Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F1136
BLEASE, Acting P. J.
A jury found defendant Christopher Glenn Jimenez guilty of first degree burglary (Pen. Code, § 459). In a bifurcated proceeding, the trial court found true allegations defendant served three prior prison terms (§ 667.5, subd. (b)) and had a prior juvenile court adjudication that qualified as a strike. (§ 1170.12.) Defendant was sentenced to an aggregate term of 15 years in state prison, consisting of 12 years (the upper term of six years, doubled for the strike prior), plus one year for each of the three prison priors. (§ 667.5, subd. (b).)
All further section references are to the Penal Code.
Defendant appeals, contending (1) there is insufficient evidence to support his burglary conviction, (2) the trial court erred in using his prior juvenile adjudication to impose a second strike sentence, and (3) imposition of the upper term violates his right to due process under the Sixth and Fourteenth Amendments. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of October 4, 2004, Mary Koffard saw defendant, whom she did not know, walking through her fenced backyard. Koffard telephoned 911 and attempted to lock all of the doors to her home. She then decided to leave because she lost sight of defendant and feared he might attempt to enter her home.
Minutes later, Officers Steven Davis and Bruce Bonner with the Redding Police Department arrived. As Davis approached the front door, he heard the deadbolt being locked from the inside. He called for backup, and once the home was surrounded, he unlocked the front door with a key he obtained from Koffard and went inside. He found defendant lying on the couch in the living room. Defendant appeared to be “coming down from a . . . stimulant substance,” most likely methamphetamine.
After defendant was arrested, Koffard went back inside her home and found that the drawers and cabinets in the guest bathroom had been “rifled through.” She did not report anything missing.
Defendant’s car was found hidden in a field on the outskirts of the subdivision in which Koffard’s home was located.
Defendant did not testify at trial. His mother testified that she saw him around 11:00 a.m. on October 4, 2004, and believed he was under the influence of drugs at that time. She explained that he hallucinates and acts erratic and paranoid when he is under the influence of drugs. Defendant’s friend testified that she spoke with defendant on the evening of October 3, 2004, and believed he was under the influence of drugs at that time because he told her someone was after him. She said defendant acts “delusional, hallucinat[es], and [is] not himself” when he is under the influence of drugs. During closing arguments, defense counsel argued that defendant “ditched” his car in a field and entered Koffard’s home because he was “paranoid and on drugs,” not because he intended to take anything. He laid on the couch because he believed he was safe. He would not have done that if his intent was to take something.
DISCUSSION
I
Sufficiency Of The Evidence
Defendant contends there is insufficient evidence he “intended to commit theft when he entered the residence,” and thus, his conviction for first degree burglary must be reversed.
Section 459 provides that a person who “enters any house . . . with intent to commit . . . larceny or any felony is guilty of burglary.” The requisite intent must be present at the time of entry. (People v. Sparks (2002) 28 Cal.4th 71, 85, fn. 17.) “[T]he intent required for . . . burglary is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime.” (People v. Lewis (2001) 25 Cal.4th 610, 643.)
When the sufficiency of the evidence is challenged on appeal, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) A conviction will be reversed for insufficient evidence only if it “clearly appear[s] that upon no hypothesis whatsoever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Here, the evidence supports a reasonable inference that defendant intended to commit larceny at the time he entered the residence. After hiding his car in a field, defendant entered a stranger’s home in the middle of the afternoon and rifled through the drawers and cabinets in one of the bathrooms. When officers first approached the front door, defendant locked it. Although “[n]o property belonging to the Koffards was found in [defendant’s] possession”, the jury reasonably could have concluded defendant abandoned his plan to commit larceny once he realized the home was surrounded by police.
Thus, substantial evidence supports the jury’s finding that defendant intended to commit larceny when he entered Koffard’s home.
II
Prior Juvenile Adjudication as a “Strike”
Defendant next argues the trial court erred in using his prior juvenile adjudication to impose a two strike sentence because he “was not afforded the right to jury trial in his juvenile proceedings.”
As a preliminary matter, the People contend defendant forfeited this claim because he did not raise it in the trial court. Defendant disagrees, arguing any objection to the trial court’s use of his juvenile adjudication as a strike would have been futile under People v. Garcia (1999) 21 Cal.4th 1, 3, which held that a “prior [juvenile] adjudication does qualify as a strike if, in the prior juvenile proceeding, ‘[t]he juvenile was adjudged a ward of the juvenile court . . . because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.’ (§ 667, subd. (d)(3)(D), 1170.12, subd. (b)(3)(D).)” (Italics omitted.) Even assuming defendant did not forfeit his claim by failing to raise it below, it fails on the merits.
Defendant argues that pursuant to the Ninth Circuit’s decision in United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe), the use of a prior juvenile adjudication violated his rights under the Sixth and Fourteenth Amendments because the prior adjudication was not decided by a jury.
Tighe held that the trial court could not use a prior nonjury juvenile adjudication to increase the penalty beyond that authorized for the current offense alone. (Tighe, supra, 266 F.3d at pp. 1194-1195.) The Tighe majority based its decision on Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), which held that “[o]ther 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, supra, at p. 490 [at p. 455].) Tighe held that the Apprendi exception for prior convictions is limited to convictions, “obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt.” (Tighe, supra, 266 F.3d at p. 1194.)
Decisions of a lower federal court interpreting federal law are not binding on this court. (People v. Williams (1997) 16 Cal.4th 153, 190.) Moreover, California appellate courts, including this court, have rejected Tighe. (See People v. Linarez (2007) 155 Cal.App.4th 1393, 1399; People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 833-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1315-1316; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394.) Specifically regarding juvenile adjudications, California appellate courts have concluded that because a juvenile can be constitutionally adjudicated a delinquent without a jury trial, use of the juvenile adjudication to increase a defendant’s sentence is constitutional. (People v. Linarez, supra, 155 Cal.App.4th at p. 1399; Andrades, supra, 113 Cal.App.4th at pp. 830-831; People v. Lee, supra, 111 Cal.App.4th at p. 1316; People v. Bowden, supra, 102 Cal.App.4th at pp. 393-394.)
Moreover, courts have distinguished Tighe, noting that California’s three strikes law, unlike the federal sentencing law at issue in Tighe, requires that a prior conviction, including a prior juvenile adjudication, be proved beyond a reasonable doubt, and provides for the right to a jury trial on the issue of whether a defendant has suffered a prior conviction. (See Andrades, supra, 113 Cal.App.4th at pp. 833-834; People v. Lee, supra, 111 Cal.App.4th at p. 1316; People v. Bowden, supra, 102 Cal.App.4th at pp. 392-393.) These procedural safeguards satisfy the due process concerns expressed in Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435]. (Andrades, supra, 113 Cal.App.4th at pp. 833-834.)
Thus, the use of defendant’s prior juvenile adjudication to increase his sentence did not violate his constitutional rights.
III
Imposition Of The Upper Term
Finally, defendant asserts that imposition of the upper term violates his right to due process of law.
“[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)
In deciding to impose the upper term in this case, the trial court cited defendant’s numerous prior convictions, the fact he was on parole at the time of the underlying offense, and his prior unsatisfactory performance on parole and probation. The court found no circumstances in mitigation.
Defendant’s numerous prior convictions, as well as his parole status, are “based upon [his] record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816; United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820.) A defendant’s constitutional right to a jury trial is not violated by the trial court’s imposition of the upper term sentence where at least one aggravating circumstance was established by means that satisfy the requirements of the Sixth Amendment. (Black II, supra, 41 Cal.4th at p. 816.) Here, there were two such circumstances. Because either one of those circumstances rendered defendant eligible for the upper term sentence, “his Sixth Amendment right to jury trial was not violated by imposition of the upper term.” (Black II,at p. 820.)
To the extent defendant claims the trial court erred in relying on his prior convictions, which include juvenile adjudications, in deciding to impose the upper term, we recently rejected such a claim. (People v. Linarez, supra, 155 Cal.App.4th at pp. 1399.)
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J., NICHOLSON, J.