P. v. Salvador
Filed 1/23/09 P. v. Salvador CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, Plaintiff and Respondent, v. SESAR RODOLFO SALVADOR, Defendant and Appellant. | E044305 (Super.Ct.No. RIF132336) OPINION |
APPEAL from the Superior Court of Riverside County. Vincent J. ONeill, Judge. (Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed with directions.
Gordon S. Brownell, 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 Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant was convicted of multiple counts and enhancements flowing from a gang-related drive-by shooting, for which he received a total sentence of 37 years to life. He appeals his sentence, asserting that the use of a prior adjudication as a juvenile as a Strike violated his Sixth Amendment right to a jury trial as to a fact used to impose a sentence in excess of the statutory maximum sentence for the substantive crimes, an issue currently pending in the California Supreme Court. (See People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007, S154847.) Based on existing controlling authority, we affirm.
BACKGROUND
A detailed recitation of the incident is not required. On September 11, 2006, Javier Englasis, along with his girlfriend Florox Romero, and Floroxs brother Christian Romero, went to a liquor store. Englasis went into the store while Florox and Christian waited in the car. While they waited in the car, they observed defendant assault an elderly African-American woman with a stun gun or taser. After Englasis returned to the car, Christian exited the car to confront defendant about assaulting the woman and asked defendant what his problem was. Defendant began throwing gang signs at Christian.
Defendant approached Christian, reached into his waist area, pulled out a handgun, and fired at Christian. Christian jumped back into the car, warning his sister and Englasis to duck down. Englasis sped out of the parking lot as defendant filed more shots at the vehicle. Four bullets struck the left rear passenger panel of the vehicle, and two bullets lodged in the panel.
At a nearby gas station, Englasis contacted the police department. They pointed out defendants vehicle to the responding officer who eventually arrested defendant during a traffic stop. Although no weapons were found on defendant, a handgun was found under the right front passenger seat of his vehicle, and the stun gun was found in the police car where defendant was sitting on it.
Defendant had gang tattoos on his body. Because of his tattoos, and defendants prior law enforcement contacts and his prior admissions that he was a member of the East Side Riva gang, the gang expert believed the crimes were committed for the benefit of a criminal street gang.
Defendant was convicted by the jury of an assault with a taser gun (Pen. Code, 244.5, subd. (b), count 1), the willful discharge of a firearm at an occupied motor vehicle (Pen. Code, 246, count 2), being a felon in possession of a handgun (Pen. Code, 12021, subd. (a)(1), count 3), and attempted murder. (Pen. Code, 664, 187, subd. (a), count 4.) The jury also made true findings on special allegations that the crimes were committed for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)), and that defendant discharged a firearm during the commission of the attempted murder. (Pen. Code, 12022.53, subd. (c).) In a bifurcated proceeding, defendant admitted he had previously been convicted of a serious or violent felony, within the meaning of the Strikes Law. (Pen. Code, 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)
At sentencing, the court imposed an indeterminate term of 15 years to life for count 2, discharging a firearm at an occupied vehicle (based on the gang allegation, Pen. Code, 186.22, subd. (b)(4)(B)), which term was doubled due to the Strike allegation, for a total of 30 years to life for that count. The determinate term consisted of the middle term of four years for the assault with a stun gun or taser, plus three years for the gang enhancement attached to that count. Imposition of punishment for the remaining counts was stayed pursuant to Penal Code section 654. Defendant appealed.
DISCUSSION
1. Defendant Waived Any Constitutional Challenge to the Use of His Prior Juvenile Adjudication as a Strike When He Admitted the Allegation.
Defendant raises a single issue in this appeal, challenging the use of a prior adjudication of robbery as a juvenile, as a Strike. This issue is currently pending in the California Supreme in People v. Nguyen, supra, 152 Cal.App.4th 1205 (Nguyen), review granted October 10, 2007, S154847. Respondent argues the issue has been forfeited because defendant admitted the Strike.
We agree with respondent. Defendant admitted the Strike on September 7, 2007; the published appellate decision in Nguyen was filed on June 29, 2007, three months earlier. Review was granted in Nguyen in October 2007, a month after defendants admission. Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), held that 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 was decided at least seven years before defendants admission. The defendant cannot claim the law changed unforeseeably when he must have been aware of Apprendi and Nguyen at the time he admitted the Strike prior. (See, People v. Black (2007) 41 Cal.4th 799, 810 [overruled on other grounds by Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2 856]].)
In any event, an admission that the allegation is true includes an express waiver of the defendants constitutional trial rights and does not involve a failure to object at a trial. Any constitutional claims that the prior juvenile adjudication could not be used to enhance his sentence was expressly waived when defendant admitted the allegation. (People v. Pearson (2008) 165 Cal.App.4th 740, 748.) In other words, the argument was forfeited because the defendant admitted the Strike, waiving all constitutional defects of the prior adjudication, not just because he failed to object under Apprendi.
Even if we could reach the merits of defendants claim, unless and until our Supreme Court advises us differently, we are bound by prior California decisions holding that a juvenile adjudication may be used as a strike to enhance an adult offenders sentence notwithstanding the absence of the right to a jury trial in delinquency proceedings. (People v. Del Rio (2008) 165 Cal.App.4th 439, 441; People v. Smith (2003) 110 Cal.App.4th 1072, 1075.) Moreover, we find defendants reliance on United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, to be misplaced. The defendant in that case preserved the issue by objecting in the trial court to use of the prior adjudication on the ground that use of the prior to enhance his sentence violated his right to a jury trial, within the meaning of Apprendi. (See Tighe, supra, at p. 1195.)
2. The Abstract Must Be Modified.
Respondent points to several mistakes in the abstract of judgment: (1) It incorrectly states defendant was convicted of 1st degree attempted murder; (2) it indicates that a consecutive sentence of one-third the middle term was imposed for count 3; and (3) it incorrectly shows a consecutive full-term was imposed, and simultaneously stayed for count 4. In the oral pronouncement of sentence, however, the court stayed the sentences for counts 3 and 4.
The clerk is directed to amend the minutes and abstract of judgment to conform to the oral pronouncement of sentence.
DISPOSITION
The judgment is affirmed as modified.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
Acting P.J.
We concur:
s/King
J.
s/Miller
J.
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