P. v. Veloz
Filed 1/28/09 P. v. Veloz CA4/1
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. JOSE DEJESUS VELOZ II, Defendant and Appellant. | D052189 (Super. Ct. No. SCD207761) |
APPEAL from a judgment of the Superior Court of San Diego County, John S. Einhorn, Judge. Affirmed.
A jury convicted Jose DeJesus Veloz II of robbery (Pen. Code, 211) and assault with a deadly weapon (id., 245, subd. (a)(1)). In separate proceedings the trial court found Veloz's prior juvenile adjudication for assault with a deadly weapon with the personal use of a weapon (id., 245, subd. (a), 1192.7, subd. (c)(23)) qualified as a prior strike conviction (id., 667, subd. (d)(3)). The trial court sentenced Veloz to four years in prison, consisting of the lower term of two years for the robbery conviction doubled for the strike prior. The trial court stayed imposition of the sentence for the assault with a deadly weapon conviction under Penal Code section 654.
Veloz appeals, arguing solely that the trial court's use of his juvenile adjudication as a prior strike conviction violated his federal constitutional right to a jury trial.[1] The California Supreme Court has granted review on this issue. (See People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847.) Until the Supreme Court provides further guidance, we agree with those courts that have concluded a prior juvenile adjudication may constitutionally be used as prior strike conviction notwithstanding the lack of a right to a jury trial in juvenile proceedings. (See, e.g., People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-831; People v. Lee (2003) 111 Cal.App.4th 1310, 1314-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1079; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394; People v. Fowler (1999) 72 Cal. App.4th 581, 585.)
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
I CONCUR:
McINTYRE, J.
Aaron, J., dissenting:
In Cunningham v. California (2007) 549 U.S. 270, the Supreme Court held that California's determinate sentencing law (the DSL), which allowed a judge to impose a sentence above the statutory maximum based on a fact that was neither found by a jury nor admitted by the defendant, violated the right to jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, the Cunningham court concluded that in this respect, the DSL ran afoul of the rule set forth in Apprendi v. New Jersey (2000) 530 U.S. 466, 489 (Apprendi) 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."
With respect to the exception for a prior conviction, the Apprendi court noted that this exception, set forth in Almendarez-Torres v. United States(1998) 523 U.S. 224 (Almendarez-Torres), "represent[ed] at best an exceptional departure from the historic practice" that required a jury to determine "'the truth of every accusation'" based on proof beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 477, quoting and citing United States v. Gaudin (1995) 515 U.S. 506, 510).) The Apprendi Court further observed that at the time the Constitution was drafted, the common law did not distinguish between an "element" of a felony offense and a "sentencing factor." (Apprendi, 530 U.S. at p. 478.)
Allowing that Almendarez-Torres may have been "incorrectly decided" under the reasoning of Apprendi, the Apprendi court did not overrule the holding in Almendarez-Torres, but stressed that "[b]ecause Almendarez-Torres had admitted the three earlier convictions for aggravated felonies ― all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own ― no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court." (Apprendi 530 U.S. at p. 488.) The Apprendi Court further explained, "Both the certainty that procedural safeguards attached to any 'fact' of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that 'fact' in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a 'fact' increasing punishment beyond the maximum of the statutory range." (Id. at p. 488.)
Apprendi thus makes clear that the Almendarez-Torres exception, which allows a judge to use the fact of a prior conviction to increase a defendant's sentence, is based on the assumption that the prior conviction was obtained in proceedings in which the defendant was afforded procedural safeguards that include a right to jury trial.
Because Veloz's sentence is based on a prior juvenile adjudication obtained in proceedings in which he was not afforded the procedural safeguards that the Apprendi Court cited as determinative to the continuing viability of Almendarez-Torres, I would conclude that Veloz's sentence is unconstitutional.
AARON, J.
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[1] We do not summarize the underlying facts as they are immaterial to the issue Veloz is raising on appeal.
