Filed 12/3/19
                CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION SEVEN


                                   B297354
In re
                                   (Los Angeles County
                                   Super. Ct. No. TA039953)
WILLIAM MILTON,


        on Habeas Corpus.




      ORIGINAL PROCEEDINGS on petition for writ of habeas
corpus. Petition denied.
      Brad Kaiserman, under appointment by the Court of
Appeal, for Petitioner.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Michael C. Keller, Acting Supervising Deputy
Attorney General and Eric J. Kohm, Deputy Attorney General for
Respondent.
                        INTRODUCTION

       In 1999 a California jury convicted William Milton of
second degree robbery. In a bifurcated proceeding, Milton
admitted he had two prior felony convictions in Illinois. The
court ruled the out-of-state convictions qualified as serious
felonies for purposes of the three strikes law (Pen. Code, §§ 667,
subds. (b)-(j), 1170.12).1 Milton appealed, this court affirmed, and
the Supreme Court denied review.
       Eighteen years after his conviction, Milton filed this
petition for a writ of habeas corpus, contending he is entitled to
resentencing under the California Supreme Court’s decision in
People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), which held a
court considering whether to impose a sentence enhancement
based on a prior conviction may not make factual findings about
the defendant’s conduct to impose the enhancement. Because
Gallardo does not apply retroactively to Milton, whose conviction
became final long ago, we deny the petition.



      FACTUAL AND PROCEDURAL BACKGROUND

      A.    Milton Is Convicted of Simple Robbery and Armed
            Robbery in Illinois
       Years before a jury in California convicted Milton of the
robbery offense that gives rise to this petition, Milton was
convicted of two crimes, simple robbery and armed robbery, in
Illinois. The prosecution in the Illinois action alleged in an

1     Statutory references are to the Penal Code.




                                 2
information that on February 2, 1987 Milton committed simple
robbery by taking a wallet and $337 from his victim “by
threatening the imminent use of force.” Underneath this
allegation in the information, a handwritten note stated, “Class
II. [The victim] left [the market] after cashing his check.
Stopped. Money demanded. [Defendant] had a gun. $338.
[Defendant] admitted to Wkgn PD he took money.” The Illinois
prosecution also alleged that on February 9, 1987 Milton
committed armed robbery by taking $40 from his victim, “while
ar[med] with a dangerous weapon, a gun . . . by threatening the
imminent use of force.”
       Milton pleaded guilty to the simple robbery charge, and an
Illinois jury found Milton guilty of the armed robbery charge.
The Illinois court held a combined sentencing hearing for the two
convictions. For the armed robbery conviction, the Illinois
prosecutor recounted the testimony of the victim as follows: “Mr.
Milton got out of the car, pointed a gun at [the victim], and
threatened him, forced him into the car where he was robbed of
his goods.” The court stated to Milton, “You used a gun . . . . You
stopped the victim . . . . You forced this individual into the
automobile.” For the simple robbery conviction, the Illinois
prosecutor stated Milton approached the victim “with a weapon,
threaten[ed] him, and . . . [the victim] lost his entire paycheck . . .
to Mr. Milton.” The Illinois court stated it had received
“stipulated facts” for the case, which “indicated that the
victim . . . left the . . . [market] after cashing his check. He was
stopped. Money was demanded from the victim by . . . Milton . . .
who possessed a handgun. And the sum of three hundred thirty-
eight dollars was taken from the victim . . . .”




                                   3
       Before the Illinois court pronounced sentence, the court
reiterated Milton’s use of a firearm: “In each of the two
respective offenses you deliberately held a gun—a loaded gun—
upon an individual. . . . I’m going to tell you that he who
participates in an offense of violence against another with a gun
is going to be punished. And the sentence I am going to give is
for the purpose of punishment.”

       B.    Milton Is Convicted of Robbery in California
       On September 6, 1998 Milton committed another robbery,
this time in California. Milton stopped a teenager on a street in
Los Angeles at night and demanded money, “behaved as if he was
armed with a weapon,” and took money and a new pair of jeans.
The victim identified Milton as the robber, and a police officer
testified Milton admitted to the robbery. The jury found Milton
guilty of second degree robbery. (People v. Milton (May 10, 2000,
B131757) [nonpub. opn.].)

       C.     The Trial Court Sentences Milton in California
       In a bifurcated proceeding Milton admitted he suffered two
prior felony convictions in Illinois, one for armed robbery and one
for simple robbery. Milton admitted that the armed robbery
conviction was a serious felony under section 667, subdivision
(a)(1), and that it qualified as a “five-year prior.” Milton denied
the allegation the simple robbery conviction was a serious or
violent felony that made it a “strike.” The California prosecutor
acknowledged that the Illinois simple robbery conviction was not
a serious or violent felony under the three strikes law because
robbery under Illinois law, unlike robbery under California law,
did not require the specific intent to permanently deprive the




                                 4
person of the property. The California prosecutor argued,
however, that certified documents from the Illinois court
“indicate that [Milton] used a gun during the [simple] robbery”
and that “[t]his information, therefore, provides this Court with
the ability to determine that this particular conviction is a
strike.”
       Counsel for Milton argued the Illinois court documents, at
best, showed Milton “possessed” a gun, and nothing in the record
showed he “actually personally used” a gun. The prosecutor
argued California law allowed the trial court “to look behind the
record” to determine whether Milton used a gun in the simple
robbery. The trial court ruled, “I see nothing wrong with
going . . . beyond the court record . . . to determine what really
happened. And in doing that, I am satisfied that the defendant
used a gun in both . . . these prior robberies. And . . . I am
satisfied that they’re both strikes.” The trial court imposed a
term of 25 years to life, plus five years under section 667,
subdivision (a)(1).

      D.     Milton Appeals and Files Habeas Petitions
      Milton appealed his judgment of conviction. He contended,
among other things, the trial court erred in finding his Illinois
felony conviction for simple robbery qualified as a serious or
violent felony under the three strikes law.2 This court affirmed
the judgment, and the Supreme Court denied review. (People v.


2      In his direct appeal, Milton did not challenge the trial
court’s finding the Illinois armed robbery conviction was a serious
or violent felony under the three strikes law.




                                5
Milton, supra, B131757, review denied, July 19, 2000, S089153.)
Milton subsequently filed five petitions for a writ of habeas
corpus in this court, each of which was denied.
      On January 11, 2016 Milton filed a petition in the
California Supreme Court (S231762), contending the trial court
erred in finding his two Illinois convictions were serious felonies
under the three strikes law. On March 23, 2016 the Supreme
Court denied the petition “without prejudice to any relief to
which [Milton] might be entitled after this court decides People v.
Gallardo, S231260,” a case then pending in the Supreme Court.

       E.     Milton Files This Petition
       On December 29, 2017, following the Supreme Court’s
decision in Gallardo, Milton filed this petition, arguing his
“Illinois priors cannot be used as strikes.”3 The Supreme Court
issued an order directing the Department of Corrections and
Rehabilitation to show cause, returnable in this court, “why
[Milton] is not entitled to relief pursuant to People v. Gallardo
(2017) 4 Cal.5th 120 . . . , and why Gallardo should not apply
retroactively on habeas corpus to final judgments of conviction.”




3     Milton admitted the armed robbery conviction was a
serious felony under section 667, subdivision (a)(1), and he does
not argue in his petition the sentencing court erred in imposing a
five-year enhancement under that statute.




                                 6
                           DISCUSSION

        A.    California Sentencing Laws for Serious Felonies
        Under sections 667, subdivisions (b)-(j), and 1170.12, a
“‘serious felony’ conviction is . . . a prior strike for purposes of the
Three Strikes law . . . .”4 (Gallardo, supra, 4 Cal.5th at
p. 125.) Section 667, subdivision (d)(2), provides that a prior
conviction in another jurisdiction “shall constitute a prior
conviction of a particular serious and/or violent felony if the prior
conviction in the other jurisdiction is for an offense that includes
all of the elements of a particular violent felony . . . . or serious
felony as defined in subdivision (c) of Section 1192.7.” Section
1192.7, subdivision (c)(8), provides that “‘serious felony’” includes
“any felony in which the defendant personally uses a firearm.”
(See People v. Briceno (2004) 34 Cal.4th 451, 463 [“[s]ection
1192.7, subdivision (c)(8) makes any felony not otherwise
enumerated in section 1192.7, subdivision (c) a serious felony if
the defendant personally uses a firearm”].)
        Milton’s Illinois convictions for simple robbery and armed
robbery were not serious felony convictions within the meaning of
the three strikes law under section 667, subdivision (d)(2).
Section 211 states, “Robbery is the felonious taking of personal
property in the possession of another, from his person or
immediate presence, and against his will, accomplished by means
of force or fear.” An essential element of the California crime of
robbery is “the intent to permanently deprive the person of the

4     The three strikes law “articulates an alternative sentencing
scheme for the current offense rather than an enhancement.”
(People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527;
accord, In re Edwards (2018) 26 Cal.App.5th 1181, 1187.)




                                   7
property.” (People v. Jackson (2016) 1 Cal.5th 269, 343.) The
definitions of robbery and armed robbery in Illinois do not include
this specific intent element; robbery and armed robbery are
general intent crimes in Illinois. (People v. Jamison (2001) 197
Ill.2d 135, 161; People v. Lee (1998) 294 Ill.App.3d 738, 743.) But
if Milton personally used a firearm in the commission of the
Illinois felonies, those prior convictions would be convictions for
serious felonies under section 1192.7, subdivision (c)(8).5 (See
People v. Le (2015) 61 Cal.4th 416, 425 [“subdivision (c)(8) of
section 1192.7 . . . applies to ‘any felony in which the defendant
personally uses a firearm’”].)

      B.     California Sentencing Law Before Gallardo
      When the trial court sentenced Milton in 1999, California
law permitted trial courts to examine “the entire record of the
conviction to determine the substance of the prior foreign
conviction.” (People v. Guerrero (1988) 44 Cal.3d 343, 355; see
People v. Woodell (1998) 17 Cal.4th 448, 453.) In 2000 the United
States Supreme Court decided Apprendi v. New Jersey (2000) 530
U.S. 466 [120 S.Ct. 2348] (Apprendi), which held a jury must
make the factual determination whether the defendant was
subject to a state hate crime law that provided for enhanced
penalties if the defendant committed certain offenses “with the
purpose to intimidate an individual . . . because of race, color,
gender, handicap, religion, sexual orientation or ethnicity.” (Id.
at pp. 469-470, 490.) The United States Supreme Court held
that, under the Sixth Amendment and the Due Process Clause of

5      For the offense of armed robbery, Illinois does not require
the jury to find the defendant used a gun. (See Ill.Rev.Stats., ch.
38, § 18-2(a).)




                                 8
the Fourteenth Amendment to the United States Constitution,
“[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Id. at pp. 477, 490.)
       California courts initially held Apprendi did not apply to a
trial court’s factfinding in connection with determining whether a
defendant’s prior convictions subjected the defendant to increased
penalties. (See, e.g., People v. Thomas (2001) 91 Cal.App.4th 212,
222 [defendant has no federal constitutional right to a jury trial
on factual issues related to “recidivism”].) In 2006 the California
Supreme Court decided People v. McGee (2006) 38 Cal.4th 682
(McGee), where the trial court examined the record of two prior
robbery convictions the defendant had received in Nevada to
determine if those convictions were serious felonies under section
667, subdivision (a)(1), and the three strikes law. (Id. at p. 688.)6
The trial court in McGee reviewed a preliminary hearing
transcript and other court records in each of the Nevada
convictions. The trial court ruled the prior convictions satisfied
the elements of robbery under California law and, therefore,
qualified as serious felonies. (Id. at p. 690.) The California
Supreme Court in McGee held the trial court’s inquiry did not
violate Apprendi because “Apprendi was confined to the elements
of the charged offense—not, as here, to the adjudication of aspects
of the defendant’s criminal past.” (Id. at p. 697.)

6     Nevada law defined robbery more broadly than California
law because Nevada law required only general criminal intent,
and as stated California law required the specific intent to
permanently deprive another person of property. (McGee, supra,
38 Cal.4th at p. 688.)




                                 9
       C.    Gallardo
       In Gallardo a jury convicted the defendant of robbery and
other offenses, and the trial court increased the defendant’s
sentence “on the ground that defendant had previously been
convicted of a ‘serious felony’ under . . . section 667, subdivision
(a), that was also a strike for purposes of the ‘Three Strikes’ law.”
(Gallardo, supra, 4 Cal.5th at pp. 123, 126.) The trial court found
the defendant’s prior conviction for assault with a deadly weapon
or with force likely to produce great bodily injury under section
245, subdivision (a)(1), was a serious felony conviction, even
though the statutory definition for the crime “swe[pt] more
broadly than the definition of ‘serious felony.’”7 (Gallardo, at
p. 123.) The trial court reviewed the preliminary hearing
transcript from the underlying prior conviction and concluded the
defendant “had, in fact, been convicted of ‘assault with a deadly
weapon; to wit, knife.’” (Id. at p. 126.)


7      “An assault conviction qualifies as a serious felony if the
assault was committed with a deadly weapon [citation], but not
otherwise.” (Gallardo, supra, 4 Cal.5th at p. 123.) “[S]ection 245,
subdivision (a), has since been amended to separate the
prohibitions against assault ‘with a deadly weapon’ and assault
‘by any means of force likely to produce great bodily injury’ into
different subdivisions.” (Gallardo, at p. 125, fn. 1.) “The reason
for the change was to make it easier going forward to determine
whether a defendant’s prior convictions for aggravated assault
under section 245, subdivision (a), involved conduct subjecting
the defendant to certain recidivist provisions, because
enhancements such as the ‘Three Strikes’ law applied to prior
assault convictions only when those convictions involved the use
of a deadly weapon.” (In re C.D. (2017) 18 Cal.App.5th 1021,
1028.)




                                 10
       The California Supreme Court held the trial court’s factual
findings regarding the conduct underlying the defendant’s prior
conviction violated the defendant’s Sixth Amendment jury trial
right. (Gallardo, supra, 4 Cal.5th at p. 136.) Citing two post-
Apprendi decisions by the United States Supreme Court,
Descamps v. United States (2013) 570 U.S. 254 [133 S.Ct. 2276]
(Descamps) and Mathis v. United States (2016) ___ U.S. ___ [136
S.Ct. 2243] (Mathis), the California Supreme Court decided it
was “time to reconsider McGee.” (Gallardo, at p. 124.) The
California Supreme Court explained Descamps and Mathis made
“clear that when the criminal law imposes added punishment
based on findings about the facts underlying a defendant’s prior
conviction, ‘“[t]he Sixth Amendment contemplates that a jury—
not a sentencing court—will find such facts, unanimously and
beyond a reasonable doubt.”’” (Gallardo, at p. 124, citing
Descamps, at p. 269.) The California Supreme Court held a
“court considering whether to impose an increased sentence
based on a prior qualifying conviction may not determine the
‘nature or basis’ of the prior conviction based on its independent
conclusions about what facts or conduct ‘realistically’ supported
the conviction.” (Gallardo, at p. 136.) “[R]ather,” the California
Supreme Court held, “[t]he court’s role is . . . limited to
identifying those facts that were established by virtue of the
conviction itself.” (Ibid.) The California Supreme Court
disapproved McGee “insofar as it suggest[ed] that the trial court’s
factfinding was constitutionally permissible.” (Gallardo, at
p. 125.)
       The People concede the trial court in this case erred in
relying on its review of the record of the proceedings in Milton’s
two Illinois felony cases to find Milton used a gun in the




                                11
commission of those felonies, a finding the trial court used to
increase Milton’s sentence under the three strikes law. The
record contained a transcript of the sentencing hearing, in which
the Illinois court referred to “stipulated facts” and stated Milton
used a gun in both robberies. These factual determinations,
which served as the basis for increasing Milton’s sentence,
violated Milton’s Sixth Amendment right to a jury trial. (See
Gallardo, supra, 4 Cal.5th at p. 136.) The issue in this petition is
whether Gallardo applies retroactively to Milton, whose appeal
became final years ago.8

      D.    Gallardo Does Not Apply Retroactively

             1.    Two Tests: One Federal, One State
       The California “Supreme Court has not articulated a single
test to determine when and under what circumstances a decision
should be given retroactive effect to convictions that are final on
appeal.” (In re Hansen (2014) 227 Cal.App.4th 906, 916.) In
Teague v. Lane (1989) 489 U.S. 288, 307 [109 S.Ct. 1060] (Teague)
the United States Supreme Court established the test most

8      “It has long been the rule in federal and California courts
that a case is not final for purposes of determining the
retroactivity and application of a new decision addressing a
federal constitutional right until direct appeal is no longer
available in the state courts, and the time for seeking a writ of
certiorari has lapsed or a timely filed petition for that writ has
been denied.” (In re Richardson (2011) 196 Cal.App.4th 647,
664.) The California Supreme Court denied review of Milton’s
direct appeal on July 19, 2000. Therefore, Milton’s judgment of
conviction became final on October 19, 2000.




                                 12
California courts apply when deciding whether a new rule
interpreting federal rights applies retroactively. (See, e.g., In re
Gomez (2009) 45 Cal.4th 650, 656 [applying Teague to decide
whether Cunningham v. California (2007) 549 U.S. 270 [127
S.Ct. 856] (Cunningham), which held a jury must find the
aggravating factors that make a defendant eligible for an upper-
term sentence, is retroactive]; In re Moore (2005) 133 Cal.App.4th
68, 77 [applying Teague to decide whether Crawford v.
Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] (Crawford),
which held testimonial hearsay was inadmissible in the absence
of certain safeguards, is retroactive]; see also In re Ruedas (2018)
23 Cal.App.5th 777, 799 [“[a]lthough states are free to establish
their own rules for determining the retroactivity of judicial
opinions, California courts have generally hewed to the federal
standard”].)
       A few California courts have applied the California state
law test for retroactivity stated in In re Johnson (1970) 3 Cal.3d
404 (Johnson), or have discussed both the federal and state tests,
to decide whether a state law decision interpreting federal rights
is retroactive. (See, e.g., In re Thomas (2018) 30 Cal.App.5th 744,
760-761 [“the three-factor balancing test articulated in Johnson
still governs whether we should apply [People v. Sanchez (2016)
63 Cal.4th 665 (Sanchez)] retroactively when a petitioner seeks
state habeas corpus review”]; In re Ruedas, supra, 23 Cal.App.5th
at pp. 793, 798 [using both the federal and state tests to decide
whether Sanchez is retroactive]; see also In re Gomez, supra, 45
Cal.4th at p. 655, fn. 3 [“[o]f course, we are ‘free to give greater
retroactive impact to a decision than the federal courts choose to
give’”].) Because Gallardo is a state law decision interpreting
federal constitutional rights, “out of an abundance of caution” (In




                                13
re Ruedas, at p. 799) we consider both the federal test under
Teague and the state test under Johnson.

              2.    Gallardo Is Not Retroactive Under Teague
       “Under Teague, as a general matter, ‘new constitutional
rules of criminal procedure will not be applicable to those cases
which have become final before the new rules are announced.’
[Citation.] Teague and its progeny recognize two categories of
decisions that fall outside this general bar on retroactivity for
procedural rules. First, ‘[n]ew substantive rules generally apply
retroactively.’ [Citations.] Second, new ‘“watershed rules of
criminal procedure,”’ which are procedural rules ‘implicating the
fundamental fairness and accuracy of the criminal proceeding,’
will also have retroactive effect.” (Welch v. United States (2016)
___ U.S. ___, ___ [136 S.Ct. 1257, 1264] (Welch).) “The Teague
framework creates a balance between, first, the need for finality
in criminal cases, and second, the countervailing imperative to
ensure that criminal punishment is imposed only when
authorized by law. . . . If a new rule regulates only the
procedures for determining culpability, the Teague balance
generally tips in favor of finality. The chance of a more accurate
outcome under the new procedure normally does not justify the
cost of vacating a conviction whose only flaw is that its
procedures ‘conformed to then-existing constitutional standards.’”
(Id. at p. ___ [136 S.Ct. at p. 1266].)

                  a.      Gallardo Established a New Rule Under
                          Federal Law
     “In general, . . . a case announces a new rule when it breaks
new ground or imposes a new obligation on the States or the




                                14
Federal Government. . . . To put it differently, a case announces
a new rule if the result was not dictated by precedent existing at
the time the defendant’s conviction became final.” (Teague,
supra, 489 U.S at p. 301; see Welch, supra, 136 S.Ct. at p. 1264;
In re Gomez, supra, 45 Cal.4th at p. 655.) “A case is not dictated
by existing precedent if its outcome was ‘susceptible to debate
among reasonable minds.’ [Citation.] Therefore, ‘unless
reasonable jurists hearing petitioner’s claim at the time his
conviction became final “would have felt compelled by existing
precedent”’ to apply the rule in question, the rule will be
considered new and presumed not to apply on collateral review.”
(In re Ruedas, supra, 23 Cal.App.5th at p. 794.)
       Milton argues Gallardo did not establish a new rule
because, at the time his conviction became final in October 2000,
the law—which Milton asserts included Taylor v. United States
(1990) 495 U.S. 575 [110 S.Ct. 2143] (Taylor) and Apprendi—
“dictated” the result in Gallardo. Neither case, however, had the
far-reaching effects Milton argues it had.
       Taylor interpreted a federal statute that provided for
sentence enhancements if the defendant had three prior
convictions for specified types of offenses, including burglary.
(Taylor, supra, 495 U.S. at p. 578.) After examining the purpose
and legislative history of the statute, the United States Supreme
Court held the sentencing court could find the defendant received
a prior conviction for a burglary within the meaning of the
federal statute by looking “only to the fact of conviction and the
statutory definition of the prior offense” or “the charging paper
and jury instructions.” (Id. at pp. 601-602.) Taylor involved
statutory interpretation; it did not “dictate” the result in
Gallardo, which is based on Sixth Amendment principles.




                                15
       As stated, in Apprendi the United States Supreme Court
held that all facts used to increase the defendant’s punishment
(other than the fact of a prior conviction) must be found by a jury.
But the Supreme Court also recognized an exception to this
general rule. (Apprendi, supra, 530 U.S. at pp. 488-490.) Two
years before Apprendi, the United States Supreme Court decided
in Almendarez-Torres v. United States (1998) 523 U.S. 224
(Almendarez-Torres) that, even though a jury did not make the
finding the defendant had three prior convictions, the trial court
could impose higher penalties without implicating the right to a
jury trial because “recidivism ‘does not relate to the commission
of the offense, but goes to the punishment only, and therefore . . .
may be subsequently decided.’” (Almendarez-Torres, at p. 244.)
The United States Supreme Court in Apprendi declined to
overrule Almendarez-Torres and instead distinguished it on “its
unique facts”: “[O]ur conclusion in Almendarez-Torres turned
heavily upon the fact that the additional sentence to which the
defendant was subject was ‘the prior commission of a serious
crime,’” a fact the defendant in that case did not contest.
(Apprendi, at pp. 488-490.) The United States Supreme Court
stated that recidivism was “‘a traditional, if not the most
traditional, basis for a sentencing court’s increasing an offender’s
sentence.’” (Id. at p. 488.)
       Thus, Apprendi, while providing the foundation for
Gallardo, did not dictate the result in Gallardo, because Gallardo
concerned the right to have a jury conduct factfinding under a
sentencing statute aimed at recidivism. When the California
Supreme Court considered a case involving a recidivist statute in
McGee, it concluded the United States Supreme Court in
Apprendi “left state courts free to undertake the analysis . . . to




                                16
ascertain the facts underlying a prior conviction.” (McGee, supra,
38 Cal.4th at p. 705.) The California Supreme Court in Gallardo
acknowledged this area of the law was unsettled: “In the wake of
Apprendi, questions arose about the scope of the so-called
Almendarez-Torres exception to the general Sixth Amendment
rule forbidding judicial factfinding in criminal cases.” (Gallardo,
supra, 4 Cal.5th at p. 128.)
       In re Gomez, cited by Milton, does not suggest a different
conclusion. In that case the California Supreme Court held
Cunningham, supra, 549 U.S. 270 did not constitute a new rule
for purposes of determining its retroactivity because its holding
was “dictated by Blakely [v. Washington (2004) 542 U.S. 296 [124
S.Ct. 2531] (Blakely)].” (In re Gomez, supra, 45 Cal.4th at p. 660.)
In Blakely the United States Supreme Court held a statutory
scheme that permitted the sentencing court to impose additional
penalties based solely on the court’s finding the defendant
committed a felony with “deliberate cruelty” violated the Sixth
Amendment right to a jury trial. (Blakely, at pp. 298, 305.) In
Cunningham the United States Supreme Court held a sentencing
law that “assigns to the trial judge . . . authority to find the facts
that expose a defendant to an elevated ‘upper term’ sentence”
violated the Sixth Amendment right to a jury trial.
(Cunningham, at p. 274.) The California Supreme Court in In re
Gomez explained that the Cunningham decision “did not extend
or modify the rule established in Blakely, but merely applied” the
rule to the California sentencing scheme. (In re Gomez, at
p. 658.)
       In contrast, Gallardo did not merely apply the holding of
Apprendi to the recidivist sentencing scheme in California. To be
sure, the opinion in Gallardo discussed the Apprendi decision.




                                 17
(See Gallardo, supra, 4 Cal.5th at p. 128.) But, as discussed, the
California Supreme Court drew heavily on Descamps and Mathis
in holding a jury must find the facts that support increased
punishment based on recidivism. (Id. at p. 134.) Indeed, the
California Supreme Court in Gallardo emphasized that it
benefited from “further explication by the high court” and that
the holding in Gallardo was “consistent with [the] principle” of
Descamps that judicial factfinding “does not extend ‘beyond the
recognition of a prior conviction.’” (Id. at p. 136.) Apprendi,
decided 13 years before the United States Supreme Court decided
Descamps and Mathis, did not “dictate” the holding in Gallardo.
Gallardo announced a “new rule” under Teague.

                    b.    Gallardo Is a Procedural Rule
       ‘“A rule is substantive rather than procedural if it alters
the range of conduct or the class of persons that the law
punishes.’ [Citation.] . . . Procedural rules, by contrast, ‘regulate
only the manner of determining the defendant’s culpability.’
[Citation.] Such rules alter ‘the range of permissible methods for
determining whether a defendant’s conduct is punishable.’
[Citation.] ‘They do not produce a class of persons convicted of
conduct the law does not make criminal, but merely raise the
possibility that someone convicted with use of the invalidated
procedure might have been acquitted otherwise.’” (Welch, supra,
136 S.Ct. at pp. 1264-1265; see Schriro v. Summerlin (2004) 542
U.S. 348, 353 [124 S.Ct. 2519] (Schriro); In re Lopez (2016) 246
Cal.App.4th 350, 357.) “Because of this more speculative
connection to innocence, we give retroactive effect to only a small
set of ‘“watershed rules of criminal procedure” implicating the




                                 18
fundamental fairness and accuracy of the criminal proceeding.’”
(Schriro, at p. 352.)
       The holding of Gallardo, that the trial court’s role in
considering whether to impose an increased sentence is limited to
identifying facts established by the conviction (Gallardo, supra, 4
Cal.5th at p. 136), is a procedural rule because it prescribes the
manner of finding facts to increase the defendant’s sentence.
Before Gallardo, the trial court, as authorized by McGee, could
examine the entire record of conviction to determine the “nature
or basis” of the prior conviction based on its independent
conclusion. (McGee, supra, 38 Cal.4th at p. 706.) After Gallardo,
the trial court can only look at a subset of this record, namely,
facts that “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, at p. 136.) The Supreme Court in
Gallardo described the trial court’s error as one concerning the
“form” of judicial factfinding. (See ibid. [“the trial court engaged
in a form of factfinding that strayed beyond the bounds of the
Sixth Amendment”].) As discussed, a new rule that changes the
form or procedure of factfinding is procedural. (See Welch, supra,
136 S.Ct. at p. 1266 [a new rule “has a procedural function”
where “it alters only the procedures used to obtain the
conviction”]; see also In re Moore, supra, 133 Cal.App.4th at p. 75
[Crawford “announced a new rule of procedural constitutional
law” because before Crawford, Ohio v. Roberts (1980) 448 U.S. 56
[100 S.Ct. 2531] (Roberts) “provided the procedure for
determining whether the admission of hearsay statements
violated the confrontation clause”].)




                                19
       Cases holding Apprendi and Blakely announced procedural
rules and do not have retroactive application are instructive.9
(See People v. Anderson (2009) 47 Cal.4th 92, 118 [“the United
States Supreme Court has made it clear that Apprendi, and cases
following it, did not alter state substantive law”]; People v. Amons
(2005) 125 Cal.App.4th 855, 865 (Amons) [Blakely “is a
procedural rule that affects only the manner of determining the
defendant’s punishment”]; United States v. Sanchez-Cervantes
(9th Cir. 2002) 282 F.3d 664, 668 [“Apprendi was a new rule of
criminal procedure”]; cf. Welch, supra, 136 S.Ct. at p. 1265
[Johnson v. United States (2015) ___ U.S. ___ [135 S.Ct. 2551],
which held a federal statutory sentence enhancement was
unconstitutionally vague, “changed the substantive reach” of a
sentencing statute, “had nothing to do with the range of
permissible methods a court might use to determine whether a
defendant should be sentenced,” and “did not, for example,
‘allocate decisionmaking authority’ between judge and jury”].)
The rules announced in Apprendi and Blakely protect the
defendant’s right to have a jury determine the facts to support an
increased sentence by changing the factfinder from judge to jury.
(See Apprendi, supra, 530 U.S. at p. 466; Blakely, supra, 542 U.S.
at p. 296.) Gallardo protects the same right in the context of a
recidivist statute by a slightly different method, limiting the role
of the sentencing court and the kind of materials the court can
consider. (See Gallardo, supra, 4 Cal.5th at p. 136.) Because


9     The Apprendi opinion described the issue before the United
States Supreme Court as procedural: “The substantive basis for
New Jersey’s enhancement is . . . not at issue; the adequacy of
New Jersey’s procedure is.” (Apprendi, supra, 530 U.S. at p. 475.)




                                20
Gallardo altered ‘“the range of permissible methods for
determining whether a defendant’s conduct is punishable’”
(Welch, supra, 136 S.Ct. at p. 1265), it is procedural.
       The cases Milton cites to support his argument Gallardo
announced a substantive rule rather than a procedural rule are
distinguishable. In Montgomery v. Louisiana (2016) ___ U.S. ___
[136 S.Ct. 718] the United States Supreme Court decided that
Miller v. Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455] (Miller),
which held a sentencing scheme mandating a sentence of life
without the possibility of parole for juveniles convicted of murder
violated the Eighth Amendment, applied retroactively. The
United States Supreme Court in Montgomery explained that
Miller changed a substantive rule of criminal law because,
“[b]efore Miller, every juvenile convicted of a homicide offense
could be sentenced to life without parole. After Miller, it will be
the rare juvenile offender who can receive that same sentence.”
(Montgomery, at p. 734.) Gallardo did not alter the substantive
reach of the California sentencing laws.
       In People v. Trujeque (2015) 61 Cal.4th 227 the California
Supreme Court decided that Breed v. Jones (1975) 421 U.S. 519
(Breed), which held a state may not prosecute a juvenile for an
offense as an adult after the juvenile court has commenced
adjudicatory proceedings, applied retroactively. (Trujeque, at
p. 249.) The California Supreme Court in Trujeque explained the
rule in Breed was substantive because, “without the rule’s
retroactive application, a defendant would otherwise ‘face[ ] a
punishment that the law cannot impose upon him.’” (Trujeque, at
p. 251.) In contrast, Gallardo did not alter the scope or
applicability of section 1192.7, subdivision (c)(8), or the three
strikes law; it only limited the role of the trial court and the kind




                                 21
of evidence the court can consider to determine if a defendant’s
prior felony conviction is a serious or violent felony conviction.
(See Gallardo, supra, 4 Cal.5th at p. 136.) Thus, if the
sentencing court, after examining the facts the Illinois jury
necessarily found in convicting Milton of armed robbery and any
admissions Milton made in pleading guilty to simple robbery,
determined Milton used a gun, the sentencing court could still
apply section 1192.7, subdivision (c)(8), to increase his sentence.
Unlike Trujeque, Gallardo did not remove Milton from the reach
of the applicable sentencing laws. Gallardo only changed the
manner in which the court could determine whether the prior
convictions subjected Milton to increased punishment.

                    c.      Gallardo Is Not a Watershed Rule of
                            Criminal Procedure
        “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.’” (Whorton v. Bockting (2007) 549 U.S. 406, 418 [127
S.Ct. 1173]; see ibid. [“‘[i]t is . . . not enough . . . to say that [the]
rule’ . . . ‘is directed toward the enhancement of reliability and
accuracy in some sense’”]; Schriro, supra, 542 U.S. at p. 352
[“[t]hat 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’”].)
        Gallardo, though significant, was not a watershed rule of
criminal procedure because limiting the role of the trial court and
the scope of what the court may review and consider to impose an




                                   22
increased sentence is not a rule ‘“without which the likelihood of
an accurate conviction is seriously diminished.’” (Schriro, supra,
542 U.S. at p. 352.) The California Supreme Court in Gallardo
prohibited sentencing courts from making “independent
conclusions” about a prior conviction and excluded some of the
evidence sentencing courts used to consider in deciding whether
to increase the defendant’s punishment. (See Gallardo, supra, 4
Cal.5th at p. 136.) But the California Supreme Court did not
reach this conclusion because a sentencing court’s factfinding, or
the kind of evidence sentencing courts used to consider in
connection with that factfinding, was somehow inaccurate or
unreliable. Rather, the California Supreme Court in Gallardo
limited the role of the sentencing court in imposing increased
sentences and the materials the sentencing court can consider to
protect the defendant’s Sixth Amendment jury trial right. (See
id. at p. 135 [“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), the defendant’s Sixth Amendment rights are violated”];
cf. Whorton v. Bockting, supra, 549 U.S. at p. 419 [“Crawford
overruled Roberts because Roberts was inconsistent with the
original understanding of the meaning of the Confrontation
Clause, not because the Court reached the conclusion that the
overall effect of the Crawford rule would be to improve the
accuracy of factfinding in criminal trials”].)
       Changing how and to what extent sentencing courts may
make factual findings does not necessarily mean those factual
findings are more or less accurate than factual findings by a jury.
(See Schriro, supra, 542 U.S. at p. 356 [“[w]hen so many
presumably reasonable minds continue to disagree over whether




                                23
juries are better factfinders at all, we cannot confidently say that
judicial factfinding seriously diminishes accuracy”]; Amons,
supra, 125 Cal.App.4th at p. 866 [“[l]ike Apprendi and Ring [v.
Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428]] before it, nothing in
the Blakely opinion corrected a procedure that acutely diminished
the accuracy of previously rendered convictions or sentences”].)
The United States Supreme Court in Apprendi observed the jury
trial right has evolved to “‘guard against a spirit of oppression
and tyranny on the part of rulers’” and to stand “‘as the great
bulwark of [our] civil and political liberties.’” (Apprendi, supra,
530 U.S. at p. 477; see Blakely, supra, 542 U.S. at p. 306 [“[j]ust
as suffrage ensures the people’s ultimate control in the legislative
and executive branches, jury trial is meant to ensure their control
in the judiciary”].) The California Supreme Court in Gallardo did
not cite the need to correct or compensate for inaccuracy in
judicial factfinding.
       The record of conviction a trial court could consider before
Gallardo may have included material with questionable
reliability (such as the Illinois judge’s handwritten notes in
Milton’s case), but the sentencing court in California still had to
apply the beyond-a-reasonable-doubt standard of proof. “[T]he
Three Strikes law has always required that a qualifying prior
conviction be ‘pled and proved,’” and “courts have held or
acknowledged that the prosecution bears the burden of proving
beyond a reasonable doubt that a prior conviction is a serious or
violent felony.” (People v. Frierson (2017) 4 Cal.5th 225, 233; see
People v. Miles (2008) 43 Cal.4th 1074, 1082, 1094 [“[t]he People
must prove all elements of an alleged sentence enhancement
beyond a reasonable doubt”]; People v. Hudson (2018) 28
Cal.App.5th 196, 203 [the prosecution must prove beyond a




                                24
reasonable doubt that the defendant’s prior conviction was a
serious or violent felony].) Because Gallardo did not change the
prosecution’s burden to prove the truth of allegations supporting
an increased sentence, the rule announced in Gallardo did not
result in a significant increase in accuracy. Gallardo is not
necessary to prevent an “‘“‘impermissibly large risk’”’” (Whorton
v. Bockting, supra, 549 U.S. at p. 418) of an inaccurate conviction.
(See id. at at p. 420 [“the question here is not whether Crawford
resulted in some net improvement in the accuracy of fact finding
in criminal cases,” but “‘whether testimony admissible under
Roberts is so much more unreliable . . . that the Crawford rule is
“one without which the likelihood of an accurate conviction is
seriously diminished”’”].)
       Nor does the rule in Gallardo ‘“alter our understanding of
the bedrock procedural elements essential to the fairness of a
proceeding.’” (Whorton v. Bockting, supra, 549 U.S. at p. 418.) In
order to qualify as a bedrock procedural rule, “a new rule must
itself constitute a previously unrecognized bedrock procedural
element that is essential to the fairness of a proceeding. In
applying this requirement, we . . . have looked to the example of
Gideon [v. Wainwright (1963) 372 U.S. 335 [83 S.Ct. 792]] and
‘we have not hesitated to hold that less sweeping and
fundamental rules’ do not qualify.” (Whorton, at p. 421; see id. at
p. 420 [“[t]he Crawford rule also did not ‘alter our understanding
of the bedrock procedural elements essential to the fairness of a
proceeding’”].) Indeed, Apprendi and Blakely (an extension of
Apprendi) did not announce “bedrock” rules. (See Amons, supra,
125 Cal.App.4th at p. 867 [“Blakely did not proclaim . . . a
‘bedrock principle’”]; United States v. Sanchez-Cervantes, supra,
282 F.3d at p. 669 [rule established in Apprendi is not “a bedrock




                                25
procedural element”].) If Apprendi, Blakely, and Crawford did
not alter “bedrock procedural rules” fundamental to a fair
proceeding, Gallardo didn’t either.

              3.     Gallardo Is Not Retroactive Under Johnson
       Under Johnson, supra, 3 Cal.3d 404 “[t]he retrospective
effect of a law-making opinion 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.”’ [Citations.] It is also clear
that the 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.” (Id. at p. 410; see In re Thomas, supra, 30
Cal.App.5th at p. 763 [“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”].)
       “Fully retroactive decisions are seen as vindicating a right
which is essential to a reliable determination of whether an
accused should suffer a penal sanction. . . . [¶] On the other
hand, decisions which have been denied retroactive effect are
seen as vindicating interests which are collateral to or relatively
far removed from the reliability of the fact-finding process at
trial.” (Johnson, supra, 3 Cal.3d at pp. 410-412.) “If the new rule
aims . . . 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




                                26
goes to the integrity of the factfinding process [citation] or
‘implicates questions of guilt and innocence’ [citation],
retroactivity is the norm.” (In re Thomas, supra, 30 Cal.App.5th
at p. 763; see People v. Guerra (1984) 37 Cal.3d 385, 402
[“‘[w]here the major purpose of new constitutional doctrine is to
overcome an aspect of the criminal trial that substantially
impairs its truth-finding function and so raises serious questions
about the accuracy of guilty verdicts in past trials, the new rule
has been given complete retroactive effect’”].)

                  a.     Gallardo Established a New Rule Under
                         State Law
       “Decisions establish ‘new rules’ when they depart from
clear contrary rules established in prior judicial decisions. In
practice, that means decisions establish new rules when they (1)
explicitly overrule a precedent of the California Supreme Court,
or (2) disapprove a practice implicitly sanctioned by prior
decisions of the Supreme Court, or (3) disapprove a long-standing
and widespread practice expressly approved by a near-
unanimous body of lower court authorities.” (In re Thomas,
supra, 30 Cal.App.5th at p. 761; see People v. Guerra, supra, 37
Cal.3d at p. 401.) Gallardo established a new rule under state
law because it “disapproved” McGee and the practice of judicial
factfinding to support an increased penalty. (Gallardo, supra, 4
Cal.5th at p. 125; see People v. Saez (2015) 237 Cal.App.4th 1177,
1199 [“[w]e recognize that for years trial courts in California have
been allowed to determine whether a prior conviction qualifies as
a strike by looking to the ‘entire record of conviction’”].)




                                27
                  b.     Gallardo Did Not Vindicate a Right
                         Essential to the Reliability of the
                         Factfinding Process
       As stated in connection with the federal retroactivity test,
by limiting the sentencing court’s role and limiting the evidence
the court can consider in determining whether to increase the
defendant’s punishment, the California Supreme Court in
Gallardo did not impugn the accuracy of factfinding by trial
courts. The Supreme Court in Gallardo held that independent
inquiry and factfinding by sentencing courts were problematic
because such actions “invaded[d] the jury’s province.” (Gallardo,
supra, 4 Cal.5th at p. 136.) As discussed, however, judicial
factfinding is not inherently unreliable or less reliable than jury
factfinding. (See Schriro, supra, 542 U.S. at p. 356; In re
Consiglio (2005) 128 Cal.App.4th 511, 515; see also Johnson,
supra, 3 Cal.3d at p. 412 [“although . . . cases recognized that
juries may serve to prevent arbitrariness and repression, they did
not rest on any assumption that nonjury trials are more likely
than jury trials to be unfair or unreliable”].)10



10     Also as discussed in connection with the federal test for
retroactivity, Gallardo did not raise the standard of proof for
proving the truth of prior conviction allegations to support an
increased sentence. Given that before Gallardo the prosecution
had to prove beyond a reasonable doubt a prior conviction
qualified as a serious or violent felony, we cannot say the “‘major
purpose’” of Gallardo was to “‘overcome an aspect of the criminal
trial that substantially impair[ed] . . . truth-finding function and
so raise[d] serious questions about the accuracy of guilty verdicts
in past trials.’” (People v. Guerra, supra, 37 Cal.3d at p. 402.)




                                 28
       Recent cases holding Sanchez is not retroactive support the
conclusion that Gallardo is not retroactive. In In re Thomas,
supra, 30 Cal.App.5th 744 the court explained that hearsay
evidence of a defendant’s gang membership, previously
admissible as the basis for a gang expert’s opinion, did not
“raise[ ] doubts about the fundamental fairness of past trials” or
“threaten[ ] to lead to the introduction of corrupt evidence
supporting conviction.” (Id. at p. 765.) The court in Thomas
stated that after Sanchez—because the expert could simply
present his or her opinion without stating its hearsay basis, or
the prosecution could call another witness “to provide the
foundation for the expert’s opinion”— the connection of the
Sanchez rule to “the factuality of convictions is attenuated and
does not raise serious questions about the accuracy of guilty
verdicts in past trials.” (In re Thomas, at pp. 765-766; see In re
Ruedas, supra, 23 Cal.App.5th at p. 800 [after Sanchez, the
prosecutor can call the hearsay declarant as a witness or ask the
expert to describe the hearsay information that formed the basis
of his or her opinion in general terms].)
       Similarly, as the Supreme Court in Gallardo recognized, a
prosecutor can “demonstrate to the trial court, based on the
record of the prior plea proceedings, that defendant’s guilty plea
encompassed a relevant admission about the nature of her
crime.” (Gallardo, supra, 4 Cal.5th at p. 139.) Thus, if Gallardo
applied retroactively to Milton, the prosecutor on remand could
review the Illinois record for findings the Illinois jury necessarily
made in convicting him of armed robbery, as well as factual
admissions Milton made (such as the “stipulated facts” to which
the Illinois sentencing court referred) in pleading guilty to simple
robbery, to prove Milton used a gun in committing either or both




                                 29
crimes. Although under Gallardo the People could not use the
Illinois judge’s handwritten notes or statements to prove Milton
used a gun, the People could prove Milton used a gun by other
means.11

                   c.     Applying Gallardo Retroactively Would
                          Be Disruptive
       Even if the question of retroactivity were “a close one” (In
re Johnson, supra, 3 Cal.3d at p. 410), the final factor of the state
test for retroactivity weighs against retroactive application. As
discussed, at and after the time of Milton’s sentencing California
courts affirmed sentence enhancements based on factual findings
by sentencing courts. (See Gallardo, supra, 4 Cal.5th at p. 125
[“For some time, California cases have held that . . .
determinations [of whether a prior conviction qualified as a


11     The cases Milton cites are distinguishable because they
involved substantive changes to the law that implicated the
defendant’s guilt and innocence. (See Johnson, supra, 3 Cal.3d at
p. 416 [Leary v. United States (1969) 395 U.S. 6 [89 S.Ct. 1532],
which held a defendant’s assertion of the Fifth Amendment
privilege against self-incrimination is a complete defense to a
prosecution under a federal criminal statute, was retroactive
because “Leary . . . involves the question of guilt and innocence as
well as Fifth Amendment values which are collateral to guilt”]; In
re Lucero (2011) 200 Cal.App.4th 38, 41, 46 [People v. Chun
(2009) 45 Cal.4th 1172, which held “the crime of shooting at an
occupied vehicle . . . can no longer provide a predicate for
application of the felony-murder rule,” was retroactive because
the defendant “might have been acquitted of murder but for
application of the felony-murder rule”].)




                                 30
serious felony] are to be made by the court, rather than the jury,
based on a review of the record of the prior criminal
proceeding.”].) 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 to ascertain “what facts were
necessarily found or admitted in the prior proceeding.”
(Gallardo, at p. 138; cf. In re Thomas, supra, 30 Cal.App.5th at
p. 766 [“applying Sanchez retroactively to final cases 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,” which “would be too disruptive and costly”]; In re
Ruedas, supra, 23 Cal.App.5th at p. 801 [“It cannot be gainsaid
that it would be exceedingly disruptive and costly to retry the
many thousands of cases that were adjudicated under the old
[pre-Sanchez] framework.”].)

                         DISPOSITION

      The petition is denied.




             SEGAL, J.



We concur:




             PERLUSS, P. J.            ZELON, J.




                                31
