Opinion
NOT TO BE PUBLISHED
Super. Ct. No. LF009146A
RAYE, J.The three Spanish-speaking victims were in bed in their small one-bedroom apartment when defendant Alfredo Vargas broke in, assaulted them with a handgun, robbed them, and raped one of the victims after binding her husband and forcing him into the bathtub with his sister. A jury found defendant guilty of first degree residential burglary (Pen. Code, § 459), first degree home invasion robbery (§ 211), forcible rape (§ 261, subd. (a)(2)), assault with a firearm (§ 245, subd. (a)(2)), false imprisonment by violence (§ 236), making criminal threats (§ 422), and various enhancements and special circumstances.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant asserts the in-field identification procedures were unduly suggestive, the rendering of a verdict in two parts was impermissible, the trial judge coerced the jury to reach a verdict, there was insufficient evidence to support the conviction for assault with a firearm, and the court committed a variety of sentencing errors. The abstract of judgment must be corrected to reflect an indeterminate term of 25 years to life, but in all other respects, the judgment is affirmed.
FACTS
Gabriel H., his wife, Marina, and his sister, Guillermina, went to bed between 9:00 and 9:30 p.m. on April 20, 2006. An intruder awakened them. Before Gabriel could call the police, the intruder was in the apartment and demanded money he claimed Gabriel owed him. Gabriel testified he had never seen the intruder before and did not owe him any money. The intruder threatened Gabriel, and to demonstrate he “wasn’t playing,” he fired a shot into a pillow on a bed in the living room. When Marina came into the living room, defendant pointed the gun at her and ordered her to approach him.
Meanwhile, Guillermina called 911, but unable to communicate with the English-speaking operator, she hung up. Defendant forced Gabriel and Marina back into the bedroom, and when the telephone rang, he answered it. In response to the 911 operator’s inquiries, defendant assured her everything was fine and some children had been playing with the phone. Guillermina, with a gun at her head, confirmed that everything was fine.
Defendant bound Gabriel and Guillermina with duct tape, forced them into the bathtub, and put towels over their heads. Back in the bedroom with Marina, he demanded money and swung his gun at her head. She ducked. When he could not find any money, he threw Marina to the floor and told her he was going to rape her. She pleaded with him not to rape her, telling him she was pregnant and it would hurt the baby. When Gabriel heard this, he escaped through a bathroom window. Defendant removed Marina’s clothes and raped her. Gabriel broke a plastic soap dish as he climbed out the window and thereby alerted defendant to his escape.
Angry about the escape, defendant pointed his gun at Marina and again demanded money. She gave him $40 to $50 from her purse and another $50 to $70 from Guillermina’s purse. Defendant also took Marina’s cell phone, a watch, a DVD player, and a Diskman and, threatening to kill her, demanded that she put the items in a bag for him. She went to the kitchen for a bag and then escaped, eventually going to her brother-in-law’s apartment in the same complex, where she discarded her panties because she was “disgusted.”
All three victims provided a description of their assailant and identified pictures of him. The details are provided in part I at pages 5-6, post. Suffice it to say, Marina did not initially tell the police she had been raped, but she told her husband later that evening. Gabriel urged her to tell the police about the rape, and she did. She went to the hospital within a few hours for a pelvic examination. Vaginal samples were taken. A DNA expert testified that the sperm cell portion from the vaginal sample had a DNA profile that matched defendant’s.
Police found defendant hiding in a shed just before midnight on April 21, 2006. He had a mole on the left side of his face, next to his nose, and was wearing a black T-shirt, black baggy pants, and white tennis shoes, just as all three victims had described.
Defendant testified on his own behalf. He claimed he met Gabriel and Marina at a bar in December 2005. About two months later, Marina flirted with him and begged to have sex with him when they met again at a friend’s house. A man of manners, he refused to have sex with her in someone else’s house, but two weeks later he drove her to a cemetery in a borrowed car, where they had sexual intercourse. According to defendant, they continued their illicit affair for several months and had intercourse as recently as April 18, 2006, just two days before the charged offenses. There was evidence admitted that sperm may stay in the vagina for up to five days. Defendant contended Marina framed him to cover up their illicit affair. She testified she had never seen him before the night she was raped.
Defendant offered an alibi defense. Although when arrested he told the police officers he had been at his mother’s the entire night, his mother testified he left between 9:00 and 10:00 p.m. A long-time friend testified she and her son picked up defendant at 9:30 p.m., and they all spent the night at a trailer on a farm. Defendant and the friend gave vastly different descriptions of the farm and the kinds of animals that resided there. Defendant’s 16-year-old niece also testified she saw defendant with a woman in an alley in March 2006 whom she later identified as a woman she saw at the courthouse.
DISCUSSION
I. PHOTO IDENTIFICATIONS
Defendant contends that admission of the photo identifications by all three victims violated his right to due process because the procedures were unduly suggestive. He bears the burden of demonstrating the police employed an unreliable identification procedure. (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).) Our inquiry begins, and in this case ends, with a determination whether the manner in which the victims were shown photographs of defendant was unduly suggestive. (Ibid.)
The Identifications
Gabriel was first interviewed by a Spanish-speaking police officer. At the time, he was standing about 20 to 30 feet from the other two victims. He described the assailant as an Hispanic male with a yellow or light-colored goatee and very short hair. Sergeant Steven Carillo overheard the description. Earlier that night, Carillo had been shown a “BOL” (be on the lookout) photograph he believed might be the assailant. After another officer retrieved the photograph from the police station, Carillo showed it to Gabriel and asked, “Is this or is this not the guy that we’re talking about?” Gabriel, pointing to the photograph, stated, “Yes, yes, yes, that’s him.” Carillo testified the other victims would not have been able to hear Gabriel or see the photo he was shown.
Gabriel told his wife and sister he had been shown a photograph of their assailant. Later, they were shown a six-photo lineup and told that the assailant might not be depicted in the lineup. Both women identified defendant. The photo was different from the BOL photo that was shown to Gabriel. Gabriel was standing about 15 feet away when Marina and Guillermina were shown the six-photo lineup.
The Trial Court Ruling
The trial court ruled that neither the one-photo lineup shown to Gabriel nor the six-photo lineup shown to Marina and Guillermina was unduly suggestive. The court explained: “So here, I think, it’s a classic example that they’re looking for a suspect. A crime has just occurred -- we don’t know what the crime is -- some sort of a crime has just occurred and I think it’s reasonable to show a single photograph under these circumstances, and the witness, it looks like he gave a pretty definite ID as to that person.
“So when this crime happened, I think we can infer that it’s fairly recent because the officer was dispatched at 9:54 p.m. . . . [S]o this wasn’t very long, and under the circumstances, I think it’s appropriate for the officer to show a single photograph.”
There is nothing inherently unfair about a single-person photographic showup. (People v. Floyd (1970) 1 Cal.3d 694, 714 (Floyd).) “Showing the witnesses a single photo of the defendant is no more impermissibly suggestive than an in-court identification with the defendant personally sitting at the defense counsel table in the courtroom.” (People v. Yonko (1987) 196 Cal.App.3d 1005, 1008-1009.) The use of a single-person or single-photo showup will be upheld when warranted by the circumstances. (Floyd, supra, 1 Cal.3d at p. 711.) Moreover, if we find the challenged procedure is not impermissibly suggestive, the due process claim fails. (Ochoa, supra, 19 Cal.4th at p. 412.)
Here, as the trial court explained at some length, the exigency of the circumstances certainly warranted the prompt single-photo showup. Gabriel had provided a description of the assailant, who remained at large. Based on this description, Carillo had reason to believe the suspect might be the same person he had seen in a police briefing less than two hours earlier. The photograph was quickly retrieved and shown to Gabriel. Carillo made no suggestive comments. Gabriel, who had ample opportunity to observe the intruder, unequivocally identified the person depicted as the assailant. With the assailant at large in the community, the crimes fresh, and without any misconduct by the police or impermissible suggestions, we agree with the trial court that the circumstances warranted the police officer’s quick retrieval of the single photograph. Showing it to Gabriel was not so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. (People v. Pervoe (1984) 161 Cal.App.3d 342, 359.)
Defendant relies on two readily distinguishable federal cases to support his claim that showing Gabriel the BOL photo of defendant was so suggestive it was all but inevitable he would identify defendant as the intruder. In Foster v. California (1969) 394 U.S. 440 [22 L.Ed.2d 402], the witness expressed considerable uncertainty and failed to pick the defendant out of a lineup. (Id. at p. 441.) Only then did the police arrange a second lineup; the defendant was the only person who had also been in the first lineup. (Id. at pp. 441-442.) Similarly, in United States v. Watkins (5th Cir. 1984) 741 F.2d 692, witnesses were unable to identify the defendant, who had been brought to the scene of the crime in a patrol car. (Id. at p. 694.) One witness gave an equivocal identification even though the robber had been wearing a stocking mask and the witness had been lying on the floor for all but a few seconds. (Id. at pp. 693-694.) In both cases, the identifications were not admissible because the circumstances suggested a substantial likelihood of misidentification.
Here, by contrast, defendant had not worn a mask or camouflaged his appearance. Gabriel observed him for a considerable period of time in the living room, bedroom, and as defendant forced him into the bathtub. There was nothing equivocal about his immediate identification and nothing improper or suggestive about the police responding to the exigencies of their in-field investigation. Defendant’s federal cases do not assist him.
Defendant further insists that the six-photo lineup shown to Marina and Guillermina was also constitutionally deficient. Again we disagree. Defendant contends that the fact Gabriel told them he had identified a photograph of him tainted their own identifications. The record belies his contention. Neither woman ever saw the photograph Gabriel identified as the intruder, and in fact, a different photograph was included in their lineup. Both were admonished that the suspect might not be in the lineups they were shown. Gabriel was not present during their lineups. Thus, there are no facts to support defendant’s contention that Marina and Guillermina would have been more likely to choose his photograph.
Actually, the males depicted in the photo lineup all appeared to be Hispanic males in their 20s or 30s with moustaches or goatees and closely cropped hair. All have closed mouths and serious expressions. Nevertheless, defendant complains that the light blue background color of his photograph is different from the background colors of the others. But defendant’s picture does not stand out because the background colors of all the photographs vary from dark gray to brown to light gray to light green. There was nothing impermissibly suggestive about the six-photo lineup.
II. THE JURY’S DELIBERATIVE PROCESS
The jury began to deliberate following six days of testimony and argument. During the second full day of deliberations, the jury requested the court reporter to read back expert testimony, after which the foreperson informed the court the jury had reached verdicts as to some of the counts. At the end of the second full day of deliberations, the jury requested the definition of “firearm.” The court provided the definition and then inquired whether the jurors had agreed to any verdicts. The foreperson reported that they had and had signed the appropriate verdict forms. The court asked the foreperson to date the verdict forms and to return them to the bailiff.
After the clerk read the verdicts, the court polled the individual jurors to confirm. They found defendant guilty of six counts and all the attendant special allegations. The foreperson announced that the jury was still deliberating on the rape and assault with a firearm counts. The court declared a four-day recess, including a weekend and a legal holiday.
After the recess, the jury continued its deliberations for about 45 minutes, when the court received a note from the foreperson stating the jury was unable to reach a verdict on one count. The foreperson inquired whether the verdict form should be left blank or signed not guilty. The court explained that a not guilty verdict would mean that all 12 jurors agreed defendant was not guilty, whereas if they could not reach a verdict it “means there’s no verdict.” After the foreperson assured the jurors’ question had been answered, the court stated it would send the jury back for further deliberations.
The foreperson responded, “Well, I think we’re done deliberating.” The court explained: “Re-read doesn’t count as deliberations. I mean, you haven’t been deliberating that long. I mean, as far as how many hours, I don’t know, it’s probably five or six hours. So I think there’s still ample time for deliberation, so I want to send you back for further deliberations. It’s still pretty early in deliberations, so we’ll send you back for further deliberations.”
Five hours later, the jury returned guilty verdicts on the two remaining counts of rape and assault with a firearm, and found true all the related enhancements. Defendant asserts the trial court abused its discretion by allowing the jury to enter its verdicts as to some of the counts before the holiday weekend and the remaining counts after the holiday. He also contends the court further abused its discretion by directing the jurors to continue their deliberations after their foreperson announced they had reached an impasse. His contentions are without merit.
A. Partial Verdicts
Both federal and state courts recognize that a trial court has the discretion to allow a jury to make a separate return of its verdict as to some counts, continue to deliberate the remaining counts, and then return its verdict as to the remaining counts. (United States v. Ross (9th Cir. 1980) 626 F.2d 77, 81 (Ross); People v. Rigney (1961) 55 Cal.2d 236, 246.) The seriatim entry of verdicts has come to be known as “partial verdicts,” although at least one court has more accurately described the process as “receiving a complete verdict in separate segments.” (Ross, supra, 626 F.2d at p. 81.) Due to the “delicacy” of the decision whether to accept a partial verdict, we review it for an abuse of discretion. (United States v. Heriot (6th Cir. 2007) 496 F.3d 601, 608.)
We are sensitive to the danger that a tentative decision by the jury may be converted into a final one by prematurely allowing a separate return of its verdicts as to some counts. Thus, we must carefully scrutinize the circumstances under which the separate return was allowed. The foreperson informed the court that the jury had signed the verdicts on some of the counts, indicating they had made a final rather than a tentative decision as to those counts. Moreover, the court announced that the jurors had reached consensus on many counts and proceeded to poll individual jurors, thus ensuring that the jury intended the partial verdict to be final as to those counts. (United States v. Dakins (D.C. Cir. 1989) 872 F.2d 1061, 1064.)
Here the determinative factor appeared to be the extended recess necessitated by the weekend and a legal holiday. The court may have reasonably believed that by removing six of the counts from further consideration, the jury would have a better chance of reaching agreement on the remaining counts when it resumed deliberations four days later. Or the court might have been concerned about the risk that one or more of the jurors would have to be replaced given the length of the recess. Whatever the court’s subjective motivation actually was, there is simply no evidence in this record that the court abused its discretion since there is no indication the jurors themselves considered their decisions tentative. Nor, we must point out, did defendant object or express any concern or reservation about the entry of the partial verdict.
On appeal, however, defendant contends the process was improper because he did not stipulate to it. He relies on a footnote in a 1982 opinion by this court. (Sylvia v. Superior Court (1982) 128 Cal.App.3d 309, 312, fn. 2 (Sylvia).) Put in context, our old footnote is inapplicable here. Sylvia raised the question whether an acquittal on a felony drunk driving charge prohibited retrial of the lesser included offense of misdemeanor drunk driving when the jury could not agree on the lesser included offense. We affirmed the general rule that “a jury finding of not guilty of the crime charged includes a determination that the defendant is not guilty of any included uncharged offenses.” (Id. at p. 312.) We acknowledged, however, an exception to this general rule embodied in People v. Allen (1980) 110 Cal.App.3d 698 (Allen). In Allen, the prosecution and defense invited the court to request partial verdicts as to those counts to which the jurors could agree and to enter mistrials as to the remaining counts. (Sylvia, supra, 128 Cal.App.3d at p. 312.) Thus, the parties stipulated to the process to assert control over retrial of the remaining counts. In response, we added in a footnote the following: “In the absence of a stipulation by the parties as in Allen, it is inappropriate for the court to solicit partial verdicts or to inquire how the jury stands numerically and which way on lesser included offenses. The fact that the trial court does so, alone, constitutes grounds for issuance of a writ of prohibition.” (Id. at p. 312, fn. 2.)
Ignoring the factual context in which it was written, defendant would have us convert the footnote into a rule of law precluding partial verdicts in the absence of a stipulation. But the case before us does not involve a lesser included offense or a mistrial, and as a result, there is no issue before us about reprosecution. Our concern in Sylvia was the solicitation of partial verdicts as a way of ending deliberations, rather than as an interim measure while deliberations are ongoing. The footnote has no application where, as here, the partial verdict was merely an interim step to a complete verdict.
Defendant fares no better with a case he cites from the Eighth Circuit Court of Appeals. (United States v. Benedict (8th Cir. 1996) 95 F.3d 17 (Benedict).) In Benedict, the court was particularly troubled by the acceptance of the partial verdict where the prosecution’s evidence was virtually the same as to the counts that had been decided and the count yet to be decided. (Id. at p. 20.) Here the evidence was quite different. While the jury may not have decided whether to believe Marina concerning the rape, the eyewitness identifications provided by her husband and sister-in-law supported the partial verdicts. We agree with the Attorney General that the jury’s inquiry regarding the definition of a firearm also indicated the jurors were struggling with a legal question involving the assault with a firearm charge. As to both counts, the evidence was not the same as the evidence supporting the remaining counts. Benedict, like Sylvia, has no application to the facts before us.
B. Continued Deliberations
As recounted above, the court directed the jury to continue its deliberations when the foreperson reported an impasse following 45 minutes of renewed deliberations after the four-day recess. Defendant sees the court’s order as an abuse of discretion. We do not.
If jurors have not reached a unanimous verdict, they cannot be discharged until “it satisfactorily appears that there is no reasonable probability that the jury can agree.” (§ 1140.) The determination of whether there is a “reasonable probability” of an agreement rests within the “sound discretion” of the trial court. (People v. Bell (2007) 40 Cal.4th 582, 616.) “Although the court must take care to exercise its power without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency [citation], the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived ‘“as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.” [Citation.]’ [Citation.]” (People v. Proctor (1992) 4 Cal.4th 499, 539.)
There is nothing in the record to suggest coercion or untoward pressure exerted by the court. Rather, the court pointed out that the jury had spent considerable time relistening to testimony. Moreover, they had only been deliberating the final two counts for 45 minutes after their four-day break. It was eminently reasonable, without conducting an inquiry of the jurors, for the court to conclude that additional deliberation might break the impasse.
The court did not, as defendant suggests, exhort the jury to reach a verdict. It did not encourage a particular result or express an opinion that a verdict should be reached. Unlike the cases cited by defendant, the court did not humiliate, threaten, or cajole the jurors to reach a verdict. (People v. Carter (1968) 68 Cal.2d 810, 819-820; People v. Crossland (1960) 182 Cal.App.2d 117, 118-119; People v. Crowley (1950) 101 Cal.App.2d 71, 74-75.) Quite simply, the court exercised its discretion in a very reasonable and straightforward manner, directing the jurors to continue their deliberations in an attempt to reach a unanimous verdict. We can find no abuse of the sound discretion invested in the trial court.
III. SUFFICIENCY OF THE EVIDENCE
Although he pointed his gun directly at Gabriel at least twice and demonstrated that he “wasn’t playing” by firing it into a pillow, defendant insists there is insufficient evidence to support the jury’s finding that he committed an assault with a firearm. He argues that merely pointing a gun accompanied by a demand for money does not constitute assault under the formulation espoused by the Supreme Court in People v. Williams (2001) 26 Cal.4th 779, 786 (Williams). Neither pointing the gun nor firing it into the pillow, in defendant’s view, was “immediately antecedent to battery.” (Ibid.) He concludes no reasonable juror could conclude that a battery would “directly” and “immediately” result from the assailant’s conduct (id. at p. 788), and consequently, there was insufficient evidence of an assault with a firearm.
While it is true that many factual situations give rise to troubling questions about the requisite intent for an assault as recounted by the Supreme Court in Williams, this is not one of them. If breaking into a home and pointing a gun directly at the occupant while demanding money does not constitute assault, then Williams would have to be read as judicially abolishing the offense, a result at odds with the court’s attempt to clarify the requisite intent to sustain an assault conviction. We need not address the additional threat occasioned by actually firing the gun into the pillow because the demand for money at gunpoint constitutes ample evidence to support the assault conviction. Defendant fails to explain why this evidence was not sufficient.
Our review for substantial evidence is deferential. Canvassing the record in the light most favorable to the judgment, we must affirm if we find evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find defendant guilty beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Defendant was charged with assault with a firearm upon Gabriel in violation of section 245, subdivision (a)(2). Section 240 provides that “[a]n assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” An attempt requires only “an overt, ineffectual act which is beyond ‘mere preparation’ yet short of actual commission of the crime.” (People v. Valdez (1985) 175 Cal.App.3d 103, 108.) Pointing the gun at Gabriel constitutes the requisite overt act -- beyond mere preparation and short of actually firing the gun. Moreover, there was also substantial evidence of defendant’s present ability to fire, a fact he demonstrated by firing the gun into the pillow. On this evidence, a reasonable trier of fact could certainly find defendant guilty of assault beyond a reasonable doubt.
Similar cases, both before and after Williams, are legion. As early as 1857, the California Supreme Court explained that an assault is committed when a defendant uses a weapon to threaten harm if a demand is not immediately met. The court wrote: “Where a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he had actually struck, or shot, at the other party, and missed him. It would, indeed, be a great defect in the law, if individuals could be held guiltless under such circumstances.” (People v. McMakin (1857) 8 Cal. 547, 548-549 (McMakin).)
The Supreme Court reaffirmed the same principles in People v. Colantuono (1994) 7 Cal.4th 206. Again the court emphasized: “As this court explained more than a century ago, ‘Holding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault. So, any other similar act, accompanied by such circumstances as denote an intention existing at the time, coupled with a present ability of using actual violence against the person of another, will be considered an assault.’” (Id. at p. 219.)
Williams did not dilute these basic principles of the law of assault. In People v. Page (2004) 123 Cal.App.4th 1466, 1474, the court rebuked a substantiality challenge where an accomplice held a sharp pencil to the victim’s neck while the defendant rummaged through his pockets. In People v. Raviart (2001) 93 Cal.App.4th 258, we affirmed a jury verdict for two counts of assault when the defendant drew a loaded handgun with the intent to shoot two police officers but pointed it at only one before he was shot. In both cases the defendant, as here, threatened victims with a deadly weapon and with the present ability to complete a battery. Nothing in Williams disturbs this well-established authority and the basic notion that by pointing a loaded gun at a victim while demanding money, which imposes a condition defendant has no right to impose, displays an intent to enforce performance by violence, and places defendant in a position to do so, he has, in the venerable words of our Supreme Court, committed “as much an assault as if he had actually struck, or shot, at the other party and missed him. (McMakin, supra, 8 Cal. at pp. 548-549.) We reject defendant’s assertion to the contrary.
IV. SENTENCING
The trial court imposed the upper term firearm use enhancement based on defendant’s seven felonies as a juvenile. He complains that the court’s sentencing involved impermissible fact finding in violation of his constitutional right to a jury trial. (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).) We reject his claim because his prior juvenile adjudications fall within the “prior conviction” exception to Cunningham and its predecessors.
The right to a jury trial does not apply to the fact of a prior conviction. This recently articulated principle of constitutional law has been characterized as the Apprendi/Almendarez-Torres exception to the requirement that a jury find beyond a reasonable doubt any fact exposing the defendant to a greater potential sentence. (Cunningham, supra, 166 L.Ed.2d at p. 869; Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435] (Apprendi); Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350] (Almendarez-Torres).) In People v. Black (2007) 41 Cal.4th 799, the California Supreme Court further held: “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) The only question posed here is whether defendant’s juvenile adjudications qualify as prior convictions within the meaning of Apprendi and its progeny. The issue is pending before the Supreme Court in People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007, S154847.
We conclude that juvenile adjudications fall within the prior conviction exception for Sixth Amendment purposes. Even without a jury trial, a juvenile adjudication has sufficient procedural safeguards -- including the rights to notice (Welf. & Inst. Code, § 658), to counsel (Welf. & Inst. Code, § 679), and to confront and cross-examine witnesses (Welf. & Inst. Code, § 702.5), and the privilege against self-incrimination (Welf. & Inst. Code, § 702.5) -- to permit a trial court to use it to enhance a sentence without violating the defendant’s constitutional rights. (People v. Fowler (1999) 72 Cal.App.4th 581, 585-586; People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Bowden (2002) 102 Cal.App.4th 387, 391-392.) Given these procedural safeguards, one judge has thus concluded, “when a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement.” (United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1200 (dis. opn. of Brunetti, J.).)
We agree. A trial court has the prerogative to enhance a criminal defendant’s sentence when a prior adjudication was consistent with constitutional principles. Applying this logic, the trial court properly imposed the upper term without transgressing defendant’s right to a jury trial.
The Attorney General concedes defendant will be eligible for parole at the end of his 25-years-to-life term of imprisonment for rape. (§ 667.61, subd. (a).) The trial court erred by sentencing him to a 25-years-to-life term without parole, a sentence that is not authorized by law. The abstract of judgment must be corrected to reflect an indeterminate term of 25 years to life for the rape charge.
DISPOSITION
The superior court is directed to prepare an amended abstract of judgment reflecting an indeterminate term of 25 years to life for the rape charge and to send a certified copy of said amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
We concur: NICHOLSON, Acting P.J., CANTIL-SAKAUYE, J.