In re Milton

IN THE SUPREME COURT OF
CALIFORNIA
In re WILLIAM MILTON
on Habeas Corpus.
S259954
Second Appellate District, Division Seven
B297354
Los Angeles County Superior Court
TA039953
August 22, 2022
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
concurred.
In re MILTON
S259954
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 “strikes” under the
“Three Strikes” law (Pen. Code,1 §§ 667, subds. (b)–(j), 667.5,
subd. (c), 1170.12, subd. (a)). Because an out-of-state robbery
qualifies as a serious felony only if it “includes all of the
elements of [a California robbery]” (§§ 667, subd. (d)(2); see
1192.7, subd. (19)), which an Illinois robbery does not, the
prosecution asserted the Illinois robberies were serious felonies
under section 1192.7, subdivision (c)(8) and (23), which provide
that any felony in which the defendant personally uses a
firearm or a dangerous or deadly weapon is a serious felony.
After reviewing the record from the Illinois robbery cases,
including the charging document and sentencing hearing
transcript, the trial court found petitioner used a firearm in
committing both Illinois robberies and imposed a third strike
sentence. The Court of Appeal affirmed the judgment, and we
denied review.
1
All undesignated statutory references are to the Penal
Code.
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Opinion of the Court by Jenkins, J.
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 Sixth Amendment right to a jury
trial when it makes factual findings about the nature of a
defendant’s prior conviction in imposing an enhanced sentence
based on that prior conviction. The Court of Appeal denied the
petition on the ground that Gallardo was not retroactive to
petitioner’s judgment, which had been final since 2000. (People
v. Milton (2019) 42 Cal.App.5th 977, 982, 987 (Milton).)
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 gun at [the
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Opinion of the Court by Jenkins, J.
victim], and threatened him, forced him into the car where [the
victim] was robbed of his goods.” The court stated, “[Y]ou used
a gun. You stopped the victim. . . . You forced this individual
into the automobile.” For the simple robbery, the prosecutor
stated the victim was “accosted by” petitioner, who
“approache[d] [the victim] with a weapon, threaten[ed] him,
and . . . [the victim] lost his entire paycheck . . . to Mr. Milton.”
The court added, “You stopped [the victim], and again at the
point of a gun you took . . . cash from this individual.” The
court stated that the “stipulated facts” for the simple robbery
were “that the victim . . . left [the market] after cashing his
check. He was stopped. Money was demanded from the victim
by . . . Milton, who possessed a handgun. And [money] was
taken from the victim . . . In addition . . . , [petitioner] made a
statement to the Waukegan Police Department that he
participated in and did take the money as is described in this
stipulation.” Before pronouncing its sentence, the court stated,
“In each of the two respective offenses you deliberately held a
gun — a loaded gun — upon an individual. . . . I’m going to tell
you that he who participates in an offense of violence against
another with a gun is going to be punished.” (See People v.
Milton (1989) 182 Ill.App.3d 1082, 1095 [538 N.E.2d 1227,
1236] [Illinois sentencing court imposed an aggravated
sentence as to Milton’s armed robbery conviction based on
several factors including gun use].)
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 (§ 211). Petitioner waived his right to a jury trial as to
the truth of his prior convictions. In a bifurcated proceeding,
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Opinion of the Court by Jenkins, J.
he admitted he had two prior felony convictions from Illinois
and that one of them was an armed robbery conviction that
qualified as a strike. He argued his Illinois simple robbery
conviction was not a strike.
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 section 1192.7, subdivision (c)(8) and (23), which provide
that a felony in which the defendant personally uses a firearm
or a dangerous or deadly weapon is a serious felony.
Petitioner’s counsel argued the court was not authorized to
look beyond the facts of the Illinois convictions in determining
firearm use and that, in any event, “the stipulated facts” from
“the transcript . . . of the plea” showed only that petitioner
possessed a handgun, not that he used one, in committing the
simple robbery. The court stated it saw “nothing wrong” with
relying on the certified documents and found petitioner used a
gun during both robberies and that both prior convictions were
strikes. The court imposed a third strike sentence of 25 years
to life, plus five years for the prior serious felony enhancement
(§ 667, subd. (a)(1)).
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
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Opinion of the Court by Jenkins, J.
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
2
As noted, petitioner previously admitted his Illinois
armed robbery was a serious felony. He later changed his
position to assert, as he does here, that both of his Illinois
robberies were not serious felonies. Because we affirm the
denial of petitioner’s instant writ petition on retroactivity
grounds, we need not, and will not, address the Attorney
General’s argument that, if Gallardo applies retroactively,
petitioner’s prior admission regarding the Illinois armed
robbery precludes him from asserting it is not a serious felony.
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Opinion of the Court by Jenkins, J.
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 [Gallardo is not retroactive];
In re Brown (2020) 45 Cal.App.5th 699, review granted June
10, 2020, S261454 [Gallardo is retroactive]; In re Scott (2020)
49 Cal.App.5th 1003, review granted Aug. 12, 2020, S262716
[not retroactive]; In re Haden (2020) 49 Cal.App.5th 1091,
review granted Aug. 12, 2020, S263261 [not retroactive].) We
granted review to resolve the conflict in the Courts of Appeal.
DISCUSSION
I. Sentence Enhancements Based on Prior Felony
Convictions
Under the Three Strikes law, a prior conviction for a
“serious felony” (§ 1192.7, subd. (c)) or “violent felony” (§ 667.5,
subd. (c)) is a strike and subjects a defendant to increased
punishment. (§§ 1170.12, subd. (a), 667, subds. (b)–(j).) For a
prior out-of-state conviction to qualify as a strike under
section 667, subdivision (d)(2), the out-of-state offense must
include all of the elements of a serious or violent felony in
California. (People v. Warner (2006) 39 Cal.4th 548, 552–553.)
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The California offense of robbery (§ 211), which is a
serious felony (§ 1192.7, subd. (c)(19)), is a specific intent crime
that requires “ ‘the intent to permanently deprive the person of
the property.’ ” (People v. Jackson (2016) 1 Cal.5th 269, 343.)
Illinois robberies are general intent crimes, and the definitions
of robbery and armed robbery in Illinois do not include this
specific intent element. (People v. Jamison (2001) 197 Ill.2d
135, 161 [756 N.E.2d 788, 801]; People v. Lee (1998) 294
Ill.App.3d 738, 743 [691 N.E.2d 117, 120].) Because the Illinois
robbery statutes do not contain all the elements of California’s
robbery statute, petitioner’s Illinois robbery convictions do not
qualify as strikes under section 667, subdivision (d)(2).
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. (§ 1192.7, subd. (c)(8), (23); People v. Le (2015) 61
Cal.4th 416, 425.) Thus, if petitioner personally used a firearm
in the commission of the Illinois felonies, those prior
convictions would be serious felony convictions and strikes
under California’s Three Strikes law.
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
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Opinion of the Court by Jenkins, J.
(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 Sixth Amendment permits courts to determine whether the
offense qualifies as a strike and that while the inquiry is a
“limited one” that “focus[es] on the elements of the offense of
which the defendant was convicted,” a court may also review
the record of the prior conviction to determine whether “the
conviction realistically may have been based on conduct that
would not constitute a serious felony under California law.”
(McGee, at p. 706.) We concluded the defendant therefore had
no right to a jury finding on whether his prior conviction
qualified as a serious felony and that the trial court did not err
in examining the victim’s preliminary hearing testimony from
the prior case to determine the nature of the prior conviction.
(McGee, at pp. 689, 709.)
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
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Opinion of the Court by Jenkins, J.
enhanced the defendant’s punishment under the Armed Career
Criminal Act (ACCA, 18 U.S.C. § 924(e)), an elements-based
federal recidivist sentencing scheme that requires imposition of
an increased sentence where the elements of the prior
conviction match those of an enumerated offense. (Descamps,
at p. 254; see Taylor v. United States (1990) 495 U.S. 575, 600,
601 [under the ACCA, the sentencing court compares only the
elements of the offenses and does not look at the “facts
underlying the prior convictions” or “the facts of each
defendant’s conduct”].) The prior conviction in Descamps was a
California burglary, which did not include an unlawful entry
element as required by the ACCA. (Descamps, at pp. 254, 255–
259.)
In determining that the California burglary conviction
qualified as an ACCA predicate offense, the district court
reviewed a transcript of the plea colloquy, which showed the
defendant did not object to the prosecutor’s statement that the
burglary “ ‘involve[d] the breaking and entering of a grocery
store.’ ” (Descamps, supra, 570 U.S. at p. 259.) The high court
concluded this was error and held that the district court’s
review of a prior conviction to determine whether it qualifies
under the ACCA must be limited to the elements of those
offenses (the “categorical approach”), except to the extent a
limited inquiry into the record of the prior conviction is
necessary to determine which part of a divisible statute was
violated (the “modified categorical approach”). (Descamps, at
pp. 267–270.) The Descamps court concluded that because
California’s burglary statute is not a divisible statute divided
into lawful and unlawful entry alternatives, the prosecutor’s
references to the defendant’s breaking and entering was
extraneous and could play no role in the district court’s efforts
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to determine whether the conviction qualified as an ACCA
predicate offense. (Descamps, at pp. 277–278.)
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 Sixth Amendment principles for its
holding. The Descamps court explained that the district court’s
decision failed to consider “the categorical approach’s Sixth
Amendment underpinnings. . . . The Sixth Amendment
contemplates that a jury — not a sentencing court — will
[make findings about the defendant’s underlying conduct],
unanimously and beyond a reasonable doubt.” (Descamps,
supra, 570 U.S. at p. 269.) Similarly, the Mathis court stated
that allowing courts to make factual determinations regarding
prior convictions would raise Sixth Amendment concerns.
(Mathis, supra, 579 U.S. at pp. 508, 511.)
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
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Opinion of the Court by Jenkins, J.
aggravated assault under former section 245, subdivision
(a)(1), a divisible statute, qualified as a strike. (Gallardo,
supra, 4 Cal.5th at p. 123.) The defendant had pleaded guilty
to that offense, but her plea did not specify whether she had
used a deadly weapon (a serious felony) or force likely to
produce great bodily injury (not a serious felony). (Id. at p.
125; § 1192.7, subd. (c)(31) [“assault with a deadly weapon” is a
serious felony].) To resolve this ambiguity, the trial court
reviewed a transcript of the victim’s preliminary hearing
testimony that the defendant used a knife and found, based on
that testimony, that the prior conviction qualified as a strike.
(Gallardo, at p. 125.)
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. 138.)
We “disapprove[d] People 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
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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
proper remedy for a violation of defendant’s jury trial right is
to give her that jury trial.” (Ibid.) The majority rejected
Justice Chin’s suggested remedy, which neither party had
requested. (Id. at p. 138.) The majority stated that having a
jury empaneled for the sole purpose of reviewing the record of
conviction would raise concerns about compliance with
Apprendi and would not involve procedural safeguards such as
cross-examination of witnesses “that normally apply in
criminal proceedings.” (Id. at p. 139.) The majority also
stated, “Our precedent instructs that determinations about the
nature of prior convictions are to be made by the court, rather
than a jury, based on the record of conviction. (See McGee,
supra, 38 Cal.4th at p. 695.) We have explained that the
purpose of the latter limitation is to avoid forcing the parties to
relitigate long-ago events, threatening defendants with ‘harm
akin to double jeopardy and denial of speedy trial.’ (Guerrero,
supra, 44 Cal.3d at p. 355.) The Attorney General has not
asked us to reconsider this aspect of our precedent.” (Gallardo,
supra, at p. 138.)
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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,
3
Until recently, a new procedural rule could nevertheless
be retroactive under the federal test if it was a “watershed”
rule that altered “ ‘our understanding of the bedrock
procedural elements that must be found to vitiate the fairness
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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
of a particular conviction.’ ” (Teague, supra, 489 U.S. at p.
311.) Historically, there was such a high bar for a rule to be
considered “watershed” that Gideon v. Wainwright (1963) 372
U.S. 335, which held that indigent defendants have the right to
counsel, was the only case that had met this exception.
(Whorton v. Bockting (2007) 549 U.S. 406, 418.) Last year, the
high court in Edwards, supra, 593 U.S. ___, [141 S.Ct. at
pp. 1551–1552, 1560] acknowledged how narrow the watershed
exception has been and eliminated it. In light of Edwards,
which was decided six months after petitioner filed his reply
brief, petitioner withdrew his argument that Gallardo
announced a watershed rule.
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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 approved. Nor
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did federal precedent such as Apprendi, which existed at the
time petitioner’s conviction became final, dictate our Gallardo
decision. In McGee, which we decided after Apprendi, we
expressly distinguished Apprendi and declined to construe it in
a manner that afforded a defendant the right to a jury trial on
the nature of a prior conviction. (McGee, supra, 38 Cal.4th at
pp. 696–697.) In other words, we did not view Apprendi and
other existing United States Supreme Court precedent as
dictating the result we later reached in Gallardo.
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 Sixth Amendment rule forbidding judicial factfinding
in criminal cases.” (Gallardo, supra, 4 Cal.5th at p. 128; see
id. at pp. 127, 138 [acknowledging it would have been difficult
for the parties in Gallardo to know how Apprendi and
Descamps would have affected their case].) We conclude that
Gallardo announced a new rule under the federal test because
precedent that existed at the time petitioner’s conviction
became final did not dictate our decision in Gallardo.4
4
Petitioner argues Gallardo is nevertheless retroactive
under In re Gomez (2009) 45 Cal.4th 650 (Gomez), but that
case is distinguishable. There, this court decided the
retroactivity of the high court’s holding in Cunningham v.
California (2007) 549 U.S. 270 (Cunningham) — that
California’s determinate sentencing laws violated the rule
articulated in Blakely v. Washington (2004) 542 U.S. 296(Blakely) that an aggravating fact used to increase a sentence
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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].)
Petitioner concedes, and we agree, that “Gallardo
satisfies this threshold inquiry, as it disapproved prior
California Supreme Court law” by “overrul[ing] the prior
precedent set forth in Guerrero and McGee.” In Gallardo, we
explicitly overruled McGee, which had, until then, provided
controlling precedent on a trial court’s authority to make
beyond the standard range had to be found by a jury. Blakely
had already been decided by the time the petitioner was
sentenced, but Cunningham had not. (Gomez, supra, 45
Cal.4th at p. 653.) This court held in Gomez that Cunningham
was retroactive to the petitioner’s final judgment because it did
not announce a “new rule,” but instead was “dictated” by
Blakely. (Gomez, supra, 45 Cal.4th at p. 658.) In so
concluding, this court emphasized that the high court made it
clear in Cunningham that it was “simply appl[ying]” Blakely’s
“ ‘bright-line-rule’ ” to California’s sentencing laws and that it
“d[id] not view its application of Blakely to California law as an
extension or modification of the [Blakely] rule.” (Gomez, supra,45 Cal.4th at pp. 660, 658.) In contrast, in deciding Gallardo,
we did not “simply appl[y]” Apprendi or other precedent that
existed at the time petitioner’s conviction became final. (Id. at
p. 660.)
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Opinion of the Court by Jenkins, J.
factual findings when determining whether a prior conviction
qualified as a strike. (See Saffle v. Parks (1990) 494 U.S. 484,
488 [“[t]he explicit overruling of an earlier holding no doubt
creates a new rule”].) We did not merely “explain or refine the
holding of a prior case, . . . apply an existing precedent to a
different fact situation, . . . or . . . draw a conclusion that was
clearly implied in or anticipated by previous opinions.”
(Guerra, supra, 37 Cal.3d at p. 399 [listing “common examples
of decisions that do not establish a new rule of 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
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“ ‘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
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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
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testimonial statements about case-specific facts violates the
confrontation clause (Sanchez rule) is procedural, not
substantive].)
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
5
For example, in both In re Scott, supra, 49 Cal.App.5th at
p. 1019, review granted, and In re Haden, supra, 49
Cal.App.5th at p. 1107 (conc. opn. of Tucher, J.), review
granted, the Courts of Appeal held that Gallardo is not
retroactive but stated that even if it were, the petitioners in
those cases would not be entitled to relief.
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Opinion of the Court by Jenkins, J.
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.)
Notably, we described the trial court’s error in Gallardo
as one concerning the “form” of judicial factfinding, stating,
“[T]he court engaged in a form of factfinding that strayed
beyond the bounds of the Sixth Amendment” in finding the
defendant used a knife. (Gallardo, supra, 4 Cal.5th at p. 136.)
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And, consistent with our view of the court’s error in Gallardo,
we remanded the matter, instructing the trial court to
reconsider its factual finding of the defendant’s knife use “in
accordance with this opinion,” that is, by considering only “ ‘the
record of the prior proceeding’ ” to determine “ ‘what facts [the
defendant] necessarily admitted in entering her plea.’ ” (Id. at
pp. 140, 130, 137.) We 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 her prior
conviction, i.e., whether she used a knife, was no longer
relevant. Instead, we described the procedural changes that
would apply to the court’s determination on remand of whether
the prior conviction qualified as a prior strike.6 We therefore
conclude the Gallardo rule, which “prescribe[d] the manner of
finding facts to increase the defendant’s sentence” by changing
“ ‘ “the range of permissible methods for determining whether
a defendant’s conduct is punishable,” ’ ” was procedural in
nature. (Milton, supra, 42 Cal.App.5th at p. 992; In re Brown,
supra, 45 Cal.App.5th at p. 716, review granted [disagreeing
with the Milton court on the ultimate question of Gallardo’s
retroactivity but agreeing that the new rule that Gallardo
announced was procedural, not substantive].)
6
Although the offense in Gallardo involved a divisible
offense, Gallardo did not decide that the Three Strikes law
could have no possible application in cases involving indivisible
offenses. Accordingly, the Court of Appeal in Milton stated
that if Gallardo applied retroactively, petitioner would not be
automatically entitled to relief, but the matter would need to
be remanded for a redetermination of the prior offenses under
the procedure announced in Gallardo. Other Courts of Appeal
have reached similar conclusions after Gallardo.
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Opinion of the Court by Jenkins, J.
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 has a Sixth Amendment right to have a
jury find facts sufficient to impose the death penalty, was a
procedural rule.7
7
The cases on which petitioner relies in arguing the
Gallardo rule was substantive do not support his position. In
Montgomery v. Louisiana (2016) 577 U.S. 190, the United
States Supreme Court held that a new rule invalidating
mandatory sentencing schemes that require juveniles to be
sentenced to life in prison without parole (LWOP) applied
retroactively. In People v. Trujeque (2015) 61 Cal.4th 227, we
held that a decision barring prosecution of a juvenile as an
adult after the juvenile court has commenced adjudicatory
proceedings applied retroactively. In both cases, the new rules
exempted a whole category of people (juveniles) from ever
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Opinion of the Court by Jenkins, J.
facing trial or receiving mandatory LWOP sentences and
redefined the class of people who could be punished.
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
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Opinion of the Court by Jenkins, J.
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].)
D. Gallardo Is Also Not Retroactive Under the
State Johnson Test
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.)
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.)
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Opinion of the Court by Jenkins, J.
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
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Opinion of the Court by Jenkins, J.
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 was retroactive. We observed, for example,
that the high court gave retroactive effect to new rules
protecting a defendant’s right to counsel at various stages of a
trial “because denial of counsel ‘must almost invariably deny a
fair trial.’ ” (Id. at p. 411.) We noted that in contrast, the high
court did not give retroactive effect to a rule that provided
defendants with the right to counsel at lineup because “the
absence of counsel does not render a lineup unfair per se.” (Id.
at p. 412.) We also noted that cases requiring juries, rather
than judges, to decide serious criminal cases were not
retroactive “because although those cases recognized that
juries may serve to prevent arbitrariness and repression, they
did not rest on any assumption that nonjury trials are more
likely than jury trials to be unfair or unreliable.” (Ibid., citing
DeStefano v. Woods (1968) 392 U.S. 631.) Based on that review
of cases from the high court, we also stated that reliability was
a core concern: “Fully retroactive decisions are seen as
vindicating a right which is essential to a reliable
determination of whether an accused should suffer a penal
sanction. . . . [¶] On the other hand, decisions which have
been denied retroactive effect are seen as vindicating interests
which are collateral to or relatively far removed from the
reliability of the fact-finding process at trial.” (Johnson, supra,
3 Cal.3d at pp. 411–412.)
Meanwhile, during the same period, disagreements
developed at the high court over the Linkletter-Stovall
approach. The primary disagreement was sparked by the
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Opinion of the Court by Jenkins, J.
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]).
Following the United States Supreme Court’s decision in
Teague, we have not had much occasion to apply Johnson’s
8
In these opinions, Justice Harlan stated that new
substantive rules should apply retroactively, while new
procedural rules should be retroactive only where the
procedures used were “so fundamentally devoid of the
necessary elements of procedural due process as to require
upsetting [the] conviction in spite of the fact that it was
perfectly lawful when made final.” (Mackey, supra, 401 U.S. at
pp. 699–700 (conc. & dis. opn. of Harlan, J.).) He also
emphasized the importance of the finality of judgments and
urged that courts should apply new rules retroactively on
direct review but should not do so on collateral review except
in very limited situations. (Desist, supra, 394 U.S. at p. 258
(dis. opn. of Harlan, J.).)
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Opinion of the Court by Jenkins, J.
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
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Opinion of the Court by Jenkins, J.
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.
As we stated in Guerra — which concerned a nonfinal
case on direct review — for a new rule to apply retroactively,
its “ ‘major’ ” or “primary purpose” must be “to promote reliable
determinations of guilt or innocence,” i.e., “ ‘ “ ‘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, 37 Cal.3d at
pp. 402, 403.) For these purposes, the threshold for applying a
case retroactively on collateral review is necessarily
demanding, given the important systemic interests in the
stability and finality of judgments. (See Martinez, supra, 3
Cal.5th at p. 1222.) Petitioner argues Gallardo is retroactive
under this standard because the “fundamental purpose of
Gallardo is to promote fair and reliable determinations of the
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Opinion of the Court by Jenkins, J.
defendant’s guilt or innocence on the allegation that he
suffered a prior conviction qualifying as a strike under
California law.” We disagree.
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 unfairness: 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”].)
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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 rely only on
documents that “reliably reflect[] the facts” of the prior offense.
(Id. at p. 223.) We further observed that in contrast to the
unreliable probation report, a preliminary hearing transcript
on which the sentencing court relied was sufficiently reliable
“because the procedural protections afforded the defendant
during a preliminary hearing tend to ensure the reliability of
such evidence. Those protections include the right to confront
and cross-examine witnesses and the requirement those
witnesses testify under oath, coupled with the accuracy
afforded by the court reporter’s verbatim reporting of the
proceedings.” (Ibid.) Because there were various safeguards in
place that rendered the pre-Gallardo procedure reasonably fair
and reliable, it cannot be said that our “ ‘major’ ” or “primary
purpose” in announcing 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, 37 Cal.3d at
pp. 402, 403.)
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
33
In re MILTON
Opinion of the Court by Jenkins, J.
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
9
Amicus curiae Office of State Public Defender makes a
similar argument: “[I]f this Court believed the only issue was
the Sixth Amendment limit on judicial factfinding, it would
have embraced the dissent’s proposed remedy and shifted
factfinding to a sentencing jury.”
10
“[J]udicial factfinding is not inherently unreliable or less
reliable than jury factfinding.” (Milton, supra, 42 Cal.App.5th
at p. 998.) “[A]lthough . . . cases recognize[] that juries may
serve to prevent arbitrariness and repression, they d[o] not
rest on any assumption that nonjury trials are more likely
than jury trials to be . . . unreliable.” (Johnson, supra, 3 Cal.3d
at p. 412.) “[F]or every argument why juries are more accurate
factfinders [than judges], there is another why they are less
accurate.” (Schriro, supra, 542 U.S. at p. 356; see id. at p. 357
[“it is hard to see how a trial in which a judge finds only
aggravating factors could be” “impermissibly inaccurate”]; In re
Consiglio (2005) 128 Cal.App.4th 511, 515 [same].) Even the
majority of the Court of Appeal in In re Brown, which held
Gallardo is retroactive, acknowledged that a court’s
factfinding regarding the conduct underlying a prior conviction
would not be more reliable than that of a jury: “We recognize
that the factfinding process might not be any less reliable if
34
In re MILTON
Opinion of the Court by Jenkins, J.
that we were going to “reconsider McGee” because the high
court’s “further explication” of Sixth Amendment principles in
Descamps and Mathis informed us that a defendant has the
right to have a jury determine all facts relating to the nature of
a prior conviction that are used to impose an increased
sentence. (Gallardo, supra, 4 Cal.5th at pp. 124, 136.) The
high court’s post-McGee decisions instructed us that a
sentencing court was no longer permitted to make certain
factual findings, even if those findings might have been
entirely reliable, because a defendant has a Sixth Amendment
right to have a jury of his peers make those types of findings.
(See Blakely, supra, 542 U.S. at pp. 301, 313 [a defendant’s
right to a jury “ ‘of his equals and [neighbors]’ ” is based on the
“Framers’ paradigm for criminal justice” — “the common-law
ideal of limited state power accomplished by strict division of
authority between judge and jury”].) Thus, the “ ‘major’ ” or
“primary purpose” of the Gallardo rule (Guerra, supra, 37
Cal.3d at p. 402) was not to “vindicat[e] a right [that] is
essential to a reliable determination of whether an accused
should suffer a penal sanction” (Johnson, supra, 3 Cal.3d at
p. 411) but to ensure our procedure was consistent with the
high court’s “further explication” of “Sixth Amendment
principles” (Gallardo, at pp. 136, 124).
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
conducted by the sentencing judge, and might even be better.”
(In re Brown, supra, 45 Cal.App.5th at pp. 721–722.)
35
In re MILTON
Opinion of the Court by Jenkins, J.
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 contest the designation
of his first degree conviction” as having been related to a
deadly weapon, given statute that, at the time of conviction,
forbade probation for defendant “ ‘who at the time of the
36
In re MILTON
Opinion of the Court by Jenkins, J.
perpetration of said crime . . . was himself armed with a deadly
weapon’ ”].)
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
11
The definitions of California robbery and Illinois robbery
are very similar. (See 720 Ill. Comp. Stat. Ann. 5/18-1 [“A
person commits robbery when he or she knowingly takes
property . . . from the person or presence of another by the use
of force or by threatening the imminent use of force”]; § 211
[“Robbery is the felonious taking of personal property in the
possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear”].)
37
In re MILTON
Opinion of the Court by Jenkins, J.
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, 37 Cal.3d at pp. 402, 403.) Nor are we
persuaded that our decision invalidated prior procedures that
were fundamentally unfair or seriously undermined the
accuracy or reliability of criminal sentencing procedures. (See
Linkletter, supra, 381 U.S. at p. 639 & fn. 20.) As noted, the
first Johnson factor is critical in determining retroactivity, and
the second factor of law enforcement’s reliance on the old rule,
and the third factor of the burden on the administration of
justice “are of significant relevance only when the question of
12
The point here is not, as Justice Groban suggests (dis.
opn. of Groban, J., post, at p. 13), that the two defendants
convicted of robbery, one in Illinois and one in California,
necessarily engaged in identical conduct simply because they
were both convicted of robbery. The point is that two
defendants who actually did commit identical conduct would
necessarily be treated differently under our state’s recidivist
statutes unless courts were, pre-Gallardo, permitted to look
beyond the elements of each state’s definition of robbery when
determining whether each defendant’s offense qualified as a
strike.
38
In re MILTON
Opinion of the Court by Jenkins, J.
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
13
Petitioner argues that “alternatively,” his sentence is
unauthorized and may be corrected at any time because it
violated “the Sixth Amendment principles discussed in
Gallardo.” (Citing, e.g., United States v. Johnson (1982) 457
U.S. 537, 550; People v. Scott (1994) 9 Cal.4th 331, 354–355.)
The argument is circular. If we conclude the Gallardo rule is
retroactive, petitioner’s sentence was unlawful at the time of
sentencing and is unauthorized. If the Gallardo rule is not
retroactive, his sentence was lawful and is authorized. (See In
re Brown, supra, 45 Cal.App.5th at p. 731 (dis. opn. of
Menetrez, J.), review granted [“We cannot apply Gallardo
retroactively to render the sentence legally unauthorized and
then infer from that lack of legal authorization that Gallardo
must be retroactive”], italics omitted & added.) We also reject
petitioner’s argument that his sentence was unauthorized by
Apprendi. For the reasons we have explained, Apprendi and
other United States Supreme Court cases that existed when
petitioner’s conviction became final did not dictate our decision
in Gallardo. (See pt. III B, ante.)
39
In re MILTON
Opinion of the Court by Jenkins, J.
JENKINS, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
GUERRERO, J.
40
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. (Pen. Code, § 667, subd. (a)(1); all
undesignated statutory references are to this Code.) Moreover,
our decision in People v. Johnson (1970) 3 Cal.3d 404 furnishes
an independent basis for the retroactivity of the Gallardo rule
because the purpose of the rule is to promote the reliability of
factual determinations concerning prior convictions. (Dis. opn.
of Groban, J., post, at pp. 4‒14.) I write separately to
underscore how the characterization of Gallardo in today’s
opinion may reopen serious questions as to the
constitutionality of the Three Strikes 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. (§ 667,
subd. (a)(1).) The term “serious felony” is defined by reference
to section 1192.7, subdivision (c), which lists 42 types of
criminal activity that qualify as serious felonies.
1
In re MILTON
Liu, J., dissenting
Our decision in Gallardo marked an important shift in
how this sentencing enhancement statute is to be applied.
Before Gallardo, a defendant was subject to an enhanced
sentence wherever the defendant had a prior conviction and
the record of that conviction revealed that the “conduct [which]
likely (or ‘realistically’) supported the defendant’s [prior]
conviction” fell within the statutory definition of a serious
felony. (Gallardo, supra, 4 Cal.5th at p. 124.) But under the
new standard set out in Gallardo, that is not enough. After
Gallardo, a defendant stands “convicted of a serious felony”
within the meaning of section 667, subdivision (a)(1) only if the
“facts that were necessarily found [by the trier of fact] in the
course of entering the conviction” establish that the defendant
engaged in conduct satisfying the serious felony definition.
(Gallardo, at p. 134.) Under the pre-Gallardo regime, such a
showing would have been sufficient, but it would not have been
necessary. Accordingly, I understand Gallardo to have
narrowed who counts as having been “convicted of a serious
felony” under the Three Strikes law. (§ 667, subd. (a)(1).)
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;
2
In re MILTON
Liu, J., dissenting
the definition of “serious felony” was left untouched. But
Gallardo did change the class of persons who can be so
punished; our decision narrowed the scope of the sentencing
enhancement statute by interpreting its terms. Like Justice
Groban, I would hold that Gallardo announced a substantive
rule that must be given retroactive effect under Teague.
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 Sixth
Amendment, “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum, other than the fact
of a prior conviction, must be submitted to a jury, and proved
beyond a reasonable doubt.” (Apprendi, at p. 490.) Apprendi
preserved an exception for sentencing enhancements based
solely on the fact of a prior conviction — the Almendarez-
Torres exception — on the ground that “there is a vast
difference between accepting the validity of a prior judgment of
conviction entered in a proceeding in which the defendant had
the right to a jury trial and the right to require the prosecutor
3
In re MILTON
Liu, J., dissenting
to prove guilt beyond a reasonable doubt, and allowing the
judge to find the required fact under a lesser standard of
proof.” (Id. at p. 496; see Almendarez-Torres v. United States
(1998) 523 U.S. 224, 230, 244 (Almendarez-Torres).)
Both before and after Gallardo, the determination of
whether a defendant’s prior conviction counts as a “convict[ion]
of a serious felony” (§ 667, subd. (a)(1)) has been a
determination to be made by a judge, not by a jury. For this
arrangement to comply with Apprendi, it must fall within the
limited Almendarez-Torres exception.
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 Armed Career Criminal Act of 1984 (ACCA). (18
U.S.C. § 924, subd. (e).) Although we acknowledged that both
cases “were decided on statutory, rather than constitutional
grounds,” we explained that “the high court’s interpretation of
the relevant federal statute was informed by an understanding
of . . . Sixth Amendment principles, and the court’s explication
of those principles was both considered and unequivocal: The
jury trial right is violated when a court adds extra punishment
based on factfinding that goes ‘beyond merely identifying a
prior conviction’ by ‘tr[ying] to discern what a trial showed, or
a plea proceeding revealed, about the defendant’s underlying
conduct.’ ” (Gallardo, supra, 4 Cal.5th at pp. 134, 135, quoting
Descamps, supra, 570 U.S. at p. 269.)
4
In re MILTON
Liu, J., dissenting
Descamps and Mathis, we said, “are persuasive evidence
that the Almendarez-Torres exception [to Apprendi] is
narrower” than this court had previously supposed. (Gallardo,
supra, 4 Cal.5th at p. 132.) Those decisions suggest that our
pre-Gallardo case law could not be reconciled with the
Almendarez-Torres exception because the statutory scheme as
previously interpreted made a judge the trier of fact as to not
merely “the fact of a prior conviction” but the nature of the
conduct underlying a prior conviction. (Gallardo, at p. 130,
quoting Apprendi, supra, 530 U.S. at p. 490.) We understood
the high court to have interpreted the ACCA in Descamps and
Mathis in a manner that avoids this potential Apprendi
problem (Gallardo, at p. 133), and we construed the Three
Strikes law to avoid that same problem (Gallardo, at p. 135
[“We are persuaded, and we will follow the [high] court’s
guidance.”]).
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
5
In re MILTON
Liu, J., dissenting
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 concedes that Descamps and Royal apply
retroactively”].) Today’s decision makes this court an outlier.
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 section 667, subdivision (a)(1) makes this
determination not by reference to the elements of the offense
for which the conviction was entered, but rather by reference to
the facts necessarily found by the trier of fact in entering the
conviction. But that does not mean the Three Strikes law
allows courts to find facts concerning the conduct underlying
the offense. Under Gallardo, judges who administer the Three
Strikes law are not charged with deciding questions about a
defendant’s actual conduct, but only with determining what a
jury necessarily found in entering a verdict of conviction. That
is not a question about what the defendant did; it is a question
about what a jury did (or, in the case of a bench trial or guilty
6
In re MILTON
Liu, J., dissenting
plea, what a court did). We made clear in Gallardo that, were
we to construe our statutory scheme to allow judges to “go[]
‘beyond merely identifying a prior conviction’ by ‘tr[ying] to
discern what a trial showed, or a plea proceeding revealed,
about the defendant’s underlying conduct,’ ” this would likely
violate the requirements of the Sixth Amendment. (Gallardo,
supra, 4 Cal.5th at p. 135, quoting Descamps, supra, 570 U.S.
at p. 269.)
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”
(§ 667, subd. (a)(1)) would have been unchanged; it still would
turn on the nature of the conduct underlying the conviction.
The change that would have been worked by Justice Chin’s
proposed approach is that a jury, not a judge, would decide
whether the conduct underlying the conviction constituted a
serious felony. But that was not the path we chose. Instead,
we clarified what counts as having been “convicted of a serious
felony,” such that a judge may sit as a trier of fact only as to
whether the facts necessarily found in the course of entering
the prior conviction satisfy the statutory definition of “serious
7
In re MILTON
Liu, J., dissenting
felony,” and not as to any details of the underlying conduct.
We did not reallocate any decisionmaking authority from the
judge to a jury; we clarified the question that the sentencing
judge is tasked with deciding.
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.
8
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
1
In re MILTON
Groban, J., dissenting
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).)
1. GALLARDO ANNOUNCED A NEW SUBSTANTIVE RULE
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
2
In re MILTON
Groban, J., dissenting
defendant personally used a firearm or a dangerous or deadly
weapon in committing the offense. (Pen. Code, § 1192.7, subd.
(c)(8), (23).) Thus, the majority rightly observes that Gallardo
“did not [hold] that the conduct underlying [the defendant’s]
prior conviction, i.e., whether [Gallardo] used a knife, was no
longer relevant.” (Maj. opn., ante, at p. 22.) But the
prosecutor’s task in the Three Strikes context is not simply to
prove that the defendant merely committed a felony that the
statutory scheme defines as serious or violent; the prosecutor
must prove that the defendant was convicted of such a felony
(or felonies). (See Pen. Code, §§ 1170.12, subd. (a), 667,
subds. (b)–(j); see also maj. opn., ante, at p. 6.) Because
Gallardo altered what can serve as the basis for a prior
conviction finding, it substantively redefined the class of
persons eligible for punishment under the Three Strikes law.
(See In re Martinez (2017) 3 Cal.5th 1216, 1222.)
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 conviction”]; id. at p. 138 [“While a
3
In re MILTON
Groban, J., dissenting
trial court can determine the fact of a prior conviction without
infringing on the defendant’s Sixth Amendment rights, it
cannot determine disputed facts about what conduct likely
gave rise to the conviction”].) Where a defendant’s conviction
does not establish the facts necessary to render a prior offense
a serious felony, a judge can no longer impose a Three Strikes
sentence. In other words, Gallardo narrowed the universe of
people eligible for Three Strikes treatment to those whose
juries necessarily found true (or the defendant necessarily
admitted as part of a guilty plea) the strike qualifying facts.
So understood, Gallardo did not simply alter the procedures
used, or evidence properly considered, when determining
whether an individual suffered a prior strike conviction, it
substantively changed the punishable class. (See Welch,
supra, 578 U.S. at p. 129; id. at p. 130 [“Johnson [v. United
States (2015) 576 U.S. 591] affected the reach of the underlying
statute rather than the judicial procedures by which the
statute is applied. Johnson is thus a substantive decision and
so has retroactive effect . . . in cases on collateral review”
(italics added)]; see also People v. Trujeque (2015) 61 Cal.4th
227, 251 [“Using the high court’s rationale, it seems fair to
characterize Breed’s [Breed v. Jones (1975) 421 U.S. 519, 531]
double jeopardy rule as more substantive than procedural
because without the rule’s retroactive application, a defendant
would otherwise ‘face[] a punishment that the law cannot
impose upon him’ ”].) I would therefore apply Gallardo
retroactively to cases final on appeal.
4
In re MILTON
Groban, J., dissenting
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. 415.)
Pursuant to Johnson, “[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,
5
In re MILTON
Groban, J., dissenting
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. 136.)
The sentencing judge is no longer permitted to fact find —
judges may not “ ‘[try] to discern what a trial showed, or a plea
proceeding revealed, about the defendant’s underlying
conduct’ ” (Id. 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.”
6
In re MILTON
Groban, J., dissenting
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 show he used a firearm during the commission of the
robbery, which is necessary to qualify the offense as a serious
felony.1
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
1
Cf. People v. Chambers (1972) 7 Cal. 3d 666, 672
(discussing the firearm use enhancement under Pen. Code,
§ 12022.5 and explaining that “[b]y employing the term ‘uses’
instead of ‘while armed’ the Legislature requires something
more than merely being armed”).
7
In re MILTON
Groban, J., dissenting
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.) Thus, if Milton were sentenced
today, the court would not be able to consider the purported
facts in the Illinois judge’s handwritten notes or the judge’s
2
Here, the California sentencing court essentially
attached an uncharged personal firearm use enhancement to
petitioner’s prior Illinois robberies to render them strikes.
Such action arguably undermined additional case law from our
court and the high court separate and apart from Gallardo.
(See, e.g., Apprendi v. New Jersey (2000) 530 U.S. 466, 476
[“ ‘under the Due Process Clause of the Fifth Amendment and
the notice and jury trial guarantees of the Sixth Amendment,
any fact . . . that increases the maximum penalty for a crime
must be charged in an indictment, submitted to a jury, and
proven beyond a reasonable doubt’ ”]; People v. Anderson
(2020) 9 Cal.5th 946, 953 [while citing our case law strictly
interpreting statutory pleading and proof requirements, we
noted that those requirements derive from “a bedrock principle
of due process,” one that also applies to sentence
enhancements since a defendant has the “ ‘right to fair notice
of the specific sentence enhancement allegations that will be
invoked to increase punishment for his crimes’ ”].)
Furthermore, Milton makes the persuasive argument that
such an allowance unfairly deprived him of the benefit of his
plea bargain. In his simple robbery case in Illinois, an arming
allegation was dismissed in exchange for his guilty plea, but
the California court punished him as though he had pleaded
guilty to a greater offense.
8
In re MILTON
Groban, J., dissenting
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.
The pre-Gallardo risks to reliability are elucidated by the
high court’s rationale for limiting a sentencing court to
comparing elements between a prior crime of conviction and
the relevant definition of a predicate offense for purposes of an
enhanced sentence under the Armed Career Criminal Act.
(See Descamps, supra, 570 U.S. at p. 257; Mathis v. United
States (2016) 579 U.S. 500 (Mathis).) “The Armed Career
Criminal Act (ACCA or Act), 18 U.S.C. § 924(e), increases the
sentences of certain federal defendants who have three prior
convictions ‘for a violent felony,’ including ‘burglary, arson, or
extortion.’ To determine whether a past conviction is for one of
those crimes, courts use what has become known as the
‘categorical approach’: They compare the elements of the
statute forming the basis of the defendant’s conviction with the
elements of the ‘generic’ crime — i.e., the offense as commonly
understood. The prior conviction qualifies as an ACCA
predicate only if the statute’s elements are the same as, or
narrower than, those of the generic offense.” (Descamps, at
p. 257.)
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.”
9
In re MILTON
Groban, J., dissenting
(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 of
Penal Code section 245, subdivision (a)(1), defendant was also
acknowledging the truth of the testimony indicating that she
had committed the assault with a knife.” (Gallardo, supra,
4 Cal.5th at p. 137, italics added.) Gallardo thus remanded
10
In re MILTON
Groban, J., dissenting
the matter “to permit the People to demonstrate to the trial
court, based on the record of the prior plea proceedings, that
defendant’s guilty plea encompassed a relevant admission
about the nature of her crime.” (Id. at p. 139.)
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. 136.) These unestablished facts, which
were not necessary to the conviction, were “prone to error
precisely because their proof [was] unnecessary” (Mathis,
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
11
In re MILTON
Groban, J., dissenting
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 with),3 this circumstance has no bearing
3
Even if the circumstances of this individual petitioner
were relevant to our determination, the majority asks too
much of him. When Milton was convicted in Illinois, he had no
apparent notice that a California court might, years later, look
at the judge’s notes and statements in the record from his
Illinois sentencing hearing to dramatically enhance his
sentence for an unrelated offense. I disagree with the premise
that though Milton was not even charged with committing a
crime involving personal use of a deadly weapon, he was
nonetheless fully incentivized to contest personal use of a
deadly weapon. Under these circumstances, and in light of the
important reliability concerns at stake, I do not believe the
onus should be on a petitioner to foresee such circumstances
and create a fuller record or, years later, require him to “raise
[his] lack of incentive to challenge that fact during the original
12
In re MILTON
Groban, J., dissenting
on the question of Gallardo’s global impact on the reliability of
guilt determinations. The issue we must decide here is
whether Gallardo applies “retroactively to final judgments.”
(Maj. opn., ante, at p. 2.) As the majority acknowledges, in
order to answer this question, Johnson principally compels us
to consider “the purpose of the new rule” in Gallardo. (Id. at
p. 26, italics added.) The fact that one defendant might have
had reason to challenge an unproven factual allegation used to
enhance his sentence tells us nothing about Gallardo’s
purpose. Moreover, I read the majority’s decision to apply far
more broadly than to just this petitioner (id. at p. 38 [“In light
of all the pertinent considerations, we conclude the rule we
announced in Gallardo is . . . not retroactive to cases on
collateral review under both state and federal tests for
retroactivity”]), and therefore unique circumstances that may
or may not apply to this petitioner should play no part in that
proceedings, in the course of arguing the beyond-a-reasonable-
doubt standard [for prior conviction determinations] was not
satisfied.” (Maj. opn., ante, at p. 35.) The Court of Appeal
decisions cited by the majority in support of a contrary
conclusion do not persuade me otherwise. (See id. at p. 35.)
Notably, in two of the cases, People v. Johnson (1989)
208 Cal.App.3d 19, 24 and People v. Skeirik (1991)
229 Cal.App.3d 444, 464, the sentence enhancing statutes at
issue existed at the time the defendant was convicted of the
prior offense, thereby making the defendant’s incentive to
contest certain underlying conduct an arguably closer case;
Milton, by contrast, was convicted of the Illinois robberies
before the 1994 passage of the Three Strikes law. (See Ewing v.
California (2003) 538 U.S. 11, 15 [detailing California’s
passage of the Three Strikes law].)
13
In re MILTON
Groban, J., dissenting
determination. Even if the majority were correct and Milton
did have incentive to contest his gun use, there is no basis for
concluding that all petitioners “as a general matter” (maj. opn,
ante, at p. 35) had similar incentives in their prior proceedings.
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 deprive the person of the property,’ ” whereas
“robbery and armed robbery are general intent crimes in
Illinois.” (Milton, supra, 42 Cal.App.5th at p. 985.) The
difference between general and specific intent can greatly
distinguish a defendant’s culpability. (See People v. Moore
(2018) 19 Cal.App.5th 889, 893 [“General intent crimes require
only a general criminal intent to commit the proscribed act,
while specific intent crimes require an additional intent to do
some further act or achieve some further consequence”].) Such
differences are neither “minor” (maj. opn., ante, at p. 36) nor
the result of mere “happenstance” (ibid.) and thus illustrate
the importance of Gallardo’s new rule. Now, under Gallardo,
“the conviction itself” (Gallardo, supra, 4 Cal.5th at p. 136)
must qualify a petitioner for Three Strikes treatment, which
ensures that an out-of-state offender “actually did commit
identical conduct.” (Maj. opn., ante, at p. 37, fn. 12.) For all
these reasons, we should apply Gallardo retroactively and
14
In re MILTON
Groban, J., dissenting
remand for an accurate assessment of Milton’s prior
convictions (just as we did in Gallardo). (See id. at pp. 139–
140.)
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. 134.) Milton
should get the chance to be resentenced based upon the more
reliable rule we laid out in Gallardo, the very same rule that
would apply if he or anyone else were sentenced today. I
dissent.
GROBAN, J.
I Concur:
LIU, J.
15
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 977Review 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