In re Jackson CA4/2

• Court: California Court of Appeal
• Decided: October 14, 2020
• Docket: E072464
• Status: Unpublished

Opinion

Filed 10/13/20 In re Jackson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re DERWIN JULES JACKSON, E072464 on Habeas Corpus. (Super.Ct.Nos. WHCJS1800321 & FSB11452)

OPINION

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill

and Ronald M. Christianson, Judges. Affirmed.

Jason Anderson, District Attorney, and Philip P. Stemler, Deputy District

Attorney, for Appellant.

Sally Patrone Brajevich, under appointment by the Court of Appeal, for

Respondent.

1 I

INTRODUCTION

The People appeal from the trial court’s1 orders granting respondent Derwin Jules

Jackson’s (defendant) petition for writ of habeas corpus, vacating his sentence and

remanding for resentencing without a strike.2 The habeas court granted the writ petition

after it found the San Bernardino County Superior Court (SBSC or trial court) in case

No. FSB11452 incorrectly concluded defendant’s prior strike conviction for shooting at

an occupied motor vehicle (Pen. Code,3 § 246), Riverside County Superior Court (RCSC)

case No. CR44158, qualified as a strike in violation of defendant’s Sixth Amendment

right to have a jury decide, beyond a reasonable doubt, whether he personally used a

firearm in that prior case. The habeas court also determined that People v. Gallardo

(2017) 4 Cal.5th 120 (Gallardo) applied retroactively and the trial court’s consideration

of the preliminary hearing transcript violated the holding in Gallardo.

The People contend the habeas court erred in granting defendant’s writ petition

because (1) the SBSC court found defendant’s prior strike to be true and defendant

1 For the sake of clarity, the trial court that ruled on defendant’s habeas petition will be referred to as the “habeas court.”

2 Defendant was eventually resentenced to 32 years to life (30 years shorter than his original sentence). We take judicial notice of the record on appeal from defendant’s pending appeal in case No. E072766. We also take judicial notice of relevant portions of SBSC case Nos. FSB11452, and prior appeals E021188 and E022053 as referenced herein. (See Evid. Code, § 452, subd. (d).)

3 All future statutory references are to the Penal Code unless otherwise stated.

2 admitted this in his petition and traverse; (2) the habeas court was limited to issues and

allegations in the petition; (3) the Dixon4 doctrine prevents this issue from being raised

on habeas; (4) the preliminary hearing transcript establishes that defendant was

personally armed with a firearm; (5) the law of the case doctrine, collateral estoppel, and

the Waltreus5 doctrine bar relitigation of this issue; (6) the habeas court erred in applying

Gallardo retroactively; (7) even if Gallardo is applied retroactively, defendant’s

preliminary hearing transcript is admissible to establish the strike conduct; and (8) the

habeas court erred in dismissing the strike without remanding for a new sentencing

hearing.

We conclude the habeas court did not err in applying Gallardo retroactively and

granting defendant’s writ petition on the ground defendant’s Sixth Amendment right to a

jury determination was violated when the trial court relied on the preliminary hearing

transcript to find defendant personally used a firearm in the commission of his prior strike

offense. We also reject the People’s other objections and affirm the order granting the

writ petition.

4 In re Dixon (1953) 41 Cal.2d 756 (Dixon).

5 In re Waltreus (1965) 62 Cal.2d 218 (Waltreus).

3 II

FACTUAL AND PROCEDURAL BACKGROUND

A. Defendant’s Prior Strike Offense, RCSC Case No. CR44158

On August 19, 1992, defendant pleaded guilty to one count of shooting at an

occupied motor vehicle (§ 246) in RCSC case No. CR44158. In return, the personal

firearm use allegation pursuant to section 12022.5 was dismissed and defendant was

sentenced to the low term of three years in state prison. The parties stipulated that a

factual basis for the plea could be taken from the preliminary hearing transcript, and the

RCSC court found a factual basis for the plea in the preliminary hearing transcript.

B. SBSC Case No. FSB11452

On the night of June 23, 1996, codefendant Rodrick Blackburn “shot and killed

two teenage boys, for no apparent reason other than that he ‘hate[d] Mexicans.’” (People

v. Blackburn (1999) 72 Cal.App.4th 1520, 1524 (Blackburn).) There was testimony

during defendant’s criminal trial that he “encouraged Blackburn to shoot the teenagers,”

and that “[w]hen the shooting was over, [defendant] drove Blackburn away.” (Ibid.)

On June 5, 1997, an amended information was filed charging defendant with two

counts of first degree murder (§ 187, subd. (a)). The amended information also alleged

that in the commission of both counts a principal was armed with a firearm (§ 12022,

subd. (a)(1)). The amended information further alleged that defendant had suffered a

prior serious or violent felony strike conviction (§§ 667, subds. (b)-(i), 1170.12,

subd. (a)-(d)) based on defendant’s 1992 conviction for shooting at an occupied motor

4 vehicle. Defendant’s motion to bifurcate the trial on the prior strike conviction was

granted.

On June 18, 1997, a jury convicted defendant of two counts of second degree

murder and found that a principal was armed with a firearm (§ 12022, subd. (a)(1)) as to

both murders.

After defendant waived his right to a jury trial on the truth of his prior conviction,

on June 20, 1997, the SBSC court found true that defendant had a prior conviction for

shooting at an occupied motor vehicle in violation of section 246,6 RCSC case

No. CR44158. It appears, however, that the court reserved ruling on whether the prior

qualified as a strike. In response to defendant’s question, “What was this we just went

through?” the trial court explained: “We had a court trial on whether or not the prior

conviction that was alleged against you that we had separated out from the jury trial,

whether that was true or not. And I made a finding that it’s true. It’s all we did today

was find that you had suffered that prior conviction. [¶] The attorneys still have the right

to challenge whether or not it’s a strike and what other affect it might have on you prior

to the date of sentencing.”

The sentencing hearing was held on January 30, 1998. At that time, the parties

and the trial court assumed the prior conviction was found true as “a prior strike” and

6 A violation of section 246 is currently listed as a serious felony in the serious felony list but was not part of the list prior to 2002. (§ 1192.7, subd. (c) [“As used in this section, ‘serious felony’ means any of the following: . . . (33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246.”], as amended, Stats. 2002, ch. 606, § 3 (AB 1838), effective Sept. 17, 2002.)

5 entertained arguments regarding striking the strike. In relevant part, the prosecutor noted

that the preliminary hearing transcript showed that “defendant engaged in a gun battle

with another vehicle on the freeway” when he committed the prior offense for shooting at

a motor vehicle. The trial court treated the prior conviction as a strike (§ 1192.7,

subd. (c)(8)), and sentenced defendant to a total term of 62 years to life in state prison.

Defendant subsequently appealed, arguing, in pertinent part, that there was

insufficient evidence that his prior conviction for shooting at an occupied motor vehicle

(§ 246) qualified as a “‘strike.’” (Blackburn, supra, 72 Cal.App.4th at p. 1525.) On

June 23, 1999, a panel of this court affirmed the judgment, with a modification to clarify

that the victim restitution order was joint and several between defendant and his

codefendant Blackburn. (Id. at pp. 1535-1536.) This court found sufficient evidence

supported the determination that the prior conviction qualified as a “strike” based on a

review of the preliminary hearing transcript from RCSC case No. CR44158. (Id. at

pp. 1531-1532.) As described in the preliminary hearing transcript, defendant was seen

holding a gun, defendant was the main participant in attempting to get the victim/vehicle

to pull over, there was no evidence defendant’s passenger had a gun, and the passenger

did not have a clear shot at the victim but defendant did. (Ibid.) In addition, this court

reasoned that it was immaterial that the personal use of a firearm allegation was

dismissed because it was not necessary to prove the prior strike. (Id. at pp. 1527 &

1530.)

6 On August 30, 2018, defendant filed the instant petition for writ of habeas corpus

in the superior court on the grounds that (1) there was insufficient evidence to support the

prior strike finding under Gallardo because the trial court had engaged in constitutionally

prohibited judicial factfinding in violation of his Sixth Amendment right to a jury trial by

relying on the preliminary hearing transcript to find he had personally used a firearm in

RCSC case No. CR44148, and (2) he was denied the effective representation of counsel

with respect to the prior strike.

On October 9, 2018, the habeas court filed an order inviting an informal response

to defendant’s habeas petition solely on the Gallardo issue after a lengthy discussion of

Gallardo itself. In its order, the habeas court recognized that the SBSC court had found

defendant’s prior strike true in the underlying proceeding.

On October 26, 2018, the People filed an informal response. In summary, the

People pointed out that even if the court applied Gallardo retroactively, defendant’s prior

strike finding would stand because he had stipulated to the preliminary hearing transcript

as a factual basis. The People also claimed that numerous procedural bars and doctrines,

such as the law of the case, the collateral estoppel doctrine, and the Waltreus doctrine,

prevented defendant from relitigating the true finding on the prior strike conviction if

Gallardo was not applied retroactively.

Defendant filed a reply to the People’s informal response on November 27, 2018,

realleging “his claims raised under the new law as decided in” Gallardo.

7 On December 5, 2018, the habeas court issued an order to show cause. The

habeas court again noted the petition relied upon Gallardo and ordered the People to

show cause “why the relief requested in the petition” should not be granted.

The People filed a return on January 3, 2019, addressing the Gallardo issue and

numerous procedural bars to defendant’s attempt to relitigate the prior strike allegation.

On January 16, 2019, defendant filed a traverse to the People’s return. Defendant

argued Gallardo applied retroactively to collaterally challenge his prior strike conviction.

A hearing on defendant’s habeas petition was held on March 15, 2019. Prior to

argument, the habeas court noted: “And we had a discussion before the lunch hour,

because I wanted to point out to Counsel something that I noticed in reviewing the

record. And so, with that in mind, I’d ask Counsel include discussion of that issue in any

comments that you have for the Court.” The court was referring to whether the SBSC

found the prior conviction qualified as a strike. The court explained: “I think everybody

assumed—The way I read the transcript, everybody assumed at the sentencing hearing

that Judge Christianson had made the factual finding. When the appeal was taken, the

issue was whether or not there was sufficiency of the evidence on appeal. Nobody

looked at the question of whether or not Judge Christianson ever actually made the

finding beyond a reasonable doubt. [¶] And I think everybody from Judge Christianson

to the justices on the Court of Appeal to all of the lawyers just assumed that that finding

had been made. I don’t blame the justices on the Court of Appeal because, clearly, the

lawyers should have raised that issue, and they did not.”

8 The prosecutor argued that defendant’s claim was procedurally barred under the

Waltreus/Dixon doctrines and law of the case. The prosecutor also asserted that

defendant’s issue was barred because it was a new ground added by the habeas court and

not raised in defendant’s petition. The prosecutor objected to the habeas court applying

Gallardo retroactively and asserted that Gallardo would not provide defendant relief

even if the case was applied retroactively.

Defendant’s counsel argued that Gallardo applied retroactively and that the prior

conviction “was neither alleged nor proven beyond a reasonable doubt that [defendant]

was armed with and personally discharged a gun.” Defense counsel further noted “[t]he

fact that the Court struck the firearm enhancement in the interest of justice substantially

shows that insufficient evidence exists that [defendant] was the person that actually fired

the gun” and that “[a]nything beyond that would require judicial factfinding, which is

prohibited under Gallardo.” Defense counsel also asserted that there were no procedural

bars because the prior conviction was invalid and “a challenge to an illegal sentence will

always lie” in the interest of justice.

Following argument, the habeas court found Gallardo applied retroactively

and that pursuant to Gallardo, “resolution of this factual dispute by the trial court

violated [defendant’s] [S]ixth [A]mendment right to have a jury decide, beyond a

reasonable doubt, whether he personally used a firearm in the Riverside case, case

number CR44158.” The habeas court therefore granted defendant’s petition for writ of

9 habeas corpus and concluded defendant “shall be resentenced in case number FSB11452

as if his prior strike conviction was not a strike.”

The habeas court noted prior to 2002, in order for a conviction for shooting at an

occupied motor vehicle (§ 246) to qualify as a strike, there must be an additional finding

by the jury or an admission by the defendant that he or she personally used a firearm.

The habeas court also observed that, although the trial court found the prior conviction in

RCSC case No. CR44158 occurred, the trial court made no finding beyond a reasonable

doubt defendant personally used a firearm in the commission of the offense and expressly

reserved determination of the issue of whether the prior conviction qualified as a strike.

The habeas court also stated that neither the jury nor the trial court ever found beyond a

reasonable doubt that defendant personally used a firearm in RCSC case No. CR44158,

required for the prior conviction to qualify as a strike.

The habeas court rejected the People’s argument that defendant admitted personal

firearm use by stipulating to the preliminary hearing transcript as a factual basis for the

guilty plea in RCSC case No. CR44158. The court explained defendant’s stipulation to

the preliminary hearing as a factual basis for the guilty plea did not include an admission

he personally used a firearm because defendant specifically negotiated a dismissal of the

personal firearm use allegation as part of the plea agreement and personal firearm use

was not necessary to violate section 246. The habeas court concluded the trial court

could not resolve a disputed fact by relying on the preliminary hearing transcript under

Gallardo.

10 The habeas court also rejected the People’s claim it was barred from granting the

writ on the ground there had been no finding of personal firearm use because defendant

had not made that specific claim in his writ petition. In so holding, the habeas court

concluded defendant had argued the strike had not been found true by a jury beyond a

reasonable doubt, which encompassed the issue of whether a finding had been made the

prior qualified as a strike. In addition, Gallardo permitted review of whether the prior

qualified as a strike. The habeas court noted that, before the hearing on the writ petition,

it had notified the parties that there had been no finding on whether the prior qualified as

a strike, and the parties addressed the issue at the hearing. The habeas court further

rejected the People’s argument that the SBSC court had made a finding defendant had

personally used a firearm in the commission of his prior conviction.

On March 15, 2019, the habeas court issued a written order granting defendant’s

petition for writ of habeas corpus and ordering defendant to be resentenced as if his prior

conviction for violating section 246 in RCSC case No. CR44158 was not a strike. The

court concluded Gallardo applied retroactively and therefore under Gallardo, the trial

court violated defendant’s Sixth Amendment right to have a jury decide beyond a

reasonable doubt whether he personally used a firearm in RCSC case No. CR44158. The

court also found that at defendant’s sentencing hearing on January 30, 1998, “the parties

and the trial court assumed that a violation of Penal Code section 246 must include

personal use of a firearm, thereby ignoring that a person could violate the statute without

personal use as an aider and abetter [sic]. (See Blackburn, 72 Cal.App.4th at [p.] 1531.)

11 Although the trial court applied the beyond a reasonable doubt standard for its finding

that the prior conviction was true (RT 634:10-11), it never made any finding that

[defendant] ‘personally use[d] a firearm’ in case no. CR44158 beyond a reasonable doubt

as required. [Citations.]” (Bold and italics in original.) Finally, the habeas court

determined remand was unnecessary because the record affirmatively established

defendant never admitted to personal use of a firearm when he committed the prior

conviction.

On April 9, 2019, the People filed a timely notice of appeal.

III

DISCUSSION

A. Law Applicable to Ruling on a Writ Petition

The People argue the habeas court erred by raising the issue of whether the SBSC

court properly found defendant’s prior conviction was a strike, an issue that defendant’s

original trial attorney, the trial court, this court, defendant in propria persona on habeas,

and defendant’s appointed habeas counsel “all conceded or previously ruled against him

on.” The People maintain that the record “itself belies the habeas court’s reading” and

“the habeas court was precluded from raising this issue on its own. [Citations].”

Under our state Constitution, a person improperly deprived of his or her liberty has

the right to petition for a writ of habeas corpus. (Cal. Const., art. I, § 11; People v.

Duvall (1995) 9 Cal.4th 464, 474 (Duvall).) A petition for a writ of habeas corpus

collaterally challenges a presumptively final criminal judgment. Therefore, the petitioner

12 bears a heavy burden to plead grounds for relief, and later to prove them. (Duvall, at

p. 474.)

When reviewing such a petition, the habeas court “evaluates it by asking whether,

assuming the petition’s factual allegations are true, the petitioner would be entitled to

relief. [Citations.] If no prima facie case for relief is stated, the court will summarily

deny the petition.” (Duvall, supra, 9 Cal.4th at pp. 474-475.) If the court finds the

factual allegations establish a prima facie case for relief, the court will issue an order to

show cause. (Id. at p. 475.) When an order to show cause issues, it is limited to the

claims raised in the writ petition and the factual bases for those claims. Issuance of an

order to show cause indicates the court’s preliminary assessment that the petitioner would

be entitled to relief if the petitioner’s factual allegations are proved. (Ibid.)

The custodian of the confined person, the People, shall then file a responsive

pleading, called a return, justifying the confinement. (§ 1480; Duvall, supra, 9 Cal.4th at

p. 475.) The return shall allege facts establishing the legality of the petitioner’s custody

and respond to the petition allegations that the confinement is unlawful. (Duvall, at

p. 476.) In addition, the return should also “provide such documentary evidence,

affidavits, or other materials as will enable the court to determine which issues are truly

disputed.” (In re Lewallen (1979) 23 Cal.3d 274, 278, fn. 2; accord, Duvall, at p. 476.)

In response to the return, the petitioner may file a traverse, which either admits or

disputes the return’s factual allegations responsive to the petition. (Duvall, at p. 477.)

13 In the instant case, contrary to the People’s claim, we find the habeas court

followed these procedures. The habeas court concluded that an evidentiary hearing was

not required. After reviewing the pleadings and attached exhibits, and listening to oral

argument, the court granted defendant writ relief.

Defendant filed a writ of habeas corpus petition on the grounds that (1) the trial

court in case no. FSB11452 violated his Sixth Amendment right to a jury trial on the

prior strike and engaged in constitutionally prohibited judicial factfinding in violation of

Gallardo when it looked to the preliminary hearing transcript to see whether the prior

qualified as a strike, and (2) defense counsel was ineffective because there was

insufficient evidence of the strike. The habeas court raising the issue of whether the trial

court had actually made a finding defendant’s prior conviction qualified as a strike and

the parties assuming the SBSC court had so found at the sentencing hearing was intrinsic

in defendant’s claims raised in his petition. Moreover, the habeas court did not raise a

new issue. Rather, the habeas court was explaining its interpretation of the trial record

when determining whether to grant writ relief to defendant.

Furthermore, it is settled law in California that an unauthorized sentence can be

challenged and corrected at any time. (People v. Cabrera (2018) 21 Cal.App.5th 470,

477 (Cabrera); People v. Scott (1994) 9 Cal.4th 331, 354 (Scott); Montgomery v.

Louisiana (2016) __ U.S. __, 136 S.Ct. 718, 723 [defendant permitted to challenge

sentence as cruel and unusual punishment 50 years after his arrest]; People v. Sanchez

(2016) 245 Cal.App.4th 1409, 1417.) Habeas corpus relief is thus proper here where

14 defendant was sentenced to serve an illegal or unauthorized sentence. (In re Harris

(1993) 5 Cal.4th 813, 839.) Writ relief may be granted when “the sentencing court acted

in excess of its jurisdiction by imposing a sentence on the petitioner that was longer than

that permitted by law.” (Ibid. [“We again invoked this rule in a case in which a habeas

corpus petitioner claimed two enhancement provisions were improperly applied to

lengthen his overall sentence.”].)

The unauthorized sentence exception to the general rule precluding relief after a

judgment is final, applies here. Defendant’s sentence is unauthorized, either because the

SBSC court in 1998 simply overlooked making a finding defendant’s prior conviction

qualified as a strike by determining defendant personally used a firearm, or the parties

and the court improperly found the prior qualified as a strike based on facts outside the

record of conviction. Either way, the prosecution failed to prove defendant personally

used a firearm. Defendant never admitted he personally used a firearm in the

commission of the prior conviction. Therefore, for the reasons explained, the habeas

court properly granted defendant’s petition for habeas corpus writ relief.

B. Whether Gallardo Applies Retroactively

The California Supreme Court in Gallardo, supra, 4 Cal.5th 120, held that, when

determining whether a prior conviction is a serious felony for purposes of increasing a

sentence, the trial court is limited to “those facts that were established by virtue of the

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

15 p. 136; see id. at p. 134.) Such a determination about the nature of a prior conviction thus

is to be made by the court solely based on the record of conviction. (Id. at p. 138.)

Where there has been a plea, the determination of whether the plea encompassed a

relevant admission about the nature of the crime, is limited to the record of the conviction

entered on the plea. (Id. at pp. 138-139.) Our Supreme Court thus concluded the trial

court in Gallardo had engaged in constitutionally prohibited factfinding by looking

beyond the defendant’s record of conviction to find that a prior conviction qualified as a

strike. (Id. at pp. 134-137.)

Recently, this court in In re Brown (2020) 45 Cal.App.5th 699 (Brown), review

granted June 10, 2020, S261454, concluded Gallardo applies retroactively to a

defendant’s unauthorized sentence under the California retroactivity standard for

assessing retroactivity of judicial decisions. (Brown, at pp. 714-720.) We noted “[t]he

threshold inquiry in determining retroactivity is whether a judicial holding constitutes a

‘new rule.’” (Brown, at p. 716, citing In re Ruedas (2018) 23 Cal.App.5th 777, 799.) We

explained “[a] judicial decision constitutes a ‘new rule’ under state law when the judicial

decision ‘(1) explicitly overrule[s] a precedent of the California Supreme Court, or

(2) disapprove[s] a practice implicitly sanctioned by prior decisions of the Supreme

Court, or (3) disapprove[s] a long-standing and widespread practice expressly approved

by a near-unanimous body of lower court authorities.’ [Citations.]” (Brown, at p. 716.)

We determined that “[u]nder this definition of a ‘new rule,’ the Gallardo decision

created a new rule of law by explicitly overruling the firmly established case precedent of

16 People v. McGee (2006) 38 Cal.4th 682. McGee provided controlling Supreme Court

precedent on the trial court’s authority to make factual findings when determining

whether a prior conviction qualifies as a strike. [Citation.] In overruling McGee, the

Gallardo court held that McGee ‘is no longer tenable insofar as it authorizes trial courts

to make findings about the conduct that “realistically” gave rise to a defendant’s prior

conviction. The trial court’s role is limited to determining the facts that were necessarily

found in the course of entering the conviction. To do more is to engage in “judicial

factfinding that goes far beyond the recognition of a prior conviction.”’ (Gallardo,

supra, 4 Cal.5th at p. 134, quoting in part Descamps v. United States [(2013)] 570 U.S.

[254,] 255.)” (Brown, supra, 45 Cal.App.5th at pp. 716-717.)

After finding the Gallardo rule is a procedural rule and following a lengthy

analysis of the state retroactivity standard, we concluded: “Here, the new rule in

Gallardo bars the trial court from making disputed factual findings regarding the

defendant’s conduct underlying a prior conviction, based on facts outside the record of

conviction or facts that were not admitted by the defendant during his plea or found true

by the jury. The Gallardo rule thus goes to the integrity of the factfinding process when

the court determines whether a prior conviction qualifies as a strike. The primary

purpose of the Gallardo rule is to promote reliable determinations of a defendant’s guilt

or innocence in committing underlying acts, apart from the elements of a conviction,

required to impose a strike. [¶] Because the purpose of Gallardo ‘relates to

characteristics of the judicial system which are essential to minimizing convictions of the

17 innocent’ used to increase a defendant’s sentence [citation], the purpose of the Gallardo

rule weighs heavily in favor of retroactive application. [Citations.] We are not

convinced that the other less weighty factors, such as the prosecutors’ reliance on the

former law and the burden retroactivity will place upon the judicial system, outweigh the

purpose of the Gallardo rule, which ensures that a defendant is sentenced fairly, in

adherence to constitutional factfinding procedures, consistent with a defendant’s Sixth

amendment and due process rights.” (Brown, supra, 45 Cal.App.5th at pp. 718-719,

citing In re Johnson (1970) 3 Cal.3d 404, 413 & In re Lucero (2011) 200 Cal.App.4th 38,

45.)

In finding Gallardo applies retroactively, we rejected the Second District Court,

Division Seven’s conclusion in In re Milton (2019) 42 Cal.App.5th 977 (Milton), review

granted March 11, 2020, S259954, that Gallardo should only be applied prospectively to

cases that are already final. (Brown, supra, 45 Cal.App.5th at p. 721; Milton, at pp. 981-

982.) We agreed with Milton “to the extent it concludes that under the federal and state

retroactivity standards, Gallardo established a procedural new rule. (Milton, supra, 42

Cal.App.5th at pp. 991, 993, 997.) However, as discussed . . . in our opinion, we

respectfully disagree[d] with the Milton court’s conclusion that Gallardo does not apply

retroactively under the state retroactivity standard.” (Brown, at p. 721.)

“The court in Milton reasoned (1) Gallardo did not vindicate a right essential to

the reliability of the factfinding process and (2) applying Gallardo retroactively would be

disruptive.” (Brown, supra, 45 Cal.App.5th at p. 721, citing Milton, supra, 42

18 Cal.App.5th at pp. 998-999.) We were “not persuaded that these two grounds justify

depriving defendants of retroactive application of Gallardo. We recognize that the

factfinding process might not be any less reliable if conducted by the sentencing judge,

and might even be better. We recognize that applying Gallardo retroactively will be

disruptive and burdensome to the courts. Nevertheless we conclude these factors do not

outweigh a defendant’s constitutional right to a jury determination of facts upon which a

strike is based when the strike is founded on a crime statute that does not categorically

match the predicate prior crime. [Citation.] We conclude Gallardo applies retroactively

under the state retroactivity standard.” (Brown, at pp. 721-722, citing Gallardo, supra, 4

Cal.5th at pp. 135-136.)

Here, defendant challenges his 1998 sentence but not his criminal convictions. As

we found in Brown, supra, 45 Cal.App.5th 699, we conclude that under the state

retroactivity standard, the habeas court properly applied Gallardo retroactively, and in

doing so, did not abuse its discretion in granting defendant’s writ petition on the ground

defendant’s prior conviction for shooting at an occupied vehicle did not qualify as a

strike. In examining the record on appeal, it appears there was no finding by a jury or the

SBSC court that defendant personally used a firearm in the commission of his prior

conviction. In addition, the prosecution neither proved nor did defendant admit that he

had personally used a firearm in the commission of the prior conviction. It appears at the

time defendant was sentenced in 1998, the parties, the trial court, and this court in

defendant’s prior appeal assumed a finding had been made that defendant’s prior

19 conviction qualified as a strike. The record on appeal demonstrates that the only way the

trial court and this court in defendant’s prior appeal could have reached such a conclusion

was to rely on facts outside the record of conviction, which is improper under Apprendi v.

New Jersey (2000) 530 U.S. 466 (Apprendi), Descamps v. United States, supra, 570 U.S.

254, Gallardo, and the Sixth Amendment. Because there were no facts upon which the

SBSC court could have properly found defendant personally used a firearm when

committing the prior conviction of shooting at an occupied vehicle, imposition of the

prior conviction was unlawful, resulting in an unauthorized sentence.

C. Reliance on Facts in the Preliminary Hearing Transcript

The People contend that, regardless of whether Gallardo applies retroactively, the

preliminary hearing transcript was admissible to establish the prior conviction qualified

as a strike and defendant stipulated the preliminary hearing transcript could be used to

establish a factual basis for his plea in the prior case. In support of this proposition, the

People rely on Blackburn, supra, 72 Cal.App.4th at pp. 1531-1532, wherein this court

determined that “the preliminary hearing transcript stipulated as the factual basis of

[defendant’s] prior conviction constituted sufficient evidence of his strike prior.” The

People claim “Gallardo would require this court to review the preliminary hearing

transcript to determine [defendant’s] conduct because the transcript had been so

stipulated.” The People therefore conclude “the doctrines of Waltreus, law of the case,

and collateral estoppel combine to prevent [defendant] from again litigating this issue.”

Under the circumstances of this case, we disagree.

20 Here, the fact that defendant stipulated the preliminary hearing transcript provided

a factual basis for his plea at the time he pleaded guilty in his prior case, RCSC case

No. CR44158, does not constitute “‘“‘circumstances that would normally call for a

response if the statement were untrue.’”’” (People v. Sample (2011) 200 Cal.App.4th

1253, 1262.) The firearm use related statements in the preliminary hearing transcript

were not read aloud during the taking of the plea, did not establish defendant personally

used a firearm in the commission of the offense, and were not mentioned during the plea

In addition, “[a] stipulation to a document to provide a factual basis for a plea is an

admission only of the facts necessary to the charged offense itself.” (People v. Banda

(2018) 26 Cal.App.5th 349, 359; see People v. Reed (1996) 13 Cal.4th 217, 224.)

Defense counsel here stipulated to a factual basis for the plea to a violation of

section 246, not to the allegation defendant personally used a firearm. Indeed, the

personal firearm use enhancement in violation of section 12022.5, subdivision (a), had

expressly been dismissed as part of the plea negotiations. The prosecutor and the trial

court acknowledged the plea did not include the personal firearm use allegation. Personal

firearm use is not an element of shooting at an occupied motor vehicle. (People v.

Ramirez (2009) 45 Cal.4th 980, 985; People v. Hernandez (2010) 181 Cal.App.4th 1494,

1501.) Accordingly, the stipulation to rely on the preliminary hearing transcript to

provide a factual basis for the plea did not include an admission by defendant that he

personally used a firearm in the commission of the prior convicted offense.

21 Under such circumstances, defendant did not have any reason or motive to contest

or object to the firearm-related facts in the preliminary hearing transcript. Not objecting

to the preliminary hearing transcript and stipulating to the preliminary hearing transcript

establishing a factual basis for defendant’s plea does not constitute an adoptive admission

by defendant that all of the firearm-related facts stated in the preliminary hearing

transcript are true.

Furthermore, the People’s reliance on Blackburn is misplaced. Blackburn was

decided before Gallardo, which held that the sentencing court cannot make factual

findings on whether a prior conviction qualifies as a strike. (Gallardo, supra, 4 Cal.5th at

p. 136.) Thus, even assuming the SBSC court could consider the facts in the preliminary

hearing transcript, it would be improper under Gallardo for the court, rather than the jury

to make a factual finding that defendant actually used a weapon to commit the shooting at

an occupied vehicle based on the facts in the preliminary hearing transcript. Moreover,

as the habeas court observed, we cannot overlook the fact that there was no finding in the

SBSC case the prior conviction qualified as a strike.

“‘The Sixth Amendment contemplates that a jury—not a sentencing court—will

find’ the facts giving rise to a conviction, when those facts lead to the imposition of

additional punishment under a recidivist sentencing scheme. [Citation.] This means that

a sentencing court may identify those facts it is ‘sure the jury . . . found’ in rendering its

guilty verdict, or those facts as to which the defendant waived the right of jury trial in

entering a guilty plea. [Citation.] But it may not ‘rely on its own finding’ about the

22 defendant’s underlying conduct ‘to increase a defendant’s maximum sentence.’”

(Gallardo, supra, 4 Cal.5th at p. 134.) Thus, in determining whether defendant’s prior

conviction qualified as a strike, the trial court could only rely on “those facts that were

established by virtue of the 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.)

Gallardo is similar to the present case regarding the court’s judicial factfinding.

The defendant in Gallardo waived her right to a jury trial regarding an allegation that she

suffered a prior assault conviction, but she disputed that the assault qualified as a strike

based on the fact that her plea in the prior case did not definitively establish what type of

assault she committed. (Gallardo, supra, 4 Cal.5th at p. 126.) If the defendant

“committed assault with a deadly weapon, the prior conviction counted as a strike; if she

committed assault by any means of force likely to produce great bodily injury, it did not.”

(Id. at p. 125.) The trial court reviewed a transcript of the preliminary hearing in the prior

case, determined that the defendant had committed assault with a deadly weapon, and

sentenced her as a second strike offender. (Id. at p. 126.) The California Supreme Court

granted review in Gallardo to determine whether using the defendant’s assault prior as a

strike violated her rights under Apprendi.

Our Supreme Court in Gallardo concluded that the trial court “engaged in a form

of factfinding that strayed beyond the bounds of the Sixth Amendment.” (Gallardo,

supra, 4 Cal.5th at p. 136.) The court explained that in determining whether a prior

23 conviction qualifies as a strike, the trial court may consider only a limited class of

documents that “might help identify what facts a jury necessarily found in the prior

proceeding.” (Id. at p. 137.) A preliminary hearing transcript is not within that class

because “[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.” (Ibid.) Thus, the court reasoned, “at least in the absence of any pertinent

admissions,” the sentencing court cannot do anything but guess that a defendant who

pleaded guilty to committing an assault in violation of section 245, subdivision (a)(1),

was “acknowledging the truth of the testimony indicating that she had committed that

assault with a knife.” (Gallardo, at p. 137.) Nonetheless, the court reaffirmed “that

determinations about the nature of prior convictions are to be made by the [sentencing]

court, rather than a jury, based on the record of conviction.” (Id. at p. 138.)

People v. Hudson (2018) 28 Cal.App.5th 196 (Hudson) is also instructive. In

Hudson, the defendant was charged with a section 245 assault. “In the first amended

complaint, dated August 1, 1990, it stated the assault charge was ‘a violation of

Section 245(a)(1) . . . , in that said defendant(s) did then and there assault [victim], and by

means of force likely to produce great bodily injury.’ . . . [¶] An information was

thereafter filed on August 24, 1990. The second count of the information again omitted

language charging section 245(a)(1) based on assault with a deadly weapon. However,

handwritten notes on the information added the following language to the charge:

‘defendants did then and there assault [victim] with a deadly weapon, to wit: a pipe, and

24 by means of force likely to produce great bodily injury.’ (Italics added.) . . . Hudson pled

nolo contendere on February 27, 1991, to ‘section 245(a)(1) . . . as charged in Count 2 of

the Information.’ However, the document does not specify the theory, if any, upon which

Hudson pled guilty to section 245(a)(1).” (Hudson, at p. 202.)

“At the bifurcated trial, the prosecution presented two forms, the abstract of

judgment and fingerprint card, which describe the crime committed under

section 245(a)(1) as assault with a deadly weapon.” (Hudson, supra, 28 Cal.App.5th at

pp. 202-203.) “On both forms, the space for describing the nature of the crime is small.

On the abstract of judgment form, the name of the crime was abbreviated to ‘Assault

w/deadly weapon’ and the fingerprint card stated ‘Ct2 PC245(a) ADW.’” (Id. at p. 203,

fn. 3.) “The court was also provided the transcript of the preliminary hearing, during

which the victim described Hudson beating him with a metal pipe.” (Id. at p. 203.)

Based on the documents submitted, the trial court determined the defendant pleaded no

contest to the strike prong of section 245. (Ibid.)

The appellate court reversed the trial court’s true finding on the prior strike

conviction allegation, declaring “[t]his case is indistinguishable from Gallardo.”

(Hudson, supra, 28 Cal.App.5th at p. 208.) After expressing concerns over the validity of

the handwritten insertions to the information, the court concluded that, “assuming the

handwritten notes alleging assault with a deadly weapon were incorporated therein,” the

trial court could not find the defendant had pleaded to the strike prong of section 245

25 because “the record is silent as to whether Hudson pled to assault based on the use of a

deadly weapon, causing great bodily injury, or both.” (Id. at p. 208.)

The Hudson court then concluded the trial “court’s reliance on the preliminary

hearing transcript was impermissible, and violated Hudson’s Sixth Amendment right to a

jury trial.” (Hudson, supra, 28 Cal.App.5th at p. 209.) It also found the Sixth

Amendment violation was not harmless despite the abstract of judgment stating the

defendant was convicted of “‘Assault w/deadly weapon.’” (Id. at pp. 209-210.) The

court stated “the abstract of judgment alone does not reveal whether the court’s

conclusion that the offense was for assault with a deadly weapon evidenced from the

elements of the prior offense as stated in the charging documents, plea agreement or

colloquy. Instead, the abstract may reflect the court’s own interpretation and factfinding

of the available evidence.” (Id. at p. 210.)

In the instant case, the People ignore that the personal use of a firearm was not

necessary to the prior conviction in RCSC case No. CR44158. The personal firearm use

facts were also not necessary to the RCSC court finding a factual basis for the plea.

Further, the firearm use facts were neither proven nor admitted by defendant in the RCSC

case. Thus, we reject the People’s contention that the SBSC trial court (and this court on

appeal) was permitted to examine the preliminary transcript to determine whether the

prior conviction qualified as a strike, because defense counsel had stipulated such

transcript could be used to establish a factual basis for the plea.

As explained below, we also reject the People’s procedural bar arguments.

26 1. Law of the Case Doctrine

Our Supreme Court has defined the doctrine of law of the case as follows: “‘“That

where, upon an appeal, the [reviewing] court, in deciding the appeal, states in its opinion

a principle or rule of law necessary to the decision, that principle or rule becomes the law

of the case and must be adhered to throughout its subsequent progress, both in the lower

court and upon subsequent appeal and . . . in any subsequent suit for the same cause of

action . . . .”’” (People v. Murtishaw (2011) 51 Cal.4th 574, 589.) But “law of the case

‘does not extend to points of law which might have been but were not presented and

determined on a prior appeal.’” (People v. Shuey (1975) 13 Cal.3d 835, 843, overruled

on other grounds in People v. Bennett (1998) 17 Cal.4th 373, 389, fn. 5.) In addition,

“one well-settled exception exists where there has been a ‘controlling’ change in the law

between the time of the first and second appellate decisions.” (People v. Whitt (1990) 51

Cal. 3d 620, 638-639.)

In this case, since our court’s opinion in Blackburn, there has been a “controlling”

change in the law. Gallardo has since ruled that a sentencing court cannot make factual

findings on whether a prior conviction qualifies as a strike and that a defendant has a

Sixth Amendment right to a jury determination of whether a prior conviction qualifies as

a strike. (Gallardo, supra, 4 Cal.5th at pp. 134, 136.) Hence, the law of the case doctrine

does not apply in the instant case. Moreover, our decision in Blackburn was not binding

because the record indicates no finding was made that the prior conviction qualified as a

27 strike and habeas relief is available to correct an unauthorized sentence. (Cabrera, supra,

21 Cal.App.5th at p. 477; Scott, supra, 9 Cal.4th at p. 354.)

2. Collateral Estoppel

The People also contend that collateral estoppel bars defendant habeas relief

because the issue was already litigated in this court in Blackburn.

Under the doctrine of collateral estoppel, a party cannot relitigate an issue of

ultimate fact that was determined by a valid and final judgment in a previous lawsuit

between the same parties. (Ashe v. Swenson (1970) 397 U.S. 436, 443; People v.

Barragan (2004) 32 Cal.4th 236, 252-253; People v. Santamaria (1994) 8 Cal.4th 903,

912.) In criminal cases, this doctrine is an aspect of the Fifth Amendment’s protection

against double jeopardy. (Ashe v. Swenson, at p. 445; Schiro v. Farley (1994) 510 U.S.

222, 232; People v. Santamaria, at p. 912.) Collateral estoppel applies only if five

requirements are met: (1) the relevant issue must be identical to that decided in the prior

proceeding; (2) the issue actually must have been litigated in the prior proceeding; (3) the

issue necessarily must have been decided in the prior proceeding; (4) the decision in the

prior proceeding must be final and on the merits; and (5) the party against whom

preclusion is sought must be identical to or in privity with the party to the prior

proceeding. (People v. Garcia (2006) 39 Cal.4th 1070, 1077; People v. Cooper (2007)

149 Cal.App.4th 500, 518.) We do not apply collateral estoppel “with the hypertechnical

and archaic approach of a 19th century pleading book, but with realism and rationality.”

28 (Ashe v. Swenson, at p. 444; accord, People v. Santamaria, at p. 912; People v. Gordon

(2009) 177 Cal.App.4th 1550, 1557.)

Here, as explained by the habeas court, this court mistakenly assumed a finding

had been made defendant’s prior conviction qualified as a strike. Since no finding had

been made, the sentence was unauthorized. Further, in Blackburn we found the trial

court properly considered the preliminary hearing transcript to evaluate the nature of the

defendant’s prior conviction. (Blackburn, supra, 72 Cal.App.4th at pp. 1531-1532.)

However, as previously noted, since Blackburn, Gallardo has ruled that a court cannot

make factual findings on whether a prior conviction qualifies as a strike. (Gallardo,

supra, 4 Cal.5th at p. 136.) As such, we conclude collateral estoppel does not bar

defendant relief on habeas.

3. Dixon and Waltreus Rules

The People maintain that the Dixon and Waltreus doctrines also prevent defendant

from relitigating the sufficiency of the evidence supporting the prior strike finding on

habeas. We disagree.

“The right to habeas corpus is guaranteed by the state Constitution and ‘may not

be suspended unless required by public safety in cases of rebellion or invasion.’

(Cal. Const., art. I, § 11.) Frequently used to challenge criminal convictions already

affirmed on appeal, the writ of habeas corpus permits a person deprived of his or

her freedom, such as a prisoner, to bring before a court evidence from outside the trial

or appellate record, and often represents a prisoner’s last chance to obtain judicial

29 review. . . . ‘Historically, habeas corpus provided an avenue of relief for only those

criminal defendants confined by a judgment of a court that lacked fundamental

jurisdiction, that is, jurisdiction over the person or subject matter’ [citation], but that view

has evolved in modern times and habeas corpus now ‘permit[s] judicial inquiry into a

variety of constitutional and jurisdictional issues’ [citation]. ‘Despite the substantive and

procedural protections afforded those accused of committing crimes, the basic charters

governing our society wisely hold open a final possibility for prisoners to prove their

convictions were obtained unjustly. [Citations.] A writ of “[h]abeas corpus may thus

provide an avenue of relief to those unjustly incarcerated when the normal method of

relief—i.e., direct appeal—is inadequate.”’ [Citations.]” (In re Reno (2012) 55 Cal.4th

428, 449-450 (Reno).)

Notwithstanding “the importance of the ‘Great Writ,’” our Supreme Court has

established procedural rules limiting its use. (In re Clark (1993) 5 Cal.4th 750, 763-764,

superseded by statute on other grounds as stated in Briggs v. Brown (2017) 3 Cal.5th

808.) One such rule “has come to be known as the Waltreus rule; that is, legal claims that

have previously been raised and rejected on direct appeal ordinarily cannot be reraised in

a collateral attack by filing a petition for a writ of habeas corpus.” (Reno, supra, 55

Cal.4th at p. 476.) This rule is “consistent with the very nature of habeas corpus” as “an

extraordinary remedy applicable when the usual channels for vindicating rights—trial and

appeal—have failed.” (Id. at p. 477.) And because “habeas corpus cannot serve as a

substitute for an appeal, . . . in the absence of special circumstances constituting an

30 excuse for failure to employ that remedy, the writ will not lie where the claimed errors

could have been, but were not, raised upon a timely appeal from a judgment of

conviction.” (Dixon, supra, 41 Cal.2d at p. 759.) This has come to be known as the

Dixon rule. We note sufficiency of the evidence claims generally may not be raised in a

petition for writ of habeas corpus. (Reno, at p. 514.)

There are, however, exceptions to these rules. Such exceptions are: “(1) where

the issue constitutes a fundamental constitutional error; that is, ‘where the claimed

constitutional error is both clear and fundamental, and strikes at the heart of the trial

process’ [citation]; (2) where the judgment of conviction was rendered by a court lacking

fundamental jurisdiction, described as ‘an entire absence of power to hear or determine

the case, an absence of authority over the subject matter or the parties’ [citations];

(3) where the court acted in excess of its jurisdiction, such as when it imposes an illegal

sentence [citation]; and (4) ‘when there has been a change in the law affecting the

petitioner’ [citation].” (Reno, supra, 55 Cal.4th at pp. 478, fn. omitted, 490-491.)

Here, we find the exceptions to the Waltreus and Dixon rules. First, there has been

a change in the law affecting defendant’s rights, and as we have concluded, Gallardo

applies retroactively. Second, the SBSC court acted in excess of its jurisdiction by

imposing a strike sentence without a jury finding or even a court finding defendant had

personally used a firearm in the commission of his prior conviction. Third, there was

fundamental constitutional error because the prior conviction was imposed in violation of

defendant’s Sixth Amendment right to a jury determination on whether he personally

31 used a firearm. (Gallardo, supra, 4 Cal.5th at pp. 123, 134, 136.) Therefore, we find

neither the Waltreus rule nor the holding in Dixon barred the habeas’ court’s

consideration of the issue because three exceptions to the rule applied. (Reno, supra, 55

Cal.4th at p. 478.)

Moreover, we cannot overlook the fact that there was no finding in the SBSC case

the prior conviction qualified as a strike. Therefore, we reject the People’s contentions

that defendant is procedurally barred from raising the Gallardo issue under law of the

case, collateral estoppel, the Waltreus rule, and the Dixon rule.

D. Claims Relating to Defendant’s Purported Admissions

The People further claim defendant admitted in his writ petition and traverse that

the SBSC court found the prior strike true and that he never disputed that the SBSC court

properly made these findings. The record demonstrates that the SBSC court found true

defendant had suffered a prior conviction but never made a finding the prior conviction

qualified as a strike based on defendant’s personal use of a firearm. Although defendant

never asserted the SBSC court did not make a finding the prior qualified as a strike, the

record shows defendant never claimed there was a sufficient finding he had personally

used a firearm. Such a finding was necessary to establish the prior qualified as a strike.

Rather, defendant repeatedly and consistently argued there was insufficient evidence to

show his prior conviction was a strike.

Moreover, defendant argued in his writ petition and traverse that the prior

conviction could not properly be imposed because there had been no jury finding on the

32 prior conviction, in violation of his Sixth Amendment right to a jury determination on

additional facts necessary for the prior conviction to qualify as a strike. He also claimed

his trial counsel was ineffective because his attorney failed to argue there was insufficient

evidence the prior conviction qualified as a strike. We conclude defendant’s objections

in the trial court encompass his objection on appeal that his prior conviction qualified as a

strike.

The People also note defendant had filed numerous writ petitions and appeals in

which he conceded the SBSC court found the prior conviction qualified as a strike.

However, defendant had consistently maintained the prior conviction was invalid, the

prior conviction was not supported by sufficient evidence, and there was no jury

determination that he had personally used a firearm in the commission of the prior.

Furthermore, an unauthorized sentence is not subject to forfeiture and can never be

deemed harmless. (Cabrera, supra, 21 Cal.App.5th at p. 477; Scott, supra, 9 Cal.4th at

p. 354.)

E. Whether Remand Was Unnecessary

The People contend that the habeas court erred by dismissing the prior conviction

for shooting at an occupied vehicle without remanding the matter for a new sentencing

hearing to determine whether the prior qualified as a strike. We disagree.

33 The habeas court did not dismiss the prior conviction. Rather, the court ordered

that defendant “shall be resentenced in case no. FSB11452 as if his prior conviction (Pen.

Code, § 246, Riverside County Superior Court case no. CR44158) was not a strike.”

Under the circumstances of this case, we find the habeas court correctly ordered

defendant to be resentenced “as if the prior conviction . . . was not a strike.”

The habeas court determined remand was unnecessary because the record from

defendant’s prior case in RCSC case No. CR44158 was “fully developed” as part of this

habeas case, and affirmatively established defendant never admitted to personal use of a

firearm when he committed the prior conviction as part of this habeas case. In addition,

the record shows there was no jury finding of the personal firearm use required for the

prior conviction to qualify as a strike. A thorough review of the record demonstrates that

defendant neither admitted nor a jury determined defendant used a firearm in the

commission of the prior conviction. Accordingly, remand was unnecessary.

We thus find the habeas court did not err in granting defendant’s writ petition on

the ground defendant’s prior conviction does not qualify as a strike. We also conclude

the habeas court did not err in ordering defendant to be resentenced “as if his prior

conviction . . . was not a strike.”

34 IV

DISPOSITION

The writ petition order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J. We concur:

MILLER Acting P. J.

FIELDS J.