Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F02676509-3, Gary S. Austin, Judge.
Terry Richard Kolkey, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez, Tia Coronado and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Hill, J.
On April 3, 2003, a jury convicted appellant, Charles Edward McClough, Jr., of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and felony false imprisonment (Pen. Code, § 236). In a separate proceeding, the court found true a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and allegations that McClough had a prior conviction within the meaning of the three strikes law. (Pen. Code, § 667, subds. (b)-(i).) McClough was ultimately sentenced to an aggregate term of eight years on his assault conviction, one year on his prior prison term enhancement, and a concurrent six-year term on his false imprisonment conviction, stayed pursuant to Penal Code section 654. On appeal, he contends the court erred in using a juvenile conviction to impose the aggravated term. We will affirm.
FACTS
On September 9, 2001, at approximately 3:40 a.m. when McClough’s girlfriend returned home, McClough dragged her out of a car and severely beat her.
On May 1, 2003, the court sentenced McClough to an aggregate nine-year term as described above
On June 28, 2004, this court affirmed the judgment in an unpublished opinion. (People v. McClough (Jun. 28, 2004, F042962 [nonpub. opn.].)
On February 8, 2007, McClough filed a petition for writ of habeas corpus in the Fresno County Superior Court. On June 4, 2007, the court granted McClough’s petition and vacated his sentence.
On July 31, 2007, the court reimposed the nine-year aggregate term it had previously imposed. In so doing the court stated,
“The court, looking at the factors in aggravation, finds they preponderate over those in mitigation. Under California Rules of Court 4.421, the court looks at the defendant’s prior criminal record, that is, the -- look back to the juvenile record, the 245(a)(1) committed in 1985 in which he was sent to the California Youth Authority. Then the court does look at the misdemeanor offenses starting with the willful discharge of a firearm. And, if you look at the 245(a) which was the assault, ADW, there was not a firearm but it was a severe enough assault to warrant a commitment to the California Youth Authority.
“Then here we’re -- in 1993 we have a willful discharge of a firearm. That is a misdemeanor. Then you have the year 2002, 242, 415, and 148. Then again in 2000 in a separate offense you have the 148. I don’t know if they’re one and the same. They could be one and the same offense.
“In other words, that 148 that is listed at the bottom of page 6 may be the same 148 that is above, except that if you look at the sentencing dates, it looks like one occurred on 11 of 2002 and the other 3-15-01.…”
The court relied on the same circumstances to impose a concurrent, aggravated term of three years on McClough’s false imprisonment conviction, which it doubled to six years because of McClough’s prior three strikes law conviction and then stayed pursuant to Penal Code section 654.
DISCUSSION
McClough contends that the court’s sentencing comments indicate it relied primarily on his juvenile adjudication for assault with a deadly weapon to impose the aggravated term on his two convictions. He further contends that since a juvenile is not entitled to a jury trial, the use of his juvenile adjudication to impose the aggravated term violated his Sixth Amendment right to a jury trial. We disagree.
In People v. Fowler (1999) 72 Cal.App.4th 581, 587, we concluded that a qualifying prior juvenile adjudication “demonstrates beyond a reasonable doubt [citation] that a defendant has engaged in serious criminal behavior in the past. By reoffending, a defendant shows he has failed to draw the proper lesson from the previous judicial determination that he violated the law. This failure warrants harsher punishment in the adult proceeding. [Citation.] The fact defendant was neither afforded nor waived a jury trial at the prior juvenile adjudication does not prevent the use of that adjudication as a strike for purposes of sentencing in his current adult proceeding.”
The weight of authority is that juvenile adjudications have sufficient procedural safeguards to permit a trial court to use them to enhance a defendant’s sentence without violating the defendant’s constitutional rights. (People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-831; People v. Lee (2003) 111 Cal.App.4th 1310, 1314-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1079; U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032; U.S. v. Jones (3d Cir. 2003) 332 F.3d 688, 696; U.S. v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190.)
This issue is currently before the Supreme Court in People v. Nguyen (2007) 152 Cal.App.4th 1205 [62 Cal.Rptr.3d 255], review granted October 10, 2007, S154847.
The trial court’s use of the juvenile adjudication to enhance McClough’s sentence did not violate his constitutional rights. (People v. Fowler, supra, 72 Cal.App.4th at p. 586.) However, McClough’s abstract of judgment does not indicate that the sentence on his false imprisonment conviction was stayed. We will direct the trial court to correct this mistake.
DISPOSITION
The trial court is directed to issue an amended abstract of judgment which indicates that the concurrent term it imposed on his false imprisonment conviction was stayed. It is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.