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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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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Opinion of the Court by Jenkins, J.

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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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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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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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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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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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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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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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

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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

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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.)

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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

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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”].)

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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.

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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.

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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;

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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

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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.

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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,

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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.”

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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”).

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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.

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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.”

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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

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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

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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

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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 977

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S259954

Date Filed: August 22, 2022

__________________________________________________________

Court: Superior

County: Los Angeles

Judge: Ronald J. Slick

__________________________________________________________

Counsel:

Brad Kaiserman, under appointment by the Supreme Court, for

Petitioner William Milton.

Mary K. McComb, State Public Defender, Elias Batchelder, Erik Levin

and Jessie Hawk, Deputy State Public Defenders, as Amicus Curiae on

behalf of Petitioner William Milton.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler

and Lance E. Winters, Chief Assistant Attorneys General, Susan

Sullivan Pithey, Assistant Attorney General, Michael C. Keller, Eric J.

Kohm, Louis W. Karlin and Nicholas J. Webster, Deputy Attorneys

General, for Respondent the People.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Brad Kaiserman

5870 Melrose Avenue # 3396

Los Angeles, CA 90038

(310) 367-7632

Nicholas J. Webster

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6103