P. v. Johnson

Filed 2/3/10 P. v. Johnson CA4/3

Reposted to correct the document file name; incorrectly posted 2/3/10 as G041088

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.

Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

THE COURT:^*

After Joseph Juarez Johnson pleaded guilty to second degree burglary and admitted two prior offenses, the trial court used Johnsons juvenile criminal adjudication to enhance his current sentence as an adult. Johnson contends that his prior juvenile adjudication cannot be used to enhance an adult conviction because he was not afforded the right to a jury trial in the juvenile proceeding. We disagree and the judgment is affirmed.

FACTS

The facts are not pertinent to resolving the issue on appeal, but suffice it to say that appellant, Joseph Juarez Johnson, attempted to return two mattresses at a membership store where he was not a member and his receipt indicated that only one mattress had been purchased. The store manager contacted the loss prevention department to review the stores surveillance tapes which showed Johnson entering the store and going straight to the mattress department where he selected a mattress and took it to the return desk for a refund. Needless to say, the store manager denied the refund.

Johnson was charged in an information with second degree commercial burglary. The information also alleged that Johnson had suffered two prior convictions which included a sustained petition for robbery while a ward of the juvenile court. After the jury in Johnsons first trial could not reach a verdict, Johnson changed his plea and pleaded guilty to the only count charged, as well as the two prior offenses which included the juvenile adjudication of a robbery offense in 1999. At the time Johnson pleaded guilty, and also prior to sentencing, he asked the trial court to dismiss the juvenile robbery adjudication. The trial court denied Johnsons informal request at the time he pleaded guilty, and also denied his formal motion at sentencing.^[1] Johnson was sentenced to 32 months, which was based on the low term of 16 months for second degree commercial burglary, doubled because the prior juvenile robbery adjudication constitutes a serious and violent prior conviction pursuant to subdivision (d) of section 667, and section 1170.12, subdivision (b).

DISCUSSION

At the outset, Johnson acknowledges the California Supreme Court recently decided People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen), which holds that a prior juvenile adjudication can be used to enhance an adult sentence. Nonetheless, Johnson asks this court to disregard the California Supreme Courts ruling on the basis that it is erroneous under controlling law from the United States Supreme Court, and therefore should not be followed.

Relying primarily on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Johnson argues the exception in Apprendi that allows a court to increase a sentence beyond the prescribed statutory maximum without a finding by a jury because the increased sentence is based on a prior conviction, is permitted precisely because the defendant had the right to a jury trial on that prior conviction. Quoting Apprendi, Johnson argues, there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof. (Apprendi at p. 496.)

Johnson therefore reasons that based on Apprendi, prior juvenile wardship findings where the juvenile did not have a right to a jury trial, may not constitutionally be used to enhance a later sentence. According to Johnson, a juvenile adjudication in which the defendant did not have the right to a jury trial is not, in Apprendis words, a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial.

Johnson misapplies Apprendi to the facts in this case. True, Apprendi states that [o]ther 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. (Apprendi, supra, 530 U.S. 466 at p. 490.) But the literal rule of Apprendi [ ] require[s] only that a jury in the current proceeding determine the existence of such an alleged prior adjudication, (Nguyen, supra, 46 Cal.4th at p. 1015, italics added) which in this case Johnson waived when he pleaded guilty and admitted the prior juvenile adjudication. Apprendi is not as expansive as Johnson insists and only requires that any fact other than a prior conviction which authorizes a penalty beyond the prescribed statutory maximum be separately alleged in the charging document of the current offense, and proved to a jury beyond a reasonable doubt, also in the current offense. (Nguyen at p. 1017.)

Although Johnson contends the use of his juvenile adjudication as a strike violates his Sixth Amendment rights because he had not been accorded the right to a jury trial in the juvenile proceeding, McKeiver v. Pennsylvania (1971) 403 U.S. 528, the case which declined to recognize the right to a jury trial in juvenile proceedings, explains that in our legal system, the jury is not a necessary component of accurate factfinding within the scope of constitutional protections afforded minors in juvenile proceedings. (Id. at p. 543; Nguyen, supra, 46 Cal.4th at p. 1020.) Nguyen explains that the prior criminal misconduct establishing this recidivism was previously and reliably adjudicated in proceedings that included all the procedural protections the Constitution requires for such proceedings indeed, every substantial safeguard required in an adult criminal trial except the right to a jury. Use of such reliably obtained juvenile judgments of prior criminality to enhance later adult sentences does not offend an adult defendants constitutional right to a jury trial in an adult criminal proceeding. (Nguyen, supra, 46 Cal.4th at p. 1021.) And as Nguyen aptly observes, if the constitution deems these juvenile proceedings fair and reliable enough to remove a minor from their home and family and subject the minor to involuntary confinement in a correctional institution for a lengthy period of time, it makes little sense to conclude, under Apprendi, that this same juvenile proceeding is inadequate for later use to establish the same individuals recidivism as the basis for an enhanced adult sentence. (Id. at pp. 1021-1022.)

Accordingly, Nguyen holds, the Fifth, Sixth, and Fourteenth Amendments, as construed in Apprendi, do not preclude the sentence-enhancing use, against an adult felon, of a prior valid, fair, and reliable adjudication that the defendant, while a minor, previously engaged in felony misconduct, where the juvenile proceeding included all the constitutional protections applicable to such matters, even though these protections do not include the right to jury trial. (Nguyen, supra, 46 Cal.4th at p. 1019.)

Lastly, Johnson argues the holding in U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194 (Tighe), that the prior conviction exception to Apprendis general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial, supports his position that juvenile prior adjudications cannot be used to enhance an adults later sentence.

In Tighe, supra, 266 F.3d at p. 1194, the Ninth Circuit declined to extend Apprendis prior conviction exception to nonjury juvenile adjudications and held the Apprendi prior conviction exception encompasses only those proceedings that provide a defendant with the procedural safeguards of a jury trial and proof beyond a reasonable doubt as the burden of proof. (Boyd v. Newland (9th Cir. 2006) 467 F.3d 1139, 1151-1152 (Boyd).)

However, five years after Tighe, the Ninth Circuit again addressed the issue of using a prior juvenile adjudication to enhance an adult sentence. Contrary to the result in Tighe, in Boyd, supra, 467 F.3d at p. 1152, the Ninth Circuit denied the portion of the petition for writ of habeas corpus seeking relief from the trial courts use of a juvenile adjudication to enhance an adult sentence and stated that in the face of authority that is directly contrary to Tighe, [from California appellate courts 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 Petitioners juvenile adjudication as a sentencing enhancement was contrary to, or involved an unreasonable application of, Supreme Court precedent. (Ibid; Nguyen, supra, 46 Cal.4th at p. 1021, fn. 10.)

As such, under the principles of stare decisis, this court is bound to follow Nguyen, supra, 46 Cal.4th 1007. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.)

DISPOSITION

For the foregoing reasons, the judgment is affirmed.

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^* Before Rylaarsdam, Acting P. J., Aronson, J., and Ikola, J.

^[1] For sentencing purposes, the trial court did strike the prison prior alleged pursuant to subdivision (b) of Penal Code section 667.5 (all further references are to this code).