Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA279177. Ann I. Jones, Judge.
Diana M. Teran, 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, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Tramayne Leon Wood, also known as Tramayne Woods and Tramayne Leon Woods, appeals from a judgment entered upon his conviction by jury of first degree murder (Pen.Code, § 187, subd. (a), count 1) and carjacking (§ 215, subd. (a), count 4). As to the murder count, the jury found to be true the special circumstance that the murder was committed during the commission or attempted commission of a carjacking (§ 190.2, subd. (a)(17)). As to both counts, the jury also found to be true the firearm use allegation within the meaning of section 12022.53, subdivision (b). Appellant admitted having suffered a prior juvenile adjudication within the meaning of section 667, subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d). The trial court sentenced appellant to life without the possibility of parole (LWOP) plus a consecutive 10 years for the firearm enhancement on the murder conviction and to a consecutive five years for the carjacking conviction, doubled as a second strike, and enhanced by 10 years for the firearm enhancement. Appellant contends that (1) the trial court erred in giving a special instruction on how vehicle theft becomes carjacking, (2) the trial court erred in refusing to instruct on manslaughter, (3) the term imposed on the carjacking conviction violated the provisions of section 654, and (4) the use of appellant’s prior juvenile adjudication to increase his sentence violated his constitutional right to a jury trial, as articulated in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
Prosecution’s evidence
On August 8, 2004, at approximately 2:00 a.m., Michael Gilmore (Gilmore) was driving alone on Crenshaw Boulevard in his 1998 Chevrolet Tahoe truck, followed by friends in three other vehicles. Gilmore had more than $13,000 of television and music equipment in his truck. Near 48th Street, he pulled into an island on the side of Crenshaw Boulevard, where other cars were parked, to tell his friends that he was going home. A pearl-white Cadillac Escalade was parked in front of him.
After Gilmore stopped, appellant approached the passenger side of his truck, pointed a gun at him through the window and said, “Get the fuck out of the truck.” As Gilmore attempted to exit, another individual approached him on the driver’s side, put a gun to Gilmore’s head and told him to get out. Gilmore exited, held up his hands, walked to his friend’s car that was parked behind his truck, and got into the backseat.
Gilmore then saw the two men who had removed him at gunpoint enter his truck, appellant on the passenger side. He saw his truck move forward, but it was blocked by the Escalade. Gilmore called 911 and told his friend not to lose sight of his truck. The two men then exited Gilmore’s truck. They walked up to the Escalade, appellant to the passenger side, and Gilmore heard a shot. He could not see what happened as his view of the Escalade was obscured by the open doors of his truck. The two men then got back into Gilmore’s truck and sped off. Gilmore’s friend tried to follow the truck but lost sight of it in heavy traffic. When the truck was recovered two hours later, it had been stripped of the audio and video equipment and was missing three caps off of the wheel rims.
Nathan Callis (Callis) was driving and Olukoya Davis (Davis) was in the front passenger seat in the Escalade. They were on their way home from a party when they saw some young women and people on the sidewalk they recognized, so they pulled over to the island on Crenshaw Boulevard. Callis and Davis were parked when Davis saw appellant, holding a gun, slowly jog up to the truck that was parked behind them and approach the front passenger side of the car. Davis said to Callis, “‘Let’s get out of here,’” but a car in front of them blocked their way. Appellant then ran up to the passenger side of the Escalade and pointed a gun 12 inches from Davis’s face and said, “‘Get the fuck out of the car.’” Davis did not try and push the gun away, and before he could do anything, he saw appellant pull the trigger and fire a shot into the vehicle. Callis depressed the accelerator, as there was no longer a car in front of them. He drove 10 to 15 seconds and said, “‘Oh, Lou, I’m hit, I’m hit, take me to the hospital, I’m hit.’” Davis grabbed the steering wheel, swerved the car onto the sidewalk and crashed. He then called 911. An ambulance arrived and took Callis to the hospital. He died four months later of a gunshot wound to the torso.
During the investigation of the case, Gilmore and Davis each separately identified appellant’s photograph in a photographic lineup and identified him at trial as the perpetrator of the charged offenses.
Appellant was arrested on September 23, 2004, and, after waiving his Miranda rights, gave a recorded statement to Detective Jeff Martin and Officer Chris Allen. In that statement, appellant said he was with another person on the night of the shooting and they approached a white Tahoe. He and his accomplice each had guns. The occupant of the Tahoe exited the car and ran, and appellant and his accomplice entered. They then got out of the Tahoe, approached the white Escalade in front of it, and appellant put a gun in the car. The passenger pushed the gun which accidentally discharged. Appellant and the other person returned to the Tahoe and fled.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
The defense’s evidence
Appellant testified on his own behalf that on August 8, 2004, he was getting high on P.C.P. at his girlfriend’s house until approximately 10:00 p.m. He later met his friend, “Shaky,” near midnight, on Crenshaw Boulevard. They drove down Crenshaw, parked and talked to some girls. Shaky spoke to the driver of an Escalade for a few minutes.
At some point, Shaky told appellant that he wanted to play a joke on the driver of the Tahoe that was parked behind the Escalade, with whom Shaky said he had “play[ed] drums.” He talked appellant into playing a joke by pretending to take his truck. Shaky gave appellant a cap gun. Appellant removed the red tip on it, went around to the passenger side of the Tahoe and told the driver to “get the fuck out of the car.” When the driver got out, Shaky entered the driver’s side and appellant entered the passenger side. Appellant then told Shaky “Let’s give him his car back so everybody can laugh.” But Shaky said: “‘We got this shit, it’s cool, why we are fixing to do our thing,’” making it clear that he wanted to keep the truck. He placed his gun on appellant’s lap. If appellant had gotten out of the Tahoe and told Gilmore it was a joke, he believed Shaky would have shot him. Shaky said they needed to get the Escalade in front of them to move so they could “get up out of here.” As they walked to the Escalade, appellant was angry at Shaky for misleading him by claiming they were playing a joke in ousting the driver of the Tahoe. When they got to the Escalade, appellant said through the passenger window, “‘Get the fuck out of the way.’” He was holding both the real gun and the cap gun, and the real gun accidentally discharged.
After the gun fired, appellant was scared, and he and Shaky returned to the Tahoe and drove away. After 15 minutes, Shaky dropped him off.
As a juvenile appellant had three convictions; one for assault, one for robbery and one for grand theft. Apart from this case, he had never used a gun.
DISCUSSION
I. Instructional errors.
A. Background facts.
At the jury instruction conference, defense counsel requested manslaughter instructions as lesser included offenses, as he was going to argue that Callis’s murder took place pursuant to an auto theft, not a carjacking. He argued that when Callis was shot, Gilmore had already left the scene and had made no attempt to reenter his truck. When appellant entered the truck after the shooting, he committed only an auto theft, as it was not taken from Gilmore’s immediate presence nor did appellant use force or fear against him in taking the truck. Defense counsel further argued that appellant was angry at Shaky for having gotten him into this predicament, “so in that sense it was a heat of passion” killing.
The prosecutor responded that there was no evidence to support a manslaughter instruction. She also referred the trial court to People v. O’Neil (1997) 56 Cal.App.4th 1126 (O’Neil), which she argued established that vehicle theft becomes carjacking if the vehicle is obtained without force or fear, but the defendant resorts to force or fear while driving away.
The trial court agreed with the prosecutor that there was no evidence appellant was provoked by Callis or that he acted in the heat of passion. It concluded that the source of the provocation must be the victim and that there was no evidence of any provocation by Callis or anger by appellant towards him. Based on O’Neil, the trial court added the second paragraph to the prosecution’s special instruction No. 9.46(A), over defense counsel’s “strenuous objections.”
Special instruction No. 9.46(A) states: “Carjacking is not limited to cases in which a defendant initially gains possession by dispossessing the victim through the use of force or fear, and does not require that the victim be inside or touching the vehicle at the time of the taking. [¶] Mere vehicle theft becomes carjacking if the perpetrator, having gained possession of the motor vehicle without use of force or fear, resorts to force or fear while driving off with the vehicle.”
The trial court had already discussed with counsel special instruction 9.46(A), when it only included the first paragraph. Defense counsel did not object to that paragraph, but said it was “fine.”
B. The trial court did not err in giving special instruction No. 9.46(A).
Appellant contends that the trial court erred by instructing the jury in accordance with special instruction No. 9.46(A), thereby depriving him of his right to a jury trial and to due process. He argues that, “The prosecutor’s special instruction incorrectly instructed the jury that appellant could be found guilty of carjacking, and, in effect, felony-murder based on the carjacking, even though the victim, Gilmore, was not in the vehicle at the time of the taking so long as force was used against someone while the vehicle was being driven away. . . . The instruction is legally incorrect because the force must be applied to either the owner of the property or someone with a possessory interest in the property who is attempting to retake possession.”
Respondent initially contends that appellant forfeited this claim by failing to request clarification of the instruction in the trial court. We disagree. Generally, ‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’ (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Gonzalez (2002) 99 Cal.App.4th 475, 483.) While defense counsel did not object to the first paragraph of special instruction No. 9.46(A), it appears that he did object to the second paragraph which instructed on when auto theft becomes carjacking. During the instruction conference, the parties discussed to whom the use of force or fear must be directed and the O’Neil case. The trial court made clear its position that force or fear need not be used to obtain the vehicle but could be used in driving away with it and that “force or fear does not need to be directed at the owner of the vehicle.” Defense counsel took issue with this latter statement. While defense counsel did not specifically request a clarification of the special instruction, the issues appellant presents on appeal were adequately raised in the court below to preserve them. Further, the trial court clearly indicated its disagreement with appellant’s position, which made a request for clarification futile. (People v. Welch (1993) 5 Cal.4th 228, 237-238.) We therefore proceed to consider the merits of appellant’s claim which we reject.
While the People use the term “waiver” in reference to appellant’s failure to preserve this instructional claim by requesting clarification of the special instruction in the court below, the correct term which we use in this opinion is “‘forfeiture.’” “‘Waiver’” is the express relinquishment of a known right whereas “‘forfeiture’” is the failure to object or to invoke a right. (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1.)
A requested jury instruction must be given on every material question “upon which there is any evidence deserving of any consideration whatever . . . . The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. . . . However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.” (People v. Burns (1948) 88 Cal.App.2d 867, 871.) Contrariwise, an accurate instruction may be refused if there is no evidence to which it may properly relate. (See People v. Haag (1954) 127 Cal.App.2d 93, 97.)
Section 215, subdivision (a) provides: “‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.”
Contrary to appellant’s contention, special instruction 9.46(A) correctly states that a defendant can be guilty of carjacking even though the victim is not inside or touching the car at the time of the taking. (O’Neil, supra, 56 Cal.App.4th at p. 1131.) The victim need only be in an area in proximity to the vehicle. (See People v. Medina (1995) 39 Cal.App.4th 643, 651 [approving instruction that “immediate presence” requirement for carjacking means area in proximity to the vehicle where the victim was not in the car at the time of the carjacking because he was lured away by trick or device].)
Here, Gilmore was not inside his truck because he was ousted from it by appellant and his associate at gunpoint. He was nonetheless in its proximity as he sat in the car immediately behind it, from where he could see his truck and appellant’s and his associate’s actions.
Appellant’s further contention that the instruction erroneously allowed the jury to find appellant guilty of carjacking if the force were applied to someone other than the owner or possessor of the property is similarly flawed. While special instruction 9.46(A) does not specify that the force or fear must be directed at the victim of the carjacking, it is unlikely that the jury would have otherwise understood it. (People v. Frye (1998) 18 Cal.4th 894, 957 [instruction found to be erroneous only if in context of entire charge there is a reasonable likelihood that the jury misconstrued its words].) The jury was given the general carjacking instruction in accordance with CALJIC No. 9.46 which stated that carjacking is the “tak[ing of] a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the vehicle of his or her possession, accomplished by means of force or fear.” The requirement that a vehicle must be taken from the “person or immediate presence” of the victim, by “force or fear,” suggests a confrontation between the carjacker and the victim, with the force or fear therefore directed at the victim. This comports with the common, lay conception of carjacking. Special instruction No. 9.46(A) expands the general instruction by providing that carjacking extends to cases where the force or fear is used in driving away with the vehicle. It does not suggest that that force or fear is different than that referred to in CALJIC No. 9.46. The jury was also instructed that “‘[i]mmediate presence’ means an area within the alleged victim’s reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property.” This instruction specifically referred to the use of force or fear against the victim.
Gilmore’s failure to attempt to reenter his truck was the result of force and fear. Appellant had removed him at gunpoint. He then saw appellant approach the Escalade and heard a shot. While it was the driver of the Escalade who was killed, it was not the force of that killing that met the carjacking requirement but the fear that it instilled in Gilmore.
People v. Coryell (2003) 110 Cal.App.4th 1299 (Coryell) is instructive. There, Omar Garcia and his girlfriend, Inman O., drove to a liquor store. While Garcia used a pay telephone, Inman remained in the car. She saw a man approach Garcia and begin beating and trying to stab him. Fearing she would be hurt, Inman fled the car. The attacker chased Garcia and then entered the abandoned car in which the keys had been left in the ignition. Defendant was convicted, among other charges, of carjacking from Garcia and Inman. The defendant argued that there was insufficient evidence to support his conviction of carjacking as neither Garcia nor Inman were in the car when he drove away. (Id. at pp. 1301-1302.) The Court of Appeal concluded that the defendant procured possession of the vehicle by force or fear by frightening away both Garcia and Inman. While the defendant used force against Garcia, Inman ran from the vehicle as a result of her fear at seeing the attack. (Id. at p. 1303.) Similarly, here, after being forcibly removed from his truck by appellant, Gilmore observed appellant’s violence in approaching the Escalade and shooting inside of it, an obvious deterrent to any effort to retake his truck.
C. The trial court erred in failing to instruct on involuntary manslaughter.
Appellant contends that the trial court erred in refusing to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter. He argues that he accidentally discharged the weapon, and that it was discharged in the heat of passion because he was angry at Shaky for getting him involved in the car theft. We conclude that the trial court erred in failing to instruct on involuntary manslaughter, but that the error was harmless.
“‘“[A] trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.”’ [Citation.] Conversely, even on request, the court ‘has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.’” (People v. Cole (2004) 33 Cal.4th 1158, 1215; see also People v. Breverman (1998) 19 Cal.4th 142, 154.)
Voluntary manslaughter is a lesser included offense of first degree murder. (People v. Anderson (2006) 141 Cal.App.4th 430, 443.) Manslaughter is “‘the unlawful killing of a human being without malice.’ (§ 192.) A defendant lacks malice and is guilty of voluntary manslaughter in ‘limited, explicitly defined circumstances: either when the defendant acts in a “sudden quarrel or heat of passion” (§ 192, subd. (a)), or when the defendant kills in “unreasonable self-defense.”’” (People v. Lasko (2000) 23 Cal.4th 101, 108.) A court is not obligated to instruct sua sponte on voluntary manslaughter as a lesser included offense in the absence of substantial evidence that the defendant acted in a sudden quarrel or heat of passion or killed in unreasonable self-defense. (People v. Hoyos (2007) 41 Cal.4th 872, 914.) A conviction of manslaughter based on heat of passion requires proof of (1) an objective element that there was sufficient provocation “to cause an ‘“ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment’”” (People v. Lasko, supra, at p. 108), and (2) a subjective element that the defendant’s reason was in fact overcome by an overwhelming passion. (Ibid.)
The trial court here correctly concluded that there was insufficient evidence to justify instructing on voluntary manslaughter. There was no evidence of provocation which would cause a person of average disposition to act out of passion. It was certainly insufficient provocation that Callis’s car blocked the Tahoe from leaving. There was no evidence appellant had ever met Callis before or that Callis had said or done anything to provoke him. Further, the provocation which incites a defendant to homicidal conduct in the heat of passion must be caused by the victim or reasonably perceived by the defendant to be caused by the victim. (People v. Manriquez (2005) 37 Cal.4th 547, 583.) Here, appellant’s attorney conceded that appellant was not angry at Callis. He did not even know him. Rather, appellant was angry at Shaky for misleading him into involvement in criminal activity.
Involuntary manslaughter is also ordinarily a lesser included offense of murder. (People v. Abilez (2007) 41 Cal.4th 472, 515.) It requires proof that a human being was killed and that the killing was unlawful. (People v. Parras (2007) 152 Cal.App.4th 219, 227.) Involuntary manslaughter is defined by statute as including a killing that occurs “in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b); People v. Lewis (2001) 25 Cal.4th 610, 645.) Evidence that a shooting was accidental will support an involuntary manslaughter conviction. (See People v. Southack (1952) 39 Cal.2d 578 (Southack).)
In Southack, the victim went to the home of his former wife’s parents. The defendant, the former wife’s father, threatened several times to kill the victim if he entered the house. The defendant then opened the door and said he could shoot the victim without compunction. He did shoot and killed him. (Southack, supra, 39 Cal.2d at pp. 582-583.) The defendant’s 12-gauge shotgun had a “‘hair trigger.’” It had discharged accidentally earlier that day. According to the defendant, when something hit him from the side, the gun discharged. The victim’s former wife testified that she had bumped defendant. According to an expert, it was most unlikely that such a bump would cause the gun to discharge unless it was cocked and the defendant’s finger was on the trigger. (Id. at pp. 583-584.) The California Supreme Court held the foregoing evidence sufficient to support an involuntary manslaughter instruction, notwithstanding the certainty that the defendant did not act in self-defense and the great unlikelihood the gun discharged accidentally. (Id., at p. 584.)
Appellant testified that his gun was discharged accidentally when he aimed it at Davis through the window, and Davis pushed it away. Brandishing a loaded gun, inches away from someone, lacks caution and circumspection. Where a defendant “not only used a deadly weapon in a threatening manner, but . . . also had that weapon in such ready condition to be used in excess of reasonably permissible force . . . imminent danger presented by the gun’s condition of being ready for firing would bring defendant within [the statute governing involuntary manslaughter] and make inapplicable the excuse of accidental killing.” (People v. Piorkowski (1974) 41 Cal.App.3d 324, 331-332.) Thus, even if appellant was believed, his testimony would support an involuntary manslaughter instruction, and the trial court erred in failing to give it.
We must therefore consider whether appellant was prejudiced by this error. We review the failure to instruct on a lesser included offense under the People v. Watson (1956) 46 Cal.2d 818, 836, harmless error standard. (People v. Breverman, supra, 19 Cal.4th at p. 178.) We conclude that it is not reasonably probable that a result more favorable to appellant would have ensued had the jury been instructed on involuntary manslaughter. A killing whether intentional or unintentional is first degree murder if committed in the perpetration of, or the attempt to perpetrate, a carjacking. (§ 189; see generally People v. Coefield (1951) 37 Cal.2d 865, 868.) The jury here found appellant guilty of carjacking of Gilmore’s vehicle and found the special circumstance that the killing occurred during the commission of a carjacking under section 190.2, subdivision (a)(17)(L). “Given these findings, the jury necessarily determined that the killing of [Callis] ‘was first degree felony murder perpetrated in the commission of [carjacking] . . . and not any lesser form of homicide.’” (People v. Benavides (2005) 35 Cal.4th 69, 103.)
II. Section 654 does not preclude imposing sentence on both the carjacking and murder convictions
The jury found appellant guilty of first degree murder with the felony murder special circumstance that the murder was committed during a carjacking. The jury also found to be true that appellant personally used a firearm in the commission of the murder. The trial court sentenced appellant to LWOP for the murder plus an additional 10 years for the firearm enhancement. It sentenced him consecutively to the midterm of five years on the carjacking charge, doubled for the prior juvenile robbery adjudication, and another 10 years for the firearm enhancement.
Appellant contends that the consecutive sentence on his carjacking conviction and its enhancement violates section 654’s prohibition against double punishment. He argues that there was but one course of conduct here and that the killing of Callis occurred while appellant was in the middle of carjacking and was incidental to the carjacking. This contention is without merit.
Section 654 provides in part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a), italics added.) “[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.” (People v. Perez (1979) 23 Cal.3d 545, 551.)
“If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez, supra, 23 Cal.3dat p. 551.) If, on the other hand, “the [defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
We need not determine here whether there was one objective or multiple criminal objectives because even in the former case appellant’s contention must fail. As respondent points out, as a general rule, even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim. (People v. Ramos (1982) 30 Cal.3d 553, 587, citing People v. Miller (1977) 18 Cal.3d 873, 885 and cases there cited.) “‘[W]hether a crime constitutes an act of violence that qualifies for the multiple-victim exception to section 654 depends upon whether the crime . . . is defined to proscribe an act of violence against the person.’” (People v. Solis (2001) 90 Cal.App.4th 1002, 1023 [terrorist threat found to be an act of violence].) It requires no discussion to conclude that murder constitutes an act of violence. Similarly, carjacking which is statutorily defined as using force or fear to take a vehicle from the immediate possession of another is an act of violence. Robbery of a motor vehicle, from which carjacking is a “‘direct offshoot’” (People v. Medina (2007)41 Cal.4th 685, 697), has been held to be an act of violence. (In re Asean D. (1993) 14 Cal.App.4th 467, 474-475.)
Consequently, appellant committed two violent offenses, murder and carjacking, against two different individuals, Callis and Gilmore, properly subjecting him to punishment for each.
III. Use of appellant’s prior juvenile adjudication to increase his sentence does not violate his right to a jury trial as articulated in Apprendi and its progeny.
On July 27, 2000, the Los Angeles District Attorney filed a Welfare and Institutions Code section 602 petition alleging that appellant committed a robbery (§ 211) and a battery with serious bodily injury (§ 243, subd. (d)). It further alleged that the crimes occurred 10 days after appellant’s 16th birthday. The allegations were found true by the juvenile court after a court trial. This adjudication was admitted by appellant in this matter, and used as a “strike” under the three strikes law in doubling appellant’s carjacking sentence.
Appellant contends that his constitutional right to a jury determination beyond a reasonable doubt as articulated in Apprendi and its progeny was violated. He argues that because his juvenile adjudication rested on a finding by a court and not a jury, it does not fall within the prior conviction exception and cannot be used to increase his carjacking sentence beyond the statutory maximum. This contention is without merit.
In Apprendi, the United States Supreme Court stated, “Other 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, supra, 530 U.S. at p. 490.) Trial by jury in a juvenile court adjudication is not a constitutional requirement (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545) and California has not accorded a juvenile a right to a jury trial. (See People v. Buchanan (2006) 143 Cal.App.4th 139, 149.) The prevailing view is that, even without the right to a jury trial, when a juvenile receives the requisite constitutional protections in juvenile court, a resulting adjudication may be treated as a prior conviction for purposes of Apprendi. (People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834, cert. denied (2004) 543 U.S. 884; People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1316, cert. denied (2004) 542 U.S. 906; People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1079 [Second District, Division Seven]; People v. Bowden (2002) 102 Cal.App.4th 387, 391-394 [Second District, Division Four]; see also U.S. v. Smalley (8th Cir.2002) 294 F.3d 1030, 1032-1033; U.S. v. Jones (3d Cir.2003) 332 F.3d 688, 696; U.S. v. Crowell (6th Cir. 2007) 493 F.3d 744, 750; U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1200 (dis. opn. of Brunetti, J.)) We agree with the conclusions reached by these courts, which need not be repeated here. Cunningham v. California (2007) 549 ___ U.S. ___ [127 S.Ct. 856], which applies the principles of Apprendi to our determinate sentencing scheme, adds nothing to appellant’s claim.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.