In re WILLIAM MILTON on Habeas Corpus.
S259954
IN THE SUPREME COURT OF CALIFORNIA
August 22, 2022
Second Appellate District, Division Seven B297354; Los Angeles County Superior Court TA039953
Justice Jenkins authored the opinion of the Court, in which Chief Justice Cantil-Sakauye, Justices Corrigan, Kruger, and Guerrero concurred.
Justice Liu filed a dissenting opinion, in which Justice Groban concurred.
Justice Groban filed a dissenting opinion, in which Justice Liu
Opinion of the Court by Jenkins, J.
In 1987, petitioner William Milton was convicted of two robberies in Illinois. In 1999, he was convicted of robbery in California, and the prosecution sought an enhanced sentence on the ground the two Illinois robbery convictions were “serious felony” convictions that were also
In 2017, petitioner filed a petition for writ of habeas corpus, seeking resentencing under People v. Gallardo (2017) 4 Cal.5th 120, 124-125 (Gallardo), where we held that a trial court violates a defendant‘s
The Courts of Appeal that have addressed the question of Gallardo‘s retroactivity have reached conflicting results. We conclude the Gallardo rule does not apply retroactively to final judgments. Accordingly, we affirm the Court of Appeal‘s denial of the petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
In 1987, an information was filed in Illinois charging petitioner with armed robbery (Ill. Rev. Stat., former ch. 38, § 18-2(a)) and simple robbery (Ill. Rev. Stat., ch. 38, former § 18-1). The information alleged petitioner committed armed robbery by taking money from the victim “while ar[med] with a dangerous weapon, a gun . . . by threatening the imminent use of force” and that he committed simple robbery by taking money from his victim “by threatening the imminent use of force.” Petitioner pleaded guilty to simple robbery, and an Illinois jury found him guilty of armed robbery.
The Illinois court held a combined sentencing hearing for the two convictions. At the hearing, the Illinois prosecutor recounted the testimony of the armed robbery victim as follows: “Mr. Milton got out of the car, pointed a
In 1998, shortly after he was released from prison in Illinois for the two Illinois robberies and other subsequent offenses, petitioner was charged with another robbery, this time in California, and a jury found him guilty of second degree robbery (
The California prosecutor acknowledged that robbery under Illinois law, unlike under California law, does not require the specific intent to permanently deprive the victim of the property. The prosecutor argued, however, that the trial court could rely on certified documents from Illinois in determining that petitioner used a firearm during both robberies and that the robberies were therefore serious felonies under
Petitioner appealed and contended, among other things, that his Illinois simple robbery conviction did not qualify as a strike. The Court of Appeal affirmed, concluding the trial court was “entitled to look at the entire record of conviction to determine the substance of the foreign convictions” and that “the abstract of the judgment, the stipulated facts of the offense in question and the Illinois court‘s sentencing comments,” which “were admissible as part of the ‘entire record’ of [the] conviction,” provided substantial evidence to support the trial court‘s finding that petitioner “obtained the proceeds of both robberies by pointing and threatening the victims with a handgun.” Petitioner filed a petition for review, which we denied. He subsequently filed five petitions for writ of habeas corpus in this court, each of which we denied.
In 2016, petitioner filed a sixth petition for writ of habeas corpus in our court, asserting the trial court erred in finding his Illinois simple and armed robberies were serious felonies for purposes of the Three Strikes law.2 We denied the petition “without prejudice to any relief to which petitioner might be entitled after this court decides [Gallardo],” which was then pending in our court. Following our decision in Gallardo, petitioner filed the instant petition, arguing his Illinois robberies were not serious felonies under Gallardo. We issued an order directing the Department of Corrections and Rehabilitation to show cause, returnable to the Court of Appeal, “why petitioner is not entitled to relief pursuant to [Gallardo] . . . and why Gallardo should not apply retroactively on habeas corpus to final judgments of conviction.” Following briefing, the Court of Appeal denied the petition in a published opinion. (Milton, supra, 42 Cal.App.5th at pp. 993-994.) The court concluded the trial court‘s factfinding regarding firearm use would have been improper under Gallardo and that if Gallardo applied retroactively, remand would have been necessary. (Id. at p. 999.) The court held, however, that petitioner was not entitled to relief because Gallardo was not retroactive to his final judgment under federal and state tests for retroactivity. (Id. at pp. 993-994.)
As we noted above, the Courts of Appeal that have considered Gallardo‘s retroactivity are split on the issue. (E.g., Milton, supra, 42 Cal.App.5th 977
DISCUSSION
I. Sentence Enhancements Based on Prior Felony Convictions
Under the Three Strikes law, a prior conviction for a “serious felony” (
An out-of-state felony, however, also qualifies as a serious felony under California law if the defendant personally used a firearm or a dangerous or deadly weapon in committing the offense. (
At the time the trial court sentenced petitioner in 1999, California law permitted trial courts to examine “the entire record” of a prior conviction “to determine the substance of” that conviction — i.e., the conduct underlying the conviction — for sentence enhancement purposes. (People v. Guerrero (1988) 44 Cal.3d 343, 355 (Guerrero).) A year later, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum” must be found by a jury. (Id. at p. 490.) The high court, however, preserved the so-called Almendarez-Torres exception (Almendarez-Torres v. United States (1998) 523 U.S. 224), under which “the fact of a prior conviction” used to impose an enhanced punishment for a later offense may be found by the court. (Apprendi, at p. 490.) Applying these principles, the Apprendi court concluded the defendant was improperly denied a jury trial on the factual predicate of an enhancement allegation that was attached to his pending charges. (Id. at pp. 474, 490.)
In People v. McGee (2006) 38 Cal.4th 682 (McGee), we determined that Apprendi‘s extension of the right to have a jury make factual findings did not apply to enhancements based on prior convictions. (McGee, at pp. 709-710.) We held the
Less than a decade later, the United States Supreme Court extended the right to have a jury make factual determinations about the nature of a prior conviction that is used to increase punishment. (See Descamps v. United States (2013) 570 U.S. 254 (Descamps); Mathis v. United States (2016) 579 U.S. 500 (Mathis).) In Descamps, the district court enhanced the defendant‘s punishment under the Armed Career Criminal Act (ACCA,
Subsequently, in Mathis, supra, 579 U.S. 500, the United States Supreme Court considered whether an Iowa burglary conviction qualified as a prior conviction for ACCA purposes. Emphasizing that the ACCA involves an “elements-only inquiry” where “a sentencing judge may look only to ‘the elements of the [offense], not to the facts of [the] defendant‘s conduct,’ ” the high court reaffirmed Descamps‘s holding “that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense.” (Mathis, supra, at pp. 510, 503.)
In both Descamps and Mathis, the United States Supreme Court rested its decision on cases interpreting the ACCA but also drew upon
II. Our Gallardo Decision
Shortly after the high court‘s decisions in Descamps and Mathis, we revisited our earlier decision in McGee in Gallardo. (Gallardo, supra, 4 Cal.5th at p. 124.) In Gallardo, the prosecution alleged the defendant‘s prior conviction for aggravated assault under former
Although the trial court complied with the procedure we approved of in McGee, we concluded in Gallardo that the procedure was no longer viable in light of Descamps and Mathis, which informed us that a defendant‘s “constitutional right to a jury trial swe[pt] more broadly than our case law previously recognized.” (Gallardo, supra, 4 Cal.5th at p. 138People v. McGee” “insofar as it authorize[d] trial courts to make findings about the conduct that ‘realistically’ gave rise to a defendant‘s prior conviction.” (Gallardo, at pp. 125, 134.) We held the court‘s factfinding role regarding prior convictions was now “limited to identifying those facts that were established by virtue of the [prior] conviction itself — that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.” (Id. at p. 136; see id. at p. 124 [the 6th Amend. ” ‘contemplates that a jury,’ ” not the court, will make such factual findings], quoting Descamps, supra, 570 U.S. at p. 269.) Applying these principles, we concluded the trial court violated the defendant‘s right to a jury trial, and we remanded the matter for the court to determine what the defendant necessarily admitted about the nature of her crime when she entered her plea. (Gallardo, at p. 138.)
Justice Chin concurred in the majority‘s conclusion that a defendant has the right to a jury trial on the nature of his or her prior conviction but disagreed with the majority‘s remedy of remanding the matter for the trial court to review the record of conviction. (Gallardo, supra, 4 Cal.5th at p. 140 (conc. & dis. opn. of Chin, J.).) He proposed instead that a jury should review the record of conviction and that the defendant should have the option of presenting live testimony on remand: “The
III. Gallardo Does Not Apply Retroactively
A. General Principles
California courts have applied two tests for retroactivity, often referred to as the federal and state tests. (In re Thomas (2018) 30 Cal.App.5th 744, 754 (Thomas).) Under both tests, a judicial decision that creates a “new rule” is generally not given retroactive effect in cases on collateral review that were final when the rule was announced. (Teague v. Lane (1989) 489 U.S. 288, 306 (Teague); Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36.) Thus, the threshold question under both tests is whether a judicial decision constitutes a new rule. (In re Ruedas (2018) 23 Cal.App.5th 777, 799 (Ruedas).) A new rule, however, will nevertheless be given retroactive effect under either test if it is substantive, as opposed to procedural. (Teague, supra, 489 U.S. at p. 311; People v. Mutch (1971) 4 Cal.3d 389, 395-396.) Therefore, the second question under both tests is whether the new rule announced by the judicial decision is procedural or substantive.
Under the federal test, rules that are both new and procedural do not apply retroactively to final judgments, without exception. (Edwards v. Vannoy (2021) 593 U.S. ___, [141 S.Ct. 1547, 1551-1552, 1560] (Edwards) [the United States Supreme Court‘s decision striking down Louisiana‘s nonunanimous jury verdict law is not retroactive to final judgments because it is a new procedural rule].)3 In contrast,
in California, a new procedural rule may nevertheless be retroactive under People v. Johnson (1970) 3 Cal.3d 404 (Johnson), a case in which this court recited three factors the United States Supreme Court had previously instructed courts to consider in determining whether a new rule applies retroactively to cases predating the announcement of the rule: ” ’ “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” ’ ” (Id. at p. 410; In re Lopez (2016) 246 Cal.App.4th 350, 359, fn. 2 [“[t]he California Supreme Court has articulated a different three-part test for determining retroactivity of judicial opinions involving questions of procedure“].)
“The application of [the various] procedural bars and limitations on the retroactivity of changes in the criminal law serves to protect the finality of judgments on collateral review.” (In re Martinez (2017) 3 Cal.5th 1216, 1222 (Martinez); see Teague, supra, 489 U.S. at p. 306 [the government has a legitimate interest in having judgments remain final, and collateral review ” ‘is not designed as a substitute for direct review’ “]. ) Some California courts have applied the federal retroactivity test in deciding the retroactivity of new procedural rules (e.g., In re Moore (2005) 133 Cal.App.4th 68, 77 [new procedural rule not retroactive under Teague]), while others have applied the state Johnson test (e.g., Thomas, supra, 30 Cal.App.5th at pp. 760-761 [new procedural rule not retroactive under Johnson]) or both tests (e.g., Ruedas, supra, 23 Cal.App.5th at p. 799). We have neither explicitly disavowed Johnson nor explicitly adopted the federal Teague test for state collateral review proceedings (In re Hansen (2014) 227 Cal.App.4th 906, 910), and we need not decide in this case what test applies to new procedural rules, because we reach the same conclusion under both tests.
B. Gallardo Is a New Rule Under Both Federal and State Law
Under federal law, a case will generally be considered to have announced a new rule where it “breaks new ground,” i.e., “the result was not dictated by precedent existing at the time the defendant‘s conviction became final.” (Teague, supra, 489 U.S. at p. 301.) The result in a given case is not dictated by precedent if it is “susceptible to debate among reasonable minds” (Butler v. McKellar (1990) 494 U.S. 407, 415) or if “reasonable jurists may disagree” (Sawyer v. Smith (1990) 497 U.S. 227, 234).
The California cases such as Guerrero that existed at the time petitioner‘s conviction became final did not dictate our decision in Gallardo because Gallardo invalidated the prior procedure that Guerrero and other cases had
Furthermore, as we stated in Gallardo, the law regarding a sentencing court‘s authority to make factual findings about prior convictions was unsettled after Apprendi was decided: “In the wake of Apprendi, questions arose about the scope of the so-called Almendarez-Torres exception to the general
Under California law, a rule is new where the decision “(1) explicitly overrules a precedent of [the California Supreme Court] [citation], or (2) disapproves a practice impliedly sanctioned by prior decisions of [the California Supreme Court] [citation], or (3) disapproves a longstanding and widespread practice expressly approved by a near-unanimous body of lower-court authorities.” (People v. Guerra (1984) 37 Cal.3d 385, 401 (Guerra); see Donaldson v. Superior Court, supra, 35 Cal.3d at p. 36 [a decision that “only elucidates and enforces prior law” does not create new law].)
C. Gallardo Is a Procedural, Not Substantive Rule, Under Both Federal and State Law
Federal and state cases distinguish between substantive and procedural rules in similar ways. We therefore review federal and state authorities relevant to this substantive-procedural dichotomy together and conclude the Gallardo rule is procedural under both the federal and state tests.
Both federal and state cases have held that a rule is substantive rather than procedural where it ” ‘alters the range of conduct or the class of persons that the law punishes.’ ” (Welch v. United States (2016) 578 U.S. 120, 129 (Welch); see Martinez, supra, 3 Cal.5th at p. 1222.) ” ‘This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State‘s power to punish.’ ” (Welch, at p. 129; see In re Lopez, supra, 246 Cal.App.4th at p. 357.)
In Welch, the high court considered the retroactivity of its holding in Johnson v. United States (2015) 576 U.S. 591, 597, invalidating as unconstitutionally vague a provision of the ACCA that defined “violent felony” as any felony that ” ‘otherwise involves conduct that presents a serious potential risk of physical injury to another.’ ” (Welch, supra, 578 U.S. at p. 123.) The high court held this new rule was substantive because all defendants whose sentences had been enhanced under the now-invalidated provision were categorically excluded from enhanced punishment as a result of the new rule. In other words, the new rule “changed the substantive reach of the [ACCA], altering ‘the range of conduct or the class of persons [the ACCA] punishes.’ ” (Welch, at p. 129.) In Martinez, we held that our holding in People v. Chiu (2014) 59 Cal.4th 155 that a natural and probable consequences theory of liability can no longer serve as a basis for a first degree murder conviction was a substantive change in the law that applied retroactively to final judgments. (Martinez, supra, 3 Cal.5th at pp. 1222-1223.) As in Welch, the new rule we announced in Chiu was substantive because all defendants who had been convicted of first degree murder under the now-invalidated natural and probable consequences theory were categorically entitled to relief from their convictions as a result of the new rule.
“Procedural rules, by contrast, ‘regulate only the manner of determining the defendant‘s culpability.’ [Citation.] Such rules alter ‘the range of permissible methods for determining whether a defendant‘s conduct is punishable.’ [Citation.] ‘They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.’ ” (Welch, supra, 578 U.S. at p. 129; see Schriro v. Summerlin (2004) 542 U.S. 348, 352 (Schriro) [procedural rules have a “more speculative connection to innocence“].) “If a new rule regulates only the manner of determining the defendant‘s culpability, then that rule is not substantive.” (Welch, at p. 129.)
procedures for determining culpability, the Teague balance generally tips in favor of finality. The chance of a more accurate outcome under the new procedure normally does not justify the cost of vacating a conviction whose only flaw is that its procedures “conformed to then-existing constitutional standards.” (Welch, supra, 578 U.S. at p. 131.) Some examples of procedural rules are ones that “alter[] only the procedures used to obtain the conviction,” ” ‘allocate decisionmaking authority’ between judge and jury, [citation], or regulate the evidence that the court [may] consider in making its decision.” (Id. at pp. 131, 130.)
In its most recent retroactivity case, the United States Supreme Court stated that its decision striking down Louisiana‘s nonunanimous jury verdict law, which permits conviction by a 10-2 vote, was a procedural rule because it “alter[ed] ‘only the manner of determining the defendant‘s culpability.’ ” (Edwards, supra, 593 U.S. ___, [141 S.Ct. at p. 1562], quoting Schriro, supra, 542 U.S. at p. 353; see Jones v. Mississippi (2021) ___ U.S. ___, ___ [141 S.Ct. 1307, 1318, fn. 4].) Similarly, the rule from Crawford v. Washington (2004) 541 U.S. 36 that the confrontation clause gives defendants the right to confront and cross-examine witnesses was procedural because, while it narrowed the class of persons subject to criminal punishment, it merely changed the “procedure for determining whether the admission of hearsay statements violated the confrontation clause.” (In re Moore, supra, 133 Cal.App.4th at p. 75; see Whorton v. Bockting, supra, 549 U.S. at p. 417 [“it is clear and undisputed that the [Crawford] rule is procedural and not substantive“]; Ruedas, supra, 23 Cal.App.5th at p. 793 [the rule from People v. Sanchez (2016) 63 Cal. 4th 665 that an expert witness‘s out-of-court
Petitioner argues the Gallardo rule is substantive because, “[b]y limiting imposition of an increased sentence to circumstances where the prior conviction itself, as distinct from the underlying conduct, supports the increased sentence,” the rule ” ‘alter[ed] the range of conduct or the class of persons that the law punishes’ ” and “effectively ‘modifie[d] the elements’ [citation] of the prior conviction allegation.” We disagree. Unlike Welch, Martinez, and other cases in which courts have found rules to be substantive in nature, Gallardo did not change the law in a way that excludes certain types of offenders from the reach of the law (here, the Three Strikes law) nor did it categorically provide relief to all defendants who were sentenced under the pre-Gallardo rule.5 Nor did our decision in Gallardo ” ‘narrow the scope of a criminal statute’ ” (Welch, supra, 578 U.S. at p. 129) for example, by eliminating out-of-state prior convictions or convictions involving personal use of a firearm or a deadly weapon as qualifying serious felonies.
Rather, the Gallardo rule “regulate[d] the evidence that the court could consider” in making prior conviction determinations (Welch, supra, 578 U.S. at p. 130) by precluding courts from looking at anything other than “those facts that were established by virtue of the [prior] conviction itself — that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea” (Gallardo, supra, 4 Cal.5th at p. 136).
Petitioner argues that “the class of persons who may be subject to the punishment has been limited as well” because, by limiting the evidence on which a court may rely in making prior conviction determinations, Gallardo effectively “narrow[ed] the universe of the defendants for whom a sentence can be enhanced based on a prior conviction.” However, most, if not all, new procedural rules — such as the high court‘s invalidation of Louisiana‘s nonunanimous jury verdict law (Edwards, supra, 593 U.S. ___, [141 S.Ct. 1547]) or the Crawford and Sanchez rules — likely “narrow[] the universe of defendants” “subject to the punishment” in the sense that fewer defendants will have been convicted if the new rules had been in effect at the time they were tried. However, as discussed above, more is required before we may conclude that a new rule is substantive in nature. A new rule is not substantive merely because it ” ‘raise[s] the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.’ ” (Welch, supra, 578 U.S. at p. 129.)
Our conclusion is buttressed by cases that have held that rules protecting a defendant‘s Sixth Amendment right to a jury finding on facts needed to support increased sentences are procedural. “[T]he United States Supreme Court has made it clear that Apprendi, and cases following it, did not alter state substantive law.” (People v. Anderson (2009) 47 Cal.4th 92, 118.) In People v. Amons (2005) 125 Cal.App.4th 855, 865, the Court of Appeal held that the holding in Blakely that an aggravating fact other than a prior conviction used to increase a sentence beyond the statutory standard range must be found by a jury “is a procedural rule that affects only the manner of determining the defendant‘s punishment.” (See Schardt v. Payne (9th Cir. 2005) 414 F.3d 1025, 1036 [Blakely, which “allocated some of the decision-making authority previously held by judges to juries,” is a procedural rule].) And in Schriro, supra, 542 U.S. at page 358, the United States Supreme Court explained that its holding in Ring v. Arizona (2002) 536 U.S. 584, that a defendant
Allen v. Ives (9th Cir. 2020) 950 F.3d 1184, which petitioner cites, as well as Holt v. U.S. (7th Cir. 2016) 843 F.3d 720 and Hill v. Masters (6th Cir. 2016) 836 F.3d 591, on which Justice Liu relies, are also distinguishable. In Allen v. Ives, the court stated that Descamps and Mathis announced a substantive rule because they “alter[ed] ‘the range of conduct’ ” the law punished. (Allen v. Ives, supra, 950 F.3d at p. 1192.) As we noted above, in Descamps and Mathis, the high court interpreted the ACCA, an elements-based statutory scheme, in a way that limited its substantive reach to prior convictions that matched the elements of an ACCA offense. (Descamps, supra, 570 U.S. at pp. 277-278 [California burglary is not a qualifying offense under the ACCA]; Mathis, supra, 579 U.S. at p. 509 [Iowa burglary is not a qualifying offense under the ACCA].) Thus, because of the Descamps and Mathis decisions, an entire category of defendants, i.e., those whose sentences were enhanced under the ACCA based on prior California or Iowa burglary convictions, are no longer subject to sentence enhancements based on those prior convictions.
In contrast to the ACCA, the Three Strikes law does not define qualifying offenses strictly by their elements but looks to the conduct underlying the offense. (See, e.g., Guerrero, supra, 44 Cal.3d at p. 352.) For example, unlike the ACCA, section 1192.7 defines as “serious felonies” offenses that do not correspond to any established offense under California law; these offenses instead focus on the factual content of the crime, such as gun use. In other words, these offenses would never be established merely by the fact of conviction or by consideration of formal elements alone. Because it is the Three Strikes law itself that required (and still requires) a judge to consider “the nature of the conduct underlying a prior conviction” when determining whether that conviction qualifies as a strike, Gallardo was not, and could not have been, a “state law analog to Descamps and Mathis” as Justice Liu asserts it was intended to be. (Dis. opn. of Liu, J., post, at p. 5.) In Gallardo, which involved application of the Three Strikes law, we did not make substantive changes to the Three Strikes law (pp. 20-23, ante) but instead addressed the procedural issue of how the court should go about making the determination of whether a prior conviction counts as a strike. Namely, we altered the source material from which a judge could draw in making that determination: after Gallardo, a judge may consider only those “facts that were necessarily found in the course of entering the conviction.” (Gallardo, supra, 4 Cal.5th at p. 134.)
Because Gallardo announced a new procedural rule, it is not retroactive to final judgments under the federal retroactivity test. (Edwards, supra, 593 U.S. ___, [141 S.Ct. at pp. 1551-1552, 1560] [under the federal test, new rules of criminal procedure are not retroactive on collateral review, without exception].)
We likewise conclude Gallardo is not retroactive under the state test we announced in Johnson. Under Johnson, the retroactivity of a new rule is determined by ” ’ “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” ’ ” (Johnson, supra, 3 Cal.3d at p. 410.) The first factor — the purpose of the new rule — is the critical factor in determining retroactivity. The other “factors of reliance and burden on the administration of justice are of significant relevance only when the question of retroactivity is a close one after the purpose of the new rule is considered.” (Ibid.; see Guerra, supra, 37 Cal.3d at pp. 401-402.)
Johnson is referred to as “the old federal standard” (Ruedas, supra, 23 Cal.App.5th at p. 799) because it is based on factors the United States Supreme Court articulated in a number of retroactivity cases beginning with Linkletter v. Walker (1965) 381 U.S. 618, 629 (Linkletter). In Linkletter, the high court set forth several factors relevant to the retroactivity analysis, including “the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” (Linkletter, supra, 381 U.S. at p. 629.) The court noted that “in each of the three areas in which we have applied our rule retrospectively the principle that we applied went to the fairness of the trial — the very integrity of the fact-finding process.” (Id. at p. 639, fn. omitted.) And the court suggested that this basic-fairness-and reliability test would apply differently on direct and collateral review. While “a change in law will be given effect while a case is on direct review,” the “effect of the subsequent ruling of invalidity on prior final judgments when collaterally attacked is subject to no set ‘principle of absolute retroactive invalidity’ but depends upon a consideration of” multiple factors, including ” ‘public policy in the light of the nature both of the statute and of its previous application.’ ” (Id. at p. 627, italics added.) Two years after Linkletter, in Stovall v. Denno (1967) 388 U.S. 293, 297, the high court refined its analysis into a three-part test based in part on the factors listed in Linkletter: (a) the purpose to be served by the new standards; (b) the extent of the reliance by law enforcement authorities on the old standards; and (c) the effect on the administration of justice of a retroactive application of the new standards.
In 1970, we adopted the Linkletter-Stovall approach in Johnson and surveyed the high court‘s retroactivity decisions for guidance on how to apply the three factors. (Johnson, supra, 3 Cal.3d at p. 410.) In discussing the high court‘s retroactivity cases, we — like the high court — noted that in many of those cases, concerns about basic fairness determined whether a new rule
Meanwhile, during the same period, disagreements developed at the high court over the Linkletter-Stovall approach. The primary disagreement was sparked by the court‘s post-Linkletter conflation of direct and collateral review for retroactivity purposes. Justice Harlan, in two influential minority opinions, criticized this development and emphasized the need to return to Linkletter‘s original distinction between cases on collateral and direct review, with much more stringent retroactivity standards to be applied to cases on collateral review. (Desist v. United States (1969) 394 U.S. 244, 258 (Desist) (dis. opn. of Harlan, J.); Mackey v. United States (1971) 401 U.S. 667, 692-693, 696 (Mackey) (conc. & dis. opn. of Harlan, J.).)8 The high court largely adopted Justice Harlan‘s proposals by eventually holding that new rules will apply retroactively on direct review (Griffith v. Kentucky (1987) 479 U.S. 314, 322), while they will only rarely be applied retroactively on collateral review (Teague, supra, 489 U.S. at pp. 308, 310, 317, 319-320 [emphasizing the need to respect the finality of judgments on collateral review]).
three-part test. It appears the last time we did so was in People v. Carrera (1989) 49 Cal.3d 291, 327-328, an automatic appeal we decided six months after the high court decided Teague. However, a review of our post-Johnson cases, including more recent retroactivity cases from our court, indicates that we have incorporated some of the key developments in retroactivity law that the high court made in the post-Johnson years — developments that are largely consistent with Justice Harlan‘s understanding of what Linkletter, the landmark case that ultimately gave rise to Johnson, originally required.
For example, in Johnson, we did not originally distinguish between cases on direct review and collateral review. But nearly all of our post-Johnson cases applying the Johnson test concerned retroactive application of a rule to nonfinal convictions. We later recognized a distinction between direct and collateral review in Guerra, where we stated that “even a . . . decision . . . that cannot serve as a basis for collateral attack on a final judgment . . . ordinarily governs all cases . . . on direct review . . . .” (Guerra, supra, 37 Cal.3d at p. 400; see Martinez, supra, 3 Cal.5th at p. 1222 [the various “procedural bars and limitations on the retroactivity of changes in the criminal law serves to protect the finality of judgments on collateral review“].) We also did not distinguish between substantive and procedural rules in Johnson, but in cases decided post-Johnson, we have made that distinction clear by adopting the view that all substantive rules are retroactive. (E.g., Martinez, supra, 3 Cal.5th at pp. 1222-1223.) And, in the years following Johnson, we have incorporated some of the high court‘s statements regarding fairness of the proceedings, focusing on both fairness and reliability as integral aspects of our retroactivity determinations. (E.g., People v. Meyers (1987) 43 Cal.3d 250, 267 [a new rule invalidating a jury selection procedure was not retroactive to cases in which juries were selected before the rule was announced because its purpose was to further 6th Amend. values, and the new rule ” ‘did not rest on the premise that every criminal trial’ ” conducted under the former jury selection procedure ” ‘was necessarily unfair’ “]; People v. McDaniel (1976) 16 Cal.3d 156, 166, fn. 4 [citing Stovall for the proposition that denial of counsel not only would “adversely affect the truth-finding process” but would also “almost invariably lead to a denial of a fair trial“].)
With a fuller appreciation for the pre- and post-Johnson developments that provide the framework for our analysis, including the added importance we place on the finality of judgments when evaluating the retroactivity of cases on collateral review, we return to the question of whether the Gallardo rule is retroactive under the Johnson test.
Although the rule we announced in Gallardo modified the permissible procedures for finding facts about a defendant‘s prior convictions, the factfinding procedures in place prior to Gallardo did not lack basic integrity or fairness in a manner akin to the practices the Linkletter court identified as paradigmatic examples of basic x: denying an indigent defendant an attorney, foreclosing a criminal appeal because of inability to pay, or using an unfair procedure for determining whether a confession admitted in evidence is actually voluntary. (See Linkletter, supra, 381 U.S. at p. 639, fn. 20.) During the many years in which it was the sentencing court‘s role to make findings about the nature of prior convictions, for example, a pre-Gallardo sentencing court “still had to apply the beyond-a-reasonable-doubt standard of proof” in determining whether a prior conviction was a serious or violent felony. (Milton, supra, 42 Cal.App.5th at pp. 995, citing People v. Frierson (2017) 4 Cal.5th 225, 233; see People v. Woodell (1998) 17 Cal.4th 448, 461 [there was evidence to support a finding, beyond a reasonable doubt, that the defendant‘s out-of-state prior conviction involved the use of a deadly weapon for purposes of determining whether the prior conviction was a serious felony].) In addition, a pre-Gallardo sentencing court was restricted to reviewing the record of the prior conviction and “no further,” which ensured the court would not base its determination on potentially unreliable information outside the record of conviction. (Guerrero, supra, 44 Cal.3d at p. 355 [noting the restriction is “fair” and “reasonable“].)
Moreover, there were other safeguards in place to ensure the sentencing court would not base its findings on unreliable material in the record of conviction. In People v. Reed (1996) 13 Cal.4th 217, for example, we held the sentencing court erred in relying on a probation report in determining the conduct underlying the defendant‘s prior conviction (i.e., that he used a deadly weapon) because a court is permitted to
Petitioner asserts that reliability and fairness must have been core concerns of our decision in Gallardo because, in rejecting Justice Chin‘s proposed remedy of a remand for a jury trial, the Gallardo majority noted that procedural safeguards such as cross-examination of witnesses would not be in place if we were to empanel a jury for the purpose of reviewing the record of conviction from the prior case. (Citing In re Haden, supra, 49 Cal.App.5th at p. 1103 (conc. opn. of Tucher, J.), review granted [the Gallardo court‘s “response to [Justice Chin‘s dissent] reveals the breadth of interests at stake].)9 We do not believe the Gallardo majority‘s rejection of the remedy proposed by Justice Chin can bear the weight petitioner places upon it.
Notably, neither the Gallardo majority nor Justice Chin expressed any concern that the sentencing court‘s factfinding about the defendant‘s knife use substantially impaired the truth-finding function as compared to what a jury in the prior proceeding might have found.10 Instead, we stated in Gallardo
Petitioner asserts the prior procedure, which allowed courts to enhance sentences based on factfinding regarding the conduct underlying prior convictions, was “fundamentally unfair” and raised reliability concerns because defendants lacked the incentive to contest facts regarding that conduct in the prior proceedings. We disagree, both as to petitioner‘s case and as a general matter. The record here shows that the Illinois sentencing court relied on petitioner‘s gun use in imposing an aggravated sentence on the armed robbery conviction. Because gun use could result in a longer sentence, petitioner would have had the incentive to contest it at his original sentencing and presumably would have done so if there were any question whether he used a gun in the commission of either robbery. More to the point, California defendants prior to Gallardo, in challenging whether the prosecution had proven a fact about a prior conviction beyond a reasonable doubt, could raise their lack of incentive to challenge that fact during the original proceedings, in the course of arguing the beyond-a-reasonable-doubt standard was not satisfied. (See People v. Smith (1988) 206 Cal.App.3d 340, 346 [“Smith was not barred from presenting evidence the burglaries were not residential; his motive to do so was strong, particularly since his trial occurred pre-Alfaro“]; People v. Johnson (1989) 208 Cal.App.3d 19, 24 [“Since appellant‘s 1983 convictions occurred after section 667 was enacted, the residential allegations in the information were neither irrelevant nor superfluous. Given the consequences of section 667, appellant had ample reason to contest the residential nature of the burglary charged when he pled guilty“]; People v. Skeirik (1991) 229 Cal.App.3d 444, 464 [“Both defendant and the state had an important incentive to
We are also mindful that courts prior to Gallardo were attempting to navigate a different fairness concern: the concern that courts should treat conduct underlying in-state and out-of-state offenses identically for purposes of our state‘s recidivist statutes. The factfinding procedures in place prior to Gallardo — though ultimately inconsistent with the Sixth Amendment principles upon which our decision in Gallardo rested — were intended, in part, to avoid the unfairness of treating defendants with essentially identical underlying conduct very differently under California‘s recidivist sentencing laws. Given minor variations in the way different jurisdictions define criminal offenses — as in this case11 — our pre-Gallardo decisions reflected a concern that a strictly elements-based approach to assessing out-of-state prior convictions could unfairly treat defendants with essentially identical underlying conduct very differently simply because of the happenstance of where they committed their crimes. Our pre-Gallardo cases approved a different approach in part to ameliorate that fairness concern. Our cases had adopted the pre-Gallardo approach, in other words, in part to help ensure
that “[a] defendant whose prior conviction was suffered in another jurisdiction” would be “subject to the same punishment as a person previously convicted of an offense involving the same conduct in California.” (People v. Myers (1993) 5 Cal.4th 1193, 1201).12
Gallardo, of course, concluded the Constitution requires a different approach. But we are not, in sum, persuaded that the ” ‘major’ ” or “primary purpose” of the Gallardo rule was ” ’ ” ‘to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts.’ ” ’ ” (Guerra, supra,
retroactivity is a close one after the purpose of the new rule is considered.” (Johnson, supra, 3 Cal.3d at p. 410.) We conclude the first Johnson factor‘s effect on the issue of retroactivity is determinative and that we need not discuss whether the second and third Johnson factors also weigh against applying Gallardo retroactively.
DISPOSITION
In light of all the pertinent considerations, we conclude the rule we announced in Gallardo is a new procedural rule and that it is not retroactive to cases on collateral review under both state and federal tests for retroactivity. Thus, it does not apply to petitioner‘s final judgment. Accordingly, we affirm the decision of the Court of Appeal denying the petition for writ of habeas corpus.13
In re MILTON
Opinion of the Court by Jenkins, J.
JENKINS, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
GUERRERO, J.
In re MILTON
S259954
Dissenting Opinion by Justice Liu
I join the dissenting opinion of Justice Groban. As he explains (dis. opn. of Groban, J., post, at pp. 2-4), our decision in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo) operates retroactively because it substantively altered what constitutes “ha[ving] been convicted of a serious felony” and thereby modified what counts as a “strike” under the “Three Strikes” sentencing law. (
Under the Three Strikes law, “[a] person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction that includes all of the elements of any serious felony” shall receive an enhanced sentence. (
This case requires us to decide whether Gallardo‘s holding applies retroactively. The high court has held that a new rule must be applied retroactively where the rule is “substantive” rather than procedural (see Teague v. Lane (1989) 489 U.S. 288, 311) and that “[a] rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes” (Schriro v. Summerlin (2004) 542 U.S. 348, 353). “This includes decisions that narrow the scope of a criminal statute by interpreting its terms.” (Id. at p. 351.)
Gallardo did not change the range of conduct made subject to additional punishment under the Three Strikes law; the definition of “serious felony”
Today‘s opinion holds that Gallardo‘s rule is merely procedural and “did not remove the defendant or any group of people from the reach of applicable sentencing laws.” (Maj. opn., ante, at p. 23.) “Rather,” this court says, “the Gallardo rule ‘regulate[d] the evidence that the court could consider’ in making prior conviction determinations [citation] by precluding courts from looking at anything other than ‘those facts that were established by virtue of the [prior] conviction itself — that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.’ ” (Id. at pp. 21-22.) But such a reading of Gallardo is at odds with the concerns that motivated our opinion.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the high court held that under the
Both before and after Gallardo, the determination of whether a defendant‘s prior conviction counts as a “convict[ion] of a serious felony” (
Gallardo was animated by our recognition that there are serious questions as to whether our previous Three Strikes jurisprudence can be reconciled with Apprendi in light of the high court‘s discussions of that case in Descamps v. United States (2013) 570 U.S. 254 (Descamps) and Mathis v. United States (2016) 579 U.S. 500 (Mathis). Descamps and Mathis concerned the application of a federal sentencing enhancement statute, the
In other words, our decision in Gallardo was explicitly intended to be a state law analog to Descamps and Mathis. With this in mind, it is notable that the federal Courts of Appeals for the Sixth, Seventh, and Ninth Circuits have each concluded that the rules of Descamps and Mathis are substantive and must therefore be applied retroactively under Teague. (See Allen v. Ives (9th Cir. 2020) 950 F.3d 1184, 1192 [“To the extent that Mathis and Descamps may be thought to have announced a new rule, we have no trouble concluding that the rule is one of substance rather than procedure. . . . We have previously recognized that decisions that alter the substantive reach of a federal statute apply retroactively“]; Holt v. United States (7th Cir. 2016) 843 F.3d 720, 722 [“While Holt‘s appeal was pending we held that the version of the Illinois burglary statute under which he had been convicted is indeed not a ‘violent felony’ because it does not satisfy the definition of ‘burglary’ used in Mathis v. United States [citation] for indivisible statutes. . . . [S]ubstantive decisions such as Mathis presumptively apply retroactively on collateral review.“]; Hill v. Masters (6th Cir. 2016) 836 F.3d 591, 595-596 [“The Government concedes that, after Descamps . . . Maryland‘s second-degree assault statute no longer constitutes a crime of violence for the purpose of the career-offender enhancement. [Citation.] Thus, were Hill to be sentenced today, he would not qualify as a career offender. The Government further
The court suggests these cases are inapposite because, unlike the federal statute at issue in Descamps and Mathis, the Three Strikes law allows courts to look beyond the elements of an offense and consider “the conduct underlying the offense.” (Maj. opn., ante, at p. 25, fn. 7.) It is true that, under Gallardo, a judge charged with determining whether a defendant is a person “previously convicted of a serious felony” for the purposes of
I fear that the court‘s reading of Gallardo today may resurrect the very Apprendi problem that Gallardo sought to avoid in construing the Three Strikes law. Before Gallardo, we had interpreted the scheme to allow judges to resolve factual questions concerning the nature of the conduct underlying prior convictions. We might have addressed this problem by having trial courts empanel a new jury to review the record of conviction and make its own judgment about the nature of the conduct on which a prior conviction was based. That was the approach suggested by Justice Chin in his dissent from Gallardo. (Gallardo, supra, 4 Cal.5th at pp. 140-144 (dis. opn. of Chin, J.).) Had we taken that approach, the question of what counts as having been “convicted of a serious felony” (
In sum, I cannot agree that the only change worked by Gallardo was the promulgation of a new rule of evidence for determining the nature of the conduct underlying a prior conviction. That characterization of Gallardo misapprehends its significance in reconciling the Three Strikes law with Apprendi in light of Descamps and Mathis. For this reason, and for the reasons set forth by Justice Groban, I respectfully dissent.
LIU, J.
I Concur:
GROBAN, J.
In re MILTON
S259954
Dissenting Opinion by Justice Groban
William Milton is currently serving an indeterminate 25-years-to-life sentence because he purportedly used a gun in committing two robberies in Illinois over 10 years before he was convicted of a California robbery. Without a finding that he previously used a firearm in committing the Illinois robberies, Milton would have received a maximum prison term of five years. The allegation that he personally used a gun in the Illinois robberies was never pleaded, presented to a jury, nor admitted by Milton as part of a plea. Nonetheless, the California sentencing court relied on handwritten notes and statements from the Illinois sentencing judge “to determine what really happened” during Milton‘s Illinois crimes and impose his “Three Strikes” sentence. The Attorney General, Milton, the majority, and I agree that this was error under our subsequent decision in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo). (See In re Milton (2019) 42 Cal.App.5th 977, 999 (Milton).) Nonetheless, the majority concludes that Milton has no recourse — he will continue to serve a 25-years-to-life sentence based upon a factual allegation that was never pleaded, found true by a jury, nor admitted as part of a plea — because the rule effectuated by Gallardo is “procedural,” and “reliability and fairness [were not] core concerns of our decision . . . .” (Maj. opn., ante, at pp. 23, 32.) I do not agree that the rule set forth in Gallardo, which could mean the difference between a life in prison or a short determinate term for some petitioners, constitutes a mere procedural change in the law. As explained below, in my view, Gallardo should be given retroactive effect because it substantively changed the class of persons punishable under the Three Strikes law. (See Welch v. United States (2016) 578 U.S. 120, 129 (Welch).) Moreover, even if Gallardo‘s rule is deemed procedural, I would still apply it retroactively because its core purpose is to enhance the reliability of the factfinding process for prior conviction determinations. (See People v. Johnson (1970) 3 Cal.3d 404, 411 (Johnson).)
As the majority explains, “a rule is substantive rather than procedural where it ’ “alters the range of conduct or the class of persons that the law punishes.” ’ ” (Maj. opn., ante, at p. 18.) Whereas a procedural rule ” ’ “regulate[s] only the manner of determining the defendant‘s culpability.” ’ ” (Id. at p. 19.) The majority concludes the rule announced in Gallardo falls into the procedural category because it merely ” ‘regulate[d] the evidence that the court could consider’ in making prior conviction determinations.” (Id. at p. 21.) From the majority‘s perspective, Gallardo “did not remove the defendant or any group of people from the reach of applicable sentencing laws, and we did not conclude that the conduct underlying [Sulma Marilyn Gallardo‘s] prior conviction, i.e., whether she used a knife, was no longer relevant.” (Id. at p. 22.)
I disagree. Sure, the range of conduct that meets the relevant statutory definition of “serious felony” was unchanged by Gallardo. Before and after Gallardo, an out-of-state felony has qualified as a “serious felony” under California law if the defendant personally used a firearm or a dangerous or deadly weapon in committing the offense. (
More specifically, under the old regime, a defendant could be found to have suffered a prior serious felony conviction wherever the record revealed that, “realistically,” the conduct that supported the conviction satisfied the definition. (People v. McGee (2006) 38 Cal.4th 682, 706.) But now, because of Gallardo, a defendant can stand convicted of a serious felony within the meaning of the statute only if it can be shown that the “facts that were necessarily found in the course of entering the conviction” satisfy the serious felony definition. (Gallardo, supra, 4 Cal.5th at p. 134; see also id. at p. 136 [“a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the ‘nature or basis’ of the prior conviction based on its independent conclusions about what facts or conduct ‘realistically’ supported the
2. GALLARDO‘S PRIMARY PURPOSE IS TO PROMOTE RELIABLE DETERMINATIONS OF GUILT OR INNOCENCE
Even if I were to accept the majority‘s view that Gallardo merely set forth a new procedural rule (maj. opn., ante, pp. 20-23), I would still apply it retroactively to final convictions under the state balancing test for the retroactive application of new rules. (See Johnson, supra, 3 Cal.3d 404.) As the majority explains, under our state test, if the judicial decision establishes a new rule, courts determine whether to apply the new rule based on three considerations — the purpose of the new rule, the reliance placed on the old rule, and the effect retroactive application would have on the administration of justice. (Id. at p. 410; maj. opn., ante, at pp. 25-26.) “The first factor — the purpose of the new rule — is the critical factor in determining retroactivity.” (Maj. opn., ante, at p. 26.) State courts are “free to give greater retroactive impact to a decision than the federal courts choose to give.” (Johnson, at p. 415Johnson, “[f]ully retroactive decisions are seen as vindicating a right which is essential to a reliable determination of whether an accused should suffer a penal sanction.” (Id. at p. 411; see maj. opn., ante, at p. 27 [quoting Johnson on this point].) I agree with petitioner that “[t]he fundamental purpose of Gallardo is to promote fair and reliable determinations of the petitioner‘s guilt or innocence on the allegation that he suffered a prior conviction qualifying as a strike under California law.”
In rejecting petitioner‘s argument, the majority reasons that a pre-Gallardo sentencing court‘s factfinding, beyond a reasonable doubt, based on the prior record of conviction was “reasonably fair and reliable.” (Maj. opn., ante, at p. 32; see id. at pp. 31-35.) I disagree. The majority overlooks the fact that, by limiting a sentencing court to simply “identifying those facts that were established by virtue of the conviction itself,” Gallardo cabined a trial court‘s authority in a way that was primarily meant to enhance the reliability of prior serious felony determinations. (Gallardo, supra, 4 Cal.5th at p. 136Id. at p. 135, quoting Descamps v. United States (2013) 570 U.S. 254, 269 (Descamps).) Instead, sentencing courts may now only identify those facts that were already found in “the deliberate and considered way the Constitution guarantees.” (Descamps, at p. 273.)
In fact, the manner in which Milton was sentenced here highlights the inherent unreliability of a trial court‘s pre-Gallardo prior conviction determinations — and how Gallardo remedied this unreliability. As the majority explains, in 1987, Milton was convicted of two robberies in Illinois: one armed robbery (convicted by jury) and one simple robbery (convicted by plea). The certified record from the Illinois case contained some handwritten notes on what appears to be a charging document. According to the notes, in the simple robbery, petitioner accosted the victim, demanded money, and took $338. The notes also indicated that petitioner “had a gun.” At sentencing, the Illinois court stated that, with respect to the plea/simple robbery case, the “stipulated facts” indicated petitioner “possessed a handgun.” Later in imposing sentence, the Illinois court observed in aggravation that, in both cases, petitioner “deliberately held a gun — a loaded gun — upon an individual.” In the California case, the prosecutor conceded that petitioner did not admit the arming allegation as part of his plea to the Illinois simple robbery, but argued that the Illinois judge‘s handwritten notes (which the prosecutor believed the court made at sentencing) and his comments at sentencing indicated that petitioner used a gun. Defense counsel argued that the original arming allegation was dismissed and that it was unclear “who or what stipulated to anything” and where the “facts” in the notes came from. In any event, the stipulation only stated that petitioner “possessed a gun.” It did not
The sentencing judge concluded that the Illinois robbery convictions qualified as California serious felonies noting that, “I see nothing wrong with going beyond the court record to determine what really happened. And in doing so, I am satisfied that the defendant used a gun in both robberies.”
In other words, Milton was sentenced to a Three Strikes term because the sentencing judge was personally “satisf[ied],” based on details presented in notes and statements that were not necessary to Milton‘s prior underlying guilt determinations, that he used a gun.2 This was not a reliable basis upon which to sentence Milton to an indeterminate 25-years-to-life term.
Now look at the impact Gallardo would have if Milton were sentenced today; the sentencing court would be limited to simply identifying those “facts that were necessarily found in the course of entering [Milton‘s prior] conviction[s].” (Gallardo, supra, 4 Cal.5th at p. 134 statements at sentencing, which were of “questionable reliability” (Milton, supra, 42 Cal.App.5th at p. 995) and not “necessarily found in the course of entering [his] conviction[s]” (Gallardo, at p. 134). Gallardo‘s limitation thereby eliminates the risk that an individual like Milton will be sentenced to a Three Strikes term on an unreliable basis.
In Descamps, in explaining the rationale for its elements-based approach, the high court observed that the meaning of records from prior convictions “will often be uncertain” as to nonelements of an offense because “[a] defendant, after all, often has little incentive to contest facts that are not elements of the charged offense — and may have good reason not to.” (Descamps, supra, 570 U.S. at p. 270.) The high court reiterated this same logic in Mathis, supra, 579 U.S. at page 512, explaining that “[s]tatements of ‘non-elemental fact’ in the records of prior convictions are prone to error precisely because their proof is unnecessary. [Citation.] At trial, and still more at plea hearings, a defendant may have no incentive to contest what does not matter under the law; to the contrary, he ‘may have good reason not to’ — or even be precluded from doing so by the court. [Citation.] When that is true, a prosecutor‘s or judge‘s mistake as to means, reflected in the record, is likely to go uncorrected. [Citation.] Such inaccuracies should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence.” (Fn. omitted; see also Sessions v. Dimaya (2018) __ U.S. __ [138 S.Ct. 1204, 1218] (plur. opn.) [“This Court has often described the daunting difficulties of accurately ‘reconstruct[ing],’ often many years later, ‘the conduct underlying [a] conviction’ “].)
We expressed a desire to remedy similar concerns in adopting Gallardo‘s rule. In concluding that the sentencing court improperly relied on the preliminary hearing transcript from Gallardo‘s prior plea proceedings to conclude that she used a knife during her prior assault offense, we observed, “A sentencing court reviewing that preliminary transcript has no way of knowing whether a jury would have credited the victim‘s testimony had the case gone to trial. And at least in the absence of any pertinent admissions, the sentencing court can only guess at whether, by pleading guilty to a violation
By limiting the sentencing judge to “identifying those facts that were established by virtue of the conviction itself” (Gallardo, supra, 4 Cal.5th at p. 136), Gallardo prohibits guesswork and reliance on inaccurate or incomplete records, such as that which occurred here. Gallardo thus necessarily eliminated the risk that an individual will be sentenced to a Three Strikes term on an unreliable basis. Stated differently, Gallardo‘s “primary purpose” is “to promote reliable determinations of guilt or innocence.” (People v. Guerra (1984) 37 Cal.3d 385, 402.) Gallardo should therefore be applied retroactively on collateral review under Johnson.
In rejecting the notion that Gallardo‘s ” ‘primary purpose’ ” was to promote reliability, the majority underscores, inter alia, that a pre-Gallardo sentencing court was required to apply a beyond a reasonable doubt standard of proof to prior serious felony determinations and was limited to reviewing the record of the prior conviction. (Maj., opn., ante, at pp. 32-37.) But the majority fails to account for the fact that, before Gallardo, a sentencing judge could look to facts that were not “established by virtue of the conviction itself.” (Gallardo, supra, 4 Cal.5th at p. 136Mathis, supra, 579 U.S. at p. 512). As such, any determination based on these extraneous facts would have been unreliable irrespective of the standard of proof they were used to satisfy. In this way, it simply does not matter that pre-Gallardo courts were utilizing a beyond a reasonable doubt standard. What matters is that, in order to reach this conclusion, they were relying on information of “questionable reliability” (Milton, supra, 42 Cal.App.5th at p. 995) that they are not permitted to rely on after Gallardo.
Furthermore, the majority rejects Milton‘s claim that the pre-Gallardo procedure “raised reliability concerns because defendants lacked the incentive to contest facts regarding [conduct not critical to their convictions] in the prior proceedings.” (Maj. opn., ante, at pp. 34-35.) The majority observes that Milton had incentive to contest his gun use because the Illinois sentencing judge relied on it to impose an aggravated sentence. (Id. at p. 35.) But even if Milton‘s potential incentive to challenge his gun use in Illinois lends reliability to the sentencing judge‘s factfinding in Milton‘s case (a premise I disagree
Finally, the majority asserts that pre-Gallardo courts were trying to “avoid the unfairness of treating [out-of-state] defendants with essentially identical underlying conduct very differently under California‘s recidivist sentencing laws” based on “minor variations in the way different jurisdictions define criminal offenses.” (Maj. opn., ante, at p. 36.) But these differences were not “minor,” and the defendants did not engage in “identical underlying conduct.” (Ibid.) For instance, as relevant to Milton‘s crimes, “[a]n essential element of the California crime of robbery is ‘the [specific] intent to permanently
3. CONCLUSION
The upshot of the majority‘s holding is that even though Milton‘s prior use of a gun was not pleaded or proven at trial, or admitted to by plea, and even though the parties and the majority all agree that the sentencing court engaged in improper factfinding to conclude he personally used a gun, his indeterminate 25-years-to-life sentence must stand. I would not let Milton continue to serve a Three Strikes term without certainty that this severe punishment is supported by facts “necessarily found in the course of entering [his] prior conviction[s].” (Gallardo, supra, 4 Cal.5th at p. 134Gallardo, the very same rule that would apply if he or anyone else were sentenced today. I dissent.
GROBAN, J.
I Concur:
LIU, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Milton
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 42 Cal.App.5th 977
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S259954
Date Filed: August 22, 2022
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Ronald J. Slick
__________________________________________________________
Counsel:
Brad Kaiserman, under appointment by the Supreme Court, for Petitioner William Milton.
Mary K. McComb, State Public Defender, Elias Batchelder, Erik Levin and Jessie Hawk, Deputy State Public Defenders, as Amicus Curiae on behalf of Petitioner William Milton.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller, Eric J. Kohm, Louis W. Karlin and Nicholas J. Webster, Deputy Attorneys General, for Respondent the People.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Brad Kaiserman
5870 Melrose Avenue # 3396
Los Angeles, CA 90038
(310) 367-7632
Nicholas J. Webster
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6103