Opinion
A110722
4-25-2007
THE PEOPLE, Plaintiff and Respondent, v. ANGELO MALLAMO, Defendant and Appellant.
NOT TO BE PUBLISHED
I. INTRODUCTION
Angelo Mallamo appeals following his conviction by jury trial for robbery (Pen. Code, § 211) and possession of methamphetamine while armed (Health & Saf. Code, § 11370.1, subd. (a)). On appeal, he contends the trial court erred in allowing amendment of the information after he testified at trial and in using a juvenile adjudication to impose a doubled sentence pursuant to the Three Strikes law. We will modify the judgment and affirm it as so modified.
All further unspecified statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 8, 2004, the Solano County District Attorney filed an amended information charging appellant with three counts of robbery (§ 211; counts one through three), one count of insurance fraud (Ins. Code, § 1871.4, subd. (a)(1); count four), and one count of possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count five). As to counts one and two, the information alleged enhancements for personal use of a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b) ). As to count three, the information alleged that a principal was armed with a firearm (§ 12022, subd. (a)(1) ). Based on a juvenile finding that appellant had violated section 288a, subdivision (d), on September 24, 1994, the information also alleged that appellant had suffered a prior strike conviction (§ 667, subds. (b) through (i); § 1170.12, subds. (a) through (d)) and a prior serious felony conviction (§ 667, subd. (a)).
Former section 12022.5, subdivision (a)(1), provided that "any person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of the offense of which he or she was convicted." As rewritten, subdivision (a) of section 12022.5 currently provides that "any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense." (Stats. 2002, ch. 126.)
Section 12022.53, subdivision (b), provides that "any person who, in the commission of a felony specified in subdivision (a) [which includes section 211, robbery], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply."
Section 12022, subdivision (a)(1), provides, in relevant part: "[A]ny person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm."
On July 1, 2004, the trial court granted appellants motion to sever counts four and five from counts one through three. Jury trial on counts one through three commenced on August 24, 2004. The following evidence was adduced at trial.
The statement of the evidence refers only to counts one and two, which were based on an April 22, 2003, robbery of a McDonalds restaurant. On count three, a robbery of the Kelly-Moore store where appellant worked, the jury could not reach a verdict, and his subsequent trial on count five is not at issue in this appeal.
On April 22, 2003, at about 3:00 p.m., Iris Franco was working at a drive-through window at a McDonalds in Vallejo. Franco noticed a white van pull into an alley and park behind the restaurant in an area that was not a parking space. She saw appellant and another man walking toward the restaurant. They were about 10 feet away when they passed by her window; they had nothing on their faces or heads at that point.
The robbery was videotaped on McDonalds security cameras. The tapes showed two men entering McDonalds then going into the restroom and coming out with something covering their faces. Franco watched the videotape, identified herself as one of the employees, and testified that the two men pointed guns at the employees and told them to get down on the ground. She said one of the men pointed a gun at her and demanded money. She did not give the man any money.
The first man walked the manager, Jeanetta Burns, to the back office. The man was pointing a gun at her and told her to hurry up and give him the money. Appellant followed the first man into the managers office, pointed a gun at Burns head and said, "Where is it at? Give me the money. Where is it at?" Burns told appellant that the other man was already getting money from the safe. Appellant held a gun to her head while the other man was crouched down at the safe. Burns watched the videotape and identified the employee, whom Franco had identified as herself, to be someone else.
The men put an undisclosed amount of money into a bag and left the store. Franco saw them get into the white van and drive away quickly. Appellant was driving.
Gabriel Diaz testified that on April 22, 2003, he was working with appellant at a Kelly-Moore paint store. Appellant told him that he and a buddy were going to rob a McDonalds. Around 1:00 p.m. that day, appellant took the white Kelly-Moore van to make deliveries. Appellant returned about three hours later and told Diaz he and a friend had robbed the McDonalds. Appellant showed Diaz pantyhose in his pocket that afternoon. The next day, appellant "flashed money" at Diaz and told him he had a gun during the robbery. Diaz thought appellant was joking.
Defense Case
Appellant took the stand and admitted he and a "second guy" robbed the McDonalds. Appellants counsel played the security video and appellant denied that he or anyone else pointed a gun at, or demanded money from, a female on the floor (presumably the female whom Iris Franco had identified as herself). According to appellant, the other man was the only one who used a gun during the robbery. Appellant said he was carrying a white plastic bag for the money.
On August 25, 2004, following this testimony and while appellant was still on the stand, the court granted the prosecutions motion to amend the information, over appellants objection, to allege a principal arming enhancement (§ 12022, subd. (a)(1)) as to counts one and two.
On August 26, 2004, appellant admitted that he suffered the alleged prior juvenile adjudication.
On August 27, 2004, the jury found appellant guilty on count one, robbery of Jeanetta Burns; not guilty on count two, robbery of Iris Franco; and was unable to reach a verdict on count three, the robbery at the Kelly-Moore store. As to count one, the jury found the personal gun use allegation not true, but found the principal arming allegation to be true.
On January 20, 2005, the court severed count four from count five. On April 5, 2005, jury trial on count five commenced. On April 6, 2005, the jury found appellant guilty as charged for possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)). On the same date, the trial court found that appellant had suffered the 1994 juvenile adjudication.
On June 27, 2005, the court sentenced appellant to 14 years in state prison, calculated as six years for violation of section 211 (the three-year middle term, doubled because of the prior felony conviction), plus one year for violation of section 12022, subdivision (a)(1); plus two years for violation of Health and Safety Code section 11370.1, subdivision (a) (one-third of a three-year middle term, doubled because of the prior felony conviction); plus five years for violation of section 667, subdivision (a).
The abstract of judgment and the trial courts minute order of June 27, 2005, entered after sentencing, do not accurately reflect the courts oral rendition of judgment, which controls. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
On June 28, 2005, appellant filed a timely notice of appeal.
III. DISCUSSION
A. Amendment of the Information
After appellant had testified at trial that he was involved in the robbery at McDonalds but did not have a gun, the court questioned the prosecutor about the gun use enhancements charged on the three robbery counts. The court observed that count three alleged arming by a principal, but that counts one and two, which alleged personal gun use, did not include an allegation of arming. The prosecutor requested leave to amend counts one and two to add the principal arming enhancement, but indicated that she still intended to argue to the jury that appellant had personally used a gun.
Appellant objected on notice grounds, arguing that the defense had prepared its case in anticipation of defending only against an allegation that he had personally used a gun. Appellant contended that his trial strategy would have been different, that he might not have taken the stand had he known that he would need to defend against an armed principal allegation. The court observed that the amendment involved no new facts and the failure to allege arming simply appeared to be an oversight by the prosecutor. The court took the matter under submission, and later granted the motion to amend.
"Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. [Citations.] `Notice of issues to be resolved by the adversary process is a fundamental characteristic of fair procedure. [Citation.] `The "preeminent" due process principle is that one accused of a crime must be "informed of the nature and cause of the accusation." [Citation.] Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. [Citation.]" (People v. Seaton (2001) 26 Cal.4th 598, 640-641.)
Enhancements must "be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (§ 1170.1, subd. (e).) A defendant has the right to notice that the prosecution is seeking a sentence enhancement. (People v. Neal (1984) 159 Cal.App.3d 69, 73.)
Section 1009 controls the amendment of an accusatory pleading and provides, in pertinent part: "The court in which an action is pending may order or permit an amendment of an . . . information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings . . . unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination." Under section 1009, the inquiry is " `whether or not the amendment changes the offense charged to one not shown by the evidence taken at the preliminary examination. [Citation.] [Citation.]" (People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 764, quoting People v. Spencer (1972) 22 Cal.App.3d 786, 799.) Thus, "[t]he application of this section to allow an amendment to an information so as to add another offense shown by the evidence at the preliminary hearing has been held not to violate a defendants constitutional rights [citation]." (People v. Flowers, supra, 14 Cal.App.3d 1017, 1020.) " ` "[A]n amendment cannot be made under the section [Pen. Code, § 1009] if it prejudices the substantial rights of a defendant; and inasmuch as he is furnished with a copy of the transcript of the proceedings at the preliminary hearing, he has notice of any charge that under the section may be placed against him by amendment of the information. The section itself preserves the substantial rights of the party to a trial on a charge of which he had due notice, and that is all the Constitution requires." " (People v. Brown (1973) 35 Cal.App.3d 317, 322-323, quoting People v. Flowers (1971) 14 Cal.App.3d 1017, 1020, quoting People v. Roth (1934) 137 Cal.App. 592, 608.)
Under section 1009, "generally a complaint or information may be amended even as late as trial." (People v. Edwards (1991) 54 Cal.3d 787, 827; see also People v. Villagren (1980) 106 Cal.App.3d 720, 724 [an amendment to the information may be made as late as the close of trial if no prejudice is shown]; accord, People v. Witt (1975) 53 Cal.App.3d 154, 165, cert. den. (1976) 425 U.S. 916).) "[I]t does not constitute a denial of due process to permit amendment of an information during trial if the amendment does not change the nature of the offense charged nor prejudice the defendants rights." (People v. Garringer (1975) 48 Cal.App.3d 827, 833.) If necessary to protect the defendants substantial rights, the trial court may grant a continuance. (§ 1009; see also People v. Murphy (1973) 35 Cal.App.3d 905, 922-923.) If the amendment would prejudice the defendants substantial rights, the trial court must deny leave to amend. (People v. Birks (1998) 19 Cal.4th 108, 129.)
The questions of whether to grant a motion to amend the information and whether to grant a continuance are matters within the sound discretion of the trial court, and its ruling will not be disturbed absent a clear abuse of discretion. (People v. Bolden (1996) 44 Cal.App.4th 707, 716; People v. Winters (1990) 221 Cal.App.3d 997, 1005.)
Appellant contends his substantial rights were prejudiced when the trial court permitted the prosecution to allege a new and different theory of liability after appellant had already testified in reliance upon the original information.
The People reply that the evidence at the preliminary hearing showed that at least one of the robbers was armed, and appellant therefore was on notice that he could be charged with an arming enhancement even if only his co-participant, and not he himself, was in possession of a firearm.
We find no abuse of discretion by the trial court. The arming enhancement plainly was encompassed by the original information alleging personal use and by the evidence taken at the preliminary hearing. Appellant was notified that a 10-year enhancement was being sought under counts one and two because he personally used a gun. Facts supporting a one-year enhancement for arming were necessarily alleged by virtue of the personal gun use allegation, i.e., one who personally uses a gun during a robbery is armed in the commission of that crime. (See People v. Turner (1983) 145 Cal.App.3d 658, 683-684, disapproved on another ground in People v. Majors (1998) 18 Cal.4th 385, 411.) At the preliminary hearing, evidence was presented that both appellant and his co-participant were armed and used guns in the course of robbing the McDonalds.
In addition, potential vicarious liability for arming was apparent on the face of the complaint because the armed principal enhancement was at all times alleged as to count three. (Cf. People v. Riva (2003) 112 Cal.App.4th 981, 1002 [statutory pleading requirements and constitutional due process are satisfied if an enhancement is pleaded in other counts of the information].) Although the robbery alleged in count three was a separate incident from the robberies alleged in counts one and two, the arming enhancement alleged as to count three gave appellant clear notice of the potential for vicarious liability for arming by a co-principal.
Further, at the time the prosecutor moved to amend, appellant was still on the stand giving testimony. Thus, appellant had the opportunity to request a continuance pursuant to section 1009, to provide additional testimony, or to recall witnesses. He also had the opportunity to argue the arming allegation in closing and to participate in the selection of relevant instructions.
Appellants argument that he would have proceeded differently at trial — that he would not have testified and would have argued reasonable doubt had he known he would face a principal arming enhancement — is not persuasive. Our review of the record reveals that the evidence was very strong, if not overwhelming, that appellant was involved in the robbery. Iris Franco positively identified appellant after the robbery, and identified him again at trial. Franco and Jeanetta Burns both testified that appellant had a gun during the robbery. Other evidence linking appellant to the robbery included the white Kelly Moore delivery van and the testimony of appellants co-worker at Kelly Moore. The only evidence that appellant did not use a gun at McDonalds was his own testimony admitting that he took part in the robbery but denying that he had been armed. As it turned out, appellants trial strategy to admit the robbery and deny gun use to try to avoid the 10-year enhancement was successful. We are not convinced that appellants counsel would have kept him off the stand and argued reasonable doubt, leaving him so clearly vulnerable to an additional 10-year sentence for gun use in an attempt to avoid a one-year sentence enhancement for principal arming. For all of these reasons, the amendment did not prejudice appellants substantial rights.
Appellants reliance on Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234 (Sheppard) and Gray v. Raines (9th Cir. 1981) 662 F.2d 569 (Gray) in support of his claim that he was unfairly surprised by the amendment is misplaced. Initially, we note that federal cases are not binding on this court. (People v. Williams (1997) 16 Cal.4th 153, 190 [decisions of lower federal courts interpreting federal law are not binding on state courts]; People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3 [decisions of lower federal courts are not binding, even on federal questions]; People v. Crawford (1990) 224 Cal.App.3d 1, 7 [Sheppard and other lower federal court decisions are not binding, but are persuasive].) Moreover, we find neither case persuasive in appellants favor.
In Sheppard, the defendant was charged with murder, and the trial proceeded on a theory that the killing was premeditated and deliberate, the result of a cocaine debt allegedly owed by the decedent to the defendant. After both sides had rested and jury instructions had been settled, the prosecutor raised for the first time the theory of felony murder with a predicate offense of robbery, and requested instructions applicable to this new theory. Over defense objection, the trial court gave the instructions and the defendant was convicted of first-degree murder on a general verdict. On appeal, the prosecution conceded that the defendant did not have adequate notice of the felony-murder theory. (Sheppard, supra, 909 F.2d at pp. 1235-1236.) The only issue on appeal was whether a harmless error analysis was appropriate in that situation.
It later came to light that the Attorney Generals concession was "damage control following a first and ultimately vacated opinion (Sheppard v. Rees (9th Cir. 1989) 883 F.2d 795) which had threatened to set the federal Ninth Circuit broadly at odds with Californias rule of murder pleading and notice." (People v. Lucas (1997) 55 Cal.App.4th 721, 738.) In Lucas, we acknowledged several cases finding Sheppard at odds with binding state Supreme Court precedent regarding murder pleading and notice requirements, and observed that "California and Ninth Circuit decisions have uniformly viewed Sheppard narrowly and limited it to its facts." (Id. at p. 738, see cases cited therein.)
In Gray, supra, 662 F.2d 569, a habeas proceeding that originated in state court, the defendant was charged with first degree forcible rape (an offense in which the age of the victim is not an element and consent is a defense). The defendant testified that the intercourse was consensual. During a conference on jury instructions near the close of evidence, the prosecution requested an instruction on second degree statutory rape (in which the age of the victim is an element and consent is no defense); there was evidence of the victims age from pretrial proceedings. Over Grays strenuous objection, the court gave the statutory rape instruction and the jury ultimately convicted Gray of that offense. (Id. at. pp. 570-572.)
The federal court of appeals granted the writ and reversed the statutory rape conviction, holding that Grays conviction of an uncharged offense violated the sixth amendment because he had not been sufficiently informed of the nature of the charges against him. The court explained: "What makes statutory and forcible rape separate offenses for charging purposes is the fact that proof of different elements is required. The use of force is an element of first degree rape, while the age of the victim is an element of second degree rape. Neither element is common to both degrees. Because first and second degree rape are distinct offenses, and second degree rape is not an included offense, the state was obligated to comply with the Sixth Amendment notice requirement when bringing a second degree rape charge." (Gray, supra, 662 F.2d at p. 572.)
Gray is distinguishable. Here, the prosecutor did not surprise appellant with a new, uncharged offense. The substantive offense here was always robbery. The enhancements did not come into play until appellant was convicted of robbery. It also could not have been a surprise that principal arming, by one or the other or both robbers, exposed appellant to an increased sentence.
Appellant also relies on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) for the proposition that allowing liability for an enhancement that was not charged violates the due process principle of providing fair notice. In Mancebo, the defendant was charged with violent sex crimes against two different victims on two different dates. The information sought an enhancement of 25 years to life in prison under the One Strike law (§ 667.61). In order to qualify for such a term, the information alleged two qualifying circumstances as to each victim: gun use and kidnapping as to one victim, and gun use and tying or binding of the victim as to the other. (§§ 12022.5, subd. (a), 667.61, subds. (a), (e).) The jury returned a verdict of guilty on all counts and found all enhancement allegations to be true.
The trial court sentenced the defendant to 25 years to life and imposed a consecutive 10-year term for personal gun use. To reach this result, the trial court sua sponte substituted an unpleaded "multiple victim" circumstance for the gun use allegations to support application of the One Strike law. The trial court then utilized the gun use allegations to impose additional 10-year sentences under section 12022.5, subdivision (a). (Mancebo, supra, 27 Cal.4th at pp. 739-740.) The Supreme Court held that the multiple victim circumstance could not be used because it had not been "alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact" as required by section 667.61, subdivision (i). Although the elements necessary to establish the multiple victim circumstance were implicit in the accusatory pleading and in the jurys verdict, the defendant did not have notice that the multiple victim enhancement would be sought. (Id. at p. 745.)
Mancebo does not assist appellant. The multiple victim circumstance in Mancebo was not even raised until sentencing when the court imposed sentence based on its own post-conviction findings. Here, the information was amended during trial while appellant was still on the stand, and the arming enhancement went to the jury, which returned a true finding. In addition, Mancebo was based on specific language contained in section 667.61, and was expressly limited on that basis. (Mancebo, supra, 27 Cal.4th at pp. 744-745, 749.)
In sum, the trial court did not abuse its discretion in permitting amendment of the information. Appellant was on notice that a sentence enhancement would be sought. The amendment of the information to allege arming in addition to personal use did not prejudice appellants substantial rights.
B. Effect of the Prior Juvenile Adjudication
The information alleged that appellant had suffered a prior "strike" pursuant to section 667, subdivisions (b) through (i), as a result of a juvenile adjudication for violation of section 288a, subdivision (d), in 1994. Appellant admitted the prior, and the court used it to double his base term sentence under the Three Strikes law.
Appellant does not dispute that the Three Strikes law permits certain juvenile adjudications, including the one he suffered, to be treated as strikes. (§ 667, subd. (d)(3).)
In September 1994, a supplemental petition (No. J-023673) filed in juvenile court pursuant to Welfare and Institutions Code section 602 alleged that appellant, then 17 years old, committed oral copulation by acting in concert with force and false imprisonment with violence, both felonies, in violation of Penal Code sections 288a, subdivision (d), and 236. Appellant had been under the jurisdiction of the juvenile court since March 1993. At the jurisdictional hearing in October 1994, appellant, who was then 18 years old, admitted to a violation of Penal Code section 288a, subdivision (d); the allegation that he violated Penal Code section 236 was dismissed. In November 1994, the juvenile court recommitted appellant to the California Youth Authority.
Relying on two federal cases, Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe), appellant contends that, since he had no right to a jury trial in the juvenile proceeding, the use of that adjudication to enhance his sentence in this case violated his Sixth Amendment right to trial by jury. We disagree.
Majority opinion by Fisher, J., with B. Fletcher, J., concurring. Dissenting opinion by Brunetti, J.
In Apprendi, the United States Supreme Court invalidated a New Jersey "hate crime" statute that provided for an extended prison term if the trial judge found, by a preponderance of the evidence, that certain felonies were committed with a purpose to intimidate certain individuals or groups. (Apprendi, supra, 530 U.S. at pp. 468-469.) The defendant was sentenced on one count of possession of a firearm for an unlawful purpose, which carried a sentence of five to 10 years. In addition, the trial court found that the defendant had intended to intimidate the victims because of their race, and sentenced the defendant to an additional 12 years under the hate crime statute. Addressing the right of criminal defendants to have a jury decide certain facts related to increased punishment, the 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." (Id. at p. 490.)
Relying on Tighe, appellant contends that Apprendis exception for prior convictions should not include juvenile adjudications. The defendant in Tighe claimed that the use of a prior juvenile adjudication to increase his sentence beyond the statutory maximum violated Apprendi because "the fact of his juvenile adjudication [had not been] charged in an indictment and found by a jury beyond a reasonable doubt." (266 F.3d at p. 1191.) A two-to-one panel of the Ninth Circuit Court of Appeals considered Apprendis prior conviction exception. The majority observed that prior convictions are reliable when they are the product of fair notice, reasonable doubt, and jury trial. Because juvenile adjudications do not include the right to jury trial, they are not encompassed by the Apprendi exception. The court explained, "the `prior conviction exception to Apprendis general rule must be 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." (Id. at p. 1194; but see United States v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190-91 [holding that a juvenile adjudication may be used as a prior conviction under Apprendi], cert. denied (2005) ___ U.S. ___ ; United States v. Jones (3rd Cir. 2003) 332 F.3d 688, 696 [concluding that there is "nothing in Apprendi or Jones, two cases relied upon by the Tighe court . . . that requires us to hold that prior nonjury juvenile adjudications that afforded all required due process safeguards cannot be used to enhance a sentence"]; United States v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1033 [concluding that "juvenile adjudications can rightly be characterized as `prior convictions for Apprendi purposes"]; see also Boyd v. Newland (9th Cir. 2006) 467 F.3d 1139, 1152 [denying petition for writ of habeas corpus; holding that, "in the face of authority that is directly contrary to Tighe [from California and the Third, Eighth and Eleventh Circuits], and in the absence of explicit direction from the Supreme Court, we cannot hold that the California courts use of Petitioners juvenile adjudication as a sentencing enhancement was contrary to, or involved an unreasonable application of, Supreme Court precedent"].)
Appellants reliance on Apprendi and Tighe is misplaced. The Three Strikes law provides the right to a jury to establish, under the reasonable doubt standard, the existence of a strike, including a juvenile adjudication. (Pen. Code, § 667, subds. (b)-(i).) In addition, unlike Tighe, appellants prior juvenile adjudication was alleged in the information as the basis for an enhanced sentence. In the current proceeding, appellant had notice, the right to a jury trial, and the benefit of the reasonable doubt standard with respect to the existence of the juvenile adjudication. Tighe itself distinguished California law on this basis. (See Tighe, supra, 266 F.3d at p. 1192, fn. 3.) Apprendis nonjury exception for prior convictions is, thus, not at issue, and we need not address Tighes holding that juvenile adjudications do not qualify for this exception. (See People v. Bowden (2002) 102 Cal.App.4th 387, 390-394 (Bowden) [finding Apprendi and Tighe had no application in the situation of proof of a strike under Three Strikes law where a qualifying conviction must, in the current proceeding, be pleaded and proved beyond a reasonable doubt].)
Moreover, every California case to consider the question of whether a juvenile adjudication can be used as a strike under the Three Strikes law has concluded in the affirmative. (See People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 831-834 (Andrades); People v. Lee (2003) 111 Cal.App.4th 1310, 1316 (Lee) [procedural safeguards in juvenile proceedings satisfy the concerns articulated in Apprendi]; People v. Smith (2003) 110 Cal.App.4th 1072, 1075, 1077-1078 (Smith) [juvenile adjudications may be used as strikes for sentencing enhancement, notwithstanding the absence of a right to jury trial in juvenile proceedings]; Bowden , supra, 102 Cal.App.4th at pp. 390-394 [juvenile proceedings afford sufficient due process protections without jury trial; no constitutional impediment to using juvenile adjudication to enhance a defendants sentence following a subsequent adult conviction]; see also People v. Palmer (2006) 142 Cal.App.4th 724, 733 [disagreeing with Tighe and following the reasoning of Bowden in upholding the use of out-of-state misdemeanor driving-under-the-influence convictions, to which there was no right of jury trial, to enhance the punishment for a current California driving offense].)
Appellant cautions us that Lee, Bowden and Smith all rely on the pre-Apprendi holding in People v. Fowler (1999) 72 Cal.App.4th 581 (Fowler) which, according to appellant, should no longer be considered good law. This is so, appellant argues, because Fowlers analysis "depended on the notion that the Three Strikes Law was not an enhancement law, but rather a parallel sentencing scheme," a distinction Apprendi held did not make a difference. Appellant also contends that Fowlers reliance on the holding in McKeiver v. Pennsylvania (1971) 403 U.S. 528, that a juvenile reliably can be adjudicated a delinquent without a jury trial, is inappropriate. We disagree. Fowler remains good law and appellants attempts to limit it are not persuasive.
Finally, appellant urges that the Supreme Courts decision in Blakely v. Washington (2004) 542 U.S. 296, which was decided after Andrades, Lee, Smith and Bowden, strengthens his argument that a criminal defendant has a right to a jury trial on underlying adjudications used to enhance criminal sentences. In Blakely, the Supreme Court considered the constitutionality of Washingtons sentencing scheme which authorized judges to impose a sentence higher than the standard range upon finding one or more aggravating factors. Blakelys sentence for kidnapping had been increased by an additional 12 years upon the trial courts finding that he acted with "deliberate cruelty." Blakeley addressed the right to jury trial on factors used to enhance a criminal defendants sentence, but reiterated the Apprendi exception for prior convictions. Washingtons sentencing law did not pass constitutional muster, the Supreme Court held, because the facts supporting the higher sentence were "neither admitted by the [defendant] nor found by the jury." (Blakely, supra, 542 U.S. at p. 303.) Here, appellants juvenile adjudication was based on facts he admitted. We discern nothing in Blakely that alters our analysis.
C. Sentencing Error
The trial court imposed a five-year sentence enhancement pursuant to section 667, subdivision (a), based on appellants prior juvenile adjudication. Section 667, subdivision (a)(1), provides, in relevant part: "[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately."
As we pointed out earlier in this opinion, the abstract of judgment and the courts June 27, 2005, minute order entered after the oral rendition of judgment incorrectly state that this five-year enhancement was imposed pursuant to section 667, subdivision (b).
As respondent points out, this enhancement should be stricken. A juvenile adjudication cannot be used to impose a prior serious felony conviction enhancement under section 667, subdivision (a). (People v. Smith, supra, 110 Cal.App.4th at p. 1080, fn. 10; People v. West (1984) 154 Cal.App.3d 100, 107-108.)
By contrast, section 667, subdivision (d), provides, "Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as" including a prior juvenile adjudication for purposes of sentence enhancement if several conditions specified in the section are met. (§ 667, subd. (d)(3), italics added.) Section 667, subdivision (a), is not included and therefore is not excepted from Welfare and Institutions Code section 203 which provides, "An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose."
IV. DISPOSITION
We modify the sentence to strike the five-year sentence enhancement imposed pursuant to section 667, subdivision (a) (incorrectly stated on the trial courts June 27, 2005, minute order and the abstract of judgment as section 667, subdivision (b)), leaving a total prison term of nine years. We also direct the trial court to modify the June 27, 2005, minute order and the abstract of judgment to reflect the following: (i) Count one must show a middle term of three years, doubled because of a felony prior (§ 667, subds. (b)-(i)), plus a consecutive one-year arming enhancement (§ 12022, subd. (a)(1)); (ii) Count five must show a consecutive one-year term (one-third the middle term), doubled because of a felony prior (§ 667, subds. (b)-(i)); (iii) Count five was a violation of Health and Safety code section 11370.1, subdivision (a), not subdivision (b). In addition, the abstract of judgment must also be modified to show the prior felony conviction enhancements on both counts. The clerk of the superior court shall prepare and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur:
Lambden, J.
Richman, J.