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Does Gallardo (Limiting Judicial Fact-Finding for Prior Convictions) Apply Retroactively

Case Name: In re Milton (2022) 13 Cal.5th 893
Case #: S259954/B297354
Last Updated: August 22, 2022

Do the limitations of People v. Gallardo (2017) 4 Cal.5th 120 on judicial fact-finding concerning the basis for a prior conviction apply retroactively to final judgments? (Compare In re Milton (2019) 42 Cal.App.5th 977 with In re Brown (Feb. 25, 2020, E071401) 45 Cal.App.5th 699.) A request for an order directing depublication of the opinion was denied.


In 1987, petitioner William Milton was convicted of two robberies in Illinois. In 1999, he was convicted of robbery in California, and the prosecution sought an enhanced sentence on the ground the two Illinois robbery convictions were “serious felony” convictions that were also “strikes” under the “Three Strikes” law (Pen. Code,1 §§ 667, subds. (b)–(j), 667.5, subd. (c), 1170.12, subd. (a)). Because an out-of-state robbery qualifies as a serious felony only if it “includes all of the elements of [a California robbery]” (§ 667, subd. (d)(2); see § 1192.7, subd. (c)(19)), which an Illinois robbery does not, the prosecution asserted the Illinois robberies were serious felonies under section 1192.7, subdivision (c)(8) and (23), which provide that any felony in which the defendant personally uses a firearm or a dangerous or deadly weapon is a serious felony. After reviewing the record from the Illinois robbery cases, including the charging document and sentencing hearing transcript, the trial court found petitioner used a firearm in committing both Illinois robberies and imposed a third strike sentence. The Court of Appeal affirmed the judgment, and we denied review.

In 2017, petitioner filed a petition for writ of habeas corpus, seeking resentencing under People v. Gallardo (2017) 4 Cal.5th 120, 124–125 [226 Cal. Rptr. 3d 379, 407 P.3d 55] (Gallardo), where we held that a trial court violates a defendant’s Sixth Amendment right to a jury trial when it makes factual findings about the nature of a defendant’s prior conviction in imposing an enhanced sentence based on that prior conviction. The Court of Appeal denied the petition on the ground that Gallardo was not retroactive to petitioner’s judgment, which had been final since 2000. (People v. Milton (2019) 42 Cal.App.5th 977, 982, 987 [256 Cal. Rptr. 3d 172] (Milton).)

The Courts of Appeal that have addressed the question of Gallardo’s retroactivity have reached conflicting results. We conclude the Gallardo rule does not apply retroactively to final judgments. Accordingly, we affirm the Court of Appeal’s denial of the petition for writ of habeas corpus.

This case was decided on 8/22/2022.

Review on this issue was also granted with briefing deferred in:

  • In re Chamberlain (Dec. 24, 2019, B300885) [nonpub. opn.], review granted 3/25/2020 (S260133)
  • In re Brown (2020) 45 Cal.App.5th 699, review granted 6/10/2020 (S261454/E071401)
  • In re Haden (2020) 49 Cal.App.5th 1091, review granted 8/12/2020 (S263261/A158376)
  • In re Scott (2020) 49 Cal.App.5th 1003, review granted 8/12/2020 (S262716/D076909)
  • In re Jackson (Oct. 13, 2020, E072464) [nonpub. opn.], review granted 12/23/2020 (S265676)
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