Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA339124 Craig E. Veals, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jamie L. Fuster and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Juan Carlos Lupercio appeals from the judgment entered following a jury trial that resulted in his convictions for felony child endangerment, inflicting corporal injury upon his children’s parent, and false imprisonment. Lupercio was sentenced to 19 years in prison.
Lupercio contends: (1) the evidence was insufficient to support one of his convictions for child endangerment; (2) the trial court violated the proscription on dual use of facts when it sentenced him to the upper term on one of the child endangerment counts; and (3) his prior juvenile adjudication for robbery did not qualify as a “strike, ” and the trial court therefore erred by denying his Romero motion. Discerning no error, we affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Lupercio and Donna B. had been dating for seven years, and had three children together. Their youngest, L., was born in April 2008, via Cesarean section. At that time their daughter E. was five years old, and their son A. was one.
Donna and newborn L. were discharged from the hospital on April 10, 2008. Lupercio was supposed to pick Donna and the baby up at the hospital and bring them home; he failed to show up. Instead, Donna’s sister gave the mother and infant a ride home. When Donna arrived at her apartment, Lupercio was not present. However, the television was on, the apartment was a mess, and it smelled as if Lupercio had been smoking rock cocaine in the living room. Donna had previously expressed disapproval of Lupercio’s cocaine habit and had remonstrated with him to cease using drugs. Despite the pain from her recent delivery, Donna cleaned the apartment and watched her three children without Lupercio’s help. Given the circumstances, Donna was angry with Lupercio.
Lupercio arrived home the next evening. His eyes were red and it appeared he had not slept. He said he needed to eat and sleep, and sat down to watch TV. Donna asked him for her state-issued electronic benefits transfer (“E.B.T.”) card through which she received public assistance. She needed the card so she could pay the rent, which was already overdue. Donna expressed her hope that Lupercio had not already used the card. He did not respond, leading her to believe he had spent the rent money. Angry, Donna told him to leave. He responded that he wished to shower and sleep. Donna hit him in the face, but he did not react.
Later that evening, Donna retreated to the bedroom where the children were. Eventually Lupercio entered the room and stood there, staring at her. She stated that he was annoying her and told him he had to leave. When he did not respond, Donna told him that she and the children would leave. As they were preparing to do so, Lupercio retrieved a knife with an 8- to 10-inch blade from the kitchen and returned to the bedroom. Donna asked what he was doing; again, he did not respond. Lupercio moved toward Donna, who was holding newborn L. in her arms. To scare Lupercio, Donna pounded on the window. Lupercio grabbed Donna’s collar and pushed the dresser next to which she was standing, causing the drawers to fall out. E., who was sitting on the bunk bed in the room, began to cry. Lupercio dragged Donna––who was still holding the baby––to the hallway. He placed Donna in a chokehold and yanked on her neck, causing L. to slip from her arms and fall to the floor, hitting his head. Donna called to E. to come get the baby, and both Donna and Lupercio told E. to call 911. E. picked up her newborn brother and stood in the living room, looking terrified. A. toddled after her. Thereafter, Lupercio dragged Donna back and forth between the kitchen, living room, and hall, keeping her in a chokehold, hitting her, holding the knife to various areas of her body, and “marking” her neck with the knife.
Firefighters arrived in response to E.’s 911 call. Although their knock went unanswered, from outside the apartment they could hear the couple arguing and Donna’s cries for help. Donna screamed that Lupercio was going to kill her. The firefighters summoned police. Through a window, they observed Lupercio still holding Donna in a headlock, waving a large knife about and pressing it to various areas of Donna’s body, including her neck, arms, and chest. Lupercio punched Donna in the stomach with his fist several times, cut her arm, and continued to drag her back and forth between the kitchen and living room. There was a considerable amount of blood on Donna, Lupercio, and throughout the apartment. The firefighters saw little E. crying and holding the baby, approximately 11 feet from her parents, with A. next to her. She appeared terrified and shocked. Lupercio yelled at her to come to him, saying “ ‘[E.], come here.’ ” The firefighters yelled and motioned to E. and A. to stay where they were and keep out of sight.
Concerned for the safety of Donna and the children, one of the firefighters cut a hole in the front door with an axe. Donna attempted to pull the door open, but Lupercio prevented her and continued punching her. She attempted to wrest the knife from him, cutting her hand in the process. Just as firefighters broke down the door, police officers arrived and entered the apartment. They repeatedly commanded that Lupercio drop the knife and release Donna. He refused. It appeared to one of the officers that Donna was losing consciousness. The officer decided the use of deadly force was warranted, and prepared to shoot; however, he could not get a clear shot because Lupercio was using Donna as a shield. A. attempted to come to the officers but they told him to stay in the living room and away from his father.
Lupercio continued to defy the officers’ repeated demands to release Donna and drop the knife. At some point, Lupercio pushed Donna to the floor and threw himself over her. One of the officers broke the kitchen window. As the glass shattered, Lupercio dropped the knife. Donna grabbed it and threw it toward the door, to place it out of Lupercio’s grasp. She managed to extricate herself from Lupercio as officers struck him with a baton. She fled toward another window, where she removed the screen and handed her children, one by one, through the window to waiting paramedics.
Four officers had difficulty arresting Lupercio, despite their use of a taser gun twice and repeated blows with their batons. The taser appeared to have little effect on Lupercio, who continued to be combative, breaking dishes in the apartment and kicking at “anything in sight, ” including the officers. Eventually he was subdued and arrested.
Donna and L. were transported to the hospital. Donna suffered bruises and cuts. L. had skull fractures on either side of his head, but it was unclear whether they were related to his fall to the floor. He spent a week in the hospital.
2. Procedure.
Trial was by jury. Lupercio was convicted of child abuse of L. and E. (Pen. Code, § 273a, subd. (a)), inflicting corporal injury on his children’s parent (§ 273.5, subd. (a)), and false imprisonment by violence (§ 236). The jury found Lupercio personally used a deadly and dangerous weapon in commission of the corporal injury offense (§12022, subd. (b)(1)). It found not true the allegation that Lupercio personally inflicted great bodily injury on L. Lupercio admitted a prior juvenile adjudication for a serious or violent felony (§§ 667, subds. (a), (b)-(i), 1170.12, subd. (a)-(d)) and serving two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced him to a term of 19 years in prison. It imposed court security assessments, a restitution fine, and a suspended parole restitution fine. Lupercio appeals.
All further undesignated statutory references are to the Penal Code.
A fifth count for resisting an executive officer was dismissed during trial.
DISCUSSION
1. The evidence was sufficient to support Lupercio’s conviction for felony child endangerment on count 2.
Lupercio asserts there was insufficient evidence to support his conviction on count 2, child endangerment of E. We disagree.
When determining whether the evidence was sufficient to sustain a criminal conviction, “we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence––that is, evidence that is reasonable, credible and of solid value––from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Snow (2003) 30 Cal.4th 43, 66; People v. Carrington (2009) 47 Cal.4th 145, 186-187; People v. Halvorsen (2007) 42 Cal.4th 379, 419.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 273a, subdivision (a), provides in pertinent part: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering... or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.”
Section 273a “encompasses a wide variety of situations and includes both direct and indirect conduct.” (People v. Burton (2006) 143 Cal.App.4th 447, 454; People v. Hansen (1997) 59 Cal.App.4th 473, 479.) A parent may be convicted of child endangerment under section 273a by engaging in serious domestic violence against the other parent while aware that his or her child is at the scene. (People v. Burton, supra, at p. 450.) When the defendant’s acts or omissions are likely to produce great bodily injury or death to the child, the offense is felony child endangerment (§ 273a, subd. (a)); otherwise, the offense is a misdemeanor (§ 273a, subd. (b)). (People v. Burton, supra, at p. 455; People v. Wilson (2006) 138 Cal.App.4th 1197, 1201.) Section 273a, subdivision (a), is satisfied when the child is placed in a situation where physical danger is reasonably foreseeable. (People v. Hansen, supra, at p. 479.) The statute does not require that serious injury is probable, or more likely than not. Instead, because the statute’s purpose is the protection of the lives of highly vulnerable children, for purposes of section 273a “ ‘likely’ ” means “a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death.” (People v. Wilson, supra, at pp. 1204-1205.)
When a charge of child abuse is based on the mental suffering resulting from a child being exposed to physical abuse by one parent against another, criminal negligence is the requisite mental state. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1441; People v. Burton, supra, 143 Cal.App.4th at p. 454; People v. Valdez (2002) 27 Cal.4th 778, 781.) Criminal negligence is defined as aggravated, culpable, or reckless conduct “that is such a departure from that of the ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for human life. [Citation.]” (People v. Burton, supra, at p. 454; People v. Valdez, supra, at p. 783.) Criminal negligence may be found even where the defendant believed in good faith that his actions posed no risk. (People v. Hansen, supra, 59 Cal.App.4th at p. 478.)
Applying the foregoing principles here, it is readily apparent that the evidence was sufficient. Based upon the undisputed evidence, the jury could have had no doubt that Lupercio’s actions resulted in E.’s unjustifiable mental suffering. Five-year-old E. was forced to witness her father’s attack with a knife and his fists on her mother. She likely observed her father punch her mother, who had undergone a Cesarean section days before, in the stomach, and saw him cut her with a knife. She saw her newborn brother dropped on his head as a result of her father’s actions and was called upon to rescue L. from the floor and call for help. She watched as authorities broke down her apartment door. She no doubt observed the copious amounts of blood on her parents and throughout the apartment. Testimony indicated she was crying, terrified, in a state of shock, and unsure what to do. Few things could have been more traumatic for a little girl than witnessing the events caused by Lupercio. Likewise, the evidence was sufficient to show Lupercio acted with criminal negligence, i.e., that his conduct was incompatible with a proper regard for human life. Lupercio knew his children were present and in close proximity when he attacked their mother with a knife and his fists. The attack on Donna was clearly willful. (See People v. Burton, supra, 143 Cal.App.4th at p. 454.)
Lupercio’s primary contention is that the evidence was insufficient to show his attack on Donna occurred under circumstances likely to produce great bodily harm to E. We disagree. Lupercio’s conduct exposed E. to a variety of serious physical dangers. The apartment was small, and E. was in close range while Lupercio attacked Donna and dragged her about the apartment. When firefighters arrived, E. was standing with A. and holding L. approximately 11 feet away from the spot where her father was restraining her mother in a chokehold, with a knife. Her close proximity to Lupercio’s attack clearly put her in harm’s way. Indeed, E. was called upon to pick up her baby brother at her parents’ feet at one point, and Lupercio later ordered her to come directly to him. His actions thus created a serious risk of great bodily harm to E.
It was also reasonably foreseeable, and likely, that E. would be placed in physical danger when authorities attempted to rescue her mother, or when her mother attempted to escape Lupercio’s clutches. Firefighters, attempting to get to Donna and the children, were forced to use an ax to cut a hole in the door. Firefighters and police officers broke down the front door. Another officer broke out one of the apartment windows. When Donna was finally able to break free, she grabbed the knife and threw it at the door. When one of the officers observed the attack on Donna, he believed deadly force was necessary and prepared to fire shots into the apartment. In their attempts to subdue Lupercio, officers used their batons and a taser gun, and contemplated using pepper spray. Police and firefighters were forced to engage in these actions because Lupercio failed to heed their commands to release Donna and drop the knife. Thus, due to Lupercio’s actions, E. was in close proximity to a physical altercation between her parents, breaking glass, ax blows, and a thrown knife. It was entirely likely that she would be exposed to gunshots or other force against her father, had officers gotten a clear shot, or had she heeded Lupercio’s command to come to him. That E. fortuitously avoided injury is not dispositive; actual injury is not an element of felony child endangerment. (People v. Valdez, supra, 27 Cal.4th at p. 784.)
Under these circumstances, the jury could reasonably conclude Lupercio’s conduct created a well-founded, foreseeable risk of great bodily harm to E. (See generally People v. Wilson, supra, 138 Cal.App.4th at pp. 1204-1205 [felony child endangerment where mother forced 10-year-old son to enter neighbor’s house through a bathroom window to assist her in burglary]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [felony child endangerment where flammable, caustic chemicals were left throughout the house where a six-year-old regularly visited]; People v. Hansen, supra, 59 Cal.App.4th at pp. 481-482 [felony child endangerment where a 34-year-old man encouraged his 14-year-old neighbor to play Russian roulette].) The evidence was sufficient.
2. The trial court did not commit sentencing error.
Lupercio next asserts that the trial court violated the prohibition on dual use of facts by using the same factors to impose both the upper term on count 3 and several sentence enhancements. Accordingly, he asserts, his sentence must be vacated and the matter remanded for resentencing. We disagree.
a. Additional facts.
Lupercio’s sentence of 19 years was configured as follows. On count 1, felony child endangerment of L., the court imposed the high term of six years. On count 2, felony child abuse of E., the court imposed a consecutive term of one third of the midterm, or 16 months. On count 3, inflicting corporal injury upon Donna, the court imposed a consecutive term of one third of the midterm, or one year. All three sentences were doubled pursuant to the Three Strikes law. In addition, the court imposed two 1-year terms for the prior prison term enhancements (§ 667.5, subd. (b)), and a four-month term for the deadly weapon use enhancement related to the corporal injury count (§ 12022, subd. (b)(1)).
Sentence on count 4 was stayed pursuant to section 654.
When pronouncing sentence, the trial court characterized the crime as “an inexplicable set of circumstances in which [Lupercio] subjected the people he supposedly loves the most to a degree of danger that is unimaginable....” The court referenced Lupercio’s prior criminal history, which included juvenile adjudications for robbery, vandalism, and possession of marijuana. As an adult, Lupercio had suffered a misdemeanor battery conviction in 1997. In 1997, 1999, and 2007, he suffered felony convictions for spousal abuse. He served prison terms for the three convictions, at least one of which involved a victim other than Donna. He violated parole twice. The court observed that Lupercio had not “learn[ed] his lesson.” Instead, he had engaged in an escalating pattern of violence, and his convictions were numerous or of increasing seriousness. He had served prior prison terms and was on probation at the time of the instant offense. Further, the court reasoned that the instant crimes involved great violence and bodily harm, and involved a “high degree of cruelty, viciousness, or callousness.” Lupercio was armed with a weapon, and the victims were particularly vulnerable. His violent conduct indicated he was a serious danger to society.
b. Discussion.
The People correctly contend that Lupercio has forfeited his claim that the trial court violated the proscription on dual use of facts, because he made no objection on this ground below. (See People v. Scott (1994) 9 Cal.4th 331, 356.) However, because Lupercio contends his counsel was ineffective for failing to make the requisite objections, we consider the merits of his claim.
Although a single fact may be relevant to more than one sentencing choice, the dual or overlapping use of sentencing factors is prohibited in a variety of circumstances. (People v. Scott, supra, 9 Cal.4th at p. 350; People v. Moberly (2009) 176 Cal.App.4th 1191, 1197.) Thus, the same fact cannot be used to impose an upper term sentence and an enhancement, unless the trial court strikes the enhancement. (§ 1170, subd. (b); People v. Moberly, supra, at p. 1197; People v. Jones (2009) 178 Cal.App.4th 853, 862; Cal. Rules of Court, rule 4.420(c).) A fact that is an element of a crime upon which sentence is imposed may not be used to impose a greater term. (People v. Scott, supra, at p. 350; People v. Moberly, supra, at p. 1197; Cal. Rules of Court, rule 4.420(d).) A court cannot rely on the same fact to impose both the upper term and a consecutive sentence, although a single fact may be used to justify a series of consecutive sentences. (People v. Moberly, supra, at pp. 1197-1198.) Finally, a single conviction may not be used to impose both an aggravated sentence and a section 667.5 subdivision (b) prison term prior. (People v. McFearson (2008) 168 Cal.App.4th 388, 395.)
On the other hand, the same conviction may be used to trigger sentencing under the Three Strikes law, and as the basis for a sentence enhancement. (People v. Jones, supra, 178 Cal.App.4th at p. 863.)
Lupercio contends the trial court violated these precepts when imposing the upper term on count 1. He posits that the court improperly relied upon his knife use, because that fact was already the basis for the four-month deadly weapon enhancement (§ 12022, subd. (b)(1)). The court’s reliance on his prior convictions was likewise improper, he posits, because the prison terms served for those convictions triggered imposition of two section 667.5, subdivision (b) enhancements. Finally, he argues, the court improperly relied upon L.’s vulnerability, because age was an element of child endangerment.
Lupercio is correct that the court could not use the facts of his knife use and his prior convictions suffered in case Nos. VA043777 and VA052245 as the basis for the upper term sentence. The knife use was the basis for the four-month section 12022, subdivision (b)(1) enhancement, and the two prior convictions triggered the section 667.5, subdivision (b) enhancements. Nonetheless, assuming arguendo that the trial court relied upon these facts among the others it referenced when selecting the upper term, we discern no reversible error. The improper dual use of the same facts to support imposition of both an upper term and an enhancement does not necessitate resentencing if it is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error. (People v. Osband (1996) 13 Cal.4th 622, 728.)
Such is the case here. It is settled that a single aggravating factor will support imposition of an upper term sentence. (People v. Black (2007) 41 Cal.4th 799, 815; People v. Osband, supra, 13 Cal.4th at p. 728; People v. Jones, supra, 178 Cal.App.4th at p. 863, fn. 7.) Numerous facts in addition to Lupercio’s knife use and the two convictions supported imposition of the upper term. Lupercio had suffered several convictions in addition to the two which formed the basis for the section 667.5 enhancements, and the trial court was not precluded from considering them when determining that Lupercio’s convictions were numerous and increasing in seriousness. A defendant’s recidivism is a relevant factor in considering whether to impose an upper term sentence. (See Cal. Rules of Court, rule 4.421(b).) Further, the court noted Lupercio had violated parole and was on probation or parole when he committed the instant offense.
The court also properly considered the vicious, callous, and cruel nature of Lupercio’s offenses. Even apart from the knife use, Lupercio’s crimes were cruel, vicious, and callous. As fully described ante, he attacked the mother of his children, who had recently undergone a Cesarean section, with his fists and dragged her about the apartment. The attack was carried out in full view of the children, terrifying and traumatizing E., and resulted in newborn L.’s being dropped on his head. The danger created when police and firefighters attempted to rescue Donna was not due solely to the presence of the knife: indeed, Officer Yoro made the determination that deadly force was warranted before he saw the knife, based on his opinion that Lupercio was choking Donna. Thus, Lupercio’s attack was vicious, cruel, callous, and dangerous entirely apart from the presence of the knife.
Finally, the court did not err by basing its selection of the upper term on the vulnerability factor, as the victims’ vulnerability was not an element of the crime. Lupercio’s premise––that L.’s vulnerability was due solely to the fact he was a child––is flawed. As the People point out, L. was not simply a child; he was a newborn infant. It is not an element of section 273a, subdivision (a), that the victim be a newborn baby. Lupercio’s contention that L. was no more vulnerable than “any other victim of child endangerment” is not persuasive; L.’s extremely young age rendered him completely helpless. Moreover, the victims were especially vulnerable because, among other things, Lupercio was their father and in a special relation of trust with them. Their mother was physically impaired due to her recent delivery and unable to protect them as robustly as she might otherwise have done. In sum, numerous valid factors in aggravation remained available for the court’s consideration, requiring rejection of Lupercio’s dual use claim. The court’s sentencing decision was based upon an individualized consideration of the offense, the offender, and the public interest, was consistent with the letter and spirit of the law, and was in no way arbitrary or capricious. (See People v. Sandoval (2007) 41 Cal.4th 825, 847.) The authorities cited by Lupercio––People v. Smith (1980) 101 Cal.App.3d 964, 966-967, People v. Alvarado (1982) 133 Cal.App.3d 1003, 1028, and People v. Bennett (1981) 128 Cal.App.3d 354, 359––do not persuade us otherwise.
3. The trial court did not abuse its discretion by denying Lupercio’s Romero motion.
The information alleged that Lupercio had suffered a single “strike” prior, that is, a 1993 sustained juvenile petition for robbery. Lupercio admitted the allegation and, as a result, was sentenced as a second strike offender. It was not alleged, Lupercio did not admit, and the record does not suggest, that he was armed during the 1993 robbery. Lupercio complains that because only armed robberies were classified as serious or violent felonies in 1993, the 1993 juvenile adjudication cannot qualify as a “strike.” Alternatively, he argues that use of a juvenile adjudication as a strike violates his Sixth Amendment jury trial right. Therefore, he asserts, the trial court should have granted his Romero motion. We reject both contentions.
a. The 1993 sustained petition qualified as a “strike” under Proposition 21.
The Three Strikes law, section 667, subdivision (d), provides that a juvenile adjudication qualifies as a strike if four requirements are met. Relevant here are two of those requirements, listed in subdivision (d)(3)(B) and (D). Subdivision (d)(3)(B) requires that “[t]he 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.” Subdivision (d)(3)(D) requires that “[t]he juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.” (See also § 1170.12, subd. (b)(3).)
Subdivision (h) of section 667 provides: “All references to existing statutes in subdivisions (c) to (g), inclusive, are to statutes as they existed on June 30, 1993.” (Italics added.) In June 1993, Welfare and Institutions Code section 707, subdivision (b)(3) listed “ ‘[r]obbery while armed with a dangerous or deadly weapon, ’ ” but not unarmed robbery. (People v. Bowden (2002) 102 Cal.App.4th 387, 390, italics omitted; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 825 (Andrades).)
In March 2000, voters enacted Proposition 21, known as the “Gang Violence and Juvenile Crime Prevention Act of 1998.” (Andrades, supra, 113 Cal.App.4th at p. 824.) Proposition 21 made changes to the offenses listed in Welfare and Institutions Code section 707, subdivision (b), including the addition of simple “robbery” to the list. (Andrades, at p. 824; People v. Bowden, supra, 102 Cal.App.4th at p. 390.) Proposition 21 also added section 667.1, which provides: “Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, 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 the act enacted during the 2005-06 Regular Session that amended this section.” Proposition 21 thus changed the “cutoff date” in the Three Strikes law, allowing certain offenses that were not previously classified as strikes to become so after passage of the initiative. (People v. Bowden, supra, at p. 391.)
People v. Bowden, supra, 102 Cal.App.4th 387, rejected the argument that because only armed robbery was listed in Welfare and Institutions Code section 707 as of June 30, 1993, the defendant’s juvenile adjudication for simple robbery, suffered before that date, could not be classified as a strike. Bowden explained, “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, [the statute] lists simply ‘robbery.’ ” (People v. Bowden, supra, at p. 390.) Proposition 21 “modified the cutoff date of the Three Strikes law” by adding section 667.1. (People v. Bowden, supra, at pp. 390-391, italics omitted.) Thus, an offense committed after passage of Proposition 21 qualifies as a strike if it was a serious felony within the meaning of the Three Strikes law as of March 8, 2000. (People v. Bowden, supra, at p. 391; People v. James (2001) 91 Cal.App.4th 1147, 1151.) Put differently, after passage of Proposition 21, “determination of whether a prior offense constituted a strike [is] based on whether it was a strike when the current offense was committed, not when the prior offense was committed.” (People v. Alvarez (2002) 100 Cal.App.4th 1170, 1179, italics added; see also Andrades, supra, 113 Cal.App.4th at pp. 826-827; People v. Mumm (2002) 98 Cal.App.4th 812, 816.)
Here, as in Bowden, unarmed robbery was classified as a strike when Lupercio committed the instant offenses, and therefore section 667, subdivision (d)(3)(B) is satisfied. (People v. Bowden, supra, 102 Cal.App.4th at p. 391.) Lupercio appears to acknowledge as much.
Lupercio contends, however, that even if the 1993 juvenile adjudication satisfies section 667, subdivision (d)(3)(B), the requirements of subdivision (d)(3)(D) were not met. As noted, paragraph (D) provides that in order for a juvenile adjudication to qualify as a strike, the juvenile must have been “adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code .” (Italics added.) Lupercio contends the juvenile court could not have made such a finding, because at the time of the 1993 juvenile adjudication, unarmed robbery was not listed in Welfare and Institutions Code section 707. He reasons that he could not have been adjudged a ward “because” he committed “an offense listed” in subdivision (b) of section 707 of the Welfare and Institutions Code when the offense was not so listed at the time of the adjudication. This conclusion, he urges, is unaffected by the enactment of section 667.1. Further, he points out that commission of an offense listed in Welfare and Institutions Code section 707, subdivision (b) by a youth aged 16 or over raises a rebuttable presumption of unfitness for treatment under the juvenile court law. Because his offense was not, at the time of the adjudication, a section 707, subdivision (b) offense, no such presumption applied. He therefore asserts that a “ ‘procedural precondition’ cannot be found to have been met retroactively.”
Lupercio’s arguments have been considered and rejected by Andrades, supra, 113 Cal.App.4th 817. In Andrades, as here, the defendants had suffered sustained juvenile petitions for simple robbery before the passage of Proposition 21. Andrades reasoned that, because unarmed robbery had been added to the list of offenses by Proposition 21 by the time the defendants committed their current offenses, it was necessarily an offense listed in subdivision (b) of section 707 of the Welfare and Institutions Code for purposes of the Three Strikes law. (Andrades, at pp. 825-827.) The court explained: “On its face, section 667.1 applies to ‘all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667.’ Nothing in the language of section 667.1 limits its application or excepts paragraph (D)’s reference to Welfare and Institutions Code section 707, subdivision (b). There is no ambiguity in section 667.1; it applies to ‘all references to existing statutes in subdivisions (c) to (g), inclusive.’ This clearly includes paragraph (D).” (Andrades, at p. 829.) Andrades rejected the view that analysis of the issue was necessarily different than that involved for adult prior convictions. (Id. at p. 827.) Further, Andrades observed that its analysis comported with the electorate’s intent, which was to address the problem of violent crime committed by juveniles and street gangs. (Id. at p. 829.) “To achieve this object... Proposition 21 added a number of crimes––including robbery––to the list of violent and serious felonies that qualify as strikes. [Citation.] Therefore, it would be inconsistent with the intent of the electorate if we were to hold that a prior juvenile adjudication for robbery does not qualify as a strike in cases where the current crimes were committed after the passage of Proposition 21.” (Id. at pp. 829-830.)
Lupercio contends that Andrades was wrongly decided in light of People v. Garcia (1999) 21 Cal.4th 1 and In re Jensen (2001) 92 Cal.App.4th 262. Andrades analyzed Garcia at length and concluded: “Importantly, Garcia was decided in 1999, before the passage of Proposition 21 and the enactment of section 667.1. The Garcia court did not have occasion to consider whether the requirement of paragraph (D)-that the prior juvenile adjudication include a Welfare and Institutions Code section 707, subdivision (b) offense-was met if the offense in question was added to Welfare and Institutions Code section 707, subdivision (b) after the adjudication occurred. Therefore, Garcia does not resolve the issue presented here.” (Andrades, supra, 113 Cal.App.4th at p. 828.) Andrades observed that Jensen was likewise not dispositive, as it too involved a defendant whose current crimes were committed before the passage of Proposition 21. (Andrades, at p. 829.)
We agree with the reasoning of Andrades and adopt it here. Because Lupercio’s current offenses were committed long after the passage of Proposition 21, his 1993 juvenile adjudication for robbery qualifies as a strike and the trial court did not err by denying his Romero motion.
b. Use of the sustained petition as a strike did not infringe upon Lupercio’s jury trial right.
Relying on Apprendi v. New Jersey (2000) 530 U.S. 466, Lupercio contends that use of his prior juvenile adjudication as a strike violated his Sixth Amendment right to a jury trial. As Lupercio recognizes, his argument is foreclosed by the California Supreme Court’s decision in People v. Nguyen (2009) 46 Cal.4th 1007, which we are of course bound to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In Nguyen, our Supreme Court rejected the defendant’s contention that because he had no right to a jury trial at his prior juvenile adjudication, all future use of the sustained petition as a strike was precluded. Nguyen held that 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.” (People v. Nguyen, supra, at p. 1012.) “So long as an accused adult is accorded his or her right to a jury trial in the adult proceeding as to all facts that influence the maximum permissible sentence, no reason appears why a constitutionally reliable prior 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.” (Id. at p. 1023.) Because Lupercio, like Nguyen, did have the right to a jury trial to determine whether he suffered the prior juvenile adjudication, there was no Apprendi violation. (Ibid.)
Lupercio contends Nguyen was wrongly decided and raises the issue to preserve it for federal appellate review.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J.KITCHING, J.