court did not abuse its discretion in finding the expert testimony concerning the Mexican Mafia was more probative than prejudicial.
III. Use of Prior Juvenile Adjudication as a Sentence Enhancement
Rivera received a 25-years-to-life indeterminate sentence based on two strike priors under the Three Strikes law, and an eight-year determinate sentence (consisting of three years for personal infliction of great bodily injury and five years for a serious felony prior conviction). One of his strike priors was derived from a juvenile adjudication. Rivera contends the trial court violated his jury trial rights under Apprendi v. New Jersey (2000) 530 U.S. 466 by using the juvenile adjudication to enhance his sentence because a jury trial is not afforded in juvenile proceedings. Under Apprendi, a defendant has a right to have a jury determine any fact, except for the fact of a prior conviction, that is used to increase the sentence beyond the maximum term permitted by conviction of the charged offense alone. (People v. Nguyen (2009) 46 Cal.4th 1007, 1010-1011.)
As recognized by the parties, at the time of briefing on appeal this issue was pending before the California Supreme Court. On July 2, 2009, our high court resolved the issue, concluding that a juvenile adjudication may be used to enhance a maximum sentence without violating the Apprendi rule. (People v. Nguyen, supra, 46 Cal.4th at p. 1025.) The Nguyen court reasoned that because juvenile adjudications concern recidivism and result from constitutionally valid, fair and reliable proceedings, they properly are included within the prior conviction exception to the Apprendi rule. (Id. at pp. 1021-1025.) Given the California Supreme Court's holding in Nguyen, Rivera's sentencing challenge fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J.,McINTYRE, J.