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Court of Appeal, Second District, Division 2, California.

The PEOPLE, Plaintiff and Appellant, v. Samuel Joseph PETERSON, Defendant and Respondent.

No. B090670.

Decided: December 12, 1995

Gil Garcetti, District Attorney, Brent Riggs and Joseph N. Sorrentino, Deputy District Attorneys, Los Angeles, for plaintiff and appellant. Angelyn Gates, Los Angeles, for defendant and respondent.

Following a jury trial, defendant Samuel Joseph Peterson was convicted of kidnapping during the commission of a carjacking, a crime punishable by imprisonment in state prison for life with possibility of parole (Pen.Code, § 209.5, subd. (a)), and was found to have personally used a firearm in committing that offense.  (Pen.Code, § 12022.5.)   Thereafter, the trial court denied defendant's motion challenging the constitutionality of using a juvenile adjudication as a “strike” for purposes of sentence enhancement and found beyond a reasonable doubt that defendant had suffered a prior felony conviction.  (Pen.Code, § 667, subd. (d)(3).) 1

Despite its finding, the court struck the prior conviction allegation in the interest of justice under Penal Code section 1385, opining it was empowered to do so by the retroactive application of Proposition 184 (Pen.Code, § 1170.12);  in the alternative, the court reasoned that sentencing defendant as “required by the three strikes law on a second strike based upon [a] juvenile prior” would constitute cruel and unusual punishment in violation of the state and federal Constitutions.  (Cal. Const., art. I, § 17;  U.S. Const., 8th Amend.)   The effect of the court's action was to render defendant eligible for parole in seven years (Pen.Code, § 3046) rather than fourteen years, as would have been the case had the court doubled the minimum term of defendant's indeterminate sentence in accordance with the “three strikes” law.  (Pen.Code, § 667, subd. (e)(1).)

The People have appealed pursuant to Penal Code section 1238, subdivision (a)(10), contending the trial court repudiated the clear legislative intent manifested in the “three strikes” law and imposed an unlawful sentence.   We agree and hold that:  I. Juvenile adjudications may be used to enhance sentences notwithstanding the absence of a jury trial.   II. Proposition 184 did not change the “three strikes” law as enacted by the Legislature.   III. Doubling the minimum term of defendant's indeterminate sentence does not constitute cruel and/or unusual punishment.


Viewed in the light most favorable to the judgment as required by the usual rule governing appellate review (People v. Ceja (1993) 4 Cal.4th 1134, 1138, 17 Cal.Rptr.2d 375, 847 P.2d 55), the evidence established that shortly after midnight on March 9, 1994, 19–year–old Matthias Kaczorowski, who had been driving his friend's pick-up truck, parked the vehicle in front of the motorcycle shop where his friend worked.   After Kaczorowski exited the truck, defendant and a juvenile approached him.   Defendant was wielding a firearm and threatened to shoot Kaczorowski if he did not get into the truck and start it.   Kaczorowski complied.   Defendant seated himself next to Kaczorowski and the juvenile sat in the back seat.

Defendant directed Kaczorowski at gunpoint to drive to the Glendale Galleria so defendant could carjack another vehicle at that location.   As a result of defendant's erroneous instructions, however, the trio ended up in Pasadena rather than Glendale.   While Kaczorowski was waiting at a light on Fair Oaks Avenue, the police, having been notified of the carjacking, pulled up behind Kaczorowski with their overhead lights activated and, utilizing their “P.A. system,” ordered him to stop.   Kaczorowski turned off the ignition, but defendant ordered him to take off or be shot.   Defendant also threatened to shoot Kaczorowski if he slowed down, crashed or if defendant was caught.

Acquiescing to defendant's demands, Kaczorowski drove away from the officers.   In so doing, he became engaged in a high speed pursuit involving several police units.   He reached speeds in excess of 85 miles per hour and at one point turned the wrong way on a one-way street at defendant's insistence.   The chase through the Pasadena city streets ended when Kaczorowski collided with a police car.   Defendant was taken into custody and a loaded .38–caliber revolver with a cocked hammer was recovered from under the right front passenger seat.

Although Kaczorowski did not detect and the police could not recall observing any physical manifestations that defendant was under the influence of alcohol during the early morning hours of March 9, defendant presented evidence that he was severely intoxicated and suffering from an alcoholic blackout at that time and therefore lacked the ability to form the specific intent required to commit the crime with which he was charged.


I. Constitutionality of Utilizing a Juvenile Adjudication as a Prior Conviction

Penal Code section 667, subdivision (d)(3) specifies that “[a] prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:  [¶] (A) [t]he juvenile was 16 years of age or older at the time he or she committed the prior offense[;]  [¶] (B) [t]he prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) [of subdivision (d) of Penal Code section 667] as a felony[;]  [¶] (C) [t]he juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law [;  and] [¶] (D) [t]he juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.”

In disputing the constitutionality of the foregoing provisions, defendant unsuccessfully argued below:

“The Due Process clauses exist to assure fundamental fairness when citizens' liberty is at stake.   The rights afforded juveniles and the procedure used in juvenile courts are not the same as criminal courts.   An example of these differences is their lack of the right to a jury trial.   The focus of juvenile court is very different from that of our adult criminal courts.   The procedures in juvenile court have been found constitutional due to this difference.   In fact the courts have justified the juvenile system procedures and held they do not have to conform to requirements of criminal tr[ia]ls by declaring that they are not criminal prosecutions.

“Since the procedures under which defendant acquired this ‘prior’ did not afford him the rights he would have had as an adult, the use of a ‘conviction’ in juvenile court violates the fundamental fairness aspect of the due process clauses.

“Additionally, because the new section permits this juvenile prior to enhance a sentence in the same fashion as an adult prior, defendant is being deprived of equal protection.   A defendant with an adult prior was afforded the rights defendant was denied.   The adult-prior defendant was treated differently than defendant Peterson.   As a class, then, these juvenile offenders are being treated to their disadvantage merely because they are juveniles.   While the adult-prior defendant was given a jury trial, the minor defendant was not.   However, they both are being punished to the same respect through the new 667 section.”

The issues raised by defendant have not yet been definitively settled in the context of California's “three strikes” law.   Nonetheless, it has long been assumed in this state that a trial court may consider “a defendant's juvenile record for purposes of enhanced adult sentencing.”  (People v. Lucky (1988) 45 Cal.3d 259, 295, fn. 24, 247 Cal.Rptr. 1, 753 P.2d 1052 and authority cited therein;  see also People v. Berry (1981) 117 Cal.App.3d 184, 191–193, 172 Cal.Rptr. 756;  People v. Hubbell (1980) 108 Cal.App.3d 253, 166 Cal.Rptr. 466;  People v. Ramos (1980) 106 Cal.App.3d 591, 609, 165 Cal.Rptr. 179.)   In fact, in People v. Hubbell, supra, 108 Cal.App.3d 253, 166 Cal.Rptr. 466, when the defendant complained the trial court had erred in considering his juvenile record as a factor in aggravation, citing as support for his position the nonpenal attributes of the juvenile system and the absence of a jury trial in such proceedings, the appellate court “conclude[d] it is not only a legislative mandate, but also a constitutionally permissible and sound policy for a sentencing court to take into consideration an adult offender's juvenile record in determining the appropriate sentence to impose.”  (Id. at p. 258, 166 Cal.Rptr. 466.)   By the same token, although the appellate court, in People v. West (1984) 154 Cal.App.3d 100, 201 Cal.Rptr. 63, struck an enhancement of an adult criminal offender's sentence based on prior juvenile adjudications on the ground they were not “prior convictions” within the meaning of former Penal Code section 667, subdivision (a), the court stressed that it did not “question the power of the electorate to require the imposition of a five-year enhancement onto a new conviction for each prior juvenile adjudication.”  (People v. West, supra, at p. 110, 201 Cal.Rptr. 63.)   It simply determined the voters had not done so in that instance.

Like California, appellate courts in many other state and federal jurisdictions have concluded prior nonjury juvenile delinquency adjudications may be used to enhance a defendant's adult sentence without violating due process.  (See Annot., Consideration of Accused's Juvenile Court Record in Sentencing for Offense Committed As Adult (1975) 64 A.L.R.3d 1291, 1295–1304, and later cases (1995 pocket supp.) pp. 98–100;  Owens, California's Three Strikes Law:  Desperate Times Require Desperate Measures–But Will It Work? (1995) 26 Pacific L.J. 881, 912–915;  Feld, Juvenile Court Legislative Reform and the Serious Young Offender:  Dismantling the “Rehabilitative Ideal” (1981) 65 Minn.L.Rev. 167, 233, 237.)   In contrast with California, however, not all of the states allowing juvenile court records to be taken into account for purposes of determining whether to aggravate or mitigate a defendant's adult sentence permit those same juvenile adjudications to be considered as prior felony convictions within the purview of their habitual criminal statutes.  (See, e.g., Gahley v. State (Fla.App.1992) 605 So.2d 1309;  Pickens v. State (Ala.Crim.App.1985) 475 So.2d 637, 639;  Fletcher v. State (Del.Supr.1979) 409 A.2d 1254;  People v. McIntire (1967) 7 Mich.App. 133, 151 N.W.2d 187.)   Nevertheless, we have located no reported cases from any jurisdiction in which habitual criminal statutory schemes have been declared constitutionally infirm because they permit certain prior juvenile adjudications to be relied upon as predicate felony convictions for habitual offender classification.   On the contrary, the Illinois Supreme Court has rejected the notion that that state's Habitual Juvenile Offender Act is constitutionally defective because it failed “to require that trial by jury be afforded at the proceedings which resulted in the two prior adjudications upon which application of the Act is predicated.”  (People ex rel. Carey v. Chrastka (1980) 83 Ill.2d 67, 46 Ill.Dec. 156, 160, 413 N.E.2d 1269, 1273.)

 Nor do we expect our highest court to invalidate California's “three strikes” provisions relating to juvenile priors when it ultimately addresses the issue.   The same rationale which has led courts generally to uphold the use of a defendant's earlier juvenile adjudications in sentencing proceedings is equally applicable here.   Insofar as distinctions exist between criminal and juvenile proceedings because of the fundamentally different purposes the two bodies of law are designed to serve, it is well-settled that juveniles are not guaranteed all the constitutional protections afforded adults in criminal cases.  (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647;  In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368;  In re Gault (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.)   First and foremost, they do not have a constitutional right to a jury trial.  (McKeiver v. Pennsylvania, supra, 403 U.S. at pp. 545–550, 91 S.Ct. at pp. 1986–1988.)   Rather, the applicable due process standard in juvenile proceedings is “fundamental fairness.”  (Id. at p. 543, 91 S.Ct. at p. 1984.)  “If it does not violate due process for a juvenile to be deprived of his or her liberty without a jury trial, we fail to find a violation of due process when a later deprivation of liberty is enhanced due to this juvenile adjudication.”  (U.S. v. Williams (9th Cir.1989) 891 F.2d 212, 215;  see also People v. Berry, supra, 117 Cal.App.3d at pp. 192–193, 172 Cal.Rptr. 756;  People v. Hubbell, supra, 108 Cal.App.3d at p. 257, 166 Cal.Rptr. 466;  McCullough v. Singletary (11th Cir.1992) 967 F.2d 530, 532–534;   U.S. v. Bucaro (3rd Cir.1990) 898 F.2d 368, 371–373;  U.S. v. Kirby (6th Cir.1990) 893 F.2d 867, 868;  State v. Little (Minn.App.1988) 423 N.W.2d 722.)   Neither are we persuaded that a constitutional problem arises under California's “three strikes” law because someone with adjudications of juvenile delinquency is subject to the same sentence as a person with prior adult criminal convictions.  (See U.S. v. Bucaro, supra, 898 F.2d at p. 373, fn. 8.)

“In the context of habitual criminal statutes, ‘increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.’  [Citation.]”  (People v. Jackson (1985) 37 Cal.3d 826, 833, 210 Cal.Rptr. 623, 694 P.2d 736.)   When a defendant “ ‘is no longer a child and when it is demonstrated by his conviction that he has not rehabilitated himself, there is no longer any reason to preclude the use of the evidence in the juvenile proceedings for the purpose of fixing his sentence.’  [Citation.]”  (People v. Hubbell, supra, 108 Cal.App.3d at p. 258, 166 Cal.Rptr. 466, italics omitted.)   The mere fact that a declaration of wardship results from the findings of a judge rather than a jury does not render it suspect.   Such a declaration is made only after the juvenile court has satisfied itself beyond a reasonable doubt that the allegations in the petition are true.   Consequently, it represents a fair means of establishing a defendant's criminal propensity.

II. Effect of Proposition 184 on Trial Court's Authority to Strike Priors

The information in this case was filed on July 8, 1994, after the effective date of the “three strikes” law (Pen.Code, § 667, subds. (b)-(i)), but before the passage on November 8, 1994, of what has aptly been characterized as “its practically identical twin” (Owens, California's Three Strikes Law:  Desperate Times Require Desperate Measures—But Will It Work? (1995) 26 Pacific L.J. 881, 882), Proposition 184, the “three strikes” initiative measure which added section 1170.12 to the Penal Code.

In striking defendant's prior juvenile offense pursuant to Penal Code section 1385, the trial court alluded to the retroactivity of “the November 9th [sic ] initiative.”   Though the import of the reference is not entirely clear, it appears the court believed the passage of Proposition 184 removed any prohibition Penal Code section 667 may have placed on the court's ability to strike a prior conviction under Penal Code section 1385.2  If so, the court was mistaken.

 While it is usually presumed new penal statutes are intended to operate prospectively, when a statute changes the law to the benefit of defendants, the provision is applied retroactively in pending cases.  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434;  In re Estrada (1965) 63 Cal.2d 740, 746, 48 Cal.Rptr. 172, 408 P.2d 948.)   Even if Penal Code section 1170.12 were deemed to operate retroactively, it would not aid defendant.   Insofar as is relevant for purposes of resolving the instant appeal, Proposition 184 (1) did not alter the “three strikes” statute adopted by the Legislature in March 1994 and (2) does not grant the trial court discretion to strike allegations of prior felony convictions in furtherance of justice pursuant to Penal Code section 1385, subdivision (a).   To adopt any other construction of the “three strikes” initiative would “render its provisions ineffective or contrary to a stated ․ objective.”   (People v. Pieters (1991) 52 Cal.3d 894, 901, 276 Cal.Rptr. 918, 802 P.2d 420.)

The legislative analysis of Proposition 184 set forth in the ballot pamphlet indicates the initiative “proposes amendments to state law that are identical to a law enacted by the Legislature and signed by the Governor in March 1994.   Consequently, adoption or rejection of this initiative will have no direct impact on existing law because the measure reaffirms provisions of the law that are already in effect.”  (Ballot Pamp., analysis of Prop. 184 by Legislative Analyst as presented to the voters, Gen. Elec. (Nov. 8, 1994) p. 33, italics added.)

Penal Code section 667, subdivision (c) reads:  “Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), ․ [¶] ․ (2) [p]robation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.”   The wording of Penal Code section 1170.12, subdivision (a) is virtually identical.   It states that “[n]otwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions, as defined in subdivision (b), ․ [¶] ․ (2) [p]robation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.”   Since the only authorized procedure for not imposing sentence on a prior conviction is to strike the prior (People v. Jones (1992) 8 Cal.App.4th 756, 758, 10 Cal.Rptr.2d 502;   People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122–1123, 231 Cal.Rptr. 387), a literal reading of the language of the initiative makes it clear the voters intended to curtail the power of the judiciary to reduce sentences by striking prior felony conviction allegations pursuant to Penal Code section 1385, subdivision (a)—at least on the court's own motion.

The same limitation on the court's general discretionary power is reflected in subdivision (d)(2) of Penal Code section 1170.12, which grants only the prosecuting attorney the power to move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Penal Code section 1385.   The court, on the other hand, is authorized to dismiss or strike such an allegation only for insufficient evidence.3

The final factor which convinces us of the correctness of our construction of Proposition 184 is this:  interpreting the statute according to its literal meaning comports with and advances its stated purpose.   The preamble to the initiative declares:  “It is the intent of the People of the State of California in enacting this measure to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”  (Ballot Pamp., preamble of Proposed Law, Gen. Elec. (Nov. 8, 1994) p. 64.)

Having concluded the electorate intended to limit the power of the trial court under Penal Code section 1385, subdivision (a) and to maintain the same statutory scheme put into place by the Legislature, it follows the trial court erred in striking defendant's juvenile prior.  (See People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328.)

III. Cruel and/or Unusual Punishment

 Despite the fact that the power to define crimes and prescribe punishment is a legislative function, that authority is circumscribed by the constitutional prohibition against the infliction of cruel or unusual punishment.  (People v. Dillon (1983) 34 Cal.3d 441, 477–478, 194 Cal.Rptr. 390, 668 P.2d 697.)   In California, that prohibition is violated if a statutory punishment “is grossly disproportionate to the offense for which it is imposed.”  (Id. at p. 478, 194 Cal.Rptr. 390, 668 P.2d 697.)

 In our present case, it bears repeating that defendant's life sentence did not result from application of the “three strikes” law, but was the punishment prescribed for his most recent crime, kidnapping during the commission of a carjacking.   The “three strikes” law simply insures a minimum eligible parole date of 14 years rather than 7 years.   We do not believe such a penalty can be considered “grossly disproportionate” given the recognition that recidivism poses a clear danger to society justifying the imposition of more severe punishment for subsequent offenses (see People v. Karsai (1982) 131 Cal.App.3d 224, 242, 182 Cal.Rptr. 406, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, 250 Cal.Rptr. 635, 758 P.2d 1165) and the fact that simple kidnapping, a lesser crime, “is punishable by imprisonment in the state prison for three, five, or eight years.”  (Pen.Code, § 208, subd. (a).)

The circumstances cited by the trial court relating to “ ‘the nature of the offense and/or the offender’ ” (People v. Dillon, supra, 34 Cal.3d at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697;  In re Lynch (1972) 8 Cal.3d 410, 425, 105 Cal.Rptr. 217, 503 P.2d 921) do not persuade us otherwise.   The court pointed out that defendant was 20 years old at the time of the most recent offense, that he was “an immature, unsophisticated[,] physically small and very young person of enormous remorse,” that he was not the instigator of the crime and was motivated by a desire for transportation, that he came from a nurturing family where alcoholism was a problem, that defendant himself was an alcoholic and was intoxicated when he committed both the carjacking and the earlier robbery and that the court had received requests for clemency from many of defendant's relatives and friends, as well as from one of the jurors.   At the same time, the court said it appreciated that “[c]learly life and limb were endangered” by defendant's actions during the course of the carjacking.

Regardless of who may have instigated the carjacking, it was defendant who repeatedly threatened to kill Kaczorowski while aiming a loaded weapon at him.   In addition to the high degree of danger associated with that conduct, defendant also forced Kaczorowski to engage in a high speed chase with police, thereby jeopardizing not only Kaczorowski's safety, but that of the officers and any members of the public who happened to be in the area.   Defendant's juvenile prior also involved violence against a person.   The totality of the circumstances demonstrate the punishment was not disproportionate to defendant's individual culpability.

Neither was the punishment cruel and unusual under federal constitutional standards since it cannot be said that defendant's sentence was grossly disproportionate after comparing the harshness of his sentence to the gravity of his offense.  (Harmelin v. Michigan (1991) 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836;  McCullough v. Singletary, supra, 967 F.2d at p. 535;   McGruder v. Puckett (5th Cir.1992) 954 F.2d 313, 316.)


The judgment is modified to provide that defendant is sentenced to imprisonment in state prison for life, with a minimum eligible parole date of 14 years.   As so modified, the judgment is affirmed.   The trial court is directed to send an amended abstract of judgment to the Department of Corrections.


1.   At age 17, defendant was declared to be a ward of the juvenile court (Welf. & Inst.Code, § 602) as the result of a robbery in which he personally used a dangerous or deadly weapon, i.e., a baseball bat.  (Pen.Code, § 211.)

2.   Section 1385 provides:  “(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.   The reasons for the dismissal must be set forth in an order entered upon the minutes.   No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.  [¶] (b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”

3.   Penal Code section 1170.12, subdivision (d)(2) specifies:  “The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior conviction.   If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation.”  (See identical wording of Pen.Code, § 667, subd. (f)(2).)

FUKUTO, Associate Justice.

BOREN, P.J., and ZEBROWSKI, J., concur.

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