Filed 6/5/20
                     CERTIFIED FOR PUBLICATION

        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                        FIRST APPELLATE DISTRICT
                               DIVISION FOUR


                                               A158376
 In re STEVEN L. HADEN,
                                               (San Mateo County
         on Habeas Corpus.                     Super. Ct. No. SC042504)

       In People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), our Supreme
Court disapproved its prior decision in People v. McGee (2006) 38 Cal.4th 682,
(McGee) and held that a trial court considering whether to impose a sentence
enhancement based on a defendant’s prior conviction may not make factual
findings about the defendant’s conduct to impose the enhancement.
Petitioner Steven L. Haden sought habeas relief in the Supreme Court based
on Gallardo, claiming that in 1999 the trial court treated two North Dakota
robbery convictions as strikes in contravention of Gallardo’s holding. The
Supreme Court issued an order to show cause returnable to this court to
decide whether Haden is entitled to relief under Gallardo, and whether
Gallardo applies retroactively to final convictions.
       Recently, in In re Milton (2019) 42 Cal.App.5th 977 (Milton), the
Second District Court of Appeal, in a thorough analysis of the retroactivity
issue, held Gallardo does not apply retroactively to final convictions. We
agree with Milton. Because Gallardo does not apply retroactively to Haden’s
conviction, which became final almost 20 years ago, we need not determine
whether he would be entitled to relief under that decision, and we will deny
his petition.



                                       1
                                   BACKGROUND
        In 1998, Haden pleaded no contest to infliction of corporal injury on a
spouse (Pen. Code, § 273.5, subd. (a))1 and admitted a special allegation of
personal use of a deadly weapon (former § 1192.7, subd. (c)(23)). After the
plea, the trial court held a court trial on the special allegation that, under the
Three Strikes Law (see §§ 667, 1170.12, subd. (c)(2)), petitioner suffered two
prior strikes based on two robbery convictions in North Dakota. The court
found the special allegations true and sentenced petitioner to 25 years to life
in prison.
        Haden appealed, arguing the North Dakota robbery convictions could
not constitute strikes for sentencing purposes. We rejected Haden’s
argument and affirmed the conviction. (People v. Haden (Jan. 25, 2000,
A086575) [nonpub. opn.].) Although the elements of robbery under North
Dakota law differed from those under California law, so that it could not be
determined from mere fact of conviction that Haden had committed strikes
under California law, we explained that it was reasonable for the trial court
to determine from the record in Haden’s North Dakota cases that the two
robberies “were the equivalent of California robberies.” (Ibid.) The Supreme
Court denied Haden’s petition for review (May 10, 2000, S086458).
        Over the next 15 years, Haden sought habeas relief on several
occasions, both in the trial court and in this court. He was denied relief each
time.
        In October 2015, Haden filed another habeas petition in this court
(A146612), arguing that under the United States Supreme Court’s then-
recent decision in Descamps v. United States (2013) 570 U.S. 254 (Descamps),


        1   Unless otherwise noted, all statutory references are to the Penal
Code.

                                           2
the trial court made improper factual findings when treating the North
Dakota convictions as strikes. We denied the petition after concluding
Descamps “does not apply retroactively to this case which has been final for
more than a decade.”
      Haden then sought habeas relief in the Supreme Court (S230939),
arguing that the North Dakota robbery convictions did not qualify as strikes
under Descamps. In March of 2016, the Supreme Court denied the petition
“without prejudice to any relief to which petitioner might be entitled after
this court decides People v. Gallardo, S231260.”
      The Supreme Court issued its opinion in Gallardo, supra, 4 Cal.5th 120
on December 21, 2017. Disapproving its prior decision in People v. McGee,
supra, 38 Cal.4th 682, the 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.) Such an inquiry, the court explained,
violates a defendant’s Sixth Amendment right to a jury trial because it
“invades the jury’s province by permitting the court to make disputed
findings about ‘what a trial showed, or a plea proceeding revealed, about the
defendant’s underlying conduct.’ ” (Ibid.) “The court’s role is, rather, 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.)
      On May 7, 2018, Haden filed the instant petition for writ of habeas
corpus in the Supreme Court (S248706). He argued the trial court’s
imposition of the North Dakota robberies as strikes in 1998 contravened



                                       3
Gallardo because the court examined the record from the North Dakota cases
to determine the factual nature of the prior convictions. After the Attorney
General submitted an informal response, the Supreme Court transferred the
petition to this court with the following order: “The Secretary of the
Department of Corrections and Rehabilitation is ordered to show cause
returnable before the Court of Appeal, First Appellate District, Division Four,
when the matter is placed on calendar, why petitioner 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.” The Attorney General has filed a return opposing Haden’s
petition, and Haden, through appointed counsel, has filed a traverse. The
matter is now before us for decision.
                                 DISCUSSION
      Haden argues that Gallardo should apply retroactively even though his
conviction was final at the time Gallardo was decided. The retroactivity
issue was carefully considered in Milton, under circumstances similar in all
relevant respects to the situation here. The Second Appellate District’s
recent opinion in that case analyzes the issue at length, and we see no reason
to repeat that analysis here. Haden contends that Milton was wrongly
decided and should not be followed, but each of his arguments was considered
and rejected in that opinion. We agree with the analysis and conclusions of
the Second Appellate District and, like the Fourth Appellate District, follow
its lead in holding that Gallardo does not apply retroactively to final
convictions. (See In re Scott (June 4, 2020, D076909) ___ Cal.App.5th ___
[2020 Cal.App. Lexis 486, at p. *2] [following Milton and holding Gallardo
does not apply retroactively to final convictions].)




                                        4
      As the court in Milton explained, California courts generally apply two
separate tests—one federal and one state—when deciding whether new
constitutional rules of criminal procedure apply retroactively to final
convictions. (Milton, supra, 42 Cal.App.5th at pp. 988-989.) The court began
its analysis under the federal standard derived from Teague v. Lane (1989)
489 U.S. 288. 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.” ’ ” (Milton, supra, at p. 988.)
“ ‘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.’ ” (Id. at p. 989.)
      The Milton court then concluded Gallardo is not retroactive under the
federal standard. The court began its analysis by explaining why Gallardo
established a new rule under federal law and was not merely an extension of
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). (Milton, supra,
42 Cal.App.5th at p. 990.) Gallardo “did not merely apply the holding of
Apprendi to the recidivist sentencing scheme in California.” (Milton, at
p. 991.) Instead, Gallardo “drew heavily on Descamps[, supra, 570 U.S. 254]
and Mathis [v. United States (2016) ___ U.S. ___ [136 S.Ct. 2243] in holding a
jury must find the facts that support increased punishment based on
recidivism.” (Milton, at p. 991.)
      Next, the Milton court explained that the new rule from Gallardo is
procedural, not substantive, “because it prescribes the manner of finding
facts to increase the defendant’s sentence.” (Milton, supra, 42 Cal.App.5th at



                                         5
p. 992.) “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. [Citation.] 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.’ ” (Milton,
at p. 992.)
      Finally, the Milton court determined that “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 increased sentence is not a rule ‘ “without which the
likelihood of an accurate conviction is seriously diminished.” ’ ” (Milton,
supra, 42 Cal.App.5th at p. 994.) “[T]he 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.”
(Milton, at p. 995.) Having concluded that Gallardo announced a procedural
rule that fell short of being a “watershed rule of criminal procedure,” the
court in Milton concluded that under the federal standard Gallardo does not
apply retroactively to final convictions. (Milton, at p. 996.)
      The Milton court then analyzed whether Gallardo applies retroactively
to final convictions under the California standard established in In re
Johnson (1970) 3 Cal.3d 404 (Johnson). The court explained that under
Johnson, “ ‘[f]ully retroactive decisions are seen as vindicating a right which



                                        6
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.’ ” (Milton, supra, 42 Cal.App.5th at p. 997.) “ ‘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 goes to the integrity of the factfinding process
[citation] or “implicates questions of guilt and innocence” [citation],
retroactivity is the norm.’ ” (Ibid.)
      Applying Johnson’s state-law standard, the Milton court once again
concluded Gallardo is not retroactive to final convictions. First, the court
reiterated that Gallardo “established a new rule under state law because it
‘disapproved’ McGee and the practice of judicial factfinding to support an
increased penalty.” (Milton, supra, 42 Cal.App.5th at p. 997.) Next, the court
explained why Gallardo did not vindicate a right essential to the reliability of
a factfinding process: “[B]y 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.
[Citation.] As discussed, however, judicial factfinding is not inherently
unreliable or less reliable than jury factfinding.” (Milton, at p. 998.) Finally,
the court stated that even if the question of retroactivity were a close one, the
disruption to courts caused by retroactive application of Gallardo weighed
against retroactivity: “Applying Gallardo retroactively would cause



                                         7
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.’ ” (Milton, at p. 999.)
      In In re Brown (2020) 45 Cal.App.5th 699, a divided division of the
Fourth Appellate District disagreed with Milton and concluded that Gallardo
is retroactive to final convictions. In reaching this conclusion, the court
reasoned, under the state law retroactivity standard, that the Gallardo
analysis “goes to the integrity of the factfinding process when the court
determines whether a prior conviction qualifies as a strike. The primary
purpose of the Gallardo rule is to promote reliable determinations of a
defendant’s guilt or innocence in committing underlying acts, apart from the
elements of a conviction, required to impose a strike.” (In re Brown, supra, at
p. 718.) We disagree. As the court explained in Milton, the rule from
Gallardo is grounded upon protecting the Sixth Amendment right to a jury
trial, not on the unreliability of judicial factfinding. (See Milton, supra, 42
Cal.App.5th at p. 995.) “[B]y 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.” (Id. at p. 998.) Indeed,
the United States Supreme Court has rejected the argument that judges are
less reliable than jurors in holding that Apprendi, from which the new
Gallardo rule emanates, does not apply retroactively to final convictions.
(See Schriro v. Summerlin (2004) 542 U.S. 348, 356 [“When so many
presumably reasonable minds continue to disagree over whether juries are
better factfinders at all, we cannot confidently say that judicial factfinding
seriously diminishes accuracy.”].) Hence, we agree with the court in Milton



                                        8
and the dissent in Brown that the new rule prescribed in Gallardo is not a
change essential to minimize convictions of the innocent, and thus does not
apply retroactively to convictions that were final when Gallardo was decided.
      For that reason, as well as the other reasons more fully set forth in
Milton, Haden’s petition must be denied.2 Having reached this conclusion,
we need not address whether Haden would be entitled to relief under
Gallardo if the decision were retroactive.3
                               DISPOSITION
      The petition for writ of habeas corpus is denied.


                                              POLLAK, P. J.

I CONCUR:

BROWN, J.




      2
       While we do not dispute Haden’s contention that a sentence imposed
in excess of a court’s jurisdiction may be challenged in habeas corpus
proceedings, his sentence was imposed in compliance with then-existing
procedures well within the trial court’s jurisdiction.
      3 We decline to address the Attorney General’s argument that Haden’s
petition was untimely because the issue is beyond the scope of the order to
show cause issued by the Supreme Court.

                                       9
TUCHER, J., Concurring.
      I agree with the majority and In re Milton (2019) 42 Cal.App.5th 977
(Milton) in their application of the federal rule on retroactivity. The standard
articulated in Teague v. Lane (1989) 489 U.S. 288 (Teague) almost never
allows for retroactive application on collateral review of a new rule of
criminal procedure (Welch v. United States (2016) __ U.S. __ [136 S.Ct. 1257,
1265]), and I agree that the rule set forth in People v. Gallardo (2017)
4 Cal.5th 120 (Gallardo) is both new and procedural. But federal law also
leaves room for states to be more generous in retroactively applying new
procedural rules, even where a new rule is based on federal constitutional
principles. (In re Gomez (2009) 45 Cal.4th 650, 655, fn. 3 (Gomez).) Applying
the approach to retroactivity that the California Supreme Court took in In re
Johnson (1970) 3 Cal.3d 404 (Johnson), I conclude that Gallardo is fully
retroactive to Haden’s case. But applying Gallardo to the facts of this case,
Haden is not entitled to relief.
                                        I.
      Fifty years ago, the California Supreme Court set forth in Johnson a
test for determining the retroactive effect of a new precedent. (Johnson,
supra, 3 Cal.3d at pp. 410–411.) The Johnson approach looks primarily to
“ ‘ “the purpose to be served by the new standards” ’ ” a case adopts, giving
full retroactive effect to a decision that “vindicat[es] a right which is essential
to a reliable determination of whether an accused should suffer a penal
sanction.” (Ibid.) By contrast, precedents that promote interests “collateral
to or relatively far removed from the reliability of the fact-finding process at
trial” are not retroactive. (Id. at pp. 411–412.) In cases where this purpose
enquiry is a close question, courts should also consider “the extent of the
reliance by law enforcement authorities on the old standards” and “the effect



                                         1
on the administration of justice of a retroactive application” of the new
precedent. (Id. at pp. 410, 413.)
      Johnson, when it was decided, reflected contemporaneous federal law,
and in illustrating its approach to retroactivity, the California Supreme
Court drew on federal cases. (Johnson, supra, 3 Cal.3d at pp. 410–411.) For
example, U.S. Supreme Court precedent gave full retroactive effect to rules
designed to secure the assistance of counsel at various stages of a criminal
prosecution (Stovall v. Denno (1967) 388 U.S. 293, 297), to require a judge
rather than a jury to decide the voluntariness of a defendant’s confession
(Jackson v. Denno (1964) 378 U.S. 368, 376), and to protect a defendant’s
right to cross-examine witnesses (Berger v. California (1969) 393 U.S. 314
[excluding preliminary hearing testimony of absent witness without good-
faith effort to secure attendance at trial]; Roberts v. Russell (1968) 392 U.S.
293 [excluding jointly-tried codefendant’s extrajudicial statement]). All of
these were precedents deemed to enhance the reliability of fact-finding at
trial, our Supreme Court explained. (Johnson, at p. 411.)
      Johnson also reviewed U.S. Supreme Court cases that had denied
retroactive effect to new judicial precedents. For example, Mapp v. Ohio
(1961) 367 U.S. 643 and other cases excluding illegally-seized evidence were
not retroactive because such precedents “have no bearing on guilt or the
reliability of the process by which it is tested.” (Johnson, supra, 3 Cal.3d at
p. 412 [discussing Linkletter v. Walker (1965) 381 U.S. 618 and Desist v.
United States (1969) 394 U.S. 244].) The exclusionary rule is instead
designed to deter the constable’s blunders. The once-new rules of Miranda v.
Arizona (1966) 384 U.S. 436 and Escobedo v. Illinois (1964) 378 U.S. 478 were
not retroactive “because those cases seek to protect the right against self-
incrimination with prophylactic measures,” whereas the issue that affects the



                                        2
reliability of a defendant’s confession—whether it was voluntary—remained
subject to collateral review. (Johnson, at p. 412 [discussing Johnson v. New
Jersey (1966) 384 U.S. 719].) And cases requiring juries, rather than judges,
to decide serious criminal cases were not retroactive because “they did not
rest on any assumption that nonjury trials are more likely than jury trials to
be unfair or unreliable.” (Johnson, at p. 412 [discussing DeStefano v. Woods
(1968) 392 U.S. 631 (DeStefano)].)
      The issue the California Supreme Court decided in Johnson was
whether to give retroactive effect to Leary v. United States (1969) 395 U.S. 6,
a case that effectively prevented the government from prosecuting a person’s
failure to pay the federal Marijuana Transfer Tax. (Johnson, supra, 3 Cal.3d
at p. 409.) A person seeking to pay this tax was required to “identify[]
himself as a transferee of marijuana,” which created an unacceptable “ ‘risk
of self-incrimination,’ ” according to Leary. (Johnson, at p. 409.) Although
Johnson’s conviction for failing to pay the tax was long since final—as was a
subsequent conviction alleging the federal tax conviction as a sentencing
enhancement—our Supreme Court applied Leary to strike the prior
conviction. (Ibid.) The Johnson court reasoned that Leary excludes the
incriminating evidence and therefore renders “innocent as a matter of law”
any defendant who invokes the protections of the Fifth Amendment, so
defendant Johnson was “entitled to a retroactive application of Leary.”
(Johnson, at p. 416.)
      The Attorney General asserts that Johnson and In re Joe R. (1980) 27
Cal.3d 496 set forth current California law regarding the retroactivity of new
cases, and Haden agrees. Joe R. articulates the same standard as Johnson
(Joe R., at p. 511), reaching a different result only because Joe R. examines
the retroactivity of a Fourth Amendment case. As with other applications of



                                       3
the exclusionary rule, Joe R. reasons that the new precedent’s “aim was not
to protect the integrity of the factfinding process” but “ ‘to deter illegal
conduct by law enforcement officials.’ ” (Id. at pp. 511–512, italics omitted.)
      Applying the state-law standard of Johnson to the California Supreme
Court’s decision in Gallardo, the majority concludes Gallardo is not
retroactive because it does “not vindicate a right essential to the reliability of
a factfinding process.” (Maj. opn. ante, at p. 7.) To explain why I disagree
with the majority’s conclusion, let me start with our common ground. I agree
with the majority that Gallardo does not “ ‘impugn the accuracy of factfinding
by trial courts.’ ” (Maj. opn. ante, at p. 7.) Nor do I. If Gallardo had simply
transferred from judge to jury the responsibility to find certain facts
underlying a prior conviction, I would hold that the new rule was not
retroactive. Johnson’s embrace of DeStefano would require that result.
      But Gallardo does something quite different. Instead of transferring
responsibility for finding certain facts from judge to jury, it withdraws from
the sentencing process entirely any finding of facts beyond “those facts that
were established by virtue of the [prior] conviction itself.” (Gallardo, supra,
4 Cal.5th at p. 136.) Only those facts the prior “jury was necessarily required
to find to render a guilty verdict, or that the defendant admitted as the
factual basis for a guilty plea,” may be taken to characterize the prior
conviction. (Ibid.) Gallardo allows neither judge nor jury in the present case
to supplement such previously-determined facts with new facts, whether
gleaned from a review of the prior preliminary hearing transcript or
otherwise determined. Supplementary fact-finding as to what were, at the
time of the prior conviction, merely “ ‘amplifying but legally extraneous
circumstances’ ” is simply not allowed. (Gallardo, at p. 133.)




                                         4
      Justice Chin’s disagreement on this point drove him to dissent from
Gallardo’s discussion of remedy, and the court’s response to his dissent
reveals the breadth of interests at stake. The dissent advocates for
transferring to the jury the supplementary fact-finding previously
undertaken by the sentencing judge (Gallardo, supra, 4 Cal.5th at p. 140
(conc. & dis. opn. of Chin, J.)), a remedy the court considered inadequate:
“[S]uch a proceeding—in which a jury would be impaneled for the sole
purpose of reading the preliminary hearing transcript in defendant’s prior
assault case—would raise significant constitutional concerns,” said the court.
(Id. at p. 138.) Elaborating, Gallardo explains that the Constitution requires
“facts that are used to increase the defendant’s maximum possible sentence”
to be “proved in the same way” as are elements of the offense, namely at a
jury trial, by proof beyond a reasonable doubt, with all “the procedural
safeguards, such as the Sixth Amendment right to cross-examine one’s
accusers, that normally apply in criminal proceedings.” (Id. at pp. 138–139.)
A paper review of the sort the dissent proposes “might involve a jury, but it
would not be much of a trial.” (Id. at p. 139.)
      Because of different constitutional concerns, the Gallardo court also
rejected as a remedy remanding to let a jury hear live testimony from
witnesses to the prior offense. Although live testimony would allow for cross-
examination, “forcing the parties to relitigate long-ago events” would
“threaten[] defendants with ‘harm akin to double jeopardy and denial of
speedy trial,’ ” the court explained. (Gallardo, supra, 4 Cal.5th at p. 138.)
These constitutional interests animated precedent that neither the court nor
the parties questioned in Gallardo, precedent that limited sentencing courts
to considering the record of conviction on a prior offense. (Ibid. [discussing
People v. Guerrero (1988) 44 Cal.3d 343].)



                                        5
      All of this matters because Johnson requires us to identify “ ‘ “the
purpose to be served by the new standards” ’ ” Gallardo imposes. (Johnson,
supra, 3 Cal.3d at pp. 410–411.) How better to determine the purpose of a
new constitutional rule than to examine what remedy the new rule requires?
If Milton’s and the majority’s characterization of the interests at stake were
accurate, then Justice Chin’s proposal to transfer from judge to jury the task
of reviewing the record of conviction would have been fully adequate to right
the constitutional wrong identified in Gallardo. Instead, we see a much
broader purpose at work. The court sought to ensure that all facts “used to
increase the defendant’s maximum possible sentence” are established in a
manner that respects the defendant’s right to a jury trial characterized by all
“the procedural safeguards, such as the Sixth Amendment right to cross-
examine one’s accusers, that normally apply in criminal proceedings.”
(Gallardo, supra, 4 Cal.5th at pp. 138–139.)
      Having thus identified the full range of constitutional interests that
Gallardo seeks to protect, it seems a simple matter to conclude that the case
“vindicat[es] a right which is essential to a reliable” fact-finding. (Johnson,
supra, 3 Cal.3d at p. 411.) Consider just one of the “procedural safeguards”
Gallardo mentions, the right to cross-examination. (Gallardo, supra,
4 Cal.5th at p. 139.) Johnson itself recognizes that other cases protecting
aspects of the right to confront and cross-examine witnesses had been held to
be fully retroactive. (Johnson, at p. 411 [discussing Berger v. California,
supra, 393 U.S. 314 and Roberts v. Russell, supra, 392 U.S. 293].)
      Moreover, in addressing the facts of the case before it, Gallardo makes
clear that its new rule is squarely aimed at the reliability of fact-finding. In
sentencing defendant Gallardo, the trial court had been required to
determine whether her prior conviction under former Penal Code section 245,



                                        6
subdivision (a)(1) (section 245(a)(1)) involved a deadly weapon. The trial
court found that it did, relying solely on “a transcript from a preliminary
hearing at which the victim testified that defendant had used a knife during
their altercation.” (Gallardo, supra, 4 Cal.5th at p. 136.) This was error, the
Supreme Court explained: “A sentencing court reviewing that preliminary
[hearing] transcript has no way of knowing whether a jury would have
credited the victim’s testimony had the case gone to trial. And at least in the
absence of any pertinent admissions, the sentencing court can only guess at
whether, by pleading guilty to a violation of [section 245(a)(1)], defendant was
also acknowledging the truth of the testimony indicating that she had
committed the assault with a knife.” (Gallardo, at p. 137.) In other words,
the sentencing court’s fact-finding was insufficiently reliable—not because a
judge is less capable of sorting fact from fiction than would be a jury—but
because vital information was missing: Would a jury in the prior case “have
credited” the victim’s testimony about a knife? Did the defendant
“acknowledg[e] the truth” of that particular testimony? Left to “guess at” the
answers to these questions, the sentencing court could not reliably determine
the dispositive fact. (Ibid.)
      Because the rule of Gallardo goes to the reliability of fact-finding at
sentencing, I conclude it is retroactive to this case. The three-part rule of
Johnson would have us also consider the extent to which law enforcement
has relied on pre-Gallardo law and, relatedly, the disruptiveness inherent in
applying the new rule retroactively, but these factors “are of significant
relevance only when the question of retroactivity is a close one after the
purpose of the new rule is considered.” (Johnson, supra, 3 Cal.3d at p. 410.)
And even if the question of retroactivity were a close one in light of Gallardo’s
purpose, I conclude these two factors do not weigh heavily against



                                        7
retroactivity. The Attorney General does not even mention reliance interests
or the burden of disruption in arguing that Gallardo should not be
retroactively applied.
      I acknowledge that some number of defendants are serving time on
final judgments that will be subject to challenge if Gallardo is retroactive.
This group includes defendants whose sentences were enhanced for an out-of-
state prior from a state that defines certain crimes more broadly than does
California, and defendants whose sentences were enhanced for prior
convictions under former section 245(a)(1). But when the California Supreme
Court decided another case with a similar potential to disrupt final
judgments, it easily determined its new rule was retroactive. People v.
Tenorio (1970) 3 Cal.3d 89, decided just two months before Johnson,
invalidated on separation of powers grounds a statute that prevented trial
courts in narcotics cases from striking prior convictions except on motion of
the district attorney. (Tenorio, at pp. 91, 95.) After deciding the merits of the
challenge, the court added in a footnote, “[i]nasmuch as today’s decision
relates only to sentencing and will not require any retrials, . . . it should enjoy
fully retroactive effect.” (Id. at p. 95, fn. 2.) By analogy here, Gallardo
relates only to sentencing, will not require any retrials, and by its own terms
allows sentencing courts to consider only such documents as are already in
the record on the prior conviction (and likely in the record on the offense of
conviction as well).
      The relative ease with which Gallardo may be retroactively applied
comes into stark relief when we consider the far more disruptive effect of a
rule whose effects are not confined to sentencing. A sister court declined
retroactively to apply the limits on expert testimony that our Supreme Court
set forth in People v. Sanchez (2016) 63 Cal.4th 665, 686 because doing so



                                        8
“would be too disruptive and costly” to the administration of justice. (In re
Thomas (2018) 30 Cal.App.5th 744, 766.) Retroactivity for Sanchez would
require “reopening thousands of cases in which the prosecution” had
reasonably relied on the prior rule, and in the ensuing years necessary
evidence “likely has gone stale.” (Id. at pp. 766–767.) By contrast here,
before Gallardo the prosecution would have relied on paper records to prove
certain facts about a prior conviction. After Gallardo, the court may look no
further than those same paper records, or perhaps a subset of them, to decide
whether a sentencing enhancement is proper. Thus, the reliance of law
enforcement on pre-Gallardo case law and the disruptiveness inherent in
retroactivity do not seem so extreme as to deny Gallardo retroactive effect.
      The foregoing discussion comes with a significant caveat. I have
assumed the parties are correct that Johnson is still good law. By 1989 the
United States Supreme Court had moved decisively away from the purpose-
based approach of Johnson,1 replacing it with an approach that asks first
whether the legal rule in question was “dictated by precedent existing at the
time the defendant’s conviction became final,” or could properly be considered
a “new rule.” (Teague, supra, 489 U.S. at p. 301, italics omitted.) Then,
whether to apply a new rule retroactively depends on whether defendant’s
conviction was final before the rule was announced and, if final, whether the
new rule was substantive or procedural. Rules that are not new, or that are
substantive, are fully retroactive; rules that are both new and procedural are,
with vanishingly few exceptions, retroactive only to cases pending on direct

      1Even in 1970, the California Supreme Court’s approach to
retroactivity appears to have been more generous in practice than the federal
approach. (Compare Mackey v. United States (1971) 401 U.S. 667 [two
decisions excluding gambling tax returns as self-incriminating are not
retroactive] with Johnson, supra, 3 Cal.3d at p. 416 [decision excluding
marijuana tax return as self-incriminating is retroactive].)

                                       9
appeal. (Teague, supra, 489 U.S. at pp. 310–311; Welch v. United States
(2016) __ U.S. __ [136 S.Ct. 1257, 1265].)
      The California Supreme Court has never adopted Teague, although it
has supplemented Johnson with principles that parallel Teague. For
example, without reference to Johnson or Teague our Supreme Court has
held that new rules that are substantive rather than procedural should be
applied retroactively, even to cases that are final for purposes of appeal. (See
In re Martinez (2017) 3 Cal.5th 1216, 1222–1223 [People v. Chiu (2014) 59
Cal.4th 155, narrowing aider and abettor liability for premeditated homicide,
is fully retroactive]; People v. Mutch (1971) 4 Cal.3d 389, 395–396 [finality is
no bar to applying new kidnapping precedent that construes “a substantive
definition of crime duly promulgated by the Legislature”].)
      The California Supreme Court has also applied Teague in a case where
it knew that federal courts would have found retroactivity under Teague. The
question in Gomez was whether Cunningham v. California (2007) 549 U.S.
270 was retroactive to cases that became final shortly before Cunningham
was decided. (Gomez, supra, 45 Cal.4th at p. 653.) The court held that
Cunningham was retroactive because, after Blakely v. Washington (2004) 542
U.S. 296, the constitutional writing was on the wall, such that Cunningham
could no longer be considered a truly new rule. (Gomez, at p. 660.) State
courts should “provide a remedy on collateral review of a final judgment if
that remedy would be available in the federal courts,” and federal courts
would have applied Teague to find Cunningham retroactive, our high court
reasoned. (Gomez, at pp. 655–656.) The logic of Gomez renders Teague a sort
of one-way ratchet. Precedents that federal courts would find fully
retroactive under Teague apply retroactively in state court as well;
precedents that under Teague apply only on direct review may nonetheless be



                                       10
fully retroactive in state court, under the purpose-based approach of Johnson.
(See Gomez, at p. 655, fn. 3.)
      With the intervening sea-change in federal law governing retroactivity,
the California Supreme Court may decide the time has come to revisit
Johnson, and it will soon have the opportunity to do so. (In re Milton
(Apr. 17, 2020, S259954) ___Cal.5th___ [2020 Cal. LEXIS 2736].) But as long
as Johnson remains the California approach to assessing retroactivity, I
conclude Gallardo is fully retroactive.
                                          II.
      Although Gallardo applies to cases such as Haden’s that were final
before the California Supreme Court decided Gallardo, it turns out the rule of
Gallardo affords Haden no relief. Haden challenges here the sentencing
court’s determination that his two prior convictions for robbery in North
Dakota count as serious felonies and therefore “strikes” under California’s
Three Strikes law. (Pen. Code, former §§ 1197.2, subd. (c)(23), 1170.12.)
Haden correctly argues that North Dakota defines robbery broadly, sweeping
in conduct that is not a serious felony or a strike in California. But as we will
see, the overbreadth Haden identifies is not dispositive because the charging
documents in both of his North Dakota cases show that Haden pleaded guilty
to conduct falling squarely within California’s definition of a serious felony
and a strike.
      North Dakota defines robbery to include threatening or inflicting bodily
injury “in the course of committing a theft,” even during an unsuccessful
attempt to commit theft. (N.D. Cent. Code, § 12.1-22-01.) “It is therefore,
possible under [North Dakota’s] statute to commit robbery without
committing theft.” (State v. McKing (N.D. 1999) 593 N.W.2d 342, 344.) Not
so in California, where the crime of robbery requires a completed theft. (See



                                          11
e.g., People v. Gomez (2008) 43 Cal.4th 249, 254.) Because North Dakota
broadly defines robbery, it is not enough to establish the alleged priors that
Haden was twice convicted of that crime. The Attorney General concedes
that “a North Dakota robbery without a [completed] theft would not qualify
as a serious felony or strike in California.”
      However, the charging documents and judgments in Haden’s North
Dakota cases show that in both robberies Haden completed his thefts. The
sentencing court had before it two criminal informations. One alleged Haden
“committed the crime of Robbery, committed as follows: . . . he took $88.00
from another while threatening him with a dangerous weapon, a butcher
knife.” The other alleged Haden “committed the crime of Robbery, committed
as follows: . . . he took property from another while threatening him with a
dangerous weapon, a butcher knife.” Both charging documents specifically
allege that Haden “took,”—that is, completed the theft of—the property in
question. The informations do not charge, nor were they amended to state,
that Haden merely attempted to take money or property from another. In
both cases, the criminal judgments state Haden was convicted by guilty plea
of “robbery as charged in the Information.”
      Gallardo allows a sentencing court to determine, “based on the record
of the prior plea proceedings, that defendant’s guilty plea encompassed a
relevant admission about the nature of [his] crime.” (Gallardo, supra,
4 Cal.5th at p. 139.) The records in Haden’s North Dakota plea proceedings
establish that Haden indeed made relevant admissions. By pleading guilty
“as charged in the Information,” Haden admitted that both robberies involved
completed, not just attempted, thefts. Haden admitted he “took” money and
property by threatening his victims with a knife. His prior convictions are,
accordingly, serious felonies and strikes under California law.



                                        12
      Haden disputes this application of Gallardo, arguing that here the
sentencing court should not have looked beyond the elements of the North
Dakota statute to which Haden pleaded guilty. He argues that the Sixth
Amendment only allows Gallardo’s limited record review where a conviction
was obtained under a divisible statute, which is a statute that includes
alternative elements, and that North Dakota’s robbery statute is indivisible.
The problem with this argument is that Gallardo itself rejects it. Gallardo
does discuss two United States Supreme Court cases construing the Armed
Career Criminal Act (“ACCA”)—cases in which the difference between
divisible and indivisible statutes is important. (Gallardo, supra, 4 Cal.5th at
pp. 132–133 [discussing Descamps v. United States (2013) 570 U.S. 254, and
Mathis v. United States (2016) ___U.S.___ [136 S.Ct. 2243].) But Gallardo
cautions against confusing statutory construction with constitutional
mandate: “[T]he high court did not hold that the Sixth Amendment, as
opposed to the federal ACCA, forbids” the court from conducting a limited
record review “when the statute of conviction has a single, ‘indivisible’ set of
elements (Descamps) or when it sets out alternative means, rather than
alternative elements constituting the same crime (Mathis).” (Gallardo,
supra, 4 Cal.5th at pp. 134–135.) Because the federal ACCA plays no part in
this case, the distinction that Descamps and Mathis draw between divisible
and indivisible statutes is of no moment. The Sixth Amendment does not
require sentencing courts to distinguish divisible from indivisible statutes,
and Gallardo does not import this distinction into California law. Gallardo
is, for example, completely silent on whether former section 245(a)(1) sets
forth alternative elements or alternative means, defining a divisible or an
indivisible crime. This silence confirms that Gallardo’s limited record review
is proper for priors obtained under either a divisible or an indivisible statute.



                                       13
      In sum, I conclude Gallardo is fully retroactive, but it affords Haden no
relief. I therefore join the majority in denying the petition for habeas corpus.


                                            TUCHER, J.




                                       14
BROWN, J., Concurring.
      I fully join the lead opinion, and I write separately only to explain
certain points of disagreement with the thoughtful analysis in Justice
Tucher’s concurring opinion.
      In my view, the concurrence places a significant amount of weight on
portions of People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo) in which the
Court did not purport to address the purpose of its holding, for the simple
reason that it had no need to. Citing certain parts of Gallardo, Justice
Tucher deduces that the Supreme Court’s ruling was motivated by an
unspoken purpose to promote reliability. (Conc. opn. ante, at pp. 5–6.)
Impressed though I am with its eloquence, I am unconvinced by the
concurrence’s approach.
      First, the Court in Gallardo did not “make[] clear that its new rule is
squarely aimed at the reliability of fact-finding.” (Conc. opn. ante, at p. 6.)
Indeed, the word “reliability” and its cognates appear nowhere in the
majority opinion; it seems likely that if the Supreme Court had wished to
“make clear” that the purpose of its holding was reliability, it could and
would have done so. In my view, Gallardo is instead focused upon no more or
less than protecting the Sixth Amendment right to jury trial, as first
embraced by the United States Supreme Court in Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi) and as more fully expounded upon in
Descamps v. United States (2013) 570 U.S. 254 (Descamps) and Mathis v.
United States (2016) 579 U.S. ___ [136 S.Ct. 2443] (Mathis). (Gallardo,
4 Cal.5th at pp. 124–125.) Following the high court’s elucidation of Sixth
Amendment principles in Descamps and Mathis, our Supreme Court held
that “the trial court violated defendant’s Sixth Amendment right to a jury
trial” when it reviewed a preliminary hearing transcript to assess whether



                                        1
the prior conviction qualified as a serious felony. (Ibid.) The Gallardo Court
cited Apprendi in explaining that “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. (See Apprendi, supra,
530 U.S. at p. 490.)” (Gallardo, supra, 4 Cal.5th at p. 135.) The Supreme
Court founded its reasoning upon Descamps’ “considered and unequivocal”
statement that “[t]he jury trial right is violated when a court adds extra
punishment based on factfinding that goes ‘beyond merely identifying a prior
conviction’ by ‘try[ing] to discern what a trial showed, or a plea proceeding
revealed, about the defendant's underlying conduct.’ (Descamps, supra,
540 U.S. at p. 269.)” (Gallardo, at p. 135.) Thus, Gallardo’s laser focus was
on vindication of the jury trial right, without a further nod to any underlying
motivation relating to reliability.
      Notwithstanding the absence of the word “reliability” from Gallardo
itself, Justice Tucher’s concurrence infers a tacit purpose to promote
reliability in the majority’s rejection of a jury trial remedy. The concurrence
quotes Gallardo as follows: “[S]uch a proceeding—in which a jury would be
impaneled for the sole purpose of reading the preliminary hearing transcript
in defendant’s prior assault case—would raise significant constitutional
concerns,’ said the court.” (Conc. opn. ante, at p. 5.) Missing from that
quotation, however, are the final two words of the quoted sentence from
Gallardo. The full quotation from Gallardo reads as follows: “ ‘[S]uch a
proceeding—in which a jury would be impaneled for the sole purpose of
reading the preliminary hearing transcript in defendant’s prior assault
case—would raise significant constitutional concerns under Apprendi.”
(Gallardo, supra, 4 Cal.5th at p. 138, underlining added.) Those two omitted



                                       2
words are important because, as the lead opinion correctly notes, the United
States Supreme Court has squarely held that cases protecting the Sixth
Amendment jury trial right are not retroactive because the Court “[could] not
confidently say” that the judicial factfinding prohibited by Apprendi
“seriously diminishes accuracy.” (Schriro v. Summerlin (2004) 542 U.S. 348,
356 (Schriro).) In Schriro, the Court refused to give retroactive effect to Ring
v. Arizona (2002) 536 U.S. 584 (Ring), which had extended to Arizona’s death
penalty scheme the Apprendi rule requiring a jury finding on any fact that
would increase a penalty beyond the prescribed statutory maximum “ ‘[o]ther
than the fact of a prior conviction.’ ” (Schriro, at pp. 350–351; see also
DeStefano v. Woods (1968) 392 U.S. 631, 633–634 (DeStefano) [cases
extending Sixth Amendment jury trial right to states not retroactive].)
      Schriro was decided under the Teague v. Lane (1989) 489 U.S. 288
(Teague) standard for retroactivity, and Justice Tucher’s concurrence
correctly notes that the Teague retroactivity analysis is fashioned somewhat
differently than the pre-Teague United States Supreme Court standards
adopted by our Supreme Court in In re Johnson (1970) 3 Cal.3d 404
(Johnson). (See id. at p. 410 [adopting and quoting the three-factor
retroactivity test set forth in Desist v. United States (1969) 394 U.S. 244
(Desist)].) In Johnson, our Supreme Court held that the first factor in the
retroactivity analysis is the “ ‘ “purpose to be served by the new
standards,” ’ ” and explained that under United States Supreme Court
precedent, “[f]ully retroactive decisions are seen as vindicating a right which
is essential to a reliable determination of whether an accused should suffer a
penal sanction.” (Johnson, at pp. 410–411.) Under the Teague formulation,
procedural rules given retroactive effect are those “without which the
likelihood of an accurate conviction is seriously diminished.” (Schriro, supra,



                                        3
542 U.S. at p. 352, first italics added; see also Whorton v. Bockting (2007) 549
U.S. 406, 418 (Whorton) [for a procedural rule to be retroactive, it must first
be “necessary to prevent ‘an “ ‘impermissibly large risk of an inaccurate
conviction,’ ” ’ ” italics added].) The first factor of the Johnson test and the
first prong of the Teague retroactivity test for procedural rules are thus
ultimately not so distinct, as they are both centered on the reliability, or
accuracy, of convictions.
      Perhaps more importantly, in deciding Schriro, the Supreme Court
specifically found its decision in DeStefano—which was “decided under [the]
pre-Teague retroactivity framework”—to be “on point” and “germane” to its
analysis of whether to give retroactive effect to Ring (and, by extension,
Apprendi). (Schriro, supra, 542 U.S. at pp. 356–357.) As noted above, the
“pre-Teague retroactivity framework” referred to in Schriro is precisely the
three-factor test adopted in 1970 by our Supreme Court in Johnson.
(Johnson, supra, 3 Cal.3d at p. 410.) In DeStefano, after citing the same
three-factor test later adopted in Johnson, the Supreme Court refused to give
retroactive effect to Duncan v. Louisiana (1968) 391 U.S. 145 (Duncan),
which applied the Sixth Amendment’s jury trial guarantee to the states.
(DeStefano, supra, 392 U.S. at pp. 633–634 [“[a]ll three factors favor only
prospective application of the rule” in Duncan, as the Court would not assert
“ ‘that every criminal trial—or any particular trial—held before a judge alone
is unfair or that a defendant may never be as fairly treated by a judge as he
would be by a jury’ ”].) Because the Supreme Court in Schriro followed its
own “on point” pre-Teague jurisprudence in DeStefano, Schriro’s refusal to
grant retroactive effect to Ring and Apprendi sheds significant light on how
Johnson applies to Gallardo, which rests on the same Sixth Amendment jury
trial right as discussed in Schriro and DeStefano. Put another way, that



                                         4
Schriro was decided under the Teague standard for retroactivity does not
mean we can disregard it in assessing the question of how we should apply
Johnson here. Quite to the contrary, as Schriro’s embrace of DeStefano
shows.
      In continuing with the theme of reliability, Justice Tucher’s
concurrence asks, “How better to determine the purpose of a new
constitutional rule than to examine what remedy the new rule requires?”
(Conc. opn. ante, at p. 6.) But as the concurrence itself points out, the remedy
fashioned in Gallardo—whereby a trial court determines which facts were
necessarily found or admitted in a prior proceeding—was intended to address
not only the Sixth Amendment right to a jury trial, but also the Sixth
Amendment right to a speedy trial and the Fifth Amendment’s prohibition
against double jeopardy. (Gallardo, supra, 4 Cal.5th at p. 138.) One cannot
realistically divine a single unspoken “purpose” of Gallardo by looking at a
remedy that had to accommodate multiple constitutional mandates. In any
event, even if one focuses solely on the remedy, it is evident that the remedy
is directed at correcting violations of the right to a jury determination of a
sentence-enhancing fact. A trial court applying Gallardo must assess what
facts a jury necessarily found, or what facts a defendant admitted after
waiving the right to a jury determination as part of a plea.
      In finding a “much broader purpose at work” (conc. opn. ante, at p. 6.),
Justice Tucher’s concurrence hones in on the Sixth Amendment’s
confrontation clause by quoting Gallardo’s statement that facts used to
increase a sentence must be proved at a jury trial with all “ ‘the procedural
safeguards, such as the Sixth Amendment right to cross-examine one’s
accusers, that normally apply in criminal proceedings.’ ” (Conc. opn. ante, at
p. 6, quoting Gallardo, supra, 4 Cal.5th at pp. 138–139.) The concurrence,



                                        5
however, fails to recognize that the United States Supreme Court has
determined that Crawford v. Washington (2004) 541 U.S. 36—its most
significant confrontation clause case this century—is not retroactive to cases
final on appeal. (See Whorton, supra, 549 U.S. 406.) Applying Teague, the
Court believed that the Crawford rule, which curtailed the use of
“testimonial” hearsay, was not one “ ‘ “without which the likelihood of an
accurate conviction is seriously diminished.” ’ ” (Id. at p. 420.) Contrasting
the Crawford rule with the right to counsel recognized in Gideon v.
Wainwright (1963) 372 U.S. 335, the Court explained: “The Crawford rule is
much more limited in scope, and the relationship of that rule to the accuracy
of the factfinding process is far less direct and profound.” (Whorton, at p. 419,
italics added.)
      It is true, as Justice Tucher’s concurrence explains, that under the pre-
Teague standard, the United States Supreme Court gave retroactive effect to
rules relating to a defendant’s right to confront witnesses. But review of
those cases reveals they involved a right with a far stronger connection to a
reliable determination of guilt or innocence than did Gallardo. In Roberts v.
Russell (1968) 392 U.S. 293 (Roberts) the Supreme Court gave retroactive
effect to Bruton v. United States (1968) 391 U.S. 123, a landmark
confrontation clause decision that precluded the admission of a nontestifying
defendant’s confession that implicated a codefendant. (Roberts, at p. 295.) In
Berger v. California (1969) 393 U.S. 314 (Berger), the Court gave retroactive
effect to Barber v. Page (1968) 390 U.S. 719, where the Court held that the
confrontation clause prohibits the introduction of a witness’s preliminary
hearing testimony unless the prosecution has made a good faith effort to
secure the witness’s presence at trial. (Berger, at p. 315.)




                                        6
      The rules in Roberts and Berger thus remedied a situation where a
defendant clearly lacked any ability to confront a witness at trial. With
Gallardo, by contrast, we can only speculate whether the denial of the right
to have a jury decide a sentence-enhancing fact also resulted in the denial of
a defendant’s separate and distinct right to confront witnesses about that
fact. And if one does engage in such speculation, there are many situations
in which a defendant will have received a sentencing enhancement without
any confrontation clause infirmity. Haden’s case is illustrative, as he
admitted the sentence-enhancing fact of taking property (and therefore
committing a theft) when pleading guilty to robbery in North Dakota. This
admission eliminates any concern that he was denied his Sixth Amendment
right to confront a witness about completing the theft. Even for a defendant
who proceeds to trial under a robbery statute like North Dakota’s, any
concern that the defendant was denied the right to confront witnesses about
completing a theft is minimal. Notably, a defendant charged with robbery in
North Dakota would be incentivized to cross-examine witnesses about
whether he completed a theft if it truly was a contested issue, as completion
of the theft would be probative of whether the defendant intended to commit
a robbery, as distinguished from mere assault or battery. In other cases, a
defendant might never challenge whether a theft was completed if, for
example, the completion was undisputed and his defense at trial was
misidentification, as presented through alibi witnesses. What these
examples (and many others) demonstrate is that, unlike the rights at issue in
Russell and Berger, the jury trial right vindicated in Gallardo is not
necessarily tethered to a defendant’s separate right confront witnesses.
Rather, the right upheld in Gallardo is “collateral to or relatively far removed




                                       7
from the reliability of the fact-finding process at trial.” (Johnson, supra,
3 Cal.3d at pp. 411–412.)
      The concurrence also infers a purpose to promote reliability from
Gallardo’s discussion of the trial court’s use of a preliminary hearing
transcript to determine whether the prior conviction involved a deadly
weapon. In quoting snippets from Gallardo, Justice Tucher’s concurrence
states: “In other words, the sentencing court’s fact-finding was insufficiently
reliable—not because a judge is less capable of sorting fact from fiction than
would be a jury—but because vital information was missing: Would a jury in
the prior case ‘have credited’ the victim’s testimony about a knife? Did the
defendant ‘acknowledg[e] the truth’ of that particular testimony? Left to
‘guess at’ the answers to these questions, the sentencing court could not
reliably determine the dispositive fact.” (Conc. opn. ante, at p. 7.) But the
portion of Gallardo quoted by the concurrence says nothing about the
reliability of judicial fact-finding. Instead, the Court’s focus is on the identity
of the fact-finder (or fact-admitter). A full quotation of the relevant portion of
Gallardo makes clear this core concern: “The Court of Appeal concluded this
[review of the preliminary hearing transcript] was permissible under
Descamps because that decision allows trial courts to ‘consult “a limited class
of documents, such as indictments and jury instructions,” ’ in order to identify
which elements of the statute ‘formed the basis of the prior conviction.’
Because ‘nothing in Descamps excludes the preliminary hearing transcript
from that class of documents,’ the court concluded that the sentencing court
properly used the transcript to determine that defendant’s conviction was
based on assault with a deadly weapon and thus qualified as a serious felony
within the meaning of the Three Strikes law. [⁋] While Descamps does permit
courts to rely on certain documents to identify the precise statutory basis for



                                         8
a prior conviction, the documents listed in Descamps—‘indictments and jury
instructions’ (Descamps, supra, 570 U.S. at p. 287)—differ from the
preliminary hearing transcript here in a meaningful way. An indictment or
jury instructions might help identify what facts a jury necessarily found in
the prior proceeding. (See Shepard[ v. United States (2005)] 544 U.S. [13,]
20–21.) But defendant’s preliminary hearing transcript can reveal no such
thing. A sentencing court reviewing that preliminary transcript has no way
of knowing whether a jury would have credited the victim's testimony had
the case gone to trial. And at least in the absence of any pertinent
admissions, the sentencing court can only guess at whether, by pleading
guilty to a violation of Penal Code section 245, subd. (a)(1), defendant was
also acknowledging the truth of the testimony indicating that she had
committed the assault with a knife.” (Gallardo, supra, 4 Cal.5th at pp. 136–
137, italics added.) When this portion of Gallardo is read in its full context,
therefore, it becomes apparent that the problem identified by the Supreme
Court with the use of the preliminary hearing transcript was not that it was
an unreliable method for determining what happened, as the concurrence
seems to suggest; the problem with using the preliminary hearing transcript
is that it reveals nothing about what a jury necessarily found or the
defendant necessarily admitted, as required to protect a defendant’s Sixth
Amendment jury trial right.
      Finally, Justice Tucher’s concurrence may understate the disruptive
effect of applying Gallardo retroactively to final convictions. The concurrence
believes that Gallardo can be applied retroactively to final cases with
“relative ease” because it relates “only to sentencing, will not require any
retrials, and by its own terms allows sentencing courts to consider only such
documents as are already in the record on the prior conviction (and likely in



                                        9
the record on the offense of conviction as well).” (Conc. opn. ante, at p. 8.) It
is not at all clear, however, that a Gallardo-compliant procedure can be
undertaken with “relative ease.” A record of conviction oftentimes will lack
critical documents that would show whether defendant’s guilty plea
“encompassed a relevant admission about the nature of her crime.”
(Gallardo, supra, 4 Cal.5th at p. 139.) This includes a transcript of a
defendant’s plea colloquy which, unlike a preliminary hearing transcript,
may often not be requested by a prosecutor or defendant, as neither party
would need it for ongoing proceedings in run-of-the-mill cases resolved by
plea. (Cf. Pen. Code, § 869, subd. (e) [requiring court reporter to create
transcript of preliminary hearing within 10 days in any felony case in which
a defendant is held to answer, or upon request of either party in all other
cases].) Retroactive application of Gallardo could force prosecutors to go on a
scavenger hunt of sorts where they would have to augment a record by
tracking down old court files and personnel—no easy task for convictions,
such as Haden’s, that occurred decades ago in other jurisdictions.
      For these reasons, I must respectfully disagree with Justice Tucher’s
view as to whether Gallardo is retroactive, although I agree that even if it
were, Haden would not be entitled to relief.


                                                  BROWN, J.




                                        10
Trial court:              San Mateo County Superior Court

Trial judge:              Honorable Carl W. Holm

Counsel for Petitioner:   Gene Vorobyov, under appointment by the Court
                          of Appeal

Counsel for Respondent:   Xavier Becerra
                          Attorney General of California
                          Lance E. Winters
                          Chief Assistant Attorney General
                          Jeffrey M. Laurence
                          Senior Assistant Attorney General
                          Donna M. Provenzano
                          Supervising Deputy Attorney General
                          David H. Rose
                          Deputy Attorney General




A158376


                              1
