Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR251765
Richman, J.
After pleading no contest to one count of grand theft person and admitting a prior strike, defendant Deante Stewart was sentenced to 32 months in prison. On appeal, he raises a single question of law: Does the use of a juvenile adjudication as a strike under California’s Three Strikes law violate defendant’s Sixth Amendment right to a jury trial? Following the majority of Courts of Appeal that have answered this question in the negative, we affirm.
BACKGROUND
Because this appeal presents a question of law, the salient facts are few and can be summarized with brevity. On May 16, 2008, a two-count felony information was filed charging defendant with second degree robbery (Pen. Code, § 211) and making criminal threats (Pen. Code, § 422). The information alleged that the offenses were serious and violent felonies, and that defendant committed these offenses for the benefit of and in association with a criminal street gang. The information also alleged that defendant had suffered a juvenile adjudication finding him guilty of robbery that qualified as a strike within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i).
All statutory references are to the Penal Code.
The information was subsequently amended to allege a third count, felony grand theft person in violation of section 487, subdivision (c). On June 30, 2008, pursuant to a negotiated plea agreement, defendant pleaded no contest to the third count and admitted the strike allegation. In exchange, it was agreed that defendant would receive a sentence of no more than 32 months, the remaining counts and gang enhancement would be dismissed, and the court would consider a lesser sentence and a motion to strike the strike.
In his August 15, 2008 sentencing memorandum, defendant argued that use of his juvenile adjudication to enhance his sentence was a violation of his right to a jury trial. He also moved the court for dismissal of the strike prior in furtherance of justice pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court denied defendant’s motion to strike and sentenced him to 32 months in state prison. The sentence was comprised of the 16-month, low term for the grand theft person count, which was then doubled in light of the prior strike.
This timely appeal followed.
DISCUSSION
Defendant’s sole argument pertains to the use of a juvenile adjudication as a prior strike to double his prison sentence. He acknowledges that, under California’s Three Strikes law, certain prior juvenile adjudications fall within the definition of prior strikes. (See Pen. Code, §§ 667, subd. (d)(3), 1170.12, subd. (b)(3).) He contends, however, that this violates the Sixth Amendment of the federal constitution because it deprives defendant of the right to a jury trial on the elements of the prior juvenile offense. Like the majority of Courts of Appeal that have considered this issue, we disagree.
Defendant’s argument derives from Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe). 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.) As pertinent here, 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 enhanced the defendant’s sentence under the hate crime statute, for a total prison term of 12 years on that count. (Id. at pp. 470-471.) 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.)
Citing Tighe, defendant contends that Apprendi’s 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.” (Tighe, supra, 266 F.3d at p. 1191.) Considering Apprendi’s prior conviction exception, a two-to-one panel of the Ninth Circuit Court of Appeals 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 majority explained, “[T]he ‘prior conviction’ exception to Apprendi’s 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 Apprendi’s ‘prior conviction’ exception.” (Id. at p. 1194.)
Defendant’s argument is misplaced. The Three Strikes law affords the right to a jury to establish, under the reasonable doubt standard, the existence of a strike, including a juvenile adjudication. In addition, unlike Tighe, defendant’s prior juvenile adjudication was alleged in the information as the basis for an enhanced sentence. In the current proceeding, defendant 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.) Apprendi’s nonjury exception for prior convictions is thus not at issue, and we need not address Tighe’s holding that juvenile adjudications do not qualify for this exception. (See People v. Bowden (2002) 102 Cal.App.4th 387, 390-394 [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].)
Additionally, with respect to Tighe, we are, of course, not bound by the decisions of the lower federal courts, even on federal questions. (People v. Cleveland (2001) 25 Cal.4th 466, 480.) Further, Tighe has not met with universal acceptance. (See, e.g., U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1033 [disagreeing with Tighe and concluding that, despite the absence of jury trial, the substantial procedural protections afforded to juveniles are “more than sufficient to ensure the reliability that Apprendi requires”].) And it is also contrary to the majority of federal authorities on the issue. (See U.S. v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190-1191, cert. denied (2005) 546 U.S. 981 [holding that a juvenile adjudication may be used as a prior conviction under Apprendi]; U.S. 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”]; U.S. v. Smalley, supra, 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 Petitioner’s juvenile adjudication as a sentencing enhancement was contrary to, or involved an unreasonable application of, Supreme Court precedent”].)
Significantly, until 2007, every California court that considered the question of whether a juvenile adjudication can be used as a strike under the Three Strikes law concluded in the affirmative. (See People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 831-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075, 1077-1078; People v. Bowden, supra, 102 Cal.App.4th 387, 390-394; People v. Fowler (1999) 72 Cal.App.4th 581, 585 587.) It was not until this unanimity was broken by People v. Nguyen that the Supreme Court agreed to provide an authoritative answer. (People v. Nguyen, review granted Oct. 10, 2007, S154847.) As defendant acknowledges, the Supreme Court’s decision in Nguyen will control his case. Until that answer is given, we agree with the clear majority of the Courts of Appeal that have addressed the issue. (See People v. Del Rio (2008) 165 Cal.App.4th 439, 441.)
CONCLUSION
The judgment of conviction is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.