Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA041040 John Murphy, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Kathleen M. Redmond for Defendant and Appellant Frank Eugene Jones.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant Jameon Jonathan Walton.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
A jury convicted Frank Eugene Jones and Jameon Jonathan Walton of one count of second degree robbery and one count of first degree residential robbery. Jones appeals his sentence, arguing that the trial court erred in concluding that consecutive sentences were mandatory and that the use of his prior juvenile adjudication as a prior strike violated his constitutional right to due process. Walton’s counsel filed an opening brief raising no issues. We vacate Jones’s sentence and remand for resentencing, and affirm the judgment in all other respects.
BACKGROUND
An amended information jointly charged Jones and Walton with one count of kidnapping to commit another crime (count 1), in violation of Penal Code section 209, subdivision (b)(1); second degree robbery (count 2), in violation of section 211; and first degree residential robbery, in violation of section 211 (count 3). All three counts were charged as serious felonies within the meaning of Penal Code section 1192.7, subdivision (c). The information alleged as to all counts that a principal was armed with a firearm under section 12022, subdivision (a)(1).
All subsequent statutory references are to the Penal Code.
The information also alleged that as to all counts, Jones had incurred a prior juvenile adjudication of a serious or violent felony “strike” under sections 667, subdivisions (b)–(i), and 1170.12, subdivisions (a)–(d), and that Jones had personally used a firearm (a handgun) under section 12022.53, subdivision (b).
The information further alleged that Walton had personally used a deadly dangerous weapon (a taser) as to all counts under section 12022, subdivision (b)(1), causing the charged crimes to be serious felonies within the meaning of section 1192.7, subdivision (c)(23).
Jones and Walton pleaded not guilty and denied the special allegations. On July 28, 2008, a jury acquitted Jones and Walton of count 1 (kidnapping), but found both Jones and Walton guilty of second degree robbery and first degree residential robbery as charged in counts 2 and 3. The jury found true allegations of personal firearm use as to Jones (a handgun) and personal use of a deadly and dangerous weapon as to Walton (a taser), and found true as to both Jones and Walton the allegation that a principal was armed with a firearm.
In a bifurcated proceeding, the trial court found true the allegation that Jones had a prior juvenile adjudication of a serious felony.
On January 22, 2009, Jones was sentenced to a total of 27 years and four months in state prison. Jones received the upper term of six years on count 3 (first degree residential robbery), doubled to 12 years pursuant to the Three Strikes law, plus an additional 10 years for the personal firearm use enhancement. On count 2 (second degree robbery), Jones received a consecutive sentence of one year (one-third the midterm of three years) doubled pursuant to the Three Strikes law, plus three years, four months for the personal firearm use enhancement. The trial court ordered Jones to pay fees, assessments, and a $5,000 restitution fine, imposed and stayed a $5,000 parole revocation fine, and gave Jones 621 days of presentence custody credit.
Walton was sentenced to a total of six years in prison. Walton received the mid-term of four years for count 3 (first degree residential robbery), and an additional one year for the allegation that a principal was armed with a firearm. On count 2 (second degree robbery), Walton received one year (one-third the midterm), plus a stayed sentence of four months on the allegation that a principal was armed with a firearm. The trial court ordered Walton to pay fees, assessments, and a restitution fine of $500, imposed and stayed a $500 parole revocation fine, and gave Walton 621 days of presentence custody credit.
Jones and Walton filed timely notices of appeal.
FACTS
I. The Prosecution’s Case
On July 28, 2007, Tyrone Whaley and Jeremiah Moore were making furniture deliveries for their employer, McMahan Furniture: Moore drove the delivery truck. They made their last delivery around sunset, to Monique Edward, at 440 East Avenue J-9 in Lancaster. Moore parked the truck in front of Edward’s house, partially blocking a neighbor’s driveway. A group of young people were in Edward’s driveway listening to music, and an older white four-door vehicle was parked there. Moore testified that the group included Jones and Walton, and a woman named Tiffany Winkfield.
Edward was inside the house with her two children, and showed Moore and Whaley the upstairs bedroom where the furniture (a bedroom set) was to go. Downstairs in the kitchen, Edward gave Moore $2,000 as cash on delivery, an unusually large amount for a customer to pay in cash. Moore showed Whaley the money, put it in his wallet, and put the wallet back in his pocket.
Whaley and Moore began unloading the truck and assembling the furniture in Edward’s bedroom. While Whaley was downstairs, Edward’s neighbor asked him to move the delivery truck because someone needed to get into her driveway. Whaley went upstairs to get the truck keys from Moore, came downstairs with the keys, and went outside to the truck.
Two men approached Whaley from across the street, a taller man in front and a shorter man behind. Whaley identified Walton as the taller man, and Jones as the shorter man. Walton asked Whaley if McMahan Furniture was hiring, and Whaley answered yes. Walton turned away, grabbed a taser and put it to Whaley’s throat. Walton told Whaley “‘This is a robbery. I’m about to rob you.’” The smaller man, Jones, was behind Whaley, and Whaley felt the barrel of a gun in his back and heard “the cock back of the barrel.” Jones went through Whaley’s pockets, and took Whaley’s wallet, his cell phone, and keys.
Whaley heard a vehicle approach. The two men told him not to look and to keep his head down. Whaley could not see the vehicle. When this occurred, the white car was gone from the driveway. Jones started going through Whaley’s pockets again. Whaley heard music and “whispering talk.” He could not hear what they were saying. The vehicle drove off down the street.
Walton and Jones asked Whaley “‘Where’s the money at?’” and said “‘We know you got money.’” Whaley answered “‘My pockets? I don’t have any money.’” Walton and Jones looked through Whaley’s wallet and continued to ask “‘Where’s that money at?’” Walton and Jones then asked “Where’s your partner?” Walton said “‘Your partner has that money, doesn’t he?’” Whaley said they didn’t have any money.
Walton grabbed the back of Whaley’s shirt and walked him up to the front of the house. Edward was standing at the metal door. She backed up and Walton opened the door and shoved Whaley inside. Walton pulled Whaley to the right by the back of his shirt and forced him to the stairs, still holding Whaley’s shirt with his right hand, and with his left hand holding the taser on Whaley’s back. Whaley fell but Walton picked him up and forced him up the stairs. Walton and Jones said nothing to Edward, who looked surprised.
Walton and Jones took Whaley to the bedroom, where Moore was putting a mirror together. Moore heard them coming up the stairs and heard an unfamiliar voice say “‘Where your boy? Where your boy?’” Walton put Moore face down on the bed and told him not to move. Whaley testified that it took about 19 seconds to get from the truck to being face down on the bed upstairs.
Jones pointed the gun at Moore’s face and then put the gun to Moore’s side, asking “‘Where’s that money?’” Walton went through Moore’s right pocket and took his cell phone. Whaley told Moore “‘Jeremiah, just give them the money.’” Moore reached in his back pocket, pulled out his wallet, and let Walton take it.
Jones maneuvered around Moore, moving the gun around Moore’s body from his left to his right side. Jones and Walton left the room, and Whaley got off the bed, yelling “Can I at least get my keys?” Jones answered “‘No.’” Jones and Walton went downstairs and outside. Whaley estimated that it was nine seconds from the time he was on the bed to the time that Jones and Walton left the room.
Whaley and Moore went downstairs. Edward asked them what was going on and said “‘I thought those were your friends.’” Whaley told her “‘No. We just got robbed. Those are not my friends.’” Edward acted spooked, saying “‘Oh my God, in my own house?’” Moore called 911 using Edward’s phone and eventually got through. Whaley went outside and saw no one there, and the white car was gone. Moore saw Winkfield return to the house.
Sheriff’s deputies arrived about a half-hour later and spoke to Whaley and Moore separately. Whaley and Moore described the suspects to the deputies. Whaley noticed that the white car was back.
The next day, Moore told a “Ms. M., ” the manager of a nearby trailer park, about the robbery and described the robbers. Ms. M. called Moore’s wife, and Moore went out to the trailer park, because Ms. M. said she had seen people fitting his description. Moore went to the trailer park, where he saw Walton. He returned later and saw Winkfield and Jones. Jones was driving the white car that had been at Edward’s house. Either Moore or Ms. M. called the police, and Moore identified Jones from a photographic array. Whaley also identified Jones’s photograph in a six-pack photographic lineup.
Detective Michael Culver of the Los Angeles County Sheriff’s Department received a call on August 3, 2007 from Ms. M., who told him she knew who the robbery suspects were. Detective Culver put together six-pack photo lineups including Jones’s photograph. Moore and Whaley separately identified Jones’s photograph in a six-pack. On August 6, Detective Culver and several deputies drove to the trailer park, where they saw the white car and recognized Jones and Walton as passengers. The officers made a traffic stop, and took Jones and Walton into custody. Detective Culver photographed Walton, put Walton’s photograph in different six-packs, and Moore and Whaley separately identified Walton’s photograph in a six-pack photographic lineup.
Detective Culver read Jones and Walton their rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694], and both Jones and Walton waived their rights. Jones and Walton admitted that they were at Edward’s house before the robbery and that they were related to each other, to Edward, and to Winkfield.
II. The Defense Case
Jones did not present evidence on his behalf. Walton called as a witness Detective Larry Pico, who had responded to the 911 call. Detective Pico testified regarding Whaley’s and Moore’s descriptions of the robbers at the scene. Edward testified that Winkfield and Jones were at her house before the robbery, although she was not sure if Walton had come back from visiting a friend nearby. After the robbery, Winkfield, Jones and Walton were all in her driveway. Winkfield testified that Jones and Walton were her cousins, and that she was in Edward’s driveway with Jones and Walton playing basketball when the furniture truck arrived. Winkfield and Walton drove off after about two-and-a-half hours later to fix a flat tire, came back, found the tire was flat again, and left a second time, taking Jones. They fixed the tire again and went to McDonald’s. When Winkfield, Jones and Walton returned to Edward’s house Edward told them she had been robbed. Winkfield drove a 1987 four-door white car.
The parties stipulated that Jones and Walton were at Edward’s house before the robbery, and that Winkfield and Edward are related.
DISCUSSION
I. Jones: Consecutive Sentences
A. The issue is not forfeited.
At Jones’s sentencing, the trial court stated: “The court finds that Penal Code section 654 does not apply because each robbery was a separate crime committed against separate victims even though the crime shared some common acts. [¶] The court has concluded that because Penal Code section [654] does not apply, Penal Code section 667[(c)(6) and (c)(7)] mandates consecutive sentences.” Jones’s counsel did not challenge the court’s conclusion that consecutive sentences were required.
The prosecution’s sentencing memorandum stated: “Once the Court has reached its decision that Section 654 does not bar a consecutive sentence, the court must impose consecutive sentences as to Defendant Jones pursuant to Penal Code Section 667(C)(6)(7).”
Jones argues that the trial court erred in believing that because section 654 did not apply to the robberies, consecutive sentencing was mandatory, rather than discretionary, under the Three Strikes law. He also argues that he was denied effective assistance of counsel by his counsel’s failure to raise the issue.
We conclude below that Jones did not forfeit the issue and, because the trial court had discretion to sentence Jones concurrently, Jones’s sentence must be vacated and remanded for the trial court to exercise its discretion. We therefore do not address his claim of ineffective assistance of counsel.
The Attorney General argues that counsel’s silence forfeited the raising of this issue on appeal, citing People v. Scott (1994) 9 Cal.4th 331. In People v. Scott, the California Supreme Court held: “the waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. [¶]... [¶] In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Id. at pp. 353, 354.) People v. Scott does not apply here, because it is clear from the trial court’s statement that it did not properly understand that it had discretion whether to impose consecutive sentences. The trial court stated that because section 654 did not apply, consecutive sentences were mandated under section 667(c)(6). This was incorrect. In People v. Deloza (1998) 18 Cal.4th 585, our Supreme Court concluded that the determination whether section 654 applied was separate from the determination whether section 667 subdivision (c)(6) mandated consecutive sentences. “Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.... Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (Id. at pp. 591–592.) Section 667, subdivision (c)(6) provides that if a defendant has been convicted of a felony and has one prior felony conviction, “[I]f there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).” (Id. at p. 590) The Supreme Court concluded that “section 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively” under section 667. (Id. at p. 594.) Therefore, “the analysis for determining whether subdivision [(c)(6)] requires consecutive sentencing is not coextensive with the analysis for determining whether section 654 permits multiple punishment.” (Id. at p. 595.)
Section 654, subdivision (a) provides: “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
Section 654 does not preclude multiple punishment when the defendant’s violent act injures different victims. (People v. Deloza, supra, 18 Cal.4th at p. 592.)
Section 667, subdivision (c)(6) is the legislative version of the Three Strikes law, whose virtually identical counterpart in the initiative version is section 1170.12, subdivision (a)(6). Section 667, subdivision (c)(7), provides: “If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.” Section 667, subdivision (c)(7) is virtually identical to section 1170.12, subdivision (a)(7). (See People v. Deloza, supra, 18 Cal.4th at p. 590.)
In this case, the trial court’s failure to understand that section 654 did not control its decision whether to impose consecutive sentences under section 667, subdivision (c)(6) led it to mistakenly believe that it was required to impose consecutive sentences for Jones’s two robbery convictions. This was not a procedural or factual flaw in the exercise of sentencing discretion for which a failure to raise the issue constitutes forfeiture under People v. Scott, supra, 9 Cal.4th 331. The issue is not forfeited. “Defendants do not challenge the trial court’s finding that consecutive sentences were mandated. Nonetheless, if consecutive sentences were not required and the trial court misunderstood its sentencing discretion, then defendants are entitled to resentencing.” (People v. Newsome (1997) 57 Cal.App.4th 902, 909, citing People v. Belmontes (1983) 34 Cal.3d 335, 348, and fn. 8.) The claim of error relates to the legality of the sentence imposed, and such a claim is not forfeited even if not raised in the trial court. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
B. Consecutive sentences were not required.
We therefore must determine whether Jones’s consecutive sentences were required under section 667 subdivision (c)(6). In People v. Lawrence (2000) 24 Cal.4th 219, the Supreme Court explained: “We read the mandatory consecutive-sentencing provision of the three strikes law as follows: If there are two or more current felony convictions ‘not committed on the same occasion, ’ i.e., not committed within close temporal and spacial proximity of one another, and ‘not arising from the same set of operative facts, ’ i.e., not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted, then ‘the court shall sentence the defendants consecutively on each count’ pursuant to subdivision (c)(6). Conversely, where a sentencing court determines that two or more current felony convictions were either ‘committed on the same occasion’ or ‘aris[e] from the same set of operative facts’ as we have construed those terms in [People v.] Deloza [, supra, 18 Cal.4th 585] and the instant case, consecutive sentencing is not required under the three strikes law, but is permissible in the trial court’s sound discretion.” (Lawrence, at p. 233.)
1. The robberies were committed on the same occasion.
“‘[N]othing in either the language of [the three strikes law’s mandatory consecutive-sentencing provision] or its legislative history suggests the electorate intended these words [“same occasion”] to have a special or peculiar import different from their ordinary, generally understood meaning. The phrase “committed on the same occasion” is commonly understood to refer to at least a close temporal and spatial proximity between two events....” (People v. Lawrence, supra, 24 Cal.4th at p. 229, quoting People v. Deloza, supra, 18 Cal.4th at p. 594.)
Jones and Walton robbed Whaley at gunpoint outside by the truck. When they realized Whaley did not have the $2,000, Jones and Walton walked Whaley inside and upstairs to the bedroom where Moore was assembling a mirror, where Walton threw Whaley face down on the bed. Whaley testified that it took around 19 seconds to move from the truck to the house and up the stairs to the bedroom. Jones then robbed Moore.
Less than half a minute separated the first robbery (of Whaley) from the second robbery (of Moore). The first robbery occurred at the truck outside in front of the house, and the second occurred inside, in the upstairs bedroom. The robberies were thus close in time and space, and in the common understanding of the phrase, the robberies were “committed on the same occasion.”
We note that the jury was instructed that count 1, kidnapping to commit another crime (robbery), required (among other elements) that Jones and Walton move the victim (Whaley) “a substantial distance... beyond that merely incidental to the commission of a robbery.” The jury found Jones and Walton not guilty of kidnapping.
Our conclusion is consistent with People v. Deloza, supra, 18 Cal.4th 585, in which the Supreme Court concluded that four robberies were “‘committed on the same occasion’” when the defendant entered a furniture store, robbed four victims in “the same group of victims” (employees and a patron in the store), and left. The robberies were committed in one location and were brief in duration, were “committed essentially simultaneously against the same group of victims, ” and there was no “other event that could be considered to separate one ‘occasion’ of robbery from another.” (Id. at pp. 595–596.) “Given the close temporal and spatial proximity of defendant’s crimes against the same group of victims, they were clearly committed on the ‘same occasion, ’ regardless of what additional factors may be found relevant in defining the precise parameters of this phrase in future cases.” (Id. at p. 596.) (See People v. Hendrix (1997) 16 Cal.4th 508, 510–511, 514 [robberies “‘committed on the same occasion’” when defendant pointed a gun at four people seated at a table, two gave him money, and defendant backed out of room, returned to warn victims not to move, and left again]).
In People v. Lawrence, supra, 24 Cal.4th at p. 224, the defendant stole a bottle of brandy (felony petty theft), fled the scene, ran across the street and through a gas station, and went over the wall into an enclosed backyard. After confronting one of the owners and fleeing from the backyard down a long driveway and into the street, he committed his second felony (felony assault with a deadly weapon), hitting the other owner of the house in the head with the brandy bottle. The court concluded that defendant “chose to commit new and separate crimes during his flight, ” in two separate locations (two or three minutes walking distance), and on “two entirely separate group of victims, ” so that the felonies were not committed on the same occasion. (Id. at p. 228.) Unlike the facts in Lawrence, the two robberies in this case involved the same group of victims (the two deliverymen) and were separated by 19 seconds, a door, and a flight of stairs. The felonies were committed on the same occasion.
2. The robberies arose from the same set of operative facts.
In People v. Lawrence, supra, 24 Cal.4th at p. 230, the court disapproved the court of appeal’s construction of “same set of operative facts” as “‘import[ing] the same concepts of closeness in time and location as the phrase “same occasion, ” and also add[ing] an implication of “natural connection” between the facts of several crimes. [¶] [C]onsecutive sentences are not required where the several current crimes occurred close together in space and time, and had some connection between them.’ (Italics added.)” Instead, the Supreme Court focused on the word “‘operative, ’” noting that earlier cases found that “‘operative’” facts were “the facts of the case which prove the underlying current charged offense” (id. at p. 231), and adopted the approach of People v. Durant (1999) 68 Cal.App.4th 1393.
The Supreme Court quoted People v. Durant, supra, 68 Cal.App.4th 1393 at length: “‘In applying this definition to any particular case, the nature and the elements of the current charged offense become highly relevant. For example, when a robbery is charged, its continuous nature, its elements and the facts used to support those elements are the “operative facts” underlying the commission of that crime. If another offense is committed while the facts underlying that robbery are unfolding, it will necessarily arise from the same set of operative facts as the original robbery. However, where the elements of the original crime have been satisfied, any crime subsequently committed will not arise from the same set of operative facts underlying the completed crime; rather such crime is necessarily committed at a different time... [and] necessarily will arise out of different operative facts than those underlying the original offense.’” (People v. Lawrence, supra, 24 Cal.4th at p. 232.) The court continued: “Durant suggests that the nature and elements of the current charged offenses-for example, the extent to which the common acts and elements of such offenses unfold together or overlap, and the extent to which the elements of one offense have been satisfied, rendering that offense completed in the eyes of the law before the commission of further criminal acts constituting additional and separately chargeable crimes-are additional factors the court must consider in determining whether multiple current crimes arose from the ‘same set of operative facts’ when the offenses are committed more than seconds apart. [Citation.] There may be others.” (Id. at p. 233.)
Jones and Walton robbed Whaley and 19 seconds later, robbed Moore; the two robberies shared common elements and overlapped. Immediately after Jones took Whaley’s wallet, cell phone and keys from Whaley’s pockets at gunpoint, Jones proceeded to go through Whaley’s pockets again while Whaley heard whispering to the people in the vehicle. Walton and Jones asked Whaley “‘Where’s the money at?’” and “‘We know you got money, ’” and looked through Whaley’s wallet. Walton and Jones then asked Whaley where his partner was, and Walton said “‘Your partner has that money, doesn’t he?’” Jones and Walton then forced Whaley upstairs, where 19 seconds later Whaley was face down on the bed while Jones and Walton proceeded to rob Moore of his cell phone and his wallet, which contained the $2,000. The two robberies occurred in a continuous sequence of events in which Jones and Whaley first robbed Whaley, then Moore, in the course of their apparent singular effort to rob the two deliverymen of the $2,000. Under these circumstances, the crimes arose from the “same set of operative facts” under section 667 (c)(6).
In closing argument, the prosecutor stated that the prosecution’s theory was that Edward was “likely in on the whole thing” and had told her cousins Jones and Walton that she had given the deliverymen the $2,000.
We note that People v. Lawrence cautioned, quoting People v. Deloza, supra, 18 Cal.4th at p. 596, that “‘additional factors may be found relevant in defining the precise parameters of this phrase in future cases.’ [Citation.] Similar words of caution are in order respecting our interpretation of the phrase ‘same set of operative facts’ herein.” (24 Cal.4th at p. 233.) Further, both the Supreme Court and the court of appeal added to the definition of “‘operative facts’” the qualifying language “when the offenses are committed more than seconds apart.” (Lawrence, at p. 233, quoting People v. Durant, supra, 68 Cal.App.4th at p. 1406.) In this case the evidence was that it took only 19 seconds for Jones and Walton to force Whaley upstairs and put him face down on the bed after they robbed him at the truck, and that nine seconds later the robbery of Moore was accomplished and Jones and Walton were out of the bedroom. Substantial evidence supports the conclusion that the two robberies were not “committed more than seconds apart.”
In People v. Newsome, supra, 57 Cal.App.4th 902, the court of appeal concluded that three robberies were committed on the “same occasion” and arose from “the same set of operative facts” when the armed defendants ordered the couple residing in the house to get down, took the woman into the bedroom to search her for weapons, and then handcuffed them, forced them to the floor, and robbed both. The third victim was robbed when he stopped by during the robberies of the residents. (Id. at pp. 906–907, 912.)
We conclude that the robberies in this case were committed on the same occasion and arose from the same set of operative facts. Therefore, under section 667, subdivision (c)(6), “consecutive sentencing is not required... but is permissible in the trial court’s sound discretion.” (People v. Lawrence, supra, 24 Cal.4th at p. 233.) We vacate Jones’s sentence and remand for the trial court to exercise its discretion whether to impose consecutive or concurrent terms on counts 2 and 3. (See People v. Deloza, supra, 18 Cal.4th at p. 600 [remanding for resentencing when trial court misunderstood the scope of its discretion to impose concurrent sentences].)
II. Jones’s Prior Juvenile Adjudication
Jones argues that the use of his prior juvenile adjudication to enhance his sentence under the Three Strikes law violated his federal constitutional rights to a jury trial and due process. The California Supreme Court has rejected a similar claim in People v. Nguyen (2009) 46 Cal.4th 1007, 1028: “the absence of a constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi [v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]], preclude the use of a prior juvenile adjudication of criminal conduct to enhance the maximum sentence for a subsequent adult felony offense by the same person.” Jones acknowledges that this court is bound by that decision (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454), and asserts the claim solely for the purpose of preserving it for future federal review.
III. Walton
We appointed counsel to represent Walton on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. On September 25, 2009, we advised Walton he had 30 days within which to submit any contentions or arguments he wished us to consider. To date, after several extensions of time, we have received no response.
On January 6, 2009, Walton filed a motion for new trial on the basis of newly discovered evidence, attaching an unsigned report from a defense investigator who interviewed Edward on November 24, 2008. Edward told the investigator that in July or August of 2008, she ran into an old friend from high school. The friend told Edward that the friend’s husband had committed the crime with another individual, and that her children overheard the men plotting the crime. The trial court denied the motion for new trial at the sentencing hearing, noting that it consisted of multiple hearsay unsupported by declarations.
Jones orally joined in Walton’s new trial motion at the sentencing hearing but does not appeal from the court’s denial of the motion.
Unlike Jones, Walton was not sentenced under the Three Strikes law and section 667, subdivision (c)(6) does not apply to his sentence.
We have examined the entire record and are satisfied that Walton’s counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende (1979) 25 Cal.3d 436, 441–442.)
DISPOSITION
Jones’s sentence is vacated and the matter is remanded to the trial court for it to exercise its discretion whether to impose consecutive or concurrent sentences for the robbery convictions. In all other respects, the judgment is affirmed.
The judgment is affirmed as to Walton.
We concur: MALLANO, P. J., ROTHSCHILD, J.