Metropolitan News-Enterprise


Friday, June 5, 2020


Page 1


Court of Appeal:

Sentencing Judge May Note Defendant’s Out-of-State Admissions

Majority Says That Court May Deem a Minnesota Conviction for Assault as a ‘Strike’ Where Defendant, In Pleading Guilty There, Admitted Using Deadly Weapon; Justice William Dato Expresses No Opinion


By a MetNews Staff Writer


Div. Three of the Fourth District Court of Appeal held yesterday that a man who received a 75-years-to-life sentence in 1999 that was enhanced under the Three Strikes law on the basis of a Minnesota conviction cannot be heard to claim that the out-of-state crime wasn’t a serious felony because his own words at the time of entering his guilty plea to that offense show that it was.

Justice Judith L. Haller wrote for a unanimous panel in finding that the California Supreme Court’s 2017 decision in People v. Gallardo—which restricts a judge, in determining if a prior conviction constitutes a strike, to the elements of the crime—should not be applied retroactively (an issue now before the state’s high court). However, Justice William Dato declined to join in the portion of the opinion in which Haller said that even if Gallardo did apply, it would not aid the petitioner, Lionel Scott.

Presiding Justice Judith McConnell agreed with all aspects of Haller’s opinion.

Dato’s Opinion

Dato wrote:

“I concur in part II of the majority opinion and its conclusion that the Supreme Court’s decision in People v. Gallardo…should not be applied retroactively. But part III unnecessarily confronts a much more difficult question: Can a court rely on a defendant’s gratuitous comments in a plea colloquy to establish facts beyond the necessary elements of the crime so as to decide if a prior conviction qualifies as a serious or violent felony for sentencing under the California Three Strikes law?”

He continued:

“Because we need not reach this additional—and in my view more problematic—issue, I decline to join part III.”

Minnesota Offense

In sentencing Scott in 1999 on sex offenses, a San Diego Superior Court judge found that the defendant, in committing his offense in Minnesota, “personally used a deadly or dangerous weapon,” thus qualifying as a strike under California law. Scott had pled guilty in 1984 to the Minnesota offense of a third degree assault.

The statute under which he was charged said:

“Whoever assaults another and inflicts substantial bodily harm may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.”

Although the statute does not require personal use of a deadly weapon, the California judge took cognizance of statements by Scott in entering his plea in Minnesota.

Haller’s Opinion

Haller pointed out that “in establishing the factual basis for his guilty plea during the plea colloquy, Scott admitted that he personally and intentionally pressed a warm or hot iron against the victim’s face, causing a discernible burn mark that was partially still visible four months later.”

She reasoned:

Because Scott admitted via his Minnesota guilty plea the facts on which the sentencing court based its conclusion that the conviction qualified as a strike under California law, the court did not engage in the type of judicial factfinding regarding disputed facts disapproved of by Gallardo.  Rather, the court merely assumed its proper role of determining the legal characterization of the undisputed facts.”

The trial judge in Gallardo had relied on the preliminary hearing transcript in determining the underlying facts.

Retroactivity Issue

In declaring Gallardo not to be retroactive, Haller relied on reasoning expressed by Court of Appeal Justice John Segal if this district’s Div. Seven in his 2019 opinion in In re Milton. The Supreme Court granted review in that case on March 11.

Haller expressed agreement with Segal that Gallardo merely announced a new procedural rule, which should not be accorded retroactivity.

Her opinion comes in In re Scott, 2020 S.O.S. 2595.


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