Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge, Super. Ct. No. SCD197347.
IRION, J.
A jury convicted Lorenzo Smith of robbery (Pen. Code, § 211). Smith admitted a prior strike conviction, and was sentenced to six years in prison under the "Three Strikes" law.
All statutory references are to the Penal Code unless otherwise indicated.
Smith appeals, contending that his conviction must be reversed because the trial court erred in ruling that an out-of-court statement offered by the defense was not admissible under Evidence Code section 1230's exception to the hearsay rule for statements against penal interest. Smith also contends that his sentence is invalid because the trial court abused its discretion in declining to strike his prior strike, and because the court violated his federal constitutional right to a jury trial by relying on the prior juvenile adjudication to enhance his sentence under the Three Strikes law. As discussed in greater detail below, we conclude that Smith's contentions lack merit, and affirm.
FACTS
In the afternoon of February 10, 2006, 17-year-old Christopher E. was skateboarding home, listening to an MP3 player (a digital audio player), when he passed five teenaged males. Christopher recognized two of the men, Smith and Smith's brother M., who he knew from high school. Christopher also recognized a third male, Richard C., with whom he had skateboarded and played baseball. After passing the teenagers, Christopher heard loud hollering from behind him; he stopped and took off his headphones as the five teenagers caught up to him.
Many of those involved in the underlying incident are juveniles. As is customary, we refer to these persons and their immediate family members by their first names or, in the case of Smith's brother, by first initial, to protect their anonymity.
The teenagers surrounded Christopher, and Smith stated, "Give me your money" in an "aggressive and angry" manner. Smith and M. were right next to Christopher when the demand was made, while the other three teenagers had "backed off." Christopher stated he only had $2, and handed over the money because he was afraid that if he did not, he would be beaten. After Christopher turned over the $2, M. instructed Christopher to give him the MP3 player. When Christopher hesitated, M. and Smith started to put on baseball batting gloves. Smith and M. then said, "Give it over"; Christopher, again fearing imminent harm, gave M. the MP3 player.
When Christopher returned home, he told his father what had happened. Christopher's father, Frank, a Naval officer, got into a pickup truck with Christopher and drove to a nearby youth center where they located the five teenagers in the parking lot. Frank parked the truck, got out and asked the teenagers, "Where's my son's MP3 player?" and said, "I want it back." Smith stated, "Nigger, I don't know what you're talking about. Ain't nobody taking any of this shit." Smith and his brother approached Frank, got on either side of him and began putting on batting gloves. From their manner, Frank assumed they were preparing to "start swinging." Feeling threatened, Frank stuck his hand in the back of his truck to get the boys to "think about something besides me." When Smith perceived Frank reaching into his truck, Smith made reference to Frank's having a gun in the truck, and said, "[Y]ou got it, we can go get them, too." Frank stopped asking for the MP3 player "[o]nce the reference was made [to] weaponry." At that time, a bus arrived and Smith got on the bus, and the other four teenagers crossed the street.
The Attorney General states in its brief that Christopher and his father, like Smith and his brother, are African-American.
Later that same day, Christopher met up with some friends and told them what had happened. Christopher and his friends subsequently encountered the five teenagers and a fight broke out. The police were called, and when they arrived to investigate, Christopher told them about the earlier theft. The police soon located M. at a nearby McDonald's and arrested him. After detaining M., the police found Christopher's MP3 player and $2 in cash hidden in the lining of M.'s jacket.
DISCUSSION
Smith contends that both his conviction and sentence are invalid. We address each of these contentions below.
I
The Trial Court Did Not Abuse Its Discretion in Excluding Richard's Statements About the Incident as Hearsay
Smith contends that we must reverse his conviction because the trial court abused its discretion in excluding out-of-court statements made by Richard (one of the teenagers present during the robbery) regarding the incident on hearsay grounds. We evaluate this contention after setting forth the relevant procedural history.
A. Procedural History
After the robbery, a defense investigator interviewed Richard. A copy of the investigator's statement regarding the interview was provided to defense counsel as well as to the prosecutor. During a pretrial hearing, defense counsel informed the court that Richard was a potential defense witness. After further discussion, the court suggested that Richard might have a Fifth Amendment privilege not to testify, and appointed counsel to advise Richard.
Later in the day, court-appointed counsel for Richard, after speaking with his client, informed the court that Richard intended to invoke his Fifth Amendment right not to testify. Specifically, counsel stated that Richard would likely refuse to answer "anything about the facts of the case or of the incident," noting that "the statements he's alleged to have made to an investigator, although certainly not enough to be dispositive as to a charge, . . . could be inculpatory as to leading towards possible elements of the charge." The prosecutor agreed, adding that according to the defense investigator's statement: Richard had placed himself "at the location," which "arguably could lead to . . . aiding and abetting charges"; and also that Richard "talks about the guys being hungry and not having any money and then asking the victim for money, things of that nature."
The court indicated that it was "inclined to . . . honor" an invocation of Richard's Fifth Amendment privilege. It stated, however, that any such ruling would be premature and the court would "order [Richard] back at some time certain" for a hearing regarding the extent of his refusal to testify. Defense counsel stated, "I don't think that's necessary to order him back"; instead, counsel said he would speak informally to Richard and his counsel. After speaking with Richard and engaging in a further colloquy with the trial court, defense counsel stated he no longer intended to call Richard as a witness. With defense counsel's approval, the court then excused Richard.
Later in the proceedings, after the prosecution rested its case, defense counsel stated his intention to introduce Richard's statement to the defense investigator as a statement against penal interest under Evidence Code section 1230. The prosecutor objected on the ground that the statements contained in the investigator's report were not sufficiently incriminatory to satisfy the requirements of Evidence Code section 1230. The prosecutor summarized Richard's statements in his argument, stating:
"Essentially the only way in which he incriminates himself is basically by placing himself there at the location and in the group of men. He doesn't say that he took anything, that he did anything. The only additional thing I believe is he indicates that the boys were hungry and they didn't have any money, or he says M[.] -- [Smith] himself and two other guys were all hungry and didn't have any money[. O]ther than that he doesn't really incriminate himself other than by indicating that he was present, he was one of the five boys who were around or in the general area of the victim when the robbery took place."
Without taking issue with the prosecutor's characterization of Richard's out-of-court statements, defense counsel argued that the statements were sufficiently against Richard's penal interest for purposes of Evidence Code section 1230 for the same reasons "he was able to utilize the [Fifth Amendment] privilege." Defense counsel added that the investigator would testify that Richard "didn't believe that at least the initial portion [of the incident] was confrontational, although he was in a position to observe it." Under questioning from the court, defense counsel acknowledged that he "doubt[ed]" that the investigator indicated to Richard during his interview that Richard might be a suspect and thus potentially subject to criminal prosecution.
At the conclusion of the colloquy, the trial court ruled that Richard's out-of-court statements were inadmissible. In doing so, the court emphasized that the privilege against self-incrimination has a "much broader" scope than the declaration against penal interest exception to the hearsay rule, and that at the time of the defense interview (months after the initiation of proceedings against M. and Smith), Richard likely "thought this was over" and would not reasonably have believed his statements could subject him to criminal liability.
B. Analysis
Under the Evidence Code, "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" constitutes hearsay and, absent a hearsay exception crafted by case law or statute, is inadmissible. (Evid. Code, § 1200, subds. (a), (b).) Richard's out-of-court statements to the defense investigator fit squarely within this statutory definition of hearsay and thus could only be introduced through an applicable hearsay exception.
Smith contends that the statements were admissible under Evidence Code section 1230, which states that an out-of-court statement is not barred by the hearsay rule if the statement "so far subjected [the declarant] to the risk of . . . criminal liability" that "a reasonable man in his position would not have made the statement unless he believed it to be true." Smith argues that the trial court's failure to admit the statements under this section constituted an abuse of the court's discretion. We disagree.
A second requirement of Evidence Code section 1230 is that the declarant must be "unavailable as a witness." (Ibid.) We assume, without deciding, that Richard's anticipated invocation of his Fifth Amendment privilege rendered him unavailable for purposes of Evidence Code section 1230. (People v. Duarte (2000) 24 Cal.4th 603, 609 [witness who invoked his Fifth Amendment right was unavailable as a witness for hearsay rule purposes].)
A trial court's determination of the applicability of Evidence Code section 1230 is reviewed for an abuse of discretion. (People v. Lawley (2002) 27 Cal.4th 102, 153 (Lawley).) We can reverse a conviction on this ground only " ' "on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Geier (2007) 41 Cal.4th 555, 585.)
Our review of the instant challenge establishes that the trial court did not abuse its discretion in concluding that Smith failed to make the necessary showing under Evidence Code section 1230. First, the portion of Richard's out-of-court statement that the incident, at least initially, was a consensual exchange and not a robbery, is exculpatory not inculpatory, and so falls outside Evidence Code section 1230's requirement that each statement admitted under the section be " ' "specifically disserving to the interests of the declarant." ' " (Lawley, supra, 27 Cal.4th at p. 153.) Second, the balance of the statement proffered to the trial court — that Richard was present when M. and Smith robbed Christopher, and that prior to the robbery the group wanted money to get something to eat — is not sufficiently inculpatory, in context, for us to conclude that the statements were, as a matter of law, admissible under Evidence Code section 1230. The trial court rationally could have concluded that a reasonable person would not necessarily believe that a statement acknowledging his presence at the scene of a robbery and knowledge of the group's desire for money to eat, absent any action in furtherance of the robbery, would subject him to a risk of criminal liability. This is particularly true where the statements were made to a defense investigator at a time when it appeared that the prosecuting agency had concluded that the declarant would not be charged with any crime. (See Lawley, at p. 153 [Evid. Code, § 1230 determination can only be made "by viewing the statement in context"]; cf. People v. Frierson (1991) 53 Cal.3d 730, 745 [holding that trial court did not abuse its discretion in excluding a statement under Evid. Code, § 1230 that a third person had confessed to shooting the victim because the "statement was made to a defense investigator just before defendant's third trial, some fourteen years after the . . . shooting"].)
Smith's contention that the trial court's Evidence Code section 1230 ruling is flawed because it conflicts with its declared intent to honor Richard's invocation of his Fifth Amendment privilege is unavailing. As the trial court noted, the Fifth Amendment protection against self-incrimination applies to a much broader universe of statements than does Evidence Code section 1230's exception for statements against penal interest. Under the Fifth Amendment to the federal Constitution, as well as article 1, section 15 of the California Constitution, and Evidence Code section 940, "a person has a privilege to refuse to disclose any matter that may tend to incriminate him." (Evid. Code, § 940, italics added; see Brown v. Superior Court (1986) 180 Cal.App.3d 701, 708.) Evidence Code section 1230, however, applies to a much narrower set of statements — those that "so far subject [the declarant] to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." (Ibid.) Given these different standards, "[i]t is well recognized that the assertion of the privilege against self-incrimination does not automatically make the witness' extrajudicial declarations admissible under [Evidence Code] section 1230." (People v. Johnson (1974) 39 Cal.App.3d 749, 761 ["It is equally manifest that the sheer probability of self-incrimination did not provide sufficient grounds for admissibility under [Evidence Code] section 1230 as well"].)
Smith also contends that the trial court abused its discretion because it did not "review the statement" given by Richard to the defense investigator or hold a hearing to fully inform itself of those statements. We disagree.
It was Smith as the proponent of the evidence, not the trial judge, who had the burden of demonstrating the admissibility of Richard's out-of-court statements, and thus bore the burden of placing those statements squarely before the court. (Lawley, supra, 27 Cal.4th at p. 153.) In addition, there is no reason to believe that the pertinent statements were not, in fact, placed before the trial court. The trial court repeatedly solicited information regarding Richard's out-of-court statements from counsel during the colloquy on the question of their admissibility. At the outset of the inquiry, the court stated, "What do you understand to be the substance of" the statements, after which both the prosecutor and defense counsel spoke at length, both touching on the specifics of Richard's out-of-court statements. At a later point in the colloquy, the court again told defense counsel, "You tell me what do you think your investigator's testimony will be," and offered to provide a break in the proceedings for defense counsel to further discuss the interview with the investigator, which counsel declined, stating that such a discussion was unlikely to produce any further information. Finally, the court, in ruling on the defense request, included an invitation to further discuss the matter, stating, "That's my ruling unless you want to pursue it further." Defense counsel made no further effort to raise the issue. Consequently, given the lengthy colloquy and the repeated opportunities for defense counsel to identify any specific statements made by Richard that he believed were admissible, we cannot fault the trial court for failing to further explore the substance of the statements.
Despite Smith's assertion on appeal that the trial court failed to fully inform itself of the pertinent statements, there is, in fact, no suggestion in the record, or on appeal, that any pertinent out-of-court statement by Richard was not presented to the trial court.
Finally, Smith asserts that the application of Evidence Code section 1230 to bar Richard's out-of-court statements to the defense investigator violated Smith's federal constitutional right to a fair trial. This claim is without merit. Our high court has explained in this very context that, except in unusual circumstances, " ' "the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense." ' " (Lawley, supra, 27 Cal.4th at p. 155.) We believe this general rule fully applies here, where the court's ruling excluded hearsay statements that did not fall within any recognized hearsay exception, and thus are widely recognized as unreliable, and did not significantly limit Smith's presentation of the relevant exculpatory facts to the jury. (Chambers, supra, 410 U.S. at p. 302 ["the accused . . . must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence"].)
We do not believe that Smith forfeited this claim as the Attorney General contends. Even if Smith did not object on constitutional grounds at trial, he is still permitted to argue on appeal that the trial court's ruling, in addition to violating the particular legal provision noted in his trial objection, had "the additional legal consequence of violating" the Constitution. (People v. Partida (2005) 37 Cal.4th 428, 435.)
In addition to establishing that Richard and Christopher were school acquaintances and had played on the same baseball team, defense counsel was also able to present through a favorable trial witness (Smith's brother, M.) a narrative of the robbery that, in line with defense counsel's claim as to Richard's statements, suggested that the initial encounter involving Smith's obtaining $2 from Christopher was consensual.
II
The Trial Court Did Not Abuse Its Discretion in Declining to Strike a Strike
On appeal, Smith also challenges the validity of his sentence, contending that the trial court abused its discretion in declining to strike his strike prior. We disagree. While Smith's arguments might be persuasive were we deciding the issue in the first instance, we do not believe he has carried his heavy burden of establishing that the trial court — the tribunal that the Legislature empowered to make the determination — abused its discretion.
Smith contends that the trial court should have struck the strike because: three of the five teenagers present during the robbery were not prosecuted; the theft of $2 and a MP3 player was relatively minor and did not result in physical injury; and M. reportedly received only six days' community service as punishment for his participation in the robbery.
A trial court may strike a prior strike under the Three Strikes law on its "own motion or upon the application of the prosecuting attorney . . . in furtherance of justice." (§ 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 158 (Williams), citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) In determining whether to do so, the court "must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, at p. 161.)
The trial court's "failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374.) In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, " ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary." ' " (Id. at p. 376.) " ' "In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' " (Id. at pp. 376-377.) Second, " ' " '[a]n appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge,' " ' " and consequently, the trial court's " ' "decision will not be reversed merely because reasonable people might disagree." ' " (Id. at p. 377.) Taken together, these two precepts establish the overarching principle on review that "a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Ibid.)
In the instant case, there is no dispute that Smith's prior juvenile adjudication for a home invasion robbery brought Smith within the letter of the Three Strikes law as a second strike offender. (People v. Garcia (1999) 21 Cal.4th 1, 13 [recognizing that "a prior juvenile adjudication qualifies as a prior felony conviction for Three Strikes purposes" where certain conditions, not challenged here, are met].) Consequently, the trial court was required to sentence Smith in accordance with the Three Strikes law unless it found that Smith fell "outside the [sentencing] scheme's spirit, in whole or in part." (Williams, supra, 17 Cal.4th at p. 161; see §§ 667, subd. (f)(1), 1170.12, subd. (d)(1) [the Three Strikes law "shall be applied in every case in which a defendant has a [qualifying] prior felony conviction"].)
We cannot conclude that the trial court's determination that Smith did not fall outside the spirit of the Three Strikes law constitutes an abuse of discretion. The trial court, in a lengthy discussion regarding the proper treatment of the prior strike, identified pertinent factors specific to the criminal offense and the offender (Smith) that rationally could support its conclusion that Smith fell within the spirit of the Three Strikes Law. The court noted that the testimony showed that Smith was "the moving force" behind the robbery and had a "significant prior record as a juvenile" with little intervening time between offenses. Indeed, the probation report prepared in anticipation of sentencing shows that, despite his youth, Smith has a lengthy criminal record, including the prior strike offense — characterized by the trial court and defense counsel as "very serious" — where Smith and an accomplice invaded a home and beat and tied up the couple who were living there prior to robbing them. This pattern of ongoing and at times gravely serious criminal conduct is exactly the type of consideration that trial courts may properly rely on to determine that a defendant falls squarely within the spirit of the Three Strikes law. (People v. Strong (2001) 87 Cal.App.4th 328, 338 ["longer sentences for career criminals who commit at least one serious or violent felony certainly goes to the heart of the statute's purpose — or spirit"].) In addition, while the instant offense may not have been the most serious of robberies, the testimony at trial showed not merely Smith's participation in the robbery itself, but also his aggressive confrontation with Christopher's father, where Smith appeared ready to significantly escalate his criminal conduct (putting on what Smith refers to in a sentencing report as his "knock-out gloves" and threatening to obtain a firearm) in order to protect his ill-gotten gains. In sum, while there may have been contrary factors that would have supported a decision to strike a strike, such as Smith's relative youth, there is a sufficient basis in the record for the trial court to have concluded that Smith fell within the spirit of the Three Strikes law. Consequently, we cannot conclude that the trial court abused its discretion by declining to strike Smith's prior strike.
In 1999 Smith was placed on probation for theft; in 2000 he was arrested and adjudged a ward of the court after a residential burglary and a separate incident of theft; in 2001 he was arrested again after a residential burglary and continued as a ward of the court; twice in 2002 he was arrested in two separate incidences of shoplifting, and continued as a ward; in 2004 he was arrested after a residential burglary in which he and a companion forced entry into a home, attacked the two inhabitants, tied up them up with duct tape and stole one of the victim's purse.
Smith also asserts that because the trial court stated that the instant offense was not "de minimis" but appeared to warrant a middle term, it "ignored the range of available sentences." There is nothing in the record, however, that would indicate that the trial court was not aware of the full range of available sentencing options and, consequently, no basis for reversal on this ground. (See People v. Mosley (1997) 53 Cal.App.4th 489, 496 [recognizing that "[t]he general rule . . . that a trial court is presumed to have been aware of and followed the applicable law" applies with equal force "to sentencing issues"].)
III
The Trial Court's Reliance on Smith's Prior Juvenile Strike Did Not Violate His Federal Constitutional Right to a Jury Trial
In a supplemental brief, Smith contends that the trial court's use of his prior juvenile adjudication for home invasion robbery as a "strike" to impose an enhanced sentence under the Three Strikes law violated his constitutional rights as set forth by the United States Supreme Court in a line of cases including Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 864; 127 S.Ct. 856, 860] (Cunningham). For support, Smith cites a recent opinion by our colleagues in the Sixth District, People v. Nguyen (2007) 152 Cal.App.4th 120; however, our Supreme Court granted review in that case on October 10, 2007, S154847, and thus it is no longer citable. (See Cal. Rules of Court, rules 8.1105(e), 8.1115 ["an opinion is no longer considered published if the Supreme Court grants review" and then "must not be cited or relied on by a court or a party in any other action"].)
Separate and apart from the depublication of the authority upon which Smith relies, we conclude there was no constitutional violation in the instant case. Smith admitted prior to sentencing that he had a juvenile strike, placing this case within a different exception to the jury trial requirement announced in the Apprendi line of cases than that considered in the case relied upon by Smith.
Prior to sentencing in the instant case, the trial court informed the defendant that he had "the right to have [a] trial by these 12 jurors" on the juvenile prior, and asked, "Do you waive trial by jury on the prior?" Smith responded, "I waive," and defense counsel stated he concurred in the decision. Smith later reiterated his waiver and admitted the strike prior. Smith did not dispute at trial, and does not dispute on appeal, the existence of the strike prior or the facts underlying that offense. In fact, Smith described the underlying facts in some detail in a sentencing report submitted by the defense, noting that he had believed there would be $10,000 in the house, had thought there would only be "a teenage girl" inside, and "got in a fight" with the occupants prior to restraining them with tape.
As our Supreme Court has explained, there are "two exceptions to a defendant's Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury's verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction." (People v. Sandoval (2007) 41 Cal.4th 825, 836-837 (Sandoval), italics added.)
Were we required to apply the second exception noted above — the so-called Almendarez-Torres exception — Smith's argument might be persuasive, for the Almendarez-Torres exception relies on the assumption that a "fact of a prior conviction" is supported by an underlying jury verdict. (See Jones v. U.S. (1999) 526 U.S. 227, 249 [distinguishing holding in Almendarez-Torres on the ground that "unlike virtually any other consideration used to enlarge the possible penalty for an offense, . . . a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees"]; Apprendi, supra, 530 U.S. at p. 496 [emphasizing in distinguishing Almendarez-Torres that "there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof"].) In the instant case, however, we need not consider the applicability of the Almendarez-Torres "fact of a prior conviction" exception, because the trial court's reliance on the fact of Smith's prior juvenile adjudication falls squarely with the first of the two separate exceptions recognized by our Supreme Court for a fact "admitted by the defendant." (Sandoval, supra, 41 Cal.4th at pp. 836, 837; Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d at p. 864; 127 S.Ct. at p. 860] ["the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant"].)
Almendarez-Torres v. United States (1998) 523 U.S. 224.
As noted above, Smith waived a jury trial on the fact of his prior juvenile adjudication and admitted that fact prior to sentencing. Consequently, the juvenile strike prior was a "fact admitted by the defendant" and could permissibly, under established precedent, be relied upon to double his sentence under the Three Strikes law. (Sandoval, supra, 41 Cal.4th at p. 836; People v. Buchanan (2006) 143 Cal.App.4th 139, 149 [holding that trial court could permissibly impose a Three Strikes sentence based on defendant's admission of two juvenile strikes].)
This case does not present, and thus we do not address, the question of whether a trial court could impose an upper term under section 1170, subdivision (a)(3) based on a prior juvenile adjudication.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., AARON, J.
The instant case, thus, contrasts sharply with the case cited by Smith for his constitutional argument, Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers). In Chambers, a state court excluded the testimony that a person other than the defendant confessed to the charged murder on three separate occasions on the grounds that Mississippi did not recognize a hearsay exception for statements against penal interest. (Id. at pp. 298-299.) The United States Supreme Court found that the defendant's federal constitutional rights to a fair trial were violated because "[t]he testimony rejected by the trial court . . . bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest" and "was critical to Chambers' defense." (Id. at p. 302.)