People v. Gallardo, 226 Cal. Rptr. 3d 379

Background

Sulma Gallardo was convicted of robbery and transportation of marijuana; prosecution sought an increased sentence based on a 2005 prior conviction for assault under former Penal Code §245(a)(1).
The prior assault statute was broader than the statutory definition of a "serious felony" because it criminalized assault either with a deadly weapon or by means likely to produce great bodily injury; only the deadly-weapon variant qualifies as a serious felony/strike.
The trial court reviewed the preliminary-hearing transcript from the prior case (victim testified defendant used a knife) and concluded the prior conviction was for assault with a deadly weapon; this produced an 11-year aggregate sentence (strike + serious-felony enhancement).
Gallardo argued the court’s reliance on the preliminary-hearing testimony to characterize the prior conviction violated her Sixth Amendment right under Apprendi because the court made disputed factual findings about prior conduct that increased punishment.
The Court of Appeal affirmed (applying People v. McGee), but the California Supreme Court granted review to decide whether McGee’s approach survived the Supreme Court’s later decisions in Descamps and Mathis.
The California Supreme Court held that Descamps/Mathis clarify the Sixth Amendment limits: courts may identify only facts necessarily established by the prior conviction (or admitted by the defendant); they may not independently find disputed underlying conduct from records like preliminary-hearing transcripts. The case was remanded for limited proceedings to determine what facts, if any, were admitted or necessarily found in the prior plea.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Gallardo waive or forfeit her Sixth Amendment challenge by waiving a jury on priors or not raising the constitutional claim below?	AG: Gallardo waived jury on priors and failed to raise Sixth Amendment claim at trial, so challenge is barred.	Gallardo: Waiver was of statutory jury right on existence of conviction, not a constitutional waiver of jury findings on facts that increase punishment; failure to anticipate Descamps does not forfeiture.	Waiver did not extend to the constitutional claim; forfeiture not decided because AG did not raise it below.
May a sentencing court review the record of a prior conviction to determine whether it qualifies as a "serious felony" by finding what conduct "realistically" supported the conviction?	AG: McGee permits court review of preliminary-hearing transcripts to determine the nature of the prior conviction.	Gallardo: Descamps/Mathis prohibit judicial factfinding about underlying conduct; jury must find any disputed facts that increase punishment.	McGee is disapproved to the extent it permits independent judicial factfinding about underlying conduct; courts may identify only facts necessarily found by a jury or admitted by the defendant.
Is it permissible to rely on preliminary-hearing transcripts (victim hearsay) to infer what a jury necessarily found or what defendant admitted?	AG: Descamps allows consulting limited documents; preliminary-hearing transcripts are among records courts may consult.	Gallardo: Preliminary-hearing testimony cannot show what a jury actually found or what defendant admitted; relying on it makes the court impermissibly find disputed facts.	Preliminary-hearing transcripts cannot be used by a judge to make new findings about underlying conduct when those facts were not necessarily found or admitted; they do not reliably show what a jury found.
Remedy: Remand for a judge to reassess record of conviction, or remand for a jury trial on the priors?	AG: Remand for limited court inquiry into what was necessarily admitted/found; alternatively, jury trial on priors.	Gallardo: Limited court inquiry is acceptable; opposes jury trial alternative.	Court remanded for limited proceedings to allow the People to show, from the record of the prior plea, what facts were necessarily admitted or found; declined to order a fresh jury trial.

Key Cases Cited

Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing punishment must be found by a jury beyond a reasonable doubt, except the fact of a prior conviction)
Shepard v. United States, 544 U.S. 13 (2005) (modified categorical approach permits review of limited documents showing what facts were necessarily found or admitted)
Descamps v. United States, 133 S.Ct. 2276 (2013) (courts may not use sentencing factfinding to discern underlying conduct beyond elements or documents showing what was necessarily found)
Mathis v. United States, 136 S.Ct. 2243 (2016) (reiterates limits on using records to identify the factual basis of a prior conviction; distinguishes elements from means)
People v. McGee, 38 Cal.4th 682 (2006) (previously allowed judges to examine record to determine if prior conviction "realistically" could have been based on nonqualifying conduct; disapproved insofar as it permitted independent judicial factfinding)
People v. Reed, 13 Cal.4th 217 (1996) (California precedent allowing consideration of record-of-conviction materials, such as preliminary-hearing transcripts, within limits)
People v. Guerrero, 44 Cal.3d 343 (1988) (reason for limiting inquiry to record of conviction: avoid relitigation of long-ago events)