Filed 8/24/15 P. v. Johnson CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----



THE PEOPLE,                                                                                  C077614

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF111178B)

         v.

VANDELL JOHNSON, JR.,

                   Defendant and Appellant.




         This is the second appeal by defendant Vandell Johnson, Jr., following jury
verdicts finding him guilty of two counts of robbery. In his first appeal, we affirmed his
convictions but remanded for retrial on the prior strike allegations and resentencing.
(People v. Johnson (2012) 208 Cal.App.4th 1092.) On remand, the trial court found two
prior strike allegations true, declined to exercise its discretion to dismiss either strike, and
sentenced defendant to two consecutive 25-years-to-life terms.
         Defendant appeals. He contends (1) the strike priors must be stricken because he
did not waive his right to a jury determination of their truth; (2) the prior strike findings
must be stricken because, as juvenile adjudications, he was not afforded a jury trial on

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their truth; and (3) the trial court erred in denying his request to dismiss one or more of
his prior strikes. We shall affirm.
                                      BACKGROUND
       We provide a summary of the procedural background of this case, omitting a
recitation of the facts underlying the offenses because it is immaterial to the resolution of
the issues on appeal.
       Defendant and codefendant Rammel Barao were jointly charged with having
murdered Juan Carlos Lorenzo in the course of robbing him, and with the robbery of
Lorenzo and Lorenzo’s companion, Domingo Moyotl. Each count alleged that Barao
personally used a firearm and that defendant was armed with a firearm. It was further
alleged that defendant had three prior strike convictions, all of which were incurred in
juvenile court, and that defendant had committed the instant offenses while on bail for
another offense.
       Prior to the presentation of evidence, the trial court granted defendant’s motion to
bifurcate the trial of the prior convictions and the on-bail enhancements. In a joint trial
by jury, defendant was acquitted of the murder and all lesser included offenses, but was
found guilty of the two robberies; the armed enhancements were found not true. On
September 3, 2010, after the jury had returned its verdicts, the court dismissed the jury.
After the jury left the courtroom, defense counsel reminded the court that “we still need
to do the issue of priors” and it was agreed the matter, including defendant’s formal
waiver of a jury trial, would be continued to October 18.
       On October 18, 2010, defendant stipulated that the on-bail allegations were true.
However, in our opinion in defendant’s previous appeal, we concluded that no ruling on
the priors was actually made on that date. Accordingly, we reversed and remanded for
further proceedings so as to allow the People to proceed with proving the prior strike
allegations. (People v. Jenkins (2006) 140 Cal.App.4th 805, 814-815.)



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       After issuance of the remittitur, defendant appeared with counsel and a jury trial
on the prior strike convictions was set. On August 18, 2014, defense counsel explained
that defendant had strategically decided to proceed with a court trial on the matter, and
the trial court found two of the prior strike convictions to be true—both based on robbery
adjudications arising from admissions taken on July 12, 2005.
       On September 26, 2014, defendant filed a request to dismiss one or more of his
prior strikes pursuant to Penal Code section 1385 and the authority set forth in People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). In it, defendant argued the
prior adjudications that formed the basis of his strikes were constitutionally infirm
because he had not been adequately advised of the strike consequences of his admissions.
The request included a declaration from defendant averring, among other things, that at
the time he admitted having committed the two prior robbery offenses, he had been told
he would be considered to have but a single prior strike conviction. He also averred that
he was not informed of the consequences of having a prior strike conviction and was
never told that a new felony conviction could result in a sentence of life in prison. He
further stated he would not have admitted the robbery charges if he had known of the
strike consequences. Defendant also proffered declarations from the attorneys who
represented him during the course of the juvenile proceedings suggesting that defendant
might have been misinformed regarding the strike consequences of his admissions. The
request to dismiss his prior strikes also included arguments that the court should consider
his two strike convictions as a single strike because the events giving rise to the
adjudications were based on a single occurrence, and that his criminal record and
personal history demonstrated he did not fall within the spirit of the “three strikes” law.
       The trial court declined to consider the declarations regarding the validity of the
juvenile adjudications, finding the alleged Boykin-Tahl violations were not among factors
to be considered in exercising its discretion to dismiss prior strikes that had been found



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true beyond a reasonable doubt.1 Thus, the trial court found the proffered declarations
irrelevant to its decision whether to dismiss any or all of defendant’s prior strikes. The
trial court then stated it had reviewed the probation officer’s report in examining
defendant’s background, character, and prospects and concluded that, based on
defendant’s criminal history and the other information in the report, defendant falls
within the scheme and spirit of the three strikes law. Accordingly, the trial court declined
to dismiss either of defendant’s prior strikes.
       Defendant was thereafter sentenced to two consecutive terms of 25 years to life in
state prison. Defendant raises several contentions regarding the use of his prior juvenile
adjudications to enhance his sentence.
                                       DISCUSSION
                                               I
                            Right to Jury Trial on Prior Strikes
       Defendant contends that because he never waived his right to have a jury
determine the truth of the alleged strike priors, they must be stricken and he must be
resentenced accordingly. Defendant acknowledges this issue has already been resolved
against him by the California Supreme Court in People v. Epps (2001) 25 Cal.4th 19
(Epps). He presumably raises the issue here to preserve it for federal appeal.
       In Epps, supra, 25 Cal.4th at pages 23, 28-29, the Supreme Court concluded that
there is no constitutional right to a jury trial on prior conviction allegations. In People v.
McGee (2006) 38 Cal.4th 682, 685-687, 699, the California Supreme Court reaffirmed
that the court, not the jury, determines whether a prior proceeding “involves the type of
qualifying prior conviction that authorizes increased punishment under the applicable
sentencing statute.” (Id. at p. 685.) Epps and McGee remain binding on this court. (Auto



1 Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin); In re Tahl (1969)
1 Cal.3d 122 (Tahl).

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Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).) Thus,
because defendant had no constitutional right to a jury trial on the prior strike allegations
and makes no claim of prejudice, the failure to obtain a jury trial waiver does not require
reversal. (Epps, supra, 25 Cal.4th at pp. 28-30.)
                                              II
                          Prior Juvenile Adjudications as Strikes
       Defendant also contends, as he did in his previous appeal, that the trial court was
prohibited from using his prior adjudications incurred in juvenile court to sentence him
under the three strikes law because he was not afforded a jury trial on their validity,
thereby denying him due process and the right to a jury trial as provided by the Sixth and
Fourteenth Amendments to the United States Constitution. Defendant recognizes that the
California Supreme Court has rejected his position in People v. Nguyen (2009) 46 Cal.4th
1007, 1028. Relying on the dissenting opinion of Justice Kennard in Nguyen, defendant
urges Nguyen was wrongly decided. We are bound by the majority opinion and therefore
reject defendant’s contention. (See Auto Equity, supra, 57 Cal.2d at p. 455.)
                                             III
                                 Denial of Romero Motion
       Finally, defendant argues the trial court erred in ruling on his request to dismiss
one or more of his prior strikes. He argues that the court was required to consider the
circumstances surrounding his decision to admit the prior juvenile adjudications and that
the failure to do so resulted in error because the court did not then consider and balance
all the relevant facts.
       A trial court has the discretion to strike a prior serious felony conviction for
purposes of sentencing only if the defendant falls outside the spirit of the three strikes
law. (Pen. Code, § 1385; People v. Williams (1998) 17 Cal.4th 148, 161 (Williams);
Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to do so, the court “must
consider whether, in light of the nature and circumstances of his present felonies and

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prior serious and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.” (Williams, at p. 161.) The trial
court’s “failure to . . . strike a prior conviction allegation is subject to review under the
deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367,
374.)
        In connection with his request to have the court dismiss one or all of his prior
strikes, defendant filed written points and authorities, along with a supporting declaration,
claiming his juvenile adjudications that provided the basis for his prior strikes were
invalid because his admissions to the offenses were not knowingly and intelligently
made. Specifically, he argued that he had not been adequately informed of the strike
consequences of his admissions. Defendant contends the trial court erred in finding the
declarations irrelevant and in failing to consider those declarations in ruling on his
request to strike the strike priors. We find no error.
        As we explained in People v. Strong (2001) 87 Cal.App.4th 328, the striking of a
prior serious felony conviction is not a routine exercise of sentencing discretion. It is an
extraordinary exercise of discretion to determine that a defendant who falls within the
letter of the three strikes law should be treated as if he or she has fewer prior convictions
because, for appropriately considered reasons, he or she is deemed to be outside the spirit
of the law. (Id. at pp. 337-338.)
        A trial court may exercise its discretion to strike a recidivist finding if, and only
if, a defendant can be “deemed outside the . . . spirit” of the statute, giving “preponderant
weight” to inherent statutory factors (such as the background, character, and prospects of
a defendant, as well as the nature and circumstances of the present and previous felony
convictions) and ignoring any factors extrinsic to the statute. (Williams, supra,
17 Cal.4th at p. 161; see id. at p. 159.)

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       Here, the trial court correctly recited its inability to give weight to factors extrinsic
to the three-strikes scheme, such as the reasons defendant decided to admit to his prior
offenses or his beliefs regarding the future consequences of those admissions. The
statutory scheme provides for consideration of the circumstances surrounding the prior
convictions, not the circumstances under which defendant pleaded guilty to them (or
here, admitted the allegations). Defendant’s reasons for admitting his priors do not relate
to the nature or circumstances of the offenses themselves. The alleged
unconstitutionality of adjudications that remain intact, and have been previously found
true, is not a factor intrinsic to the statute. Thus, the proffered declarations challenging
the constitutionality of defendant’s admissions were not relevant to the trial court’s
exercise of discretion to dismiss defendant’s prior strikes.
       Defendant also argues, in a single paragraph, that the trial court made “merely a
conclusory, rote denial” of his request and provided only a “boilerplate statement
justifying a preordained decision” without considering his background, character, and
prospects as required.
       As a preliminary matter, this argument is not subsumed in his heading, which
reads: “The Circumstances Under Which a Defendant Admitted a Charge in a Prior Case
Alleged to be a Strike Are Relevant to a Sentencing Judge’s Exercise of Romero
Discretion, and the Trial Court’s Refusal to Consider the Declarations of the Defendant
and His Prior Counsel in Exercising That Discretion Was Error.” To the extent defendant
is complaining that the trial court’s statement in connection with its ruling does not
sufficiently indicate the balancing and consideration of all the relevant factors, his failure
to set forth his argument under a separate heading or subheading forfeits the claim. (Cal.
Rules of Court, rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995)
34 Cal.App.4th 1826, 1830–1831, fn. 4.)
       Furthermore, defendant has also forfeited any claim regarding the adequacy of the
trial court’s statement of reasons because he failed to object at sentencing. “ ‘An

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appellate court will ordinarily not consider procedural defects or erroneous rulings, in
connection with relief sought or defenses asserted, where an objection could have been
but was not presented to the lower court by some appropriate method . . . . The
circumstances may involve such intentional acts or acquiescence as to be appropriately
classified under the headings of estoppel or [forfeiture] . . . . Often, however, the
explanation is simply that it is unfair to the trial judge and to the adverse party to take
advantage of an error on appeal when it could easily have been corrected at the trial.’
[Citation.] (Italics added [by Doers].)” (Doers v. Golden Gate Bridge etc. Dist. (1979)
23 Cal.3d 180, 184-185, fn. 1; see In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2
[forfeiture is the correct legal term for loss of right based on failure to assert it in a timely
fashion].)
         Defendant made no objection to the trial court’s reasoning in its denial of his
request to dismiss his prior strikes by claiming that it was insufficiently specific or failed
to indicate the balancing and consideration of his background, character, or prospects. As
a result, his claim is forfeited on appeal. (People v. Saunders (1993) 5 Cal.4th 580, 589-
590 [failure to make timely assertion of a right before a tribunal having jurisdiction to
determine it results in forfeiture of that right]; People v. Walker (1991) 54 Cal.3d 1013,
1023.)
         In any event, any claim that the trial court’s statement of reasons was inadequate
fails on the merits. While Penal Code section 1385 requires that the court state its
“reasons for the dismissal,” there is no such requirement where the court denies a request
to dismiss a prior strike. (Pen. Code, § 1385, subd. (a); see Romero, supra, 13 Cal.4th at
p. 531; People v. Orin (1975) 13 Cal.3d 937, 945.) “The court is presumed to have
considered all of the relevant factors in the absence of an affirmative record to the
contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310, citing People v. Kelley
(1997) 52 Cal.App.4th 568, 582.) The trial court was presented with a probation
department report, an impassioned plea for leniency from defendant, and discussion

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regarding defendant’s character, background, and prospects at the hearing and in
defendant’s moving papers. We infer that the court considered all of that information in
its determinative process, as it said it did.
                                        DISPOSITION
       The judgment is affirmed.



                                                          RAYE             , P. J.



We concur:



         ROBIE                , J.



         DUARTE               , J.




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