P. v. Pinedo

Filed 3/12/08 P. v. Pinedo CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Tia Fisher, Judge. Affirmed as modified.

Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

A jury convicted appellant Daniel Joseph Pinedo of assault with a deadly weapon, attempted murder, shooting from a vehicle, and other crimes. On appeal Pinedo argues that the trial courts use of his prior sustained juvenile petition to impose a sentence under the Three Strikes law violated his federal constitutional rights to a jury trial and due process. Pinedo also contends he is entitled to 10 more days of presentence credit.

We conclude the trial court properly used Pinedos prior juvenile adjudication as the basis for a strike finding. He is, however, entitled to additional presentence credit.

FACTS AND PROCEDURAL HISTORY

The facts underlying the charged offenses are not relevant to the issues Pinedo raises, so we only summarize them briefly.

In July 2006, Pinedo chased his former girlfriends current boyfriend and stabbed him in the back as he tried to run away. The victim was hospitalized and needed surgery. Six days later, Pinedo went to McDonalds. Angry that McDonalds was out of apple pies, Pinedo pointed his .357-Caliber Glock at a stranger who was crossing the street and shot him. The victim had been taking pictures of a Buddhist statue and happened to walk in front of the car Pinedo was in. Pinedo commented to his companion, See, that is what hunger does to you. The victim barely survived. He lost six feet of his intestines and suffers from pain and other ongoing problems. About a week after the McDonalds shooting, detectives searching for Pinedo saw him driving a car that belonged to a woman who had not given Pinedo permission to take her car. When the police arrested Pinedo at a motel, they found the Glock in his room.

The amended information filed February 27, 2007, alleged that Pinedo had three prior strike convictions. Two of these were a 1991 juvenile adjudication for assault with a firearm and a 1993 adult conviction for attempted murder. (The amended information stated the conviction date for the attempted murder to be 2003. The prosecutor later amended that allegation to reflect the correct date of 1993.) (The third alleged prior for criminal threats later was determined not to have been a strike. The court struck that allegation on the prosecutors motion.) The trial court granted a defense motion to bifurcate trial of the priors. After the jury retired to deliberate, Pinedo elected to waive jury on the priors.

The jury convicted Pinedo of assault with a deadly weapon on the boyfriend, attempted murder of the passerby, possession of a firearm by a felon, unlawfully driving or taking a vehicle, and shooting from a vehicle. (At the prosecutors request, the trial court dismissed an additional charge of felony resisting. The jury found Pinedo personally and intentionally fired a gun, causing great bodily injury. (Pen. Code,  12022.53, subd. (d).)

The court conducted a bench trial on Pinedos priors and found the allegations of the priors to be true. The court denied Pinedos motion under Peoplev.SuperiorCourt (Romero) (1996) 13 Cal.4th 497, and sentenced him to a third strike term of 124 years to life.

DISCUSSION

1. The use of Pinedos prior juvenile adjudication as the basis for a

strike finding does not violate due process or the right to a jury trial.

In 1991, Pinedo admitted an assault with a firearm allegation in a Welfare and Institutions Code section 602 petition filed in Los Angeles Count Superior Court Case No. KJ001185. One of the two strike allegations the trial court found true in the current case was based on this 1991 juvenile adjudication. Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), its progeny, and U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe), Pinedo contends that use of his juvenile prior to sentence him under the Three Strikes law violated his federal constitutional rights to due process and a jury trial.

First, Pinedo did not raise this contention in the trial court. He therefore forfeited it. (People v. Hill (2005) 131 Cal.App.4th 1089, 1103.) The trial court sentenced Pinedo on May 22, 2007, long after the United States Supreme Court had decided both Apprendi and Blakely v. Washington (2004) 542 U.S. 296. The issue Pinedo raises was well known at the time. Many reported appellate decisions illustrate this; they include People v. Bowden (2002) 102 Cal.App.4th 387 (Bowden), People v. Smith (2003) 110 Cal.App.4th 1072 (Smith), People v. Lee (2003) 111 Cal.App.4th 1310 (Lee), People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817 (Andrades), and People v. Buchanan (2006) 143 Cal.App.4th 139 (Buchanan). Because the California Supreme Court has not decided the issue, Pinedos argument in the trial court would not have been futile. (The issue is currently pending before the California Supreme Court in People v. Nguyen (June 29, 2007, H028798) review granted October 10, 2007, S154847.) Although Cunningham v. California (2007) --- U.S. --- [127 S.Ct. 856], had not been decided at the time of Pinedos sentencing, Cunningham neither created nor strengthened the claim Pinedo raises here. Accordingly, Pinedo forfeited his claim by not raising it in the trial court.

Even if Pinedo had not forfeited his claim, we would reject it on the merits. Apprendi essentially requires any fact -- other than a prior conviction -- that increases the penalty for a crime beyond the prescribed statutory maximum to be charged, submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) Here, the People alleged Pinedos prior convictions in the information. Pinedo had a right to a jury trial on the truth of the strike allegations, but he waived jury and had a court trial instead.

Relying on Tighe, Pinedo argues that his third strike sentence -- based in part on his prior juvenile adjudication -- is unconstitutional because he was denied the right to a jury trial in the juvenile court proceedings. In Tighe,a divided panel of the United States Court of Appeals for the Ninth Circuit held that prior juvenile adjudications do not fall within the fact of a prior conviction exception to Apprendis general rule that all elements used to increase a defendants maximum penalty must be submitted to a jury and proved beyond a reasonable doubt. Until Nguyen, every California Court of Appeal to consider this issue had rejected Tighe. For example, in Andrades the court said,   [W]hen a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement.    (Andrades, supra, 113 Cal.App.4th at p. 833 [citing U.S. v. Jones (3d Cir. 2003) 332 F.3d 688 (Jones)].) (See also Bowden, supra, 102 Cal.App.4th at pp. 392-394; Smith, supra, 110 Cal.App.4th at pp. 1075-1079; Lee, supra, 111 Cal.App.4th at pp. 1313-1316; Buchanan, supra, 143 Cal.App.4th at p. 149.) Two federal appellate courts also have rejected Tighes reasoning. (U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030; Jones, supra, 332 F.3d 688.) In Pinedos juvenile court proceeding here, he admitted the petitions allegations that he assaulted the victim with a .357. As part of the admission agreement, the court dismissed allegations that Pinedo had assaulted a second victim with the firearm, had personally used a firearm in the commission of the crimes, and had vandalized the victims car. The juvenile court found that Pinedo had knowingly and intelligently waived his constitutional rights, that he understood the nature of the conduct alleged in the petition and the possible consequences of an admission, that he admitted the crime freely and voluntarily, and that there was a factual basis for the admission. For the reasons discussed at length in Bowden, Smith, and the other cases cited above, we reject Pinedos argument and his reliance on Tighe.^[1]

2. Pinedo is entitled to additional custody credits.

Pinedo contends, and respondent concedes, that the trial court incorrectly calculated his presentence credits. The court awarded him 286 days of actual custody credit. The parties agree he should have received 296 days. (He received no conduct credits, and there is no claim he was entitled to any.) Accordingly, we modify the judgment and direct the trial court to issue an amended abstract.

DISPOSITION

The judgment is modified to reflect actual custody credits of 296 days. In all other respects, the judgment is affirmed. The trial court is directed to issue an amended abstract of judgment reflecting the correct credit award, if it has not already done so.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.^*

We concur:

RUBIN, Acting P. J.

FLIER, J.

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^[1] As noted, the California Supreme Court has granted review in Nguyen, supra, H028798. In that two-to-one decision, a Court of Appeal declined to follow Bowden and other similar cases, instead holding that the use of a juvenile adjudication as a strike violated Apprendi. Until and unless our Supreme Court holds otherwise, Bowden and its companions reflect the overwhelming weight of authority.

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.