IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 15, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOHN ISREAL GRAYSON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 06F02653)
The opinion of the court was delivered by: Cantil-sakauye,j.
P. v. Grayson CA3
Opinion following rehearing
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant John Isreal Grayson guilty of six counts of
unlawfully and feloniously obtaining and using personal identifying
information of another person (Pen. Code, § 530.5, subd. (a)).*fn1
In a bifurcated trial, the court found defendant served
a prior prison term (§ 667.5, subd. (b)) and suffered a prior juvenile
adjudication in 1986 which constituted a strike within the meaning of
section 667, subdivisions (b) through (i). The court sentenced
defendant to five years in state prison.
On appeal, defendant claims the trial court erred in finding his prior juvenile adjudication constituted a strike, and that the court was prohibited from using the juvenile adjudication to enhance his sentence under the federal due process clause and the right to a jury trial granted by the Sixth Amendment to the United States Constitution. Defendant also contends newly amended Penal Code section 4019 applies retroactively to his sentence and that his prior conviction does not deprive him of the benefit of that statute. We disagree and will affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A detailed recitation of the underlying facts is unnecessary for the disposition of this appeal. The relevant facts are summarized as follows.
After purchasing a car from a dealership, Mark McCalmont was informed that his personal information may have been taken.
Thereafter, for an approximate two-week period, defendant used McCalmont's personal information to open credit card accounts with, and purchase items from, various merchants without McCalmont's knowledge or consent.
Defendant was charged by amended information with six counts of unlawfully and feloniously obtaining and using McCalmont's personal information. The amended information alleged that defendant served a prior prison term in November 2002. It also alleged that defendant suffered a prior juvenile adjudication for voluntary manslaughter with the personal use of a firearm in November 1986, that he was over 16 years of age at the time that offense was committed, and he was adjudicated a ward of the court and committed to the California Youth Authority as a result of that adjudication. The prior juvenile adjudication was alleged as a strike within the meaning of section 667, subdivisions (b) through (i).
The jury found defendant guilty on all six counts.
Defendant waived his right to a jury trial on the prior conviction allegations, both of which the court found to be true. After conducting a hearing, the court concluded the prior juvenile adjudication constituted a strike.
At sentencing, the court imposed the low term of 16 months for count one, doubled pursuant to the strike, plus one year for the prior prison term. Striking the prior strike conviction for purposes of sentencing on the remaining counts, the court imposed consecutive eight-month terms (one-third the middle term) on counts two and four, two years (the middle term) each on counts three and six, both stayed pursuant to section 654, and a concurrent two-year term (the middle term) on count five, for an aggregate sentence of five years in state prison. The court awarded defendant 35 days of custody credit, plus 16 days of conduct credit, for a total of 51 days of presentence custody credit.
Defendant filed a timely notice of appeal.
Section 667, subdivision (d)(3), provides that a prior juvenile
adjudication constitutes a serious 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)*fn2
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." (§ 667, subd.
Defendant contends his 1986 juvenile adjudication for voluntary manslaughter with use of a firearm was not among the crimes listed in Welfare and Institutions Code section 707, subdivision (b), at the time that offense was committed. Hence, it cannot constitute a strike under section 667, subdivision (d)(3). Defendant is wrong.
On March 7, 2000, the voters adopted Proposition 21, titled the "Gang Violence and Juvenile Crime Prevention Act of 1998." That law became effective on March 8, 2000. (People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 824 (Andrades).) "Proposition 21 effected numerous changes in laws relating to criminal street gangs and the procedures relating to juvenile offenders. Proposition 21 also enacted changes to the list of 'violent' felonies in section 667.5, subdivision (c), the list of 'serious' felonies in section 1192.7, subdivision (c), and the list of offenses in Welfare and Institutions Code section 707, subdivision (b)." (Ibid.)
As relevant here, Proposition 21 amended Welfare and Institutions Code section 707, subdivision (b) to include the crime of "voluntary manslaughter."
Proposition 21 added section 667.1, which provides: "Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by the act . . . ."
Proposition 21 also added section 1170.125:
"Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994, General Election, for all offenses committed on or after the effective date of this act, all references to existing statutes in Section 1170.12 are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by the act . . . ."
In other words, "sections 667.1 and 1170.125 require that, if the current offense was committed on or after March 8, 2000, a determination whether a prior conviction alleged as a serious felony is a prior strike must be based on whether the prior offense resulting in that conviction was a serious felony within the meaning of the three strikes law on March 8, 2000." (People v. James (2001) 91 Cal.App.4th 1147, 1151; see also Andrades, supra, 113 Cal.App.4th at pp. 829-830.)
Here, defendant committed his current offenses in February 2006, placing him well within the purview of Proposition 21. His prior offense, voluntary manslaughter, was not only on the list of crimes set forth in Welfare and Institutions Code section 707, subdivision (b), as of Proposition 21's effective date of March 8, 2000, it was also on the list of "serious felonies" under section 1192.7, subdivision (c), and on the list of "violent felonies" under section 667.5, subdivision (c)(1). Thus, a finding that the prior juvenile adjudication was a strike under section 667, subdivision (d)(3)(B) was proper.
With regard to section 667, subdivision (d)(3)(D), which requires that the juvenile has been adjudged a ward of the juvenile court because he "committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code," defendant argues the court in In re Jensen (2001) 92 Cal.App.4th 262 (Jensen), properly construed paragraph (D) to "require the prior felony conviction that is alleged to be a strike, and that was added to the three strikes law by Proposition 21, to occur after the effective date of Proposition 21." We disagree. In Jensen, the defendant's current offense and his prior conviction both occurred prior to the enactment of Proposition 21. "The question whether the prior juvenile adjudication qualified as a strike was properly determined by reference to the list of offenses included in Welfare and Institutions Code section 707, subdivision (b) before the passage of Proposition 21 because the current offense was committed before the passage of Proposition 21." (Andrades, supra, 113 Cal.App.4th at p. 829.) As such, "the Jensen court was not required to consider the effect of Proposition 21's enactment of section 667.1 on [section 667, subdivision (d)(3),] paragraph (D)." (Ibid.) The trial court's finding was also proper under section 667, subdivision (d)(3)(D).
Alternatively, defendant claims that, pursuant to the federal due process clause and the right to a finding by a jury of guilty beyond a reasonable doubt under the Sixth and Fourteenth Amendments to the United States Constitution, it is not constitutionally permissible to enhance defendant's sentence with his prior juvenile adjudication under the Three Strikes law because a juvenile has no right to a jury trial during juvenile proceedings.
Defendant acknowledges that our state's highest court recently resolved this issue in People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen), but argues Nguyen was wrongly decided. However, he concedes, as he must, that we are bound to follow the decisions of the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). We reject his claim on that basis.
The trial court did not err in finding defendant's prior juvenile adjudication constituted a strike.*fn3
Defendant contends he is entitled to retroactive application of newly amended section 4019 despite his prior juvenile adjudication for voluntary manslaughter with personal use of a firearm. As we shall explain, defendant's commitment for his prior juvenile adjudication precludes him from the additional accrual of credit under section 4019, thus we do not reach his claim of retroactivity.
Section 4019, subdivision (b)(2)provides: "If the prisoner is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5, subject to the provisions of subdivision (d), for each six-day period in which the prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp." (Italics added.)
Defendant argues section 4019 makes no mention of juvenile adjudications, and relies on Welfare and Institutions Code section 203 which provides that a juvenile adjudication does not amount to either a conviction or a criminal proceeding. Defendant also urges that Welfare and Institutions Code section 707, subdivision (c), provides a list of "offenses for which a juvenile may be tried as an adult and suffer a criminal conviction." Finally, he argues that the fact that his juvenile adjudication was used to double the base term of his sentence as a strike should not exempt him from obtaining additional custody credits under amended section 4019. Relying on Nguyen, respondent asserts, among other things, that since a juvenile adjudication can be used as a "strike conviction" to enhance a defendant's sentence it should also be used to preclude additional credit under the newly amended statute. And, because defendant has suffered a "strike conviction" he is one of those offenders who for safety reasons should not benefit from the amendment. (SLB 3) We agree with respondent.
We have already decided, in part I of this opinion, that defendant's prior juvenile adjudication for voluntary manslaughter with personal use of a firearm constitutes a prior felony conviction for purposes of sentence enhancement.
On the basis of that analysis, we see no principled reason to award defendant additional custody credits under the statute. Under these circumstances, we conclude the Legislature could not have intended an award of additional credits under the statute, particularly "where the juvenile proceeding included all the constitutional protections applicable to such matters." (People v. Nguyen (2009) 46 Cal.4th 1007, 1019.) Amended section 4019 denies additional credit to a defendant who "has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in section 667.5." (§§ 1192.7, subd. (c0(1), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].) Defendant's prior juvenile adjudication is a prior conviction for a serious felony, thus placing him in the category of persons for whom public safety concerns outweigh any fiscal benefit intended from the statute's early release of prisoners. For these reasons, defendant is not entitled to additional custody credit under section 4019.
The judgment is affirmed.
We concur: BLEASE, Acting P.J. ROBIE ,J.