[1075] Opinion
PERLUSS, P. J.
Johnell Wyne Smith was convicted after a jury trial of residential burglary. The jury also found true the special allegation that Smith had suffered two prior juvenile adjudications for robberies committed when he was 16 years old.1 Based on the jury’s findings, Smith was sentenced as a third strike offender to an aggregate term of 30 years to life in state prison.
Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) and United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe), Smith’s sole contention on appeal is that it was unconstitutional to sentence him under California’s “Three Strikes” law based on his prior juvenile adjudications because he was denied the right to a jury trial in the juvenile court proceedings.2
We believe Smith’s argument misapprehends Apprendi and Tighe and hold, as has Division Four of our court in People v. Bowden (2002) 102 Cal.App.4th 387 [125 Cal.Rptr.2d 513] (Bowden), that a juvenile adjudication may be used as a strike to enhance an adult offender’s sentence notwithstanding the absence of the right to a jury trial in delinquency proceedings.
I. Apprendi and Tighe Concern the Appropriate Allocation of Fact-Finding Responsibilities Between Judge and Jury, Not the Nature or Scope of Sentence Enhancement Factors
In Apprendi the United States Supreme Court invalidated a New Jersey “hate crime” statute that provided for an “extended term” of between 10 and [1076]*107620 years of imprisonment if the trial judge found, by a preponderance of the evidence, that certain felonies were committed “ ‘with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’ ” (Apprendi, supra, 530 U.S. at pp. 468-469.) The defendant had been convicted of two counts of possession of a firearm for an unlawful purpose, which had a sentencing range of five to 10 years. He was sentenced on one of those counts. Acting under the hate crime statute, the trial court found the defendant had intended to intimidate his victims because of their race and added another 12 years to the defendant’s sentence. The Apprendi court treated the crime, together with its sentence enhancement, as the “functional equivalent” of a single “greater” crime and held the federal Constitution requires that all elements of a crime must be submitted to a jury and proved beyond a reasonable doubt. “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.” (Id. at p. 490.)
The California Supreme Court has succinctly explained Apprendi in the following terms: “This is what Apprendi teaches us: Except for sentence enhancement provisions that are based on a defendant’s prior conviction, the federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the ‘prescribed statutory maximum’ punishment for that crime. [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [109 Cal.Rptr.2d 851, 27 P.3d 739].)
In Tighe the Ninth Circuit considered both facial and as-applied constitutional challenges to a provision of the Armed Career Criminal Act (18 U.S.C. § 924(e)) (ACCA), which mandates a minimum sentence of 15 years for any person who violates the federal felon-in-possession statute and who has three prior convictions for violent felonies or serious drug offenses. After affirming the district court’s holding that ACCA is constitutional on its face, a divided panel held that prior juvenile adjudications do not fall within the “fact of a prior conviction” exception to Apprendi’s general rule that all elements used to increase a defendant’s maximum penalty must be submitted to a jury and proved beyond a reasonable doubt. (Tighe, supra, 266 F.3d at p. 1194.)
In reaching this result, the Tighe court emphasized language from Jones v. United States (1999) 526 U.S. 227, 249 [143 L.Ed.2d 311, 119 S.Ct. 1215], a case which preceded Apprendi; “ ‘One basis for that constitutional distinctiveness [of prior convictions] is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense ... a prior [1077] conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees.’ [Citation.] Thus, Jones’ recognition of prior convictions as a constitutionally permissible sentencing factor was rooted in the concept that prior convictions have been, by their very nature, subject to the fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to jury trial.” (Tighe, supra, 266 F.3d at p. 1193, italics omitted.) Because juvenile adjudications do not afford jury trials and, therefore, do not meet the standard of procedural protections described in Jones and Apprendi, the Ninth Circuit concluded juvenile adjudications are not within the prior conviction exception to Apprendi’s general rule. (Id. at p. 1194.)
Contrary to the suggestion of Smith and our dissenting colleague, the two-judge majority in Tighe did not hold that the fact of a prior juvenile adjudication could not be used to enhance an adult offender’s sentence or that in trying a new offense and seeking an ACCA enhancement the United States Attorney was required to present to the jury all the evidence that supported the earlier juvenile determination. Rather, Tighe held only that, under Apprendi, to enhance an adult offender’s sentence the fact of the prior juvenile adjudication must be presented to a jury and proved beyond a reasonable doubt. (Tighe, supra, 266 F.3d at pp. 1194-1195.)3 Indeed, the majority specifically acknowledged that “defendants might be prejudiced if their prior juvenile adjudications are presented to the jury,” but noted that the district courts could fashion procedures to mitigate any prejudice to the defendant. (Tighe, at pp. 1194-1195, fn. 5.)4
II. Juvenile Adjudications May Properly Be Considered “Strikes” Notwithstanding the Absence of Jury Trials in Delinquency Proceedings
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[1075] Opinion
PERLUSS, P. J.
Johnell Wyne Smith was convicted after a jury trial of residential burglary. The jury also found true the special allegation that Smith had suffered two prior juvenile adjudications for robberies committed when he was 16 years old.1 Based on the jury’s findings, Smith was sentenced as a third strike offender to an aggregate term of 30 years to life in state prison.
Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) and United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe), Smith’s sole contention on appeal is that it was unconstitutional to sentence him under California’s “Three Strikes” law based on his prior juvenile adjudications because he was denied the right to a jury trial in the juvenile court proceedings.2
We believe Smith’s argument misapprehends Apprendi and Tighe and hold, as has Division Four of our court in People v. Bowden (2002) 102 Cal.App.4th 387 [125 Cal.Rptr.2d 513] (Bowden), that a juvenile adjudication may be used as a strike to enhance an adult offender’s sentence notwithstanding the absence of the right to a jury trial in delinquency proceedings.
I. Apprendi and Tighe Concern the Appropriate Allocation of Fact-Finding Responsibilities Between Judge and Jury, Not the Nature or Scope of Sentence Enhancement Factors
In Apprendi the United States Supreme Court invalidated a New Jersey “hate crime” statute that provided for an “extended term” of between 10 and [1076]*107620 years of imprisonment if the trial judge found, by a preponderance of the evidence, that certain felonies were committed “ ‘with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’ ” (Apprendi, supra, 530 U.S. at pp. 468-469.) The defendant had been convicted of two counts of possession of a firearm for an unlawful purpose, which had a sentencing range of five to 10 years. He was sentenced on one of those counts. Acting under the hate crime statute, the trial court found the defendant had intended to intimidate his victims because of their race and added another 12 years to the defendant’s sentence. The Apprendi court treated the crime, together with its sentence enhancement, as the “functional equivalent” of a single “greater” crime and held the federal Constitution requires that all elements of a crime must be submitted to a jury and proved beyond a reasonable doubt. “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.” (Id. at p. 490.)
The California Supreme Court has succinctly explained Apprendi in the following terms: “This is what Apprendi teaches us: Except for sentence enhancement provisions that are based on a defendant’s prior conviction, the federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the ‘prescribed statutory maximum’ punishment for that crime. [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [109 Cal.Rptr.2d 851, 27 P.3d 739].)
In Tighe the Ninth Circuit considered both facial and as-applied constitutional challenges to a provision of the Armed Career Criminal Act (18 U.S.C. § 924(e)) (ACCA), which mandates a minimum sentence of 15 years for any person who violates the federal felon-in-possession statute and who has three prior convictions for violent felonies or serious drug offenses. After affirming the district court’s holding that ACCA is constitutional on its face, a divided panel held that prior juvenile adjudications do not fall within the “fact of a prior conviction” exception to Apprendi’s general rule that all elements used to increase a defendant’s maximum penalty must be submitted to a jury and proved beyond a reasonable doubt. (Tighe, supra, 266 F.3d at p. 1194.)
In reaching this result, the Tighe court emphasized language from Jones v. United States (1999) 526 U.S. 227, 249 [143 L.Ed.2d 311, 119 S.Ct. 1215], a case which preceded Apprendi; “ ‘One basis for that constitutional distinctiveness [of prior convictions] is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense ... a prior [1077] conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees.’ [Citation.] Thus, Jones’ recognition of prior convictions as a constitutionally permissible sentencing factor was rooted in the concept that prior convictions have been, by their very nature, subject to the fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to jury trial.” (Tighe, supra, 266 F.3d at p. 1193, italics omitted.) Because juvenile adjudications do not afford jury trials and, therefore, do not meet the standard of procedural protections described in Jones and Apprendi, the Ninth Circuit concluded juvenile adjudications are not within the prior conviction exception to Apprendi’s general rule. (Id. at p. 1194.)
Contrary to the suggestion of Smith and our dissenting colleague, the two-judge majority in Tighe did not hold that the fact of a prior juvenile adjudication could not be used to enhance an adult offender’s sentence or that in trying a new offense and seeking an ACCA enhancement the United States Attorney was required to present to the jury all the evidence that supported the earlier juvenile determination. Rather, Tighe held only that, under Apprendi, to enhance an adult offender’s sentence the fact of the prior juvenile adjudication must be presented to a jury and proved beyond a reasonable doubt. (Tighe, supra, 266 F.3d at pp. 1194-1195.)3 Indeed, the majority specifically acknowledged that “defendants might be prejudiced if their prior juvenile adjudications are presented to the jury,” but noted that the district courts could fashion procedures to mitigate any prejudice to the defendant. (Tighe, at pp. 1194-1195, fn. 5.)4
II. Juvenile Adjudications May Properly Be Considered “Strikes” Notwithstanding the Absence of Jury Trials in Delinquency Proceedings
Under California’s Three Strikes law a qualifying juvenile adjudication may be used as a strike to increase the sentence of an adult offender. [1078] (Pen. Code, §§ 667, subd. (d)(3), 1170.12, subd. (b)(3);5 People v. Garcia (1999) 21 Cal.4th 1, 4-5 [87 Cal.Rptr.2d 114, 980 P.2d 829].) The dissent argues the more critical inquiry for purposes of a jury determination is whether Smith actually engaged in the criminal conduct that gave rise to the prior adjudications, not whether he was adjudicated of having committed the offenses. However, nothing in Apprendi or the cases upon which it relied limits the Legislature’s authority to identify a prior juvenile adjudication involving a serious or violent offense or any other fact it deems reasonably relevant for purposes of imposing an increased sentence (see, e.g., People v. Flores (1986) 178 Cal.App.3d 74, 88 [223 Cal.Rptr. 465] [legislative determinations regarding length of punishment evaluated under rational basis standard]), provided the existence of the elements it has specified for sentence enhancement (other than a prior conviction) are submitted to a jury and found to exist beyond a reasonable doubt. (See People v. Sengpadychith, supra, 26 Cal.4th at p. 326.)
“[I]n our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments ... such questions are in the first instance for the judgment of the Legislature alone.” (In re Lynch (1972) 8 Cal.3d 410, 414 [105 Cal.Rptr. 217, 503 P.2d 921].) “The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will...” (Id. at p. 423.) “Reviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes” (Solem v. Helm (1983) 463 U.S. 277, 290 [77 L.Ed.2d 637, 103 S.Ct. 3001].)
In the Three Strikes law the Legislature chose to rely on the fact that the defendant, when 16 years of age or older, had been adjudicated to have committed a serious or violent offense (§§ 667, subd. (d)(3),6 1170.12, subd. (b)(3)). “A prior juvenile adjudication of a section 667, subdivision (d)(3)(B) offense demonstrates beyond a reasonable doubt [citation] that a defendant has engaged in serious criminal behavior in the past. By reoffending, a defendant shows he had failed to draw the proper lesson from the previous judicial determination that he violated the law. This failure [1079] warrants harsher punishment in the adult proceeding. [Citation.]” (People v. Fowler (1999) 72 Cal.App.4th 581, 587 [84 Cal.Rptr.2d 874].) A qualifying juvenile adjudication must be pleaded and proved beyond a reasonable doubt (§§ 1170.12, subd. (a), 667, subd. (c); People v. Tenner (1993) 6 Cal.4th 559, 566 [24 Cal.Rptr.2d 840, 862 P.2d 840] ), and the defendant has a statutory right to jury trial on the issue of whether he or she suffered the prior adjudication (§ 1025, subd. (b); see People v. Epps (2001) 25 Cal.4th 19, 26-27 [104 Cal.Rptr.2d 572, 18 P.3d 2]).7
“ ‘By enacting the three strikes law, the Legislature has ... simply ... said that, under specified circumstances, a prior juvenile adjudication may be used as evidence of past criminal conduct for the purpose of increasing an adult defendant’s sentence.... Since a juvenile constitutionally—and reliably (McKeiver v. Pennsylvania [(1971) 403 U.S. 528, 547] [29 L.Ed.2d 647, 91 S.Ct. 1976])—can be adjudicated a delinquent without being afforded a jury trial, there is no constitutional impediment to using that juvenile adjudication to increase a defendant’s sentence following a later adult conviction.’ ” (Bowden, supra, 102 Cal.App.4th at p. 392, quoting People v. Fowler, supra, 72 Cal.App.4th at pp. 585-586.)8
Accordingly, even if we were to adopt the Tighe majority’s analysis, there would be no error in this case. Smith was in fact afforded the right to have a jury determine the question whether he had sustained a prior qualifying adjudication under the Three Strikes law, and the jury found the allegation to be true. Indeed, Smith, testifying on his own behalf at trial, admitted the juvenile court had sustained a delinquency petition alleging he had committed two robberies.9 He cannot now complain that use of his prior juvenile adjudications violated Apprendi.
[1080] III. Any Unfairness in Continued Use of Juvenile Adjudications as Strikes Is Properly Addressed by the Legislature
Our dissenting colleague aptly describes the increasing convergence of the adult and juvenile justice systems. Even so, as Justice Kennard explained in her dissenting opinion in Manduley v. Superior Court (2002) 27 Cal.4th 537 [117 Cal.Rptr.2d 168, 41 P.3d 3], the purposes of the juvenile system and adult courts and the consequences of adverse determinations in adult and juvenile proceedings remain markedly different; “The juvenile court system and the adult criminal courts serve fundamentally different goals. The punishment for serious crimes tried in the criminal courts is imprisonment, and ‘the purpose of imprisonment for crime is punishment.’ [Citation.] California Rules of Court, rule 4.410 identifies seven objectives in sentencing a criminal defendant. They include punishment, deterrence, isolation, restitution, and uniformity in sentencing, but they do not include goals important in the treatment of juvenile offenders such as maturation, rehabilitation, or preservation of the family, [f] ... [f] The practical consequences are immense. An adult court may sentence a defendant to life imprisonment; a juvenile court cannot impose confinement beyond the age of 25. [Citations.] Adult convictions are public but juvenile commitments are sealed [citations], a difference that affects future employability and many other matters. Adult convictions are criminal in character, and may deprive the person convicted of the right to vote [citation], to serve on a jury [citation], to carry firearms [citation] and to enter certain professions (e.g., Gov. Code, § 1029 [peace officers]); juvenile convictions carry no such collateral consequences.” (Manduley, at p. 593 (dis. opn. of Kennard, J.).)10
The potential use of a juvenile adjudication as a strike under the Three Strikes law does not change the essential nature of juvenile proceedings or eliminate the significant differences between a finding of criminal guilt in an adult criminal court and a declaration of wardship by a juvenile court. (See In re Myresheia W. (1998) 61 Cal.App.4th 734, 741 [72 Cal.Rptr.2d [1081]*108165].) Nonetheless, in his dissenting opinion Justice Johnson forcefully describes the seeming injustice in classifying delinquency proceedings as something other than “criminal” trials for purposes of determining the offender’s right to a jury trial while also permitting the resulting declaration of wardship to be used as a prior felony conviction for purposes of sentence enhancement if the juvenile reoffends as an adult.
That sense of fundamental unfairness is all the more notable since the electorate’s approval in March 2000 of Proposition 21 (the Gang Violence and Juvenile Crime Prevention Act of 1998), which, among other significant changes to juvenile court law, authorizes prosecutors to file charges directly in adult criminal court, without a prior judicial determination the minor is unfit for a disposition under juvenile court law, against any minor who is 16 years of age or older who is accused of committing one of the serious or violent offenses listed in Welfare and Institutions Code section 707, subdivision (b). (Welf. & Inst. Code, § 707, subd. (d); Manduley v. Superior Court, supra, 27 Cal.4th at pp. 549-550.) In other words, at the time an accusatory pleading involving offenses that qualify as “strikes” is filed against a 16-year-old or 17-year-old offender, the prosecutor has the sole authority to determine whether to initiate the proceeding in adult criminal court or juvenile court—a decision that dictates, among other matters, whether or not the accused minor is entitled to a jury trial. Yet despite having decided to proceed against the minor in juvenile court, if the minor reoffends, the prosecutor remains free under the current version of the Three Strikes law to have the juvenile offense treated with the identical consequences as an adult conviction.11
Absent constitutional constraints, however, “when the Legislature has established policy, it is not for the courts to differ.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 851 [25 Cal.Rptr.2d 500, 863 P.2d 745]; see People v. Loeun (1997) 17 Cal.4th 1, 9 [69 Cal.Rptr.2d 776, 947 P.2d 1313].) Any meaningful response to the arguments advanced by Justice Johnson must come from the political branches of our state government.
[1082] DISPOSITION
The judgment is affirmed.
Munoz (Aurelio), J.