In re Nelson

56 Cal.App.5th 114

270 Cal.Rptr.3d 154

IN RE Richard Allen NELSON on Habeas Corpus.

F079378

Court of Appeal, Fifth District, California.

Filed October 21, 2020

Richard Allen Nelson, in pro. per., for Petitioner.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Jennifer Oleksa, and Cavan Cox, Deputy Attorneys General, for Respondent.

DETJEN, Acting P.J.

In this opinion, we hold that People v. Gallardo (2017) 4 Cal.5th 120, 226 Cal.Rptr.3d 379, 407 P.3d 55 ( Gallardo ), which limited a sentencing court's factfinding abilities with respect to prior conviction enhancement allegations, does not apply retroactively on collateral review of final convictions. We further conclude the sentencing court in the present case did not violate Gallardo ’s proscriptions in any event. Accordingly, we deny the petition for writ of habeas corpus.

PROCEDURAL HISTORY

A jury convicted Richard Allen Nelson (petitioner) of assault with a deadly weapon upon a peace officer ( Pen. Code,¹ § 245, subd. (c) ; count 1), eluding a pursuing peace officer with willful or wanton disregard for safety ( Veh. Code, § 2800.2 ; count 2), and resisting or deterring an executive officer (§ 69; count 3). Following a bifurcated court trial, he was found to have suffered five prior "strike" convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and he was sentenced to 75 years to life in prison. ( People v. Nelson (Oct. 7, 2004, F043776), 2004 WL 2251261, *1 [nonpub. opn.] 2004 Cal.App. Unpub. Lexis 9147, *1-*2.)² On appeal, we modified the judgment so that execution of sentence on count 2 was stayed (§ 654), but otherwise affirmed. ( People v. Nelson, supra , F043776, 2004 WL 2251261, supra, at p. *11, 2004 Cal.App. Unpub. Lexis, supra , at pp. *35-*36.) The California Supreme Court denied review.

On September 27, 2018, petitioner filed a petition for writ of habeas corpus in Kern County Superior Court, challenging his sentence. On December 27, 2018, the petition was denied.

On June 4, 2019, petitioner filed the instant petition for writ of habeas corpus with this court. In it, he alleged (1) because his five prior felony convictions arose from a single course of conduct, they constituted only one strike; (2) in determining whether the prior convictions constituted strikes, the trial court relied on documents and evidence that were not part of the record of conviction; (3) in determining whether the strike allegations were proven, the trial court relied on uncertified documents; and (4) the trial court imposed an unlawful sentence on count 3. On September 26, 2019, this court summarily denied the petition.

Petitioner sought review in the California Supreme Court. On January 2, 2020, review was granted. The Supreme Court transferred the matter back to this court, with directions to vacate our summary denial and to order the Secretary of the Department of Corrections and Rehabilitation to show cause why petitioner is not entitled to relief pursuant to Gallardo , and why Gallardo should not apply retroactively on habeas corpus to final judgments of conviction. On January 7, 2020, we vacated our prior summary denial and issued the order to show cause. We also directed the Secretary to address the issue of whether reliance upon admissions in the plea form violates the proscriptions of Gallardo . The Secretary (respondent) filed a return to the order to show cause on January 30, 2020. Petitioner filed traverses on March 20 and 25, 2020.

DISCUSSION

I GALLARDO DOES NOT APPLY RETROACTIVELY TO CONVICTIONS THAT ARE FINAL.

A. Gallardo and Its Predecessors

" ‘In order for a prior conviction from another jurisdiction to qualify as a strike under the Three Strikes law, it must involve the same conduct as would qualify as a strike in California.’ " ( People v. Woodell (1998) 17 Cal.4th 448, 453, 71 Cal.Rptr.2d 241, 950 P.2d 85.) For years, California law permitted sentencing courts to examine "the entire record" of a conviction "to determine the substance of" that conviction for sentence enhancement purposes ( People v. Guerrero (1988) 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150 ), regardless of whether the conviction was incurred in California or another jurisdiction ( People v. Myers (1993) 5 Cal.4th 1193, 1195, 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301 ).

After petitioner was convicted in Oregon, but before his conviction and sentencing, the United States Supreme Court held that under the Sixth and Fourteenth Amendments 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." ( Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435.) The exception for the fact of a prior conviction was based on Almendarez-Torres v. United States (1998) 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350. ( Apprendi, supra , at pp. 487, 489-490, 120 S.Ct. 2348.)

In People v. McGee (2006) 38 Cal.4th 682, 42 Cal.Rptr.3d 899, 133 P.3d 1054 ( McGee ), the California Supreme Court interpreted the Apprendi court as "addressing itself to issues that pertained to the charged offense, not to issues involving the defendant's previously adjudicated criminal conduct." ( McGee, supra , at p. 697, 42 Cal.Rptr.3d 899, 133 P.3d 1054, italics omitted.) The state high court explained, however, that a sentencing court's inquiry concerning the nature of a prior conviction "is a limited one and must be based upon the record of the prior criminal proceeding, with a focus on the elements of the offense of which the defendant was convicted. If the enumeration of the elements of the offense does not resolve the issue, an examination of the record of the earlier criminal proceeding is required in order to ascertain whether that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law. [Citation.] The need for such an inquiry does not contemplate that the court will make an independent determination regarding a disputed issue of fact relating to the defendant's prior conduct [citation], but instead that the court simply will examine the record of the prior proceeding to determine whether that record is sufficient to demonstrate that the conviction is of the type that subjects the defendant to increased punishment under California law." ( Id. at p. 706, 42 Cal.Rptr.3d 899, 133 P.3d 1054, italics omitted.)

Applying these principles, the McGee court found no error in the sentencing court's examination of the victim's preliminary hearing testimony, in the prior case, to determine the nature of the prior conviction. ( McGee, supra , 38 Cal.4th at pp. 689, 709, 42 Cal.Rptr.3d 899, 133 P.3d 1054.) The California Supreme Court acknowledged, however, the possibility the United States Supreme Court might someday extend Apprendi . ( McGee, supra , at p. 709, 42 Cal.Rptr.3d 899, 133 P.3d 1054.)

The extension arrived in Descamps v. United States (2013) 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 ( Descamps ) and, more recently, Mathis v. United States (2016) 579 U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 ( Mathis ). Although both cases construed a federal sentence enhancement statute, the Armed Career Criminal Act (ACCA), and so relied on the high court's ACCA jurisprudence, each also took into account Sixth Amendment principles.

In Descamps , the issue was whether the defendant's California burglary conviction constituted a burglary conviction for ACCA purposes. In making this determination, the district court relied on the defendant's plea colloquy in the burglary case, in which the defendant did not object to the prosecutor's statement of the defendant's conduct. The Supreme Court concluded this was error. ( Descamps, supra , 570 U.S. at pp. 258-260, 133 S.Ct. 2276.) With respect to a sentencing court's attempt to discern what a trial or plea proceeding revealed about a defendant's underlying conduct, the high court stated: "The Sixth Amendment contemplates that a jury — not a sentencing court — will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting elements of the offense — as distinct from amplifying but legally extraneous circumstances. [Citation.] Similarly, ... when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense's elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment. [Citation.] So when the District Court here enhanced Descamps’[s] sentence, based on his supposed acquiescence to a prosecutorial statement (that he ‘broke and entered’) irrelevant to the crime charged, the court did just what we have said it cannot: rely on its own finding about a non-elemental fact to increase a defendant's maximum sentence." ( Id. at pp. 269-270, 133 S.Ct. 2276.)

In Mathis , the high court further explained: "[A]n elements-focus avoids unfairness to defendants. Statements of ‘non-elemental fact’ in the records of prior convictions are prone to error precisely because their proof is unnecessary. [Citation.] At trial, and still more at plea hearings, a defendant may have no incentive to contest what does not matter under the law; to the contrary, he ‘may have good reason not to’ — or even be precluded from doing so by the court. [Citation.] When that is true, a prosecutor's or judge's mistakes as to means, reflected in the record, is likely to go uncorrected. [Citation.] Such inaccuracies should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence." ( Mathis, supra , 579 U.S. at p. ––––, 136 S.Ct. at p. 2253, fn. omitted.)

In Gallardo , the California Supreme...