People v. Bowden

• Decision Date: 24 September 2002
• Docket Number: No. B151167.,B151167.
• Citation: 102 Cal.App.4th 387,125 Cal.Rptr.2d 513
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James A. BOWDEN et al. Defendants and Appellants.

125 Cal.Rptr.2d 513

102 Cal.App.4th 387

The PEOPLE, Plaintiff and Respondent, v. James A. BOWDEN et al. Defendants and Appellants.

No. B151167.

Court of Appeal, Second District, Division 4.

September 24, 2002.

Certified for Partial Publication^*

Rehearing Denied Oct. 15, 2002.

Review Denied Dec. 11, 2002.^**

Jeffrey H. Leo, under appointment by the Court of Appeal, for Defendant and Appellant James Bowden.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant Vacarro Webster.

David A. Kay, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Antwon Tennant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Ronald A. Jakob and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

CHARLES S. VOGEL, P.J.

INTRODUCTION

Appellants James A Bowden, Antwon L. Tennant, and Vacarro Webster were convicted by jury trial of committing residential burglary, home invasion robbery, and false imprisonment of two of the residents by violence or menace. The jury also made firearm findings, and the court found true that Tennant suffered a prior juvenile court adjudication qualifying as a "strike" under the "Three Strikes" law and also served a prior prison term.

The parties raise numerous contentions. All three appellants contend the trial court inadequately investigated juror misconduct, the evidence is insufficient to show false imprisonment by violence or menace as to the second victim, and the trial court misinstructed the jury in four ways. Tennant raises an individual issue concerning failure to advise him that he had a right to testify. Each appellant raises a sentence issue individual to him, and the Attorney General also asserts the court failed to strike or impose sentence for Tennant's prior prison term and awarded excess credits to all three appellants. We remand for resentencing of Tennant on his prior prison term and modify the awards of credit to Bowden and Webster. Otherwise we affirm, finding no merit to the other contentions.

In the published portion of this opinion, immediately following this introduction, we uphold the trial court's finding that Tennant suffered a prior "strike" within the meaning of the "Three Strikes" law (Pen. Code, § 667, subds.(b)-(i)) based on a prior juvenile adjudication that Tennant committed robbery. We hold the prosecution was not required to prove the prior robbery was committed while armed with a dangerous or deadly weapon, because the present crimes were committed after the initiative measure known as Proposition 21 deleted that requirement in former Welfare and Institutions Code section 707, subdivision (b) and changed the cutoff date otherwise provided in Penal Code section 667, subdivision (h). (People v. James (2001) 91 Cal.App.4th 1147, 111 Cal.Rptr.2d 292.) We also hold the fact Tennant had no right to a jury trial when he suffered the prior adjudication in juvenile Court does not prevent using the prior juvenile adjudication as a strike; on this point we adhere to People v. Fowler (1999) 72 Cal.App.4th 581, 84 Cal.Rptr.2d 874, and reject the reasoning of United States v. Tighe (9th Cir.2001) 266 F.3d 1187.

TENNANT'S PRIOR JUVENILE ADJUDICATION

The court found true as alleged against Tennant under the Three Strikes law (Pen.Code, § 667, subds.(b)-(i)) that Tennant suffered a prior adjudication as a juvenile that qualified as a strike, and the court sentenced Tennant as a second strike offender. The prosecution's proof of the prior juvenile adjudication showed the juvenile court found Tennant committed robbery.

To qualify as a strike the offense previously adjudicated in juvenile court must be one listed in Welfare and Institutions Code section 707, subdivision (b). (Pen.Code, § 667, subd. (d)(3)(D); People v. Garcia (1999) 21 Cal.4th 1, 15, 87 Cal.Rptr.2d 114, 980 P.2d 829.) Formerly Welfare and Institutions Code section 707, subdivision (b)(3) listed "robbery while armed with a dangerous or deadly weapon." (Italics added.) The parties agree the proof presented by the prosecution failed to show the prior robbery was committed while Tennant was armed with a dangerous or deadly weapon. However, Welfare and Institutions Code section 707, subdivision (b) was amended by initiative measure (Proposition 21) on March 7, 2000, to delete the armed requirement. As amended, Welfare and Institutions Code section 707, subdivision (b)(3) lists simply "robbery." The present offenses were committed on December 6, 2000, after the amendment.

The Three Strikes law provides in Penal Code section 667, subdivision (h): "All references to existing statutes in subdivisions (c) to (g), inclusive, are to statutes as they existed on June 30, 1993." Tennant contends that because Welfare and Institutions Code section 707, subdivision (b)(3), as it existed on June 30, 1993, required proof that robbery was committed while armed with a dangerous or deadly weapon, the evidence is insufficient to support the finding that Tennant suffered a prior strike.

However, the March 7, 2000 initiative measure also modified the cutoff date of the Three Strikes law. It added Penal Code section 667.1, which provides: "Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act [the March 7, 2000 initiative], all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act."¹ (Italics added.)

Because the March 7, 2000 initiative measure both (1) changed the cutoff date in the Three Strikes law and (2) changed Welfare and Institutions Code section 707, subdivision (b) to include simple robbery, and the present crimes were committed after the March 7, 2000 amendments, the prosecution's proof that Tennant suffered a prior juvenile adjudication of simple robbery is sufficient to prove the strike. People v. James, supra, 91 Cal.App.4th 1147, 111 Cal.Rptr.2d 292, controls. It holds: "sections 667.1 and 1170.125 require that, if the current offense was committed on or after March 8, 2000, a determination whether a prior conviction alleged as a serious felony is a prior strike must be based on whether the prior offense resulting in that conviction was a serious felony within the meaning of the three strikes law on March 8, 2000." (Id, at p. 1151, 111 Cal.Rptr.2d 292.) This application of the March 7, 2000 initiative measure does not constitute an ex post facto law. (Ibid.)

Tennant contends that to give effect to the amendment in the case of a prior juvenile offense that was not listed in Welfare and Institutions Code section 707, subdivision (b) at the time it was committed would be unconstitutional, citing Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and United States v. Tighe, supra, (9th Cir.2001) 266 F.3d 1187. By relying on these cases he in effect makes the broader contention that because a person previously tried as a juvenile had no right to a jury trial in juvenile court, the prior juvenile adjudication cannot constitutionally be treated as a prior conviction for the purpose of the Three Strikes law. There is no merit to this contention.

Prior to Apprendi and Tighe, this contention was rejected by People v. Fowler, supra, 72 Cal.App.4th 581, 84 Cal.Rptr.2d 874. The Three Strikes law includes designated prior juvenile court adjudications as strikes. (Id, at pp. 584-585, 84 Cal. Rptr.2d 874; Pen.Code, § 667, subd. (d)(3).) In Fowler the defendant argued, like Tennant, that a prior juvenile court adjudication cannot be used as a strike because the juvenile had no right to a jury trial when the juvenile offense was adjudicated. The Fowler court rejected the argument. It stated, "It is settled that while certain constitutional protections enjoyed by adults accused of crimes also apply to juveniles (e.g., notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination, double jeopardy, proof beyond a reasonable doubt), `... the Constitution does not mandate elimination of all differences in the treatment of juveniles.' [Citation.] Thus, juveniles enjoy no state or federal due process or equal protection right to a jury trial in delinquency proceedings. [Citations.] [¶] ... [¶] 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], [91 S.Ct. 1976, 29 L.Ed.2d 647])—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." (People v. Fowler, supra, 72 Cal.App.4th at pp. 585-586, 84 Cal.Rptr.2d 874, fn. omitted.)

In Apprendi v. New Jersey, supra, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, a jury convicted the defendant of possession of a firearm, a second degree offense punishable by 5-10 years' imprisonment, and the sentencing judge, by a preponderance of evidence, found as a sentencing factor that the defendant committed the offense as a racial hate crime, which increased the punishment to 10-20 years, the same as if the jury had convicted the defendant of a third degree offense. The Supreme Court 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." (Id. at p. 490, 120 S.Ct. 2348,...