Opinion
B161065.
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. JORGE BURGUENO, Defendant and Appellant.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jorge Burgueno appeals from the judgment entered following a jury trial that resulted in his conviction of two counts of attempted second degree robbery. He contends the evidence was insufficient to support the trial courts finding that defendants prior Welfare and Institutions Code section 602 (section 602) adjudication qualified as a prior conviction within the meaning of the Three Strikes law (Pen. Code § 667, subds. (b)-(d), § 1170, subds. (a)-(d)), and that sentencing pursuant to the Three Strikes law violated Apprendi v. New Jersey (2000) 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (Apprendi). After review, we affirm the judgment.
All further undesignated section references are to the Penal Code.
Defendant also contends, and the People concede, that the trial court erred in finding true a section 667, subdivision (a)(1) enhancement allegation predicated on the same prior juvenile adjudication underlying the Three Strikes allegation. We agree. (See People v. West (1984) 154 Cal. App. 3d 100, 109, 201 Cal. Rptr. 63 [a juvenile adjudication is not a "conviction" within the meaning of § 667, subd. (a)]; People v. ONeal (2000) 78 Cal.App.4th 1065, 1068.) However, after being advised of the error at the sentencing hearing, the trial court did not impose sentence on the enhancement and the enhancement is not reflected in the abstract of judgment. Inasmuch as the error never became part of the judgment, the judgment is correct and there is nothing for this court to modify. (See Perachi v. Superior Court (2003) 30 Cal. 4th 1245, 1254 [sentencing hearing "constitutes the occasion on which the court pronounces the judgment arising from the verdict." ( §§ 12, 1191, 1202; Cal. Rules of Court, rule 4.433(c)(5); see also Apprendi, supra, 530 U.S. at p. 479, fn. 4.)].)
FACTUAL AND PROCEDURAL BACKGROUND
On Friday, March 1, 2002, Nalley G., Carla G., Johanna F. and Brenda F. were walking home from school together when they were accosted by defendant, who tried to take the necklaces Johanna and Nalley were wearing. The girls successfully resisted however, and defendant ran away. Defendant was arrested several days later, after the girls pointed him out to the assistant school principal.
Defendant was charged by information with two counts of attempted second degree robbery. ( §§ 664, 211.) As to both counts, it was further alleged defendant suffered a prior conviction within the meaning of the Three Strikes law based on a prior juvenile adjudication in case No. JJ07720. A jury convicted defendant of the robberies. In a bifurcated proceeding, the trial court found true the Three Strikes allegation. Defendant was sentenced to a total of four years in prison, comprised of the two-year midterm on count 1, doubled pursuant to the Three Strikes law, plus a concurrent four years (double the two-year midterm) on count 2.
Appellant filed a timely notice of appeal.
DISCUSSION
Defendants Prior Juvenile Adjudication Qualified as a "Strike"
Defendant contends the evidence was not sufficient to support the trial courts finding that defendant suffered a prior conviction within the meaning of the Three Strikes law. He argues: (1) second degree robbery did not qualify as a "strike" at the time of the adjudication in case No. JJ07720; and (2) there was insufficient evidence that he was 16 years old at the time he committed the robbery in that case. Defendant is wrong on both counts.
According to the Three Strikes law: "A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if: [P] (A) The juvenile was 16 years of age or older at the time he or she committed the prior offense. [P] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) [subd. (d)(1) of § 667] or (2) [subd. (d)(2) of § 667] as a felony. [P] (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. [P] (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code." ( § 667, subd. (d)(3); see also § 1170.12, subd. (b)(3).)
Section 707, subdivision (c) establishes a rebuttable presumption of unfitness for treatment under the juvenile court law for juveniles charged with the offenses listed in subdivision (b) of that section. (People v. Garcia (1999) 21 Cal.4th 1, 5, 980 P.2d 829.) At the time defendant committed the robbery that resulted in his prior juvenile adjudication, former section 707, subdivision (b)(3) listed "robbery while armed with a dangerous or deadly weapon." (Italics added.) Effective March 8, 2000, however, that subdivision was amended by initiative measure (Proposition 21) to delete the italicized portion and to list, simply, "robbery." (Welf. & Inst. Code, § 707, subd. (b)(3); People v. Bowden (2002) 102 Cal.App.4th 387, 390 (Bowden).) Proposition 21 also added section 667.1 which provides: ". . . for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments to those statutes by this act." (Italics added.)
In Bowden, the court held that a prior section 602 adjudication based upon simple robbery constituted a "strike" where, although the prior was committed before section 707, subdivision (b) was amended to include simple robbery, the current crime was committed after the amendment. (Bowden, supra, 102 Cal.App.4th at p. 391.)
Here, defendants current offense was committed on March 1, 2002, after the effective date of Proposition 21. Accordingly, under Bowden, defendants prior juvenile adjudication for simple robbery qualifies as a strike. (Ibid.)
The record also contains substantial evidence that defendant was 16 years old when he committed the robbery upon which the juvenile adjudication was based. According to defendants probation report, he was born May 11, 1983. At the trial of the alleged priors in the current case, counsel for defendant conceded that defendant turned 16 on May 11, 1999. In support of the allegation that defendants prior juvenile adjudication qualified as a strike, the prosecutor introduced into evidence, among other things, the Welfare and Institutions Code section 602 petition filed in the prior juvenile adjudication on January 7, 2000, as well as the adjudication and dispositional orders. The petition alleged defendant was a person described by section 602 for the reason that, "on or about 12/14/1999" defendant committed the crime of second degree robbery. On February 2, 2000, the juvenile court found true the allegations of the petition. This evidence is sufficient to support a finding that defendant committed the robbery involved in his prior juvenile adjudication on or about December 14, 1999, seven months after he turned 16.
Defendants Sentence Did Not Violate Apprendi
Defendant contends his sentence violates Apprendi. Relying on United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe), defendant argues that the prior conviction exception in Apprendi does not apply to non-jury juvenile adjudications. We disagree.
In Apprendi, the United States Supreme Court held: "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.) In Tighe, the court held that the Apprendi "prior conviction" exception was "limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendis `prior conviction exception." (Tighe, supra, 266 F.3d at p. 1194.)
The contention that, under Apprendi and Tighe, a prior juvenile adjudication could not qualify as a strike, was squarely rejected by the court in Bowden, supra, 102 Cal.App.4th at pages 391-393. In that case, the appellate court held the fact an adult defendant had no right to a jury trial in a prior juvenile adjudication did not prevent using the prior juvenile adjudication as a strike. (Id. at pp. 389-390.) It reasoned that Apprendi and Tighe were inapplicable because, "in both of those cases the fact that increased the defendants sentence above the statutory maximum was not tried or proved by the usual criminal standards in the trial of the current case, but was a factual finding solely by a sentencing judge ostensibly as a sentencing consideration.[] . . . By contrast, under the Three Strikes law a qualifying prior conviction must, in the current case, be pleaded and proved [citation] beyond a reasonable doubt [citations], and the defendant has a statutory right to a jury trial, at least on the issue whether the defendant suffered the prior conviction [citations]." (Id. at pp. 392-393.)
In Apprendi, the trial court found as a sentencing factor that the defendant committed the crime as a hate crime, which increased the punishment from 5 to 10 years, to 10 to 20 years. (Apprendi, supra, 530 U.S. at p. 490.) In Tighe, the fact of prior convictions were not required to be pled in a charging indictment or proven beyond a reasonable doubt, and were not triable by a jury. (Tighe, supra, 266 F.3d at pp. 1193-1195.)
In addition to distinguishing Tighe, the court in Bowden also found Tighe unpersuasive and declined to follow it, reasoning that, since non-jury juvenile adjudications have been found constitutional and reliable, there is no constitutional impediment to using such an adjudication to increase a defendants sentence in a later adult conviction. (Bowden, supra, 102 Cal.App.4th at pp. 392, 394, citing People v. Fowler (1999) 72 Cal.App.4th 581, 585-586.)
We find the reasoning of the court in Bowden persuasive and adopt it here.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P.J., BOLAND, J.