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People v. Nguyen

July 2, 2009


Ct.App. 6 H028798 Santa Clara County Super. Ct. No. CC476520. Judge: Ray E. Cunningham.

The opinion of the court was delivered by: Baxter, J.

California's Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d))*fn1 increases the maximum sentence for an adult felony offense upon proof that the defendant has suffered one or more qualifying ―prior felony convictions‖ - a term that specifically includes certain prior criminal adjudications sustained by the defendant, while a minor, under the juvenile court law. (§§ 667, subd. (d)(3), 1170.12, subd. (b)(3); see Welf. & Inst. Code, § 601 et seq.) Does the United States Constitution allow such use of a prior juvenile adjudication even though there was no right to a jury trial in the juvenile proceeding? Like the majority of recent decisions to address the issue, we conclude the answer is yes.

The question arises in the following context: A series of United States Supreme Court decisions, beginning with Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), establishes an adult criminal defendant's general right, under the Fifth, Sixth, and Fourteenth Amendments, to a jury finding beyond reasonable doubt of any fact used to increase the sentence for a felony conviction beyond the maximum term permitted by conviction of the charged offense alone. (E.g., Oregon v. Ice (2009) 555 U.S. ___, ___ [129 S.Ct. 711, 714] (Ice); Cunningham v. California (2007) 549 U.S. 270, 274-275 (Cunningham); Blakely v. Washington (2004) 542 U.S. 296, 303-305 (Blakely); Apprendi, supra, at p. 490.) Apprendi found this principle inherent in the common law tradition, in effect when the Sixth Amendment was adopted, that any fact crucial to the maximum punishment for an offense was, for that purpose, an ―element‖ of the offense, and thus equally subject to the requirements of indictment or presentment, proof beyond reasonable doubt, and jury trial. (Apprendi, supra, at pp. 476-485.)

Here, in adult felony proceedings, the complaint charged, for purposes of sentence enhancement, that defendant previously had sustained a juvenile adjudication which qualified as a ―prior felony conviction‖ under the Three Strikes Law. By statute, California affords an adult criminal defendant the right to a jury trial on whether he or she ―has suffered‖ an alleged prior conviction. (§§ 1025, subds. (a), (b), 1158.) Defendant waived that jury-trial right in this case. Documentary evidence presented to the court indicated that, in a prior juvenile proceeding, defendant, then 16 years old, had admitted committing an aggravated assault, and an adjudication to that effect had been entered accordingly. On this basis, the sentencing court in this case found the prior conviction allegation true. Applying the ―second strike‖ provision of the Three Strikes Law, the court doubled defendant's sentence for the current offense.

Nonetheless, defendant claims the Apprendi rule barred use of the prior juvenile adjudication to enhance his maximum sentence in the current case because the prior juvenile proceeding, though it included most constitutional guarantees attendant upon adult criminal proceedings, did not afford him the right to a jury trial. (McKeiver v. Pennsylvania (1971) 403 U.S. 528 (McKeiver); People v. Lara (1967) 67 Cal.2d 365, 398; In re Daedler (1924) 194 Cal. 320; see Welf. & Inst. Code, § 702.) He bases this claim on language employed by the United States Supreme Court to justify an exception to the Apprendi rule - i.e., that ―the fact of a prior conviction,‖ used to enhance the maximum sentence for a later offense, need not be proved to a jury beyond reasonable doubt, but may simply be found by the sentencing court. (Apprendi, supra, 530 U.S. 466, 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247 (AlmendarezTorres); see Jones v. United States (1999) 526 U.S. 227, 248-249 (Jones).)

The high court has given several reasons for treating ―the fact of a prior conviction‖ differently from other sentencing facts that may increase the maximum punishment for an offense. The court has noted that ―recidivism‖ is a highly traditional basis for a court to increase a current offender's sentence, and that, unlike a typical ―element,‖ this factor relates not to the circumstances of the current offense, but only to punishment. Finally, in remarks upon which defendant primarily relies, the court has stressed that prior convictions have been obtained in proceedings which themselves included substantial procedural protections, including proof beyond reasonable doubt and the right to a jury trial. (Apprendi, supra, 530 U.S. 466, 488, 496; Jones, supra, 526 U.S. 227, 249; see Almendarez-Torres, supra, 523 U.S. 224, 243-244.)

On this basis, the Court of Appeal agreed with defendant that, under Apprendi, the absence of a jury-trial right in juvenile proceedings bars the use of prior juvenile adjudications to increase the maximum sentence for a subsequent adult felony offense. In essence, the Court of Appeal found Apprendi requires a jury-trial right at some point in the determination of any fact that may increase the maximum sentence for an adult felony conviction.

But the People urge that, because juvenile law adjudications of criminal conduct are subject to virtually all constitutional protections that apply to adult criminal trials - particularly including the standard of proof beyond a reasonable doubt - they fairly and reliably demonstrate the defendant's ―recidivism.‖ Thus, the People argue, if a prior juvenile proceeding included all the rights and guarantees constitutionally applicable therein, the resulting adjudication satisfies Apprendi's justifications for the ―prior conviction‖ exception, and is properly included within that exception, even though it did not include the right to a jury trial. Even if the ―prior conviction‖ exception does not apply, the People assert, California complies with the basic holding of Apprendi by affording the right to a jury trial in the current case as to the sentencing ―fact‖ therein at issue - i.e., the existence of the prior juvenile adjudication.

We generally agree with the People. As noted, Apprendi requires, at most, the right to a jury trial in the current criminal proceeding with respect to any sentencing fact that may increase the maximum punishment for the underlying conviction. California statutory law afforded defendant the right to have a jury determine the existence of the sentencing fact here at issue - whether hesuffered a ―prior felony conviction‖ as defined by the Three Strikes Law - but he waived that right.

In any event, we find nothing in the Apprendi line of cases, or in other Supreme Court jurisprudence, that interferes, under the circumstances here presented, with what the high court deemed a sentencing court's traditional authority to impose increased punishment on the basis of the defendant's recidivism. That authority may properly be exercised, we conclude, when the recidivism is evidenced, as here, by a constitutionally valid prior adjudication of criminal conduct. As we explain below, the high court has expressly so held in analogous circumstances. (See Nichols v. United States (1994) 511 U.S. 738 (Nichols).) We will therefore reverse the judgment of the Court of Appeal.


An amended complaint, filed in December 2004, charged defendant Vince Vinhtuong Nguyen*fn2 with four felony counts: possession of a firearm by an ex-felon (§ 12022.1, subd. (a)(1)), possession of ammunition by an ex-felon (§ 12316, subd. (b)(1)), possession of a billy (§ 12020, subd. (a)(1)),*fn3 and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The amended complaint also charged two misdemeanors, being under the influence of a controlled substance (id., § 11550, subd. (a)) and possession of drug paraphernalia (id., § 11364, subd. (a)). Finally, for sentencing purposes the amended complaint alleged, under the Three Strikes Law, that defendant had suffered, as a qualifying ―prior felony conviction‖ (§§ 667, subd. (d)(3), 1170.12, subd. (b)(3)), a 1999 juvenile adjudication for assault with a deadly weapon (§ 245, subd. (a)(1)), committed when he was 16 years of age or older.

In March 2005, pursuant to a negotiated disposition, defendant pled no contest to one felony, firearm possession by an ex-felon, and to a misdemeanor, possession of a billy. The charges of possession of methamphetamine and drug paraphernalia, ex-felon ammunition possession, and being under the influence of a controlled substance were dismissed.

Defendant waived his statutory right to a jury trial on the issue whether he ―[had] suffered‖ the prior strike (§§ 1025, subds. (a)-(b), 1158), i.e., the 1999 juvenile adjudication. This question was tried to the court on the basis of documentary evidence, and the court found the strike allegation true. The court file in the 1999 juvenile matter indicates, among other things, that defendant there admitted to a violation of section 245, subdivision (a)(1).*fn4

Defendant objected that because he had no right to a jury in the juvenile proceeding, use of his juvenile adjudication as a strike in the current case was a violation of his Sixth Amendment rights.*fn5 The court rejected this argument and sentenced defendant to the lower term of 16 months for the firearm possession conviction (Pen. Code, § 18), doubled to 32 months because of the prior strike (id., §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).*fn6

Defendant appealed, raising only the Sixth Amendment sentencing issue. In its first opinion, the Court of Appeal held that, because of the lack of a jury-trial right in juvenile cases, the Sixth Amendment forbids use of a contested juvenile adjudication as a prior conviction to enhance the sentence for a subsequent adult offense. However, the court originally held that because defendant had admitted, in the juvenile case, that he committed the criminal conduct there at issue, his current sentence was not affected by the earlier deprivation of a right to jury trial, and he therefore was not entitled to relief.

The Court of Appeal granted rehearing to reconsider this latter holding. On rehearing, the court reversed the trial court. This time, the majority held that, because minors tried for criminal offenses as juveniles are denied the right to jury trials, the use of any juvenile adjudications as prior convictions to enhance subsequent adult sentences is prohibited by the Sixth Amendment.

We granted review.


Defendant argues, and the Court of Appeal agreed, that because he had no right to a jury trial in the prior juvenile proceeding, the Fifth, Sixth, and Fourteenth Amendments, as construed in Apprendi, bar use of the resulting criminal adjudication to enhance his maximum sentence in this adult proceeding. For several reasons, we reject the contention.

As indicated above, the high court determined in 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.‖ (Apprendi, supra, 530 U.S. 466, 490.) Thus, under Apprendi, any ―fact‖ that allows enhancement of an adult defendant's maximum sentence for the current offense must, unless the defendant waives his jury-trial right, be determined by a jury in the current case.

Defendant's claim, of course, does not come within this express holding. The statutorily relevant sentencing ―fact‖ in this case is whether defendant's record includes a prior adjudication of criminal conduct that qualifies, under the Three Strikes Law, as a basis for enhancing his current sentence. Aside from any exception that might apply here, the literal rule of Apprendi thus required only that a jury in the current proceeding determine the existence of such an alleged prior adjudication.

California statutory law afforded defendant precisely this right. Whenever, for purposes of enhancing the sentence on current charges, the prosecution alleges a prior conviction sustained by the defendant, and the defendant disputes the allegation, the question whether he or she ―has suffered‖ the prior conviction must, unless a jury is waived, be submitted to a jury in the current proceeding. (§§ 1025, subds. (a), (b), 1158.) This jury-trial requirement would extend, of course, to a prior juvenile adjudication included within the Three Strikes Law's definition of a ―prior felony conviction.‖ As we have explained, defendant expressly waived his right to a jury trial in the current proceeding on the issue whether he had suffered the alleged prior, and he agreed to submit that issue to the court.*fn8

Nonetheless, defendant contends, as below, that under the principles of Apprendi, and regardless of his jury-trial rights in the current case, the lack of a jury-trial right in the prior juvenile proceeding precludes all use of the resulting adjudication to enhance the maximum sentence for his current offense. To support his view that Apprendi contemplates such a bar by implication, defendant cites language the high court has used to justify the single exception it consistently recognizes to the rule that a jury must find sentencing facts which increase the maximum punishment - the exception for ―the fact of a prior conviction‖ (italics added). (Apprendi, supra, 530 U.S. 466, 490; see also, e.g., Blakely, supra, 542 U.S. 296, 301; United States v. Booker (2005) 543 U.S. 220, 231; Cunningham, supra, 549 U.S. 270, 275; Ice, supra, 555 U.S. ___, ___ [129 S.Ct. 711, 714].) For reasons we now explain, we are not persuaded.

The ―prior conviction‖ exception arises primarily from a pre-Apprendi case, Almendarez-Torres. There, an indictment charged the defendant with the offense of illegal re-entry by a deported alien. The pertinent statute increased the maximum punishment if the prior deportation arose from the alien's conviction of one or more aggravated felonies. The indictment did not allege this latter circumstance. However, at his plea hearing, the defendant admitted it, and the court imposed sentence accordingly. On appeal, the defendant urged, among other things, that the Constitution required treatment of his prior convictions as an element of the current criminal offense, which must be charged in the indictment and proved to a jury beyond a reasonable doubt. The court disagreed, refusing to adopt a blanket rule that recidivism - a ―highly traditional‖ basis upon which courts had imposed increased sentences - must be treated as an element. (Almendarez-Torres, supra, 523 U.S. 224, 243-247.)

In Jones, which also preceded Apprendi, the court addressed a federal statute that punished carjacking in interstate commerce with a maximum sentence of 15 years. However, maximum sentences of 25 years and life imprisonment, respectively, applied if the carjacking resulted in serious bodily injury or death.

The government claimed the statute described only a single offense, subject to mere ―sentencing enhancements‖ that need not be separately charged and could be imposed solely by a judge. The defendant insisted the law established three separate offenses, each with its own requirement of charging notice and jury trial. The court chose the latter construction, primarily to avoid the constitutional problem, soon thereafter confirmed in Apprendi, of allowing an increased sentence, ...

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