Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIF113869, RIF121664, RIF127648. Ernest Borunda, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
INTRODUCTION
Edmundo Crespo (defendant) asserts here two sentencing errors: that the trial court improperly used a juvenile conviction as a “strike” to enhance his current sentence; and that the sentence on one of his convictions must be stayed pursuant to Penal Code section 654. We reject both of defendant’s arguments and will affirm.
FACTS AND PROCEDURAL HISTORY
On March 9, 2010, the District Attorney of Riverside County filed a nine-count amended information consolidating charges in three cases pending against defendant. The consolidated information alleged three felonies committed on January 5, 2005: car theft (Veh. Code, § 10851, subd. (a), count 1); receiving stolen property (Pen. Code, § 496d, subd. (a), count 2); and gang participation and promotion of gang-related felonious conduct (Pen. Code, § 186.22, subd. (a), count 3). The information also alleged two felonies committed on December 20, 2005: possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 4); and gang participation and promotion of gang-related felonious conduct (Pen. Code, § 186.22, subd. (a), count 5). Finally, the information alleged four felonies committed on December 11, 2003: bringing heroin, methamphetamine, and a device for using an unauthorized drug into the Riverside County jail (Pen. Code, § 4573.5, count 6); possession of heroin for sale (Health & Saf. Code, § 11351, count 7); gang participation and promotion of gang-related felonious conduct (Pen. Code, § 186.22, subd. (a), count 8); and possession of heroin (Health & Saf. Code, § 11350, subd, (a), count 9). Counts 1, 2, 4, 6, and 7 included gang enhancement allegations. (Pen Code, § 186.22, subd. (b).) Count 5 included an “on bail” enhancement. (Pen Code, § 12022.1.)
The information further alleged three prior felony convictions: grand theft auto in April 2004 (Veh. Code, § 10851; Pen. Code, § 667.5, subd. (b)); robbery in August 1995 (Pen. Code, §§ 211, 667, subds. (c), (e)(2)(A), 1170.12, subds. (c)(2)(A)); and assault with a firearm in August 1995 (Pen. Code, §§ 245, subd. (a)(2), 667, subds. (c), (e)(2)(A), 1170.12, subds. (c)(2)(A)).
At sentencing, defense counsel first argued that, since both of defendant’s “strike” offenses had been committed when he was a juvenile, they could not constitutionally be used to increase his sentence for the current offense. Counsel acknowledged the decision to the contrary by the California Supreme Court in People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen), but stated that he was raising the argument to preserve the issue for appeal. In response, the trial court agreed that the issue was currently winding its way to the United States Supreme Court, but reminded defendant that it was bound by the decisions of the California Supreme Court and had no power to grant his request.
Defense counsel also argued the merits of the written Romero motion he had filed June 26, 2009, asking the trial court to dismiss defendant’s prior strikes in furtherance of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The People opposed the motion. After an extended explanation of its reasons, the trial court agreed to strike one of defendant’s priors. Defendant pled guilty to all charges and admitted all allegations.
The trial court sentenced defendant according to the exact terms of the direct plea agreement, which provided that the “custody term will be 16 years, 8 months.” It deleted the “on bail” enhancement from count 5 and added it to count 4; it dismissed the Penal code section 667 prior; and it dismissed one of the two “strike” priors. On all counts, the trial court sentenced defendant to the midterm, doubled because of his one remaining strike. With the addition of the gang enhancements, defendant’s total sentence was 16 years eight months.
DISCUSSION
Use of juvenile offenses as “strikes” in adult sentencing:
Defendant argues first that, because he had no right to a jury trial at the time his juvenile offenses were adjudicated, under the rule of Apprendi v. New Jersey (2000) 530 U.S. 466, neither can be used as “strikes” to enhance his current sentence.
Like the trial court, we have no jurisdiction to decide this issue. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The California Supreme Court has clearly held that the relevant question under Apprendi is whether the defendant had a prior “strike” conviction, not whether the prior adjudication was reached as the result of a jury trial or in a case where the defendant had waived the right to a jury trial. (Nguyen, supra, 46 Cal.4th at pp. 1015, 1019, 1022, 1024.) However, we understand that defendant makes this argument to preserve his claim for possible future federal habeas corpus proceedings should the United States Supreme Court disagree with the holding in Nguyen. (Nguyen, supra, 46 Cal.4th at pp. 1033-1034 (dis. opn. of Kennard, J.).)
Defendant next argues that because possession of heroin is a lesser included offense of possession of heroin for sale, under Penal Code section 654 (§ 654) his sentence for count 9 should have been stayed rather than imposed to run concurrently with his sentence for count 7. Defendant points out that this change would not affect the total length of his sentence.
The People concede that defendant could not normally be sentenced for both of these offenses, but argue that by agreeing to a specified sentence he has waived any objection and cannot now seek to better his bargain on appeal. (People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057.) They point out that, under rule 4.412 of the California Rules of Court and the California Supreme Court holding in People v. Hester (2000) 22 Cal.4th 290 (Hester), defendant’s guilty plea in exchange for a specified sentence waived any claim that his sentence violates section 654.
In Hester, the California Supreme Court held that, while section 654 sentencing errors may be appealed regardless of whether defense counsel objected at the time of sentencing, there is an exception to this rule when a defendant has pleaded guilty in exchange for a specified sentence. (Hester, supra, 22 Cal.4th at p. 295.)
Defendant does not challenge Hester, but maintains that he agreed to the sentence of 16 years eight months as a “‘lid, ’” not a specified sentence. On this point, defendant is simply wrong. The plea form, signed by both defendant and his attorney, states that the “custody term will be 16 years, 8 months, ” not that it will “not exceed” or be more than 16 years eight months, as defendant claims.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.