Supreme Court of California Justia
Citation 46 Cal. 4th 1007, 209 P.3d 946, 95 Cal. Rptr. 3d 615

People v. Nguyen

Filed 7/2/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S154847
v.
Ct.App. 6 H028798
VINCE VINHTUONG NGUYEN,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. CC476520
___________________________________ )

California‘s Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d))1 increases the maximum sentence for an adult felony offense upon
proof that the defendant has suffered one or more qualifying ―prior felony
convictions‖ — a term that specifically includes certain prior criminal
adjudications sustained by the defendant, while a minor, under the juvenile court
law. (§§ 667, subd. (d)(3), 1170.12, subd. (b)(3); see Welf. & Inst. Code, § 601 et
seq.) Does the United States Constitution allow such use of a prior juvenile
adjudication even though there was no right to a jury trial in the juvenile
proceeding? Like the majority of recent decisions to address the issue, we
conclude the answer is yes.
The question arises in the following context: A series of United States
Supreme Court decisions, beginning with Apprendi v. New Jersey (2000) 530 U.S.

1
All further unlabeled statutory references are to the Penal Code.
1


466 (Apprendi), establishes an adult criminal defendant‘s general right, under the
Fifth, Sixth, and Fourteenth Amendments, to a jury finding beyond reasonable
doubt of any fact used to increase the sentence for a felony conviction beyond the
maximum term permitted by conviction of the charged offense alone. (E.g.,
Oregon v. Ice (2009) 555 U.S. ___, ___ [129 S.Ct. 711, 714] (Ice); Cunningham v.
California (2007) 549 U.S. 270, 274-275 (Cunningham); Blakely v. Washington
(2004) 542 U.S. 296, 303-305 (Blakely); Apprendi, supra, at p. 490.) Apprendi
found this principle inherent in the common law tradition, in effect when the Sixth
Amendment was adopted, that any fact crucial to the maximum punishment for an
offense was, for that purpose, an ―element‖ of the offense, and thus equally subject
to the requirements of indictment or presentment, proof beyond reasonable doubt,
and jury trial. (Apprendi, supra, at pp. 476-485.)
Here, in adult felony proceedings, the complaint charged, for purposes of
sentence enhancement, that defendant previously had sustained a juvenile
adjudication which qualified as a ―prior felony conviction‖ under the Three Strikes
Law. By statute, California affords an adult criminal defendant the right to a jury
trial on whether he or she ―has suffered‖ an alleged prior conviction. (§§ 1025,
subds. (a), (b), 1158.) Defendant waived that jury-trial right in this case.
Documentary evidence presented to the court indicated that, in a prior juvenile
proceeding, defendant, then 16 years old, had admitted committing an aggravated
assault, and an adjudication to that effect had been entered accordingly. On this
basis, the sentencing court in this case found the prior conviction allegation true.
Applying the ―second strike‖ provision of the Three Strikes Law, the court
doubled defendant‘s sentence for the current offense.
Nonetheless, defendant claims the Apprendi rule barred use of the prior
juvenile adjudication to enhance his maximum sentence in the current case
because the prior juvenile proceeding, though it included most constitutional
2
guarantees attendant upon adult criminal proceedings, did not afford him the right
to a jury trial. (McKeiver v. Pennsylvania (1971) 403 U.S. 528 (McKeiver);
People v. Lara (1967) 67 Cal.2d 365, 398; In re Daedler (1924) 194 Cal. 320; see
Welf. & Inst. Code, § 702.) He bases this claim on language employed by the
United States Supreme Court to justify an exception to the Apprendi rule — i.e.,
that ―the fact of a prior conviction,‖ used to enhance the maximum sentence for a
later offense, need not be proved to a jury beyond reasonable doubt, but may
simply be found by the sentencing court. (Apprendi, supra, 530 U.S. 466, 490;
Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247 (Almendarez-
Torres); see Jones v. United States (1999) 526 U.S. 227, 248-249 (Jones).)
The high court has given several reasons for treating ―the fact of a prior
conviction‖ differently from other sentencing facts that may increase the
maximum punishment for an offense. The court has noted that ―recidivism‖ is a
highly traditional basis for a court to increase a current offender‘s sentence, and
that, unlike a typical ―element,‖ this factor relates not to the circumstances of the
current offense, but only to punishment. Finally, in remarks upon which
defendant primarily relies, the court has stressed that prior convictions have been
obtained in proceedings which themselves included substantial procedural
protections, including proof beyond reasonable doubt and the right to a jury trial.
(Apprendi, supra, 530 U.S. 466, 488, 496; Jones, supra, 526 U.S. 227, 249; see
Almendarez-Torres, supra, 523 U.S. 224, 243-244.)
On this basis, the Court of Appeal agreed with defendant that, under
Apprendi, the absence of a jury-trial right in juvenile proceedings bars the use of
prior juvenile adjudications to increase the maximum sentence for a subsequent
adult felony offense. In essence, the Court of Appeal found Apprendi requires a
jury-trial right at some point in the determination of any fact that may increase the
maximum sentence for an adult felony conviction.
3
But the People urge that, because juvenile law adjudications of criminal
conduct are subject to virtually all constitutional protections that apply to adult
criminal trials — particularly including the standard of proof beyond a reasonable
doubt — they fairly and reliably demonstrate the defendant‘s ―recidivism.‖ Thus,
the People argue, if a prior juvenile proceeding included all the rights and
guarantees constitutionally applicable therein, the resulting adjudication satisfies
Apprendi‘s justifications for the ―prior conviction‖ exception, and is properly
included within that exception, even though it did not include the right to a jury
trial. Even if the ―prior conviction‖ exception does not apply, the People assert,
California complies with the basic holding of Apprendi by affording the right to a
jury trial in the current case as to the sentencing ―fact‖ therein at issue — i.e., the
existence of the prior juvenile adjudication.
We generally agree with the People. As noted, 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 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.
In any event, we 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. As we explain below, the high court has expressly so held in
4
analogous circumstances. (See Nichols v. United States (1994) 511 U.S. 738
(Nichols).) We will therefore reverse the judgment of the Court of Appeal.
FACTS AND PROCEDURE
An amended complaint, filed in December 2004, charged defendant Vince
Vinhtuong Nguyen2 with four felony counts: possession of a firearm by an ex-
felon (§ 12022.1, subd. (a)(1)), possession of ammunition by an ex-felon
(§ 12316, subd. (b)(1)), possession of a billy (§ 12020, subd. (a)(1)),3 and
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The
amended complaint also charged two misdemeanors, being under the influence of
a controlled substance (id., § 11550, subd. (a)) and possession of drug
paraphernalia (id., § 11364, subd. (a)). Finally, for sentencing purposes the
amended complaint alleged, under the Three Strikes Law, that defendant had
suffered, as a qualifying ―prior felony conviction‖ (§§ 667, subd. (d)(3), 1170.12,
subd. (b)(3)), a 1999 juvenile adjudication for assault with a deadly weapon
(§ 245, subd. (a)(1)), committed when he was 16 years of age or older.
In March 2005, pursuant to a negotiated disposition, defendant pled no
contest to one felony, firearm possession by an ex-felon, and to a misdemeanor,
possession of a billy. The charges of possession of methamphetamine and drug

2
The Court of Appeal spelled defendant‘s middle name ―Vinthuong,‖ as do
the briefs in this court. However, all trial court records, including the amended
complaint and the abstract of judgment, spell it ―Vinhtuong.‖ We adopt the latter
spelling.

3
The offense described in section 12020, subdivision (a)(1) is a ―wobbler,‖
for which the defendant can be charged and/or convicted of either a felony or a
misdemeanor. (See § 17, subds. (a), (b).)

5


paraphernalia, ex-felon ammunition possession, and being under the influence of a
controlled substance were dismissed.
Defendant waived his statutory right to a jury trial on the issue whether he
―[had] suffered‖ the prior strike (§§ 1025, subds. (a)-(b), 1158), i.e., the 1999
juvenile adjudication. This question was tried to the court on the basis of
documentary evidence, and the court found the strike allegation true. The court
file in the 1999 juvenile matter indicates, among other things, that defendant there
admitted to a violation of section 245, subdivision (a)(1).4
Defendant objected that because he had no right to a jury in the juvenile
proceeding, use of his juvenile adjudication as a strike in the current case was a
violation of his Sixth Amendment rights.5 The court rejected this argument and
sentenced defendant to the lower term of 16 months for the firearm possession
conviction (Pen. Code, § 18), doubled to 32 months because of the prior strike
(id., §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).6

4
As the Court of Appeal explained, the documents submitted to the court
were not made part of the appellate record, and were subsequently lost. Acting on
its own motion, the Court of Appeal thus took judicial notice of the juvenile court
file.

5
Defendant does not claim that his juvenile adjudication fails to qualify,
under the terms of the Three Strikes Law, as a ―prior felony conviction‖ for
purposes of sentence enhancement. Nor, as the dissent points out, does he raise
any constitutional objection other than the jury trial issue we address here.

6
Apprendi‘s jury-trial requirement applies only to sentencing facts that
increase the maximum penalty for an offense; a sentencing court retains, under
Apprendi, its discretion to impose a sentence within the range permitted solely by
the underlying conviction, on the basis of facts not found by a jury. (E.g.,
Apprendi, supra, 530 U.S. 466, 481; see Harris v. United States (2002) 536 U.S.
545, 556-569 [sentencing judge alone may find facts increasing mandatory
minimum
sentence].) The Three Strikes Law provides that any determinate
(Footnote continued on next page.)
6


Defendant appealed, raising only the Sixth Amendment sentencing issue.
In its first opinion, the Court of Appeal held that, because of the lack of a jury-trial
right in juvenile cases, the Sixth Amendment forbids use of a contested juvenile
adjudication as a prior conviction to enhance the sentence for a subsequent adult
offense. However, the court originally held that because defendant had admitted,
in the juvenile case, that he committed the criminal conduct there at issue, his
current sentence was not affected by the earlier deprivation of a right to jury trial,
and he therefore was not entitled to relief.
The Court of Appeal granted rehearing to reconsider this latter holding. On
rehearing, the court reversed the trial court. This time, the majority held that,
because minors tried for criminal offenses as juveniles are denied the right to jury
trials, the use of any juvenile adjudications as prior convictions to enhance
subsequent adult sentences is prohibited by the Sixth Amendment.

(Footnote continued from previous page.)

sentence for a current felony offense shall be doubled upon pleading and proof of
one prior ―strike.‖ (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) Ex-felon firearm
possession is punishable, under the determinate sentencing law (DSL), by a term
of 16 months, or two or three years. (§ 18.) Here, the sentencing court imposed
the lower DSL term of 16 months, doubled to 32 months under the Three Strikes
Law in light of the juvenile prior. That sentence did not exceed the three-year
upper term for ex-felon firearm possession, but it did exceed the two-year middle
term for this offense. Under the California scheme in effect at the time defendant
was sentenced, the federal Constitution did not permit the sentencing judge alone
to impose any sentence above the middle DSL term, except where an upper-term
sentence was authorized by virtue of ―the fact of a prior conviction.‖ (See
Cunningham, supra, 549 U.S. 270, 288-293; People v. Black (2007) 41 Cal.4th
799, 805, 809-810 (Black).) The court‘s use of the prior juvenile adjudication as a
―strike‖ increased defendant‘s actual punishment above that middle-term
maximum. Under such circumstances, we assume the Apprendi issue is properly
raised in this case. The People do not contend otherwise.

7


We granted review.
DISCUSSION7
Defendant argues, and the Court of Appeal agreed, that because he had no
right to a jury trial in the prior juvenile proceeding, the Fifth, Sixth, and
Fourteenth Amendments, as construed in Apprendi, bar use of the resulting
criminal adjudication to enhance his maximum sentence in this adult proceeding.
For several reasons, we reject the contention.
As indicated above, the high court determined in Apprendi 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, 530 U.S. 466, 490.) Thus, under
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 statutorily 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

7
Amicus curiae briefs have been filed in support of defendant by
(1) Criminal Defense Clinic, Mills Legal Clinic of Stanford Law School,
(2) California Public Defenders Association, and (3) Pacific Juvenile Defender
Center, Juvenile Law Center, Juvenile Division of the Los Angeles Public
Defender, Alternate Public Defender, National Center for Youth Law and Youth
Law Center (Pacific Juvenile Defender Center et al.). The Los Angeles County
District Attorney has filed an amicus curiae brief in support of the People.

8


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 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.‖ As we have explained, 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.8
Nonetheless, defendant contends, as below, that under the principles of
Apprendi, and regardless of his jury-trial rights in the current case, the lack of a

8
Defendant suggests in passing that, even if Apprendi guarantees only the
right to a jury trial in the present case concerning the ―fact‖ of his prior
adjudication, California‘s jury-trial statutes do not satisfy this requirement,
because they sharply limit the issues to be decided by the jury trying a prior-
conviction allegation. (§ 1025, subd. (c) [issue whether defendant is the person
who suffered the prior conviction must be tried to the court]; see People v. Kelii
(1999) 21 Cal.4th 452, 455-459 [issue whether prior conviction qualifies as
―serious felony‖ for purposes of Three Strikes Law must be determined by court];
People v. Wiley (1995) 9 Cal.4th 580, 583, 592 [court, not jury, decides whether
prior convictions were upon charges ―brought and tried separately‖].) However,
defendant did not raise that issue below. As noted above, he waived his statutory
jury-trial right as to the existence of the prior, and he focused exclusively on
whether Apprendi permits any use of nonjury juvenile adjudications to enhance
adult sentences. We therefore need not address his statutory argument here.

9


jury-trial right in the prior juvenile proceeding precludes all use of the resulting
adjudication to enhance the maximum sentence for his current offense. To support
his view that Apprendi contemplates such a bar by implication, defendant cites
language the high court has used to justify the single exception it 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‖ (italics
added). (Apprendi, supra, 530 U.S. 466, 490; see also, e.g., Blakely, supra,
542 U.S. 296, 301; United States v. Booker (2005) 543 U.S. 220, 231;
Cunningham, supra, 549 U.S. 270, 275; Ice, supra, 555 U.S. ___, ___ [129 S.Ct.
711, 714].) For reasons we now explain, we are not persuaded.
The ―prior conviction‖ exception arises primarily from a pre-Apprendi case,
Almendarez-Torres. There, an indictment charged the defendant with the offense
of illegal reentry by a deported alien. The pertinent statute increased the
maximum punishment if the prior deportation arose from the alien‘s conviction of
one or more aggravated felonies. The indictment did not allege this latter
circumstance. However, at his plea hearing, the defendant admitted it, and the
court imposed sentence accordingly. On appeal, the defendant urged, among other
things, that the Constitution required treatment of his prior convictions as an
element of the current criminal offense, which must be charged in the indictment
and proved to a jury beyond a reasonable doubt. The court disagreed, refusing to
adopt a blanket rule that recidivism — a ―highly traditional‖ basis upon which
courts had imposed increased sentences — must be treated as an element.
(Almendarez-Torres, supra, 523 U.S. 224, 243-247.)
In Jones, which also preceded Apprendi, the court addressed a federal
statute that punished carjacking in interstate commerce with a maximum sentence
of 15 years. However, maximum sentences of 25 years and life imprisonment,
respectively, applied if the carjacking resulted in serious bodily injury or death.
10
The government claimed the statute described only a single offense, subject to
mere ―sentencing enhancements‖ that need not be separately charged and could be
imposed solely by a judge. The defendant insisted the law established three
separate offenses, each with its own requirement of charging notice and jury trial.
The court chose the latter construction, primarily to avoid the constitutional
problem, soon thereafter confirmed in Apprendi, of allowing an increased
sentence, beyond the maximum provided for the charged offense, on the basis of
additional facts not separately alleged or found by a jury.
During an extensive discussion of the Sixth Amendment concerns thus
presented, the Jones court conceded Almendarez-Torres had recently held that
sentence-enhancing prior convictions do not require charging notice and proof
beyond reasonable doubt to a jury. (Jones, supra, 526 U.S. 227, 248.) This
holding, Jones explained, had depended ―in substantial part on the tradition of
regarding recidivism as a sentencing factor, not as an element to be set out in the
indictment. The Court‘s repeated emphasis on the distinctive significance of
recidivism leaves no question that the Court [in Almendarez-Torres] regarded that
fact as potentially distinguishable for constitutional purposes from other facts that
might extend the range of possible sentencing. [Citations.]‖ (Jones, supra, at
p. 249.)
In language upon which defendant relies here, the Jones court continued:
―One basis for that possible constitutional distinctiveness is not hard to see: unlike
virtually any other consideration used to enlarge the possible penalty for an
offense, and certainly unlike the factor before us in this case, a prior conviction
must itself have been established through procedures satisfying the fair notice,
reasonable doubt, and jury trial guarantees.‖ (Jones, supra, 526 U.S. 227, at
p. 249, italics added.)
11
Soon after Almendarez-Torres and Jones, the court squarely held in
Apprendi that except for the fact of a prior conviction, the Constitution requires
any fact which authorizes a penalty beyond the prescribed statutory maximum for
the charged offense to be separately alleged in the charging document and proved
to a jury beyond a reasonable doubt. Apprendi addressed a New Jersey statute that
specified the maximum sentence for the offense of possession of a firearm for an
unlawful purpose, but provided additional punishment if the trial court found, by a
preponderance of evidence, that the unlawful purpose was to intimidate on the
basis of group bias.
The Apprendi court rejected New Jersey‘s attempt to defend the statute by
invoking Almendarez-Torres. For multiple reasons, the court explained, the rule
of Almendarez-Torres was confined to recidivism as a sentencing fact. As in
Jones, the court noted Almendarez-Torres‘s emphasis on recidivism as a highly
― ‗traditional‘ ‖ basis for imposition of increased punishment by sentencing courts.
(Apprendi, supra, 530 U.S. 466, 488.) As defendant emphasizes, however, the
court also noted, as it had in Jones, that the evidence of Almendarez-Torres‘s
recidivism consisted of prior adjudications of criminal conduct obtained in
proceedings which themselves afforded substantial constitutional protections.
Thus, the Apprendi court observed that ―[b]ecause Almendarez-Torres had
admitted the three earlier convictions for aggravated felonies — all of which had
been entered pursuant to proceedings with substantial procedural safeguards of
their own — no question concerning the right to a jury trial or the standard of
proof that would apply to a contested issue of fact was before the Court.‖
(Apprendi, supra, 530 U.S. 466, 488.) In other words, the court concluded,
―[b]oth 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
12
otherwise implicated in allowing a judge to determine a ‗fact‘ increasing
punishment beyond the maximum of the statutory range.‖ (Ibid.)
Finally, the Apprendi court distinguished Almendarez-Torres from the
situation presented in Apprendi itself. The court observed: ―The reasons
supporting an exception from the general rule for the statute construed in
[Almendarez-Torres] do not apply to the New Jersey [hate crime] statute [at issue
in Apprendi]. Whereas recidivism ‗does not relate to the commission of the
offense‘ itself, [citation], New Jersey‘s biased purpose inquiry goes precisely to
what happened in the ‗commission of the offense.‘ Moreover, there is a vast
difference between accepting the validity of a prior judgment of conviction
entered in a proceeding in which the defendant had the right to a jury trial and the
right to require the prosecutor to prove guilt beyond a reasonable doubt, and
allowing the judge to find the required fact under a lesser standard of proof.‖
(Apprendi, supra, 530 U.S. 466, 496, italics added.)9

9
Both we and the United States Supreme Court have confirmed that the
―prior conviction‖ exception extends beyond the bare ―fact‖ that such a conviction
occurred, and permits the sentencing court, without a jury, to determine related
issues about a prior conviction‘s relevance to the recidivist sentencing scheme,
when those issues primarily involve either legal questions of a kind typically
decided by judges, or factual matters that may be conclusively determined by
examination of the official court record in the prior case. (See, e.g., Shepard v.
United States
(2005) 544 U.S. 13, 16, 26 [sentencing court may examine statutory
definition of prior charge, as well as official court records in prior case that
conclusively establish elements therein adjudicated, to determine if nature of prior
conviction qualifies it as basis for increasing current sentence]; People v. McGee
(2006) 38 Cal.4th 682, 708-709 [under Apprendi, sentencing court, not jury,
determines from court records in prior case whether it qualifies for use under
recidivist sentencing scheme]; Black, supra, 41 Cal.4th 799, 818-820 [court, not
jury, decides from court records whether prior convictions are numerous and of
increasing seriousness]; People v. Towne (2008) 44 Cal.4th 63, 72-83 (Towne)
[court, not jury, may determine from records of prior convictions whether
(Footnote continued on next page.)
13


From these remarks, defendant, the Court of Appeal, and the dissent have
drawn the inference that, under Apprendi, the defendant‘s ―recidivism‖ may
enhance the current sentence only insofar as this ―recidivism‖ — i.e., the
defendant‘s prior criminal behavior — either is found true by a jury in the current
proceeding, or was already found true in a prior proceeding wherein he or she had
protections that included the right to a jury trial. In other words, they conclude,
Apprendi means the jury-trial right — along with the right to charging notice and
the right to proof beyond a reasonable doubt — must attach at some point to the
determination of any fact about an adult offense, or offender, that increases the
maximum punishment for the offense beyond the prescribed statutory range.
However, we do not read Apprendi so broadly. For reasons we set forth
below, we agree with the majority view that the Fifth, Sixth, and Fourteenth
Amendments, as construed in Apprendi, do not preclude the sentence-enhancing
use, against an adult felon, of a prior valid, fair, and reliable adjudication that the
defendant, while a minor, previously engaged in felony misconduct, where the
juvenile proceeding included all the constitutional protections applicable to such
matters, even though these protections do not include the right to jury trial.
The United States Supreme Court has confirmed that minors accused under
the juvenile law of criminal conduct for which they may be confined in a
correctional institution are constitutionally entitled to virtually all the procedural

(Footnote continued from previous page.)

defendant served prior prison terms, committed the current offense while on
parole, or has performed poorly on parole or probation].) It is also now clear that
Apprendi does not require a jury determination of facts bearing on whether to
impose concurrent or consecutive sentences for separate offenses. (Ice, supra,
555 U.S. ___, ___-___ [129 S.Ct. 711, 716-719]; Black, supra, at pp. 820-823.)

14


rights and protections they would enjoy as adult criminal defendants. (See In re
Gault (1967) 387 U.S. 1 (Gault) [fair notice of charges; counsel, appointed if
necessary; confrontation and cross-examination; testimony by sworn witnesses;
privilege against self-incrimination]; In re Winship (1970) 397 U.S. 358 (Winship)
[proof beyond a reasonable doubt]; Breed v. Jones (1975) 421 U.S. 519 [double
jeopardy].) However, the court has concluded that the Constitution does not
afford the right to a jury trial in juvenile proceedings. (McKeiver, supra, 403 U.S.
528.)
The various McKeiver opinions offered multiple reasons for declining to
recognize such a right. At least five justices cited, as a paramount concern, a
reluctance to deem juvenile adjudications ―criminal proceedings‖ within the Sixth
Amendment‘s ambit, given the juvenile system‘s greater emphasis on informality,
rehabilitation, and parens patriae protection of the minor, as opposed to the more
formal, adversary, and punitive nature of the adult criminal system. (McKeiver,
supra, 403 U.S. 528, 545-546, 547, 550 (plur. opn. of Blackmun, J.); id., at
pp. 551-552 (conc. opn. of White, J.).) As Justice White further noted, such
differences ameliorate the need, in the juvenile system, for the jury‘s role as a
community buffer against government oppression, judicial bias, and politicized
justice. (Id., at p. 552 (conc. opn. of White, J.).)
On the other hand, five concurring justices in McKeiver also were strongly
influenced by their determination that a jury is not essential to fair and reliable
factfinding in a juvenile case. Thus, Justice Blackmun deemed it incorrect to say
that ―the jury is a necessary component of accurate factfinding‖ (McKeiver, supra,
403 U.S. 528, 543 (plur. opn. of Blackmun, J.)), and further opined that ―[t]he
imposition of the jury trial on the juvenile court system would not strengthen
greatly, if at all, the factfinding function‖ (id., at p. 547). Justice White agreed,
noting that ―[a]though the function of the jury is to find facts, that body is not
15
necessarily or even probably better at the job than the conscientious judge.‖ (Id.,
at p. 551 (conc. opn. of White, J.).)
These factors have persuaded the overwhelming majority of courts to reject
the contention defendant makes in this case. Except for the decision here under
review, all California Court of Appeal panels to address the issue, both before and
after Apprendi, have squarely held that the Fifth, Sixth, and Fourteenth
Amendments permit the use of prior juvenile adjudications to enhance the
sentences for subsequent adult offenses, even though there is no right to a jury trial
in juvenile proceedings. The United States Supreme Court has denied all petitions
for certiorari arising from these cases. (People v. Del Rio (2008) 165 Cal.App.4th
439, 441; People v. Buchanan (2006) 143 Cal.App.4th 139, 149, cert. denied sub
nom. Buchanan v. California (2007) U.S. ___ [127 S.Ct. 2920]; People v.
Superior Court (Andrades) (2004) 113 Cal.App.4th 817, 830-834, cert. denied sub
nom. Andrades v. California (2004) 543 U.S. 884; People v. Lee (2003)
111 Cal.App.4th 1310, 1316, cert. denied sub nom. Lee v. California (2004)
542 U.S. 906; People v. Smith (2003) 110 Cal.App.4th 1072, 1079; People v.
Bowden (2002) 102 Cal.App.4th 387, 393-395; People v. Fowler (1999)
72 Cal.App.4th 581, 586; see People v. Palmer (2006) 142 Cal.App.4th 724, 729-
734 [Apprendi allows use of prior Nevada misdemeanor conviction to enhance
sentence, even though there was no right to jury trial in Nevada proceeding].)
The overwhelming majority of federal decisions and cases from other states
have reached the same conclusion in the wake of Apprendi, holding that nonjury
juvenile adjudications may be used to enhance later adult sentences. Again, the
16
United States Supreme Court has declined numerous opportunities to decide
otherwise.10
The majority decisions reason, in essence, as follows: 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 about the current offense that were
withheld from a jury in the current case, but instead concern the defendant‘s
recidivism — i.e., his or her status as a repeat offender — a basis on which courts,
acting without juries, traditionally have imposed harsher sentences. Moreover, the

10
(E.g., U. S. v. Matthews (1st Cir. 2007) 498 F.3d. 25, 34-36, cert. denied
sub nom. Matthews v. United States (2008) ___ U.S. ___ [128 S.Ct. 1463]; U.S. v.
Crowell
(6th Cir. 2007) 493 F.3d 744, 749-751, cert. denied sub nom. Crowell v.
United States
(2008) ___ U.S. ___ [128 S.Ct. 880]; U.S. v. Burge (11th Cir. 2005)
407 F.3d 1183, 1187-1191, cert. denied sub nom. Burge v. United States (2005)
546 U.S. 981; U.S. v. Jones (3d Cir. 2003) 332 F.3d 688, 694-696, cert. denied sub
nom
. Jones v. United States (2004) 540 U.S. 1150; U.S. v. Smalley (8th Cir. 2002)
294 F.3d 1030, 1031-1033, cert. denied sub nom. Smalley v. United States (2003)
537 U.S. 1114; People v. Mazzoni (Colo.Ct.App. 2007) 165 P.3d 719, 722-723;
State v. McFee (Minn. 2006) 721 N.W.2d 607, 615-619; State v. Weber
(Wn. 2006) 149 P.3d 646, 649-653, cert. denied sub nom. Weber v. Washington
(2007) 551 U.S. 1137; Nichols v. State (Fla.Dist.Ct.App. 2005) 910 So.2d 863,
864-865; Ryle v. State (Ind. 2005) 842 N.E.2d 320, 321-323, cert. denied sub nom.
Ryle v. Indiana (2006) 549 U.S. 836; State v. Hitt (Kan. 2002) 42 P.3d 732, 740,
cert. denied sub nom. Hitt v. Kansas (2003) 537 U.S. 1104; see State v. Harris
(Or. 2005) 118 P.3d 236, 238-246 [holding that lack of jury trial in juvenile
proceedings does not prevent all use of prior juvenile adjudications to enhance
later adult sentences, but does mean defendant is entitled to jury trial in the adult
case
as to the fact of the prior adjudication]; but see U.S. v. Tighe (9th Cir. 2001)
266 F.3d 1187, 1191-1195; State v. Brown (La. 2004) 879 So.2d 1276, 1281-
1290, cert. denied sub nom. Louisiana v. Brown (2005) 543 U.S. 1177.)

17


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
Apprendi, 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 jury trial, which the Constitution does not require.
However, the minority view, urged by defendant and accepted by the Court
of Appeal, is that the right to a jury trial in proceedings leading to the prior
adjudication is essential to permitting its use for later enhancement of an adult
sentence. As the Court of Appeal suggested, ―the jury trial right is an
indispensable part of ‗ ―a fundamental triumvirate of procedural protections
intended to guarantee the reliability of criminal convictions,‖ ‘ ‖ and, under
Apprendi, ― ‗ ―one of the requisite procedural safeguards‖ necessary for a prior
conviction to be exempt from its rule.‘ ‖
We agree with the majority view, and disagree with defendant and the
instant Court of Appeal. For the reasons repeatedly stated by the majority
decisions cited above, we conclude that the Apprendi rule does not preclude use of
nonjury juvenile adjudications to enhance later adult sentences.
18
The United States Supreme Court has left no doubt of the importance of the
jury trial guarantee, among other due process and fair trial protections, in the
formal, fully adversary, and fully penal context in which one is convicted of, and
sentenced for, a crime committed as an adult. Under Apprendi and its progeny,
every previously unadjudicated fact about an adult offense or offender that
authorizes an increase in the maximum sentence for the adult crime must be
specifically alleged or charged, presented to a jury, and proved beyond reasonable
doubt except to the extent the defendant waives those rights. Moreover, in
concluding that prior convictions are available to enhance later sentences without
new jury involvement, the court has stressed that the defendant enjoyed, among
others, the right to a jury trial in those prior adult proceedings.
But the court has struck a delicate balance as to the constitutional treatment
of juveniles alleged to have violated the criminal law. Such a juvenile, like an
adult accused, faces both the stigma of adjudged criminality and the significant
loss of liberty by confinement in a correctional institution if the allegations prove
true. Thus, ―[t]he same considerations that demand extreme caution in factfinding
to protect the innocent adult apply as well to the innocent child.‖ (Winship, supra,
397 U.S. 358, 365.) Accordingly, the highest standard of factual certainty, proof
beyond a reasonable doubt, attaches equally to adult and juvenile proceedings.
(Id., at p. 368.) Similar considerations have led the court to insist that most other
procedural protections available to accused adults — including the rights to
counsel (appointed if necessary), notice of charges, confrontation and cross-
examination, and protection against compelled self-incrimination and double
jeopardy — be equally available to juveniles subject to adjudication of criminal
conduct. (Gault, supra, 387 U.S. 1, 31-57; Breed v. Jones, supra, 421 U.S. 519,
528-531.)
19
The court‘s decision in McKeiver not to find a constitutional jury trial right
in juvenile proceedings reflected its concern that the introduction of juries in that
context would interfere too greatly with the effort to deal with youthful offenders
by procedures less formal and adversarial, and more protective and rehabilitative
—at least to a degree — than those applicable to adult defendants. (McKeiver,
supra, 403 U.S. 528, 545-551 (plur. opn. of Blackmun, J.); id. at pp.551-553
(conc. opn. of White, J.).) But the McKeiver majority made clear that the absence
of a right to 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.).)
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. 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.
We do not read the passages from Almendarez-Torres, supra, 523 U.S. 224,
Jones, supra, 526 U.S. 227, and Apprendi, supra, 530 U.S. 466, upon which
defendant and the Court of Appeal have relied, as prohibiting the use of
previously adjudicated criminal misconduct 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 trial. Defendant‘s contrary argument is
unconvincing in several respects.
20
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 Apprendi, or in Almendarez-Torres itself,
stated or implied 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 right to 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 these guarantees, or any one of them
in particular, is essential to the availability of a prior criminal adjudication to
furnish such proof.
Finally, as indicated above, 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 trials 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.
Defendant and his amici curiae, like the Court of Appeal majority, stress
the philosophical difference between juvenile and adult criminal proceedings.
21
This line of reasoning proposes that proceedings under the juvenile law may
dispense with jury trials only because, as parens patriae attempts by the state to
protect, rehabilitate, and reform wayward minors, they are not fully ―criminal‖ in
nature, and they lack the truly penal objectives and consequences of the system
that governs adult violations of law. Hence, the argument runs, even if a juvenile
adjudication is reliable and procedurally fair enough for juvenile purposes, it is not
sufficiently fair and reliable, without the right to a jury trial, for use to affect a
later adult criminal sentence.
Again, we disagree, for the reasons indicated above. Sentence
enhancement based on recidivism flows from the premise that the defendant‘s
current criminal conduct is more serious because he or she previously was found
to have committed criminal conduct and did not thereafter reform. A prior
juvenile adjudication, like a prior adult conviction, is a rational basis for increased
punishment on the basis of recidivism. Indeed, a juvenile prior demonstrates that
the defendant did not respond to the state‘s attempt at early intervention to prevent
a descent into further criminality. The high court has never held that the
Constitution places a direct restriction on the use of prior juvenile adjudications
for this purpose.
Accordingly, we are persuaded that Apprendi does not bar the use of a
constitutionally valid, fair, and reliable prior adjudication of criminal conduct to
enhance a subsequent adult sentence simply because the prior proceeding did not
include the right to a jury trial. For the reasons discussed at length above, we
agree with the court in McKeiver, at least for this purpose, that the absence of jury
22
trials from juvenile proceedings does not significantly undermine the fairness or
accuracy of juvenile factfinding.11
Under these circumstances, the philosophical and legal distinctions between
the juvenile and adult criminal justice systems — differences that informed
McKeiver‘s determination not to impose a jury-trial entitlement in juvenile cases
— fail to convince us that adjudications of criminal conduct obtained in juvenile

11
Taking issue with McKeiver‘s premise that the absence of a jury does not
materially undermine factfinding accuracy, the Court of Appeal cited Ballew v.
Georgia
(1978) 435 U.S. 223, a post-McKeiver case, which held that conviction of
a nonpetty offense by a state jury of fewer than six persons violates the Sixth and
Fourteenth Amendments. (Compare Williams v. Florida (1970) 399 U.S. 78
[holding that jury of as few as six persons in state criminal trial for nonpetty
offense does not violate the Constitution].) As the Court of Appeal noted, the high
court in Ballew cited statistical studies suggesting the diminished effectiveness of
―group deliberation,‖ and thus diminished factfinding accuracy, as the number of
jurors decreased. (Ballew, supra, at pp. 232-239.) But Ballew was concerned
with the undoubted right to a jury trial as to the facts of a charged adult offense,
and it focused on whether the accuracy of factfinding rose or fell depending on the
number of lay jurors on the panel. Though the court‘s opinion in Ballew briefly
described one study indicating a significant degree of judge-jury disagreement in
civil cases (id., at p. 238), it did not suggest that, in a juvenile proceeding where a
jury is not required, judicial factfinding is insufficiently reliable.

Defendant also notes that in Ring v. Arizona (2002) 536 U.S. 584, which
applied Apprendi to sentencing facts supporting eligibility for the death penalty,
the court rejected Arizona‘s argument that judicial findings on this subject were
sufficiently reliable to satisfy the Sixth Amendment. The court explained that
―[t]he Sixth Amendment jury trial right . . . does not turn on the relative
rationality, fairness, or efficiency of potential factfinders.‖ (Ring, at p. 607.)
Again, however, Ring was dealing with an adult’s right to a jury trial on all
previously unadjudicated facts bearing on the maximum punishment for the adult
offense (in Ring‘s case, that he was a major participant in an armored car robbery,
and that he personally shot and killed the vehicle‘s driver). Ring was not
concerned with facts about recidivism, already reliably determined in a juvenile
proceeding in which the Constitution did not require a jury trial.

23


proceedings without the right to jury trial are unavailable, under Apprendi, to
increase the maximum punishment for later adult offenses.12
Nor does the use of nonjury juvenile adjudications to enhance later adult
sentences compromise the core purpose of the constitutional right to a jury trial —
to provide a criminal defendant, by application of the lay common sense of the
community, ―with . . . an inestimable safeguard against the corrupt or overzealous
prosecutor and against the compliant, biased, or eccentric judge.‖ (Duncan v.
Louisiana (1968) 391 U.S. 145, 156.) Implicit in the high court‘s juvenile justice
decisions is the premise that this particular safeguard is not constitutionally
essential to a fair and reliable adjudication in a juvenile case. Once that
adjudication is made, one facing a subsequent adult sentence gains, in the adult
proceeding, no meaningful jury-trial protection against government oppression or
judicial bias — no ―bulwark at trial between the State and the accused‖ (Ice,
supra, 555 U.S. ___, ___ [129 S.Ct. 711, 718]) — by virtue of a rule barring use
of the earlier finding to enhance the sentence for the current adult offense.
Finally, we deem highly pertinent a decision of the high court in which,
overruling prior authority, the court concluded, under analogous circumstances,
that a constitutionally valid prior criminal adjudication may be used to enhance the
maximum penalty for a subsequent felony offense, even though the prior
proceeding did not include all the safeguards required for felony trials.

12
Amici curiae Pacific Juvenile Law Center et al. argue that to allow the use
of juvenile adjudications to enhance later adult sentences ―is inconsistent with the
purpose of juvenile 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. (Pen. Code, §§ 667,
subd. (d)(3), 1170.12, subd. (b)(3).)
24


Thus, in Scott v. Illinois (1979) 440 U.S. 367, the court had ruled that one
charged with a misdemeanor has no constitutional right to counsel when no period
of incarceration is imposed. The next year, in Baldasar v. Illinois (1980) 446 U.S.
222 (Baldasar), a divided court determined that such an uncounseled
misdemeanor conviction, though itself constitutional under Scott, could not
constitutionally be used to convert a second misdemeanor into a felony for
purposes of an Illinois recidivism statute.
In Nichols, the court overruled Baldasar, holding that a prior
constitutionally valid uncounseled misdemeanor conviction could be employed in
a subsequent federal felony proceeding to increase the defendant‘s criminal
history score, and thus his maximum punishment, for the felony offense. Among
other things, the court noted, as relevant here, that recidivism is a traditional basis
for sentence enhancement, that this factor goes only to punishment and does not
involve the circumstances of the current offense, and that the criminal conduct
evidenced by the prior conviction was subject to the standard of proof beyond a
reasonable doubt. (Nichols, supra, 511 U.S. 738, 747-748.) In our view, the
court‘s holding in Nichols strongly supports our similar result here.13

13
We further observe that we see no fatal gap between our holding here and
certain portions of our analysis in Towne, supra, 44 Cal.4th 63. There we
suggested that, under Apprendi, the sentencing court alone may find, as the basis
for an increased maximum sentence, that the defendant performed poorly during a
previous term of parole or probation arising from an earlier conviction, if the
evidence of such poor performance is the defendant‘s conviction of one or more
new crimes committed during the parole or probationary period. On the other
hand, we said, a nonjury ―poor performance‖ finding could not be based ―upon . . .
evidence of misconduct that was not previously adjudicated in a criminal trial.‖
(Towne, supra, at p. 82.) In particular, we admonished, even evidence that a prior
probation or parole had been revoked on the basis of new criminal conduct could
not support a ―poor performance‖ finding by the current sentencing court acting
without a jury, because revocation proceedings ―do not entail the same procedural
(Footnote continued on next page.)
25


In its most recent examination of the Apprendi rule, the high court majority
has explained that ―[t]he rule‘s animating principle is the preservation of the jury‘s
historic role as a bulwark between the State and the accused at the trial for an
alleged offense. [Citation.] Guided by that principle, our opinions make clear that
the Sixth Amendment does not countenance legislative encroachment on the jury‘s
traditional domain. [Citation.] We accordingly [have] considered whether the
finding of a particular fact was understood as within ‗the domain of the jury . . . by
those who framed the Bill of Rights.‘ [Citation.] In undertaking this inquiry, we
remain cognizant that administration of a discrete criminal justice system is among
the basic sovereign prerogatives States retain. [Citation.]‖ (Ice, supra, 555 U.S.
___, ___ [129 S.Ct. 711, 717].) In deciding whether Apprendi should be extended
to situations not previously considered, we must bear in mind ―[t]hese twin
considerations — historical practice and respect for state sovereignty.‖ (Ibid.)

(Footnote continued from previous page.)

safeguards as a criminal trial.‖ (Id., at p. 83.) We noted that although parolees
and probationers faced with revocation proceedings are entitled to notice and an
opportunity to appear, be heard, and present evidence, ―[t]he right to a jury trial
and the requirement of proof beyond a reasonable doubt . . . do not apply in
revocation proceedings.‖ (Ibid.) Of course, like Almendarez-Torres, Jones, and
Apprendi, Towne was not specifically concerned with the use of prior juvenile
adjudications
as evidence of recidivism to increase the maximum punishment for
a later crime. Moreover, as in Almendarez-Torres, Jones, and Apprendi, nothing
in Towne declares that unless the prior adjudication specifically included the right
to a jury trial, its use to demonstrate recidivism that may increase the maximum
punishment for a later offense is forbidden. The probation and parole revocation
proceedings discussed in Towne lack both the right to a jury trial and the
requirement of proof beyond a reasonable doubt
. Juvenile adjudications, on the
other hand, include the latter requirement, thus substantially bolstering their
fairness and reliability as evidence of recidivism. Our reasoning in Towne thus
does not preclude us from deciding here that the Constitution permits the use of
prior juvenile adjudications for that purpose.
26


As indicated above, the high court‘s decisions establish that neither juvenile
adjudications nor previously adjudicated recidivism as a sentencing factor is, as a
matter of ―historical practice,‖ within the ―traditional domain‖ of juries. On the
other hand, California, in the exercise of its sovereign prerogative, has made the
rational determination, expressed in its Three Strikes Law, that certain serious
prior juvenile adjudications should serve as ―prior felony convictions‖ for the
purpose of enhancing the sentences for subsequent adult felony offenses.14 The
―twin considerations‖ identified in Ice thus clearly weigh in favor of a conclusion
that the Apprendi rule should not be construed to bar such use.
We therefore hold, contrary to the Court of Appeal, that the absence of a
constitutional or statutory right to jury trial under the juvenile law does not, under
Apprendi, preclude the use of a prior juvenile adjudication of criminal misconduct
to enhance the maximum sentence for a subsequent adult felony offense by the
same person.
Accordingly, the judgment of the Court of Appeal is reversed.
BAXTER, J.
WE CONCUR:

GEORGE, C.J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

14
Indeed, the Three Strikes provisions embodied in section 1170.12,
including its provision for use of prior juvenile adjudications as strikes, were
enacted as an initiative measure by popular vote. (Prop. 184, as approved by
voters, Gen. Elec. (Nov. 8, 1994).)

27





DISSENTING OPINION BY KENNARD, J.

In California, a minor accused of a crime in a juvenile court proceeding —
unlike a person accused in an adult criminal proceeding — has no right to a jury
trial. The lack of that right becomes an issue when, as here, a juvenile court
adjudication is based on one of certain statutorily specified felonies and later the
juvenile, by then an adult, commits another felony. At that point, California‘s
―Three Strikes‖ law (Pen. Code, §§ 667, subds. (b) – (i); 1170.12) comes into
play. Because of the prior juvenile court adjudication, the sentence for the new
felony conviction is doubled, as happened here; with two such priors, the prison
term is a minimum of 25 years to life.
Central here is the United States Supreme Court‘s decision in Apprendi v.
New Jersey (2000) 530 U.S. 466, 490 (Apprendi), which holds that the federal
Constitution requires a jury trial on ―any fact‖ that increases the maximum penalty
for a charged offense. Is that right violated when, as here, the additional
punishment is imposed because of prior juvenile criminal conduct for which there
was no right to a jury trial? The majority perceives no problem. I do.
I
As relevant in this case, defendant as an adult was charged with being a
convicted felon in possession of a firearm, a felony. (Pen. Code, § 12021.1,
subd. (a)(1).) The prosecution alleged that he had a prior juvenile court
adjudication based on a violation of subdivision (a)(1) of Penal Code section 245
1


(assault with a deadly weapon or by means of force likely to inflict great bodily
injury),15 and that this adjudication was a ―strike‖ under the Three Strikes law.
Defendant pled guilty in return for dismissal of other charges against him. At a
court trial on the alleged strike, defendant conceded the prior adjudication‘s
existence. But, citing Apprendi, supra, 530 U.S. 466, he argued that the use of
that prior adjudication to increase the maximum penalty for the new offense
violated his Sixth Amendment right to a trial by jury because the adjudication
occurred in juvenile court, where he had no right to a jury trial.
The trial court rejected that argument, found the allegation of the prior
juvenile adjudication to be true, and sentenced defendant to a total of 32 months in
prison (based on 16 months‘ imprisonment for the current felony, doubled because
of the prior adjudication). On defendant‘s appeal, the Court of Appeal reversed
the trial court‘s judgment. This court granted the Attorney General‘s petition for
review.
II
In a quintet of relatively recent decisions (Oregon v. Ice (2009) 555 U.S.
___ [129 S.Ct. 711]; Cunningham v. California (2007) 549 U.S. 270

15
A prior adult conviction for violating subdivision (a)(1) of Penal Code
section 245 is a ―strike‖ if the assault was committed with a deadly weapon (Pen.
Code, §§ 667, subd. (d)(1), 1192.7, subd. (c)(31)), but not if it was committed by
means of force likely to inflict great bodily injury. (People v. Haykel (2002) 96
Cal.App.4th 146, 148; see also People v. Delgado (2008) 43 Cal.4th 1059, 1065.)
But a prior juvenile court adjudication for violating the same statute is a strike not
only when the assault was committed with a deadly weapon but also when it was
committed by means of force likely to inflict great bodily injury. (See Pen. Code,
§§ 667, subd. (d)(3)(B), 1192.7, subd. (c)(31); Welf. & Inst. Code, § 707, subd.
(b)(14).) This difference between the two categories of priors appears to present a
serious constitutional issue. But it was not raised in this case and thus need not be
resolved now.
2


(Cunningham); United States v. Booker (2005) 543 U.S. 220 (Booker); Blakely v.
Washington (2004) 542 U.S. 296; Apprendi, supra, 530 U.S. 466), the United
States Supreme Court has set forth the constitutional principle 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, 530 U.S. at p. 490.)
What led to the development of this constitutional rule was the high court‘s
concern about ―a new trend in the legislative regulation of sentencing.‖ (Booker,
supra, 543 U.S. at p. 236.) The court noted in Booker that various legislatures had
begun to enact sentencing laws providing that if the trial court found certain
statutorily specified facts to exist, it was authorized — and sometimes mandated
— to impose a sentence greater than would otherwise have been statutorily
permitted. These sentencing laws effectively increased the power of trial courts
but diminished that of juries. (Ibid.) In the words of Booker: ―As the
enhancements became greater, the jury‘s finding of the underlying crime became
less significant. And the enhancements became very serious indeed. . . . [¶] . . .
The new sentencing practice forced the Court to address the question how the right
of jury trial could be preserved, in a meaningful way guaranteeing that the jury
would still stand between the individual and the power of the government under
the new sentencing regime.‖ (Id. at pp. 236-237.)
California‘s Three Strikes law exemplifies that current trend of harsh
sentence enhancements. Under this law, any felony, even relatively minor ones
ordinarily punishable by a maximum of three years in prison, must be punished by
a sentence of at least 25 years to life in prison when the defendant has two
3
qualifying prior juvenile adjudications.16 (Pen. Code, § 667, subds. (d)(3),
(e)(2)(A).) When, as here, there is only one such adjudication, the sentence on the
underlying felony is doubled. (Pen. Code, § 667, subds. (d)(3), (e)(1).) Unlike an
adult accused of a crime, a minor so accused in a juvenile court proceeding has,
under California law, no right to have a jury determine the truth of the conduct
underlying the offense.17 Yet, as I have just pointed out, under the Three Strikes
law a prior juvenile court adjudication increases ―the range of sentences possible‖
(Booker, supra, 543 U.S. at p. 236) for an adult charged with a felony, and the
increased sentence, to use Booker’s words, can be ―very serious indeed‖ (id. at
p. 236). In basing the additional punishment on alleged facts whose truth was
never determined by a jury, the Three Strikes law is, in my view, contrary to the
holding of Apprendi, supra, 530 U.S. at p. 490, that under the Sixth Amendment
to the federal Constitution a criminal defendant has a right to have a jury
determine ―any fact‖ that increases the penalty for a charged offense.
The majority advances two reasons for concluding otherwise. As explained
below, its reasons are not persuasive.
First, the majority asserts that defendant‘s claim does not come within the
―express holding‖ (maj. opn., ante, at p. 8) of Apprendi 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

16
Although the increased penalties of California‘s Three Strikes law are
mandatory, a trial court has the power to order a juvenile prior as well as a prior
adult conviction stricken in the interest of justice. (See Pen. Code, § 1385; People
v. Williams
(1998) 17 Cal.4th 148, 161.)
17
When the juvenile court agrees with the prosecution that the minor is ―not a
fit and proper subject to be dealt with under the juvenile court law‖ (Welf. & Inst.
Code, § 707, subd. (a)(1)), the minor is charged as an adult, in which case the
minor has the right to a jury trial.
4


reasonable doubt.‖ (Apprendi, supra, 530 U.S. at p. 490, italics added.)
According to the majority, here the ―fact that increases the penalty . . . beyond the
prescribed statutory maximum‖ (ibid.) was not the defendant‘s felonious conduct
that led to the prior adjudication in juvenile court; rather, the majority asserts, it
was the adjudication itself. And, the majority points out, under California law
defendant did have the right to have a jury determine whether he was indeed the
person who suffered that prior juvenile court adjudication, a right that defendant
waived. Thus, the majority concludes, defendant was not denied the right to a jury
trial that Apprendi requires.
The majority is correct that under California‘s Three Strikes law the
existence of a prior juvenile court adjudication of criminal conduct is the fact that
triggers increased punishment. But I construe the italicized language of Apprendi,
supra, 530 U.S. at page 490, that I quoted in the preceding paragraph as requiring
a jury trial not only on the ―fact‖ of the existence of a prior adjudication, as the
majority does, but also, unlike the majority, as requiring a jury trial on the conduct
that led to that adjudication.
The prior juvenile court adjudication forming the basis for the increased
punishment is simply a legal document telling us that, in a proceeding in which the
accused minor had no right to a jury trial, a juvenile court judge determined that
the minor committed a criminal offense. The essential teaching of the high court‘s
decision in Apprendi, supra, 530 U.S. 466, is that such nonjury determinations
cannot be used to increase criminal penalties beyond prescribed statutory
maximums. Thus, to permit the mere existence of a prior nonjury juvenile court
adjudication to increase the penalty for a later crime beyond the statutory
maximum is contrary to the rationale underlying Apprendi. Indeed, the majority‘s
reasoning here opens the door to wholesale evasion or trivialization of the holding
in Apprendi. Under the majority‘s reasoning, the Legislature could enact or
5
amend laws to define any sentence-increasing circumstance of the current offense
in terms of the existence of a prior court determination or adjudication. Under
such a law, a trial judge, rather than a jury, would determine whether a statutorily
specified aggravating circumstance (for example, use of a firearm or infliction of
great bodily injury) had occurred during the commission of the current crime, after
which the jury would be permitted to decide only whether the trial judge had
actually made that specific factual determination. This cannot be what the United
States Supreme Court intended in Apprendi.
Also, the majority‘s conclusion here is inconsistent with this court‘s recent
decision in People v. Towne (2008) 44 Cal.4th 63 (Towne). There, this court held
that under Apprendi, supra, 530 U.S. 466, a defendant‘s sentence may not be
increased based on a prior determination, in a nonjury revocation proceeding, that
the defendant had violated the conditions of probation or parole. Towne explained
that a sentence may be increased for a prior probation or parole violation only
when that violation is based on a conviction for a criminal offense. (Towne,
supra, 44 Cal.4th at pp. 82-83.) In the latter situation, of course, the defendant
would have had the right to a jury trial in the proceeding that resulted in the
conviction. Implicit in the holding of Towne is the view that the constitutional
jury trial right extends to the conduct underlying a prior nonjury adjudication and
not merely to the existence of that nonjury adjudication. Thus, the majority‘s
conclusion here — that the high court‘s holding in Apprendi can be satisfied by
having a jury determine the mere existence of a prior nonjury juvenile court
adjudication of criminal conduct — cannot be reconciled with this court‘s decision
in Towne that Apprendi is not satisfied by having a jury determine only the
existence of a prior nonjury adjudication of a probation or parole violation.
I now turn to the majority‘s second reason for concluding that the use of a
prior juvenile court adjudication to increase an adult defendant‘s sentence beyond
6
the ―prescribed statutory maximum‖ (Apprendi, supra, 530 U.S. at p. 490) does
not violate the defendant‘s constitutional right to a jury trial, even though the
defendant had no right in that prior proceeding to have a jury determine the truth
of the facts underlying the prior adjudication. As mentioned earlier, this case is
governed by the United States Supreme Court‘s decision in Apprendi, which
holds: ―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.‖ (Ibid., italics added.)
The majority observes that juvenile priors ―concern the defendant‘s
recidivism — i.e., his or her status as a repeat offender‖ (maj. opn., ante, at p. 17,
italics deleted), and ―the prior criminal misconduct establishing this recidivism
was previously and reliably adjudicated in proceedings that included . . . every
substantial safeguard required in an adult criminal trial except the right to a jury‖
(id. at pp. 17-18). Thus, the majority reasons, ―the Apprendi rule does not
preclude use of nonjury juvenile adjudications to enhance later adult sentences.‖
(Id. at p. 18.) Implicit in that reasoning is the majority‘s view that juvenile priors
fall within Apprendi’s ―fact of a prior conviction‖ language, which creates an
exception to Apprendi’s holding that a defendant has a right to have a jury
determination of the truth of any factual allegations used to increase the
defendant‘s sentence beyond the statutory maximum.
It is unclear whether Apprendi’s ―fact of a prior conviction‖ exception
applies to prior juvenile court adjudications. As the majority notes, federal and
state courts are divided on the issue. (Maj. opn., ante, at p. 17, fn. 10.)
Apprendi itself says that the exception to the jury trial right applies only to
the ―fact of a prior conviction.‖ (Apprendi, supra, 530 U.S. at p. 490, italics
added.) As used in the field of law, the term ―conviction‖ ordinarily does not
include juvenile court adjudications. (People v. Hayes (1990) 52 Cal.3d 577, 633
7
[―Juvenile court adjudications under Welfare and Institutions Code section 602 are
not criminal convictions, . . .‖].) This is not a matter of semantics: A conviction is
obtained in a trial court proceeding at which the adult defendant has the right to a
jury trial. By contrast, a juvenile court adjudication results from a proceeding at
which the accused juvenile has no right to a jury trial. Therefore, it is the right to a
jury trial afforded under the Sixth Amendment to the federal Constitution that is at
stake here. To borrow language from Apprendi, ―there is a vast difference
between accepting the validity of a prior judgment of conviction entered in a
proceeding in which the defendant had the right to a jury trial‖ (Apprendi, supra,
530 U.S. at p. 496) and one in which the defendant lacked that right. (See also
Jones v. United States (1999) 526 U.S. 227, 249 [―[U]nlike 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.‖ (Italics added.)].) It is thus
reasonable to infer that when the high court in Apprendi created a ―prior
conviction‖ exception to the general right to a trial by jury on any fact supporting
a sentence increase beyond the statutory maximum, it did so only for proceedings
in which the accused did have that right.
The majority‘s reasoning here — that prior juvenile court adjudications
may constitutionally be used because they have been ―reliably adjudicated in
proceedings that included . . . every substantial safeguard‖ except the right to jury
trial (maj. opn., ante, at p. 18) — misses the point. ―The Sixth Amendment jury
trial right . . . does not turn on the relative rationality, fairness, or efficiency of
potential factfinders.‖ (Ring v. Arizona (2002) 536 U.S. 584, 607.) The problem
here is not that prior juvenile court adjudications are unreliable. The problem is
that the facts underlying a juvenile court adjudication were determined by ―a
single employee of the State,‖ namely, the judge (Apprendi, supra, 530 U.S. at
8
p. 498 (conc. opn. of Scalia, J.)), which is contrary to ―the system envisioned by a
Constitution that guarantees trial by jury‖ (ibid., italics added).
For the reasons given above, I conclude that the Sixth Amendment‘s right
to a jury trial does not permit a trial court to impose additional punishment that is
based on prior juvenile criminal conduct for which there was no right to a jury
trial. Thus, I would affirm the judgment of the Court of Appeal, which held that
the trial court erred in doubling defendant‘s sentence on the underlying crime
because of his prior juvenile adjudication.
KENNARD, J.
9
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Nguyen
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 152 Cal.App.4th 1205
Rehearing Granted
__________________________________________________________________________________

Opinion No.

S154847
Date Filed: July 2, 2009
__________________________________________________________________________________

Court:

Superior
County: Santa Clara
Judge: Ray E. Cunningham
__________________________________________________________________________________

Attorneys for Appellant:

Mary J. Greenwood, Public Defender, Seth Flagsberg, Deputy Public Defender; The Law Offices of
Douglas L. Rappaport, Douglas L. Rappaport and Michelle M. Thomson for Defendant and Appellant.

Seth Flagsberg, Deputy Public Defender (Santa Clara); and Michael Ogul, Chief Deputy Public Defender
(Solano), for California Public Defenders Association as Amicus Curiae on behalf of Defendant and
Appellant.

Jonathan Laba; Maureen Pacheco; Marsha Levick; Neha Desai; and Jessica Feierman for Pacific Juvenile
Defender Center, Juvenile Law Center, Juvenile Division of the Los Angeles Public Defender, Alternate
Public Defender, National Center for Youth Law and Youth Law Center as Amici Curiae on behalf of
Defendant and Appellant.

Dallas Sacher for Sixth District Appellate Program as Amicus Curiae on behalf of Defendant and
Appellant

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Donald E. de Nicola,
Deputy State Solicitor General, René A. Chacón, Laurence K. Sullivan, Eric D. Share and Amy Haddix,
Deputy Attorneys General, for Plaintiff and Respondent.

Steve Cooley, District Attorney (Los Angeles), Lael Rubin, Phyllis Asayama and Roberta Schwartz,
Deputy District Attorneys, as Amici Curiae on behalf of Plaintiff and Respondent.

Galit Lipa and Michael S. Romano for Criminal Defense Clinic and Mills Legal Clinic of Stanford Law
School as Amici Curiae on behalf of Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Douglas L. Rappaport
The Law Offices of Douglas L. Rappaport
260 California Street, Suite 1002
San Francisco, CA 94111
(415) 989-7900

Eric D. Share
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1375



Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses. This case presents the following issue: Can a prior juvenile adjudication of a criminal offense in California constitutionally subject a defendant to the provisions of the three strikes law (Pen. Code, ?? 667, subds. (b)-(i), 1170.12) although there is no right to a jury trial in juvenile wardship proceedings in this state?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 07/02/200946 Cal. 4th 1007, 209 P.3d 946, 95 Cal. Rptr. 3d 615S154847Review - Criminal Appealclosed; remittitur issued

PEOPLE v. STEELE (S153296)
PEOPLE v. BROWN (S155093)
P. (ANTONIO), IN RE (S156335)
PEOPLE v. TU (S156995)
PEOPLE v. GRAYSON (S157952)
PEOPLE v. LINAREZ (S158154)
PEOPLE v. WHITE (S158179)
PEOPLE v. DANIELS (S159866)
PEOPLE v. RODRIGUEZ (S160514)
PEOPLE v. NICHOLS (S160709)
PEOPLE v. BALTAZAR (S164248)


Parties
1The People (Plaintiff and Respondent)
Represented by Eric D. Share
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Nguyen, Vince Vinthuong (Defendant and Appellant)
Represented by Michelle Marie Thomson
The Law Offices of Douglas L. Rappaport
260 California Street, Suite 1002
San Francisco, CA

3Nguyen, Vince Vinthuong (Defendant and Appellant)
Represented by Seth Flagsberg
Santa Clara County Public Defender's Office
120 W. Mission Street
San Jose, CA

4Nguyen, Vince Vinthuong (Defendant and Appellant)
Represented by Douglas L. Rappaport
The Law Offices of Douglas L. Rappaport
260 California Street, Suite 1002
San Francisco, CA

5California Public Defenders Association (Amicus curiae)
Represented by Seth Flagsberg
California Public Defenders' Asociation
10324 Placer Lane
Sacramento, CA

6California Public Defenders Association (Amicus curiae)
Represented by Michael S. Ogul
California Public Defenders' Asociation
10324 Placer Lane
Sacramento, CA

7Criminal Defense Clinic (Amicus curiae)
Represented by Galit Lipa
Criminal Law Clinic, Mills Legal Clinic at Stanford Law Scl
559 Nathan Abbott Way
Stanford, CA

8Los Angeles County District Attorney (Amicus curiae)
Represented by Roberta T. Schwartz
Office of the District Attorney--Appellate Division
320 W. Temple Street, Suite 540
Los Angeles, CA

9Pacific Juvenile Defender Center (Amicus curiae)
Represented by Jessica Rachel Feierman
Juvenile Law Center
1315 Walnut Street, Suite 400
Philadelphia, PA

10Pacific Juvenile Defender Center (Amicus curiae)
Represented by Jonathan Todd Laba
Contra Costa Coutny Public Defender's Office
800 Ferry Street
Martinez, CA

11Pacific Juvenile Defender Center (Amicus curiae)
Represented by Maureen Theresa Pacheco
Los Angeles County Public Defender's Office
9425 Penfield Avenue, 2nd Floor
Chatsworth, CA

12Juvenile Law Center (Amicus curiae)
Represented by Jessica Rachel Feierman
Juvenile Law Center
1315 Walnut Street, Suite 400
Philadelphia, DC

13Juvenile Law Center (Amicus curiae)
Represented by Jonathan Todd Laba
Contra Costa Coutny Public Defender's Office
800 Ferry Street
Martinez, CA

14Juvenile Law Center (Amicus curiae)
Represented by Maureen Theresa Pacheco
Los Angeles County Public Defender's Office
9425 Penfield Avenue, 2nd Floor
Chatsworth, CA

15Juvenile Division Of The Los Angeles Public Defender (Amicus curiae)
Represented by Maureen Theresa Pacheco
Los Angeles County Public Defender's Office
9425 Penfield Avenue, 2nd Floor
Chatsworth, CA

16Juvenile Division Of The Los Angeles Public Defender (Amicus curiae)
Represented by Jessica Rachel Feierman
Juvenile Law Center
1315 Walnut Street, Suite 400
Philadelphia, DC

17Juvenile Division Of The Los Angeles Public Defender (Amicus curiae)
Represented by Jonathan Todd Laba
Contra Costa Coutny Public Defender's Office
800 Ferry Street
Martinez, CA

18Alternate Public Defender (Amicus curiae)
Represented by Jonathan Todd Laba
Contra Costa County Public Defender's Office
800 Ferry Street
Martinez, CA

19Alternate Public Defender (Amicus curiae)
Represented by Jessica Rachel Feierman
Juvenile Law Center
1315 Walnut Street, Suite 400
Philadelphia, DC

20Alternate Public Defender (Amicus curiae)
Represented by Maureen Theresa Pacheco
Los Angeles County Public Defender's Office
9425 Penfield Avenue, 2nd Floor
Chatsworth, CA

21National Center For Youth Law And Youth Law Center (Amicus curiae)
Represented by Jessica Rachel Feierman
Juvenile Law Center
1315 Walnut Street, Suite 400
Philadelphia, DC

22National Center For Youth Law And Youth Law Center (Amicus curiae)
Represented by Jonathan Todd Laba
Contra Costa Coutny Public Defender's Office
800 Ferry Street
Martinez, CA

23National Center For Youth Law And Youth Law Center (Amicus curiae)
Represented by Maureen Theresa Pacheco
Los Angeles County Public Defender's Office
9425 Penfield Avenue, 2nd Floor
Chatsworth, CA

24Harris, Darren (Interested Entity/Party)
Kern Valley State Prison
P.O. Box 5101
Delano, CA


Opinion Authors
OpinionJustice Marvin R. Baxter
DissentJustice Joyce L. Kennard

Disposition
Jul 2 2009Opinion: Reversed

Dockets
Jul 30 2007Received premature petition for review
The People, respondent by Eric D. Share, Deputy Attorney General
Jul 31 2007Case start: Petition for review filed
The People, Respondent by Eric D. Share, Deputy Attorney General
Jul 31 2007Record requested
Aug 2 2007Received Court of Appeal record
one file folder/briefs/transcript
Sep 21 2007Time extended to grant or deny review
The time for granting or denying review in the above-entitled matter is hereby extended to and including October 29, 2007, or the date upon which review is either granted or denied.
Oct 10 2007Petition for review granted (criminal case)
Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Oct 29 2007Request for extension of time filed
The People requesting to December 10, 2007, to file opening brief on the merits (to court for permission)
Oct 31 2007Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including December 10, 2007.
Dec 4 2007Application for relief from default filed
Eric D. Share, Deputy Attorney General, counsel for respondent requesting relief to file the opening brief on the merits in excess of 14,000 words (to court for permission)
Dec 5 2007Opening brief on the merits filed
The People, Plaintiff and Respondent Eric D. Share, counsel (filed w/permission)
Dec 14 2007Request for extension of time filed
Michelle M. Thomson counsel for appellant requesting 60-day extension of time to March 4, 2008, to file answer brief on the merits (to court for permission to file)
Dec 31 2007Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including February 4, 2008.
Jan 23 2008Request for extension of time filed
Michelle M. Thomson counsel for appellant requesting 30-day extension of time to March 5, 2008, to file answer brief on the merits (to court for permission to file)
Jan 31 2008Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including March 5, 2008. No further extensions of time are contemplated.
Mar 4 2008Answer brief on the merits filed
Vince Vinthuong Nguyen, Defendant and Appellant. Michelle M. Thomson & Douglas L. Rappaport, counsel
Mar 13 2008Request for extension of time filed
Eric D. Share, Deputy Attorney General, for The People requesting to April 7 to file reply brief on the merits. (to court for permission to file)
Mar 18 2008Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including April 7, 2008. No further extensions of time are contemplated.
Mar 27 2008Reply brief filed (case fully briefed)
The People, Plaintiff and Respondent Eric D. Share, Deputy Attorney General
Apr 7 2008Received application to file Amicus Curiae Brief
and application to file oversized brief. California Public Defenders Association in support of Appellant. by Seth Flagsberg, counsel
Apr 16 2008Permission to file amicus curiae brief granted
The application of California Public Defenders Association for permission to file an oversized amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 16 2008Amicus curiae brief filed
California Public Defenders Association, Seth Flagsberg, Deputy Public Defender and Michael Ogul, Chief Deputy Public Defender
Apr 25 2008Received application to file Amicus Curiae Brief
Los Angeles County District Attorney [in support of resp] ~Deputy District Attorneys Lael Rubin, Phyllis Asayama and Roberta Schwartz
Apr 28 2008Received application to file Amicus Curiae Brief
Galit Lipa counsel for amici Criminal Defense Clinic, Mills Legal Clinic of Stanford Law School in support of respondent. (to court for permission to file)
Apr 30 2008Received application to file Amicus Curiae Brief
from Jessica Feierman counsel for amici Pacific Juvenile Defender Center et al. in support of appellant (CRC, rule 8.25(b) - UPS Next Day Air) (to court for permission to file)
Apr 30 2008Permission to file amicus curiae brief granted
The application of Criminal Defense Clinic, Mills Legal Clinic of Stanford Law School for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 30 2008Amicus curiae brief filed
Criminal Defense Clinic, Mills Legal Clinic of Stanford Law School in support of respondent. Galit Lipa, counsel
Apr 30 2008Permission to file amicus curiae brief granted
The application of Los Angeles County District Attorney for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 30 2008Amicus curiae brief filed
Los Angeles County District Attorney in support of respondent. Roberta Schwartz, Deputy District Attorney
May 6 2008Permission to file amicus curiae brief granted
The application of Pacific Juvenile Defender Center, Juvenile Law Center, Juvenile Division of the Los Angeles Public Defender, Alternate Pubic Defender, National Center for Youth Law and Youth Law Center for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
May 6 2008Amicus curiae brief filed
Pacific Juvenile Defender Center, Juvenile Law Center, Juvenile Division of the Los Angeles Public Defender, Alternate Pubic Defender, National Center for Youth Law and Youth Law Center in in support of appellant. Jessica Feierman, Jonathan Laba and Maureen Pacheco, counsel
Jul 10 2008Received:
letter from Maureen Pacheco counsel for Amici Curiae Pacific Juvenile Defender Center with a copy of a recently decided case.
Mar 11 2009Case ordered on calendar
to be argued Monday, April 6, 2009, at 1:30 p.m., in Los Angeles
Mar 16 2009Filed:
Letter from Douglas L. Rappaport, counsel for appellant Nguyen, asking to delay argument until the last week of May.
Mar 16 2009Order filed
Appellant's request to reschedule oral argument from April 2009 to a later date, filed March 13, 2009, is denied.
Mar 23 2009Supplemental brief filed
by the respondent, citing case: Apprendi v. New Jersey (2000) 530 U.S. 466. by Eric D. Share, deputy attorney general
Apr 6 2009Cause argued and submitted
Apr 8 2009Received:
additional authorities regarding "History of the Juvenile Trial Right", from counsel for the appellant.
Jul 1 2009Notice of forthcoming opinion posted
Jul 2 2009Opinion filed: Judgment reversed
Majority Opinion by: Baxter, J. -----joined by: George, C.J., Werdegar, Chin, Moreno, and Corrigan, JJ. Dissenting Opinion by: Kennard, J.
Jul 17 2009Rehearing petition filed
Vince Vinthuong Nguyen, Defendant and Appellant. Douglas L. Rappaport and Michelle M. Thomson, counsel.
Jul 20 2009Time extended to consider modification or rehearing
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including September 30, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Aug 19 2009Rehearing denied; opinion modified
Kennard, J., is of the opinion the petition should be granted.
Aug 19 2009Opinion modified - no change in judgment
Aug 19 2009Remittitur issued
Aug 24 2009Received:
Receipt for remittitur

Briefs
Dec 5 2007Opening brief on the merits filed
The People, Plaintiff and Respondent Eric D. Share, counsel (filed w/permission)
Mar 4 2008Answer brief on the merits filed
Vince Vinthuong Nguyen, Defendant and Appellant. Michelle M. Thomson & Douglas L. Rappaport, counsel
Mar 27 2008Reply brief filed (case fully briefed)
The People, Plaintiff and Respondent Eric D. Share, Deputy Attorney General
Apr 16 2008Amicus curiae brief filed
California Public Defenders Association, Seth Flagsberg, Deputy Public Defender and Michael Ogul, Chief Deputy Public Defender
Apr 30 2008Amicus curiae brief filed
Criminal Defense Clinic, Mills Legal Clinic of Stanford Law School in support of respondent. Galit Lipa, counsel
Apr 30 2008Amicus curiae brief filed
Los Angeles County District Attorney in support of respondent. Roberta Schwartz, Deputy District Attorney
May 6 2008Amicus curiae brief filed
Pacific Juvenile Defender Center, Juvenile Law Center, Juvenile Division of the Los Angeles Public Defender, Alternate Pubic Defender, National Center for Youth Law and Youth Law Center in in support of appellant. Jessica Feierman, Jonathan Laba and Maureen Pacheco, counsel
Brief Downloads
application/pdf icon
OpeningBrief for AG.pdf (15907711 bytes) - Opening Brief on the Merits - CA Atty General
application/pdf icon
Answer Brief for Nguyen.pdf (199561 bytes) - Answer Brief on the Merits - Nguyen
application/pdf icon
ReplyBrief by AG.pdf (3719218 bytes) - Reply Brief on the Merits - CA Atty General
application/pdf icon
Nguyen Amicus Br Cal Pub Defenders.pdf (181502 bytes) - Amicus Brief by California Public Defenders Association
application/pdf icon
Nguyen Amicus Mills Legal Clinic.pdf (78093 bytes) - Amicus Brief by Mills Legal Clinic, Stanford Law School
application/pdf icon
Nguyen-amicus Juvie Centers.pdf (1335398 bytes) - Amicus Brief by several nonprofits that practice in juvenile law
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 11, 2009
Annotated by Karli Baumgardner

Procedural History: In 1999, the defendant, then a minor, was charged and convicted of assault with a deadly weapon. He was found guilty through the juvenile adjudication system. In 2004, as an adult, defendant was charged with four felonies and two misdemeanors. In 2005, defendant pled no contest to the felony of firearm possession by an ex-felon and the misdemeanor of possession of a billy. Defendant waived his right to a jury trial on the issue of his prior felony and objected that the use of this prior felony to increase his maximum sentence was a violation of his 6th Amendment rights because he had no right to a jury trial in the juvenile adjudication.
The trial court rejected Defendant's argument and sentenced him to 16 months which was doubled to 32 months under the Three Strikes Law. Defendant appealed.
The Court of Appeals ultimately held that the 6th amendment prohibits the use of non-jury juvenile adjudications to increase adult sentences.
The Supreme Court reversed.

Nov 11, 2009
Annotated by Karli Baumgardner

Question: Can the fact of a non-jury juvenile adjudication be used to increase the maximum sentence of an adult felony under California's Three Strikes law?

Nov 8, 2009
Annotated by Karli Baumgardner

Holding: "[T]he absence of constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi, preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person."

Nov 8, 2009
Annotated by Karli Baumgardner

Reasoning:
- The Apprendi-line of cases requires only that a jury find the fact of the prior conviction in order to increase the sentence. The defendant waived this right.
- The Constitution does not require a jury trial for juvenile proceedings (McKeiver) and there is no reason that an adjudication that provides the defendant with all of the Constitutional protections necessary cannot be used as a basis for an increased sentence.
-Recidivism is a traditional basis for harsher sentences which are decided by the court, not by a jury.