P. v. Vera

Filed 12/2/09 P. v. Vera CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Pursuant to a negotiated disposition, appellant Raul Vera pleaded no contest to an amended complaint charging grand theft from person (Pen. Code, 484/ 487, subd. (c), count one); and battery causing serious bodily injury (Pen. Code, 243, subd. (d), count two). Appellant agreed to a court trial on the truth of a prior juvenile adjudication allegation, which was charged as a strike for purposes of the three strikes law. (Welf. & Inst. Code, 707, subd. (b), Pen. Code, 667, subds. (b)-(i) and 1170.12.)[1] In exchange for his pleas, appellant was promised that if the strike allegation was found true by the court he would be sentenced to four years in state prison "top and bottom." However, if the strike was found to be not true, his plea would be with "no conditions."

Over appellant's Apprendi objection,[2]the court found the prior juvenile adjudication to be true and a strike. The court sentenced appellant to a four-year state prison term (double the mid-term term for count one to be served concurrently with double the mitigated term for count two). In addition, appellant was ordered to pay various fines and fees not relevant here.

Appellant challenges the use of the prior juvenile adjudication to enhance his sentence on two separate constitutional grounds. First, appellant contends that as a matter of due process the juvenile adjudication cannot constitute a strike since the state promised him that his juvenile proceedings would not be deemed criminal in nature. Second, because he had no right to a jury trial in that earlier juvenile proceeding, his adjudication may not be used as a strike. For reasons that follow we affirm.

The facts underlying appellant's conviction are not relevant to this appeal.

Discussion

At the outset, appellant recognizes that he failed to advance the first of his two constitutional arguments in the trial court. Nonetheless, he argues that the claim is cognizable on appeal. Alternatively, if he has forfeited this argument his trial counsel was ineffective for failing to raise it below.

The Attorney General urges this court to hold that appellant's first ground for reversal is forfeited for failure to raise it below. Further, the Attorney General takes the position that the California Supreme Court has rejected appellant's claims on the merits in People v. Nguyen (2009) 46 Cal.4th 1007. Accordingly, appellant's "associated ineffective-assistance-contention-for-failing-to-raise-it, must be rejected."

It appears appellant did not assert a specific California or federal due process claim in the trial court. However, "In general, forfeiture of a claim not raised in the trial court by a party has not precluded review of the claim by an appellate court in the exercise of that court's discretion. [Citations.] Thus, an appellate court may review a forfeited claim―and '[w]hether or not it should do so is entrusted to its discretion.' [Citations.]" (In re Sheena K (2007) 40 Cal.4th 875, 887, fn. 7.) We choose to exercise our discretion in this case.

At the time of trial and briefing on appeal, this issue was pending before our Supreme Court in People v. Nguyen, supra, 46 Cal.4th 1007 (Nguyen). Recently decided, the court in Nguyen held that "the absence of a constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi, preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person." (Id. at p. 1028.) The court reasoned that the defendant's claim did not come under the literal rule of Apprendi because that rule only requires that a jury in the current proceeding determine the existence of an alleged prior adjudication. (Id. at p. 1015.) The court explained, however, that prior juvenile adjudications substantially satisfy all the reasons why the Apprendi court and subsequent related cases have concluded that prior convictions may be used to increase the maximum punishment for a subsequent adult offense without the need for jury findings in the later case. Like adult prior convictions, prior juvenile adjudications do not involve facts about the present offense that were withheld from a jury in the present case. Rather, they concern the defendant's recidivism or status as a repeat offender, a basis on which courts acting without juries historically have imposed harsher sentences. Additionally, the prior criminal conduct comprising the recidivism was previously and reliably adjudicated in proceedings that included all the constitutional protections required for such proceedings. (Id. at p. 1021.) Thus, use of reliably obtained juvenile adjudications of past criminal conduct to enhance later adult criminal proceedings does not offend an adult defendant's constitutional right to a jury trial in adult criminal proceedings. (Ibid.)

The essential point the Nguyen court made is this: "[I]f the [juvenile offender] was not deterred, and thus reoffends as an adult, this recidivism is a highly rational basis for enhancing the sentence for the adult offense. So long as an accused adult is accorded his or her right to a jury trial in the adult proceeding as to all facts that influence the maximum permissible sentence, no reason appears why a constitutionally reliable prior adjudication of criminality, obtained pursuant to all procedural guarantees constitutionally due to the offender in the prior proceeding-specifically including the right to proof beyond a reasonable doubt-should not also be among the facts available for that sentencing purpose." (Nguyen, supra, 46 Cal.4th at p. 1023.)

Appellant concedes that for purposes of state law Nguyen resolves his second ground for reversallack of a jury trial right in juvenile proceedings. He continues to maintain, however, that the use of the prior juvenile adjudication is a deprivation of his right to due process under both the California and federal Constitutions, and that Nguyen did not address this issue.

Appellant argues that the claim in Nguyen was based on whether the rule of Apprendi barred the use of prior juvenile adjudications to increase the maximum sentence for a subsequent felony offense given the absence of the right to a jury trial in juvenile proceedings. Consequently, appellant argues that the Nguyen court did not touch on the due process argument in reaching its conclusion.

We do not read Nguyen so narrowly. Specifically, the Nguyen court concluded "the Fifth, Sixth, and Fourteenth Amendments, as construed in Apprendi, do not preclude the sentencing-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.)

Appellant here, like the defendant in Nguyen, was afforded the right to have a jury determine whether he suffered the prior juvenile adjudication. He waived that right. Under Nguyen, by which we are bound, defendant's Sixth Amendment right to a jury trial and due process rights were not violated. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Moreover, due process dictates that a juvenile only "has the right to notice of the charges against him or her, the right to counsel, the privilege against self-incrimination, the right to confrontation and cross-examination, the protection against double jeopardy, and the allegation must be proved beyond a reasonable doubt." (People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 834.) Even if it were true that the state promised appellant his juvenile proceedings would not be deemed criminal in nature, since 1994 juveniles have been or should have been aware that juvenile adjudications can be used to enhance adult punishment. (Stats. 1994, ch 12, 1, pp. 71-74.) Thus, even though juvenile proceedings emphasize "informality, rehabilitation, and parens patriae protection of the minor" (Nguyen, supra, 46 Cal.4th at pp. 1019-1020), the state has not promised that the adjudications that come from those proceedings will not be used in later criminal matters to enhance an adult offender's sentence.

Accordingly, we reject appellant's due process argument.

Disposition

The judgment is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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DUFFY, J.

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[1] A first amended complaint charged appellant with one count of robbery in the second degree (Pen. Code, 211); and one count of battery causing serious bodily injury (Pen. Code, 243, subd. (d)). The complaint alleged that appellant had two juvenile adjudications that were strikes within the meaning of Welfare and Institutions Code section 707, subdivision (b). At the change of plea hearing, the court noted that the complaint was going to be amended to charge a felony violation of grand theft person in count one (Pen. Code, 484/ 487, subd. (c)). Defense counsel pointed out that one of the strike allegations had been struck by the court because it was not "valid."

[2]Apprendi v. New Jersey (2000) 530 U.S. 466 (120 S.Ct. 2348). The high court in Apprendi ruled that due process, as well as the Sixth Amendment notice and jury trial guarantees, mandate 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. at pp. 476-477, 490.)