Filed 6/4/20 CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re LIONEL A. SCOTT D076909
on (San Diego County Habeas Corpus. Super. Ct. No. SCD137581)
ORIGINAL PROCEEDING in habeas corpus. Petition denied.
Steven Schorr, by appointment of the Court of Appeal, for petitioner.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Robin Urbanski and Meredith S. White, Deputy Attorneys General, for respondent.
In 1984, petitioner Lionel Scott pleaded guilty to third degree assault in Minnesota
(Minn. Stat. Ann. § 609.223, subd. (1) ["assault[] . . . inflict[ing] substantial bodily
harm"]), and admitted during his plea colloquy that he personally and intentionally
pressed a warm or hot iron against his victim's face, inflicting a discernible burn mark
that required medical treatment and was still somewhat visible four months later.
In 1999, Scott was convicted in California of several sex offenses. The sentencing
court imposed a Three Strikes law sentence of 75 years to life based, in part, on the
court's finding that Scott's earlier Minnesota conviction constituted a "serious felony"
(and therefore a "strike") because Scott "personally used a deadly or dangerous weapon" (the iron) in the commission of the offense. (Pen. Code, § 1192.7, subd. (c)(23); further
undesignated statutory references are to the Penal Code.) In making this finding, the trial
court relied solely on the elements of the Minnesota offense and the plea colloquy
establishing the factual basis for Scott's guilty plea.
In 2019, Scott filed a petition for writ of habeas corpus in the California Supreme
Court arguing he was entitled to relief under that court's recent decision in People v.
Gallardo (2017) 4 Cal.5th 120 (Gallardo), which held that a sentencing "court
considering whether to impose an increased sentence based on a prior qualifying
conviction may not"—consistent with a defendant's Sixth Amendment right to a jury
trial—"make disputed findings about 'what a trial showed, or a plea proceeding revealed,
about the defendant's underlying conduct.' " (Gallardo, at p. 136.) Instead, "[t]he court's
role is . . . limited to identifying 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." (Ibid.) The
Supreme Court issued an order to show cause, returnable to our court, directing the
Department of Corrections and Rehabilitation to show cause "why [Scott] is not entitled
to relief pursuant to [Gallardo], and why Gallardo should not apply retroactively on
habeas corpus to final judgments of conviction."
The Courts of Appeal that have thus far considered Gallardo's retroactivity are
split on the issue and the question is pending before the California Supreme Court. (See
In re Milton (2019) 42 Cal.App.5th 977, 988-999 [holding Gallardo is not retroactive],
review granted March 11, 2020, S259954 (Milton); In re Brown (2020) 45 Cal.App.5th
2 699, 716 [holding, with one dissent, that Gallardo is retroactive], petn. for review
pending, petn. filed April 28, 2020, S261454 (Brown).) For reasons we will explain,
pending further guidance from the Supreme Court, we are persuaded by the Milton
court's reasoning and conclusion that Gallardo does not apply retroactively.
Additionally, even were we to reach a contrary conclusion, we would conclude Scott is
not entitled to relief under Gallardo because the sentencing court based its findings
regarding Scott's Minnesota conviction on undisputed facts "admitted by [Scott] in
entering [his] guilty plea" (Gallardo, supra, 4 Cal.5th at p. 124), a practice expressly
permitted by Gallardo. Accordingly, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Scott's Current Convictions and the Court's Strike Findings
In 1999, a jury convicted Scott of six counts of sex offenses against a minor. The
trial court then found true the prosecution's allegations that Scott had suffered two foreign
convictions that constituted strikes under California's Three Strikes law—a conviction in
Missouri for residential burglary, and a conviction in Minnesota for third degree assault.
Only the finding regarding the Minnesota conviction is at issue here.
The prosecutor argued the Minnesota conviction qualified as a strike under section
1192.7, subdivision (c)(23), which includes within its definition "any felony in which the
defendant personally used a dangerous or deadly weapon." At the sentencing hearing, the
court examined the change-of-plea packet and reporter's transcript from the Minnesota
plea hearing.
3 According to the Minnesota court records, Scott pleaded guilty in 1984 to third
degree assault, defined as follows: "Whoever assaults another and inflicts substantial
bodily harm may be sentenced to imprisonment for not more than five years or to
payment of a fine of not more than $10,000, or both." (Minn. Stat. Ann. § 609.223, subd.
(1).) During the Minnesota plea hearing, Scott's attorney questioned him as follows
about the factual basis for his guilty plea:1
"Q. Mr. Scott, the complaint alleges that on July 23rd, 1984 in the early morning hours you were in the apartment of your sister, [Sister], . . . is that correct?
"A. Yes.
"Q. And it also alleges that on that occasion the two of you got into an argument, is that correct?
"Q. And that as a result of the argument, a scuffle occurred, is that correct?
"Q. And that the two of you were involved in the scuffle and that while that scuffle occurred, you placed an iron which was apparently in the room and which was warm or hot on the face of [Sister], is that correct?
"Q. And that as a result of that, [Sister] did suffer a burn on her face?
1 In Minnesota, "[t]he factual basis [for a guilty plea] is ordinarily established by the court's or counsels' questioning of the defendant so he explains, in his own words, the events surrounding the crime." (Barnslater v. State (Minn.Ct.App. 2011) 805 N.W.2d 910, 914.) 4 "Q. For which she was treated at the hospital.
"A. Right.
"Q. And you have seen [Sister] since that time, have you not?
"Q. And from your observation, whatever injury she sustained on that occasion [has] essentially healed, is that correct?
"Q. And any mark that was left as a result of the incident is quite unnoticeable from your observation?
"Q. But you agree that on that occasion you did assault her with the iron intentionally?
"A. Yes."
The prosecutor then questioned Scott as follows:
"[Prosecutor]: Just to clarify. When we are talking about an iron, we are talking about a steam iron, the kind of thing you would iron clothing with?
"[Scott]: Yes.
"[Prosecutor]: And at the time that iron was applied to her face, it caused a fairly discernable burn, did it not, from her left ear down her cheek bone?
"[Prosecutor]: And you are saying that now that burn, for all intents and purposes, cannot be seen? [¶] . . . [¶]
"[Scott]: You can still see it, it's a small burn left on her cheek.
"[Prosecutor]: But it is nothing like it was right after the—
"[Scott]: No.
5 "[Prosecutor]: So you would agree that what was caused there was a substantial injury to her but a temporary one at the same time?
"[Scott]: Yes."
On this basis, Scott admitted the elements of the offense and pleaded guilty:
"Q. And you understand that the crime you are pleading guilty to is Third Degree Assault . . . ?
"Q. And that is defined as whoever assaults another and inflicts substantial bodily harm, that that is the essential elements of Assault in the Third Degree?
After reviewing these records regarding Scott's Minnesota guilty plea, the trial
court concluded Scott had admitted to personally using a dangerous weapon in the
commission of the Minnesota assault:
"So I think that establishes a scenario where we have the defendant using an iron and the way he used it caused a serious injury, and the way he used it makes it a deadly or dangerous weapon under California law and therefore it appears to this court that the prior . . . does qualify since the defendant, based on the evidence, . . . in fact personally used a deadly or dangerous weapon when he placed a hot steam iron against the victim's face which did cause an injury. And the law does say that . . . the way that he uses the object can make it a deadly or dangerous weapon."
Based on its finding that Scott's Missouri and Minnesota convictions qualified as
strikes, the trial court sentenced him to a third-strike sentence of 75 years to life on the
sex offenses.
6 Appellate and Habeas Proceedings
In 2000, we upheld Scott's convictions in consolidated direct appeals in which he
challenged, among other things, the trial court's "finding that [the] prior felony conviction
in Minnesota constituted a strike under the 'Three Strikes' law." (People v. Scott (2000)
83 Cal.App.4th 784, 789, 801.) In the nonpublished portion of our opinion, we held
"there was substantial evidence to support the trial court's finding that Scott used the iron
as a dangerous or deadly weapon." (People v. Scott (Sept. 12, 2000, D033131 [nonpub.
opn.].) The California Supreme Court denied Scott's petition for review.
In 2018, the year after the Gallardo decision was filed, Scott filed a petition for
writ of habeas corpus in superior court arguing the sentencing court engaged in improper
factfinding in violation of Gallardo. The court denied Scott's petition as procedurally
barred and lacking substantive merit.
Scott then raised the same challenge via writ petition to our court. We denied the
petition, explaining it was "procedurally barred because his attack on the use of the
Minnesota . . . conviction as a strike was already decided adversely to him on appeal."
(See In re Reno (2012) 55 Cal.4th 428, 476 ["[L]egal 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."].) We further explained that because the
sentencing court had based its strike finding on Scott's admissions during his Minnesota
change-of-plea hearing—a practice expressly approved by Gallardo—Gallardo did "not
constitute a change in law that would allow Scott to avoid the procedural bar to his
petition."
7 Scott then raised the same challenge via writ petition to the California Supreme
Court. After requesting and receiving an informal response, the Supreme Court issued an
order to show cause to the Department of Corrections and Rehabilitation, returnable to
our court, explaining "why petitioner is not entitled to relief pursuant to [Gallardo], and
why Gallardo should not apply retroactively on habeas corpus to final judgments of
conviction." The Attorney General filed a return, and Scott filed a traverse.
DISCUSSION
I. The Gallardo Decision
We begin by discussing Gallardo and the authorities that led to that decision.
When the trial court sentenced Scott in 1999, California law permitted trial courts
to examine "the entire record" of a prior foreign conviction "to determine the substance
of" that conviction for sentence enhancement purposes. (People v. Guerrero (1988)
44 Cal.3d 343, 355; see Milton, supra, 42 Cal.App.5th at p. 987, rev. granted.)
The following year, the United States Supreme Court held in Apprendi v. New
Jersey (2000) 530 U.S. 466 (Apprendi) that a defendant is entitled to a jury trial not just
on the "element[s] of the crime" (id. at p. 477), but also on "any fact that increases the
penalty . . . beyond the prescribed statutory maximum" (id. at p. 490). The court clarified
that this right does not apply to "the fact of a prior conviction" used to impose an added
punishment. (Id. at p. 490, italics added.) Applying these principles, the Apprendi court
concluded the defendant had been improperly denied a jury trial on the factual predicate
of the enhancement allegation attached to his pending charges. (Id. at pp. 469-470.)
8 In People v. McGee (2006) 38 Cal.4th 682 (McGee), the California Supreme Court
narrowly construed Apprendi's extension of the right to a jury trial as being confined to
the current charges and not to recidivism-based enhancements. (McGee, at pp. 696-697.)
However, the McGee court clarified that a sentencing court's inquiry regarding the nature
of a prior conviction "is a limited one"—it should begin with a "focus on the elements" of
the prior offense, and, if that does not resolve the issue, proceed to a determination of
whether the prior "conviction realistically may have been based on conduct that would
not constitute a serious felony under California law." (McGee, at p. 706.) Applying
these principles, the McGee court found no error in the sentencing court's examination of
the victim's preliminary hearing testimony from the prior case to determine the nature of
the prior conviction. (Id. at p. 689.) The McGee court recognized that the United States
Supreme Court may eventually construe Apprendi more broadly. (McGee, at p. 686.)
As anticipated, less than a decade later, the United States Supreme Court, in
construing a federal sentence enhancement statute (the Armed Career Criminal Act, or
ACCA), extended the right to a jury trial to factual determinations about the nature—as
distinguished from the fact—of a prior conviction being used to increase punishment.
(See Descamps v. United States (2013) 570 U.S. 254 (Descamps); Mathis v. United
States (2016) __ U.S. __, [136 S.Ct. 2243] (Mathis).) In Descamps, for example, the
high court found that the federal district court had erred by using the ACCA to enhance
the defendant's punishment based on a prior state burglary conviction where the state's
burglary statute did not include an unlawful-entry element required by the ACCA to
allow for enhancement. (Descamps, at pp. 258-259.) The district court had found the
9 unlawful-entry requirement satisfied by looking to the defendant's supposed admission
during the state court sentencing hearing that he " 'broke and entered' " during the
commission of the offense. (Descamps, at p. 270.) Based on federal ACCA precedent,
Sixth Amendment principles, and fairness considerations, the Descamps court construed
the ACCA as limiting a sentencing court's comparison of prior and current convictions to
the elements of those offenses (the so-called "categorical approach"), except to the extent
a limited inquiry into the record of the prior conviction is necessary to determine which
statement of a divisible statute was violated (the so-called "modified categorical
approach"). (Descamps, at pp. 267-270; id. at p. 257 [a "divisible" statute "sets out one
or more elements of the offense in the alternative—for example, stating that burglary
involves entry into a building or an automobile"].) Accordingly, the Supreme Court
concluded the district court erred by resolving a disputed fact unrelated to the elements of
the prior offense. (Id. at pp. 277-278.)
In Gallardo, the California Supreme Court revisited McGee in light of Descamps
and Mathis. The prosecution in Gallardo alleged the defendant's prior conviction for
aggravated assault under former section 245, subdivision (a)(1)—a divisible statute2—
qualified as a strike. (Gallardo, supra, 4 Cal.5th at p. 123.) Although the defendant had
pleaded guilty to that offense, her plea did not specify whether she had used a deadly
2 Former section 245, subdivision (a)(1) was "divisible" because the same subdivision contained alternative statements of the same offense—assault with a deadly weapon (a strike), or assault by means of force likely to produce great bodily injury (not a strike). (See Gallardo, supra, 4 Cal.5th at p. 125, fn. 1.) Section 245 has since been amended to resolve this ambiguity. (Gallardo, at p. 125, fn. 1; see § 245, subds. (a)(1) [deadly weapon], (a)(4) [force likely].) 10 weapon or merely force likely to produce great bodily injury. (Id. at p. 136.) To resolve
this ambiguity, the sentencing court's "sole basis . . . was a transcript from a preliminary
hearing at which the victim testified that [the] defendant had used a knife . . . ." (Ibid.)
Although the sentencing court in Gallardo had complied with the procedure
previously approved of by McGee, the high court in Gallardo concluded that procedure
was no longer viable in light of Descamps and Mathis. (Gallardo, supra, 4 Cal.5th at
pp. 132-137; id. at p. 134 [disapproving McGee "insofar as it authorizes trial courts to
make findings about the conduct that 'realistically' gave rise to a defendant's prior
conviction"].) Instead, Gallardo held the sentencing court's factfinding "role is . . .
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
[i.e., the elements of the offense] or that the defendant admitted as the factual basis for a
guilty plea." (Gallardo, at p. 136, italics added.) Otherwise, the sentencing court
improperly "invades the jury's province by . . . mak[ing] disputed findings about 'what a
trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.' "
(Ibid., italics added, quoting Descamps, supra, 570 U.S. at p. 269.) " 'The Sixth
Amendment contemplates that a jury—not a sentencing court—will find such facts,
unanimously and beyond a reasonable doubt.' " (Gallardo, at p. 124, quoting Descamps,
at p. 269.)
The Gallardo court reaffirmed that once "the facts necessarily encompassed by the
guilty verdict or admitted by the defendant in pleading guilty to the prior crime" are
established, "questions about the proper characterization of [that] prior conviction are for
11 [the] court to resolve." (Gallardo, supra, 4 Cal.5th at p. 139, fn. 6, italics added; id. at
p. 138 ["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."].)
Applying these principles, the Gallardo court concluded the trial court improperly
relied on the prior victim's preliminary hearing testimony, which the defendant had not
adopted as the factual basis for her plea. (Gallardo, supra, 4 Cal.5th at pp. 136, 139.)
The Supreme Court remanded "to permit the People to demonstrate to the trial court,
based on the record of the prior plea proceedings, that [the] defendant's guilty plea
encompassed a relevant admission about the nature of her crime." (Id. at p. 139.)
II. Gallardo Does Not Apply Retroactively
As noted, thus far the Courts of Appeal are divided on whether Gallardo applies
retroactively, and the issue is pending in the California Supreme Court. (See Milton,
supra, 42 Cal.App.5th at pp. 988-999 [holding Gallardo is not retroactive under either
the federal or state standard], rev. granted; Brown, supra, 45 Cal.App.5th at p. 716
[holding, with one dissent, that Gallardo is retroactive under the state standard].) For
reasons we will explain, pending further guidance from the Supreme Court, we are
persuaded by the Milton court's reasoning and conclusion that Gallardo does not apply
retroactively.
In general, only a new substantive rule can be applied retroactively; a new
procedural rule "cannot be applied retroactively unless it qualifies under either the state
or federal retroactivity standard." (Brown, supra, 45 Cal.App.5th at p. 717.)
Significantly, both Milton and Brown agree on the threshold retroactivity issue that
12 Gallardo announced a new procedural rule. Gallardo's rule is new because it
disapproved of McGee, supra, 38 Cal.4th 682, and was not compelled by the earlier
decision in Apprendi (as evidenced by the fact McGee distinguished Apprendi). (See
Milton, supra, 42 Cal.App.5th at pp. 989, 997, rev. granted; Brown, at p. 716.)
And Gallardo's rule is procedural because it merely imposed an evidentiary
limitation on the materials a sentencing court may consider in determining whether a
prior conviction qualifies as a strike. (Milton, supra, 42 Cal.App.5th at pp. 992-994, rev.
granted; id. at p. 992 [" 'Procedural rules . . . "regulate only the manner of determining the
defendant's culpability." ' "]; see Brown, supra, 45 Cal.App.5th at p. 717.) Stated
conversely, Gallardo's rule is not substantive because it does not " 'alter[] the range of
conduct or the class of persons that the law punishes.' " (Brown, at p. 717; see Milton, at
p. 992, id. at p. 993 [collecting cases holding that Apprendi stated a procedural rather
than substantive rule]).3
Thus, because Gallardo announced only a new procedural rule, it "cannot be
applied retroactively unless it qualifies under either the state or federal retroactivity
standard." (Brown, supra, 45 Cal.App.5th at p. 717.)
3 In reaching its conclusion that Gallardo announced a new procedural rule, the Milton court found distinguishable the same cases Scott cites here. (See Milton, supra, 42 Cal.App.5th at pp. 993-994, rev. granted [distinguishing Montgomery v. Louisiana (2016) __ U.S. __, [136 S.Ct. 718] (holding that a sentencing scheme that mandates LWOP for juveniles convicted of murder applied retroactively) and People v. Trujeque (2015) 61 Cal.4th 227 (holding that a decision barring prosecution of a juvenile as an adult after the juvenile court has commenced adjudicatory proceedings applied retroactively)].) We find them distinguishable for the same reasons expressed in Milton. 13 A. Federal Retroactivity Standard
Under the federal test established in Teague v. Lane (1989) 489 U.S. 288, new
procedural rules generally will apply retroactively only if they are " ' "watershed" ' " rules
that " 'implicat[e] the fundamental fairness and accuracy of the criminal proceeding.' "
(Milton, supra, 42 Cal.App.5th at p. 989, rev. granted.) " 'In order to qualify as
watershed, a new rule must meet two requirements. First, the rule must be necessary to
prevent "an ' "impermissibly large risk" ' " of an inaccurate conviction. [Citations.]
Second, the rule must "alter our understanding of the bedrock procedural elements
essential to the fairness of a proceeding." ' " (Id. at p. 994.) As the Milton court
explained, Gallardo meets neither of these requirements.4
The Milton court observed that "Gallardo, though significant, was not a watershed
rule of criminal procedure." (Milton, supra, 42 Cal.App.5th at p. 994, rev. granted.)
"That a new procedural rule is 'fundamental' in some abstract sense is not enough; the
rule must be one 'without which the likelihood of an accurate conviction is seriously
diminished.' " (Schriro v. Summerlin (2004) 542 U.S. 348, 352 (Schriro).) The Gallardo
court adopted its new procedural rule based on general Sixth Amendment principles, not
some overarching concern that "a sentencing court's factfinding . . . was somehow
inaccurate or unreliable." (Milton, at p. 995.) As the United States Supreme Court has
recognized, "[t]he evidence is simply too equivocal to support [the] conclusion" that
"judicial factfinding so 'seriously diminishe[s]' accuracy that there is an ' "impermissibly
4 The Brown court did not analyze Gallardo under the federal retroactivity standard. (Brown, supra, 45 Cal.App.5th at pp. 715-716.) 14 large risk" ' of punishing conduct the law does not reach." (Schriro, at pp. 355-356
[holding that an Apprendi-based invalidation of a state law authorizing trial courts to act
as factfinders regarding death penalty special circumstance allegations did not apply
retroactively].)
Nor did Gallardo establish a "bedrock procedural rule" because courts historically
have set a very high bar for such status. As the Milton court explained: " 'In applying
this requirement, we . . . have looked to the example of Gideon [v. Wainwright (1963)
372 U.S. 335] and "we have not hesitated to hold that less sweeping and fundamental
rules" do not qualify.' [Citations.] Indeed, Apprendi and Blakely [v. Washington (2004)
542 U.S. 296] (an extension of Apprendi) did not announce 'bedrock' rules. [Citations.]."
(Milton, supra, 42 Cal.App.5th at p. 996, rev. granted; see Schriro, supra, 542 U.S. at
p. 352 [the "class of [procedural] rules [given retroactive effect] is extremely narrow, and
'it is unlikely that any . . . "ha[s] yet to emerge" ' "].)
We find the Milton court's reasoning persuasive and, therefore, agree that
Gallardo is not retroactive under the federal standard.
B. California Retroactivity Standard
We likewise find persuasive the Milton court's reasoning and conclusion that
Gallardo is not retroactive under California's retroactivity standard, under which courts
weigh " ' " 'the purpose to be served by the new standards" ' ' "—and, particularly,
whether they are intended to vindicate a right essential to the reliability of the factfinding
process—against " ' " 'the extent of the reliance by law enforcement authorities on the old
standards, and . . . the effect on the administration of justice of a retroactive application of
15 the new standards.' " ' " (Milton, supra, 42 Cal.App.5th at p. 996, rev. granted, quoting In
re Johnson (1970) 3 Cal.3d 404.) The first factor is of utmost importance; the latter two
" 'are of significant relevance only when the question of retroactivity is a close one after
the purpose of the new rule is considered.' " (Milton, at p. 996.)
As to the first factor, the Milton court again observed that the Gallardo court, in
adopting its new procedural rule, "did not impugn the accuracy of factfinding by trial
courts." (Milton, supra, 42 Cal.App.5th at p. 998, rev. granted, citing Schriro, supra,
542 U.S. at p. 356.) Indeed, even the Brown court, which ultimately reached a contrary
conclusion on retroactivity, "recognize[d] that the factfinding process might not be any
less reliable if conducted by the sentencing judge, and might even be better." (Brown,
supra, 45 Cal.App.5th at pp. 721-722, italics added.) Because vindication of rights
regarding accurate factfinding is the paramount concern of the state retroactivity
standard, and because "[t]he evidence is simply too equivocal to support [the]
conclusion" that "judicial factfinding so 'seriously diminishe[s]' accuracy' " (Schriro,
supra, 542 U.S. at pp. 355-356), we agree with the Milton court that the first retroactivity
factor does not weigh strongly in favor of applying Gallardo retroactively.
On the other hand, the second and third factors weigh strongly against applying
Gallardo retroactively. As the Milton court observed, "at and after the time of [the
defendant]'s sentencing [in 1999] California courts affirmed sentence enhancements
based on factual findings by sentencing courts." (Milton, supra, 42 Cal.App.5th at
p. 999, rev. granted; see id. at p. 985; see Gallardo, supra, 4 Cal.5th at p. 125 ["For some
time, California cases have held that . . . determinations are to be made by the court,
16 rather than by the jury, based on a review of the record of the prior criminal
proceeding."]; Brown, supra, 45 Cal.App.5th at p. 731 ["In the 11 years from McGee to
Gallardo, California lawyers and lower courts universally and reasonably relied on
McGee."] (dis. opn. of Menetrez, J.).) "Applying Gallardo retroactively would cause
significant disruption by requiring courts to reopen countless cases, conduct new
sentencing hearings, and locate records of proceedings conducted long ago . . . ."
(Milton, at p. 999.) Indeed, even the Brown court "recognize[d] that applying Gallardo
retroactively will be disruptive and burdensome to the courts." (Brown, at p. 722.)
At bottom, we do not view the rule in Gallardo as vindicating a right so essential
to reliable factfinding that it outweighs the countervailing considerations of reliance and
disruption to the judicial process. Accordingly, we agree with Milton that Gallardo does
not apply retroactively under the state standard.
III. Even If Gallardo Applied Retroactively, It Would Not Entitle Scott to Relief
Even if we were to conclude that Gallardo applied retroactively, we would
conclude it does not entitle Scott to relief. The Gallardo court held that judicial
factfinding of disputed facts concerning a prior conviction on which a sentence
enhancement is based violates a defendant's Sixth Amendment jury right. (Gallardo,
supra, 4 Cal.5th at p. 136; id. at p. 138 [sentencing courts "cannot determine disputed
facts about what conduct likely gave rise to the conviction" (italics added)].) Here,
however, the sentencing court did not find any disputed facts; rather, the court merely
considered the undisputed elements of the prior offense and the admitted factual basis for
Scott's guilty plea. Gallardo allows this. (Id. at p. 136 [sentencing court may consider
17 facts "that the defendant admitted as the factual basis for a guilty plea"]; id. at p. 135
[Sixth Amendment jury right is violated only "when the sentencing court must rely on a
finding regarding the defendant's conduct, but the jury did not necessarily make that
finding (or the defendant did not admit to that fact)," (italics added)].)
Under the Three Strikes law, a prior conviction for a "strike" offense—a violent
felony as defined in section 667.5, subdivision (c), or a serious felony as defined in
section 1192.7, subdivision (c)—subjects a defendant to increased punishment.
(§§ 1170.12, subd. (a), 667, subd. (b).) " ' "In order for a prior conviction from another
jurisdiction to qualify as a strike under the Three Strikes law, it must involve the same
conduct as would qualify as a strike in California." ' " (People v. Chubbuck (2019)
43 Cal.App.5th 1, 12.) Here, the prosecution alleged Scott's Minnesota assault conviction
constituted a strike under section 1192.7, subdivision (c)(23), which covers "any felony
in which the defendant personally used a dangerous or deadly weapon."
In determining that Scott's Minnesota assault conviction qualified as a strike, the
sentencing court relied solely on undisputed facts Scott admitted during his Minnesota
guilty plea hearing. First, Scott's guilty plea established the elements of the offense—that
he "assault[ed] another and inflict[ed] substantial bodily harm . . . ." (Minn. Stat. Ann.
§ 609.223.) Second, in establishing the factual basis for his guilty plea during the plea
colloquy, Scott admitted that he personally and intentionally pressed a warm or hot iron
against the victim's face, causing a discernible burn mark that was partially still visible
four months later. He expressly admitted this constituted substantial bodily harm.
18 The sentencing court properly concluded that these undisputed facts reflected in
the record of Scott's Minnesota conviction established that he "personally used a
dangerous or deadly weapon" in the commission of that offense. (§ 1192.7, subd.
(c)(23).) As defined in the corresponding pattern jury instruction, a "deadly [or
dangerous] weapon" is one that is "used in such a way that it is capable of causing and
likely to cause death or great bodily injury." (CALCRIM No. 3145 ("Personally Used
Deadly Weapon (Pen. Code, § . . . 1192.7(c)(23) . . .).") In turn, "[g]reat bodily injury
means significant or substantial physical injury. It is an injury that is greater than minor
or moderate harm." (Ibid., second italics added.) Thus, a conviction qualifies as a strike
under section 1192.7, subdivision (c)(23) if it is for a felony during which the defendant
personally used an object in a way capable of causing and likely to cause substantial
physical injury.
Scott admitted these facts by virtue of his Minnesota guilty plea. Specifically, he
admitted he personally used an object (an iron) "in a way capable of causing and likely to
cause" (and, indeed actually causing) substantial physical injury. Although the
Minnesota offense refers to substantial bodily harm and the California enhancement
refers to substantial physical injury, the statutes use the same operative modifier:
substantial. We view this commonality as determinative.
Because Scott admitted via his Minnesota guilty plea the facts on which the
sentencing court based its conclusion that the conviction qualified as a strike under
California law, the court did not engage in the type of judicial factfinding regarding
disputed facts disapproved of by Gallardo. Rather, the court merely assumed its proper
19 role of determining the legal characterization of the undisputed facts. (See Gallardo,
supra, 4 Cal.5th at p. 139, fn. 6 ["questions about the proper characterization of a prior
conviction are for a court to resolve"].)
Scott argues we should read Gallardo as having "adopted the categorical/modified
categorical approach discussed in Descamps and Mathis" (see part I, ante), which would
have precluded the sentencing court from considering the facts underlying Scott's
Minnesota conviction, and limited the court to a strict comparison of the elements of the
offenses. (Descamps, supra, 570 U.S. at pp. 257, 261-264, 267-270.) We decline to read
Gallardo in this manner for several reasons.
First, Scott, himself, acknowledges it is "admittedly unclear whether Gallardo
adopted the categorical/modified categorical approach." Second, the Gallardo court
observed that although Descamps and Mathis "drew on Sixth Amendment principles"
(Gallardo, supra, 4 Cal.5th at p. 133), they "were decided on statutory, rather than
constitutional, grounds" (id. at p. 134). Third, the Gallardo court acknowledged that
ACCA analysis is "based on the elements of the crime of which the defendant was
convicted," whereas California's Three Strikes law analysis is "based on the underlying
conduct that gave rise to the conviction." (Gallardo, at p. 135.) Finally, the Gallardo
court stated repeatedly that—even after Descamps and Mathis—sentencing courts may
rely on undisputed facts admitted by the defendant during the prior conviction.
(Gallardo, at p. 136 [sentencing court may consider facts "that the defendant admitted as
the factual basis for a guilty plea"]; id. at p. 135 [Sixth Amendment jury right is violated
only "when the sentencing court must rely on a finding regarding the defendant's conduct,
20 but the jury did not necessarily make that finding (or the defendant did not admit to that
fact)" (italics added)].)
In sum, even if Gallardo applied retroactively, it would not entitle Scott to relief
because the sentencing court considered only those undisputed facts expressly authorized
by Gallardo.
DISPOSITION
The petition is denied.
HALLER, J.
I CONCUR:
McCONNELL, P. J.
21 Dato, J., concurring.
I concur in part II of the majority opinion and its conclusion that the Supreme
Court's decision in People v. Gallardo (2017) 4 Cal.5th 120 should not be applied
retroactively. But part III unnecessarily confronts a much more difficult question: Can a
court rely on a defendant's gratuitous comments in a plea colloquy to establish facts
beyond the necessary elements of the crime so as to decide if a prior conviction qualifies
as a serious or violent felony for sentencing under the California Three Strikes law?
(Pen. Code, § 667, subds. (b) and (d).) Because we need not reach this additional—and
in my view more problematic—issue, I decline to join part III.
DATO, J.