THE PEOPLE, Plaintiff and Respondent, v. TRACEY DONELL LEE, Defendant and Appellant.
No. H024392
Sixth Dist.
Sept. 11, 2003.
111 Cal.App.4th 1310
Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Dorian Jung, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BAMATTRE-MANOUKIAN, J.—Defendant Tracey Donnell Lee appeals after pleading guilty to two counts of possession of a firearm by a juvenile offender (
On appeal, defendant contends that his prior juvenile adjudication cannot be used as a “strike” because he did not have the right to a jury trial during the prior juvenile proceeding. We reject this claim and affirm the judgment.
The facts underlying defendant‘s offenses are not relevant to the issues raised on appeal. We briefly note that defendant was originally charged with 22 counts, including various weapon possession offenses, criminal threats, assault, discharging a firearm with gross negligence, discharging a firearm at a dwelling, discharging a firearm at an unoccupied vehicle, burglary, possession of methamphetamine, and unlawful sexual intercourse with a minor. After a court trial, he was convicted of 13 counts and found not guilty of nine counts. The trial court found true two “strike” allegations—both of which pertained to prior juvenile adjudications—but dismissed one of those allegations at sentencing. Defendant received a 24-year prison term. He appealed, claiming that the trial court erred in denying his motion to represent himself. (See Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525].) We agreed with this claim and reversed the judgment.2
Upon remand, defendant entered into a plea bargain, pleading guilty to two counts of possession of a firearm by a juvenile offender (
Before sentencing, defendant moved to dismiss the “strike.” He argued that his prior juvenile adjudication could not be considered a “strike” because he did not have the right to a jury trial during the prior juvenile proceeding. He also asked the trial court to dismiss the “strike” pursuant to
II. DISCUSSION
Defendant contends that his prior juvenile adjudication cannot be considered a “strike” because he did not have the right to a jury trial during the
Defendant does not dispute that his prior juvenile adjudication meets each element of
This claim was rejected in People v. Fowler (1999) 72 Cal.App.4th 581 [84 Cal.Rptr.2d 874] (Fowler). The Fowler court explained: “By enacting the three strikes law, the Legislature has not transformed juvenile adjudications into criminal convictions; it simply has said that, under specified circumstances, a prior juvenile adjudication may be used as evidence of past criminal conduct for the purpose of increasing an adult defendant‘s sentence. The three strikes law‘s use of juvenile adjudications affects only the length of the sentence imposed on an adult offender, not the finding of guilt in the adult court nor the adjudication process in the juvenile court. Since a juvenile constitutionally—and reliably [citation]—can be adjudicated a delinquent without being afforded a jury trial, there is no constitutional impediment to using that juvenile adjudication to increase a defendant‘s sentence following a later adult conviction.” (Id. at p. 586, fn. omitted.)
After the Fowler case was decided, the United States Supreme Court decided Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi), which considered the constitutionality of New Jersey‘s “hate crime” law. That law provided for “an ‘extended term’ of
After Apprendi, the Ninth Circuit Court of Appeals decided U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe), a case upon which defendant relies heavily. The Tighe court considered whether the defendant‘s prior juvenile adjudication could constitutionally qualify as a prior conviction under
The reasoning of the Tighe majority was rejected in U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030 (Smalley), which also considered whether a prior juvenile adjudication could constitutionally qualify as a prior conviction
The court in U.S. v. Jones (3d Cir. 2003) 332 F.3d 688 also rejected the reasoning of Tighe. That court stated: “Like the Smalley court, we find nothing in Apprendi or Jones [v. United States, supra, 526 U.S. 227] that requires us to hold that prior nonjury juvenile adjudications that afforded all required due process safeguards cannot be used to enhance a sentence [¶] . . . A prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes.” (U.S. v. Jones, supra, 332 F.3d at p. 696.)
The court in People v. Bowden (2002) 102 Cal.App.4th 387 [125 Cal.Rptr.2d 513] (Bowden) considered an argument basically identical to the one defendant presents. That court distinguished both Apprendi and Tighe: “In both of those cases the fact that increased the defendant‘s sentence above the statutory maximum was not tried or proved by the usual criminal standards in the trial of the current case, but was a factual finding solely by a sentencing judge ostensibly as a sentencing consideration. This is not at all like proof of a strike under California‘s Three Strikes law. . . . Under the Three Strikes law a qualifying prior conviction must, in the current case, be pleaded and proved [citation], beyond a reasonable doubt [citations], and the defendant has a statutory right to a jury trial, at least on the issue whether the defendant suffered the prior conviction [citations]. Because the context is so different, Apprendi and Tighe do not apply here.” (Bowden, supra, 102 Cal.App.4th at pp. 392-393, fn. omitted, original italics; see also People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1077 [1 Cal.Rptr.3d 901].)
We join the Bowden court in distinguishing and disagreeing with the Tighe majority. First, as the Bowden court recognized, California‘s Three Strikes law requires that a prior conviction (including a prior juvenile adjudication) be proved beyond a reasonable doubt, and it provides for the right to a jury trial on the question whether a defendant has suffered a prior conviction. (See also People v. Smith, supra, 110 Cal.App.4th at p. 1079.) The federal law considered in Tighe did not provide such procedural safeguards. In fact, the Tighe majority recognized this distinction, pointing out that “several states’ recidivism statutes treat prior convictions as elements of a crime or provide for a jury determination of the fact of a prior conviction.” (Tighe, supra, 266 F.3d at p. 1192, fn. 3.) Moreover, we agree that the procedural safeguards provided in juvenile adjudications are sufficient to satisfy the concerns of the Supreme Court in Apprendi. A juvenile 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. (See Fowler, supra, 72 Cal.App.4th at p. 585.)
For the reasons stated, we reject defendant‘s claim that his prior juvenile adjudication could not be used as a “strike.”
III. DISPOSITION
The judgment is affirmed.
Premo, J., concurred.
In this state, the right to a jury trial is guaranteed by both the federal and state Constitutions. (
It is noteworthy that “the Constitution does not mandate elimination of all differences in the treatment of juveniles.” (Schall v. Martin (1984) 467 U.S. 253, 263 [81 L.Ed.2d 207, 104 S.Ct. 2403].) Although on a petition to have a minor declared a ward of the juvenile court minors are as entitled as adults to notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination, double jeopardy, and proof beyond a reasonable doubt (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 543 [29 L.Ed.2d 647, 91 S.Ct. 1976] (McKeiver); People v. Fowler (1999) 72 Cal.App.4th 581, 585 [84 Cal.Rptr.2d 874]), for the factfinding function, juveniles are entitled to a trial by a superior court judge. (
The United States Supreme Court has recognized the fairness of such proceedings. It stated: “We would not assert, however, that every criminal trial—or any particular trial—held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.” (Duncan v. Louisiana (1968) 391 U.S. 145, 158 [20 L.Ed.2d 491, 88 S.Ct. 1444].) “[A] juvenile constitutionally—and reliably [citation]—can be adjudicated a delinquent without being afforded a jury trial. . . .” (People v. Fowler, supra, 72 Cal.App.4th at p. 586, citing McKeiver, supra, 403 U.S. at p. 547.) The California Constitution recognizes the reliability of juryless trials by providing, in the same section that guarantees the right to a jury trial, the right to waive a jury trial. “Trial by jury is an inviolate right and shall be secured to all, . . . A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the
RUSHING, P. J.—I respectfully dissent. Because the defendant did not have the right to a trial by jury in the juvenile court proceeding, I would find that the use of defendant‘s prior juvenile adjudication to increase defendant‘s sentence under the “Three Strikes” law violates the United States Supreme Court decision in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348].
An examination of Apprendi v. New Jersey, supra, 530 U.S. 466, and related Supreme Court decisions supports this result. In Apprendi, the United States Supreme Court held 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.” (Id. at p. 490.) The “narrow” prior conviction exception stems from the view that “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.” (Id. at pp. 490, 496.)
In reaching its result, Apprendi distinguished Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350, 118 S.Ct. 1219], where the United States Supreme Court upheld a federal law allowing a judge to enhance a defendant‘s sentence based upon prior convictions not alleged in the indictment. The Almendarez-Torres defendant “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 v. New Jersey, supra, 530 U.S. at p. 488.) Recognizing this difference, the United States Supreme Court in Apprendi 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
These procedural safeguard concerns were also raised in Jones v. United States (1999) 526 U.S. 227 [143 L.Ed.2d 311, 119 S.Ct. 1215], where the Supreme Court emphasized that the fact of a prior conviction was constitutionally distinct from other sentence enhancing facts, so that it was permissible to use prior convictions to increase the penalty for an offense without treating them as an element of the current offense: “One basis for that possible constitutional distinctiveness [of prior convictions] is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense, a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” (Id. at p. 249.)
Drawing on the Apprendi, Almendarez-Torres and Jones decisions, the Ninth Circuit Court of Appeals in U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 recently held that a defendant‘s prior conviction can be used to enhance a defendant‘s sentence only if the defendant had a right to a jury trial in the proceeding where he was found guilty of the earlier offense. According to Tighe, prior juvenile adjudications may not be used to enhance a defendant‘s sentence because the juvenile proceedings did not afford the defendant the right to a jury trial. (Id. at pp. 1193-1195.) For these reasons, the court reversed the defendant‘s sentence under the Armed Career Criminal Act, which mandated a minimum 15-year sentence for a defendant with three prior violent or serious drug convictions and who is later found guilty of possessing a firearm. The Ninth Circuit reversed because one of the defendant‘s three priors was a juvenile adjudication in which the defendant had no right to a jury trial. (Id. at pp. 1194-1195.)
Tighe observed that “the ‘prior conviction’ exception to Apprendi‘s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendi‘s ‘prior conviction’ exception.” (U.S. v. Tighe, supra, 266 F.3d at p. 1194, fn. omitted, italics added.)
I agree with the reasoning in Tighe and therefore conclude that defendant‘s prior juvenile adjudication cannot be used to increase his sentence under the Three Strikes law because defendant did not have the right to a jury trial in the juvenile proceeding.
In holding to the contrary, the majority emphasizes that California‘s Three Strikes law requires that a prior conviction, including a prior juvenile
Recently, the Harvard Law Review analyzed Tighe and the Eight Circuit‘s decision in U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, in which the court of appeals approved the use of a defendant‘s prior juvenile adjudications as “prior convictions” under the Armed Career Criminal Act of 1994. The author concluded, “Whereas Tighe quotes Jones and Apprendi at length and uses categorical language that echoes their themes, Smalley cites these precedents in large part to distinguish their discussion of the jury trial right from its own conclusions. Compared with the approach of Smalley, therefore, Tighe‘s understanding of the jury trial right is more consistent with the implications of the Supreme Court‘s recent jury trial jurisprudence.” (Note, Constitutional Law—Right to Jury Trial—Eighth Circuit Holds an Adjudication of Juvenile Delinquency To Be a “Prior Conviction” for the Purpose of Sentence Enhancement at a Subsequent Criminal Proceeding (2002) 116 Harv. L.Rev. 705, 708, fns. omitted.)
The critical differences between juvenile and criminal court proceedings support the view that a prior juvenile adjudication should not be used to increase a defendant‘s sentence beyond the statutory maximum. Over 30 years ago, the United States Supreme Court interpreted the United States Constitution to allow states to deny juveniles the right to a jury trial in juvenile proceedings. (McKeiver v. Pennsylvania (1971) 403 U.S. 528 [29 L.Ed.2d 647, 91 S.Ct. 1976].) However, the McKeiver decision was based upon certain beliefs about the juvenile justice system—beliefs that hold less sway today given the current realities of the juvenile justice system. (Note,
For example, Justice White‘s concurring opinion in McKeiver emphasizes that “reprehensible acts by juveniles are not deemed the consequence of mature and malevolent choice but of environmental pressures (or lack of them) or of other forces beyond their control. Hence the legislative judgment not to stigmatize the juvenile delinquent by branding him a criminal; his conduct is not deemed so blameworthy that punishment is required to deter him or others. Coercive measures, where employed, are considered neither retribution nor punishment. Supervision or confinement is aimed at rehabilitation, not at convincing the juvenile of his error simply by imposing pains and penalties. . . . Against this background and in light of the distinctive purpose of requiring juries in criminal cases, I am satisfied with the Court‘s holding.” (McKeiver v. Pennsylvania, supra, 403 U.S. at pp. 551–552 (conc. opn. of White, J.).) As the author of the Harvard note stated, “Whether or not there was a great practical distinction—beyond the procedural protections issue—between the criminal and juvenile justice system of 1971, the systems have since converged to the point that McKeiver‘s idealistic conception of the juvenile justice system is hard to sustain.” (Note, Constitutional Law—Right to Jury Trial—Eighth Circuit Holds an Adjudication of Juvenile Delinquency To Be a “Prior Conviction” for the Purpose of Sentence Enhancement at a Subsequent Criminal Proceeding, supra, 116 Harv. L.Rev. at p. 711.) Moreover, McKeiver‘s belief about the preference for judicial fact finding in juvenile adjudications seems at odds with the United States Supreme Court‘s recent statement that “The Sixth Amendment jury trial right, however, does not turn on the relative rationality, fairness, or efficiency of potential factfinders.” (Ring v. Arizona (2002) 536 U.S. 584, 607 [153 L.Ed.2d 556, 122 S.Ct. 2428].)
When McKeiver‘s dated and idealistic view of the juvenile justice system is balanced against United States Supreme Court‘s recent cases emphasizing the importance of the right to a jury trial in circumstances where a fact increases the penalty for a crime beyond the statutory maximum, I believe the correct conclusion is that a juvenile adjudication, occurring as it does without the right to trial by jury, cannot be used to increase a defendant‘s sentence under California‘s Three Strikes law.
Finally, I am not persuaded by the majority‘s view that Apprendi is satisfied by other procedural safeguards provided in juvenile adjudications. Nothing in Apprendi suggests that the denial of the right to a jury determination can be offset by the existence of other procedural protections.
For these reasons, I would hold that defendant‘s prior juvenile adjudication cannot be used to increase his sentence under the Three Strikes law.
Appellant‘s petition for review by the Supreme Court was denied December 10, 2003. Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.