Opinion
BAMATTRE-MANOUKIAN, J. Defendant Tracey Donnell Lee appeals after pleading guilty to two counts of possession of a firearm by a juvenile offender (Pen. Code, § 12021, subd. (e)),1 two counts of possession of a concealed firearm (§ 12025, subd. (a)(2)), two counts of unlawful possession of ammunition (§ 12316, subd. (b)), and three counts of carrying a loaded firearm (§ 12031, subd. (a)). Defendant admitted one “strike” allegation, based on a prior juvenile adjudication. He was sentenced to a prison term of eight years eight months.
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.
[1312]I. BACKGROUND
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 (§ 12021, subd. (e)), two counts of possession of a concealed firearm (§ 12025, subd. (a)(2)), two counts of unlawful possession of ammunition (§ 12316, subd. (b)), and three counts of carrying a loaded firearm (§ 12031, subd. (a)). As part of the plea bargain, defendant admitted one of the “strike” allegations: that, as a juvenile, defendant was declared a ward of the court after the juvenile court found that he committed forcible rape (§ 261, subd. (b)).
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 section 1385 and People v. Superior Court (Romero) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628]. The trial court denied defendant’s motion to dismiss the “strike” allegation and sentenced him to the eight year eight month maximum prison term provided in the plea bargain. Defendant’s sentence consisted of a doubled three-year term for one count of carrying a loaded firearm (§ 12031, subd. (a)) and consecutive doubled eight-month terms for the other two counts of carrying a loaded firearm. The trial court stayed the terms for the remaining offenses pursuant to section 654.
n. 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 [1313]prior juvenile proceeding. He claims he did not waive this claim by admitting the “strike” allegation because he raised the issue in his motion to dismiss. He argues that if his admission is construed as a waiver, he received ineffective assistance of counsel. We believe that defendant’s motion to dismiss preserved the issue for appeal.
Section 667, subdivision (d) defines what constitutes a prior felony conviction for purposes of the “Three Strikes” law. That subdivision states in pertinent part: “(3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if: [¶] (A) The juvenile was 16 years of age or older at the time he or she committed the prior offense, [¶] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a felony, [¶] (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. [¶] (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.” (See also § 1170.12, subd. (b)(3).)
Defendant does not dispute that his prior juvenile adjudication meets each element of section 667, subdivision (d)(3). Rather, he contests the constitutionality of this provision of the three strikes law, claiming that his juvenile adjudication cannot be used as a “strike” because he did not have the right to a jury trial during the juvenile proceeding.
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 [1314]imprisonment if the trial judge finds, by a preponderance of the evidence, that ‘[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’ [Citation.]” (Id. at pp. 468-469.) The court concluded the statute was unconstitutional, holding 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.) In reaching its holding, the court explained that prior convictions were exempt from the rule because of the “procedural safeguards attached to any ‘fact’ of prior conviction.” (Id. at p. 488.)
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 18 U.S.C. § 924(e), a federal sentencing statute for repeat offenders which did not provide for the right to have a jury find the prior conviction beyond a reasonable doubt. In Tighe, a two-to-one decision, the majority stated that “[a]t first blush, it may appear that [a] juvenile adjudication, which Congress has characterized as a ‘prior conviction’ for the purposes of [the federal statute], falls precisely within Apprendi’s exception for ‘the fact of a prior conviction’ .... Such an analysis, however, ignores the significant constitutional differences between adult convictions and juvenile adjudications.” (Tighe, supra, 266 F.3d at pp. 1192-1193.) The Tighe majority noted that in Jones v. United States (1999) 526 U.S. 227, 249 [143 L.Ed.2d 311, 119 S.Ct. 1215], the Supreme Court had stated: “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.” The Tighe majority referred to Jones as stating a “fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions” and likewise read the Apprendi opinion as “identifying] the right to a jury trial as one of the requisite procedural safeguards” necessary for a prior conviction to be exempt from its rule. (Tighe, supra, 266 F.3d at pp. 1193, 1194.) Tighe therefore held 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.” (Ibid., fn. omitted.)
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 [1315]under the federal sentencing statute. Unlike the Tighe court, the Smalley court did not read Apprendi as holding that the right to a jury trial was one of the essential “procedural safeguards” permitting prior convictions to be exempt from its rule requiring a jury finding beyond a reasonable doubt on facts increasing the punishment for crimes. (Apprendi, supra, 530 U.S. at p. 488.) The Smalley court explained; “We think that while the Court established what constitutes sufficient procedural safeguards (a right to jury trial and proof beyond a reasonable doubt), and what does not (judge-made findings under a lesser standard of proof), the Court did not take a position on possibilities that lie in between these two poles.” (Smalley, supra, 294 F.3d at p. 1032.) The Smalley court ultimately concluded that “juvenile adjudications, like adult convictions, are so reliable that due process of law is not offended by such an exemption.” (Ibid.) The court reasoned: “For starters, juvenile defendants have the right to notice, the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. [Citation.] A judge in a juvenile proceeding, moreover, must find guilt beyond a reasonable doubt before he or she can convict. [Citation.] We think that these safeguards are more than sufficient to ensure the reliability that Apprendi requires.” (Ibid.)
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].)
[1316]The Bowden court went further and, like the Smalley and Jones courts, disagreed with the reasoning of the Tighe majority. The Bowden court instead agreed with the Tighe dissent that Jones v. United States, supra, 526 U.S. 227 “does not support” the majority’s “broad conclusion.” (Bowden, supra, 102 Cal.App.4th at p. 393.) The Bowden court quoted from the dissenting justice in Tighe: “ ‘In my view, the language in Jones stands for the basic proposition that Congress has the constitutional power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant presumably received all the process that was due when he was convicted of the predicate crime. For adults, this would indeed include the right to a jury trial. For juveniles, it does not. Extending Jones' logic to juvenile adjudications, when 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.’ [Citation.]” (Id. at pp. 393-394, quoting Tighe, supra, 266 F.3d at p. 1200 (dis. opn. of Brunetti, J.).)
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.”
m. DISPOSITION
The judgment is affirmed.
Premo, J., concurred.
Unspecified section references are to the Penal Code.
We granted defendant’s request for judicial notice of his prior appeal, case No. H020589.