Opinion
D073709
07-10-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES PLAS SAMS, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1601743) APPEAL from a judgment of the Superior Court of Riverside County, David A. Gunn, Judge. Affirmed as modified; remanded with directions. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted James Plas Sams of spousal abuse resulting in traumatic condition (Pen. Code, § 273.5, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd. (a); count 2). The jury found Sams not guilty of additional counts of spousal abuse resulting in traumatic condition (§ 273.5, subd. (a); count 3) and assault with a deadly weapon (§ 245, subd. (a); count 4) as well as making a criminal threat (§ 422, count 5). In a bifurcated proceeding, Sams admitted two alleged prior convictions: a juvenile adjudication of murder in violation of section 187 and a conviction of criminal threats in violation of section 422. Both of these prior convictions were alleged to be serious and violent within the meaning of sections 667, subdivisions (c) and (e)(2)(A) and 1170.12, subdivision (c)(2)(a).
Statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced Sams to prison for 18 years, consisting of: the mid-term of six years for count 1; a consecutive term of two years for count 2; and two consecutive five-year terms for the prior convictions.
Sams appeals, contending the trial court abused its discretion in allowing an expert witness to testify about intimate partner battering and its effects and the court improperly sentenced him to an additional five years because the juvenile adjudication cannot qualify as a prior conviction under section 667, subdivision (a). We determine that the trial court did not abuse its discretion in allowing a domestic violence expert to testify on behalf of the prosecution. However, as the People concede, the juvenile adjudication cannot qualify as a prior conviction under section 667, subdivision (a). Thus, the additional five-year sentence based on the juvenile adjudication must be stricken. Accordingly, this matter must be remanded to the superior court to correct Sams's sentence consistent with this opinion. In all other respects, the judgment is affirmed.
"Although often referred to as 'battered women's syndrome,' 'intimate partner battering and its effects' is the more accurate and now preferred term. (See, e.g., Stats. 2004, ch. 609, §§ 1, 2 [changing references in Evid. Code, § 1107 . . . from 'battered women's syndrome' to 'intimate partner battering and its effects'].)" (In re Walker (2007) 147 Cal.App.4th 533, 536, fn. 1.) We use the preferred term in this opinion, although "battered women's syndrome" was used in the opening brief here.
FACTUAL BACKGROUND
The unopposed motion to augment the record filed on July 19, 2017 is granted.
Prosecution
Sams and Jane Doe had been married for seven years and had been in a relationship for 17 years. In 2016, the couple and their daughter lived in an RV in a homeless area of Jurupa Valley. For many years, Sams and Doe had a relatively normal relationship until 2012 when Doe discovered that Sams had cheated on her with his ex-wife. After that discovery, Doe would get angry at Sams, yelling at him and throwing things at him. Doe suffered from posttraumatic stress disorder and depression with bipolar disorder, and she was taking medication to treat these conditions.
Sams first became physically violent against Doe in January 2016, after he accused her of cheating on him. Sams got mad at Doe after she sat down close to another man instead of sitting next to Sams. The next day, Sams confronted Doe and accused her of flirting with the man. Sams shoved Doe. In response, Doe shoved and hit Sams. Sams then slapped Doe across the face. Doe did not call the police because Sams apologized for hitting her and said he would never do it again. The next week, Sams accused Doe of cheating again and repeatedly hit her in the face and on the arm until one of Sams's friends came over. Again, Doe did not call police because she did not want to "give up" on Sams.
The violence between Sams and Doe "slowly started getting worse," with Sams hitting Doe 20 to 30 times from February through March. After months of being accused of cheating despite her repeated denials, on April 10, 2016, Doe decided to tell Sams that she had cheated on him, hoping to finally put to rest Sams's accusations. Yet, immediately after Doe told Sams she had cheated on him, she realized she made a mistake. Sams started hitting and slapping Doe all over her head, face, and arms "like a windmill." Sams gave Doe a "really bad black eye" that impaired her vision. Doe fought back and the two continued to fight for half an hour. After the fight, Doe tried to lie down to sleep but, as soon as she did, she jumped back up, feeling an "excruciating sharp pain" in the back of her leg. Doe turned around to see Sams pull a knife out of the back of her leg. Sams then sliced Doe down the back of her leg. Doe "freaked out" and told Sams she could not feel her leg. Therefore, Sams ran outside to ask a neighbor for help. Later, after the neighbor left, Sams and Doe continued to fight and argue until Doe told Sams that she had lied about cheating on him. Doe apologized for lying to Sams, and the two had a heart-to-heart conversation.
That night, afraid that Sams would kill her, Doe climbed on top of Sams and attempted to strangle him. But Doe stopped and started crying, realizing that she could not kill Sams because she still loved him. Two days later, police visited Sams and Doe to follow up with them about finding them housing. Police noticed that Doe's right eye had purple bruising and was "extremely swollen." Although police had seen Doe with bruises in the past, this injury was "more extreme" than the previous ones. When police asked Doe what happened, Doe initially did not want to explain the circumstances to the officer because she did not want Sams to be arrested. Doe eventually revealed that Sams had hit her. Doe then showed the officer the back of her leg where Sams had stabbed her and claimed that she cut her leg shaving. Doe lied to the officer because she did not want Sams to get arrested, but she later admitted to the officer that Sams had stabbed her. Doe appeared very afraid and she told the officer that she wanted to go somewhere safe with her daughter. Police subsequently arrested Sams. Doe also lied to a child protective services (CPS) worker, claiming she stabbed herself. Doe later admitted to the CPS worker that she had lied about stabbing herself to protect Sams.
Defense
Sams represented himself at trial and called multiple witnesses to testify in his defense. A deputy sheriff testified that he responded to a 911 domestic violence call from Doe in January 2016. Doe reported that Sams had accused her of cheating, punched her in the head and legs 10 times, and then held a knife up to her neck. The officer did not see any bruises or marks on Doe. After investigating the report and speaking with one of Doe's neighbors, who saw Sams arrive and leave without a knife, the officer concluded that Doe had lied about the incident.
Another deputy sheriff testified that he was dispatched to Sams and Doe's home after a neighbor called 911 to report a man hitting a woman with a gun. The officer observed that Doe had no injuries and that both Sams and Doe acted surprised that the police were called. After further investigation, the deputy concluded that the assault had not occurred. The deputy was dispatched to the home in a second alleged domestic violence incident. In that incident, Doe stated that Sams hit her, threw her to the ground, threatened her with a knife, and choked her. The deputy spoke to the couple's daughter who also reported that Sams attacked Doe. However, the daughter's account sounded "scripted" and significant details were different so the deputy asked her if somebody had told her what to say. The daughter admitted that Doe told her to tell law enforcement that Sams had attacked Doe. Confronted with her daughter's admission, Doe admitted that she made up the story and that she self-inflicted her injuries.
A couple of Sams's neighbors testified that on occasion they saw Doe hitting Sams and saw Sams with multiple bruises and injuries. Additionally, one neighbor stated that Doe beats on herself, hits herself in the face, and pulls her own hair out. She also did things just to upset Sams.
A defense investigator talked to Doe in June 2016. Doe stated that the injuries on her leg were cause by a cat jumping from a high place and putting her claws into Doe's leg. Doe also told the defense investigator that the story about the knife was not true.
Sams testified in his own defense. He stated that since he cheated on Doe with his ex-wife, he had been "living in hell." Doe became controlling, overpowering, and angry. Sams testified that Doe has repeatedly tried to kill him, has attacked him with rocks, and has knocked his teeth out. According to Sams, on the night of the incident, when Doe told him she had cheated on him, Sams started packing his bags and was going to leave Doe. When Sams turned around to look at Doe, he saw "something on her leg" and saw that she was "pulling her hair out and punching herself in the face." Sams tried to call a neighbor to intervene but Doe tackled him and held him down. Sams testified that he hit Doe off him, but he denied ever using a knife.
DISCUSSION
I
THE ADMISSION OF EXPERT WITNESS TESTIMONY REGARDING
INTIMATE PARTNER BATTERING AND ITS EFFECTS
A. Sams's Contentions
Sams asserts that the trial court erred in allowing Christian Vaughan to testify on behalf of the prosecution as a domestic violence expert. Sams contends Vaughan's testimony was not relevant, violated Evidence Code section 352, and contained inadmissible hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Sams further argues that the error in admitting Vaughan's testimony was not harmless under any standard and violated his constitutional rights.
We conclude the trial court did not abuse its discretion in admitting Vaughan's testimony. Also, we find no Sanchez violation on the record before us. Because we determine that the trial court did not err, we do not consider Sams's argument regarding prejudicial error.
B. Background
Sams moved to prevent Vaughan testifying as an expert witness on the grounds the testimony would not be relevant. The trial court did not rule on Sams's motion, but stated that it needed to hear Doe's trial testimony before making any decision.
During trial, out of the presence of the jury, the trial court addressed Sams's motion. In denying the motion, the court explained:
"What I indicated at that time when we had the pretrial motions is I actually needed to hear from the alleged victim before I make a decision, so I actually hadn't ruled on the issue yet. It is my position that now that she has testified and I have a better idea of the defense, I think it is proper for the People to call an expert witness in this area.
"First, it is fair to say we excluded most of those jurors who have some domestic violence in their background, so at least, that's the idea of bringing those issues to the fore. People who may have had some history or may have some knowledge about those issues are generally excluded and aren't on the jury.
"So we assume at least for the moment that the jurors that are there don't have a lot of experience in their background. I think it is an uncommon enough experience that it may help the jurors to hear from someone, whether the jurors accept the expertise, the fact that an expert can testify as to what happens in certain domestic violence situations and how people respond to those. Here the alleged victim, at least, tried to minimize your role in things, maximize her role in things.
"Again, she has been really inconsistent in some of the things she said. I think it is fair to allow an expert to talk to the jurors about domestic violence and how that can play out.
"Now, again, the expert wouldn't be allowed to testify that (Jane Doe) is a victim of domestic violence in his opinion. You understand that the questions that I would allow would have to be very general, just in terms of this officer's expertise. These are certain types of things that happen in some domestic violence
situations. It doesn't mean it happens in all situations. It doesn't mean it happened in this situation. I think it would be fair to allow him to opine in this area. So I am ruling to allow the evidence. I will note your objection to it."
Thus, Vaughan, a detective with the Riverside Police Department, testified at trial as a domestic violence expert. He had investigated thousands of domestic violence cases over the past 11 years and had taken numerous classes and trainings on domestic violence.
Vaughan testified about domestic violence generally. He explicitly stated that he was not familiar with the individuals involved in or circumstances of the instant matter. Vaughan explained that abusive relationships go through a cycle of violence including the buildup of tension phase, the acute phase which involves the acting out of violence, and the honeymoon phase where the couple reunites. Because abusive relationships are often characterized by the abuser exerting power and control over the victim, as well as the victim's love of the abuser, it is very difficult for victims to leave abusive relationships and they often do not contact law enforcement. Vaughan explained that it is especially difficult for victims in long term relationships to break out of the cycle of violence and leave the relationship. According to Vaughan, jealousy is one of the most common excuses abusers use to inflict violence. Most of the male abusers Vaughan had interviewed tried to rationalize their abuse by saying they were defending themselves. As for the abuse victims, Vaughan explained that it is common for victims to minimize their injuries or change their story as to how an injury happened. Further, Vaughan stated that victims can sometimes act out violently against their abusers.
Vaughan acknowledged that domestic violence happens to men as well but not at the same frequency as it happens to woman. He also agreed that the most life endangering rate often occurs when the abuser believes the victim is leaving him or her.
C. Standard of Review and Expert Witness Law
Evidence Code section 801 allows expert testimony regarding topics "sufficiently beyond common experience" that will "assist the trier of fact." (Evid. Code, § 801, subd. (a); Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770.) Expert testimony "will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when 'the subject of inquiry is one of such common knowledge that men [and women] of ordinary education could reach a conclusion as intelligently as the witness' [citation]." (People v. McDonald (1984) 37 Cal.3d 351, 367.)
Evidence Code section 1107 explicitly provides for the admission of expert witness testimony regarding intimate partner battering. Subdivision (a) of that code section states: "In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge." (Evid. Code, § 1107, subd. (a).) Further, expert witness testimony regarding intimate partner battering and its effects is admissible if relevant and the subject expert is sufficiently qualified. (See Evid. Code, § 1107, subd. (b).)
Of course, expert witness testimony, like all evidence, is subject to relevancy requirements. As such, expert testimony on intimate partner battering is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; see People v. Riggs (2008) 44 Cal.4th 248, 293 ["[E]xpert [intimate partner battering] testimony is relevant to explain that it is common for people who have been physically and mentally abused to act in ways that may be difficult for a layperson to understand."].) Yet, a trial court, in its discretion, may exclude relevant evidence under Evidence Code section 352 "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
A trial court has broad discretion to admit or exclude expert witness testimony. (People v. McDowell (2012) 54 Cal.4th 395, 426.) We review the admission of an expert witness's testimony under the deferential abuse of discretion standard of review. (People v. Fuiava (2012) 53 Cal.4th 622, 672.)
D. Relevancy and Prejudicial Impact of the Expert's Testimony
There are two major components of a relevance analysis in admitting intimate partner battering testimony. First, there must be sufficient evidence to support the contention that intimate partner battering and its effects apply to the victim. (People v. Gadlin (2000) 78 Cal.App.4th 587, 592 (Gadlin).) Here, there was evidence to support a finding that Doe was a battered partner. In fact, Sams concedes that if "Doe's [trial] testimony was believed at all, whether Doe was a battered [partner] was not in dispute." Thus, Sams does not challenge that intimate partner battering and its effects apply to Doe.
Second, for testimony regarding intimate partner battering to be admissible, there must be a contested issue as to which it is probative. (Gadlin, supra, 78 Cal.App.4th at p. 592.) Such testimony is admissible to disabuse the jury of widely held misconceptions or popular myths. (People v. Morgan (1997) 58 Cal.App.4th 1210, 1214.) It is often admitted to address recantation and reunion by the battered woman, especially where such actions are used to attack the victim's credibility. (Id. at pp. 1215-1217.) It may also be admitted where the victim cooperates with the prosecution when the defense attacks the woman's credibility based on her state of mind at the time of charged and uncharged incidents. (Gadlin, supra, at p. 595.)
Here, Sams contends there was no contested issue as to which intimate partner battering and its effects was probative. To this end, Sams points out that Doe's testimony at trial was consistent "in all significant details" with her earlier statement to the police and the latter of her two statements to child protective services. In this sense, Sams appears to be arguing that intimate partner battering testimony is admissible only if the domestic violence victim recants her testimony. There is no case that supports that proposition. Indeed, Evidence Code section 1107 does not limit evidence of intimate partner battering and its effects to cases in which the victim recanted his or her story.
However, the record indicates that Doe was not consistent about the abuse when she first spoke to a CPS representative. Also, during her testimony at trial, she, at times, minimized Sams's role and maximized her role in the domestic violence situation.
As the People emphasize, Vaughan's testimony about intimate partner battering and its effects was relevant to the issue of Doe's credibility. Doe testified that Sams started physically abusing her in January 2016, after he accused her of cheating. Doe testified that from February through March, Sams hit her 20 to 30 times, with the violence getting worse over time. Doe tolerated the abuse because she was in love with Sams. After one of the incidents, Doe and Sams cried together and had a heart-to-heart discussion. Doe testified that she had initially told a social worker that she injured her leg while shaving because she did not want to give up on her marriage by letting Sams get arrested. Doe also testified that she was physically violent towards Sams on multiple occasions. The jury could have concluded that, given the circumstances, Doe was either lying about the abuse she suffered or should have left the abusive relationship when the abuse first started months earlier. To assist the jury with these issues, Vaughan testified that in his experience, domestic violence victims often do not leave an abusive relationship or report the abuse, lie about what caused their injuries to protect the abuser, and can sometimes physically act out against their abuser. The expert testimony thus was relevant to Doe's credibility.
In addition, Doe's credibility was a significant and disputed issue at trial. During closing argument, Sams characterized Doe's testimony as inconsistent. He asserted that Doe had lied about being abused on many occasions, and he urged the jury not to believe Doe: "If a witness deliberately lied, you should consider not believing anything they [sic] say. [¶] How many lies do we have here? You shouldn't consider anything she says." Moreover, Sams emphasized that, of all the witnesses who testified, Doe was "the only one that [was] not credible[.]" He argued Doe abused him and that she used intimidation, violence, and manipulation to control him in the relationship. Considering Sams's focus on Doe's credibility as well as his claim that she could not be trusted because she had changed her story about how she was injured and had attacked him, Doe's credibility was central to the defense theory. As such, Vaughan's testimony regarding how domestic abuse victims behave was relevant.
Sams next argues that, even if the intimate partner battering evidence was relevant, the trial court erred in not excluding it under Evidence Code section 352. However, Sams does not adequately address the balancing that occurs under Evidence Code section 352, but simply incorporated by reference his relevancy arguments. We thus summarily reject these arguments as undeveloped.
In addition, Sams claims it was prejudicial to him to have a police detective testify as an expert on domestic violence and state that all abusers lie (claiming self-defense and telling outrageous stories to justify their actions). However, Sams does not accurately depict the expert's testimony. Vaughan did not state that all abusers lie or act a specific way. Instead, he testified about various behaviors that abusers and victims may exhibit in a relationship marred by domestic violence. Further, Vaughan did not attribute any of the characteristics of abusive behavior to Sams. Indeed, Vaughan testified that he did not know Sams or Doe and had not looked at a police report "or anything like that" for the instant matter.
In short, on the record before us, Sams has not shown that the trial court abused its discretion in failing to exclude the expert's testimony under Evidence Code section 352. He has not illustrated that the probative value of the evidence was outweighed by the substantial danger that the admission of that evidence produced undue prejudice, confused the issues, or mislead the jury. (Evid. Code, § 352.)
Because we conclude the trial court did not error in admitting the challenged evidence here, we do not reach Sams's claim of constitutional error based on the admission of that evidence. (People v. Mendoza (2011) 52 Cal.4th 1056, 1094 ["Because there is no merit to any of the foregoing evidentiary . . . claims of state law error, it follows that the claimed errors did not violate [the defendant's] state and federal constitutional rights to due process and a fair trial."].) --------
E. Sanchez
In Sanchez, our high court concluded that Evidence Code sections 801 and 802 do not permit an expert to relate to a fact finder case-specific facts about which the expert has no independent knowledge to support the expert's trial testimony. (Sanchez, supra, 63 Cal.4th at pp. 670, 676.) The court considered the admissibility of a gang expert's description of a defendant's contacts with police that was based on "case-specific hearsay" for which no admissible evidence was offered. (Id. at pp. 673-674.) The court overruled prior case law that had permitted the admission of such testimony to establish the basis of the expert's opinion. (Id. at p. 679 [stating that prior "paradigm [permitting an expert to relate case-specific facts to the jury] is no longer tenable because an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury"; italics omitted].) Rather, the court concluded that permitting an expert to relate such case-specific facts to the jury constitutes the recitation of hearsay. (Id. at p. 685 ["when the gang expert testified to case-specific facts based upon out-of-court statements and asserted those facts were true because he relied upon their truth in forming his opinion, he was reciting hearsay"].)
The court summarized its holding as follows:
"In sum, we adopt the following rule: When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth." (Sanchez, supra, 63 Cal.4th at p. 686.)
The court further explained:
"If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner." (Sanchez, supra, 63 Cal.4th at p. 684.)
Here, Sams argues that the admission of Vaughan's testimony violated Sanchez because Vaughan's testimony constituted inadmissible hearsay as he relayed case-specific statements that are prohibited. (See Sanchez, supra, 63 Cal.4th at p. 686.) Specifically, Sams claims Vaughan's testimony was based on his previous "interviews of domestic violence victims and . . . his interrogation of suspected abusers" and that he improperly testified about the statements the victims and abusers made to him.
As a threshold matter, we note and Sams concedes that he did not object to Vaughan's testimony at trial based on Sanchez, supra, 63 Cal.4th 665. Therefore, we agree with the People that Sams has forfeited any objection based on Sanchez. (Cf. People v. Redd (2010) 48 Cal.4th 691, 730 [confrontation clause error forfeited].)
Nevertheless, even if we addressed the merits of Sams's argument, we would find no error. "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth." (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.) The court set forth certain guidelines for admissible and inadmissible expert basis testimony. Experts may rely on background information accepted in the field of expertise, information within their personal knowledge, and nontestimonial hearsay properly admitted under a statutory hearsay exception. (Id. at p. 685.) An expert may also "rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. . . . [¶] What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at pp. 685-686; italics omitted.)
Thus, in Sanchez, supra, 63 Cal.4th 665, the California Supreme Court distinguished when an expert testifies about case-specific facts, essentially repeating those facts to the jury for the truth of the matter asserted, from when an expert relies on hearsay to form his or her opinion, but does not discuss the details of that hearsay. The former situation violates Sanchez, unless a hearsay exception applies or the case-specific facts can be independently proven. The latter circumstance does not violate Sanchez.
Here, Vaughan offered no case-specific facts. "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) Vaughan did not express any opinions about the instant matter. He did not know Sams or Doe. He was not familiar with the underlying facts of this case. Vaughan did not give an opinion, even in response to a hypothetical question, regarding the specific actions and behaviors in the instant case. To the contrary, Vaughan only testified about general behaviors of abusers and victims involved in domestic violence situations. He did so based on his extensive experience and training.
In summary, Vaughan testified based on matters within his own personal knowledge and offered no case-specific facts. Sanchez does not prohibit such evidence. (See Sanchez, supra, 63 Cal.4th at p. 675.)
II
THE FIVE-YEAR SENTENCE BASED ON THE JUVENILE ADJUDICATION
Sams maintains, and the People concede, that the five-year enhancement the court imposed for his prior juvenile adjudication of murder could not be used as a basis for enhanced sentence under section 667, subdivision (a). We agree.
Section 667, subdivision (a)(1) provides in relevant part: "any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately." However, a prior juvenile adjudication cannot be used to enhance an adult criminal sentence under section 667, subdivision (a). (People v. West (1984) 154 Cal.App.3d 100, 103; People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10; People v. Garcia (1999) 21 Cal.4th 1, 14.)
In the instant matter, the trial court found that Sams had two prior convictions under section 667, subdivision (a): a juvenile adjudication for murder and a 1997 conviction for criminal threats. The court then imposed a five-year term for the prior juvenile adjudication and the criminal threats conviction. Under California law, the trial court erred in enhancing Sams sentence under section 667, subdivision (a) based on the juvenile adjudication. (See People v. West, supra, 154 Cal.App.3d at p. 103.) That five-year sentence must be stricken.
DISPOSITION
The five-year sentence under section 667, subdivision (a) based on Sams's juvenile adjudication for murder is stricken. In all other respects, the judgment is affirmed. This matter is remanded to the superior court to amend the abstract of judgment consistent with this opinion. The superior court is to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. BENKE, J.