P. v. Butler

Filed 5/11/06 P. v. Butler CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County. James B. Pierce, Judge. Modified and affirmed.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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Stephon Butler appeals from the judgment following his conviction for being an ex-felon in possession of a handgun. We modify and affirm.

FACTS AND PROCEDURAL HISTORY

During an argument with another person, ex-felon Stephon Butler pulled a gun from his pocket and cocked it. He then returned the gun to his pocket and drove away. He was later arrested and the People charged him with being a felon in possession of a firearm. (Pen. Code, § 12021, subd. (a)(1).) The People further alleged he had suffered a strike under the Three Strikes law for a robbery he had committed as a 17 year old to which he had pleaded no contest in juvenile court.

The jury convicted appellant of being a felon in possession of a firearm. Appellant waived his right to a jury on the strike allegation, and the court found it true. The court sentenced appellant to a mid-term of two years, doubled under the Three Strikes law to four years, plus one year for a prior prison term. This appeal followed.

DISCUSSION

1. Treating a Juvenile Adjudication as a Strike

Appellant contends the court violated his rights to due process and jury trial by treating his juvenile adjudication as a strike because he did not have a right to a jury in juvenile court. The core of appellant's argument is that whatever merit may have existed at one time to the idea that juvenile offenders had no right to a jury in juvenile court, that time has passed. Years ago, according to appellant, juvenile courts may have been more interested in reforming the offending juvenile from his own waywardness than in punishing him for his crimes. In such an era when the justice system treated juvenile offenders more solicitously than adults, juveniles could afford, appellant asserts, to be without an adult's panoply of constitutional rights, particularly the right to a jury trial. But, according to appellant, such solicitude is a quaint notion from a bygone era. Trends in juvenile justice the last decade or two, and in particular sentencing schemes such as Three Strikes, have drained all solicitousness from the legal system. Thus, appellant concludes, there is no justification for denying juveniles the right to a jury. (See People v. Smith (2003) 110 Cal.App.4th 1072, 1084- 1093 (diss. opn. of Johnson, J.) for a more expansive discussion of the points appellant makes.)

Appellant acknowledges every published California decision to consider the use of a juvenile adjudication as a strike has found it passes constitutional muster. (See People v. Superior Court (2003) 113 Cal.App.4th 817, 831-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1311; People v. Smith, supra, 110 Cal.App.4th at pp. 1075, 1077-1078; People v. Bowden (2002) 102 Cal.App.4th 387, 390-394.) He nevertheless urges us to break ranks from those decisions. As grounds for doing so, he relies on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). Under Apprendi, a defendant has the right to have a jury decide every fact a court uses to increase punishment. (Id. at p. 490.) Appellant's reliance on Apprendi is inapt, however, because the Three Strikes law provides a right to a jury to establish the existence of a strike, including a juvenile adjudication, and thus adheres to Apprendi. (See People v. Bowden, at pp. 391-393 [existence of juvenile adjudication must be proven beyond a reasonable doubt with right to jury; expressly rejected argument that Apprendi renders use of juvenile adjudication unconstitutional]; People v. Smith, at p. 1075 [Apprendi permits using â€