People v. Pacheco

Opinion

RUSHING, P. J. Defendant Jose Juan Pacheco, Jr., brings this appeal from a judgment convicting him of assault. He contends that the trial court erred by (1) treating a juvenile court adjudication as a strike prior for purposes of the “Three Strikes” law and (2) determining the sentence credits to which he was entitled. The first claim of error is defeated by binding precedent. The second is conceded by respondent. We will direct a modification in accordance with the concession and affirm the judgment as so modified.

[345]Background

Defendant was charged by amended complaint with first degree robbery in concert (Pen. Code, § 213, subd. (a)(1)(A)) and assault with intent to commit forcible oral copulation (Pen. Code, § 220). It was further alleged that he had sustained a juvenile court adjudication for having committed a violation of Penal Code section 186.22 while he was over the age of 16 years. Pursuant to plea agreement, the court orally amended the complaint to allege the commission of assault with force likely to cause great bodily injury in violation of Penal Code section 245, subdivision (a)(1). Defendant pled guilty to this charge. The plea agreement contemplated that the alleged prior would be tried by the court on the juvenile court record prior to sentencing.1

Defendant moved to strike the prior adjudication both in an exercise of the court’s discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628], and on the ground that reliance on juvenile court adjudications to enhance punishment under the Three Strikes law offended federal constitutional principles concerning the right to jury trial, the nature of permissible juvenile court proceedings, and the use of prior convictions to enhance punishment. (See Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348]; Roper v. Simmons (2005) 543 U.S. 551, 569 [161 L.Ed.2d 1, 125 S.Ct. 1183]; Jones v. United States (1999) 526 U.S. 227, 249 [143 L.Ed.2d 311, 119 S.Ct. 1215].) The trial court denied the motion to strike the prior adjudication, and sentenced defendant under the Three Strikes law to the mitigated term of four years in prison. The court allowed 546 days of presentence confinement credit, consisting of 364 actual days and 182 conduct days. Defendant filed this timely appeal.

Discussion

Defendant concedes that his challenge to the use of the juvenile adjudication runs afoul of paramount authority, namely, People v. Nguyen (2009) 46 Cal.4th 1007 [95 Cal.Rptr.3d 615, 209 P.3d 946], which held that