P. v. Daniel
Filed 5/28/08 P. v. Daniel CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Appellant, v. DARYL RICHARD DANIEL, Defendant and Respondent. | F053571 (Super. Ct. No. BF114853A) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Appellant.
Richard J. Krech, under appointment by the Court of Appeal, for Defendant and Respondent.
-ooOoo-
This is an appeal by the People from an order granting respondent Daryl Richard Daniels motion to strike. On appeal, the People contend the trial court erred when it found that Daniels prior juvenile adjudication for robbery did not qualify as a strike under the three strikes law (Pen. Code, 667, subds. (b)-(i))[1]and struck the prior conviction allegation from the information. We will reverse.
FACTS
On May 18, 2006, members of the Kern Narcotics Enforcement Team searched Daniels house in Bakersfield. The officers found 14.27 grams of cocaine base, a digital gram scale, packaging materials, an unregistered loaded .357 magnum, and a box containing 25 rounds of ammunition.
On June 20, 2006, the district attorney filed an information charging Daniel with possession of cocaine base for sale (count 1/Health & Saf. Code, 11351.5), possession of cocaine base (count 2/Health & Saf. Code, 11350, subd. (a)), possession of a firearm by a felon (count 3/ 12021, subd. (a)), possession of live ammunition by a felon (count 4/ 12316, subd. (b)(1)), and receiving stolen property (count 5/ 496, subd. (a)). Count 1 alleged that Daniel was personally armed with a firearm in committing the offense charged in that count ( 12022, subd. (c)). Count 2 alleged that Daniel personally used a firearm in committing the offense charged in that count ( 12022, subd. (b)). Each count alleged that Daniel had a prior conviction within the meaning of the three strikes law. ( 667, subds/ (b)-(i)). The prior conviction allegation was based on Daniels juvenile adjudication for robbery that resulted from a contested jurisdictional hearing.
On June 7, 2007, Daniel filed a motion to strike his prior conviction.
On June 12, 2007, the People filed their response.
On June 20, 2007, the court denied the motion.
On August 8, 2007, the court held a hearing to reconsider its denial of Daniels motion to strike. After taking the matter under submission, the court issued a ruling later that day granting the motion.
On August 10, 2007, the People filed an appeal of the trial courts ruling.
DISCUSSION
The People contend the court erred when it granted Daniels motion to strike his juvenile adjudication because the adjudication qualified as a strike under the three strikes law. Daniel contends the court did not err in striking his juvenile adjudication for robbery because the truth of the underlying robbery charge was determined by the court and not a jury. We agree with the People.
In People v. Buchanan (2006) 143 Cal.App.4th 139, 149, this court rejected this identical contention stating, We agree with the analysis in People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817 and the cases that preceded it finding that a prior juvenile adjudication may constitutionally be used as a strike despite the fact that there is no right to a jury trial in juvenile proceedings. [Citation.]
Daniel has not provided us with any persuasive argument for departing from our holding in Buchanan. Thus, in accord with Buchanan, we conclude the court erred when it struck the allegation that Daniel had a prior conviction within the meaning of the three strikes law..
DISPOSITION
The courts order striking the allegation that Daniel had a prior conviction within the meaning of the three strikes law is reversed.
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*Before Levy, Acting P.J., Cornell, J., and Gomes, J.
[1] All further statutory references are to the Penal Code, unless otherwise indicated.
