Other Cases Affecting Children

In re Mark Anthony Jensen (on habeas corpus) (2001) 92 Cal.App.4th 262 [111 Cal.Rptr.2d 751]. Court of Appeal, Fourth District, Division 1.

The trial court sentenced the juvenile defendant after a jury convicted him of being in possession of a firearm under Penal Code section 12021(a) and found that he had served three prior prison terms and suffered two prior strike convictions under Penal Code section 667.

One of the strikes was a juvenile adjudication for voluntary manslaughter. The defendant had struck a man several times in the head with a piece of driftwood after the victim had made a sexual advance toward him, and then he had covered the victim with sand. The victim was still breathing when the defendant left the scene. The defendant appealed, contending that the trial court had erroneously treated that prior juvenile adjudication as a strike.

The Court of Appeal granted a writ of habeas corpus and directed the trial court to vacate its sentence and to conduct further sentencing proceedings. Certain prior juvenile adjudications can be deemed strikes for sentencing purposes under section 667(d)(3). Section 667(d)(3) provides that a prior juvenile adjudication must constitute a prior felony conviction for the purposes of sentencing enhancements if: (A) the child was 16 or older; (B) the prior offense was listed in Welfare and Institutions Code section 707(b) or listed in Penal Code section 667(d)(1) or (2) as a felony; (C) the child was found fit to be dealt with under juvenile court law; and (D) the child was adjudged a ward under Welfare and Institutions Code section 602 because he or she committed an offense listed in section 707(b). The People argued that the defendant's conduct constituted an assault by any means likely to cause great bodily injury under section 707(b). However, the juvenile court petition did not allege such conduct, and no section 707(b) finding was made. Because the defendant was not adjudged a ward for violating section 707(b), Penal Code section 667(d)(3)(D) was not fulfilled. A prior juvenile adjudication cannot be used as a strike unless all four conditions are met. Therefore, the defendant's prior juvenile adjudication for voluntary manslaughter did not qualify as a strike under section 667(d)(3).