Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-064925B
NICHOLSON, J.
Defendant Kenneth Paul Winston appeals from the sentence imposed following his plea of no contest to first degree residential robbery (Pen. Code, § 211) and his admissions of personal use of an Uzi assault machine gun (§ 12022.5, subd. (b)) and having sustained a prior juvenile adjudication. Defendant argues the court erred in using his prior juvenile adjudication as a strike and that the court abused its discretion in denying his Romero motion. We affirm.
Further undesignated statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts are taken from the probation report.
On October 29, 2006, defendant and his cohort, Joseph Garcia, entered victim’s home through an unlocked sliding glass door, intending to steal money and marijuana. Defendant was armed with a loaded Uzi assault machine gun, and Garcia was armed with a .45 caliber snub-nosed revolver. Patrick Rowe and his girlfriend were asleep in their bedroom when defendant and Garcia came into their room, pointed their guns at Patrick and his girlfriend and demanded guns and money from them. Patrick told them he did not have any firearms and only had $250 in cash in his pants pocket. Patrick’s girlfriend told them she had money in her purse. Garcia hit Patrick with his gun. Defendant and Garcia took Patrick’s wallet, his girlfriend’s purse, a cell phone, a loaded firearm magazine and a backpack containing over 220 grams of marijuana.
Defendant was charged with two counts of first degree residential robbery (§ 211), residential burglary (§ 459), and two counts of assault with a machine gun or assault weapon (§ 245, subd. (a)(3)). It was further alleged defendant personally used an Uzi assault weapon. (§ 12022.5, subd. (b).) Lastly, it was alleged defendant had previously suffered a conviction or juvenile adjudication for a serious or violent felony. (§§ 667, subds. (b)-(i), 1170.12, subd. (a); Welf. & Inst. Code, § 707, subds. (b) & (d).)
Defendant pled no contest to one count of first degree residential robbery and admitted he personally used an Uzi machine gun. Defendant also admitted he acquired a prior juvenile adjudication. Defendant waived his rights under People v. Blakeley (2000) 23 Cal.4th 82. Defendant also expressly reserved his rights to bring a Romero motion. Following the plea, the Sixth District Court of Appeal held that juvenile adjudications could not be used as prior strike enhancements. (People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847.) Accordingly, defendant filed his Romero motion and, relying on Nguyen, argued his prior juvenile adjudication could not be used as a strike. In addition to writing letters on defendant’s behalf, a number of witnesses testified on defendant’s behalf at the sentencing hearing, including his mother, defendant’s pastor, Pastor Cotton, and defendant’s stepfather. Defendant also made a statement in support of the Romero motion.
The Supreme Court has granted review on this case. It is cited here only for reference to the procedural background of this case, not for any precedential value.
The court declined to follow the Nguyen decision. The court also denied defendant’s Romero motion, finding “defendant clearly comes within the spirit of the three strikes law and should be sentenced accordingly.” Defendant was sentenced to the middle term of four years, doubled to eight years pursuant to the prior strike, with an additional six years for the weapons use enhancement, for an aggregate sentence of 14 years.
DISCUSSION
I
Defendant contends the trial court should not have treated his prior juvenile adjudication as a strike and in doing so violated his Sixth and Fourteenth Amendment rights. As defendant notes, this issue is currently pending before the California Supreme Court in People v. Nguyen, supra.
The majority of courts to have considered this issue, including every California appellate court besides the Sixth Appellate District in Nguyen and every federal appellate court besides the 9th Circuit in United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1193-1194 (Tighe)), have rejected this argument. A juvenile’s guilt must be established beyond a reasonable doubt, and the juvenile is afforded protection against double jeopardy (Welf. & Inst. Code, §§ 602, 701; People v. Fowler (1999) 72 Cal.App.4th 581, 585), the juvenile has the right to notice (Welf. & Inst. Code, § 658) the right to counsel (id. at § 679), and the right to confront and cross-examine witnesses (id. at § 702.5), and the privilege against self-incrimination (ibid.). Thus, the general reasoning has been that even without benefit of a jury trial, in California a juvenile adjudication has sufficient procedural safeguards to permit a trial court to use it to enhance a sentence without violating the defendant’s constitutional rights. (E.g., People v. Fowler, supra, 72 Cal.App.4th at p. 585; People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-831 (Andrades); People v. Lee (2003) 111 Cal.App.4th 1310, 1314-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1079.)
We continue to find the reasoning and considerations of the majority of opinions to be persuasive. Given that juvenile adjudications are fully consistent with constitutional principles and sufficiently reliable for juvenile court purposes, even in the absence of the right to a jury trial, we see no reason to preclude their use by trial courts in enhancing criminal defendants’ sentences. These rights and protections extended to juveniles in California make the juvenile adjudicative process sufficiently reliable to satisfy the due process concerns expressed in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]. (Andrades, supra, 113 Cal.App.4th at pp. 833-834.)
II
Defendant next contends the trial court abused its discretion in denying his Romero motion to dismiss the juvenile adjudication, contending his “situation is one which does not fall within the spirit and intention of the Three Strike[s] Law.” We find no abuse of discretion. A trial court has the discretion to strike a prior serious felony conviction for purposes of sentencing only if the defendant falls outside the spirit of the “Three Strikes” law. (§ 1385; People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to do so, the court “must consider whether, in light of the nature and circumstances of his 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, supra, 17 Cal.4th at p. 161.)
The trial court’s “failure to . . . 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 (Carmony).) 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. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.] Taken together, these precepts establish 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.” (Id. at pp. 376-377.)
Thus, only in “an extraordinary case -- where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ” would the failure to strike be an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.)
Defendant argues he is outside the Three Strikes law because his only prior record is a juvenile adjudication, in which he and about nine others were involved in a robbery at a gas station. As to the current offense, he claims he was under the influence of marijuana, alcohol and Ecstasy. He also claims he was not the instigator of the plan to rob Patrick’s home. He claims the record demonstrates he needs substance abuse treatment and psychotherapy, which he will not receive in prison. Lastly, he contends the letters and testimony of his friends and family demonstrated the strong family and community support available to defendant to help him be rehabilitated.
At sentencing, the trial court considered each of those factors. The court read and considered the probation report, defendant’s Romero motion, letters from family and friends attesting to their support for defendant and his good character, the probation reports from the juvenile adjudication, and testimony from defendant’s mother, stepfather and pastor. Counsel also orally argued the reasons juvenile adjudication should be stricken. Defense counsel argued defendant was not the leader in either criminal situation, that he had personal problems going on in his family which led him to stray into criminal activity, that he had completed classes previously required on probation, that he has significant community support, and the nature of his prior history. Defendant also gave a statement.
The court acknowledged the support of defendant’s family. But, noted defendant had had that support after he committed his first robbery and “chose not to take advantage of it.” The court also considered defendant’s criminal background. The court noted, defendant’s juvenile adjudication was for a robbery and about a year after the initial robbery, he committed another robbery, this time armed with a fully automatic Uzi machine gun. The court opined there was no more dangerous weapon with which to commit a robbery. Based on its review of all the documentation and arguments, the court found defendant came within the spirit of the Three Strikes law and sentenced him accordingly.
We may not substitute our judgment for that of the trial court. (Carmony, supra, 33 Cal.4th at p. 377.) Defendant has not met the burden of demonstrating an abuse of trial court discretion or a violation of due process.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , Acting P. J., ROBIE , J.