In re Haden

• Decision Date: 05 June 2020
• Docket Number: A158376
• Citation: 263 Cal.Rptr.3d 570,49 Cal.App.5th 1091
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE Steven L. HADEN, on Habeas Corpus.

49 Cal.App.5th 1091

263 Cal.Rptr.3d 570

IN RE Steven L. HADEN, on Habeas Corpus.

A158376

Court of Appeal, First District, Division 4, California.

Filed June 5, 2020

Gene Vorobyov, under appointment by the Court of Appeal, San Francisco, for Petitioner

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, for Respondent

POLLAK, P. J.

In People v. Gallardo (2017) 4 Cal.5th 120, 226 Cal.Rptr.3d 379, 407 P.3d 55 (Gallardo ), our Supreme Court disapproved its prior decision in People v. McGee (2006) 38 Cal.4th 682, 42 Cal.Rptr.3d 899, 133 P.3d 1054, (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, 256 Cal.Rptr.3d 172 (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.

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, 133 S.Ct. 2276, 186 L.Ed.2d 438 (Descamps ), 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, 226 Cal.Rptr.3d 379, 407 P.3d 55 on December 21, 2017. Disapproving its prior decision in People v. McGee, supra, 38 Cal.4th 682, 42 Cal.Rptr.3d 899, 133 P.3d 1054, 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, 226 Cal.Rptr.3d 379, 407 P.3d 55.) 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 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, 226 Cal.Rptr.3d 379, 407 P.3d 55, 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) 49 Cal.App.5th 1003, ––––, 263 Cal.Rptr.3d 534, 2020 WL 2988304, at p. *1, [following Milton and holding Gallardo does not apply retroactively to final convictions].)

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, 256 Cal.Rptr.3d 172.) The court began its analysis under the federal standard derived from Teague v. Lane (1989) 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334. 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, 256 Cal.Rptr.3d 172.) " ‘ 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, 256 Cal.Rptr.3d 172.)

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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi ). ( Milton , supra , 42 Cal.App.5th at p. 990, 256 Cal.Rptr.3d 172.) Gallardo "did not merely apply the holding of Apprendi to the recidivist sentencing scheme in California." (Milton, at p. 991, 256 Cal.Rptr.3d 172.) Instead, Gallardo "drew heavily on Descamps [, supra, 570 U.S. 254, 133 S.Ct. 2276 ] and Mathis [v. United States (2016) ––– U.S. ––––, [136 S.Ct. 2243, 195 L.Ed.2d 604] in holding a jury must find the facts that support increased punishment based on recidivism." (Milton, at p. 991, 256 Cal.Rptr.3d 172.)

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 p. 992, 256 Cal.Rptr.3d 172.) "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...