Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA037792, Steven D. Ogden, Judge.
Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
SUMMARY
Joseph Valdez pled no contest to burglary, admitted a prior juvenile adjudication for robbery and was sentenced to a term of four years in state prison. He appeals, claiming sentencing error. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
At about noon on February 23, 2007, the victim’s neighbor saw Valdez smash the victim’s bedroom window and enter her residence. He left a short time later. Soon after that, the victim’s daughter arrived home from school, saw the smashed window and contacted her sister who then notified the Sheriff’s Department.
As Valdez entered a no contest plea, these facts are taken from the probation report in this matter.
The victim’s neighbor who had witnessed Valdez’s actions recognized Valdez as her boyfriend’s cousin and drove around looking for him (Valdez). When she caught up with Valdez he said, while on his way to see her, he had seen two individuals exiting the victim’s house. The witness had Valdez get in her car; after a brief search for the people Valdez said he had seen, she brought Valdez to the victim’s house. When he was told the Sheriff’s Department had been called, he tried to leave but was detained by deputies. Nothing had been taken from the victim’s residence, but someone had gone through her jewelry and cashbox.
Valdez was charged with first degree residential burglary (Pen. Code, § 459 [all undesignated statutory references are to the Penal Code]). It was further alleged he had a prior strike conviction arising out of a juvenile adjudication for robbery (§ 211). (§§ 1170.12, subds. (a)-(d), and 667, subds. (b)-(i).)
Valdez waived his constitutional rights, pled no contest to the burglary charge and admitted the prior robbery adjudicated in juvenile court. He was sentenced to the low term of two years for the burglary conviction which was then doubled because of the prior strike. (§ 1170.12, subd. (c)(1).)
Valdez obtained a certificate of probable cause and appeals.
DISCUSSION
According to Valdez, because he was not afforded the right to a jury trial in connection with his prior juvenile adjudication, the trial court violated his constitutional rights by relying on this prior adjudication to double his sentence. He concedes that several appellate courts—including this one—have found constitutional the use of prior juvenile adjudications to enhance a defendant’s sentence. (People v. Smith (2003) 110 Cal.App.4th 1072, 1077-1078 [“Under California’s Three Strikes law a qualifying juvenile adjudication may be used as a strike to increase the sentence of an adult offender”]; People v. Lee (2003) 111 Cal.App.4th 1310; People v. Superior Court (Andrades)(2003) 113 Cal.App.4th 817; People v. Bowden (2002) 102 Cal.App.4th 387; People v. Fowler (1999) 72 Cal.App.4th 581.) Nevertheless, he argues, Louisiana, Indiana and the federal Ninth Circuit have prohibited the use of juvenile adjudications to increase the maximum sentence.
Valdez also cites People v. Nguyen (2007) 152 Cal.App.4th 1205 for the proposition that a juvenile adjudication is not a prior conviction within the meaning of Apprendi v. New Jersey (2000) 530 U.S. 466, although he acknowledges a contrary holding in People v. Tu (2007) 154 Cal.App.4th 735. Review has since been granted in these and related cases. (See People v. Grayson (2007) 155 Cal.App.4th 1059, review granted Dec. 19, 2007, S157952; People v. Tu, supra, 154 Cal.App.4th 735, review granted Dec. 12, 2007, S156995; People v. Nguyen, supra, 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847.)
First, as the record establishes, Valdez admitted the prior adjudication with knowledge it would be used as a strike and therefore waived any error in this regard. (See People v. Saunders (1993) 5 Cal.4th 580, 590; People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061.) Further, facing the risk of a sentence of 13 years in state prison, he negotiated for the benefit of a four-year term in connection with his admission of the prior adjudication as a strike and entry of a no contest plea on the burglary charge. As he received the benefit of this bargain, he has waived the right to challenge this plea. (People v. Hester (2000) 22 Cal.4th 290, 295.) In any event, unless and until our Supreme Court holds otherwise, as we determined in People v. Smith, supra, 110 Cal.App.4th 1072,1075, we conclude that “a juvenile adjudication may be used as a strike to enhance an adult offender’s sentence notwithstanding the absence of the right to a jury trial in delinquency proceedings.” (See also People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Superior Court (Andrades), supra, 113 Cal.App.4th at pp. 830-834; People v. Lee, supra, 111 Cal.App.4th at pp. 1312-1316; People v. Bowden, supra, 102 Cal.App.4th at pp. 391-394; People v. Fowler, supra, 72 Cal.App.4th at pp. 584-587.)
The trial court could have imposed the same four-year sentence by imposing the midterm for residential burglary. (§ 461.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J. WILEY, J.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.