ZELON, J. I respectfully dissent.
Six years ago, in People v. Smith (2003) 110 Cal.App.4th 1072 [1 Cal.Rptr.3d 901] (Smith), this division addressed the difficult issue that arises again today. At that time, prior to critical decisions delineating the constitutional constraints on factual determinations in sentencing, Justice Johnson, concurring and dissenting, provided a thoughtful historical analysis of the evolution of juvenile proceedings. I will not attempt to add to that scholar[442]ship, but do note that subsequent decisions have given greater urgency to the concerns he expressed. The issue before this court is also pending before the California Supreme Court (People v. Nguyen (2007) 152 Cal.App.4th 1205 [62 Cal.Rptr.3d 255], review granted Oct. 10, 2007, S154847). Nonetheless, I think that current case law requires us to reexamine our decision in Smith, and to come to the opposite conclusion.
The Smith decision discussed Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] and United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, each of which addressed the ability of the court to find facts relating to sentencing. After Smith however, a series of decisions has expanded the discussion of these issues, and clarified the scope of the Sixth Amendment right at issue. In Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531], the United States Supreme Court held that the Sixth Amendment jury trial guarantee requires that facts used to enhance a sentence, other than the fact of a prior conviction, must be found by the jury or admitted by defendant. As applied to California’s sentencing scheme, the court later found that “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v. California (2007) 549 U.S. 270, 281 [166 L.Ed.2d 856, 127 S.Ct. 856, 863-864] (Cunningham).) In People v. Black (2007) 41 Cal.4th 799 [62 Cal.Rptr.3d 569, 161 P.3d 1130] our Supreme Court then reexamined the scope of the permissible use of prior convictions in light of Cunningham and the cases that preceded it, and concluded that the exception for recidivism extends to issues beyond the fact of the prior conviction itself.
The common thread in each of these decisions is the fundamental fact that prior convictions “result from proceedings that include substantial protections.” (People v. McGee (2006) 38 Cal.4th 682, 698 [42 Cal.Rptr.3d 899, 133 P.3d 1054].) One of the cornerstones of those protections is the right to trial by jury. (Jones v. United States (1999) 526 U.S. 227, 249 [143 L.Ed.2d 311, 119 S.Ct. 1215] [“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”].)
In the most recent decision in this arena, our Supreme Court has reviewed the extent to which facts relating to a prior conviction, other than the mere fact of the conviction itself, may be used to enhance a sentence consistent [443]with the recidivism exception. (People v. Towne (2008) 44 Cal.4th 63 [78 Cal.Rptr.3d 530] (Towne).) The court recognized that while some acts related to a prior conviction lend themselves to consideration by a sentencing court without jury factfinding, some do not. The critical determinant is whether the “facts” were established in a proceeding in which there was a right to a jury trial. Thus, for example, a conclusion that the defendant’s performance while on parole had been unsatisfactory could be based on convictions for new offenses during the period of supervision; in such a case, court records would demonstrate the existence of the proceedings in which the defendant was afforded jury trial rights as they would in the case of any prior conviction. However, a heightened sentence could not be based on poor performance on parole if that performance consisted of events that had never been the subject of adjudication in a criminal trial. In such a case, the necessary safeguards, including the right to a jury trial, would not be present. In those circumstances, the court held, the defendant must be afforded the right to have the jury find the facts before the matter can be used to make the defendant eligible for an enhanced sentence. (Id. at pp. 81-82.)
Towne affirms the principle that a defendant has a fundamental right to have a jury determine the facts related to a prior conviction. If that determination was not made at the time of the poor performance, it must be made at the time that performance is used in sentencing for a new offense. In either event, it must be made.
The Supreme Court has thus placed another signpost on the trail of rights, clarifying yet again that it is the fundamental protections mandated in a criminal trial that permit a prior conviction to be considered in sentencing without further findings by the jury. The polestar of those protections is the right to trial by jury. (Towne, supra, 44 Cal.4th at pp. 91-92 (conc. opn. of Kennard, J.).) It is that right that is denied to juveniles; it is that denial that infects the sentence in this case.
We need not reach the larger question addressed by the separate opinion in Smith to resolve this case. We need only reach the more limited, but no less important, question of the consequences of the absence of the right to jury trials in juvenile proceedings. As the majority in Smith aptly noted, “Absent [444]constitutional constraints, however, ‘when the Legislature has established policy, it is not for the courts to differ.’ [Citations.]” (Smith, supra, 110 Cal.App.4th at p. 1081.) I believe the meaning of those constitutional constraints has now been made clear: the consequence of the lack of a right to trial by jury is that a prior juvenile adjudication may not be used to increase a sentence for an adult crime. I would affirm the conviction, vacate the sentence, and remand for resentencing.