PEOPLE v. PALMER

Filed 8/31/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Plumas)

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APPEAL from a judgment of the Superior Court of Plumas County, Stanley C. Young, J. Affirmed.

Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Mary Jo Graves, Assistant Attorneys General, Stephen G. Herndon, Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Rex Evans Palmer entered a negotiated plea of no contest to driving while having a blood alcohol content of .08 percent or more (Veh. Code, § 23152, subd. (b); count II) and admitted two prior Nevada convictions for driving under the influence in exchange for dismissal of the remaining counts: driving under the influence (Veh. Code, § 23152, subd. (a); count I), felony child endangerment (Pen. Code, § 273a, subd. (a); count III), as well as dismissal of another prior Nevada conviction for driving while impaired.^[1]

The court suspended imposition of sentence and granted summary probation for a term of five years subject to certain terms and conditions including 180 days in jail.

Defendant appeals. He obtained a certificate of probable cause (Pen. Code, § 1237.5) to challenge the use of his prior Nevada driving-under-the-influence convictions. He contends his prior Nevada convictions could not be used to enhance the punishment for his current California driving offense (Veh. Code, § 23546) because he did not have a right to a jury trial in the Nevada proceedings. We reject defendant's claim. Since there is no federal constitutional right to a jury trial for petty offenses, and defendant's Nevada priors were for petty offenses, we conclude that defendant's sentence for the current offense was properly enhanced by those priors. In reaching this conclusion, we respectfully disagree with the split decision of the Court of Appeals for the Ninth Circuit in U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe).

PROCEDURAL HISTORY

A complaint filed July 16, 2002, charged defendant with two driving-under-the-influence-of-alcohol offenses and felony child endangerment. In connection with the driving offenses, it was alleged that defendant had three prior Nevada driving-under-the-influence convictions within the meaning of Vehicle Code sections 23550 and 23550.5.

The complaint alleged that defendant committed his current offense, a violation of Vehicle Code section 23152, subdivision (b), on July 14, 2002. The complaint alleged three priors, two of which defendant admitted and the third was dismissed in exchange for defendant's plea. The two priors defendant admitted were alleged in the accusatory pleading as follows:

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