P. v. Baltazar

Filed 5/5/08 P. v. Baltazar CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS D. BALTAZAR,
Defendant and Appellant.
D050137
(Super. Ct. No. SCE236907)
APPEAL from a judgment of the Superior Court of San Diego County, Louis R.
Hanoian, Judge. The sentence is reversed and the matter remanded for resentencing.
A jury convicted Luis D. Baltazar of second degree murder. (Pen. Code, § 187,
subd. (a).)1 The jury also found Baltazar committed the offense for the benefit of or in
association with a criminal street gang (§ 186.22, subd. (b)(4)), and that he personally
discharged a firearm proximately causing the victim's death (§ 12022.53, subd. (d)).
Baltazar admitted a prior strike conviction allegation (a juvenile adjudication for
robbery), and the trial court sentenced him to prison for 55 years to life--15 years to life

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for second degree murder (§ 187, subd. (a)), doubled pursuant to the three strikes law
(§ 667, subds. (b) - (i)), and 25 years for personally discharging a firearm proximately
causing the victim's death (§ 12022.53, subd. (d)).
Baltazar appeals, contending that his sentence is invalid because the federal
Constitution prohibits the trial court's reliance on Baltazar's prior juvenile adjudication as
a prior strike conviction under the three strikes law.
I
FACTS2
After a party, Omar Gonzalez, who may have been affiliated with the Logan gang,
apparently made a verbal challenge to members of the Market Street gang. Jose Luis
Guadarama, a Market Street gang member, engaged in a brief fistfight with Gonzalez.
Baltazar, also a Market Street gang member, apparently then pulled out a gun and shot
Gonzalez in the head. Gonzalez died as a result of the gunshot wound.
II
DISCUSSION
Baltazar contends that the trial court violated his rights to a jury trial under the
Sixth Amendment, as interpreted in the United States Supreme Court cases of
Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham) and
1 All statutory references are to the Penal Code unless otherwise specified.
2 Baltazar does not challenge his conviction. We only briefly set forth the facts of
the offense, which, as the trial court noted, depict a "totally senseless trag[edy]."

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Apprendi v. New Jersey (2000) 530 U.S. 466 by using his prior juvenile adjudication to
increase his sentence under the three strikes law.
A. Procedural History
While the jury was deliberating, the trial court asked Baltazar's counsel how his
client wished "to proceed with regard to the strike prior." Counsel stated he had reviewed
the documentary evidence regarding "the strike prior from juvenile court," and because
"it appear[s] as though it is a valid prior," the defense planned to "admit the prior."
Counsel added, "I've had a chance to discuss it with [Baltazar], Your Honor, and I believe
he's prepared to admit the prior strike." The trial court addressed Baltazar directly,
asking him whether he "underst[ood] that in connection with the prior, it's alleged that
you suffered a prior robbery [conviction], which is a strike under the California [three]
strike[s] law." The court explained that if the jury convicted him, "the fact that you have
suffered the prior strike . . . will double whatever sentence is the sentence that will be
required in the case." Baltazar stated that he understood.
The court informed Baltazar he had "the right to have a jury make the
determination as to whether or not you suffered that strike prior," and in that jury trial he
would enjoy "the same rights" as in the trial just concluded, including "the right to remain
silent"; "the right to present evidence on your own behalf, to subpoena witnesses at no
cost to you"; "the right to confront and cross-examine witnesses, call witnesses and the
whole nine yards." Baltazar again stated that he understood. The court then stated:
"Mr. Baltazar, do you admit or deny the allegation[] that[,] pursuant
to Penal Code section[s] 667[, subdivisions ](b) through (i), 1170.12
and 668, . . . you were previously adjudicated as a juvenile from the

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following serious or violent felonies under California law: that
would be a robbery charge, for which the date of the adjudication is
the 30th of September in 2002, in case No. JD7221, in the juvenile
court of San Diego County?"
Baltazar stated that he "admit[ted]" the prior adjudication. The court then ruled: "I'm
going [to] accept the admission" and "[f]ind that the defendant has given a knowing and
intelligent waiver of his constitutional rights." The trial court added, "I've examined the
file myself and there is a sufficient factual basis for the admission."
After the jury returned a guilty verdict, the trial court sentenced Baltazar to 55
years to life in prison: Fifteen years to life for the second degree murder conviction
(§ 190, subd. (a)) doubled to 30 years to life because of the prior strike conviction under
the three strikes law (§ 667, subd. (e)(1)), with an additional 25 years to life based on the
firearm use enhancement (§ 12022.53, subd. (d)).
B. Reliance on a Juvenile Adjudication as a Prior Strike Conviction Under the Three
Strikes Law
Baltazar contends the trial court's reliance on his prior juvenile adjudication for
robbery to impose an enhanced sentence under the three strikes law violated his
constitutional right to a jury trial as set forth in Cunningham, supra, 127 S.Ct. 856, 860,
and Apprendi, supra, 530 U.S. 466, 490. This issue is currently pending before the
California Supreme Court in People v. Nguyen, (2007) 152 Cal.App.4th 1205, review
granted October 10, 2007, S154847. The California Supreme Court has also granted
review in People v. Grayson (2007) 66 Cal.Rptr.3d 603, 610, review granted
December 19, 2007, S157952, and People v. Tu (2007) 64 Cal.Rptr.3d 878, 886, review

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granted December 12, 2007, S156995, which held that prior juvenile adjudications may
be used to impose an upper term under the DSL.
In the 2007 Cunningham case, the United States Supreme Court held California's
determinate sentencing law (the DSL) violated the jury trial right safeguarded by the
Sixth and Fourteenth Amendments to the federal Constitution. (Cunningham, supra, 127
S.Ct. at p. 860.)3 The Court explained that, as set out in Apprendi, "the Federal
Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to
impose a sentence above the statutory maximum based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant." (Cunningham, supra, 127
S.Ct. at p. 860.) In invalidating the DSL, the Court concluded that the statutory
framework violated "Apprendi's bright-line rule" because "the middle term prescribed in
California's statutes, not the upper term, is the relevant statutory maximum," and
imposition of an upper term was authorized on the basis of factual findings made by the
trial court, not the jury. (Id. at p. 868.) Cunningham did not address the constitutionality
of California's three strikes law or the use of a prior juvenile adjudication to enhance a
sentence.
Baltazar contends the Cunningham ruling, and the Apprendi line of cases on which
the Cunningham ruling was based, require reversal of his sentence. The Attorney
General contends Baltazar's contention is forfeited because he did not make a
constitutional objection to the use of the prior juvenile adjudication as a prior strike
3 The DSL has since been amended in response to Cunningham. (See generally
People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).)

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conviction at sentencing. However, a constitutional challenge to a sentence on appeal is
not forfeited by not raising the issue at sentencing if at time of sentencing "it was widely
assumed" the challenge was contrary to existing law. (People v. Black (2007) 41 Cal.4th
799, 811.) We conclude that was the situation in this case.
The California Supreme Court has explained there are "two exceptions to a
defendant's Sixth Amendment right to a jury trial on an aggravating fact that renders him
or her eligible for a sentence above the statutory maximum. First, a fact admitted by the
defendant may be used to increase his or her sentence beyond the maximum authorized
by the jury's verdict. [Citation.] Second, the right to jury trial and the requirement of
proof beyond a reasonable doubt do not apply to the aggravating fact of a prior
conviction" (Sandoval, supra, 41 Cal.4th at pp. 836-837, italics added), the so-called
Almendarez-Torres4 exception.
The People contend Baltazar's prior juvenile adjudication is within the first of the
two separate exceptions recognized by our Supreme Court for a fact "admitted by the
defendant." (Sandoval, supra, 41 Cal.4th at pp. 836-837; Cunningham, supra, 127 S.Ct.
at p. 860 ["the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme
that allows a judge to impose a sentence above the statutory maximum based on a fact,
4 Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).
As Baltazar notes, there is reason to believe the United States Supreme Court may
rescind the Almendarez-Torres exception. (Shepard v. United States (2005) 544 U.S. 13,
27 ["Almendarez-Torres . . . has been eroded by this Court's subsequent Sixth
Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-
Torres was wrongly decided"] (conc. opn. of Thomas, J.).)

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other than a prior conviction, not found by a jury or admitted by the defendant" (italics
added)].)
Under the three strikes law, "the defendant has a statutory right to jury trial on the
issue of whether he or she suffered" prior strike convictions, and those prior strikes,
including any "qualifying juvenile adjudication[,] must be pleaded and proved beyond a
reasonable doubt [citation]." (People v. Smith (2003) 110 Cal.App.4th 1072, 1079.) In
this case, during a colloquy with the trial court, Baltazar (and his counsel) waived a jury
trial on the fact of his prior juvenile adjudication and admitted that fact before sentencing.
Consequently, the juvenile adjudication was a "fact admitted by the defendant" and could
permissibly, under the federal Constitution, be relied on to increase Baltazar's sentence
beyond the maximum term authorized by the jury's verdict alone. (Sandoval, supra, 41
Cal.4th at p. 836.)
Baltazar does not dispute he had a right to a jury trial to establish the prior juvenile
adjudication and "admitted the truth of the prior strike allegation," but contends this
"makes no difference" because the admission and jury trial right related solely to the
question of "whether the [juvenile robbery] adjudication in fact occurred," in contrast to
the truth of his commission of the underlying robbery or the right to a jury trial to
establish the truth of the underlying robbery.
By enacting the three strikes law, the Legislature (and simultaneously the
electorate exercising the initiative power) decreed that an adverse adjudication for certain
juvenile offenses would have severe consequences should the juvenile offender later be
convicted in criminal court for a serious or violent felony. In the statutory scheme it is

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the prior adjudication itself and not any finding as to the truth of the offender's
commission of the underlying juvenile offense that triggers the application of the three
strikes law. (See § 667, subd. (d)(3) [setting forth circumstances by which a "prior
juvenile adjudication" must be considered a "prior felony conviction" under the three
strikes law]; § 667, subd. (e)(1) [requiring sentencing term for a defendant with "one
prior felony conviction" to be "twice the term otherwise provided"].) The People contend
that because in the instant case Baltazar admitted he suffered a qualifying juvenile
adjudication--the very fact relied upon to enhance his sentence--there can be no
constitutional violation. Baltazar's three strikes sentence was based solely on " 'the facts
reflected in the jury verdict or admitted by the defendant' " and did not depend on any
additional factfinding by the trial court. (Cunningham, supra, 127 S.Ct. at p. 865, italics
omitted.)
However, the People's argument does not address the issue raised in this case. The
issue is not whether there was a right to a jury determination of the fact of the prior
juvenile adjudication or whether that right was waived by Baltazar's admission of the fact
of his prior juvenile adjudication. The issue is whether a prior juvenile adjudication as to
which there was no right to a jury trial may be used to enhance the otherwise maximum
sentence permitted by the three strikes law.
The Almendarez-Torres exception of a prior conviction relies on an assumption
that a fact of a prior conviction is supported by an underlying jury verdict. (See Jones v.
United States (1999) 526 U.S. 227, 249 [distinguishing holding in Almendarez-Torres on
the ground that "unlike virtually any other consideration used to enlarge the possible

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penalty for an offense, . . . a prior conviction must itself have been established through
procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees"];
Apprendi, supra, 530 U.S. at p. 496 [emphasizing in distinguishing Almendarez-Torres
that "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"]; U.S. v. Tighe (9th
Cir. 2001) 266 F.3d 1187, 1194 ["the 'prior conviction' exception to Apprendi's general
rule must be limited to prior convictions that were themselves obtained through
proceedings that included the right to a jury trial and proof beyond a reasonable doubt"].)
Therefore, the Apprendi exception of a prior conviction to the requirement of a
jury trial to enhance the sentence in this case does not apply and Baltazar's sentence was
enhanced above the otherwise maximum sentence by a prior juvenile adjudication
conducted without a right to a jury trial as required by the Sixth Amendment to the
United States Constitution.
DISPOSITION
The sentence is reversed and the matter is remanded for resentencing. In all other
respects the judgment is affirmed.
McDONALD, Acting P. J.
I CONCUR:
AARON, J.

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IRION, J., Dissenting.
I would affirm the judgment. As the majority recognizes, a fact admitted by the
defendant constitutes an exception to the Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi) rule that is separate and distinct from the Almendarez-Torres v. United States
(1998) 523 U.S. 224 exception for prior convictions. Here, the defendant admitted that
he suffered a qualifying juvenile adjudication, and the Legislature has deemed that fact
alone — the fact of the adjudication — necessitates an increase in his punishment. (See
§ 667, subd. (d)(3) [setting forth circumstances under which a "prior juvenile
adjudication" must be considered a "prior felony conviction" under the three strikes law];
§ 667, subd. (e)(1) [requiring sentencing term for a defendant with "one prior felony
conviction" to be "twice the term otherwise provided"].) In light of Baltazar's admission,
his three strikes sentence was based solely on " 'the facts reflected in the jury verdict or
admitted by the defendant,' " and did not depend on any additional factfinding by the trial
court. (Cunningham v. California (2007) 549 U.S. 270, ___ [127 S.Ct. 856, 865], italics
omitted.) Consequently, there is no Apprendi violation. (Cunningham, at p. 865.)
Thus, while there may be reasonable grounds to criticize the policy of utilizing
juvenile adjudications as prior strikes, that policy does not violate the constitutional rule
announced in Apprendi. (People v. Smith (2003) 110 Cal.App.4th 1072, 1079
[recognizing that under California law, "the defendant has a statutory right to jury trial on
the issue of whether he or she suffered" prior strikes, and those strikes, including any
"qualifying juvenile adjudication[,] must be pleaded and proved beyond a reasonable
doubt"].) As neither Baltazar nor the majority cite any other constitutional rule or

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provision that would permit the courts to override the Legislature's policy decision to
treat certain juvenile adjudications as prior strikes, I dissent.
IRION, J.

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