NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC054893
Ruvolo, P. J.
I.
INTRODUCTION
Appellant Remus Sam Langi (Langi) was convicted by jury of second degree murder (Pen. Code, § 187, subd. (a)),; three counts of robbery (§ 212.5, subd. (c)); and battery resulting in serious bodily injury (§ 243, subd. (d)). Appellant contends his convictions must be reversed because the trial court erroneously refused to admit a statement against penal interest (Evid. Code, § 1230) made by a third-party, who was deceased by the time of trial, acknowledging responsibility for the murder. As to this claim, we agree the trial court erred in refusing to admit this evidence but find the error harmless.
All undesignated statutory references are to the Penal Code.
He also claims his constitutional rights to due process and equal protection were violated by the trial court’s failure to instruct that intoxication can negate implied malice. Lastly, appellant contends that the trial court erred in using a prior juvenile adjudication for robbery to enhance his sentence because he was not afforded the right to a jury trial in the juvenile proceedings. We also reject these additional arguments and affirm appellant’s convictions.
II.
FACTS AND PROCEDURAL HISTORY
The events that led to the death of 19-year-old Miguel Martinez started on December 21, 2002, when Martinez and three other friends, Jose Martinez, Francisco Molina, and Domingo Huerta, were out celebrating the 20th birthday of their friend, Danny Jesus. At around 1:45 or 2:00 a.m. the next morning, December 22, 2002, they went to a cul-de-sac in East Palo Alto where they continued drinking and celebrating.
They were eventually approached by appellant, Sione Fakalata, Joe Ngaloafe, and a fourth individual who has never been positively identified. At first, everything was very friendly, with the two groups of young men exchanging alcohol and conversation.
Suddenly, Fakalata punched Jose Martinez in the face, knocking him down. Jose immediately felt someone going through his pockets. Appellant then punched Miguel Martinez directly in the face, causing Miguel to fall to the ground, landing on his back, and striking the rear of his head on the sidewalk or curb. Once on the ground, even though Miguel was no longer moving, appellant continued to punch and kick Miguel in the head and chest area.
At some point, Danny Jesus also got hit by appellant, causing Jesus to fall to the ground. While he was on the ground, Jesus was kicked in the head. While being assaulted, Jose felt people going through his pockets. Domingo Huerta was also hit by several assailants, including appellant and Fakalata. At one point, both appellant and Fakalata were kicking him and stomping on his head. Huerta, too, could feel someone going through his pockets while he was on the ground. Francisco Molina was not hit but saw Domingo Huerta being hit by the fourth unidentified assailant. Molina was able to leave the scene, and as he did so, he called 911.
The police arrived and arrested appellant and Fakalata within a block or two of the crime scene. Ngaloafe was also arrested nearby. The fourth individual was never found. In searching appellant, police found two sets of keys inside appellant’s pockets that were identified as belonging to Miguel Martinez, and Jose Martinez. Police later found keys and a wallet belonging to Danny Jesus in a nearby school yard. Appellant, Fakalata, and Ngaloafe each had blood stains on their clothing that belonged to a combination of the victims that were beaten and kicked while on the ground.
Miguel Martinez never regained consciousness after falling to the ground and hitting his head due to appellant’s punch to the face. He was removed from life support on December 25, 2002, and died shortly thereafter. The cause of death was brain death due to blunt head trauma. The pathologist also noted numerous contusions to the head from blunt force trauma, subdural hematomas, and numerous other contusions and lacerations to the head and face due to forceful trauma.
Sione Fakalata, Joe Ngaloafe, and appellant were initially jointly charged as codefendants in the murder of Miguel Martinez, and the robberies and assaults of the other victims. The court eventually severed the defendants’ cases for trial. On October 13, 2005, defendant Ngaloafe pled guilty to several felony offenses, including robbery, battery with serious bodily injury, and assault by means of force likely to produce great bodily injury, in exchange for a stipulated term of 10 years in state prison. On October 16, 2006, Sione Fakalata was convicted by jury of numerous felony offenses, including first degree murder. He was sentenced to an aggregate term of 29 years 8 months to life in prison. We affirmed Fakalata’s conviction in an unpublished opinion filed on August 11, 2008. (A116627, Ruvolo, P. J., Sepulveda, J., Rivera, J.)
Appellant’s case proceeded to a jury trial on March 8, 2007. The prosecution argued that Miguel Martinez’s murder occurred during the course of a robbery, and the prosecutor urged the jury to convict appellant of first-degree felony murder. Appellant’s theory of the case was that Miguel Martinez’s death was a “tragic, but classic, case of involuntary manslaughter.”
On March 27, 2007, the jury found appellant guilty of second degree murder, three counts of robbery, and battery with serious bodily injury. Appellant waived his right to a jury trial on his prior strike, a juvenile conviction for robbery; and on March 28, 2007, the court found the prior true. On August 22, 2007, the trial court denied appellant’s motion to strike the prior and sentenced him to a prison term of 38 years to life. Appellant filed a notice of appeal on August 23, 2007.
III.
DISCUSSION
A. Court’s Evidentiary Ruling under Evidence Code section 1230
Almost four years after the murder of Miguel Martinez and on the eve of appellant’s trial, appellant sought to introduce testimony about statements made by Paul Toki (Toki) to several individuals in which Toki allegedly admitted he was the fourth unidentified person who fled from the scene of the crime and that he was the person who punched Miguel Martinez, causing him to fall and hit his head on the pavement. Appellant could not secure Toki’s testimony because Toki was murdered in East Palo Alto on December 13, 2005. The cause of death was multiple gunshot wounds.
Specifically, appellant sought to introduce the testimony of Romulus Langi, appellant’s identical twin brother, and Maletino Mahe, a friend. Romulus Langi and Maletino Mahe were admittedly in ongoing communication with appellant and his co-participant Fakalata since their arrest and incarceration. Appellant argued the hearsay statements were admissible as declarations against Toki’s penal interest pursuant to Evidence Code section 1230. The trial court conducted a lengthy evidentiary hearing and denied the motion, finding the evidence was not trustworthy.
In response, appellant proffered the testimony of three additional witnesses who claimed to have had similar conversations with Toki about the events of December 22, 2002. While appellant sought to introduce the testimony of Supileo Faasolo, Filipine Helu, and Sosefi Veahmatahau as to Toki’s hearsay statements, appellant limits his challenge on appeal to the trial court’s evidentiary ruling as to the proposed testimony of Toki’s cousin, Supileo Faasolo (Faasolo). We are thus presented with the question of whether the court erred in denying appellant’s motion to introduce Faasolo’s proposed testimony about Toki’s hearsay statement admitting he was the fourth unidentified assailant and taking responsibility for having inflicted the lethal blow on Miguel Martinez.
At the pretrial hearing held on the admissibility of this evidence, Faasolo testified that Toki lived with him in East Palo Alto from 2001 until Toki’s death in 2005. On the morning of the crime, at about 2:00 or 3:00 a.m., Toki appeared in Faasolo’s room and woke him up. Toki looked drunk, paranoid, and scared. Faasolo asked what happened, and Toki said that they (Toki, Ngaloafe, Fakalata, and appellant) got into a fight with “Migos” [Mexicans]. Faasolo did not say how many Mexicans there were, but he did say there were outnumbered.
Toki told him that he punched a guy who fell to the ground, whereupon Toki proceeded to kick him. Toki did not go into detail about the fight, but when Toki took off running, he left one of the Mexicans on the ground unconscious. Faasolo drove Toki to his aunt’s house in San Jose because Toki was scared. Toki repeatedly brought up the incident, as much as two times a week. He said that when he ran away, the person on the ground was not moving and he believed he might have killed him.
On March 8, 2007, the trial court issued its ruling on appellant’s motion to admit evidence of Toki’s alleged statements against penal interest. In its written order denying the admission of this evidence, the court expressed “grave concerns” about the sudden appearance of numerous witnesses purportedly having information about incriminating statements made by Toki sometime in late 2002 or 2003. The court indicated that “[t]he obvious engineering by others to have witnesses come forth with new statements on the eve of trial is troubling.” The court concluded that pursuant to Evidence Code section 352, even if aspects of Faasolo’s testimony were admissible, its probative value would be substantially outweighed by the potential for undue consumption of time, danger of undue prejudice, and of confusing or misleading the jury.
We review the court’s decision to exclude Faasolo’s testimony for abuse of discretion. (People v. Geier (2007) 41 Cal.4th 555, 586 (Geier); People v. Brown (2003) 31 Cal.4th 518, 536 (Brown); People v. Greenberger (1997) 58 Cal.App.4th 298, 335 (Greenberger).) On appeal appellant claims “[t]he court’s ruling was an abuse of discretion because the evidence was far more probative than prejudicial, and the ruling violated appellant‘s federal constitutional rights to present his defense and to a fair trial.”
Under the declaration against penal interest exception to the hearsay rule set out in Evidence Code section 1230, a declarant’s out-of-court statement may be admitted for the truth of the matter if certain requirements are met. (People v. Cudjo (1993) 6 Cal.4th 585, 607 (Cudjo); Geier, supra, 41 Cal.4th at p. 584.) The proponent of the evidence has the burden to establish: (1) the declarant is unavailable; (2) the declaration was against the declarant’s penal interest when made; and (3) the declaration was sufficiently reliable to warrant admission despite its hearsay character. (Ibid.; Cudjo, supra, 6 Cal.4th at p. 607.)
Evidence Code section 1230 provides in full: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”
Here, there is no dispute that Toki was unavailable as a witness. He was murdered on December 13, 2005. Our inquiry is limited to the disputed issues of whether Toki’s hearsay statement to Faasolo was against his penal interest and whether his statement was sufficiently reliable to warrant its admission.
The question of whether a statement is against the declarant’s penal interest is an objective one––whether the statement “so far subjected [Toki] to the risk of... criminal liability... that a reasonable man in his position would not have made the statement unless he believed it to be true.” (Evid. Code, § 1230.) In this case, although Toki tried to mitigate his culpability by portraying the incident as a “fight” in which both sets of young men participated instead of a pre-planned ambush and robbery, his statement undeniably placed him in the thick of the events of December 21, 2002. By acknowledging responsibility for delivering the fatal blow to Miguel Martinez that resulted in his death, Toki implicated himself to Faasolo as a major participant in a very serious crime that would undoubtedly subject him to criminal liability. Thus, Toki’s statement was disserving of his penal interest because it is not “disputed or reasonably disputable that a statement confessing to a killing... subjects the declarant to a risk of criminal liability and therefore on its face is against the alleged declarant’s penal interest.” (Cudjo, supra, 6 Cal.4th at p. 607.)
For the final hurdle to admissibility, we consider the “basic trustworthiness of the declaration.” (People v. Frierson (1991) 53 Cal.3d 730, 745.) In other words, we must consider whether Toki’s statement to Faasolo was “sufficiently reliable to warrant admission despite its hearsay character.” (Duarte, supra, 24 Cal.4th at p. 611.) When determining the trustworthiness of the declarant’s statement, the trial court assumes the declarant made the statement and evaluates whether the circumstances indicate the declarant was probably telling the truth when he or she made the statement. (See Cudjo, supra, 6 Cal.4th at p. 608.) “There is no litmus test for the determination of whether a statement is trustworthy and falls within the declaration against interest exception. The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry.” (Greenberger, supra, 58 Cal.App.4th at p. 334.)
We note that in the context of the cases discussing declarations against penal interest, courts use the terms “trustworthy” and “reliable” interchangeably. (Compare Brown, supra, 31 Cal.4th at p. 536 [determining whether the “evidence bore sufficient indicia of trustworthiness”] and People v. Bullard (1977) 75 Cal.App.3d 764, 769 [“the heart [ ] of this exception to the hearsay rule is the... basic trustworthiness of the declaration”]; with People v. Duarte (2002) 24 Cal.4th 603, 610-611 (Duarte) [to qualify for admission, the declaration against interest must be, among other things, “sufficiently reliable”] and People v. Shipe (1975) 49 Cal.App.3d 343, 354 [declarations against interest must be “clothed with indicia of reliability”].)
The Greenberger court defined the least reliable circumstance as one in which the declarant has been arrested and attempts to improve his or her situation with the police by deflecting criminal responsibility onto others. It defined the most reliable circumstance as one in which the conversation occurs between friends in “a noncoercive setting that fosters uninhibited disclosures.” (Greenberger, supra, 58 Cal.App.4th at p. 335.) Here, Toki took full responsibility for his participation in the crime shortly after it occurred, and he did so voluntarily and spontaneously to his housemate in the “most reliable circumstance.” (Id. at p. 335.) There is no evidence in the record that Toki was a suspect, or that he had any reason to believe he was the focus of the criminal investigation at the time he spoke to Faasolo. Under Greenberger, his statement appears to be sufficiently trustworthy to warrant admission under Evidence Code section 1230. (Greenberger at p. 335; see also People v. Cervantes (2004) 118 Cal.App.4th 162, 175, called into doubt on another point in People v. Taulton (2005) 129 Cal.App.4th 1218, 1223 [confession was sufficiently trustworthy to qualify for admission under Evidence Code section 1230 when defendant made the statements to a friend in a noncoercive atmosphere shortly after the shootings].)
Nevertheless, the trial court excluded this evidence based on its finding that the statements attributed to Toki by Faasolo were “self-serving in nature, describing the events as a fight in which Paul Toki and his associates were simply defending themselves against a larger group of Mexicans.” The court also found there were “inconsistencies in the purported statements” and unjustified delay in disclosing the statements to defense counsel creating “tremendous opportunity for the opponent of these statements to attack, at great length,” Faasolo’s credibility. Finally, the court excluded the evidence pursuant to Evidence Code section 352 because its probative value was substantially outweighed by the probability that its admission would necessitate undue consumption of time or create a substantial danger of undue prejudice because in the course of attacking Faasolo’s credibility, “[t]he jury would learn that the co-defendant, Sione Fakalata, was convicted of first-degree felony murder....”
Insofar as the court excluded Toki’s hearsay statement because it doubted Faasolo’s credibility, the court erred. In Cudjo, supra, 6 Cal.4th 585, our Supreme Court found that the trial court improperly excluded a witness’s proposed testimony about a statement that was clearly a declaration against penal interest because the court accepted the prosecution’s argument that the witness was probably a liar who should be excluded as an in-court witness. (Id. at p. 608.) While the Cudjo court acknowledged that there existed “reasonable and legitimate” doubts about the witness’s credibility; nevertheless, those doubts did not provide a sufficient basis to exclude his testimony. (Id. at p. 610.)
The court went on to instruct that in determining the admissibility of a declaration against penal interest “unless the testimony is physically impossible or its falsity is apparent ‘without resorting to inferences or deductions’... doubts about the credibility of the in-court witness should be left for the jury’s resolution.” (Cudjo, supra, 6 Cal.4th at pp. 608-609; Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1011-1013.)
We note that our Supreme Court has taken the view any doubts about the admissibility of third-party culpability evidence should be resolved in favor of its admission. The Supreme Court has reasoned that “ ‘if the evidence is really of no appreciable value no harm is done in admitting it; but if the evidence is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt.’ [Citation.]” (People v. Hall (1986) 41 Cal.3d 826, 834.) Because the record cannot reasonably support a finding that Faasolo’s proposed testimony created one of those “rare instances” of demonstrably false testimony; we find there was no basis to exclude Toki’s statement based on the trial court’s assessment of Faasolo’s credibility. (Cudjo, supra, 6 Cal.4th at p. 609.)
The applicable standard of prejudice for the erroneous exclusion of a declaration against penal interest is set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (Cudjo, supra, 6 Cal.4th at p. 612 .) Consequently, we must determine whether it is reasonably probable the jury would have reached a result more favorable to appellant if Faasolo had been allowed to testify about Toki’s admission of guilt. (Ibid.) Cudjo found the error in that case was not prejudicial because the evidence against the defendant was “extremely strong.” (Id. at pp. 612-613.) Cudjo also noted the severe credibility problems of the witness who was going to testify about the declarant’s statements, and concluded “the chance that a competent jury would have given [the witness’s] testimony substantial weight seems remote.” (Id. at p. 614.)
Similar circumstances exist in the instant case. The evidence of appellant’s guilt was particularly compelling. Appellant was apprehended within the immediate vicinity of the crime and was positively identified by the victims as the person who dealt the fatal blow to Miguel Martinez. The physical evidence supported the victims’ versions of events. Blood stains on appellant’s jacket cuff and shoe were DNA-tested and the blood was identified as belonging to Miguel Martinez. Also, Miguel Martinez’s keys were found in appellant’s pockets when he was arrested shortly after the incident. (See People v. Bradford (1997) 15 Cal.4th 1229, 1325 [trial court’s exclusion of third-party culpability evidence was harmless “[i]n light of the extremely strong evidence against defendant”].)
In addition, the credibility factors which could not properly be used to determine the admissibility of Faasolo’s testimony are pertinent in assessing the prejudice to the appellant from excluding this evidence. (Cudjo, supra, 6 Cal.4th at pp. 613-614 [reliability of hearsay witness’s testimony erroneously considered in excluding testimony but properly considered in determining error was harmless].) We have no doubt that if Faasolo’s credibility was tested by cross-examination, the prosecutor would have exposed the jury to facts demonstrating that Faasolo’s testimony was untrustworthy. For instance, the prosecutor would have been allowed to explore any potential bias stemming from Faasolo’s relationship with the defendants; and Faasolo would have had to explain why it took four years to report Toki’s statement to either law enforcement or the defense. The prosecutor would also have been entitled to establish that information about Toki’s statement surfaced only after co-participant Sione Fakalata had been convicted of first degree murder. This evidence would arguably be relevant to Faasolo’s motive in belatedly coming forward with the statement by Toki. Given these circumstances, the chance a reasonable juror would give Faasolo’s testimony significant weight seems extremely remote.
Lastly, we point out that even if the excluded evidence had persuaded the jury that Toki was the fourth unidentified person at the scene and that it was he, and not appellant, who delivered the fatal blow to Miguel Martinez, this would not have absolved appellant of guilt. While third-party culpability evidence clearly raises a reasonable doubt as to a defendant’s guilt where the evidence establishes that the crime was committed by one person; the situation is entirely different in a case such as this one, where the evidence shows that multiple perpetrators committed the crime under circumstances where each of the defendants can be convicted under an aiding and abetting theory. (See People v. Hall, supra, 41Cal.3d at p. 835 [noting that evidence of a third party’s participation would not tend to exculpate the defendant where there was “no testimony or circumstantial evidence limit[ing] the number of perpetrators”].)
Accordingly, we are confident that it is not reasonably probable that admission of Faasolo’s testimony would have affected the outcome of appellant’s trial. Therefore, we find the court’s exclusion of Toki’s out-of-court statement was harmless error.
B. Voluntary Intoxication Negating Implied Malice
Appellant contends his constitutional rights to due process and equal protection were violated when the trial court failed to instruct the jury that it was permitted to consider appellant’s voluntary intoxication to negate implied malice. Appellant acknowledges that the instructions read to the jury tracked section 22, which eliminated voluntary intoxication as a defense to implied malice murder. Thus, appellant does not argue the trial court failed to follow the law but that the law itself is unconstitutional.
Section 22 states in relevant part: “(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.”
In making his constitutional challenge, appellant argues the trial court’s application of section 22 violated his constitutional rights because “appellant was deprived of his due process right to present exculpatory evidence to negate conscious disregard.” He believes that if “the jury had been permitted to consider whether appellant was too intoxicated to consciously disregard the risk [to life], there is a strong likelihood it would have... convicted him of involuntary manslaughter instead of second-degree murder.”
In addition to arguing that there was a due process violation, appellant also argues that he was denied equal protection because a defendant accused of murder has the right to raise a voluntary intoxication defense to negate express malice yet a defendant tried for an implied malice murder cannot raise the defense of voluntary intoxication. Appellant argues, “[u]nder section 22, the most culpable offenders, first-degree murderers, may reduce their convictions to involuntary manslaughter by showing they were too intoxicated to possess the required mental state, while less culpable second-degree murderers and persons who have otherwise committed voluntary manslaughter are precluded from having the jury consider the same evidence on the same element.”
As appellant acknowledges, we rejected both of these arguments in People v. Timms (2007) 151 Cal.App.4th 1292 (Timms). In addressing appellant’s argument that section 22 violated his due process rights, we explained that section 22, subdivision (b), did not belong to “the prohibited category of evidentiary rules designed to exclude relevant exculpatory evidence.” (Id. at p. 1300.) Quoting Justice Ginsburg’s concurring opinion in Montana v. Egelhoff (1996) 518 U.S. 37, 58-59, we explained: “ ‘Defining mens rea to eliminate the exculpatory value of voluntary intoxication does not offend a “fundamental principle of justice,” given the lengthy common-law tradition, and the adherence of a significant minority of the States to that position today. [Citations.]’ [Citation.] Under this rationale, [section 22] permissibly could preclude consideration of voluntary intoxication to negate implied malice and the notion of conscious disregard. Like the Montana statute [at issue in Montana v. Egelhoff, supra, 518 U.S. 37], the California Legislature could also exclude evidence of voluntary intoxication in determination of the requisite mental state.” (Id. at p. 1300.) Utilizing this reasoning, we rejected the defendant’s argument that the application of section 22 violated his constitutional due process rights by denying him the opportunity to prove he did not possess the required mental state. (Id. at p. 1301.)
We also addressed and rejected appellant’s equal protection argument in Timms, finding that section 22 does not offend equal protection principles because there is a rational basis for not recognizing voluntary intoxication as a defense in an implied malice case, but allowing it as a defense for express malice. “The Legislature had a rational basis for not allowing voluntary intoxication to serve as a defense in an implied malice case.... [T]he Legislature deemed it confusing, in a vehicular homicide case, to allow evidence of voluntary intoxication to aggravate as well as to mitigate the offense. More fundamentally, by withholding voluntary intoxication as a defense to implied malice murder, the Legislature bolstered the deterrent effect of section 22 by underscoring the long-standing principle in California law that voluntary intoxication is no excuse for crime.” (Timms, supra, 151 Cal.App.4th at p. 1302.)
Appellant invites this court to “revisit” our decision in Timms. However, in our view, Timms was correctly decided, and appellant has given us no reason to depart from its reasoning.
C. Prior Juvenile Adjudication
The information filed in this matter alleged that on or about March 14, 2001, appellant had suffered a “three strikes” prior based on a juvenile adjudication for robbery. (§ 1170.12, subd. (c)(1).) The trial court found the allegation to be true. Consequently, the trial court used the juvenile adjudication to aggravate appellant’s sentence. Relying on two federal cases, Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe), appellant contends that, since he had no right to a jury trial in the juvenile proceeding, the use of that adjudication to enhance his sentence violated his Sixth Amendment right to trial by jury.
In Apprendi, supra, 530 U.S. 466, the United States Supreme Court stated 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.” (Id. at p. 490.) The defendant in Tighe claimed that the use of a prior juvenile adjudication to increase his sentence beyond the statutory maximum violated Apprendi because “the fact of his juvenile adjudication [had not been] charged in an indictment and found by a jury beyond a reasonable doubt.” (Tighe, supra, 266 F.3d at p. 1191.) A two-to-one panel of the Ninth Circuit Court of Appeals considered Apprendi’s prior conviction exception. The majority observed that “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. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendi’s ‘prior conviction’ exception.” (Tighe, at p. 1194, fn. omitted.)
Appellant contends that Apprendi and Tighe compel the conclusion that his prior juvenile adjudication could not be used to impose his third strike sentence because he was not afforded the right to a jury trial in the juvenile proceedings. We are, of course, not bound by the decisions of the lower federal courts although such decisions may provide persuasive authority. (People v. Bradford (1997) 15 Cal.4th 1229, 1292.) We observe that Tighe has not met with universal acceptance in the federal arena. (U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1033 [disagreeing with Tighe and concluding that, despite the absence of jury trial, the substantial procedural protections afforded to juveniles under In re Winship (1970) 397 U.S. 358, 368, are “more than sufficient to ensure the reliability that Apprendi requires”]; U.S. v. Jones (3d Cir. 2003) 332 F.3d 688, 696 [“A prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes.”]; U.S. v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190-1191 [same]; U.S. v. Crowell (6th Cir. 2007) 493 F.3d 744, 750-751 [“we join the Third, Eighth, and Eleventh circuits in finding that the imposition of a sentence enhancement... based on a defendant’s juvenile adjudication without a jury trial does not violate the defendant’s due process rights or run afoul of Apprendi”].)
Furthermore, as appellant acknowledges, numerous published California decisions have upheld the constitutionality of California’s sentencing scheme which permits certain juvenile adjudications, including the one suffered by appellant, to be treated as strikes. (See § 667, subd. (d)(3); People v. Bowden (2002) 102 Cal.App.4th 387, 390-394 [finding Apprendi and Tighe had no application in the situation of proof of a strike under Three Strikes law where a qualifying conviction must, in the current proceeding, be pleaded and proved beyond a reasonable doubt]; People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Pearson (2008) 165 Cal.App.4th 740, 748, fn. 3; People v. Del Rio (2008) 165 Cal.App.4th 439, 441; People v. Lee (2003) 111 Cal.App.4th 1310, 1316 [procedural safeguards in juvenile proceedings satisfy the concerns articulated in Apprendi]; People v. Smith (2003) 110 Cal.App.4th 1072, 1077-1079 [juvenile adjudications may be used as strikes for sentencing enhancement, notwithstanding the absence of a right to jury trial in juvenile proceedings]; see also People v. Palmer (2006) 142 Cal.App.4th 724, 733 [disagreeing with Tighe in upholding the use of out-of-state misdemeanor driving-under-the-influence convictions, to which there was no right of jury trial, to enhance the punishment for a current California driving offense].)
In the absence of a definitive statement from our high court, we join the majority of California cases in rejecting appellant’s contention that his prior juvenile adjudication could not be used to enhance his sentence because he was not afforded the right to a jury trial in the juvenile proceeding.
This issue is currently pending before the California Supreme Court in People v. Nguyen, review granted October 10, 2007, S154847; cause argued and submitted April 6, 2009 [2007 Cal. Lexis 10885].
IV.
DISPOSITION
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.
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