See Dissenting Opinion




Filed 2/25/20


                            CERTIFIED FOR PUBLICATION

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                     DIVISION TWO




 In re BRANDON CRAIG BROWN                            E071401

                                                      (Super. Ct. Nos. WHCJS1800004
        on Habeas Corpus.
                                                       FSB039762)

                                                      OPINION



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

and Brian S. McCarville, Judges. Affirmed.

         Michael A. Ramos District Attorney, Philip P. Stemler, Deputy District Attorney,

for Appellant.

         James M. Crawford, under appointment by the Court of Appeal, for Respondent.

                                             I.

                                     INTRODUCTION

         The People appeal from the trial court’s orders granting respondent Brandon Craig

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

resentencing him to 16 years eight months in prison, which is eight years shorter than his
original sentence. The trial court granted his writ petition because his strike for

carjacking as a juvenile does not qualify as a strike under Welfare and Institutions Code

section 707, subdivision (b) and Penal Code section 667, subdivision (d)(3). The trial

court also concluded that defendant’s trial counsel provided ineffective assistance of

counsel (IAC) by not objecting to the strike during sentencing.

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

because (1) defendant’s juvenile carjacking adjudication qualifies as a strike under 2006

law, (2) the trial court erred in applying People v. Gallardo (2017) 4 Cal.5th 120

(Gallardo), retroactively, (3) the trial court exceeded its jurisdiction by vacating the

carjacking strike entered in Los Angeles (case No. VA 076709) and Orange County (case

No. 03NF1824) cases, (4) defendant’s trial counsel was not ineffective, because the

record of conviction established defendant’s carjacking adjudication qualified as a strike,

and (5) defendant’s delay in filing his writ petition prejudiced the People’s ability to

oppose it.

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

granting defendant’s writ petition on the ground defendant’s juvenile carjacking

adjudication does not qualify as a strike. We therefore need not address the People’s

additional IAC challenge. We further reject the People’s other objections and affirm the

writ petition order and judgment.




                                              2
                                             II.

                     FACTS AND PROCEDURAL BACKGROUND

       A. Prior Los Angeles Juvenile Court Carjacking Adjudication

       On October 2, 2001, the People filed in Los Angeles County juvenile court

(LAJC), a petition under Welfare and Institutions Code section 602 (case No. VJ22377).

The People alleged in count 1 that on September 29, 2001, when defendant was 17 years

old, he committed the crime of carjacking (Pen. Code, § 215, subd. (a)) by unlawfully

taking the victim’s car by force or fear. The People alleged in count 2 that on the same

date as the count 1 offense, defendant committed the crime of unlawful driving or taking

of a vehicle (Veh. Code, § 10851, subd. (a)) by unlawfully driving and taking a vehicle

without the consent of the owner and with intent to permanently or temporarily deprive

the owner of title to and possession of the vehicle.

       On October 3, 2001, the court referred the LAJC matter to the probation

department for a section 654 pre-plea report, with the matter continued to October 17,

2001. The Los Angeles County probation report dated October 17, 2001, summarized the

facts of the carjacking offense. The report also included a victim statement, a statement

of defendant’s criminal history as a juvenile, defendant’s personal history, interested

party statements, a statement evaluating defendant’s conduct under supervision, and a

statement of the probation officer’s analysis and recommended plan for defendant of

placement with the California Youth Authority (CYA).




                                              3
       During the December 18, 2001, adjudication and disposition hearing, the LAJC

sustained the juvenile petition, after defendant admitted both counts. The minute order

states that the LAJC “read and considered the Probation Officer’s Report filed herein and

said report is admitted into evidence by reference.” The LAJC ordered defendant

detained in juvenile hall pending suitable placement. In April 2002, after the LAJC

reviewed the probation report, the LAJC ordered defendant placed in a six-month camp

program.

       B. Defendant’s 2003 Crime Spree

       After defendant’s release, defendant committed numerous crimes as an adult in

March, April, and May 2003, in the counties of Los Angeles, Orange, San Bernardino,

and Riverside.1

       On August 8, 2003, defendant pled guilty and was convicted as an adult in Los

Angeles County Superior Court (LASC) of two counts of second degree robbery

committed in 2003 (LASC case No. VA 076709). The LASC sentenced defendant on

October 20, 2003, to 12 years in prison, with the court finding defendant had one or more

strikes. One of the alleged strikes was for the juvenile carjacking adjudication.




       1
         Defendant also pled guilty and was convicted in Riverside Superior Court
(RCSC) in 2007, of one count of second degree robbery committed in 2003 (RCSC case
No. RIF110773) and was sentenced in 2007 to 13 years in prison. The Riverside case is
not relevant to this appeal because, unlike the other criminal cases mentioned in this
appeal, the juvenile carjacking adjudication was not included as a strike in the Riverside
criminal case.


                                             4
       On April 27, 2004, defendant pled guilty and was convicted in Orange County

Superior Court (OCSC) of two counts of second degree robbery committed in 2003

(OCSC case No. 03NF1824). On May 20, 2004, the OCSC sentenced defendant to two

years in prison, with the court finding defendant had one or more strikes. One of the

alleged strikes was for the juvenile carjacking adjudication.

       C. San Bernardino Superior Court Case

       In San Bernardino Superior Court (SBSC) case No. FSB039762, the People filed

an information in July 2004, charging defendant as an adult with carjacking on March 27,

2003 (Pen. Code, § 215, subd. (a); count 1), attempted second degree robbery on April

16, 2003, and May 15, 2003 (Pen. Code, §§ 664, 211; counts 2, 8), and second degree

robbery on May 1, 4, and 15, 2003 (Pen. Code, § 211; counts 3-7, 9-10). The information

further alleged as to count 1, that defendant personally used a deadly weapon (Pen. Code,

§ 12022, subd. (b)(2)). The information also alleged defendant suffered a prior serious

and or violent felony conviction (Pen. Code, §§ 667, subd. (d), 1170.12, subd. (b)). The

alleged strike was for the juvenile carjacking adjudication committed in Los Angeles, in

2001 (LAJC case No. VJ22377).

          1. Guilty Plea in the SBSC Case

       On May 12, 2006, defendant withdrew his not guilty plea in the SBSC case and

entered a guilty plea to counts 1 through 8, and 10 of the information. Defendant also

admitted the enhancement allegations. Defendant and his attorney, Earl Carter, signed a

plea agreement form, agreeing to an aggregate sentence of 20 years eight months, to run



                                             5
consecutive to a four-year term imposed in LASC case No. VA076709, for a total prison

term of 24 years eight months.

          2. Sentencing in the SBSC Case

       On June 5, 2006, the SBSC sentenced defendant on counts 1 through 8, and 10, to

an aggregate term of 24 years eight months, in accordance with defendant’s guilty plea

on May 12, 2006, with the court finding defendant had two strikes (Pen. Code,

§§ 1170.12, subd. (c)(1), 667, subd. (e)(1)). The court ordered count 9 dismissed

pursuant to defendant’s plea bargain. Defendant’s aggregate sentence included a

consecutive four-year prison term imposed in the LASC case.

       By letter dated December 27, 2016, Jean Harper, correctional case records analyst

of the California Department of Corrections and Rehabilitation (CDCR), notified the

SBSC that a review of defendant’s sentencing documents in the SBSC case revealed that

the abstract of judgment and minute order may have contained numerous enumerated

sentencing errors. Harper suggested that the trial court correct the sentence. In January

2017, the SBSC read and considered the CDCR letter and ordered that the abstract

remain unchanged, as submitted.

       By an interoffice memorandum dated February 1, 2017, San Bernardino County

Deputy Public Defender Tammy Higgins stated that she was asked to review defendant’s

juvenile court file to determine whether his juvenile carjacking adjudication qualified as a

strike. Higgins determined that it did not qualify as a strike because it was not a crime

listed in Welfare and Institutions Code section 707, subdivision (b). Higgins noted



                                             6
defendant admitted violating Penal Code section 215, subdivision (a) (carjacking), but

did not admit using a weapon when committing the crime, and there was no such

allegation in the LAJC petition. Higgins further noted that defendant’s plea agreement in

the SBSC case showed that defendant pled to the entire complaint and admitted that he

suffered a strike prior. In addition, defendant’s sentence for the charges appeared to be

miscalculated. Upon investigating the matter further, Higgins discovered the December

27, 2016, CDCR letter. Both the CDCR and Higgins concluded the court miscalculated

defendant’s sentence. The court, nevertheless, concluded there was no error and

therefore did not amend the abstract of judgment.

       Defendant thereafter moved to modify his sentence. The trial court ordered

transcripts of the 2006 SBSC hearings but was informed that the transcripts were

unavailable or no longer existed. The matter was continued and the court obtained a copy

of the transcript of the June 5, 2006, sentencing hearing but was told there was no

transcript of the May 12, 2006, plea hearing. After numerous continuances, in July 2017,

the trial court heard defendant’s motion to modify his sentence. During the hearing, the

court and parties concluded defense counsel should proceed with seeking modification of

defendant’s sentence by filing a writ petition.

       D. Defendant’s Petition for Writ of Habeas Corpus

       On January 5, 2018, defendant filed in SBSC a petition for writ of habeas corpus

(case No. WHC1800004), alleging sentencing error was committed in SBSC case No.

FSB039762. Defendant challenged the trial court’s determination that his juvenile



                                              7
carjacking adjudication qualified as a strike. Defendant alleged the juvenile carjacking

adjudication did not qualify as a strike because there was no showing or admission that

the carjacking offense was committed with a dangerous or deadly weapon. Defendant

also argued his attorney provided IAC by failing to challenge the strike. Defendant

requested the trial court to vacate his plea, conviction, and resulting sentence, and release

him or, alternatively, conduct an evidentiary hearing on the strike.

       Defendant attached to his writ petition a computer printout of the trial court’s

register of actions; a reporter’s transcript of the June 5, 2006, sentencing hearing in the

SBSC case; the LAJC petition; the December 27, 2016, CDCR letter notifying the court

that defendant’s sentence in the SBSC case appeared to be improper; the February 1,

2017, public defender memorandum concluding defendant’s sentence was improper

because defendant’s juvenile carjacking adjudication did not qualify as a strike; and

defendant’s declaration supporting his writ petition.

       Defendant stated in his supporting declaration that after consulting with his

attorney on May 12, 2006, and upon his attorney’s advice, defendant pled guilty in the

SBSC case and admitted the juvenile carjacking strike allegation. In discussing the

proposed plea bargain, defendant’s attorney advised him that it made no difference that

he was a juvenile when he committed the carjacking prior. It still qualified as a strike,

and if defendant went to trial, he would be exposed to a maximum sentence of 45 years

and four months. For these reasons, defendant accepted the plea deal.




                                              8
       Defendant further stated in his declaration that it was not until recently that

defendant was told his juvenile carjacking strike might be improper. Upon learning this,

defendant immediately sought legal assistance. His previous attorney never told him that

his juvenile carjacking adjudication did not qualify as a strike unless it was alleged and

proven that defendant was armed with a dangerous or deadly weapon when he committed

the carjacking. Around December 27, 2016, defendant received the CDCR letter

indicating there were discrepancies in his sentence. Defendant immediately contacted the

San Bernardino County Public Defender’s Office. Deputy Public Defender Higgins told

defendant on February 1, 2017, that his juvenile carjacking adjudication did not qualify

as a strike because there had been no allegation or proof that he used a dangerous or

deadly weapon during the juvenile carjacking offense.

       In April 2018, the SBSC issued an order to show cause (OSC) as to why defendant

should not be allowed to withdraw his plea in the SBSC case. The court’s order detailing

the basis of its OSC states that “[t]he oral pronouncement of judgment is confusing as set

forth in the reporter’s transcript. The trial court made several mathematical mistakes and

misspoke regarding the Los Angeles case number. . . . The abstract is in agreement with

the plea as to the total of 24 years eight months, but has other obvious errors that do not

conform with the trial court’s oral pronouncement and appear in violation of Penal Code

section 1170.1, subdivision (a). The abstract makes no mention of [defendant’s] Los

Angeles case, case [N]o VA076709.”




                                              9
       In addition, the court ordered the People to show cause as to why defendant should

not be allowed to withdraw his plea in the SBSC case or alternatively be resentenced as if

he did not have a strike, on IAC grounds and because defendant did not enter his plea

voluntarily and knowingly with the full understanding of its consequences.

       E. The People’s Return to Defendant’s Writ Petition

       In June 2018, the People filed a return (Return) to the writ petition, asserting that

defendant provided an incomplete record, defendant’s juvenile carjacking prior qualified

as a strike, defendant’s IAC objection lacked merit, defendant’s guilty plea was knowing

and voluntary, and defendant’s writ petition was untimely and barred by laches. The

People attached to their Return a copy of the probation report dated October 17, 2001,

filed in the LAJC juvenile carjacking case.

       The People also filed a declaration by defendant’s previous attorney, Earl Carter,

stating that he did not recall his investigation in the SBSC case or his advisements to

defendant regarding defendant’s maximum exposure in the case. Carter added that it was

his custom and practice to investigate the validity of all allegations, advise his clients of

them, and advise his clients regarding their maximum exposure when they were offered a

plea bargain. Carter further stated he gave his case files and notes to defendant’s current

defense attorney.

       Also attached to the People’s Return were affidavits of unavailability of the

reporter’s transcript in the juvenile carjacking case, for the LAJC hearing on December




                                              10
18, 2001; and the reporter’s transcripts in the SBSC case, for hearings on January 6,

2006, April 19, 2006, and May 12, 2006.

       F. Defendant’s Traverse to the People’s Return

       In July 2018, defendant filed a traverse to the People’s Return, denying that

defendant’s juvenile carjacking adjudication qualified as a strike, because there was no

admission or allegation that defendant was armed or used a dangerous or deadly weapon

during commission of the carjacking. Defendant further objected to the court considering

the LAJC probation report because it constituted inadmissible hearsay and was not part of

the record of conviction or plea in the juvenile carjacking case. Defendant also argued

IAC and that his guilty plea and admissions in the SBSC case were not made knowingly

and intelligently.

       G. The Trial Court’s Ruling on Defendant’s Writ Petition

       After reviewing the writ petition, return, and traverse, the trial court concluded an

evidentiary hearing on defendant’s writ petition was not required. On August 31, 2018,

the trial court heard oral argument on defendant’s writ petition for modification of his

sentence. After hearing oral argument, the trial court granted defendant’s writ petition

and stayed the ruling for one week to allow the People time to decide how they wished to

proceed. The following week, on September 5, 2018, the trial court again granted

defendant’s writ petition and ordered defendant to be resentenced in the SBSC case based

on the terms of defendant’s original plea, with the exception that resentencing was not to

include sentencing on the juvenile carjacking strike.



                                             11
       The SBSC explained in a detailed written order that defendant’s writ petition was

granted on the following grounds: (1) defendant’s attorney committed IAC by failing to

object to the juvenile carjacking strike; (2) Gallardo, supra, 4 Cal.5th 120, applied

retroactively to the instant case; (3) the trial court could not rely on the probation report

when determining whether defendant’s juvenile carjacking adjudication qualified as a

strike; (4) even if the probation report could be considered, it did not provide proof

beyond a reasonable doubt that defendant used a weapon when committing the juvenile

carjacking offense; and (5) the People’s untimeliness/laches argument lacked merit

because there was no prejudice caused by defendant’s delay in seeking writ relief.

       H. Resentencing

       On September 7, 2018, the trial court in the SBSC case resentenced defendant in

accordance with the trial court order granting defendant’s writ petition. Because the

court found that the juvenile carjacking adjudication did not qualify as a strike,

defendant’s sentence was reduced from 24 years eight months to 16 years eight months.

The trial court resentenced defendant to an aggregate term of 11 years in the SBSC case

(case No. FSB039762), and five years eight months for the two subordinate cases (LASC

case No. VA 076709 and OCSC case No. 03NF1824), upon finding the juvenile

carjacking adjudication also did not qualify as a strike in the LASC and OCSC cases.




                                              12
                                              III.

               LAW APPLICABLE TO RULING ON A WRIT PETITION

       Defendant requested the trial court to issue a writ of habeas corpus vacating his

guilty plea, juvenile carjacking strike, enhancement admissions, and sentence imposed in

the SBSC case. The People appeal the trial court’s ruling granting defendant’s writ

petition request to vacate the strike and resentence defendant.

       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

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

at p. 474.)

       When reviewing such a petition, the trial 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 OSC. (Id.

at p. 475.) When an OSC issues, it is limited to the claims raised in the writ petition and

the factual bases for those claims. Issuance of an OSC indicates the court’s preliminary

assessment that the petitioner would be entitled to relief if the petitioner’s factual

allegations are proved. (Ibid.)



                                              13
       The custodian of the confined person, the People, shall then file a responsive

pleading, called a return, justifying the confinement. (Pen. Code, § 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, supra, 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, supra, 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, supra, at p. 477.)

       In the instant case, the parties and trial court followed these procedures. The trial

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.

                                             IV.

                         DEFENDANT’S JUVENILE CARJACKING

                                 ADJUDICATION STRIKE

       The People argue the trial court erred in ruling that defendant’s juvenile carjacking

adjudication does not qualify as a strike. The primary issue here is whether the court may

rely on the contents of the probation report in finding that the juvenile carjacking

adjudication qualifies as a strike.



                                              14
       A. Law Applicable to Strikes Based on Juvenile Adjudications

       Under paragraph (B) of Penal Code section 667, subdivision (d)(3), “[a] prior

juvenile adjudication shall constitute a prior felony conviction for Three Strikes purposes

only if the prior offense is listed in Welfare and Institutions Code section 707

[subdivision] (b)” and is classified as a “serious” felony under Penal Code section

1192.7, subdivision (c), or as a “violent” felony under Penal Code section 667.5,

subdivision (c). (People v. Garcia (1999) 21 Cal.4th 1, 13.)

       In the instant case, defendant was charged in 2001, as a juvenile, with carjacking

(Pen. Code, § 215, subd. (a)) and unlawful driving or taking of a vehicle (Pen. Code,

§ 10851, subd. (a)). These crimes are not included in the Welfare and Institutions Code

section 707, subdivision (b), list of offenses that qualify as a strike. After the LAJC

admitted into evidence the probation report, defendant admitted the charges and the

juvenile court sustained the juvenile petition charges.

       The People agree that carjacking, alone, when committed by a juvenile, does not

qualify as a strike. However, the People argue defendant’s juvenile carjacking

adjudication qualifies as a strike under Welfare and Institutions Code section 707,

subdivision (b)(25), because the facts stated in the probation report establish that

defendant committed the crime of “Carjacking, as described in [s]ection 215 of the Penal

Code, while armed with a dangerous or deadly weapon.” (Welf. & Inst. Code, § 707,

subd. (b)(25), italics added.) Such a crime is included in the list of juvenile crimes

qualifying as a strike. (Welf. & Inst. Code, § 707, subd. (b).) The trial court hearing



                                             15
defendant’s writ petition rejected the People’s argument, concluding that under the recent

decision of Gallardo, supra, 4 Cal.5th 120, the trial court could not make the factual

weapon-use finding based on the probation report.

       B. Gallardo

       The People acknowledge that 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 p. 136; see also 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.) The California

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.)




                                              16
       Here, as in Gallardo, the trial court made a determination regarding the underlying

disputed facts of defendant’s prior juvenile carjacking adjudication, when sentencing

defendant in 2006. In finding defendant’s juvenile carjacking adjudication qualified as a

strike, the trial court engaged in the kind of factfinding that the Gallardo court prohibited.

The trial court looked beyond the record of conviction. The People argue Gallardo does

not apply retroactively to defendant’s 2006 sentence, in which the trial court found

defendant’s juvenile carjacking adjudication qualified as a strike.

       C. Gallardo Applies Retroactively to Defendant’s Unauthorized Sentence

       Gallardo, supra, 4 Cal.5th 120 applies retroactively here because defendant’s

sentence constitutes an unauthorized sentence as to his juvenile carjacking strike. It is

unclear from the record on appeal whether the court and parties were aware during

sentencing in 2006, that defendant’s 2001 juvenile carjacking adjudication did not qualify

as a strike, unless he committed the carjacking with a dangerous and deadly weapon. The

record does not disclose the basis for the trial court’s determination that the carjacking

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

the court 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,

Descamps v. United States (2013) 570 U.S. 254, Gallardo, and the Sixth Amendment.

Because there were no facts upon which the sentencing court could have properly found

defendant was armed or used a gun when committing the carjacking prior, imposition of

the juvenile carjacking strike was unlawful, resulting in an unauthorized sentence.



                                             17
       It is settled law in California that an unauthorized sentence can be challenged and

corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354; 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

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.” (In re Harris, supra, 5 Cal.4th at p. 839; see also 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.”].)

Habeas corpus will also lie “‘to correct a misinterpretation of [a] statute resulting in

confinement “in excess of the time allowed by law” [citation].’” (In re Harris (1989) 49

Cal.3d 131, 134, fn. 2, quoting In re Huffman (1986) 42 Cal.3d 552, 555.)

       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

sentencing court in 2006 simply overlooked the fact the carjacking strike was based on a

juvenile adjudication which does not qualify as a strike, or the court improperly found the

prior qualified as a strike based on facts outside the record of conviction. Either way,

defendant’s 2001 juvenile carjacking adjudication does not qualify as a strike. Therefore,




                                              18
the trial court properly granted defendant’s petition for habeas corpus writ relief and

vacated defendant’s carjacking strike.

       D. Gallardo Applies Retroactively Under the California Retroactivity Standard

       We further conclude Gallardo, supra, 4 Cal.5th 120 applies retroactively here

based on California’s retroactivity standard for assessing retroactivity of judicial

decisions. The People assert that this court should apply the federal, rather than state,

retroactivity standard, because the Gallardo holding is based on federal Sixth

Amendment principles. The federal retroactivity standard is narrower and thus is

generally more difficult to meet than the state standard. (In re Ruedas (2018) 23

Cal.App.5th 777, 799 (Ruedas); see also In re Thomas (2018) 30 Cal.App.5th 744, 757

(Thomas); In re Johnson (1970) 3 Cal.3d 404, 413 [“the states are free to give greater

retroactive impact to a decision than the federal courts choose to give”].) The People

acknowledge that under Danforth v. Minnesota (2008) 552 U.S. 264 and In re Gomez

(2009) 45 Cal.4th 650, 655, California courts may apply the state retroactivity standard

regarding new judicial opinions, such as Gallardo, which address federal constitutional

principles.2

       2
          The People acknowledge there is a split of opinion among state appellate courts
as to whether the federal or state retroactivity standard applies. The California Supreme
Court has not resolved this controversy. In Thomas, supra, 30 Cal.App.5th at pp. 749,
760-761, this court concluded the state retroactivity standard applies in writ petitions
filed in state court. The California Supreme Court in Gomez suggested that this court
may, but is not required to, apply the state retroactivity standard, rather than the federal
standard, when determining retroactivity of a judicial decision founded on federal
constitutional principles. (In re Gomez, supra, 45 Cal.4th at p. 655, fn. 3; but see
Thomas, supra, at p. 761.) The Gomez court explained that this freedom to apply the


                                             19
       Because we conclude, as discussed below, Gallardo applies retroactively under

the state retroactivity standard, we need not consider whether Gallardo applies

retroactively under the federal retroactivity standard. (Ruedas, supra, 23 Cal.App.5th at

pp. 798-799; In re Gomez, supra, 45 Cal.4th at p. 655, fn. 3.)

          1. Gallardo Created a New Rule

       The threshold inquiry in determining retroactivity is whether a judicial holding

constitutes a “new rule.” (Ruedas, supra, 23 Cal.App.5th at p. 799.) Defendant argues

Gallardo does not create a new rule and therefore Gallardo can be applied as decisional

precedent, without considering either the state or federal retroactivity standards. The

People, on the other hand, argue Gallardo is a new rule. We agree.

       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.” (Thomas, supra, 30 Cal.App.5th at p. 761;

In re Lucero (2011) 200 Cal.App.4th 38, 45, citing People v. Guerra (1984) 37 Cal.3d

385, 401; see also Ruedas, supra, 23 Cal.App.5th at pp. 799-800.)

state standard is because “California is free to adopt its own standard and rules regarding
the retroactivity of new judicial opinions. [Citation.] This freedom stems from the
recognition that states are ‘independent sovereigns with plenary authority to make and
enforce their own laws as long as they do not infringe on federal constitutional
guarantees.’ [Citation.]” (Ruedas, supra, 23 Cal.App.5th at pp. 798-799, citing In re
Gomez, supra, 45 Cal.4th at p. 655, fn. 3, and quoting Danforth v. Minnesota, supra, 552
U.S. at p. 280.)


                                            20
       Under this definition of a “new rule,” the Gallardo decision created a new rule of

law by explicitly overruling the firmly established case precedent of 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. (In re Lucero, supra, 200 Cal.App.4th at p. 45.) 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, supra,

570 U.S. at p. 255.)

       2. The Gallardo Rule is a Procedural Rule

       Defendant argues that the Gallardo new rule applies retroactively to his 2006

sentence because the Gallardo rule is a substantive rule, not procedural. Under state law,

a substantive new rule, which changes a criminal law, will generally be given retroactive

effect. (In re Martinez (2017) 3 Cal.5th 1216, 1222-1223.) A rule is substantive when “it

alters the range of conduct or the class of persons that the law punishes, or it modifies the

elements of the offense.” (Id. at p. 1222; see also In re Lopez (2016) 246 Cal.App.4th

350, 357.)




                                              21
       The Gallardo rule is procedural, not substantive, because it does not alter the

range of conduct or persons the law punishes, or modify the elements of an offense.

Rather, Gallardo holds the trial court is generally barred from making disputed factual

findings when determining whether a prior conviction qualifies as a strike. (Gallardo,

supra, 4 Cal.5th at pp. 136-139.) This procedural rule thus cannot be applied

retroactively unless it qualifies under either the state or federal retroactivity standard.

       3. Application of the State Retroactivity Standard

       The state retroactivity standard, applicable to a procedural new rule such as the

Gallardo rule, is articulated in In re Johnson, supra, 3 Cal.3d at page 410. Under the

state standard, “the retroactivity of a new rule ‘is to be 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.’”’ [Citation.]” (In re Lucero, supra, 200

Cal.App.4th at p. 45, quoting In re Johnson, supra, at p. 413.)

       The first factor is of primary importance and will generally be deemed controlling

if the new rule’s purpose plainly favors retroactive or prospective application. (Ruedas,

supra, 23 Cal.App.5th at p. 800.) “[T]he 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.” (In re

Johnson, supra, 3 Cal.3d at p. 410.)




                                              22
       Under the state retroactivity test, “the more directly the new rule in question serves

to preclude the conviction of innocent persons, the more likely it is that the rule will be

afforded retrospective application. Further, if the rule relates to characteristics of the

judicial system which are essential to minimizing convictions of the innocent, it will

apply retroactively regardless of the reliance of prosecutors on former law, and regardless

of the burden which retroactivity will place upon the judicial system.” (In re Johnson,

supra, 3 Cal.3d at p. 413; accord, In re Lucero, supra, 200 Cal.App.4th at p. 45.) “[T]he

most consistent application of this principle [of applying new rules retroactively] has

been in cases in which the primary purpose of the new rule is to promote reliable

determinations of guilt or innocence.” (People v. Guerra, supra, 37 Cal.3d at p. 402;

accord In re Lucero, supra, at p. 45.) As we noted in Thomas, “[i]f the new rule aims to

deter future misconduct or to define procedural rights merely incidental to a fair

determination of guilt or innocence, it will generally not be given retroactive effect.

[Citations.] On the other hand, if a decision goes to the integrity of the factfinding

process [citation], or ‘implicates questions of guilt and innocence’ [citation], retroactivity

is the norm.” (Thomas, supra, 30 Cal.App.5th at p. 763.)

       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



                                              23
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 innocent” used to increase a

defendant’s sentence (In re Johnson, supra, 3 Cal.3d at p. 413), the purpose of the

Gallardo rule weighs heavily in favor of retroactive application. (In re Johnson, supra,

at p. 413; accord, In re Lucero, supra, 200 Cal.App.4th at p. 45.) 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.

       Citing Thomas in their appellate reply brief, the People argue that Gallardo should

not be applied retroactively under either the state or federal retroactivity standard. The

defendant in Thomas filed a petition for writ of habeas corpus, asserting his conviction

for active participation in a criminal street gang was invalid based on the Sanchez rule.

In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the California Supreme Court held

that introducing case-specific, testimonial hearsay statements through expert witness

testimony violates the Sixth Amendment confrontation clause, unless (1) the person who

made the hearsay statements is unavailable and (2) the defendant had an opportunity to



                                                24
cross-examine the declarant or forfeited that right by wrongdoing. (Sanchez, supra, at

p. 686.) In Thomas, this court held that the Sanchez rule does not apply retroactively

under the state retroactivity standard. (Thomas, supra, 30 Cal.App.5th at p. 749.)

       Thomas is inapposite. It involves a different new rule, the Sanchez rule, which

concerns admissibility of hearsay trial testimony provided by expert witnesses (Sanchez,

supra, 63 Cal.4th at p. 686). In Thomas this court stated that the purpose of the Sanchez

rule relates to the integrity of the factfinding process which implicates questions of guilt

and innocence. (Thomas, supra, 30 Cal.App.5th at p. 765) Nevertheless, this court held

the Sanchez rule was not retroactive under the state retroactivity test. We concluded in

Thomas that the harm to the administration of justice, especially in the face of law

enforcement and prosecutorial reliance on the old rule, outweighs the benefit of

employing the new rule to fix past wrongful convictions. (Thomas, supra, at pp. 765-

766.) This court concluded in Thomas that the “connection between the Sanchez rule

and avoiding wrongful convictions is significant, but not strong.” (Thomas, supra, at p.

765.) This is because the effect of the Sanchez rule would not have prevented

prosecutors from introducing expert testimony. Expert testimony was merely weakened

by excluding the expert’s hearsay statements supporting the expert opinion’s testimony.

Furthermore, the impact of excluding hearsay statements was not strong because the facts

provided by the excluded evidence in most instances could be established by alternative

evidence. (Thomas, supra, at pp. 765-766.)




                                             25
       This court further reasoned in Thomas that the burden on the administration of

justice, of applying the Sanchez rule retroactively to cases already final, would be

immense, because doing so “would result in reopening thousands of cases in which the

prosecution used a shortcut even though it could have obtained a conviction using other

evidence.” (Thomas, supra, 30 Cal.App.5th at p. 766.) In addition, “applying the new

rule retroactively to final cases would be too disruptive and costly. The alternative

evidence prosecutors could have used in cases tried years and even decades ago likely has

gone stale. That means many of the people who would receive relief would be offenders

who could have been convicted using the Sanchez rule originally, but could not be

convicted using the same rule today, though not because of innocence. We must also

consider the raw cost to the court system of reopening these thousands of final cases for

retrial and subsequent appeals. We conclude the benefits of applying the new rule

retroactively do not justify the disruption to the administration of justice.” (Thomas,

supra, at pp. 766-767.)

       Thomas is distinguishable from the instant case not only because Thomas concerns

a different new rule than the new rule in this case.3 In addition, the Gallardo rule

concerns a new procedural rule affecting sentencing, whereas the Sanchez rule in Thomas

concerns a new evidentiary rule applied during a trial, which, if applied retroactively,

could result in overturning thousands of criminal convictions. In contrast, the Gallardo

rule does not affect criminal convictions. Rather, it ensures proper judicial factfinding in

       3
        Reudas, in which the Fourth District, Third Division of the Court of Appeal also
addressed the retroactivity of the Sanchez rule, is similarly distinguishable.

                                             26
the context of sentencing, in determining if a prior conviction qualifies as a strike. The

Gallardo rule’s purpose is fundamental and significant in that it directly affects the

defendant’s sentence, as opposed to the Sanchez rule affecting admissibility of hearsay

testimony relied on by an expert in forming expert opinion. The Gallardo rule strongly

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

convictions of the innocent and avoiding over-sentencing. Unlike in Sanchez, the

purpose of the Gallardo rule weighs heavily in favor of retroactive application.

       Furthermore, the burden on the judicial system of applying Gallardo retroactively

is unclear. It may result in requiring resentencing in numerous cases, in which the trial

court has improperly found a prior conviction qualified as a strike based on the court’s

own factual findings. Applying the Gallardo rule retroactively to final cases may be

disruptive and costly but not to the same extent as anticipated in applying the Sanchez

rule retroactively.

       Here, defendant challenges his 2006 sentence but not his criminal convictions.

We conclude that under the state retroactivity standard, the trial 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 juvenile carjacking strike did not

qualify as a strike.




                                             27
       E. In re Milton (2019) 42 Cal.App.5th 977 (Milton)

       After oral argument in this matter in November 2019, and after the parties

submitted on the matter, but before this court issued its decision, the Second District

Court, Division 7, published Milton, supra, 42 Cal.App.5th 977 on December 3, 2019

(petition for rev. filed Jan. 3, 2020). Milton is the first published case to address the issue

of whether Gallardo applies retroactively to a sentence under the Three Strikes law

imposed many years before the 2017 Gallardo decision. The court in Milton held that

Gallardo should be applied prospectively to cases that are already final. (Milton, supra,

at p. 981.)

       The day after Milton was decided, the People filed a motion to vacate submission

and allow supplemental briefing on Milton. This court granted the People’s motion and

the parties filed supplemental briefs addressing Milton. The People argue in their

supplemental brief that this court should adopt the reasoning and holding in Milton, and

hold that Gallardo does not apply retroactively to the instant case under the state and

federal retroactivity standards. The People further argue that Milton supports the

People’s contention that the probation report, entered into evidence during defendant’s

juvenile plea, is sufficient to establish that his juvenile carjacking adjudication qualifies

as a strike.

       Defendant argues in his supplemental brief that Milton was erroneously decided

and should be disregarded. Defendant further argues that, even if Gallardo does not

apply retroactively, he is entitled to habeas corpus relief because the probation report was



                                              28
not part of the record of conviction and there was no admissible evidence establishing

that his prior carjacking qualified as a strike.

       Before Milton was decided, defendant and the People raised essentially the same

arguments argued Milton. We have thus already addressed those arguments, as discussed

above. We agree 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 above in our opinion, we

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

retroactively under the state retroactivity standard. 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. (Milton, supra, at pp. 998-999.)

       We are 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. (Gallardo, supra, 4 Cal.5th at pp. 135-136.) We conclude Gallardo applies

retroactively under the state retroactivity standard.




                                               29
       F. Court Reliance on Facts in the Probation Report

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

trial court could rely on the facts in the probation report when determining whether the

juvenile carjacking adjudication qualified as a strike, because defendant failed to object

to the juvenile court admitting into evidence the probation report. The People argue

defendant’s failure to object constitutes an adoptive admission of all of the facts stated in

the probation report. The People therefore conclude that the probation report statements

indicating defendant may have used a firearm when committing the carjacking provide a

sufficient factual basis for the court to find that defendant’s juvenile carjacking

adjudication qualifies as a strike. We disagree.

       The absence of an objection to the probation report does not constitute an adoptive

admission by defendant of the hearsay statements contained in the probation report. We

recognize that the defendant’s “‘“silence, evasion, or equivocation may be considered as

a tacit admission of the statements made in his presence.”’” (People v. Jennings (2010)

50 Cal.4th 616, 661; accord, People v. Sample (2011) 200 Cal.App.4th 1253, 1262.)

However, in order for such a statement to be an adoptive admission, there must be

sufficient evidence that “(1) the defendant heard and understood the statement under

circumstances normally calling for a response, and (2) the defendant adopted the

statement as true by the defendant’s words or conduct.” (People v. Sample, supra, at

p. 1262 (italics added); accord, People v. Jennings, supra, at p. 661; see also Evid. Code,

§ 1221.)



                                             30
       Here, the fact that defendant did not object to the probation report during the

juvenile jurisdictional hearing does not constitute “‘“‘circumstances that would normally

call for a response if the statement were untrue.’”’” (People v. Sample, supra, 200

Cal.App.4th at p. 1262.) The weapon-related statements in the probation report were not

read aloud during the jurisdictional hearing, did not establish an element of the juvenile

carjacking crime, and were not mentioned during the hearing when defendant admitted

the juvenile carjacking charge. Under such circumstances, defendant did not have any

reason or motive to contest or object to the weapon-related facts in the probation report.

We thus conclude that merely not objecting to the probation report does not constitute an

adoptive admission by defendant that all of the weapon-related facts stated in the

probation report are true.

       As a consequence, it was improper for the SBSC during sentencing to rely solely

on the probation report to supply weapon-use facts for the strike, particularly when those

facts were not relevant to the elements of the juvenile carjacking offense. (People v.

Oehmigen (2014) 232 Cal.App.4th 1, 5, 10; see also People v. Burnes (2015) 242

Cal.App.4th 1452, 1458-1459.) We thus conclude defendant and his attorney’s silence in

response to the court admitting into evidence the probation report does not constitute an

adoptive admission of the weapon-use facts. (People v. Sample, supra, 200 Cal.App.4th

at p. 1262.)

       The People’s reliance on People v. Reed (1996) 13 Cal.4th 217 for the proposition

the probation report’s hearsay statements are admissible under the public records hearsay



                                             31
exception (Evid. Code, § 1280) is misplaced. Reed 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

sentencing court could consider the facts in the probation report, it would be improper for

the SBSC under Gallardo to make a factual finding that defendant actually used a

weapon to commit the carjacking based on the facts in the probation report.

       In addition, the probation report does not state that defendant used a firearm to

commit the carjacking offense, and the factual hearsay statements in the probation report

do not constitute proof beyond a reasonable doubt that he did so. (Gallardo, supra, 4

Cal.5th at p. 138.) The probation report states that, according to the police report, the

victim told a police officer, who reported to the scene, that when she heard defendant tell

her to give him her car, she turned toward defendant and noticed he had a handgun in his

waistband. Out of fear, the victim gave defendant her car keys and defendant took her

car. The probation report further states that the victim told the reporting probation officer

she believed she was held at gunpoint when defendant “struck something against her

back” during the incident. The victim also said that she saw the black tip of an object in

defendant’s waistband when his shirt was raised. These facts do not establish beyond a

reasonable doubt that defendant used a weapon during the carjacking.

       Even assuming these facts are sufficient to prove beyond a reasonable doubt that

defendant used a dangerous or deadly weapon during the commission of the carjacking,

under Gallardo, the trial court was precluded from making such a factual determination



                                             32
during the SBSC sentencing hearing. In determining whether defendant’s juvenile

carjacking adjudication 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.” (Gallardo, supra, 4 Cal.5th at p. 136.)

       In the instant case, when determining whether defendant’s juvenile carjacking

adjudication qualified as a strike, the SBSC was limited to the facts the juvenile court was

necessarily required to find to render the carjacking adjudication and to facts defendant

admitted as the factual basis for the carjacking adjudication. Those facts do not include

all of the facts stated in the probation report, even though the probation report was

admitted into evidence without objection during the juvenile jurisdictional hearing.

When sentencing defendant under Gallardo, it was improper for the trial court to make a

factual finding as to whether the probation report facts were sufficient to make a

weapons-use finding when neither the juvenile court made such a finding nor did

defendant admit such facts. When deciding defendant’s writ petition, the trial court thus

appropriately disregarded the weapon-related facts stated in the probation report when

ruling the juvenile carjacking adjudication did not qualify as a strike.

       Because we conclude the trial court did not err in granting defendant’s writ

petition on the ground defendant’s juvenile carjacking adjudication does not qualify as a

strike, we need not address the People’s objection to the trial court granting the writ




                                             33
petition based on the ground defendant’s attorney committed IAC by failing to object to

the strike.

                                             V.

                                         LACHES

       The People contend defendant’s writ petition was untimely and the delay in

bringing it prejudiced the People’s ability to challenge the writ petition, because

reporters’ transcripts of relevant proceedings were no longer available and defendant’s

attorney could not remember the proceedings.

       As explained in In re Robbins (1998) 18 Cal.4th 770, 777, “California law also

recognizes that in some circumstances there may be matters that undermine the validity

of a judgment or the legality of a defendant’s confinement or sentence, but which are not

apparent from the record on appeal, and that such circumstances may provide a basis for

a collateral challenge to the judgment through a writ of habeas corpus.” A variety of

procedural rules have been recognized that govern such writ relief, including the

requirement that claims raised in a habeas corpus petition must be timely filed. (In re

Robbins, supra, at p. 778.) Unjustified delay in presenting habeas corpus writ petition

claims bars consideration of the merits of the petition. (In re Clark (1993) 5 Cal.4th 750,

759; People v. Miller (1992) 6 Cal.App.4th 873, 881-882.)

       In order “to avoid the bar of untimeliness with respect to each claim, the petitioner

has the burden of establishing (i) absence of substantial delay, (ii) good cause for the




                                             34
delay, or (iii) that the claim falls within an exception to the bar of untimeliness.” (In re

Robbins, supra, 18 Cal.4th at p. 780.)

       Here, regardless of any delay, the trial court properly granted defendant’s writ

petition challenging defendant’s 2006 sentence, because the juvenile carjacking

adjudication does not qualify as a strike. Writ relief “will always issue to review an

invalid sentence, when, without the redetermination of any facts, the judgment may be

corrected to accord with the proper determination of the circumstances.” (In re Estrada

(1965) 63 Cal.2d 740, 750.) As in the instant case, writ relief has been issued “where the

trial court has sentenced a defendant to a term in excess of the maximum provided by

law.” (Ibid.)

       Furthermore, the record shows good cause for defendant delaying filing his writ

petition until January 5, 2018. Defendant was not told the juvenile carjacking strike was

invalid, and had no way of knowing this until after the CDCR notified the public

defender’s office on December 27, 2016, that defendant’s sentence appeared to be

improper, and the public defender thereafter reviewed the matter and concluded on

February 1, 2017, that defendant’s juvenile carjacking adjudication did not qualify as a

strike. It was not until defendant was advised of this that defendant had any reason to

know the strike was improper and take action to correct it.

       On March 23, 2017, defendant requested the SBSC to modify his sentence. When

the trial court heard the matter on July 21, 2017, after numerous continuances, the parties

and the court agreed defendant should proceed by filing a writ petition. After Gallardo



                                              35
was decided in December 2017, defendant filed his writ petition in the trial court on

January 5, 2018.

       Under these circumstances, defendant moved reasonably expeditiously in

challenging the juvenile carjacking strike. The record shows that the significant delay in

seeking such collateral relief was justified. Although some of the relevant reporter’s

transcripts were no longer available, this was not due to any fault on defendant’s part.

       Although the unavailable reporter’s transcripts might have been helpful in

reviewing the court proceedings leading to defendant’s writ petition, the People have not

shown any prejudice by their absence. Defendant remains convicted of all of the charged

crimes in the SBSC case based on his guilty plea in that case, and it is highly unlikely

that any of the missing transcripts and notes would have made any difference in the trial

court’s ruling on defendant’s writ petition.

                                               VI.

                        JURISDICTION OVER LOS ANGELES

                            AND ORANGE COUNTY CASES

       The People contend the SBSC exceeded its jurisdiction under Penal Code section

1170.1 by vacating the juvenile carjacking strikes in defendant’s Los Angeles and Orange

County cases (LASC case No. VA076709 and OCSC case No. 03NF1824). We disagree.

The SBSC had authority to vacate the juvenile carjacking strike from those cases, as it

did in the SBSC case, because, at the time of resentencing in the SBSC case, the court

was required to impose a single aggregate sentence on all three cases. In doing so, the



                                               36
SBSC was required to vacate the juvenile carjacking strike in each of the three cases

because the juvenile carjacking adjudication did not qualify as a strike.

       When the trial court granted habeas writ relief, the SBSC was thereafter required

to consider the entire sentencing scheme and reconsider all sentencing choices, as to all

pending determinate cases. (People v. Hill (1986) 185 Cal.App.3d 831, 834.) This is

“because an aggregate prison term is not a series of separate independent terms, but one

term made up of interdependent components. The invalidity of one component infects the

entire scheme.” (Ibid.)

       “[Penal Code] [s]ection 1170.1 generally governs the calculation and imposition

of a determinate sentence when a defendant has been convicted of more than one felony

offense.” (People v. Williams (2004) 34 Cal.4th 397, 402.) Under Penal Code section

1170.1, subdivision (a), “Except as otherwise provided by law, and subject to [Penal

Code] [s]ection 654, when any person is convicted of two or more felonies, whether in

the same proceeding or court or in different proceedings or courts, and whether by

judgment rendered by the same or by a different court, and a consecutive term of

imprisonment is imposed under [Penal Code] [s]ections 669 and 1170, the aggregate term

of imprisonment for all these convictions shall be the sum of the principal term, the

subordinate term, and any additional term imposed for applicable enhancements for prior

convictions, prior prison terms, and [Penal Code] [s]ection 12022.1.” (Italics added.)

       California Rules of Court, rule 4.452 further provides: “If a determinate sentence

is imposed under [Penal Code] section 1170.1[,] [subdivision] (a) consecutive to one or



                                             37
more determinate sentences imposed previously in the same court or in other courts, the

court in the current case must pronounce a single aggregate term, as defined in [Penal

Code] section 1170.1[,] [subdivision] (a), stating the result of combining the previous and

current sentences. In those situations: [¶] (1) The sentences on all determinately

sentenced counts in all of the cases on which a sentence was or is being imposed must be

combined as though they were all counts in the current case.” (Italics added.) In doing

so, status enhancements can be applied only once when imposing an aggregate sentence.

(People v. Edwards (2011) 195 Cal.App.4th 1051, 1057, 1060; People v. Williams, supra,

34 Cal.4th at p. 402.) The juvenile carjacking strike is a status enhancement. (People v.

Edwards, supra, at p. 1057.)

       In the instant case, after the trial court granted writ relief, the SBSC was required

to impose a single aggregate determinate sentence for the SBSC, LASC, and OCSC

cases. Because the original sentences in each of those cases included sentencing on the

juvenile carjacking strike, which did not qualify as a strike, the SBSC acted within its

jurisdiction to vacate the invalid strike in all three cases. Upon properly finding the

juvenile carjacking strike did not qualify as a strike in the SBSC case, the trial court

properly made the same finding as to the same strike in the other two cases. To do

otherwise would have resulted in inconsistent findings and sentencing on the same

juvenile carjacking strike, where the record established that the strike was invalid.




                                             38
      We therefore reject the People’s contention that SBSC did not have jurisdiction to

vacate the juvenile carjacking strike in the LASC and OCSC cases when imposing an

aggregate sentence on the three cases.

                                          VII.

                                     DISPOSITION

      The writ petition order and judgment are affirmed.

      CERTIFIED FOR PUBLICATION

                                                             CODRINGTON
                                                                                       J.

I concur:


MILLER
                Acting P. J.




                                          39
[In re Brandon Craig Brown, E071401]

       MENETREZ, J., Dissenting.

       I believe that People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo) does not apply

retroactively to cases that are already final on appeal. Division Seven of the Court of

Appeal, Second Appellate District recently reached the same conclusion. (In re Milton

(2019) 42 Cal.App.5th 977, 982.) I therefore respectfully dissent.

       In order to determine whether Gallardo is retroactive, we first need to identify the

applicable retroactivity standard. Just over one year ago, in a unanimous, published

opinion, our division held that for purposes of habeas corpus petitions in California

courts, the retroactivity of California appellate court decisions must be evaluated under

the state law standard of In re Johnson (1970) 3 Cal.3d 404 (Johnson), not the federal law

standard of Teague v. Lane (1989) 489 U.S. 288. (In re Thomas (2018) 30 Cal.App.5th

744, 749 (Thomas).) I am not aware of any reason for us to depart from our recent

holding in Thomas. No party has offered one,1 and the majority does not articulate one.

We should therefore follow Thomas and evaluate the retroactivity of Gallardo under the

state law standard established in Johnson. (Estate of Sapp (2019) 36 Cal.App.5th 86,

109, fn. 9.)

       The next question is whether Gallardo created a new rule for purposes of

retroactivity analysis. It did, because it overruled People v. McGee (2006) 38 Cal.4th 682

       1 The appellant’s opening brief and the respondent’s brief were filed before we
decided Thomas, supra, 30 Cal.App.5th 744. The appellant’s reply brief discusses
Thomas and does not urge us to depart from it. At oral argument as well, no party
expressed any criticism of Thomas.

                                             1
(McGee). (Gallardo, supra, 4 Cal.5th at p. 125 [“We disapprove [McGee] insofar as it

suggests that the trial court’s factfinding was constitutionally permissible”]; see Thomas,

supra, 30 Cal.App.5th at p. 761 [an appellate decision announces a new rule if it

“explicitly overrule[s] a precedent of the California Supreme Court”].) And the new rule

is procedural, not substantive, because it neither “alters the range of conduct or the class

of persons that the law punishes” nor “modifies the elements of [an] offense.” (In re

Martinez (2017) 3 Cal.5th 1216, 1222.)

       Brown argues that the Gallardo rule is neither new nor procedural, but his

arguments are meritless. He contends that Gallardo is not new because it was dictated by

Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). But the Gallardo rule is new

regardless of whether it was dictated by Apprendi, because Gallardo overruled McGee

(which also postdated Apprendi). (In re Lucero (2011) 200 Cal.App.4th 38, 45; Thomas,

supra, 30 Cal.App.5th at p. 761.) And Brown presents the following argument (and

others like it) that the Gallardo rule is substantive: “Gallardo alters the range of conduct

or class of persons that the law punishes by making increased punishment for habitual

offenders unavailable under any procedure for persons whose prior guilty pleas or

verdicts do not themselves necessarily include facts required for habitual offender

punishment.” The argument fails because a procedural rule does not become substantive

merely by being rewritten as a rule about the class of persons to whom the procedural

rule applies. The Gallardo rule is essentially an evidentiary rule—it limits the sources on

which a sentencing judge can rely in determining whether a prior conviction qualifies as a



                                              2
strike. It does not alter the elements of any offense or the range of conduct or class of

persons that the law punishes. Rather, it alters the procedure by which sentencing judges

determine which persons are in which classes.

       Given that Gallardo creates a new rule and is procedural, in order to determine

whether the rule applies retroactively under Johnson we must consider “(a) the purpose to

be served by the new rule, (b) the extent of reliance by law enforcement authorities on the

old rule, and (c) the effect on the administration of justice of applying the new rule

retroactively. (Johnson, supra, 3 Cal.3d at p. 410.) That is, we weigh the new rule’s

importance and impact against the disruption that would be caused by applying the new

rule to final cases where law enforcement, including prosecutors, relied on the old rule in

investigating and prosecuting those cases originally.” (Thomas, supra, 30 Cal.App.5th at

p. 763.)

       The Johnson standard is somewhat vague and difficult to apply. (See Thomas,

supra, 30 Cal.App.5th at pp.756-758 [discussing criticism of Linkletter v. Walker (1965)

381 U.S. 618, on which Johnson was based].) But the case law does provide some useful

guideposts. “If the new rule aims to deter future misconduct or to define procedural

rights merely incidental to a fair determination of guilt or innocence, it will generally not

be given retroactive effect. [Citations.] On the other hand, if a decision goes to the

integrity of the factfinding process [citation], or ‘implicates questions of guilt and

innocence’ [citation], retroactivity is the norm.” (Thomas, at p. 763.)




                                              3
       Gallardo is merely an application of the rule, first announced in Apprendi, that

“any fact, other than the fact of a prior conviction, that increases the statutorily authorized

penalty for a crime must be found by a jury beyond a reasonable doubt.” (Gallardo,

supra, 4 Cal.5th at p. 123.) The Apprendi rule itself derives from the right to jury trial

under the Sixth Amendment to the United States Constitution. (Gallardo, p. 123.) And

the United States Supreme Court has explained that the evidence concerning the relative

accuracy of judges and juries as factfinders is “equivocal.” (Schriro v. Summerlin (2004)

542 U.S. 348, 356 [“for every argument why juries are more accurate factfinders, there is

another why they are less accurate”].)

       Moreover, the effect of Gallardo is to limit the sources on which a sentencing

judge may rely in determining whether a prior conviction qualifies as a strike—the judge

must look only to the record of conviction and not to extraneous sources such as

preliminary hearing transcripts or probation reports (as in the instant case). (Gallardo,

supra, 4 Cal.5th at p. 137.) Because Gallardo thus shrinks the universe of evidence that

can be used to determine that prior convictions were strikes, it is reasonable to infer that,

as a result of Gallardo, fewer prior convictions will be found to be strikes. It is

theoretically possible that some erroneous factfinding will thereby be avoided. That is, it

is possible that there are cases in which a prior conviction that is not found to be a strike

under Gallardo would have erroneously been found to be a strike under McGee. But the

opposite result would appear to be considerably more likely. That is, the effect of

Gallardo’s limitation on the evidence available to sentencing judges might actually be to



                                              4
increase the risk of erroneous factfinding at sentencing, because a sentencing judge might

be prevented from determining that a prior conviction was a strike when, in fact, it was.

       Accordingly, I do not see how Gallardo can be characterized as a decision that

goes to the integrity of the factfinding process or implicates questions of guilt or

innocence in a manner that warrants retroactive application. Rather, it appears to define

procedural rights that are merely incidental to a fair determination of guilt or innocence.

Gallardo consequently would not appear to be retroactive.

       More detailed consideration of the Johnson factors supports that conclusion. In

evaluating the first factor, we consider the purpose of the new rule and “its relationship to

the reliability and integrity of the factfinding process at trial.” (Thomas, supra, 30

Cal.App.5th at p. 764.) The purpose of the Gallardo rule, like the purpose of the

Apprendi rule from which it derives, is to respect the Sixth Amendment right to jury trial.

The Supreme Court has described the constitutional right to trial by jury as “‘the great

bulwark of [our] civil and political liberties’” and as affording protection “‘against a

spirit of oppression and tyranny on the part of rulers.’” (Apprendi, supra, 530 U.S. at

p. 477.) But as I have already noted, the high court has rejected the suggestion that

factfinding by juries is inherently more accurate than factfinding by judges (Schriro v.

Summerlin, supra, 542 U.S. at p. 356), and Gallardo might actually have a detrimental

rather than beneficial effect on the accuracy of judicial factfinding at sentencing. Thus,

insofar as there is a connection between the Gallardo rule and avoiding wrongful

convictions or promoting accurate factfinding, it would not appear to be a strong one.



                                              5
       The second and third factors are, respectively, the extent of law enforcement’s

reliance on the old rule and the effect on the administration of justice of applying the new

rule retroactively. (Thomas, supra, 30 Cal.App.5th at p. 763.) Both factors weigh

heavily against retroactive application of Gallardo.

       In the 11 years from McGee to Gallardo, California lawyers and lower courts

universally and reasonably relied on McGee, because it was a decision of the California

Supreme Court and hence binding on all lower courts. (Auto Equity Sales, Inc. v.

Superior Court (1962) 57 Cal.2d 450, 455.) And retroactive application of Gallardo

could have an enormously disruptive and costly impact on the administration of justice

by licensing challenges to sentences imposed in countless felony cases resolved by plea,

like Brown’s. In fiscal year 2017-2018, for example, California courts resolved 156,149

felony cases before trial, of which 66 percent (or just over 100,000) resulted in felony

convictions. (Judicial Council of California, 2019 Court Statistics Report, p. 69.) It is

reasonable to infer that if Gallardo were applied retroactively, the sentences rendered

vulnerable to attack would number in the hundreds of thousands.

       On balance, then, I see no way of avoiding the conclusion that Gallardo is not

retroactive under Johnson. The purpose of the Gallardo rule is (at most) weakly

connected to avoidance of wrongful convictions, the reliance by law enforcement on the




                                             6
old rule was universal, and the negative impact of retroactivity on the administration of

justice is likely to be huge.2

       In addition to analyzing the retroactivity issue under Johnson, the majority also

appears to argue that Gallardo applies retroactively here because (1) a legally

unauthorized sentence may be challenged at any time, and (2) Brown’s sentence is legally

unauthorized under Gallardo. (Maj. opn., ante, p. 17 [Gallardo “applies retroactively

here because defendant’s sentence constitutes an unauthorized sentence as to his juvenile

carjacking strike”].) The argument is obviously circular. When Brown was sentenced,

his sentence was legally authorized under then-existing California law. If Gallardo is not

retroactive, then his sentence is still legally authorized. 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.

       Because I conclude that Gallardo is not retroactive, I would reverse the trial

court’s order with directions to deny Brown’s petition. I therefore respectfully dissent.


                                                               MENETREZ
                                                                                             J.



       2   Were we to apply the federal standard, we would have to conclude that Gallardo
is not retroactive under Teague v. Lane, supra, 489 U.S. 288. The United States Supreme
Court has held that Ring v. Arizona (2002) 536 U.S. 584, 603-609—which applied
Apprendi to conclude that aggravating factors necessary for imposition of the death
penalty must be found by a jury, not by a judge—is not retroactive. (Schriro v.
Summerlin, supra, 542 U.S. at p. 358.) It is impossible to reconcile that holding with the
conclusion that Gallardo is retroactive under Teague v. Lane, supra, at p. 288.


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