Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF115223A. Gary T. Friedman, Judge.
Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
Appellant James Webster challenges the imposition of the upper term for his conviction for assault with a firearm. He also challenges the use of a juvenile adjudication to impose an increased sentence under the three strikes law. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The East Bay Crips and the Country Boy Crips are rival Bakersfield gangs. On October 24, 2005, shots were fired from a Dodge vehicle driving through Country Boy Crips territory. One man, Elray Hunter, Jr., was injured. Stanley Stinson witnessed the shooting and followed the vehicle from which the shots were fired, ramming it until the Dodge was disabled. Shots were fired at Stinson’s car by several people in the Dodge. Those inside the Dodge fled, some running toward an apartment complex. Webster was captured while running through the apartment complex and later identified as one of those shooting at Stinson. Because of his having been seated in the rear passenger side of the Dodge, Webster also was identified as the person who fired the shots at Hunter.
On October 4, 2006, a jury found Webster guilty of assault with a firearm and discharging a firearm at an occupied vehicle. The jury also found true gang enhancements appended to each of these offenses. On October 5, 2006, the trial court found true that Webster had suffered a prior conviction for purposes of three strikes.
The trial court imposed the upper term of four years for the assault with a firearm conviction, doubled it to eight years pursuant to the strike prior, and added five years for the gang enhancement. The trial court also imposed a term of 30 years to life for the conviction for discharging a firearm at an occupied motor vehicle. The total term of imprisonment was 30 years to life, plus 13 years.
DISCUSSION
Imposition of Upper Term
Webster contends the trial court imposed an upper term sentence on the basis of factors not found true beyond a reasonable doubt by a jury and therefore the imposition of the upper term is unconstitutional.
In Blakely v. Washington (2004) 542 U.S. 296, 301, the United States Supreme Court held that 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 or admitted by the defendant. Recently, in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court clarified that “In accord with Blakely …the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.]” (Id. at p. ___ [127 S.Ct. at p. 868].) An upper term constitutionally may be imposed if it is based upon facts admitted by the defendant, facts reflected in the jury’s verdict, or a prior conviction. (Blakely, at p. 303.)
A single aggravating factor is sufficient to support imposition of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Additionally, “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (People v. Black (2007) 41 Cal.4th 799, 813.)
In imposing the upper term here, the trial court cited Webster’s prior criminal record. Webster was on four grants of misdemeanor probation when the current offenses were committed, and he had numerous prior convictions as an adult (the probation report discloses 15 adult offenses) and juvenile adjudications. The upper term imposed by the trial court was based upon Webster’s record of prior convictions. Therefore, under the holdings of Blakely, Cunningham, and Black, imposition of the upper term did not violate Webster’s constitutional right to a trial by jury.
Use of Juvenile Adjudication
The trial court found that Webster’s 1996 juvenile adjudication for violating Penal Code section 245, subdivision (d)(1), assault with a firearm on a peace officer, qualified as a strike for purposes of three strikes. In holding that the juvenile adjudication was a qualifying prior, the trial court noted that Webster was 17 years old when he and three adult codefendants fired gunshots at the officers and that the offense qualified as a serious felony under sections 667, subdivision (b) and 1192.7, subdivision (c).
All further statutory references are to the Penal Code unless otherwise specified.
Webster contends that the use of the juvenile adjudication to enhance his sentence violates his Sixth Amendment right to trial by jury and his Fourteenth Amendment right to due process. We disagree.
In People v. Fowler (1999) 72 Cal.App.4th 581, 587, we concluded that a qualifying prior juvenile adjudication “demonstrates beyond a reasonable doubt [citation] that a defendant has engaged in serious criminal behavior in the past. By reoffending, a defendant shows he has failed to draw the proper lesson from the previous judicial determination that he violated the law. This failure warrants harsher punishment in the adult proceeding. [Citation.] The fact defendant was neither afforded nor waived a jury trial at the prior juvenile adjudication does not prevent the use of that adjudication as a strike for purposes of sentencing in his current adult proceeding.”
The weight of authority is that juvenile adjudications have sufficient procedural safeguards to permit a trial court to use them to enhance a defendant’s sentence without violating the defendant’s constitutional rights. (People v. Grayson (2007) 155 Cal.App.4th 1059, 1067-1068; see, e.g., People v. Tu (2007) 154 Cal.App.4th 735, 750; People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-831; People v. Lee (2003) 111 Cal.App.4th 1310, 1314-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1079; United States v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032; U.S. v. Jones (3rd Cir. 2003) 332 F.3d 688, 696; U.S. v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190.)
The trial court’s use of the juvenile adjudication to enhance Webster’s sentence did not violate his constitutional rights. (People v. Fowler, supra, 72 Cal.App.4th at p. 586.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., LEVY, J.