Filed 4/11/14 P. v. Vargas CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047358

         v.                                                            (Super. Ct. No. 09NF0461)

MIGUEL ALEXANDER VARGAS,                                               OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, William
R. Froeberg, Judge. Affirmed.
                   Christopher Nalls, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              A jury convicted defendant Miguel Alexander Vargas of one count of first
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degree murder (Pen Code, § 187, subd. (a)) and one count of carjacking (§ 215, subd.
(a)). The jury found true that defendant had suffered one prior juvenile adjudication for
robbery, which was charged as both a strike (§§ 667, subds. (d), (e)(1), 1170.12, subds.
(b), (c)(1)) and a serious prior felony (§ 667, subd. (a)(1)). The court sentenced
defendant to 50 years to life on the first degree murder, double the principal term
pursuant to the prior strike. It sentenced defendant to a determinate term of 18 years for
the carjacking, which was double the upper term pursuant to the prior strike. It then
imposed an additional 5 years for the serious prior felony. The court ordered appellant’s
determinate sentence of 23 years to be served consecutively to his indeterminate sentence
of 50 years to life. Defendant timely appealed.
              Defendant raises a single issue on appeal, which he acknowledges runs
contrary to a binding California Supreme Court precedent, People v. Nguyen (2009) 46
Cal.4th 1007 (Nguyen), but which he is raising “in order to ask the Supreme Court to
reconsider Nguyen, and also to preserve the issue for federal review.”
              Defendant contends the use of a prior juvenile adjudication as a strike to
double his sentence violated his right to a jury trial under the Sixth and Fourteenth
Amendments to the United States Constitution as interpreted by Apprendi v. New Jersey
(2000) 530 U.S. 466, 490 (Apprendi). Under identical circumstances, our high court in
Nguyen rejected this argument: “Defendant argues . . . that because he had no right to a
jury trial in the prior juvenile proceeding, the Fifth, Sixth, and Fourteenth Amendments,
as construed in Apprendi, bar use of the resulting criminal adjudication to enhance his
maximum sentence in this adult proceeding. For several reasons, we reject the
contention.” (Nguyen, supra, 46 Cal.4th at pp. 1014-1015.) As defendant acknowledges,



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              All statutory references are to the Penal Code.

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we are bound by the California Supreme Court’s opinion. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we must affirm.


                                    DISPOSITION


             The judgment is affirmed.




                                               IKOLA, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.




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