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California Supreme Court:
2017 Decision Prescribing Jury Determination As to the Nature of Prior Is Not Retroactive
By a MetNews Staff Writer
The California Supreme Court held yesterday that its 2017 decision establishing an accused’s right to have a jury decide whether the facts underlying a prior conviction qualify it as a “strike,” giving rise to a sentencing enhancement, does not apply retroactively to convictions that have become final.
Justice Martin J. Jenkins wrote for the majority, and Justices Joshua P. Groban and Justice Goodwin H. Liu each authored a dissent.
The majority affirmed the denial by Div. Seven of this district’s Court of Appeal of a petition for a writ of habeas corpus filed by William Milton, convicted in 1999 of a robbery and sentenced by then-Los Angeles Superior Court Commissioner Ronald J. Slick, now retired, to a term that was boosted based on two strikes. Those strikes were robbery convictions in Illinois.
Slick determined that the elements of the Illinois offenses corresponded with the elements in California, thus qualifying the priors as strikes. His determination was proper, under then-existing precedent.
However, the California Supreme Court in 2017 held in People v. Gallardo:
“Under the Sixth Amendment to the United States Constitution…, any fact, other than the fact of a prior conviction, that increases the statutorily authorized penalty for a crime must be found by a jury beyond a reasonable doubt.”
Milton contended that he is entitled to the benefit of that decision.
Segal’s Decision
The Court of Appeal, in denying a writ, explained in an opinion by Justice John Segal:
“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…, is a procedural rule because it prescribes the manner of finding facts to increase the defendant’s sentence.”
Some California courts apply the federal view that new procedural rules are not retroactive, while others engage in a weighing process—authorized by the California Supreme Court in its 1970 decision in People v. Johnson—Segal noted. If there is a weighing of relevant factors, he found, the scale would tilt in favor of nonretroactivity.
Jenkins’s Opinion
Jenkins said that courts of appeal are divided on the issue of whether Gallardo is retroactive. He expressed agreement with Segal’s view.
The first of three factors mentioned in Johnson—the purpose of the new rule—is “the critical factor in determining retroactivity,” the justice wrote.
He related that Milton maintains the “fundamental purpose of Gallardo is to promote fair and reliable determinations of the defendant’s guilt or innocence on the allegation that he suffered a prior conviction qualifying as a strike under California law.” Jenkins disagreed.
“Although the rule we announced in Gallardo modified the permissible procedures for finding facts about a defendant’s prior convictions, the factfinding procedures in place prior to Gallardo did not lack basic integrity or fairness,” he said. Jenkins recited that examples of factors that do meet that test have previously been identified as “denying an indigent defendant an attorney, foreclosing a criminal appeal because of inability to pay, or using an unfair procedure for determining whether a confession admitted in evidence is actually voluntary.”
In light of the purpose, there is no need to consider the other factors delineated in Johnson—the extent of reliance on the old rule and the effects on the administration of justice of proclaiming retroactivity—Jenkins declared.
Liu and Groban maintained in their dissents that Gallardo effected a substantive change and is retroactive.
The case is In re Milton, 2022 S.O.S. 3956.
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