Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF06679
SCOTLAND, P.J.
Defendant Dennis Leon Roberson, Jr., entered a negotiated no contest plea to one count of grand theft and was placed on probation. He later violated probation and was sentenced to prison for the upper term of three years.
At sentencing, the trial court announced its intention to impose the upper term based on defendant’s “extensive juvenile history with failure after failure after failure of many attempts in juvenile hall correction, [and] his prior offenses as an adult, although fairly minor in nature.” After argument, in which the prosecutor noted defendant had “somewhere around 15 violations of probation as a juvenile under formal probation,” the court did not depart from its intention to impose the upper term. The court stated: “Mr. Roberson, I hope you will not follow in your father’s footsteps any further than you have. Probation has offered you every service known to man since June 2001, and it has fallen on deaf ears. [¶] . . . Based on my earlier comments, for violation of Penal Code 487(c), it is the judgment and sentence of the Court you be sentenced to state prison for the upper term of three years.”
Defendant’s sole contention on appeal is that the trial court erred in imposing the upper term for grand theft based on facts not found by a jury or admitted by him. We disagree and shall affirm the judgment.
Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court has held that “[o]ther 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 v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455].) The “statutory maximum” is the maximum sentence the trial court may impose based solely on facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413] (hereafter Blakely).)
In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham), the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent that the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Id. at p. ___ [166 L.Ed.2d at p. 864].)
Applying the teaching of Cunningham, the California Supreme Court has held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816.)
Defendant argues an adjudication of juvenile delinquency cannot be treated as the equivalent of a prior adult conviction for purposes of imposing an upper term under Cunningham because there is no right to a jury trial in a delinquency proceeding.
This issue is pending before the California Supreme Court in People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007, S154847.
To support this contention, he relies on out-of-state cases, and federal decisions, including United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (hereafter Tighe). In Tighe, a divided panel of the United States Court of Appeals for the Ninth Circuit held “[j]uvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof . . . do not fall within Apprendi’s ‘prior conviction’ exception” and the trial court could not use them to increase the penalty beyond the statutory maximum for the current offense. (Id. at pp. 1194-1195.) The dissent in Tighe concluded that because “a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement.” (Id. at p. 1200 (dis. opn. of Brunetti, J.).)
We find Tighe unpersuasive. In People v. Palmer (2006) 142 Cal.App.4th 724, 730 (hereafter Palmer), this court agreed with the Tighe dissent and other California courts which have concluded Tighe was wrongly decided. (People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1315-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1079; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394 (hereafter Bowden); see also U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032-1033.) Because the Constitution permits the juvenile court judge to adjudicate delinquency without a jury trial, “‘“there is no constitutional impediment to using that juvenile adjudication to increase a defendant’s sentence following a later adult conviction.”’” (Palmer, supra, 142 Cal.App.4th at p. 733, quoting Bowden, supra, 102 Cal.App.4th at p. 394.)
Here, defendant’s juvenile adjudications for assault with a deadly weapon and for battery qualify as “prior convictions” for purposes of the Cunningham rule. (Cf. Palmer, supra,142 Cal.App.4th at p. 733.)
Defendant also contends the trial court erred in considering defendant’s poor prior performance on juvenile probation as a “prior conviction” sentencing factor. We need not consider this claim because “one legally sufficient aggravating circumstance . . . is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41 Cal.4th at 816.) Since the court was entitled to consider defendant’s juvenile adjudications, defendant’s federal constitutional right to a jury trial was not violated by the court’s sentencing decision.
This issue is pending before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677; supplemental briefing ordered on February 7, 2007.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., CANTIL-SAKAUYE, J.