Opposition Brief — Nguyen v. California

€ Supreme Court, U.S.

FILED

No. 09-604 FEB - 4 2010

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Su the Supreme Court of the United States

VINCE VINHTUONG NGUYEN, Petitioner,

Vv.

CALIFORNIA, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF CALIFORNIA

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

EDMUND G. BROWN JR.

Attorney General of California

DANE R. GILLETTE

Chief Assistant Attorney General

GERALD A. ENGLER

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy State Solicitor General

RENE A. CHACON

Supervising Deputy Attorney General

LAURENCE K. SULLIVAN

Supervising Deputy Attorney General

Counsel of Record

ERIC D. SHARE

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

Telephone: (415) 703-5849

Fax: (415) 703-1234

Counsel for Respondent

YDS es &

. e gt eis

QUESTION PRESENTED

California’s Three Strikes law increases the

prison terms of felons with one or more prior

convictions for “serious” or “violent” felonies—

commonly known as_ strikes. Strikes include

specifically defined adjudications of wardship based

on such felonies, when committed by a minor sixteen

years or older found fit for proceedings under

juvenile court law, which does not afford the right to

a jury trial. See Cal. Penal:Code §§ 667(d)(3),

1170.12(b)(3). Prior juvenile wardship adjudications

of strikes are considered prior convictions, which

must be alleged in the charging document, and the

defendant has a right to a jury determination that

the prosecution has proved the prior strike beyond a

reasonable doubt. See Cal. Penal Code §§ 667(c),

1025, 1158, 1170.12(d)(1).

The question presented is whether’ the

respective jury-trial and due-process guarantees of

the Sixth and Fourteenth Amendments preclude the

use of such a prior juvenile wardship adjudication to

increase punishment for a new felony in a California

Three Strikes prosecution.

il

TABLE OF CONTENTS

Question Presented.............. icedusehamanenstecssceiansnsuemehodusiee l

Relevant Constitutional and Statutory

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Reasons for Denying the Petition.............. Slanakaceeaeaess 5

[. Because petitioner was entitled

to, but waived, his statutory right

to a jury trial on the prior

juvenile wardship adjudication,

this case does not implicate

Apprendi v. New Jersey, 530 U.S.

EE ick iicisancteats ta cutaeesouiaiescewces) ie

II. A juvenile wardship adjudication

for a serious or violent felony is

constitutionally valid proof of

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III. No significant conflict of decisions

exists, nor would certioran in this

case resolve any residual case-law

I a - 5 ucccsachcostcvacoussaseanktukondaisceses 18

IV. The due process claim, that felons

with prior wardship adjudications

for violent or serious felonies are

treated unfairly by the Three

Strikes law, does not warrant

NE aiteasnduatesn cece cttctattesednbietecians 24

V. Petitioner’s admission of the

strike offense in juvenile court

renders certiorari inappropriate ......... 28

Vi

Conclusion

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1]

TABLE OF CONTENTS

(continued)

Page

Certiorari should be denied

because a sentence reduction is

. oe ter

improbable under California’s

reformed sentencing law .. 3]

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TABLE OF AUTHORITIES

CASES

Almendarez-Torres v. United States

523 U.S. 224 (1998)

Apprendi v. New Jersey

530 U.S. 466 (2000)

Baldasar v. Illinois

446 U.S. 222 (1980)

Blakely v. Washington

542 U.S. 296 (2004) .

Boyd v. Newland

467 F.3d 1139 (9th Cir

Cunningham v. California

549 U.S. 270 (2007)

Custis v. United States

511 U.S. 485 (1994)

In re Gault

387 U.S. 1 (1966)

In re Winship

397 U.S. 358 (1970)

Jones v. United States

526 U.S. 227 (1999) ......

2006)

Page

passim

passim

31

30

L3

passim

_ — — —

a) PI e OL Fw nm 8 Vw IO 6 te Oy AP er

TABLE OF AUTHORITIES

(continued)

Page

McKevver v. Pennsylvania

403 U.S. 528 (1971) 13, 16, 17

Medina v. California

505 U.S. 437 (1992) 25. 27

Nichols v. United States

511 U.S. 738 (1994) 18

Oregon v. Ice

U.S ,129S. Ct. 711 (2009) 23

People v. Fowler

72 Cal. App. 4th 581 (1999) 16

People v. Hazelton

14 Cal. 4th 101, 926 P.2d 423 (1996) 20

People v. Monge

16 Cal. 4th 826, 941 P.2d 1121 (1997) 6

People v. Nguyen

46 Cal. 4th 1007, 209 P.3d 946 (2009) passim

People v. Palmer

142 Cal. App. 4th 724 (2006) 18

People v. Sandoval

41 Cal. 4th 825, 161 P.3d 1146 (2007) 31, 32

Ryle v. State

842 N.E.2d 320 (Ind. 2005) Zz

Vi

TABLE OF AUTHORITIES

(continued)

Page

State v. Brown

879 So. 2d 1276 (La. 2004) 22

State v. Harris

339 Ore. 157, 118 P.3d 236 (2005) 22

State v. Hitt

273 Kan. 224. 42 P.3d 732 (2002) 22

State v. McFee

721 N.W.2d 607 (Minn. 2006) 22

State v. Weber

159 Wash. 2d 252, 149 P.3d 646 (2006) 22

United States v. Booker

543 U.S. 220 (2005) mY.

United States v. Burge

407 F.3d 1183 (11th Cir. 2005) 21. Za

United States v. Crowell

493 F.3d 744 (6th Cir. 2007) 21, 23

United States v. Jones

332 F.3d 688 (3rd Cir. 2003) 21

United States v. Matthews

498 F.3d 25 (1st Cir. 2007) 21

United States v. Smalley

294 F.3d 1030 (8th Cir. 2002) 21, 23

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TABLE OF AUTHORITIES

(continued)

Page

United States v. Tighe

266 F.3d 1187 (9th Cir. 2001) 2h. we

STATUTES

18 United States Code

§ 924(e)........... 23

§ 5038(a)(2) .... 23

California Health & Safety Code

§ 11364. 3

§ 11377(a) 2

§ 11550 3

California Penal Code

§18.. 31

§ 245(a)(1) 3

§ 667(d)...

§ 667(b)-(1) 1 3

§ 667(c)..... 1. G7

§ 667(d)(3) . 1, 3, 7, 25

a ERE Resear nis penne en APRN ERE RR Ee Ee 4

D BOBO cccccccesss .... passim

§ 1025(a)-(b) a

§ 1158 2, 3,6

§ 1170.12 1,3

§ 1170.12(a) 7

§ 1170.12(b)(3) i, 3, 7, 25

§ 1170.12(c)(1) A

§ 1170.12(d)(1)

§ 12020(a)(1) 9

vil

TABLE OF AUTHORITIES

(continued)

Page

California Penal Code

Bo + BS ) ee cee ete ere AEE ERE ete e 2, 31

SOT neat teeta i ne eee ene AO 2

California Welfare & Institutions Code

ta ee ae a ev cate en nu chs ouusaateat 30

CONSTITUTIONAL PROVISIONS

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ee ibs ciecesinasnsccavpensomnskdunnes passim

Fourteenth Amendment................. Ne OA SIP aes 24

CouRT RULES

Supreme Court Rule 10....... ergata Jeo tuidaladaauta cea 17

OTHER AUTHORITIES

Consideration of Accused’s Juvenile Court

Record in Sentencing for Offenses

Committed as an Adult, 64 A.L.R. 3d 1291

PEE ccc cs on aiundakooens I EMDR ae SR Ras PRE ARE ee 23

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The constitutional provisions involved in this

case are the Sixth and Fourteenth Amendments to

the United States Constitution.

California’s Three Strikes law (Cal. Penal Code

§§ 667(b)-(i), 1170.12)! provides in part:

(3) A prior juvenile adjudication shall

constitute a prior felony conviction for

purposes of sentence enhancement if:

(A) The juvenile was sixteen years 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) 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 pecause the person committed an

offense listed in subdivision (b) of Section

707 of the Welfare and Institutions Code.

§ 667(d); see also id. § 1170.12(b) (same).

1 Unless otherwise designated, further statutory

references are to the California. Penal Code.

Section 1025 provides in part:

(b) Except as provided in subdivision (c),

the question whether or not the defendant

has suffered the prior conviction shall be

tried by the jury that tries the issue upon

the plea of not guilty, or in the case of a

plea of guilty or nolo contendere, by a jury

impaneled for that purpose, or by the court

if a jury is waived.

(c) Notwithstanding the provisions of

subdivision (b), the question of whether the

defendant is the person who has suffered

the prior conviction shall be tried by the

court without a jury.

Section 1158 provides in part:

Whenever the fact of a previous conviction

of another offense is charged in an

accusatory pleading, and the defendant is

found guilty of the offense with which he is

charged, the jury, or the judge if a jury

trial is waived, must unless the answer of

the defendant admits such previous

conviction, find whether or not he has

suffered such previous conviction.

STATEMENT OF THE CASE

1. In December 2004, petitioner, twenty-one

years old, was charged with possession of a firearm

by a felon (§ 12022.1(a)(1)), possession of ammunition

by a felon (§ 12316(b)(1)), possession of a billy (&

12020(a)(1)), and possession of methamphetamine

(Cal. Health & Safety Code § 11377(a)), together with

two misdemeanors of being under the influence of a

controlled substance and possessing a drug device

(Cal. Health & Safety Code §§ 11550, 11364).

Pursuant to California’s Three Strikes law (§§ 667(b)-

(i), 1170.12), the complaimt also alleged, as a

qualifying “prior felony conviction” (§§ 667(d)(3),

1170.12(b)(3)), a 1999 juvenile wardship adjudication

for assault with a deadly weapon (§ 245(a)(1)) when

petitioner was sixteen years of age or older. Clerk’s

Transcript (C.T.) 6-8.

In March 2005, petitioner pleaded no contest to

a felony violation of felon in possession of a firearm

and to misdemeanor possession of a billy, in

exchange for dismissal of the other charges. C.T. 13.

The underlying facts of the current crimes are not

described in the record. Petitioner waived his

statutory right to a jury trial on the issue of whether

he “[{h]ad suffered” the prior strike (§§ 1025(a)-(b),

1158). Based upon the record of the 1999 juvenile

adjudication, which indicated that petitioner had

admitted the assault with a deadly weapon (C.T. 14),

the court found the prior strike proven. People v.

Nguyen, 46 Cal. 4th 1007, 1013, 209 P.3d 946, 949

(2009) (Nguyen).

Over petitioner’s objection that the use of the

juvenile adjudication to imcrease his_ sentence

violated his Sixth Amendment right to a jury trial,

the court imposed a sixteen-month prison term for

the firearm conviction, and doubled it to thirty-two

months under the two-strike-offender part of the

2 The documents submitted to the California Superior

Court to prove the prior juvenile adjudication were not made

part of the appellate record and were lost. Acting on its own

motion, the California Court of Appeal took judicial notice of the

juvenile court file. See Nguyen, 46 Cal. 4th at 1013, n.4, 209

P.3d at 949, n.4.

Three Strikes law (§§ 667(e)(1), 1170.12(c)(1)). C.T.

22; Reporter’s Transcript 16-17.

2. A divided panel of the California Court of

Appeal, Sixth Appellate District, reversed. It held

that, because juveniles lack a jury-trial right, the use

of a juvenile adjudication for recidivism punishment

under the Three Strikes law violates the Sixth

Amendment. See Nguyen, 46 Cal. 4th at 1014, 209

P.3d at 950.

3. On July 2, 2009, the California Supreme

Court reversed. The supreme court held that the use

of a prior juvenile wardship adjudication as a strike

did not violate petitioner’s constitutional rights.

Nguyen, 46 Cal. 4th at 1010, 209 P.3d at 947. The

California Supreme Court held that petitioner’s

sentence did not violate his jury-trial right under the

Sixth Amendment, as interpreted by this Court in

Apprendi v. New Jersey, 530 U.S. 466 (2000)

(Apprendi). The state supreme court noted that

petitioner had the right under California law to have

a jury determine the truth of the fact used to increase

his sentence, i.e., the prior juvenile wardship

adjudication, and that petitioner had waived his jury-

trial right on the sentencing fact in this case. The

California Supreme Court further held no Sixth

Amendment violation occurs when a constitutionally

valid prior adjudication of criminal conduct,

including a juvenile wardship adjudication, is used as

evidence of recidivism. Nguyen, 46 Cal. 4th at 1012,

209 P.3d at 949. On August 19, 2009, the California

Supreme Court denied rehearing.

REASONS FOR DENYING THE PETITION

BECAUSE PETITIONER WAS ENTITLED TO,

BUT WAIVED, HIS STATUTORY RIGHT TO A

JURY TRIAL ON THE PRIOR JUVENILE

WARDSHIP ADJUDICATION, THIS CASE

DOES NOT IMPLICATE APPRENDI V. NEW

JERSEY, 530 U.S. 466 (2000)

1. Citing Apprendi, 530 U.S. 466, petitioner

asserts that the increase of his sentence based on a

nonjury juvenile wardship adjudication violates the

Sixth Amendment. Petitioner's argument disregards

both his California statutory right to a jury trial on

the fact of his juvenile wardship adjudication and his

waiver of that jury-trial right. Because Apprendi is

not implicated when a defendant waives a statutory

jury-trial rnght on a fact used to enhance a sentence

above the maximum, certiorari is unwarranted.

2. Apprendi held: “Other 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, 530 U.S. at 490.

Blakely v. Washington, 542 U.S. 296 (2004) (Blakely),

explained that “the ‘statutory maximum’ for

3 Since Nguyen was decided, this Court has denied

petitions for certiorari in several cases raising Apprendi

challenges to California’s use of juvenile wardship adjudications

as strikes. See Alonzo Hale v. California, No. 09-6394, cert.

denied Jan. 11, 2010; Deante Dekhoura Stewart v. California,

No. 09-7287, cert. denied Jan. 11, 2010; and Charles Gordon v.

California, No. 09-6422, cert. denied Oct. 20, 2009. As noted in

Nguyen, prior to the California Supreme Court’s decision, this

Court had denied petitions for certiorari in numerous California

eases finding no constitutional violation in using juvenile

adjudications as strikes. See Nguyen, 46 Cal. 4th at 1020, 209

P.3d at 954 (and cases cited therein).

Apprendi purposes is the maximum sentence a judge

may impose solely on the basis of the facts reflected

in the jury verdict or admitted by the defendant.” Jd.

at 303. Blakely reaffirmed Apprendi’s holding that a

trial court may make factual determinations to select

a sentence within the applicable sentencing range

that does not exceed the statutory maximum.

Apprendi, 530 U.S. at 481; Blakely, 542 U.S. at 309.

3. A prior conviction under the Three Strikes

law must be pleaded and proved beyond a reasonable

doubt under California law. §§ 667(c), 1170.12(d)(1);

see also People v. Monge, 16 Cal. 4th 826, 833-34, 941

P.2d 1121, 1126 (1997) (burden of proof is beyond a

reasonable doubt). Further, California provides a

statutory right to a jury trial when a prior conviction

is alleged:

[T]he question of whether or not the

defendant has suffered the prior conviction

shall be tried by the jury that tries the

issue upon the plea of not guilty, or in the

case of a plea of guilty or nolo contendere,

by a jury impaneled for that purpose, or by

the court if a jury is waived.

§ 1025(b); see also § 1158, Nguyen, 46 Cal. 4th at

1011, 209 P.3d at 948. These facets of state law

establish—contrary to petitioner’s argument—that

the Apprendi rule is not implicated in petitioner’s

case.

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’s statutory law afforded

defendant the right to have a _ jury

determine the existence of the sentencing

fact here at issue—whether he suffered a

“prior felony conviction” as defined by the

Three Strikes law ....

Nguyen, 46 Cal. 4th at 1012, 209 P.3d at 949.

4. Petitioner dismisses his California jury-trial

right, arguing incorrectly that Apprendi demands a

jury determine his guilt of the underlying offense, not

the fact of a prior conviction, before a prior juvenile

adjudication can be used as a strike. Pet. at 27.

Petitioner mistakenly views his prior felonious

conduct, not his status as one who has suffered a

wardship adjudication for a serious or violent felony,

as the fact that must be proved beyond a reasonable

doubt in order for his sentence to be increased for

recidivism. See Pet. at 26-27.

His argument misconstrues California’s Three

Strikes law. The law makes the juvenile

adjudication itself—not the conduct underlying the

adjudication—the recidivist fact that increases a

sentence. See § 667(c) (Three Strikes law is

applicable if a defendant has “one or more prior

felony convictions”); id. § 667(d)(3) (“A prior juvenile

adjudication shall constitute a prior felony

conviction” under specified circumstances); see also §

1170.12(a), (b)(3) (same). The California Supreme

Court makes the point clearly:

[U]nder 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

statutory 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

the 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.”

Nguyen, 46 Cal. 4th at 1015, 209 P.3d at 950-51.

5. Under sections 1025 and 1158 petitioner had

the right to demand that a jury determine the fact of

a prior conviction beyond a reasonable doubt. But

petitioner waived the right to have the jury

determine the 1999 juvenile adjudication. Nguyen,

46 Cal. 4th at 1012, 209 P.3d at 949 (“California

statutory law afforded defendant the right to have a

jury determine the existence of the sentencing fact

here at issue-whether he suffered a ‘prior felony

conviction’ as defined by the Three Strikes Law-but

he waived that right”); id. at 1015, 209 P.3d at 951

(“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”). Because petitioner

did not admit the allegation that he suffered a prior

conviction and only waived his jury-trial right, he

necessarily agreed to the court determining the truth

of the fact used to enhance his sentence. For this

reason, among others, Apprendi is not implicated and

does not bar petitioner’s Three Strikes sentence.

6. This case presents no occasion to consider

under Apprendi the scope of the jury-trial right

afforded by sections 1025 and 1158. The California

Supreme Court declined to address that issue since

petitioner did not preserve it. See Nguyen, 46 Cal.

4th at 1015, n.8, 209 P.3d at 951, n.8 (petitioner's

failure to challenge the adequacy of section 1025 to

protect his Apprendi rights forfeited the claim). The

State was not asked to defend against a claim that its

statutes inadequately protect Apprendi rights of

criminal defendants with prior convictions. Because

there is no judgment on that issue, the contention

cannot be addressed in this case.

The relevant judgment, as explained by the

California Supreme Court, is that the Three Strikes

law does not impinge Apprendi rights’ given

California’s statutory jury-trial right afforded to

criminal defendants and that petitioner waived his

jury-trial right on the truth of his prior wardship

adjudication in this case. Neither of the California

Supreme Court’s judgments on those points merits

review by this Court.

Il. A JUVENILE WARDSHIP ADJUDICATION

FOR A SERIOUS OR VIOLENT FELONY IS

CONSTITUTIONALLY VALID PROOF OF

RECIDIVISM

4 Even if California had not provided

petitioner a jury-trial right on the truth of his prior

conviction allegation, petitioner's Apprendi claim

would fail. The California Supreme Court correctly

found that juvenile wardship adjudications fall

within Apprend's exception for “prior convictions.”

[W]e 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.

Nguyen, 46 Cal. 4th at 1012, 209 P.3d at 949. That

conclusion is correct and fully consistent with this

Court’s jurisprudence.

2. The fact of a prior conviction is exempted

from the principle that facts used to increase a

defendant's sentence beyond the statutory maximum

provided for the offense must be found by a jury or

admitted by the defendant. Apprendi, 530 U.S. at

490. Almendarez-Torres v. United States, 523 U.S.

224 (1998) (Almendarez-Torres), viewed prior

convictions as essentially unique in this respect. The

Court reasoned “that the relevant subject matter is

recidivism. That subject matter—the prior

commission of a serious crime—is as typical a

sentencing factor as one might imagine.” Jd. at 230;

see also td. at 243.

3. Contrary to petitioner’s argument, Jones v

United States, 526 U.S. 227 (1999) (Jones)

support his claim that Apprendi impliedly bars the

use of juvenile adjudications as_ evidence of

recidivism. See Pet. at 12. Jones cited Almendarez-

Torres to observe that “[t]he Court’s repeated

emphasis on the distinctive significance of recidivism

leaves no question that it regards that fact as

potentially distinguishable for constitutional

purposes from other facts that might extend the

range of possible sentencing.” Jones, 526 U.S. at 249.

Jones observed that “[o]ne basis for the possible

constitutional distinctiveness [of recidivism] is not

hard to see: unlike virtually any other consideration

used to enlarge the possible penalty for an offense .

a prior conviction must itself have been established

through procedures satisfying the fair notice,

reasonable doubt, and jury trial guarantees.” Jd.

Jones did not thereby define the judicial

proceedings whose judgments constitute the fact of a

prior conviction. Nor did it limit the kinds of trial

proceedings that competently prove _ recidivism

Instead, it identified one basis, among others, for

‘Sustiffying] the single exception [this Court]

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. [Citations.]” Nguyen, 46 Cal. 4th at

1016, 209 P.3d at 951. Taking Jones’ reference to the

jury-trial guarantee out of context ignores the Court’s

repeated emphasis on the distinctive nature of

recidivism as a traditional basis for increasing a

defendant’s punishment. Indeed, Jones itself was not

a case involving enhancement of a sentence based on

a prior conviction. Instead, it concerned a statute

does not

,

that provided for increased punishment depending on

the severity of the victim’s injuries. Jones, 526 U.S.

at 229. Thus, the Jones dicta is not controlling.

Apprendi deemed it unnecessary to revisit

Almendarez-Torres, and the Court retained the jury-

trial exception for recidivism. “Both the certainty

that procedural safeguards attached to any ‘fact’ of

prior conviction, and the reality that Almendarez

Torres did not challenge the accuracy of that ‘fact’ in

his case, mitigated the due process and Sixth

Amendment concerns otherwise’ implicated in

allowing a judge to determine a ‘fact’ increasing

punishment beyond the maximum statutory range.”

Apprend., 530 U.S. at 488

Apprend1, like Jones, did not involve the use of a

prior conviction to enhance a sentence. It concerned

a hate-crimes statute that extended the sentence if a

crime had been committed “with the purpose to

intimidate an individual or group of individuals

because of race, color, gender, handicap, religion,

sexual orientation, or ethnicity.” Apprendi, 530 U.S.

at 469. This Court distinguished that law from the

one in Almendarez-Torres: “The reasons supporting

an exception from the general rule for the statute

construed in [Almendarez-Torres| do not apply to the

New Jersey statute [in Apprendi]. Whereas

recidivism ‘does not relate to the commission of the

offense’ itself, [Almendarez-Torres,| 523 U.S. at 230,

244, New Jersey's biased purpose inquiry goes

precisely to what happened in the ‘commission of the

offense.” Apprendi, 530 U.S. at 496.

4. Petitioner infers from those decisions that

recidivism may increase the maximum sentence only

if past criminal conduct is found by a jury in the

current proceeding or was found by a jury in a prior

proceeding As the California Supreme Court

explained, however, that is not a fair reading of this

Court’s decisions. This Court, it noted, has confirmed

that minors are entitled to many procedural rights

and protections they would enjoy as adult criminal

defendants (/n re Gault, 387 U.S. 1 (1966); In re

Winship, 397 U.S. 358 (1970)), but the Constitution

does not require the right to a jury trial in juvenile

proceedings (McKeiver v. Pennsylvania, 403 U.S. 528

(1971) (McKeiver). See Nguyen, 46 Cal. 4th at 1019,

209 P.3d at 953. McKeiver “made clear that the

absence of a right to a trial by jury did not

appreciably undermine the accuracy of the

factfinding function in juvenile cases. (McKeiver,

supra, at p. 543 (plur. opn. of Blackmun, J.); id. at p.

551 (conc. opn. of White, J.).)” Nguyen, 46 Cal. 4th at

1023, 209 P.3d at 956.

Jones and Apprendi note the importance of

procedural safeguards in explaining the exception for

prior convictions. But neither case held that a jury-

trial right is the sine qua non of those safeguards.

Jones, 526 U.S. at 249; Apprendi, 530 U.S. at 488. In

McKeiver, this Court held that a émiunor’s

constitutional rights are ensured in juvenile court

even though there is no jury-trial right. McKeiver,

403 U.S. at 543, 551. It is incongruous to conclude

that a juvenile adjudication is constitutionally sound

without the right to a jury in a current proceeding,

but constitutionally unsound as proof of recidivism in

a later proceeding.

Juvenile wardship proceedings are

constitutionally valid adjudications of criminal

activity. Therefore, the California Supreme Court

properly concluded that this Court’s decisions do not

limit the prior-conviction exception to judgments in

proceedings encompassing a jury-trial right.

We do not read the passages from

Almendarez-Torres , Jones , and

Apprendi ... as prohibiting the use of

previously adjudicated criminal mis-

conduct to authorize an increased sentence

in a later criminal case unless the prior

proceeding—whether juvenile or adult—

specifically included the right to a jury

tried... .

We first note the obvious: Neither Jones

nor Apprendi was directly concerned with

deciding the circumstances under which

prior adjudications of criminal conduct

may be used to enhance the maximum

sentence for a subsequent adult offense.

Hence, the court’s comments on that

subject were dictum.

Moreover, nothing in Jones or Apprend1, or

in Almendarez-Torres itself, stated or

imphed that a prior criminal adjudication

forming the basis of a “recidivism”

sentencing factor in an adult criminal

proceeding must always have _ been

obtained in a proceeding that included, in

particular, the mght to a jury trial. Those

cases cited a group of procedural rights

and safeguards that make prior adult

convictions fair and reliable evidence of

previous criminal misconduct, but they did

not state that each and every one of those

guarantees or any one of them in

particular, is essential to the availability of

a prior criminal adjudication to furnish

such proof.

Finally, . . . Apprendi and its progeny

concern an adult’s right to jury findings, in

the adult case, of all _ previously

unadjudicated facts that bear upon the

maximum sentence for the adult offense.

On the other hand, these decisions have

suggested that recidivism already

adjudicated in fair and reliable prior

proceedings may be used to enhance later

sentences without new jury involvement,

and the high court has not disturbed

McKeiver’s determination that juvenile

adjudications of criminality are

constitutionally fair and reliable even

though the Constitution does not require

jury trial in juvenile proceedings.

Under these circumstances, we decline to

hold that a prior juvenile adjudication,

highly probative on the issue of recidivism,

is unavailable to enhance the punishment

for the individual’s subsequent adult

offenses, for the sole reason that there was

no right to a jury trial in the juvenile case.

Nguyen, 46 Cal. 4th at 1023-24, 209 P.3d at 956-58.4

5. Petitioner asserts that “[plermitting an

increased maximum sentence based upon a juryless

juvenile adjudication diminishes and erodes the

jury’s function because it authorizes past findings to

4 See also td. at 1023, 209 P.3d at 956:

So long as an accused adult is accorded his right to

a jury trial in the adult proceeding as to all the

facts that influence the maximum permissible

sentence, no reason appears why a constitutionally

reliable adjudication of criminality, obtained

pursuant to all procedural guarantees

constitutionally due to the offender in the prior

proceeding—specifically including the right to proof

beyond a reasonable doubt—should not also be

among the facts available for that sentencing

purpose.

be labeled as ‘convictions’ as long as the legislature

doesn’t stray ‘too far’ from what looks like a criminal

conviction. [Citation.]” Pet. at 12. Juryless

adjudications in juvenile delinquency proceedings do

not violate the Sixth Amendment. McKeiver, 403

U.S. at 545, 557. In criminal court, petitioner had

and waived a jury-trial right on the truth of the prior

adjudicated fact used to increase his sentence. See §§

1025, 1158. Moreover, juvenile adjudications fall

within the Almendarez-Torres exception for prior

convictions. “The Three Strikes law’s use of juvenile

adjudications affects only the length of the sentence

imposed on an adult offender, not the finding of guilt

in the adult court nor the adjudication process in

juvenile court.” People v. Fowler, 72 Cal. App. 4th

581, 586 (1999). Recognition that juvenile wardship

adjudications are valid evidence of recidivism does

not denigrate Sixth Amendment protections.

Petitioner was not deprived of Sixth Amendment

rights in either the juvenile court or the criminal

court.°

5 While directing his aim at wardship adjudications that

prove recidivism, petitioner targets much more. He invites the

Court to overrule Almendarez-Torres. Pet. at 14, n.11 (“to the

extent that this Court wishes to use this case as a vehicle for

reconsidering Almendarez-Torres, the validity of that decision

could be considered ‘fairly encompassed’ within the question

presented”). He also questions McKeiver. See Pet. at 25

(“commentators” believe that “juvenile proceedings may not be

as reliable as adult criminal proceedings and that it is easier for

prosecutors to obtain juvenile adjudications than criminal

convictions’).

In the California Supreme Court petitioner disclaimed

that his argument required overruling or reconsidering either

Almendarez-Torres or McKeiver. See Appellant’s Answer Brief

on the Merits at 6-7 (arguing that juvenile wardship

adjudications fall outside the Almendarez-Torres exception); id.

at 27 (‘Appellant is not arguing that juveniles are entitled to

(continued...)

6. Petitioner asserts that the judgment below

would allow any _ adjudication—even — school

suspensions—to enhance a sentence so long as the

adjudication was “reliable.” Pet. at 12; see also Pet.

at 21-23. This grossly overstates the decision in

Nguyen. It did not adopt any “reliability” test. To

the contrary, it holds that a “sentencing court’s

traditional authority to impose increased punishment

on the basis of the defendant’s recidivism .. . may

properly be exercised . . . when the recidivism is

evidenced, as here, by a constitutionally valid prior

adjudication of criminal conduct.” Nguyen, 46 Cal.

4th at 1012, 209 P.3d at 949. Juvenile adjudications

are valid evidence of recidivism not just because they

are “valid, fair, and reliable” (see Nguyen, 46 Cal. 4th

at 1019; 209 P.3d at 953), but because they are

judgments in_ constitutionally valid judicial

proceedings (see McKeiver, 403 U.S. 528) in which

minors are adjudicated wards based on their

commission of criminal conduct and, on that basis,

properly may be subjected to loss of liberty (see

Nguyen, 46 Cal. 4th at 1019, 209 P.3d at 953

Guvenile proceedings include all the constitutional

protections applicable to such matters)). If juryless

trials in juvenile court abridged fundamental

constitutional rights, this Court would not have

sanctioned them.

7. Acceptance of petitioners argument that

juryless adjudications are incompetent evidence of

recidivism under the Sixth Amendment would have

profound and unacceptable consequences to the

(...continued)

jury trials”). Thus, this case presents no opportunity to

reconsider either decision. Cf. Supreme Court Rule 10 (“A

petition for a writ of certiorari will be granted only for

compelling reasons’).

criminal justice system aside from barring the use of

prior juvenile adjudications to enhance criminal

sentences. Seemingly, it would invalidate as

evidence of recidivism any adjudicated finding of

criminal conduct reached in a proceeding where the

defendant lacked a constitutional jury-trial right.

That would prohibit the use of a _ juryless

misdemeanor prior conviction to enhance _ the

punishment for a later offense, thus undermining

prototypical state recidivism schemes for offenses

like driving under the influence with a prior

adjudication for the same offense. See, e.g., People v.

Palmer, 142 Cal. App. 4th 724, 734 (2006) (upholding

use of a Nevada juryless-misdemeanor conviction of

driving under the influence to enhance a California

drunk-driving offense). That result would require

this Court to overrule Nichols v. United States, 511

U.S. 738 (1994), which held that a _ prior

constitutionally valid uncounseled misdemeanor

conviction can be used in a subsequent federal felony

proceeding to increase a defendant’s criminal history

score, and thus the maximum punishment, for a

felony offense. Jd. at 747-48, overruling Baldasar v.

Illinois, 446 U.S. 222 (1980).

Nguyen correctly analyzed this Court's

precedents and found no legitimate basis for

excluding juvenile adjudications from the category of

“prior convictions” exempted from the Apprendi rule.

Ill. No SIGNIFICANT CONFLICT OF DECISIONS

EXISTS, NOR WOULD CERTIORARI IN THIS

CASE RESOLVE ANY RESIDUAL CASE-LAW

TENSIONS

1. Petitioner asserts that considerable

disagreement in lower courts exists on the use of

juvenile adjudications as evidence of recidivism and

that the issue should be resolved in a California case

because of the preeminent influence of the state

supreme court. Pet. at 7. Petitioner’s thesis vastly

overstates any lower-court conflict. After Apprend1,

various federal circuit and state supreme courts

addressed the use of prior juvenile adjudications as

sentencing factors in criminal cases. The

overwhelming majority of those courts have

concluded that nonjury juvenile adjudications fall

within the $Almendarez-Torres exception to

Apprendis Sixth Amendment jury-trial right.

Moreover, to the extent any conflict of decisions

among lower courts exists, certiorari here is unlikely

to resolve it. Calfornia law is distinct from the laws

considered by the lower federal courts and state

supreme courts. Specifically, California grants the

defendant a jury trial in the current proceeding to

decide the allegation of a prior juvenile adjudication

before the court can use it to enhance a sentence

above the statutory maximum. See §§ 1025, 1158.

2. In Nguyen, the California Supreme Court

surveyed cases from other states and the federal

circuit courts in analyzing the issue. It correctly

found that the overwhelming majority of other

jurisdictions reject claims that the Sixth

Amendment—and Apprendi—bar the use of nonjury-

juvenile adjudications as evidence of recidivism. The

Nguyen court summarized the rationale of the

majority decisions.

Prior juvenile adjudications substantially

satisfy all the reasons set forth in

Almendarez-Torres, Jones, and Apprendi

why prior convictions may be employed to

increase the maximum punishment for a

subsequent adult offense without the need

for jury findings in the later case. Like

prior adult criminal convictions, such prior

juvenile judgments do not involve facts

20

about the current offense that were

withheld from a jury in the current case,

but instead concern the defendant’s

recidiuism—1.e., his or her status as a

repeat offender—a basis on which courts,

acting without juries, traditionally have

imposed harsher sentences. Moreover, the

prior criminal misconduct establishing this

recidivism was previously and reliably

adjudicated in proceedings that included

all the procedural protections’ the

Constitution - requires for such

proceedings—indeed, every’ substantial

safeguard required in an adult criminal

trial except the right to a jury. Use of such

reliably obtained juvenile judgments of

prior criminality to enhance later adult

sentences does not offend an adult

defendant’s constitutional right to a jury

trial in an adult criminal proceeding.

Conversely, it makes little sense to

conclude, under Apprendt, that a judgment

of juvenile criminality which the

Constitution deemed fair and _ reliable

enough, when rendered, to _ justify

confinement of the minor in a correctional

institution is nonetheless constitutionally

inadequate for later use to establish the

same individual's recidivism as the basis

for an enhanced adult sentence. Such a

determination would preclude a rational

and probative basis for increasing an adult

offender’s sentence—that he or she was not

deterred from criminal behavior by a

youthful brush with the law—unless

juveniles were afforded a right to a jury

trial, which the Constitution does not

requtre.

Nguyen, 46 Cal. 4th at 1021-22, 209 P.3d at 955.

3. The Ninth Circuit is the only federal circuit

court to disapprove the use of juvenile adjudications

as proof of recidivism in light of Apprendi.

Concluding that juvenile adjudications fall outsid:

the Almendarez-Torres exception for — prior

convictions, a divided panel in United States v. Tighe,

266 F.3d 1187 (9th Cir. 2001), relied on the dicta

from Jones, 526 U.S. 227, discussed above, to reason

that “a prior conviction must itself have been

established through procedures satisfying the fair

notice, reasonable doubt and jury trial guarantees.”

Tighe, 266 F.3d at 1193 (quoting Jones, 526 U.S. at

249).

Tighe does not conflict with the California

Supreme Court’s decision in Nguyen in any way that

requires this Court’s intervention. The Ninth Circuit,

acknowledging Tighe is not compelled by clearly

established law of this Court, denies petitions for

habeas corpus’ raising Apprendi challenges to

California’s Three Strikes law. See Boyd v. Newland,

467 F.3d 1139, 1152 (9th Cir. 2006).

4. Five other federal circuits reject Tighe and

hold that nonjury juvenile adjudications are

competent proof of recidivism. See United States v.

Matthews, 498 F.3d 25, 35 (1[st Cir. 2007); United

States v. Jones, 332 F.3d 688, 696 (3rd Cir. 2003);

United States v. Crowell, 493 F.3d 744, 749-51 (6th

Cir. 2007); United States v. Smalley, 294 F.3d 1030,

1033 (8th Cir. 2002); United States v. Burge, 407 F.3d

1183, 1187-1191 (11th Cir. 2005).

5. Like the California Supreme Court, most

state supreme courts considering the issue have

found no constitutional barrier to the use of nonjury

juvenile adjudications as sentencing factors. See

Ryle v. State, 842 N.E.2d 320, 321-23 (Ind. 2005);

State v. Hitt, 273 Kan. 224, 42 P.3d 732, 740 (2002);

State v. McFee, 721 N.W.2d 607, 615-18 (Minn. 2006);

and State v. Weber, 159 Wash. 2d 252, 255, 149 P.3d

646, 649-53 (2006).

In State v. Harris, 339 Ore. 157, 118 P.3d 236,

238-46 (2005), the Oregon Supreme Court held

juvenile adjudications can increase sentences for

adult felons so long as a jury is available to find the

prior juvenile adjudication in the current case. Given

sections 1025 and 1158, California’s Three Strikes

law would satisfy the Oregon Supreme Court’s

requirements.

6. In the teeth of an array of federal and state

decisions contrary to his position, petitioner places

principal reliance on State v. Brown, 879 So. 2d 1276,

1281-90 (La. 2004). See, e.g., Pet. at 17-18. However,

the Louisiana Supreme Court there found juvenile

adjudications not to constitute an adjudication of

crime as a matter of state law. In light of the

Louisiana Constitution’s requirement of the right to

a jury trial as a prerequisite to a criminal conviction,

the court stated “[iJt would be incongruous and

illogical to allow the non-criminal adjudication of a

juvenile delinquent to serve as a criminal sentencing

enhancer.” Brown, 879 So. 2d at 1289. Brown’s

reasoning is, of course, not a representation of the

Louisiana Supreme Court’s view of the Sixth and the

Fourteenth Amendments.

7. Repudiating petitioner’s primary argument

for certiorari, this survey reflects no significant

conflict among the federal or state supreme courts on

the question presented. For many years, nonjury

juvenile adjudications have been deemed

constitutionally valid indicators of an adult criminal

defendant’s recidivist behavior by federal and state

courts. See Consideration of Accused’s Juvenile

Court Record in Sentencing for Offenses Committed

as an Adult, 64 A.L.R. 3d 1291 (1975) (the practice of

considering prior juvenile adjudications at sentencing

has long been accepted); 18 U.S.C. § 5038 (a)(2)

(considering juvenile adjudications at sentencing

authorized by the Federal Youth Corrections Act);

see also Oregon v. Ice, __ U.S. __, 129 S. Ct. 711, 713

(2009) (in deciding whether Apprendi should be

extended, Court considers “{t]hese two

considerations—historical practice and respect for

state sovereignty’). The California Supreme Court’s

judgment in Nguyen represents no breach in Sixth

Amendment jurisprudence, but rather a

reaffirmation of established principles found in

numerous earlier decisions of federal and state

courts.

8. Equally as important, any variance between

lower courts’ views on this issue cannot be resolved

effectively here in light of distinguishing features of

California law. Notably, Tighe, Smalley, Jones,

Burge, and Crowell concerned sentencing under the

Armed Career Criminal Act. 18 U.S.C. § 924(e)

(“ACCA”). That statute, unlike California law (see §§

1025, 1158), provides no right to a jury trial on the

question of whether the defendant has suffered a

prior conviction used to enhance the sentence. Just

as no jury right attaches to an allegation of a prior

juvenile adjudication used for sentence enhancement

in those federal circuit decisions, no right to jury trial

on the fact of a prior juvenile adjudication exists

under the laws upheld in the cited state supreme

court decisions.

To the extent any tension appears among the

decisions, it principally concerns not whether a prior

juvenile adjudication is competent proof of

recidivism, but whether a criminal defendant has the

right to a jury determination of the fact of a prior

juvenile adjudication. Because petitioner enjoyed a

jury-trial right on precisely that issue, certiorari in

this case would not resolve those tensions.

More generally, state-created jury trial rights

like California’s are both unique and obviate

concerns over the use of prior juvenile adjudications

to enhance criminal sentences. The question

presented seems more naturally and cleanly decided

in cases from jurisdictions not affording such a right

to criminal defendants.

IV. THE DUE PROCESS CLAIM, THAT FELONS

WITH PRIOR WARDSHIP ADJUDICATIONS

FOR VIOLENT OR SERIOUS FELONIES ARE

TREATED UNFAIRLY BY THE THREE

STRIKES LAW, DOES NOT WARRANT

CERTIORARI

1. Petitioner asserts that California dealt with

him unfairly by considering his prior wardship

adjudication as evidence of his recidivism. He avers:

“To provide minors with fewer procedural safeguards

in the name of rehabilitation and then to use

adjudications so obtained to punish them more

severely as adults would be ‘contradictory and

fundamentally unfair.’ [Citations.]” Pet. at 25-26;

see also Pet. at 35 (“The application of habitual

offender statutes to juveniles is unfair because this

Court has recognized that they are ‘categorically less

culpable than the average criminal”). To the extent

petitioner seeks to frame a Fourteenth Amendment

Due Process claim, he provides no basis for certiorari.

2. The Court has “defined the category of

infractions that violate “fundamental fairness” very

narrowly’ based on the recognition that, ‘[b]leyond the

specific guarantees enumerated in the Bill of Rights,

the Due Process Clause has limited operation.’

[Citations.]” Medina v. California, 505 U.S. 437, 443

(1992). In an earlier wardship case, the State

deemed petitioner fit to be dealt with under the

juvenile court law, rather than under the criminal

law, for his commission of a serious felony. That was

no assurance the resulting wardship adjudication

could never be used to increase punishment in

criminal court if petitioner as an adult reoffended.

Nor did the State assure petitioner that his

wardship adjudication would not be deemed criminal

in nature. California's Three Strikes law was

enacted by legislation and voter initiative in 1994.

See People v. Hazelton, 14 Cal. 4th 101, 104-05, 926

P.2d 423, 424-25 (1996). The law increases the

maximum sentence for a felony offense upon proof

that the defendant has suffered one or more

qualifying “prior felony convictions’—a term that

specifically includes certain wardship adjudications

for felony sustained by a minor sixteen years or older

under the juvenile court law. §§ 667(d)(3),

1170.12(b)(3); Nguyen, 46 Cal. 4th at 1010, 209 P.3d

at 947.

Petitioner committed the felony that led to his

juvenile wardship adjudication in 1999. C.T. 6-8.

The Three Strikes law was an established part of

California law and clearly stated that a juvenile

wardship adjudication for a violent or serious felony

can be used as a strike under circumstances specified

in that law. §§ 667(d)(3), 1170.12(b)(3). Thus,

California broke no guarantee to petitioner that his

juvenile wardship adjudication would not be deemed

evidence of recidivism in criminal court.

The State has dealt with wards like petitioner

fairly. As an adult, petitioner has forsaken the

leniency shown him earlier by the juvenile court-

thus subjecting himself to the laws attendant to the

criminal court, including the Three Strikes law. If

any representation was made to petitioner in his

juvenile case respecting recidivism, it was that the

adjudication could be used to subject him to a

harsher adult sentence if he reoffended because his

wardship was for a serious felony meeting the

definition of a strike.

3. Just as the State never promised continued

lenient treatment to petitioner if he reoffended as an

adult, no evidence exists that the use of his wardship

adjudication as proof of recidivism works unfairness.

The state is not punishing petitioner more harshly

for his juvenile offense. The Three Strikes law

imposes no punishment for past juvenile conduct,

only for the current crime, due to the felon’s habitual

criminality. is the California Supreme Court

explains:

If the parens patriae features of the

juvenile justice system have succeeded in

rehabilitating a youthful offender, all well

and good. But if the person was not

deterred, and thus reoffends as an adult,

this recidivism is a highly rational basis

for enhancing the sentence for the adult

offense

Nguyen, 46 Cal. 4th at 1023, 209 P.3d at 956.

4. Nguyen rejected a free-standing due process

challenge to the Three Strikes law. The court

correctly found that the claim is based on state

statutory law, not on federal constitutional grounds.

It also found that the argument ignores the clear

intent of the People of California, expressed through

the adoption of the Three Strikes law, to consider

certain specified juvenile adjudications as evidence of

recidivism making the recidivist subject to harsher

punishment.

Amici curiae ... argue that to allow the

use of juvenile adjudications to enhance

later adult sentences “is inconsistent with

the purpose of juvemle court § and

disregards California’s carefully drawn

boundaries between juvenile and adult

court jurisdiction.” This argument,

essentially based on nonconstitutional

state law, overlooks the express provision

in California’s Three Strikes law that

certain serious prior juvenile adjudications

shall be deemed “prior convictions”

available for adult sentence enhancement

(88 667, subd. (d)(3), 11070.12, subd.

(b)(3).)

Nguyen, 46 Cal. 4th at 1025 n.12, 209 P.3d at 958

n.12. As a state law claim, petitioner's “fairness”

challenge is not cognizable and provides no basis for

certiorari

5 Even if viewed as a constitutional due

process argument, petitioner's claim provides no

sound basis for certiorari. “The Bill of Rights speaks

in explicit terms to many aspects of criminal

procedure, and the expansion of those constitutional

guarantees under the open-ended rubric of the Due

Process Clause invites undue interference with both

considered legislative judgments and the careful

balance that the Constitution strikes between liberty

and order.” Medina, 505 U.S. at 443. Hence, the Due

Process Clause is violated only if the state procedure

“offends some principle of justice so rooted in the

traditions and conscience of our people as to be

ranked fundamental.” Jd. at 446 (citing Patterson v.

New York, 432 U.S. 197, 202 (1977)).

Petitioner fundamentally rests his challenge to

the use of prior wardship adjudications as proof of

recidivism in criminal cases on the particularized

statutory rehabilitative goals underlying a wardship

adjudication. Undoubtedly, the goal of rehabilitation

and reformation of the individual is one reason,

among others, justifying the nonjury feature of a

wardship adjudication. That wardship adjudications

further the goal of rehabilitation, however, does not

mean that they are incompetent proof of recidivism

when the defendant fails to take advantage of the

leniency offered and reoffends. A grant of probation

also carries with it the goal of rehabilitation. Yet, it

cannot be said that it offends due process to consider

a defendant’s failure under such a rehabilitative

program in evaluating an appropriate sentence in a

later criminal case. Both the juvenile and probation

systems provide benefits for those who are successful

and fulfill the promise for which the systems are

designed. The rehabilitative goal of the systems,

however, does not insulate the underlying criminal

conduct from future scrutiny when the defendant

fails to meet that goal.

As this claim falls well outside both the

jurisprudence of this Court and the recognized

restrictions placed on the States by the Due Process

Clause, and there is no conflict of decisions

concerning the point, certiorari is unnecessary.

V. PETITIONER’S ADMISSION OF THE STRIKE

OFFENSE IN. JUVENILE COURT RENDERS

CERTIORARI INAPPROPRIATE

1. In Blakely, 542 U.S. 296, this Court held that

the statutory maximum for Apprendi purposes is the

maximum sentence that a court can mmpose without

finding any additional facts. Jd. at 303-04. Juries,

and not judges, must determine additional facts that

could permit a sentence above the standard range for

a particular offense. The Court noted, however, that

a defendant may admit those facts, thereby waiving

his Apprendi rights. “When a defendant pleads

guilty, the State is free to seek a judicial sentence

enhancement so long as the defendant either

stipulates to the relevant facts or consents to judicial

factfinding.” Jd. at 310; see also id. at 303 (“the

‘statutory maximum’ sentence for Apprendi purposes

is the maximum sentence a judge may impose solely

on the basis of the facts reflected in the jury verdict

or admitted by the defendant”); Apprend1, 530 U.S. at

488 (noting that Almendarez-Torres failed to

challenge the accuracy of the prior conviction

allegations, alleviating the constitutional tension

that might otherwise exist by the use of his priors to

enhance his sentence had the facts been contested).

2. Here, petitioner admitted in the juvenile

court the conduct alleged in the juvenile delinquency

petition. Nguyen, 46 Cal. 4th at 1013, 209 P.3d at

949 (“The court file in the 1999 juvenile matter

indicates, among other things, that the defendant

there admitted to a violation of section 245,

subdivision (a)(1)”.)6 Thus, he admitted the relevant

facts of the serious felony offense were those alleged

by the State.

3. Petitioner asserts that this Court should

disregard his admission because he did not have a

jury-trial right to waive when he admitted the

6 As stated, ante, n.2, because the documents submitted

to prove petitioners prior juvenile adjudication became

unavallable, the California Court of Appeal “took judicial notice

of the juvenile court file.” Nguyen, 46 Cal. 4th at 1013, n.4, 209

P.3d at 1013, n.4. As petitioner did not move to make the

juvenile court file a part of the record on appeal (and respondent

does not have a copy of it), the record deficiency, and any

questions it may leave unanswered regarding the juvenile court

proceedings, reinforces the unsuitability of this case for

certiorari.

allegation in the California Juvenile Court. Pet. at

27-28. Petitioner also suggests that a juvenile’s

admission of criminal conduct “is arguably less

reliable” than an adult’s. Pet. at 29. His contention

unjustifiably overlooks his waiver of his

constitutional rights to a contested factual hearing

before entering his admission in the juvenile

proceeding—a proceeding that meets all

constitutional requirements for a valid judgment.

Petitioner’s admission of the allegation released

the prosecution in the juvenile-court proceeding from

the obligation of proving the truth of the conduct

underlying the adjudication. That constitutionally

established the fact of a prior conviction qualifying as

a strike in the instant criminal case. Petitioner

should not be heard to claim this Court must ignore

his admission some five years ago and now require

the prosecution to prove the conduct underlying his

juvenile adjudication in a separate trial in criminal

court that is neither designed nor intended for that

purpose. Notwithstanding petitioner's admission of

the allegation, California provided him = an

opportunity to challenge the juvenile’ court's

adjudication of wardship by direct appeal. See Cal.

Welf. & Inst. Code § 800. Petitioner cannot be

allowed to wait until the juvenile adjudication is

alleged as a recidivist factor before challenging its

validity. Cf. Custis v. United States, 511 U.S. 485,

486 (1994) (with the sole exception of convictions

obtained in violation of the right to counsel, a

defendant in a federal sentencing proceeding has no

right to collaterally attack the validity of previous

state convictions used to enhance an ACCA

sentence).

Petitioner not only had admitted the underlying

conduct alleged in juvenile court, he has waived his

statutory right to a jury trial on the issue of his prior

wardship adjudication in criminal court. Petitioner

has waived any jury-trial right that Apprendi might

afford as a prerequisite to the use of his prior

juvenile adjudication to increase his sentence. Thus,

certiorari in this case 1s unwarranted.

VI. CERTIORARI SHOULD BE DENIED

BECAUSE A SENTENCE REDUCTION IS

IMPROBABLE UNDER CALIFORNIA’S

REFORMED SENTENCING LAW

1. Petitioner’s current sentence is below the

statutory maximum for the crime he committed. The

improbability of a favorable ruling benefiting him

further supports the denial of certiorari.

2. When petitioner was sentenced, the prison

terms available for possession of a firearm by a felon

were sixteen months, two years, or three years. §§

18, 12022.1(a)(1); see also Nguyen, 46 Cal. 4th at

1014, 209 P.3d at 950. The trial court chose the low

term—sixteen months—and doubled it to thirty-two

months based on the prior strike under the Three

Strikes law. Nguyen, 46 Cal. 4th at 1014, 209 P.3d at

949-50.

Petitioner was sentenced in 2005 under

California’s original determinate sentencing scheme

in which the middle term was the presumed

maximum term. See Nguyen, 46 Cal. 4th at 1014,

n.6, 209 P.3d at 950, n.6. After Cunningham v.

California, 549 U.S. 270 (2007), the California

Legislature amended the sentencing scheme _ to

eliminate that presumption and to grant the trial

court discretion—considering aggravating and

mitigating circumstances—to select among the three

terms specified by statute for the offense. See People

v. Sandoval, 41 Cal. 4th 825, 843-45, 161 P.3d 1146,

1158-59 (2007). Under Sandoval, the maximum term

for Apprendi purposes in cases like petitioner’s is

three years, not two years.

3. Were petitioner to succeed in this Court, his

case would be remanded for resentencing. Consistent

with Apprendi and Sandoval, the California Superior

Court could rely on petitioner’s juvenile court record

under the Three Strikes law to reimpose the doubled

mitigated term of 32 months because that sentence is

below the three-year maximum for the crime of which

petitioner was convicted. Cf. United States v. Booker,

543 U.S. 220 (2005) (permitting enhancements based

on judge-found facts with advisory federal sentencing

guidelines).

For this additional reason, petitioner’s case 1s a

poor vehicle to resolve the sentencing claim he

presents.

CONCLUSION

The petition for writ of certiorari should be

denied.

Dated: February 2, 2010

Respectfully submitted,

EDMUND G. BROWN JR.

Attorney General of California

DANE R. GILLETTE

Chief Assistant Attorney General

GERALD A. ENGLER

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy State Solicitor General

RENE A. CHACON

Supervising Deputy Attorney General

LAURENCE K. SULLIVAN

Supervising Deputy Attorney General

Counsel of Record

ERIC D. SHARE

Deputy Attorney General

Counsel for Respondent

SF2010200031

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