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?

          "A. Yes.

          "Q. And that as a result of the argument, a scuffle occurred, is that
          correct?

          "A. Yes.

          "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?

          "A. Yes.

          "Q. And that as a result of that, [Sister] did suffer a burn on her
          face?

          "A. Yes.


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?

   "A. Yes.

   "Q. And from your observation, whatever injury she sustained on
   that occasion [has] essentially healed, is that correct?

   "A. Yes.

   "Q. And any mark that was left as a result of the incident is quite
   unnoticeable from your observation?

   "A. Yes.

   "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?

   "[Scott]: Yes.

   "[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 . . . ?

           "A. Yes.

           "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?

           "A. Yes."

       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

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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.




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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.




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