Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA070081 Edward B. Moreton, Jr., Judge.
Jennifer Mack, 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, Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Defendant/Appellant Corey Vincent Shaw was convicted by jury of first degree residential burglary (Pen. Code, § 459) and receiving stolen property (Pen. Code, § 496, subd. (a)). The trial court found true the allegations of prior convictions. On the burglary charge, Appellant was sentenced to the middle term of four years, which was doubled as a second strike, plus a one-year enhancement for a prior conviction. (§§ 461, 667, 667.5, 1170.12.) On the stolen property charge, Appellant was sentenced to one-third the middle term of 24 months, which was doubled to 16 months. (§§ 496, 1170.1.) The sentences were imposed consecutively, for a total sentence of 10 years 4 months.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Appellant challenges only his sentence. He contends that the trial court erred In relying on a juvenile adjudication in increasing his sentence. Appellant’s second contention is that the trial court erred in staying, rather than striking, a one-year sentence enhancement for one of his prior convictions. We will hold that the trial court did not err in relying on Appellant’s juvenile adjudication in imposing sentence. The trial court did, however, err in staying the enhancement, rather than imposing it or striking it. We therefore will affirm in part and reverse in part and remand for the court to either impose or strike the enhancement.
Because Appellant raises only sentencing issues, we include a general summary of the underlying facts.
I. Factual Background
A. Counts One and Four
On November 28, 2007, Greg Morena left for work around 9:00 a.m. and returned around 12:30 p.m. When he returned, he found that his home had been ransacked and that numerous items were missing. On December 6, 2007, Morena identified many of the missing items at the Inglewood Police Department, which had recovered the items from Appellant and codefendant Cecil Johnson.
Johnson is not a party to this appeal.
B. Count Two
On November 28, 2007, Donnie Burks left his home around 11:20 a.m. After he left, his neighbor, Ottha Willis, noticed an unfamiliar grey SUV pulling into Burks’s driveway. Willis became suspicious after seeing an African American man get out of the car and stay near Burks’s front door, so Willis took a picture of the car. Willis then saw the car drive slowly down the street, make a u-turn, and then park in front of Burks’s home; a passenger got out of the car and entered Burks’s back yard through a side gate. Willis called 911. Willis did not watch through his window the entire time, but he later saw two African American men wearing gloves exit Burks’s yard and get in the passenger side of the car. Officer Jose Gonzalez responded to Willis’s call and saw Appellant and another African American man leave Burks’s home and enter the grey SUV.
After the men entered the car, the driver of the car quickly drove away. Police officers stopped the car down the street from Willis’s home and ordered the men out of the car. Officers found screwdrivers, a jewelry box, and an iPod in the back of the SUV. Officers later examined Burks’s home and found that a window screen had been removed and the home had been ransacked.
II. Procedural Background
Appellant and Johnson were charged in a four-count information. Appellant was charged with two counts of first degree residential burglary and one count of receiving stolen property. (§§ 459, 496, subd. (a).) The information further alleged that Appellant had suffered a prior juvenile adjudication for purposes of the Three Strikes law, sections 667 and 1170.12, and that he had served two prior prison terms for purposes of the one-year sentencing enhancement of section 667.5, subdivision (b).
Following a jury trial, Appellant was convicted of count two, first degree burglary of Burks’s home, and count four, receiving stolen property. The jury deadlocked as to count one, so the trial court declared a mistrial as to that count.
Appellant waived his right to a jury trial on the prior conviction allegations and asked for a court trial. At the June 2008 trial on the prior conviction allegations, the prosecutor presented evidence that a juvenile petition was sustained against Appellant in 1998 for attempted murder. The prosecutor also submitted into evidence a document certified by the Arizona Department of Corrections showing that Appellant had a felony narcotics conviction in March 2003 in Arizona. Evidence was presented that Appellant suffered a felony conviction for possession of a firearm by a felon in 2005.
The transcript uses a March 2008 date, but the record otherwise indicates that the date of the Arizona conviction should be March 2003.
The court found true the allegations of three prior convictions: (1) the April 1998 juvenile adjudication for attempted murder; (2) the 2003 narcotics conviction in Arizona; (3) the 2005 conviction for felon in possession of a firearm. On count two, the burglary charge, Appellant was sentenced to the middle term of four years, which was doubled to eight years as a second strike under the Three Strikes law. (§§ 461, 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) As to count four, the court imposed one-third of the mid term of two years, eight months, which was then doubled to one year and four months under the Three Strikes law. (§§ 1170, 1170.1.) As to the prior conviction allegations, the court stated that it would “stay the sentence on the two older priors, the Arizona drug conviction.” The court then imposed a one-year enhancement for Appellant’s 2005 conviction for possession of a firearm by a felon. The court imposed the sentences to be served consecutively, resulting in a total sentence of 10 years 4 months.
The court imposed a $200 restitution fine, a $200 parole revocation fee that was stayed pending successful completion of parole, and a $20 court security fee for each of the two counts of conviction. The court also found that Appellant had credit for 239 actual days plus 118 days good time/work time credit. Appellant filed a notice of appeal.
DISCUSSION
Appellant challenges his sentence on two grounds. First, Appellant contends that the trial court erred in relying on his juvenile adjudication as a prior qualifying felony for Three Strikes purposes because such use violates the United States constitution. Appellant’s second contention is that the trial court erred in staying, rather than striking, the one-year sentencing enhancement for his 2003 Arizona narcotics conviction.
I. Prior Juvenile Adjudication
Appellant acknowledges that the California Supreme Court has held that the use of a prior juvenile adjudication to increase a sentence does not violate the United States Constitution, even though there was no right to a jury trial in the juvenile proceeding. (People v. Nguyen (2009) 46 Cal.4th 1007, 1010 (Nguyen).) Nonetheless, Appellant urges us to hold, contrary to Nguyen, that the trial court erred in relying on his juvenile adjudication.
This court is bound to follow California Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We decline Appellant’s invitation to ignore Nguyen. We therefore hold that the trial court did not err in relying on Appellant’s juvenile adjudication in imposing sentence.
II. Section 667.5
Under section 667.5, subdivision (b), “the court shall impose a one-year term for each prior separate prison term served for any felony.” (§ 667.5, subd. (b).) “Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]” (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Here, the trial court stated that it was staying the enhancement as to Appellant’s 2003 Arizona narcotics conviction. Appellant contends that this was error and asks this court to strike the enhancement and amend the abstract of judgment.
Respondent concedes that the trial court erred in staying the enhancement. Respondent contends, however, that this court should remand in order for the trial court to either strike or impose the enhancement.
When the trial court here stayed the imposition of the enhancement, it did not explain the reason for the stay. Thus, contrary to Appellant’s argument, it is not clear from the record that the trial court actually intended to strike the enhancement. We therefore reject his contention that we should strike the enhancement. Instead, we will remand for the trial court to impose or strike the enhancement. (See People v. Garcia (2008) 167 Cal.App.4th 1550, 1563 [“Once the remittitur issues, the trial court is to exercise its discretion to impose or strike all or some of the five section 667.5, subdivision (b) enhancements as to count 3.”]; People v. Solórzano (2007) 153 Cal.App.4th 1026, 1041 [remanding for the trial court to exercise its discretion and to impose or strike a prison term prior].)
DISPOSITION
The judgment of conviction is affirmed. The judgment is reversed only as to the trial court’s stay of the enhancement for Appellant’s 2003 Arizona conviction. The matter is remanded with directions to the court to either strike or impose the enhancement for the Arizona conviction. In all other respects, the judgment is affirmed.
We concur: ROTHSCHILD, Acting P. J. JOHNSON, J.