IN THE SUPREME COURT OF 

CALIFORNIA

In re WILLIAM MILTON

on Habeas Corpus.

S259954

Second Appellate District, Division Seven

B297354

Los Angeles County Superior Court

TA039953

August 22, 2022

Justice Jenkins authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye, Justices Corrigan, Kruger, and 

Guerrero concurred.

Justice Liu filed a dissenting opinion, in which Justice Groban

concurred.

Justice Groban filed a dissenting opinion, in which Justice Liu

concurred.
1

In re MILTON

S259954

Opinion of the Court by Jenkins, J.

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. (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.

1 All undesignated statutory references are to the Penal 

Code. 
In re MILTON

Opinion of the Court by Jenkins, J.

2

In 2017, petitioner filed a petition for writ of habeas 

corpus, seeking resentencing under People v. Gallardo (2017) 4 

Cal.5th 120, 124–125 (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 (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. 

FACTUAL AND PROCEDURAL BACKGROUND

In 1987, an information was filed in Illinois charging 

petitioner with armed robbery (Ill. Rev. Stat., former ch. 38, 

§ 18-2(a)) and simple robbery (Ill. Rev. Stat., ch. 38, former 

§ 18-1). The information alleged petitioner committed armed 

robbery by taking money from the victim “while ar[med] with a 

dangerous weapon, a gun . . . by threatening the imminent use 

of force” and that he committed simple robbery by taking 

money from his victim “by threatening the imminent use of 

force.” Petitioner pleaded guilty to simple robbery, and an 

Illinois jury found him guilty of armed robbery.

The Illinois court held a combined sentencing hearing for 

the two convictions. At the hearing, the Illinois prosecutor 

recounted the testimony of the armed robbery victim as 

follows: “Mr. Milton got out of the car, pointed a gun at [the 
In re MILTON

Opinion of the Court by Jenkins, J.

3

victim], and threatened him, forced him into the car where [the 

victim] was robbed of his goods.” The court stated, “[Y]ou used 

a gun. You stopped the victim. . . . You forced this individual 

into the automobile.” For the simple robbery, the prosecutor 

stated the victim was “accosted by” petitioner, who 

“approache[d] [the victim] with a weapon, threaten[ed] him, 

and . . . [the victim] lost his entire paycheck . . . to Mr. Milton.” 

The court added, “You stopped [the victim], and again at the 

point of a gun you took . . . cash from this individual.” The 

court stated that the “stipulated facts” for the simple robbery 

were “that the victim . . . left [the market] after cashing his 

check. He was stopped. Money was demanded from the victim 

by . . . Milton, who possessed a handgun. And [money] was 

taken from the victim . . . In addition . . . , [petitioner] made a 

statement to the Waukegan Police Department that he 

participated in and did take the money as is described in this 

stipulation.” Before pronouncing its sentence, the court stated, 

“In each of the two respective offenses you deliberately held a 

gun — a loaded gun — upon an individual. . . . I’m going to tell 

you that he who participates in an offense of violence against 

another with a gun is going to be punished.” (See People v. 

Milton (1989) 182 Ill.App.3d 1082, 1095 [538 N.E.2d 1227, 

1236] [Illinois sentencing court imposed an aggravated 

sentence as to Milton’s armed robbery conviction based on 

several factors including gun use].)

In 1998, shortly after he was released from prison in 

Illinois for the two Illinois robberies and other subsequent 

offenses, petitioner was charged with another robbery, this 

time in California, and a jury found him guilty of second degree 

robbery (§ 211). Petitioner waived his right to a jury trial as to 

the truth of his prior convictions. In a bifurcated proceeding, 
In re MILTON

Opinion of the Court by Jenkins, J.

4

he admitted he had two prior felony convictions from Illinois 

and that one of them was an armed robbery conviction that 

qualified as a strike. He argued his Illinois simple robbery 

conviction was not a strike. 

The California prosecutor acknowledged that robbery 

under Illinois law, unlike under California law, does not 

require the specific intent to permanently deprive the victim of 

the property. The prosecutor argued, however, that the trial 

court could rely on certified documents from Illinois in 

determining that petitioner used a firearm during both 

robberies and that the robberies were therefore serious felonies 

under section 1192.7, subdivision (c)(8) and (23), which provide 

that a felony in which the defendant personally uses a firearm 

or a dangerous or deadly weapon is a serious felony. 

Petitioner’s counsel argued the court was not authorized to 

look beyond the facts of the Illinois convictions in determining 

firearm use and that, in any event, “the stipulated facts” from 

“the transcript . . . of the plea” showed only that petitioner 

possessed a handgun, not that he used one, in committing the 

simple robbery. The court stated it saw “nothing wrong” with 

relying on the certified documents and found petitioner used a 

gun during both robberies and that both prior convictions were 

strikes. The court imposed a third strike sentence of 25 years 

to life, plus five years for the prior serious felony enhancement 

(§ 667, subd. (a)(1)). 

Petitioner appealed and contended, among other things, 

that his Illinois simple robbery conviction did not qualify as a 

strike. The Court of Appeal affirmed, concluding the trial 

court was “entitled to look at the entire record of conviction to 

determine the substance of the foreign convictions” and that 

“the abstract of the judgment, the stipulated facts of the 
In re MILTON

Opinion of the Court by Jenkins, J.

5

offense in question and the Illinois court’s sentencing 

comments,” which “were admissible as part of the ‘entire 

record’ of [the] conviction,” provided substantial evidence to 

support the trial court’s finding that petitioner “obtained the 

proceeds of both robberies by pointing and threatening the 

victims with a handgun.” Petitioner filed a petition for review, 

which we denied. He subsequently filed five petitions for writ 

of habeas corpus in this court, each of which we denied. 

In 2016, petitioner filed a sixth petition for writ of habeas 

corpus in our court, asserting the trial court erred in finding 

his Illinois simple and armed robberies were serious felonies 

for purposes of the Three Strikes law.2 We denied the petition 

“without prejudice to any relief to which petitioner might be 

entitled after this court decides [Gallardo],” which was then 

pending in our court. Following our decision in Gallardo, 

petitioner filed the instant petition, arguing his Illinois 

robberies were not serious felonies under Gallardo. We issued 

an order directing the Department of Corrections and 

Rehabilitation to show cause, returnable to the Court of 

Appeal, “why petitioner is not entitled to relief pursuant to 

[Gallardo] . . . and why Gallardo should not apply retroactively 

2 As noted, petitioner previously admitted his Illinois 

armed robbery was a serious felony. He later changed his 

position to assert, as he does here, that both of his Illinois 

robberies were not serious felonies. Because we affirm the 

denial of petitioner’s instant writ petition on retroactivity 

grounds, we need not, and will not, address the Attorney 

General’s argument that, if Gallardo applies retroactively, 

petitioner’s prior admission regarding the Illinois armed 

robbery precludes him from asserting it is not a serious felony. 
In re MILTON

Opinion of the Court by Jenkins, J.

6

on habeas corpus to final judgments of conviction.” Following 

briefing, the Court of Appeal denied the petition in a published 

opinion. (Milton, supra, 42 Cal.App.5th at pp. 993–994.) The 

court concluded the trial court’s factfinding regarding firearm 

use would have been improper under Gallardo and that if 

Gallardo applied retroactively, remand would have been 

necessary. (Id. at p. 999.) The court held, however, that 

petitioner was not entitled to relief because Gallardo was not 

retroactive to his final judgment under federal and state tests 

for retroactivity. (Id. at pp. 993–994.)

As we noted above, the Courts of Appeal that have 

considered Gallardo’s retroactivity are split on the issue. (E.g., 

Milton, supra, 42 Cal.App.5th 977 [Gallardo is not retroactive]; 

In re Brown (2020) 45 Cal.App.5th 699, review granted June 

10, 2020, S261454 [Gallardo is retroactive]; In re Scott (2020) 

49 Cal.App.5th 1003, review granted Aug. 12, 2020, S262716 

[not retroactive]; In re Haden (2020) 49 Cal.App.5th 1091, 

review granted Aug. 12, 2020, S263261 [not retroactive].) We 

granted review to resolve the conflict in the Courts of Appeal. 

DISCUSSION

I. Sentence Enhancements Based on Prior Felony 

Convictions

Under the Three Strikes law, a prior conviction for a 

“serious felony” (§ 1192.7, subd. (c)) or “violent felony” (§ 667.5, 

subd. (c)) is a strike and subjects a defendant to increased 

punishment. (§§ 1170.12, subd. (a), 667, subds. (b)–(j).) For a 

prior out-of-state conviction to qualify as a strike under 

section 667, subdivision (d)(2), the out-of-state offense must 

include all of the elements of a serious or violent felony in 

California. (People v. Warner (2006) 39 Cal.4th 548, 552–553.) 
In re MILTON

Opinion of the Court by Jenkins, J.

7

The California offense of robbery (§ 211), which is a 

serious felony (§ 1192.7, subd. (c)(19)), is a specific intent crime 

that requires “ ‘the intent to permanently deprive the person of 

the property.’ ” (People v. Jackson (2016) 1 Cal.5th 269, 343.) 

Illinois robberies are general intent crimes, and the definitions 

of robbery and armed robbery in Illinois do not include this 

specific intent element. (People v. Jamison (2001) 197 Ill.2d 

135, 161 [756 N.E.2d 788, 801]; People v. Lee (1998) 294 

Ill.App.3d 738, 743 [691 N.E.2d 117, 120].) Because the Illinois 

robbery statutes do not contain all the elements of California’s 

robbery statute, petitioner’s Illinois robbery convictions do not 

qualify as strikes under section 667, subdivision (d)(2). 

An out-of-state felony, however, also qualifies as a 

serious felony under California law if the defendant personally 

used a firearm or a dangerous or deadly weapon in committing 

the offense. (§ 1192.7, subd. (c)(8), (23); People v. Le (2015) 61 

Cal.4th 416, 425.) Thus, if petitioner personally used a firearm 

in the commission of the Illinois felonies, those prior 

convictions would be serious felony convictions and strikes 

under California’s Three Strikes law.

At the time the trial court sentenced petitioner in 1999, 

California law permitted trial courts to examine “the entire 

record” of a prior conviction “to determine the substance of” 

that conviction — i.e., the conduct underlying the conviction —

for sentence enhancement purposes. (People v. Guerrero (1988) 

44 Cal.3d 343, 355 (Guerrero).) A year later, the United States 

Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 

466 (Apprendi) that “any fact that increases the penalty for a 

crime beyond the prescribed statutory maximum” must be 

found by a jury. (Id. at p. 490.) The high court, however, 

preserved the so-called Almendarez-Torres exception 
In re MILTON

Opinion of the Court by Jenkins, J.

8

(Almendarez-Torres v. United States (1998) 523 U.S. 224), 

under which “the fact of a prior conviction” used to impose an 

enhanced punishment for a later offense may be found by the 

court. (Apprendi, at p. 490.) Applying these principles, the 

Apprendi court concluded the defendant was improperly denied 

a jury trial on the factual predicate of an enhancement 

allegation that was attached to his pending charges. (Id. at pp. 

474, 490.)

In People v. McGee (2006) 38 Cal.4th 682 (McGee), we 

determined that Apprendi’s extension of the right to have a 

jury make factual findings did not apply to enhancements 

based on prior convictions. (McGee, at pp. 709–710.) We held 

the Sixth Amendment permits courts to determine whether the 

offense qualifies as a strike and that while the inquiry is a 

“limited one” that “focus[es] on the elements of the offense of 

which the defendant was convicted,” a court may also review 

the record of the prior conviction to determine whether “the 

conviction realistically may have been based on conduct that 

would not constitute a serious felony under California law.” 

(McGee, at p. 706.) We concluded the defendant therefore had 

no right to a jury finding on whether his prior conviction 

qualified as a serious felony and that the trial court did not err 

in examining the victim’s preliminary hearing testimony from 

the prior case to determine the nature of the prior conviction. 

(McGee, at pp. 689, 709.) 

Less than a decade later, the United States Supreme 

Court extended the right to have a jury make factual 

determinations about the nature of a prior conviction that is 

used to increase punishment. (See Descamps v. United States 

(2013) 570 U.S. 254 (Descamps); Mathis v. United States (2016) 

579 U.S. 500 (Mathis).) In Descamps, the district court 
In re MILTON

Opinion of the Court by Jenkins, J.

9

enhanced the defendant’s punishment under the Armed Career 

Criminal Act (ACCA, 18 U.S.C. § 924(e)), an elements-based 

federal recidivist sentencing scheme that requires imposition of 

an increased sentence where the elements of the prior 

conviction match those of an enumerated offense. (Descamps, 

at p. 254; see Taylor v. United States (1990) 495 U.S. 575, 600, 

601 [under the ACCA, the sentencing court compares only the 

elements of the offenses and does not look at the “facts 

underlying the prior convictions” or “the facts of each 

defendant’s conduct”].) The prior conviction in Descamps was a 

California burglary, which did not include an unlawful entry 

element as required by the ACCA. (Descamps, at pp. 254, 255–

259.) 

In determining that the California burglary conviction 

qualified as an ACCA predicate offense, the district court 

reviewed a transcript of the plea colloquy, which showed the 

defendant did not object to the prosecutor’s statement that the 

burglary “ ‘involve[d] the breaking and entering of a grocery 

store.’ ” (Descamps, supra, 570 U.S. at p. 259.) The high court 

concluded this was error and held that the district court’s 

review of a prior conviction to determine whether it qualifies 

under the ACCA must be limited to the elements of those 

offenses (the “categorical approach”), except to the extent a 

limited inquiry into the record of the prior conviction is 

necessary to determine which part of a divisible statute was 

violated (the “modified categorical approach”). (Descamps, at 

pp. 267–270.) The Descamps court concluded that because 

California’s burglary statute is not a divisible statute divided 

into lawful and unlawful entry alternatives, the prosecutor’s 

references to the defendant’s breaking and entering was 

extraneous and could play no role in the district court’s efforts 
In re MILTON

Opinion of the Court by Jenkins, J.

10

to determine whether the conviction qualified as an ACCA 

predicate offense. (Descamps, at pp. 277–278.)

Subsequently, in Mathis, supra, 579 U.S. 500, the United 

States Supreme Court considered whether an Iowa burglary 

conviction qualified as a prior conviction for ACCA purposes. 

Emphasizing that the ACCA involves an “elements-only 

inquiry” where “a sentencing judge may look only to ‘the 

elements of the [offense], not to the facts of [the] defendant’s 

conduct,’ ” the high court reaffirmed Descamps’s holding “that 

the prior crime qualifies as an ACCA predicate if, but only if, 

its elements are the same as, or narrower than, those of the 

generic offense.” (Mathis, supra, at pp. 510, 503.)

In both Descamps and Mathis, the United States 

Supreme Court rested its decision on cases interpreting the 

ACCA but also drew upon Sixth Amendment principles for its 

holding. The Descamps court explained that the district court’s 

decision failed to consider “the categorical approach’s Sixth 

Amendment underpinnings. . . . The Sixth Amendment 

contemplates that a jury — not a sentencing court — will 

[make findings about the defendant’s underlying conduct], 

unanimously and beyond a reasonable doubt.” (Descamps, 

supra, 570 U.S. at p. 269.) Similarly, the Mathis court stated 

that allowing courts to make factual determinations regarding 

prior convictions would raise Sixth Amendment concerns. 

(Mathis, supra, 579 U.S. at pp. 508, 511.)

II. Our Gallardo Decision

Shortly after the high court’s decisions in Descamps and

Mathis, we revisited our earlier decision in McGee in Gallardo. 

(Gallardo, supra, 4 Cal.5th at p. 124.) In Gallardo, the 

prosecution alleged the defendant’s prior conviction for 
In re MILTON

Opinion of the Court by Jenkins, J.

11

aggravated assault under former section 245, subdivision 

(a)(1), a divisible statute, qualified as a strike. (Gallardo, 

supra, 4 Cal.5th at p. 123.) The defendant had pleaded guilty 

to that offense, but her plea did not specify whether she had 

used a deadly weapon (a serious felony) or force likely to 

produce great bodily injury (not a serious felony). (Id. at p. 

125; § 1192.7, subd. (c)(31) [“assault with a deadly weapon” is a 

serious felony].) To resolve this ambiguity, the trial court 

reviewed a transcript of the victim’s preliminary hearing 

testimony that the defendant used a knife and found, based on 

that testimony, that the prior conviction qualified as a strike. 

(Gallardo, at p. 125.)

Although the trial court complied with the procedure we 

approved of in McGee, we concluded in Gallardo that the 

procedure was no longer viable in light of Descamps and

Mathis, which informed us that a defendant’s “constitutional 

right to a jury trial swe[pt] more broadly than our case law 

previously recognized.” (Gallardo, supra, 4 Cal.5th at p. 138.) 

We “disapprove[d] People v. McGee” “insofar as it authorize[d] 

trial courts to make findings about the conduct that 

‘realistically’ gave rise to a defendant’s prior conviction.” 

(Gallardo, at pp. 125, 134.) We held the court’s factfinding role 

regarding prior convictions was now “limited to identifying 

those facts that were established by virtue of the [prior] 

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.” (Id.

at p. 136; see id. at p. 124 [the 6th Amend. “ ‘contemplates that 

a jury,’ ” not the court, will make such factual findings], 

quoting Descamps, supra, 570 U.S. at p. 269.) Applying these 

principles, we concluded the trial court violated the defendant’s 
In re MILTON

Opinion of the Court by Jenkins, J.

12

right to a jury trial, and we remanded the matter for the court 

to determine what the defendant necessarily admitted about 

the nature of her crime when she entered her plea. (Gallardo, 

at p. 138.) 

Justice Chin concurred in the majority’s conclusion that a 

defendant has the right to a jury trial on the nature of his or 

her prior conviction but disagreed with the majority’s remedy 

of remanding the matter for the trial court to review the record 

of conviction. (Gallardo, supra, 4 Cal.5th at p. 140 (conc. & dis. 

opn. of Chin, J.).) He proposed instead that a jury should 

review the record of conviction and that the defendant should 

have the option of presenting live testimony on remand: “The 

proper remedy for a violation of defendant’s jury trial right is 

to give her that jury trial.” (Ibid.) The majority rejected 

Justice Chin’s suggested remedy, which neither party had 

requested. (Id. at p. 138.) The majority stated that having a 

jury empaneled for the sole purpose of reviewing the record of 

conviction would raise concerns about compliance with 

Apprendi and would not involve procedural safeguards such as 

cross-examination of witnesses “that normally apply in 

criminal proceedings.” (Id. at p. 139.) The majority also 

stated, “Our precedent instructs that determinations about the 

nature of prior convictions are to be made by the court, rather 

than a jury, based on the record of conviction. (See McGee,

supra, 38 Cal.4th at p. 695.) We have explained that the 

purpose of the latter limitation is to avoid forcing the parties to 

relitigate long-ago events, threatening defendants with ‘harm 

akin to double jeopardy and denial of speedy trial.’ (Guerrero, 

supra, 44 Cal.3d at p. 355.) The Attorney General has not 

asked us to reconsider this aspect of our precedent.” (Gallardo, 

supra, at p. 138.) 
In re MILTON

Opinion of the Court by Jenkins, J.

13

III. Gallardo Does Not Apply Retroactively

A. General Principles

California courts have applied two tests for retroactivity, 

often referred to as the federal and state tests. (In re Thomas

(2018) 30 Cal.App.5th 744, 754 (Thomas).) Under both tests, a 

judicial decision that creates a “new rule” is generally not 

given retroactive effect in cases on collateral review that were 

final when the rule was announced. (Teague v. Lane (1989) 

489 U.S. 288, 306 (Teague); Donaldson v. Superior Court (1983) 

35 Cal.3d 24, 36.) Thus, the threshold question under both 

tests is whether a judicial decision constitutes a new rule. (In 

re Ruedas (2018) 23 Cal.App.5th 777, 799 (Ruedas).) A new 

rule, however, will nevertheless be given retroactive effect 

under either test if it is substantive, as opposed to procedural. 

(Teague, supra, 489 U.S. at p. 311; People v. Mutch (1971) 4 

Cal.3d 389, 395–396.) Therefore, the second question under 

both tests is whether the new rule announced by the judicial 

decision is procedural or substantive.

Under the federal test, rules that are both new and 

procedural do not apply retroactively to final judgments, 

without exception. (Edwards v. Vannoy (2021) 593 U.S. ___, 

[141 S.Ct. 1547, 1551–1552, 1560] (Edwards) [the United 

States Supreme Court’s decision striking down Louisiana’s 

nonunanimous jury verdict law is not retroactive to final 

judgments because it is a new procedural rule].)3 In contrast, 

3 Until recently, a new procedural rule could nevertheless 

be retroactive under the federal test if it was a “watershed” 

rule that altered “ ‘our understanding of the bedrock 

procedural elements that must be found to vitiate the fairness 
In re MILTON

Opinion of the Court by Jenkins, J.

14

in California, a new procedural rule may nevertheless be 

retroactive under People v. Johnson (1970) 3 Cal.3d 404 

(Johnson), a case in which this court recited three factors the 

United States Supreme Court had previously instructed courts 

to consider in determining whether a new rule applies 

retroactively to cases predating the announcement of the rule: 

“ ‘ “(a) the purpose to be served by the new standards, (b) the 

extent of the reliance by law enforcement authorities on the old 

standards, and (c) the effect on the administration of justice of 

a retroactive application of the new standards.” ’ ” (Id. at 

p. 410; In re Lopez (2016) 246 Cal.App.4th 350, 359, fn. 2 

[“[t]he California Supreme Court has articulated a different 

three-part test for determining retroactivity of judicial opinions 

involving questions of procedure”].)

“The application of [the various] procedural bars and 

limitations on the retroactivity of changes in the criminal law 

serves to protect the finality of judgments on collateral review.” 

(In re Martinez (2017) 3 Cal.5th 1216, 1222 (Martinez); see

Teague, supra, 489 U.S. at p. 306 [the government has a 

of a particular conviction.’ ” (Teague, supra, 489 U.S. at p. 

311.) Historically, there was such a high bar for a rule to be 

considered “watershed” that Gideon v. Wainwright (1963) 372 

U.S. 335, which held that indigent defendants have the right to 

counsel, was the only case that had met this exception. 

(Whorton v. Bockting (2007) 549 U.S. 406, 418.) Last year, the 

high court in Edwards, supra, 593 U.S. ___, [141 S.Ct. at 

pp. 1551–1552, 1560] acknowledged how narrow the watershed 

exception has been and eliminated it. In light of Edwards, 

which was decided six months after petitioner filed his reply 

brief, petitioner withdrew his argument that Gallardo 

announced a watershed rule. 
In re MILTON

Opinion of the Court by Jenkins, J.

15

legitimate interest in having judgments remain final, and 

collateral review “ ‘is not designed as a substitute for direct 

review’ ”].) Some California courts have applied the federal 

retroactivity test in deciding the retroactivity of new 

procedural rules (e.g., In re Moore (2005) 133 Cal.App.4th 68, 

77 [new procedural rule not retroactive under Teague]), while 

others have applied the state Johnson test (e.g., Thomas, 

supra, 30 Cal.App.5th at pp. 760–761 [new procedural rule not 

retroactive under Johnson]) or both tests (e.g., Ruedas, supra, 

23 Cal.App.5th at p. 799). We have neither explicitly 

disavowed Johnson nor explicitly adopted the federal Teague 

test for state collateral review proceedings (In re Hansen (2014) 

227 Cal.App.4th 906, 910), and we need not decide in this case 

what test applies to new procedural rules, because we reach 

the same conclusion under both tests.

B. Gallardo Is a New Rule Under Both 

Federal and State Law

Under federal law, a case will generally be considered to 

have announced a new rule where it “breaks new ground,” i.e., 

“the result was not dictated by precedent existing at the time 

the defendant’s conviction became final.” (Teague, supra, 489 

U.S. at p. 301.) The result in a given case is not dictated by 

precedent if it is “susceptible to debate among reasonable 

minds” (Butler v. McKellar (1990) 494 U.S. 407, 415) or if 

“reasonable jurists may disagree” (Sawyer v. Smith (1990) 497 

U.S. 227, 234). 

The California cases such as Guerrero that existed at the 

time petitioner’s conviction became final did not dictate our 

decision in Gallardo because Gallardo invalidated the prior 

procedure that Guerrero and other cases had approved. Nor 
In re MILTON

Opinion of the Court by Jenkins, J.

16

did federal precedent such as Apprendi, which existed at the 

time petitioner’s conviction became final, dictate our Gallardo

decision. In McGee, which we decided after Apprendi, we 

expressly distinguished Apprendi and declined to construe it in 

a manner that afforded a defendant the right to a jury trial on 

the nature of a prior conviction. (McGee, supra, 38 Cal.4th at 

pp. 696–697.) In other words, we did not view Apprendi and 

other existing United States Supreme Court precedent as 

dictating the result we later reached in Gallardo. 

Furthermore, as we stated in Gallardo, the law 

regarding a sentencing court’s authority to make factual 

findings about prior convictions was unsettled after Apprendi

was decided: “In the wake of Apprendi, questions arose about 

the scope of the so-called Almendarez-Torres exception to the 

general Sixth Amendment rule forbidding judicial factfinding 

in criminal cases.” (Gallardo, supra, 4 Cal.5th at p. 128; see 

id. at pp. 127, 138 [acknowledging it would have been difficult 

for the parties in Gallardo to know how Apprendi and 

Descamps would have affected their case].) We conclude that 

Gallardo announced a new rule under the federal test because

precedent that existed at the time petitioner’s conviction 

became final did not dictate our decision in Gallardo.

4

4 Petitioner argues Gallardo is nevertheless retroactive 

under In re Gomez (2009) 45 Cal.4th 650 (Gomez), but that 

case is distinguishable. There, this court decided the 

retroactivity of the high court’s holding in Cunningham v. 

California (2007) 549 U.S. 270 (Cunningham) — that 

California’s determinate sentencing laws violated the rule 

articulated in Blakely v. Washington (2004) 542 U.S. 296 

(Blakely) that an aggravating fact used to increase a sentence 
In re MILTON

Opinion of the Court by Jenkins, J.

17

Under California law, a rule is new where the decision 

“(1) explicitly overrules a precedent of [the California Supreme 

Court] [citation], or (2) disapproves a practice impliedly 

sanctioned by prior decisions of [the California Supreme Court] 

[citation], or (3) disapproves a longstanding and widespread 

practice expressly approved by a near-unanimous body of 

lower-court authorities.” (People v. Guerra (1984) 37 Cal.3d 

385, 401 (Guerra); see Donaldson v. Superior Court, supra, 35 

Cal.3d at p. 36 [a decision that “only elucidates and enforces 

prior law” does not create new law].)

Petitioner concedes, and we agree, that “Gallardo

satisfies this threshold inquiry, as it disapproved prior 

California Supreme Court law” by “overrul[ing] the prior 

precedent set forth in Guerrero and McGee.” In Gallardo, we 

explicitly overruled McGee, which had, until then, provided 

controlling precedent on a trial court’s authority to make 

beyond the standard range had to be found by a jury. Blakely

had already been decided by the time the petitioner was 

sentenced, but Cunningham had not. (Gomez, supra, 45 

Cal.4th at p. 653.) This court held in Gomez that Cunningham 

was retroactive to the petitioner’s final judgment because it did 

not announce a “new rule,” but instead was “dictated” by 

Blakely. (Gomez, supra, 45 Cal.4th at p. 658.) In so 

concluding, this court emphasized that the high court made it 

clear in Cunningham that it was “simply appl[ying]” Blakely’s 

“ ‘bright-line-rule’ ” to California’s sentencing laws and that it 

“d[id] not view its application of Blakely to California law as an 

extension or modification of the [Blakely] rule.” (Gomez, supra, 

45 Cal.4th at pp. 660, 658.) In contrast, in deciding Gallardo, 

we did not “simply appl[y]” Apprendi or other precedent that 

existed at the time petitioner’s conviction became final. (Id. at 

p. 660.) 
In re MILTON

Opinion of the Court by Jenkins, J.

18

factual findings when determining whether a prior conviction 

qualified as a strike. (See Saffle v. Parks (1990) 494 U.S. 484, 

488 [“[t]he explicit overruling of an earlier holding no doubt 

creates a new rule”].) We did not merely “explain or refine the 

holding of a prior case, . . . apply an existing precedent to a 

different fact situation, . . . or . . . draw a conclusion that was 

clearly implied in or anticipated by previous opinions.” 

(Guerra, supra, 37 Cal.3d at p. 399 [listing “common examples 

of decisions that do not establish a new rule of law”].)

C. Gallardo Is a Procedural, Not Substantive Rule, 

Under Both Federal and State Law

Federal and state cases distinguish between substantive

and procedural rules in similar ways. We therefore review 

federal and state authorities relevant to this substantiveprocedural dichotomy together and conclude the Gallardo rule 

is procedural under both the federal and state tests. 

Both federal and state cases have held that a rule is 

substantive rather than procedural where it “ ‘alters the range 

of conduct or the class of persons that the law punishes.’ ” 

(Welch v. United States (2016) 578 U.S. 120, 129 (Welch); see

Martinez, supra, 3 Cal.5th at p. 1222.) “ ‘This includes 

decisions that narrow the scope of a criminal statute by 

interpreting its terms, as well as constitutional determinations 

that place particular conduct or persons covered by the statute 

beyond the State’s power to punish.’ ” (Welch, at p. 129; see In 

re Lopez, supra, 246 Cal.App.4th at p. 357.)

In Welch, the high court considered the retroactivity of 

its holding in Johnson v. United States (2015) 576 U.S. 591, 

597, invalidating as unconstitutionally vague a provision of the 

ACCA that defined “violent felony” as any felony that 
In re MILTON

Opinion of the Court by Jenkins, J.

19

“ ‘otherwise involves conduct that presents a serious potential

risk of physical injury to another.’ ” (Welch, supra, 578 U.S. at 

p. 123.) The high court held this new rule was substantive 

because all defendants whose sentences had been enhanced

under the now-invalidated provision were categorically 

excluded from enhanced punishment as a result of the new 

rule. In other words, the new rule “changed the substantive 

reach of the [ACCA], altering ‘the range of conduct or the class 

of persons [the ACCA] punishes.’ ” (Welch, at p. 129.) In 

Martinez, we held that our holding in People v. Chiu (2014) 59 

Cal.4th 155 that a natural and probable consequences theory 

of liability can no longer serve as a basis for a first degree 

murder conviction was a substantive change in the law that 

applied retroactively to final judgments. (Martinez, supra, 

3 Cal.5th at pp. 1222–1223.) As in Welch, the new rule we 

announced in Chiu was substantive because all defendants 

who had been convicted of first degree murder under the nowinvalidated natural and probable consequences theory were 

categorically entitled to relief from their convictions as a result 

of the new rule. 

“Procedural rules, by contrast, ‘regulate only the manner 

of determining the defendant’s culpability.’ [Citation.] Such 

rules alter ‘the range of permissible methods for determining 

whether a defendant’s conduct is punishable.’ [Citation.] 

‘They do not produce a class of persons convicted of conduct the 

law does not make criminal, but merely raise the possibility 

that someone convicted with use of the invalidated procedure 

might have been acquitted otherwise.’ ” (Welch, supra, 578 

U.S. at p. 129; see Schriro v. Summerlin (2004) 542 U.S. 348, 

352 (Schriro) [procedural rules have a “more speculative 

connection to innocence”].) “If a new rule regulates only the 
In re MILTON

Opinion of the Court by Jenkins, J.

20

procedures for determining culpability, the Teague balance 

generally tips in favor of finality. The chance of a more 

accurate outcome under the new procedure normally does not 

justify the cost of vacating a conviction whose only flaw is that 

its procedures ‘conformed to then-existing constitutional 

standards.’ ” (Welch, supra, 578 U.S. at p. 131.) Some 

examples of procedural rules are ones that “alter[] only the 

procedures used to obtain the conviction,” “ ‘allocate 

decisionmaking authority’ between judge and jury, [citation], 

or regulate the evidence that the court [may] consider in 

making its decision.” (Id. at pp. 131, 130.)

In its most recent retroactivity case, the United States 

Supreme Court stated that its decision striking down 

Louisiana’s nonunanimous jury verdict law, which permits 

conviction by a 10-2 vote, was a procedural rule because it 

“alter[ed] ‘only the manner of determining the defendant’s 

culpability.’ ” (Edwards, supra, 593 U.S. ___, [141 S.Ct. at 

p. 1562], quoting Schriro, supra, 542 U.S. at p. 353; see Jones 

v. Mississippi (2021) ___ U.S. ___, ___ [141 S.Ct. 1307, 1318, fn. 

4].) Similarly, the rule from Crawford v. Washington (2004) 

541 U.S. 36 that the confrontation clause gives defendants the 

right to confront and cross-examine witnesses was procedural 

because, while it narrowed the class of persons subject to 

criminal punishment, it merely changed the “procedure for 

determining whether the admission of hearsay statements 

violated the confrontation clause.” (In re Moore, supra, 133 

Cal.App.4th at p. 75; see Whorton v. Bockting, supra, 549 U.S. 

at p. 417 [“it is clear and undisputed that the [Crawford] rule 

is procedural and not substantive”]; Ruedas, supra, 23 

Cal.App.5th at p. 793 [the rule from People v. Sanchez (2016) 

63 Cal. 4th 665 that an expert witness’s out-of-court 
In re MILTON

Opinion of the Court by Jenkins, J.

21

testimonial statements about case-specific facts violates the 

confrontation clause (Sanchez rule) is procedural, not 

substantive].) 

Petitioner argues the Gallardo rule is substantive 

because, “[b]y limiting imposition of an increased sentence to 

circumstances where the prior conviction itself, as distinct 

from the underlying conduct, supports the increased sentence,” 

the rule “ ‘alter[ed] the range of conduct or the class of persons 

that the law punishes’ ” and “effectively ‘modifie[d] the 

elements’ [citation] of the prior conviction allegation.” We 

disagree. Unlike Welch, Martinez, and other cases in which 

courts have found rules to be substantive in nature, Gallardo

did not change the law in a way that excludes certain types of 

offenders from the reach of the law (here, the Three Strikes 

law) nor did it categorically provide relief to all defendants who 

were sentenced under the pre-Gallardo rule. 5 Nor did our 

decision in Gallardo “ ‘narrow the scope of a criminal statute’ ”

(Welch, supra, 578 U.S. at p. 129) for example, by eliminating 

out-of-state prior convictions or convictions involving personal 

use of a firearm or a deadly weapon as qualifying serious 

felonies.

Rather, the Gallardo rule “regulate[d] the evidence that 

the court could consider” in making prior conviction 

5 For example, in both In re Scott, supra, 49 Cal.App.5th at 

p. 1019, review granted, and In re Haden, supra, 49 

Cal.App.5th at p. 1107 (conc. opn. of Tucher, J.), review 

granted, the Courts of Appeal held that Gallardo is not 

retroactive but stated that even if it were, the petitioners in 

those cases would not be entitled to relief.
In re MILTON

Opinion of the Court by Jenkins, J.

22

determinations (Welch, supra, 578 U.S. at p. 130) by 

precluding courts from looking at anything other than “those 

facts that were established by virtue of the [prior] 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” (Gallardo, supra, 4 Cal.5th 

at p. 136). 

Petitioner argues that “the class of persons who may be 

subject to the punishment has been limited as well” because, 

by limiting the evidence on which a court may rely in making 

prior conviction determinations, Gallardo effectively 

“narrow[ed] the universe of the defendants for whom a 

sentence can be enhanced based on a prior conviction.” 

However, most, if not all, new procedural rules — such as the 

high court’s invalidation of Louisiana’s nonunanimous jury 

verdict law (Edwards, supra, 593 U.S. ___, [141 S.Ct. 1547]) or 

the Crawford and Sanchez rules — likely “narrow[] the 

universe of defendants” “subject to the punishment” in the 

sense that fewer defendants will have been convicted if the 

new rules had been in effect at the time they were tried. 

However, as discussed above, more is required before we may 

conclude that a new rule is substantive in nature. A new rule 

is not substantive merely because it “ ‘raise[s] the possibility 

that someone convicted with use of the invalidated procedure 

might have been acquitted otherwise.’ ” (Welch, supra, 578 

U.S. at p. 129.)

Notably, we described the trial court’s error in Gallardo

as one concerning the “form” of judicial factfinding, stating,

“[T]he court engaged in a form of factfinding that strayed 

beyond the bounds of the Sixth Amendment” in finding the 

defendant used a knife. (Gallardo, supra, 4 Cal.5th at p. 136.) 
In re MILTON

Opinion of the Court by Jenkins, J.

23

And, consistent with our view of the court’s error in Gallardo, 

we remanded the matter, instructing the trial court to 

reconsider its factual finding of the defendant’s knife use “in 

accordance with this opinion,” that is, by considering only “ ‘the 

record of the prior proceeding’ ” to determine “ ‘what facts [the 

defendant] necessarily admitted in entering her plea.’ ” (Id. at

pp. 140, 130, 137.) We did not remove the defendant or any 

group of people from the reach of applicable sentencing laws, 

and we did not conclude that the conduct underlying her prior 

conviction, i.e., whether she used a knife, was no longer 

relevant. Instead, we described the procedural changes that 

would apply to the court’s determination on remand of whether 

the prior conviction qualified as a prior strike.6 We therefore 

conclude the Gallardo rule, which “prescribe[d] the manner of 

finding facts to increase the defendant’s sentence” by changing 

“ ‘ “the range of permissible methods for determining whether 

a defendant’s conduct is punishable,” ’ ” was procedural in 

nature. (Milton, supra, 42 Cal.App.5th at p. 992; In re Brown, 

supra, 45 Cal.App.5th at p. 716, review granted [disagreeing 

with the Milton court on the ultimate question of Gallardo’s 

retroactivity but agreeing that the new rule that Gallardo

announced was procedural, not substantive].)

6 Although the offense in Gallardo involved a divisible 

offense, Gallardo did not decide that the Three Strikes law 

could have no possible application in cases involving indivisible 

offenses. Accordingly, the Court of Appeal in Milton stated 

that if Gallardo applied retroactively, petitioner would not be 

automatically entitled to relief, but the matter would need to 

be remanded for a redetermination of the prior offenses under 

the procedure announced in Gallardo. Other Courts of Appeal 

have reached similar conclusions after Gallardo.
In re MILTON

Opinion of the Court by Jenkins, J.

24

Our conclusion is buttressed by cases that have held that 

rules protecting a defendant’s Sixth Amendment right to a jury 

finding on facts needed to support increased sentences are 

procedural. “[T]he United States Supreme Court has made it 

clear that Apprendi, and cases following it, did not alter state 

substantive law.” (People v. Anderson (2009) 47 Cal.4th 92, 

118.) In People v. Amons (2005) 125 Cal.App.4th 855, 865, the 

Court of Appeal held that the holding in Blakely that an 

aggravating fact other than a prior conviction used to increase 

a sentence beyond the statutory standard range must be found 

by a jury “is a procedural rule that affects only the manner of 

determining the defendant’s punishment.” (See Schardt v. 

Payne (9th Cir. 2005) 414 F.3d 1025, 1036 [Blakely, which 

“allocated some of the decision-making authority previously 

held by judges to juries,” is a procedural rule].) And in Schriro, 

supra, 542 U.S. at page 358, the United States Supreme Court 

explained that its holding in Ring v. Arizona (2002) 536 U.S. 

584, that a defendant has a Sixth Amendment right to have a 

jury find facts sufficient to impose the death penalty, was a 

procedural rule.7

7 The cases on which petitioner relies in arguing the 

Gallardo rule was substantive do not support his position. In 

Montgomery v. Louisiana (2016) 577 U.S. 190, the United 

States Supreme Court held that a new rule invalidating 

mandatory sentencing schemes that require juveniles to be 

sentenced to life in prison without parole (LWOP) applied 

retroactively. In People v. Trujeque (2015) 61 Cal.4th 227, we 

held that a decision barring prosecution of a juvenile as an 

adult after the juvenile court has commenced adjudicatory 

proceedings applied retroactively. In both cases, the new rules 

exempted a whole category of people (juveniles) from ever 
In re MILTON

Opinion of the Court by Jenkins, J.

25

facing trial or receiving mandatory LWOP sentences and 

redefined the class of people who could be punished. 

Allen v. Ives (9th Cir. 2020) 950 F.3d 1184, which 

petitioner cites, as well as Holt v. U.S. (7th Cir. 2016) 843 F.3d 

720 and Hill v. Masters (6th Cir. 2016) 836 F.3d 591, on which 

Justice Liu relies, are also distinguishable. In Allen v. Ives, the 

court stated that Descamps and Mathis announced a 

substantive rule because they “alter[ed] ‘the range of conduct’ ” 

the law punished. (Allen v. Ives, supra, 950 F.3d at p. 1192.) 

As we noted above, in Descamps and Mathis, the high court 

interpreted the ACCA, an elements-based statutory scheme, in 

a way that limited its substantive reach to prior convictions 

that matched the elements of an ACCA offense. (Descamps, 

supra, 570 U.S. at pp. 277–278 [California burglary is not a 

qualifying offense under the ACCA]; Mathis, supra, 579 U.S. at 

p. 509 [Iowa burglary is not a qualifying offense under the 

ACCA].) Thus, because of the Descamps and Mathis decisions, 

an entire category of defendants, i.e., those whose sentences 

were enhanced under the ACCA based on prior California or 

Iowa burglary convictions, are no longer subject to sentence 

enhancements based on those prior convictions. 

In contrast to the ACCA, the Three Strikes law does not 

define qualifying offenses strictly by their elements but looks 

to the conduct underlying the offense. (See, e.g., Guerrero, 

supra, 44 Cal.3d at p. 352.) For example, unlike the ACCA, 

section 1192.7 defines as “serious felonies” offenses that do not 

correspond to any established offense under California law; 

these offenses instead focus on the factual content of the crime, 

such as gun use. In other words, these offenses would never be 

established merely by the fact of conviction or by consideration 

of formal elements alone. Because it is the Three Strikes law 

itself that required (and still requires) a judge to consider “the 

nature of the conduct underlying a prior conviction” when 

determining whether that conviction qualifies as a strike,

Gallardo was not, and could not have been, a “state law analog 

to Descamps and Mathis” as Justice Liu asserts it was 

intended to be. (Dis. opn. of Liu, J., post, at p. 5.) In Gallardo, 

which involved application of the Three Strikes law, we did not 
In re MILTON

Opinion of the Court by Jenkins, J.

26

Because Gallardo announced a new procedural rule, it is 

not retroactive to final judgments under the federal 

retroactivity test. (Edwards, supra, 593 U.S. ___, [141 S.Ct. at 

pp. 1551–1552, 1560] [under the federal test, new rules of 

criminal procedure are not retroactive on collateral review, 

without exception].) 

D. Gallardo Is Also Not Retroactive Under the 

State Johnson Test

We likewise conclude Gallardo is not retroactive under 

the state test we announced in Johnson. Under Johnson, the 

retroactivity of a new rule is determined by “ ‘ “(a) the purpose 

to be served by the new standards, (b) the extent of the 

reliance by law enforcement authorities on the old standards, 

and (c) the effect on the administration of justice of a 

retroactive application of the new standards.” ’ ” (Johnson, 

supra, 3 Cal.3d at p. 410.) The first factor — the purpose of 

the new rule — is the critical factor in determining 

retroactivity. The other “factors of reliance and burden on the 

administration of justice are of significant relevance only when 

the question of retroactivity is a close one after the purpose of 

the new rule is considered.” (Ibid.; see Guerra, supra, 37 

Cal.3d at pp. 401–402.) 

make substantive changes to the Three Strikes law (pp. 20–23, 

ante) but instead addressed the procedural issue of how the 

court should go about making the determination of whether a 

prior conviction counts as a strike. Namely, we altered the 

source material from which a judge could draw in making that 

determination: after Gallardo, a judge may consider only 

those “facts that were necessarily found in the course of 

entering the conviction.” (Gallardo, supra, 4 Cal.5th at p. 134.)
In re MILTON

Opinion of the Court by Jenkins, J.

27

Johnson is referred to as “the old federal standard” 

(Ruedas, supra, 23 Cal.App.5th at p. 799) because it is based 

on factors the United States Supreme Court articulated in a 

number of retroactivity cases beginning with Linkletter v. 

Walker (1965) 381 U.S. 618, 629 (Linkletter). In Linkletter, the 

high court set forth several factors relevant to the retroactivity

analysis, including “the prior history of the rule in question, its 

purpose and effect, and whether retrospective operation will 

further or retard its operation.” (Linkletter, supra, 381 U.S. at 

p. 629.) The court noted that “in each of the three areas in 

which we have applied our rule retrospectively the principle 

that we applied went to the fairness of the trial — the very 

integrity of the fact-finding process.” (Id. at p. 639, fn. 

omitted.) And the court suggested that this basic-fairness-andreliability test would apply differently on direct and collateral 

review. While “a change in law will be given effect while a case 

is on direct review,” the “effect of the subsequent ruling of 

invalidity on prior final judgments when collaterally attacked 

is subject to no set ‘principle of absolute retroactive invalidity’ 

but depends upon a consideration of” multiple factors, 

including “ ‘public policy in the light of the nature both of the 

statute and of its previous application.’ ” (Id. at p. 627, italics 

added.) Two years after Linkletter, in Stovall v. Denno (1967) 

388 U.S. 293, 297, the high court refined its analysis into a

three-part test based in part on the factors listed in Linkletter: 

(a) the purpose to be served by the new standards; (b) the 

extent of the reliance by law enforcement authorities on the old 

standards; and (c) the effect on the administration of justice of 

a retroactive application of the new standards.

In 1970, we adopted the Linkletter-Stovall approach in 

Johnson and surveyed the high court’s retroactivity decisions 
In re MILTON

Opinion of the Court by Jenkins, J.

28

for guidance on how to apply the three factors. (Johnson, 

supra, 3 Cal.3d at p. 410.) In discussing the high court’s 

retroactivity cases, we — like the high court — noted that in 

many of those cases, concerns about basic fairness determined 

whether a new rule was retroactive. We observed, for example,

that the high court gave retroactive effect to new rules 

protecting a defendant’s right to counsel at various stages of a 

trial “because denial of counsel ‘must almost invariably deny a 

fair trial.’ ” (Id. at p. 411.) We noted that in contrast, the high 

court did not give retroactive effect to a rule that provided 

defendants with the right to counsel at lineup because “the 

absence of counsel does not render a lineup unfair per se.” (Id.

at p. 412.) We also noted that cases requiring juries, rather 

than judges, to decide serious criminal cases were not 

retroactive “because although those cases recognized that 

juries may serve to prevent arbitrariness and repression, they 

did not rest on any assumption that nonjury trials are more 

likely than jury trials to be unfair or unreliable.” (Ibid., citing 

DeStefano v. Woods (1968) 392 U.S. 631.) Based on that review 

of cases from the high court, we also stated that reliability was 

a core concern: “Fully retroactive decisions are seen as 

vindicating a right which is essential to a reliable 

determination of whether an accused should suffer a penal 

sanction. . . . [¶] On the other hand, decisions which have 

been denied retroactive effect are seen as vindicating interests 

which are collateral to or relatively far removed from the 

reliability of the fact-finding process at trial.” (Johnson, supra, 

3 Cal.3d at pp. 411–412.) 

Meanwhile, during the same period, disagreements 

developed at the high court over the Linkletter-Stovall

approach. The primary disagreement was sparked by the 
In re MILTON

Opinion of the Court by Jenkins, J.

29

court’s post-Linkletter conflation of direct and collateral review

for retroactivity purposes. Justice Harlan, in two influential 

minority opinions, criticized this development and emphasized

the need to return to Linkletter’s original distinction between 

cases on collateral and direct review, with much more 

stringent retroactivity standards to be applied to cases on 

collateral review. (Desist v. United States (1969) 394 U.S. 244, 

258 (Desist) (dis. opn. of Harlan, J.); Mackey v. United States

(1971) 401 U.S. 667, 692–693, 696 (Mackey) (conc. & dis. opn. 

of Harlan, J.).) 8 The high court largely adopted Justice 

Harlan’s proposals by eventually holding that new rules will 

apply retroactively on direct review (Griffith v. Kentucky (1987) 

479 U.S. 314, 322), while they will only rarely be applied 

retroactively on collateral review (Teague, supra, 489 U.S. at 

pp. 308, 310, 317, 319–320 [emphasizing the need to respect 

the finality of judgments on collateral review]).

Following the United States Supreme Court’s decision in 

Teague, we have not had much occasion to apply Johnson’s 

8

In these opinions, Justice Harlan stated that new 

substantive rules should apply retroactively, while new 

procedural rules should be retroactive only where the 

procedures used were “so fundamentally devoid of the 

necessary elements of procedural due process as to require 

upsetting [the] conviction in spite of the fact that it was 

perfectly lawful when made final.” (Mackey, supra, 401 U.S. at 

pp. 699–700 (conc. & dis. opn. of Harlan, J.).) He also 

emphasized the importance of the finality of judgments and 

urged that courts should apply new rules retroactively on 

direct review but should not do so on collateral review except 

in very limited situations. (Desist, supra, 394 U.S. at p. 258 

(dis. opn. of Harlan, J.).)
In re MILTON

Opinion of the Court by Jenkins, J.

30

three-part test. It appears the last time we did so was in 

People v. Carrera (1989) 49 Cal.3d 291, 327–328, an automatic 

appeal we decided six months after the high court decided 

Teague. However, a review of our post-Johnson cases, 

including more recent retroactivity cases from our court, 

indicates that we have incorporated some of the key 

developments in retroactivity law that the high court made in 

the post-Johnson years — developments that are largely 

consistent with Justice Harlan’s understanding of what 

Linkletter, the landmark case that ultimately gave rise to 

Johnson, originally required.

For example, in Johnson, we did not originally 

distinguish between cases on direct review and collateral 

review. But nearly all of our post-Johnson cases applying the 

Johnson test concerned retroactive application of a rule to 

nonfinal convictions. We later recognized a distinction 

between direct and collateral review in Guerra, where we 

stated that “even a . . . decision . . . that cannot serve as a basis 

for collateral attack on a final judgment . . . ordinarily governs 

all cases . . . on direct review . . . .” (Guerra, supra, 37 Cal.3d 

at p. 400; see Martinez, supra, 3 Cal.5th at p. 1222 [the various 

“procedural bars and limitations on the retroactivity of changes 

in the criminal law serves to protect the finality of judgments

on collateral review”].) We also did not distinguish between 

substantive and procedural rules in Johnson, but in cases 

decided post-Johnson, we have made that distinction clear by 

adopting the view that all substantive rules are retroactive. 

(E.g., Martinez, supra, 3 Cal.5th at pp. 1222–1223.) And, in 

the years following Johnson, we have incorporated some of the 

high court’s statements regarding fairness of the proceedings, 

focusing on both fairness and reliability as integral aspects of 
In re MILTON

Opinion of the Court by Jenkins, J.

31

our retroactivity determinations. (E.g., People v. Meyers (1987) 

43 Cal.3d 250, 267 [a new rule invalidating a jury selection 

procedure was not retroactive to cases in which juries were 

selected before the rule was announced because its purpose 

was to further 6th Amend. values, and the new rule “ ‘did not 

rest on the premise that every criminal trial’ ” conducted under 

the former jury selection procedure “ ‘was necessarily unfair’ ”]; 

People v. McDaniel (1976) 16 Cal.3d 156, 166, fn. 4 [citing 

Stovall for the proposition that denial of counsel not only 

would “adversely affect the truth-finding process” but would 

also “almost invariably lead to a denial of a fair trial”].)

With a fuller appreciation for the pre- and post-Johnson

developments that provide the framework for our analysis, 

including the added importance we place on the finality of 

judgments when evaluating the retroactivity of cases on

collateral review, we return to the question of whether the 

Gallardo rule is retroactive under the Johnson test. 

As we stated in Guerra — which concerned a nonfinal 

case on direct review — for a new rule to apply retroactively, 

its “ ‘major’ ” or “primary purpose” must be “to promote reliable 

determinations of guilt or innocence,” i.e., “ ‘ “ ‘to overcome an 

aspect of the criminal trial that substantially impairs its truthfinding function and so raises serious questions about the 

accuracy of guilty verdicts.’ ” ’ ” (Guerra, supra, 37 Cal.3d at 

pp. 402, 403.) For these purposes, the threshold for applying a 

case retroactively on collateral review is necessarily

demanding, given the important systemic interests in the 

stability and finality of judgments. (See Martinez, supra, 3

Cal.5th at p. 1222.) Petitioner argues Gallardo is retroactive 

under this standard because the “fundamental purpose of 

Gallardo is to promote fair and reliable determinations of the 
In re MILTON

Opinion of the Court by Jenkins, J.

32

defendant’s guilt or innocence on the allegation that he 

suffered a prior conviction qualifying as a strike under 

California law.” We disagree. 

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

in a manner akin to the practices the Linkletter court identified 

as paradigmatic examples of basic unfairness: 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. (See Linkletter, supra, 381 U.S. at p. 639, 

fn. 20.) During the many years in which it was the sentencing 

court’s role to make findings about the nature of prior 

convictions, for example, a pre-Gallardo sentencing court “still 

had to apply the beyond-a-reasonable-doubt standard of proof” 

in determining whether a prior conviction was a serious or 

violent felony. (Milton, supra, 42 Cal.App.5th at pp. 995, citing

People v. Frierson (2017) 4 Cal.5th 225, 233; see People v. 

Woodell (1998) 17 Cal.4th 448, 461 [there was evidence to 

support a finding, beyond a reasonable doubt, that the 

defendant’s out-of-state prior conviction involved the use of a 

deadly weapon for purposes of determining whether the prior 

conviction was a serious felony].) In addition, a pre-Gallardo

sentencing court was restricted to reviewing the record of the 

prior conviction and “no further,” which ensured the court 

would not base its determination on potentially unreliable 

information outside the record of conviction. (Guerrero, supra, 

44 Cal.3d at p. 355 [noting the restriction is “fair” and 

“reasonable”].) 
In re MILTON

Opinion of the Court by Jenkins, J.

33

Moreover, there were other safeguards in place to ensure 

the sentencing court would not base its findings on unreliable 

material in the record of conviction. In People v. Reed (1996) 

13 Cal.4th 217, for example, we held the sentencing court erred 

in relying on a probation report in determining the conduct 

underlying the defendant’s prior conviction (i.e., that he used a 

deadly weapon) because a court is permitted to rely only on 

documents that “reliably reflect[] the facts” of the prior offense. 

(Id. at p. 223.) We further observed that in contrast to the 

unreliable probation report, a preliminary hearing transcript 

on which the sentencing court relied was sufficiently reliable 

“because the procedural protections afforded the defendant 

during a preliminary hearing tend to ensure the reliability of 

such evidence. Those protections include the right to confront 

and cross-examine witnesses and the requirement those 

witnesses testify under oath, coupled with the accuracy 

afforded by the court reporter’s verbatim reporting of the 

proceedings.” (Ibid.) Because there were various safeguards in 

place that rendered the pre-Gallardo procedure reasonably fair 

and reliable, it cannot be said that our “ ‘major’ ” or “primary 

purpose” in announcing the Gallardo rule was “ ‘ “ ‘to overcome 

an aspect of the criminal trial that substantially impairs its

truth-finding function and so raises serious questions about the 

accuracy of guilty verdicts.’ ” ’ ” (Guerra, supra, 37 Cal.3d at 

pp. 402, 403.)

Petitioner asserts that reliability and fairness must have 

been core concerns of our decision in Gallardo because, in 

rejecting Justice Chin’s proposed remedy of a remand for a jury 

trial, the Gallardo majority noted that procedural safeguards 

such as cross-examination of witnesses would not be in place if 

we were to empanel a jury for the purpose of reviewing the 
In re MILTON

Opinion of the Court by Jenkins, J.

34

record of conviction from the prior case. (Citing In re Haden, 

supra, 49 Cal.App.5th at p. 1103 (conc. opn. of Tucher, J.), 

review granted [the Gallardo court’s “response to [Justice 

Chin’s dissent] reveals the breadth of interests at stake].)9 We 

do not believe the Gallardo majority’s rejection of the remedy 

proposed by Justice Chin can bear the weight petitioner places 

upon it. 

Notably, neither the Gallardo majority nor Justice Chin 

expressed any concern that the sentencing court’s factfinding 

about the defendant’s knife use substantially impaired the 

truth-finding function as compared to what a jury in the prior 

proceeding might have found.10 Instead, we stated in Gallardo

9 Amicus curiae Office of State Public Defender makes a 

similar argument: “[I]f this Court believed the only issue was 

the Sixth Amendment limit on judicial factfinding, it would 

have embraced the dissent’s proposed remedy and shifted 

factfinding to a sentencing jury.” 

10 “[J]udicial factfinding is not inherently unreliable or less 

reliable than jury factfinding.” (Milton, supra, 42 Cal.App.5th 

at p. 998.) “[A]lthough . . . cases recognize[] that juries may 

serve to prevent arbitrariness and repression, they d[o] not 

rest on any assumption that nonjury trials are more likely 

than jury trials to be . . . unreliable.” (Johnson, supra, 3 Cal.3d 

at p. 412.) “[F]or every argument why juries are more accurate 

factfinders [than judges], there is another why they are less

accurate.” (Schriro, supra, 542 U.S. at p. 356; see id. at p. 357 

[“it is hard to see how a trial in which a judge finds only 

aggravating factors could be” “impermissibly inaccurate”]; In re 

Consiglio (2005) 128 Cal.App.4th 511, 515 [same].) Even the 

majority of the Court of Appeal in In re Brown, which held 

Gallardo is retroactive, acknowledged that a court’s 

factfinding regarding the conduct underlying a prior conviction 

would not be more reliable than that of a jury: “We recognize 

that the factfinding process might not be any less reliable if 
In re MILTON

Opinion of the Court by Jenkins, J.

35

that we were going to “reconsider McGee” because the high 

court’s “further explication” of Sixth Amendment principles in 

Descamps and Mathis informed us that a defendant has the 

right to have a jury determine all facts relating to the nature of 

a prior conviction that are used to impose an increased 

sentence. (Gallardo, supra, 4 Cal.5th at pp. 124, 136.) The 

high court’s post-McGee decisions instructed us that a 

sentencing court was no longer permitted to make certain 

factual findings, even if those findings might have been 

entirely reliable, because a defendant has a Sixth Amendment 

right to have a jury of his peers make those types of findings. 

(See Blakely, supra, 542 U.S. at pp. 301, 313 [a defendant’s 

right to a jury “ ‘of his equals and [neighbors]’ ” is based on the 

“Framers’ paradigm for criminal justice” — “the common-law 

ideal of limited state power accomplished by strict division of 

authority between judge and jury”].) Thus, the “ ‘major’ ” or 

“primary purpose” of the Gallardo rule (Guerra, supra, 37 

Cal.3d at p. 402) was not to “vindicat[e] a right [that] is 

essential to a reliable determination of whether an accused 

should suffer a penal sanction” (Johnson, supra, 3 Cal.3d at 

p. 411) but to ensure our procedure was consistent with the 

high court’s “further explication” of “Sixth Amendment 

principles” (Gallardo, at pp. 136, 124).

Petitioner asserts the prior procedure, which allowed 

courts to enhance sentences based on factfinding regarding the 

conduct underlying prior convictions, was “fundamentally 

unfair” and raised reliability concerns because defendants 

conducted by the sentencing judge, and might even be better.” 

(In re Brown, supra, 45 Cal.App.5th at pp. 721–722.)
In re MILTON

Opinion of the Court by Jenkins, J.

36

lacked the incentive to contest facts regarding that conduct in 

the prior proceedings. We disagree, both as to petitioner’s case 

and as a general matter. The record here shows that the 

Illinois sentencing court relied on petitioner’s gun use in 

imposing an aggravated sentence on the armed robbery 

conviction. Because gun use could result in a longer sentence, 

petitioner would have had the incentive to contest it at his 

original sentencing and presumably would have done so if 

there were any question whether he used a gun in the 

commission of either robbery. More to the point, California 

defendants prior to Gallardo, in challenging whether the 

prosecution had proven a fact about a prior conviction beyond a 

reasonable doubt, could raise their lack of incentive to 

challenge that fact during the original proceedings, in the 

course of arguing the beyond-a-reasonable-doubt standard was 

not satisfied. (See People v. Smith (1988) 206 Cal.App.3d 340, 

346 [“Smith was not barred from presenting evidence the 

burglaries were not residential; his motive to do so was strong, 

particularly since his trial occurred pre-Alfaro”]; People v. 

Johnson (1989) 208 Cal.App.3d 19, 24 [“Since appellant’s 1983 

convictions occurred after section 667 was enacted, the 

residential allegations in the information were neither 

irrelevant nor superfluous. Given the consequences of section 

667, appellant had ample reason to contest the residential 

nature of the burglary charged when he pled guilty”]; People v. 

Skeirik (1991) 229 Cal.App.3d 444, 464 [“Both defendant and 

the state had an important incentive to contest the designation 

of his first degree conviction” as having been related to a 

deadly weapon, given statute that, at the time of conviction, 

forbade probation for defendant “ ‘who at the time of the 
In re MILTON

Opinion of the Court by Jenkins, J.

37

perpetration of said crime . . . was himself armed with a deadly 

weapon’ ”].) 

We are also mindful that courts prior to Gallardo were 

attempting to navigate a different fairness concern: the 

concern that courts should treat conduct underlying in-state 

and out-of-state offenses identically for purposes of our state’s 

recidivist statutes. The factfinding procedures in place prior to 

Gallardo — though ultimately inconsistent with the Sixth 

Amendment principles upon which our decision in Gallardo

rested — were intended, in part, to avoid the unfairness of 

treating defendants with essentially identical underlying 

conduct very differently under California’s recidivist 

sentencing laws. Given minor variations in the way different 

jurisdictions define criminal offenses — as in this case11 — our 

pre-Gallardo decisions reflected a concern that a strictly 

elements-based approach to assessing out-of-state prior 

convictions could unfairly treat defendants with essentially 

identical underlying conduct very differently simply because of 

the happenstance of where they committed their crimes. Our 

pre-Gallardo cases approved a different approach in part to 

ameliorate that fairness concern. Our cases had adopted the 

pre-Gallardo approach, in other words, in part to help ensure 

11 The definitions of California robbery and Illinois robbery 

are very similar. (See 720 Ill. Comp. Stat. Ann. 5/18-1 [“A 

person commits robbery when he or she knowingly takes 

property . . . from the person or presence of another by the use 

of force or by threatening the imminent use of force”]; § 211 

[“Robbery is the felonious taking of personal property in the 

possession of another, from his person or immediate presence, 

and against his will, accomplished by means of force or fear”].)
In re MILTON

Opinion of the Court by Jenkins, J.

38

that “[a] defendant whose prior conviction was suffered in 

another jurisdiction” would be “subject to the same 

punishment as a person previously convicted of an offense 

involving the same conduct in California.” (People v. Myers

(1993) 5 Cal.4th 1193, 1201.)12

Gallardo, of course, concluded the Constitution requires 

a different approach. But we are not, in sum, persuaded that 

the “ ‘major’ ” or “primary purpose” of the Gallardo rule was 

“ ‘ “ ‘to overcome an aspect of the criminal trial that 

substantially impairs its truth-finding function and so raises 

serious questions about the accuracy of guilty verdicts.’ ” ’ ” 

(Guerra, supra, 37 Cal.3d at pp. 402, 403.) Nor are we 

persuaded that our decision invalidated prior procedures that 

were fundamentally unfair or seriously undermined the 

accuracy or reliability of criminal sentencing procedures. (See 

Linkletter, supra, 381 U.S. at p. 639 & fn. 20.) As noted, the 

first Johnson factor is critical in determining retroactivity, and 

the second factor of law enforcement’s reliance on the old rule, 

and the third factor of the burden on the administration of 

justice “are of significant relevance only when the question of 

12 The point here is not, as Justice Groban suggests (dis. 

opn. of Groban, J., post, at p. 13), that the two defendants 

convicted of robbery, one in Illinois and one in California, 

necessarily engaged in identical conduct simply because they 

were both convicted of robbery. The point is that two 

defendants who actually did commit identical conduct would 

necessarily be treated differently under our state’s recidivist 

statutes unless courts were, pre-Gallardo, permitted to look 

beyond the elements of each state’s definition of robbery when 

determining whether each defendant’s offense qualified as a 

strike.
In re MILTON

Opinion of the Court by Jenkins, J.

39

retroactivity is a close one after the purpose of the new rule is 

considered.” (Johnson, supra, 3 Cal.3d at p. 410.) We conclude

the first Johnson factor’s effect on the issue of retroactivity is 

determinative and that we need not discuss whether the 

second and third Johnson factors also weigh against applying 

Gallardo retroactively. 

DISPOSITION

In light of all the pertinent considerations, we conclude 

the rule we announced in Gallardo is a new procedural rule 

and that it is not retroactive to cases on collateral review under 

both state and federal tests for retroactivity. Thus, it does not 

apply to petitioner’s final judgment. Accordingly, we affirm 

the decision of the Court of Appeal denying the petition for writ 

of habeas corpus.13

13 Petitioner argues that “alternatively,” his sentence is 

unauthorized and may be corrected at any time because it 

violated “the Sixth Amendment principles discussed in 

Gallardo.” (Citing, e.g., United States v. Johnson (1982) 457 

U.S. 537, 550; People v. Scott (1994) 9 Cal.4th 331, 354–355.) 

The argument is circular. If we conclude the Gallardo rule is 

retroactive, petitioner’s sentence was unlawful at the time of 

sentencing and is unauthorized. If the Gallardo rule is not 

retroactive, his sentence was lawful and is authorized. (See In 

re Brown, supra, 45 Cal.App.5th at p. 731 (dis. opn. of 

Menetrez, J.), review granted [“We cannot apply Gallardo

retroactively to render the sentence legally unauthorized and 

then infer from that lack of legal authorization that Gallardo 

must be retroactive”], italics omitted & added.) We also reject 

petitioner’s argument that his sentence was unauthorized by 

Apprendi. For the reasons we have explained, Apprendi and 

other United States Supreme Court cases that existed when 

petitioner’s conviction became final did not dictate our decision 

in Gallardo. (See pt. III B, ante.)
In re MILTON

Opinion of the Court by Jenkins, J.

40

JENKINS, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

KRUGER, J.

GUERRERO, J.
1

In re MILTON

S259954

Dissenting Opinion by Justice Liu

I join the dissenting opinion of Justice Groban. As he 

explains (dis. opn. of Groban, J., post, at pp. 2‒4), our decision 

in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo) operates 

retroactively because it substantively altered what constitutes 

“ha[ving] been convicted of a serious felony” and thereby 

modified what counts as a “strike” under the “Three Strikes” 

sentencing law. (Pen. Code, § 667, subd. (a)(1); all 

undesignated statutory references are to this Code.) Moreover, 

our decision in People v. Johnson (1970) 3 Cal.3d 404 furnishes 

an independent basis for the retroactivity of the Gallardo rule 

because the purpose of the rule is to promote the reliability of 

factual determinations concerning prior convictions. (Dis. opn. 

of Groban, J., post, at pp. 4‒14.) I write separately to 

underscore how the characterization of Gallardo in today’s 

opinion may reopen serious questions as to the 

constitutionality of the Three Strikes law.

Under the Three Strikes law, “[a] person convicted of a 

serious felony who previously has been convicted of a serious 

felony in this state or of any offense committed in another 

jurisdiction that includes all of the elements of any serious 

felony” shall receive an enhanced sentence. (§ 667, 

subd. (a)(1).) The term “serious felony” is defined by reference 

to section 1192.7, subdivision (c), which lists 42 types of 

criminal activity that qualify as serious felonies.
In re MILTON

Liu, J., dissenting

2

Our decision in Gallardo marked an important shift in 

how this sentencing enhancement statute is to be applied. 

Before Gallardo, a defendant was subject to an enhanced 

sentence wherever the defendant had a prior conviction and 

the record of that conviction revealed that the “conduct [which] 

likely (or ‘realistically’) supported the defendant’s [prior] 

conviction” fell within the statutory definition of a serious 

felony. (Gallardo, supra, 4 Cal.5th at p. 124.) But under the 

new standard set out in Gallardo, that is not enough. After 

Gallardo, a defendant stands “convicted of a serious felony” 

within the meaning of section 667, subdivision (a)(1) only if the 

“facts that were necessarily found [by the trier of fact] in the 

course of entering the conviction” establish that the defendant 

engaged in conduct satisfying the serious felony definition. 

(Gallardo, at p. 134.) Under the pre-Gallardo regime, such a 

showing would have been sufficient, but it would not have been 

necessary. Accordingly, I understand Gallardo to have 

narrowed who counts as having been “convicted of a serious 

felony” under the Three Strikes law. (§ 667, subd. (a)(1).)

This case requires us to decide whether Gallardo’s 

holding applies retroactively. The high court has held that a 

new rule must be applied retroactively where the rule is 

“substantive” rather than procedural (see Teague v. Lane 

(1989) 489 U.S. 288, 311) and that “[a] rule is substantive 

rather than procedural if it alters the range of conduct or the 

class of persons that the law punishes” (Schriro v. Summerlin 

(2004) 542 U.S. 348, 353). “This includes decisions that narrow 

the scope of a criminal statute by interpreting its terms.” (Id. 

at p. 351.) 

Gallardo did not change the range of conduct made 

subject to additional punishment under the Three Strikes law; 
In re MILTON

Liu, J., dissenting

3

the definition of “serious felony” was left untouched. But 

Gallardo did change the class of persons who can be so 

punished; our decision narrowed the scope of the sentencing 

enhancement statute by interpreting its terms. Like Justice 

Groban, I would hold that Gallardo announced a substantive 

rule that must be given retroactive effect under Teague.

Today’s opinion holds that Gallardo’s rule is merely 

procedural and “did not remove the defendant or any group of 

people from the reach of applicable sentencing laws.” (Maj. 

opn., ante, at p. 23.) “Rather,” this court says, “the Gallardo

rule ‘regulate[d] the evidence that the court could consider’ in 

making prior conviction determinations [citation] by 

precluding courts from looking at anything other than ‘those 

facts that were established by virtue of the [prior] 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.’ ” (Id. at pp. 21–22.) But 

such a reading of Gallardo is at odds with the concerns that 

motivated our opinion.

In Apprendi v. New Jersey (2000) 530 U.S. 466 

(Apprendi), the high court held that under the Sixth 

Amendment, “any fact that increases the penalty for a crime 

beyond the prescribed statutory maximum, other than the fact 

of a prior conviction, must be submitted to a jury, and proved 

beyond a reasonable doubt.” (Apprendi, at p. 490.) Apprendi

preserved an exception for sentencing enhancements based 

solely on the fact of a prior conviction — the AlmendarezTorres exception — on the ground that “there is a vast 

difference between accepting the validity of a prior judgment of 

conviction entered in a proceeding in which the defendant had 

the right to a jury trial and the right to require the prosecutor 
In re MILTON

Liu, J., dissenting

4

to prove guilt beyond a reasonable doubt, and allowing the 

judge to find the required fact under a lesser standard of 

proof.” (Id. at p. 496; see Almendarez-Torres v. United States 

(1998) 523 U.S. 224, 230, 244 (Almendarez-Torres).)

Both before and after Gallardo, the determination of 

whether a defendant’s prior conviction counts as a “convict[ion] 

of a serious felony” (§ 667, subd. (a)(1)) has been a 

determination to be made by a judge, not by a jury. For this 

arrangement to comply with Apprendi, it must fall within the 

limited Almendarez-Torres exception.

Gallardo was animated by our recognition that there are 

serious questions as to whether our previous Three Strikes 

jurisprudence can be reconciled with Apprendi in light of the 

high court’s discussions of that case in Descamps v. United 

States (2013) 570 U.S. 254 (Descamps) and Mathis v. United 

States (2016) 579 U.S. 500 (Mathis). Descamps and Mathis

concerned the application of a federal sentencing enhancement

statute, the Armed Career Criminal Act of 1984 (ACCA). (18 

U.S.C. § 924, subd. (e).) Although we acknowledged that both 

cases “were decided on statutory, rather than constitutional 

grounds,” we explained that “the high court’s interpretation of 

the relevant federal statute was informed by an understanding 

of . . . Sixth Amendment principles, and the court’s explication 

of those principles was both considered and unequivocal: The 

jury trial right is violated when a court adds extra punishment 

based on factfinding that goes ‘beyond merely identifying a 

prior conviction’ by ‘tr[ying] to discern what a trial showed, or 

a plea proceeding revealed, about the defendant’s underlying 

conduct.’ ” (Gallardo, supra, 4 Cal.5th at pp. 134, 135, quoting 

Descamps, supra, 570 U.S. at p. 269.)
In re MILTON

Liu, J., dissenting

5

Descamps and Mathis, we said, “are persuasive evidence 

that the Almendarez-Torres exception [to Apprendi] is 

narrower” than this court had previously supposed. (Gallardo, 

supra, 4 Cal.5th at p. 132.) Those decisions suggest that our 

pre-Gallardo case law could not be reconciled with the 

Almendarez-Torres exception because the statutory scheme as 

previously interpreted made a judge the trier of fact as to not 

merely “the fact of a prior conviction” but the nature of the 

conduct underlying a prior conviction. (Gallardo, at p. 130, 

quoting Apprendi, supra, 530 U.S. at p. 490.) We understood 

the high court to have interpreted the ACCA in Descamps and 

Mathis in a manner that avoids this potential Apprendi 

problem (Gallardo, at p. 133), and we construed the Three 

Strikes law to avoid that same problem (Gallardo, at p. 135 

[“We are persuaded, and we will follow the [high] court’s 

guidance.”]).

In other words, our decision in Gallardo was explicitly 

intended to be a state law analog to Descamps and Mathis. 

With this in mind, it is notable that the federal Courts of 

Appeals for the Sixth, Seventh, and Ninth Circuits have each 

concluded that the rules of Descamps and Mathis are 

substantive and must therefore be applied retroactively under 

Teague. (See Allen v. Ives (9th Cir. 2020) 950 F.3d 1184, 1192 

[“To the extent that Mathis and Descamps may be thought to 

have announced a new rule, we have no trouble concluding 

that the rule is one of substance rather than procedure. . . . 

We have previously recognized that decisions that alter the 

substantive reach of a federal statute apply retroactively”]; 

Holt v. United States (7th Cir. 2016) 843 F.3d 720, 722 [“While 

Holt’s appeal was pending we held that the version of the 

Illinois burglary statute under which he had been convicted is 
In re MILTON

Liu, J., dissenting

6

indeed not a ‘violent felony’ because it does not satisfy the 

definition of ‘burglary’ used in Mathis v. United States

[citation] for indivisible statutes. . . . [S]ubstantive decisions 

such as Mathis presumptively apply retroactively on collateral 

review.”]; Hill v. Masters (6th Cir. 2016) 836 F.3d 591, 595–596 

[“The Government concedes that, after Descamps . . . 

Maryland’s second-degree assault statute no longer constitutes 

a crime of violence for the purpose of the career-offender 

enhancement. [Citation.] Thus, were Hill to be sentenced 

today, he would not qualify as a career offender. The 

Government further concedes that Descamps and Royal apply 

retroactively”].) Today’s decision makes this court an outlier.

The court suggests these cases are inapposite because, 

unlike the federal statute at issue in Descamps and Mathis, the 

Three Strikes law allows courts to look beyond the elements of 

an offense and consider “the conduct underlying the offense.” 

(Maj. opn., ante, at p. 25, fn. 7.) It is true that, under Gallardo, 

a judge charged with determining whether a defendant is a 

person “previously convicted of a serious felony” for the 

purposes of section 667, subdivision (a)(1) makes this 

determination not by reference to the elements of the offense 

for which the conviction was entered, but rather by reference to 

the facts necessarily found by the trier of fact in entering the 

conviction. But that does not mean the Three Strikes law 

allows courts to find facts concerning the conduct underlying 

the offense. Under Gallardo, judges who administer the Three 

Strikes law are not charged with deciding questions about a 

defendant’s actual conduct, but only with determining what a 

jury necessarily found in entering a verdict of conviction. That 

is not a question about what the defendant did; it is a question 

about what a jury did (or, in the case of a bench trial or guilty 
In re MILTON

Liu, J., dissenting

7

plea, what a court did). We made clear in Gallardo that, were 

we to construe our statutory scheme to allow judges to “go[] 

‘beyond merely identifying a prior conviction’ by ‘tr[ying] to 

discern what a trial showed, or a plea proceeding revealed, 

about the defendant’s underlying conduct,’ ” this would likely 

violate the requirements of the Sixth Amendment. (Gallardo, 

supra, 4 Cal.5th at p. 135, quoting Descamps, supra, 570 U.S. 

at p. 269.)

I fear that the court’s reading of Gallardo today may 

resurrect the very Apprendi problem that Gallardo sought to 

avoid in construing the Three Strikes law. Before Gallardo, we 

had interpreted the scheme to allow judges to resolve factual 

questions concerning the nature of the conduct underlying 

prior convictions. We might have addressed this problem by 

having trial courts empanel a new jury to review the record of 

conviction and make its own judgment about the nature of the 

conduct on which a prior conviction was based. That was the 

approach suggested by Justice Chin in his dissent from 

Gallardo. (Gallardo, supra, 4 Cal.5th at pp. 140–144 (dis. opn. 

of Chin, J.).) Had we taken that approach, the question of 

what counts as having been “convicted of a serious felony” 

(§ 667, subd. (a)(1)) would have been unchanged; it still would 

turn on the nature of the conduct underlying the conviction. 

The change that would have been worked by Justice Chin’s 

proposed approach is that a jury, not a judge, would decide 

whether the conduct underlying the conviction constituted a 

serious felony. But that was not the path we chose. Instead, 

we clarified what counts as having been “convicted of a serious 

felony,” such that a judge may sit as a trier of fact only as to 

whether the facts necessarily found in the course of entering 

the prior conviction satisfy the statutory definition of “serious 
In re MILTON

Liu, J., dissenting

8

felony,” and not as to any details of the underlying conduct. 

We did not reallocate any decisionmaking authority from the 

judge to a jury; we clarified the question that the sentencing 

judge is tasked with deciding.

In sum, I cannot agree that the only change worked by 

Gallardo was the promulgation of a new rule of evidence for 

determining the nature of the conduct underlying a prior 

conviction. That characterization of Gallardo misapprehends 

its significance in reconciling the Three Strikes law with 

Apprendi in light of Descamps and Mathis. For this reason, 

and for the reasons set forth by Justice Groban, I respectfully 

dissent.

LIU, J.

I Concur:

GROBAN, J.
1

In re MILTON

S259954

Dissenting Opinion by Justice Groban

William Milton is currently serving an indeterminate 25-

years-to-life sentence because he purportedly used a gun in 

committing two robberies in Illinois over 10 years before he 

was convicted of a California robbery. Without a finding that 

he previously used a firearm in committing the Illinois 

robberies, Milton would have received a maximum prison term 

of five years. The allegation that he personally used a gun in 

the Illinois robberies was never pleaded, presented to a jury, 

nor admitted by Milton as part of a plea. Nonetheless, the 

California sentencing court relied on handwritten notes and 

statements from the Illinois sentencing judge “to determine 

what really happened” during Milton’s Illinois crimes and 

impose his “Three Strikes” sentence. The Attorney General, 

Milton, the majority, and I agree that this was error under our 

subsequent decision in People v. Gallardo (2017) 4 Cal.5th 120 

(Gallardo). (See In re Milton (2019) 42 Cal.App.5th 977, 999 

(Milton).) Nonetheless, the majority concludes that Milton has 

no recourse — he will continue to serve a 25-years-to-life 

sentence based upon a factual allegation that was never 

pleaded, found true by a jury, nor admitted as part of a plea —

because the rule effectuated by Gallardo is “procedural,” and 

“reliability and fairness [were not] core concerns of our 

decision . . . .” (Maj. opn., ante, at pp. 23, 32.) I do not agree 

that the rule set forth in Gallardo, which could mean the 

difference between a life in prison or a short determinate term 
In re MILTON

Groban, J., dissenting

2

for some petitioners, constitutes a mere procedural change in 

the law. As explained below, in my view, Gallardo should be 

given retroactive effect because it substantively changed the 

class of persons punishable under the Three Strikes law. (See 

Welch v. United States (2016) 578 U.S. 120, 129 (Welch).) 

Moreover, even if Gallardo’s rule is deemed procedural, I 

would still apply it retroactively because its core purpose is to 

enhance the reliability of the factfinding process for prior 

conviction determinations. (See People v. Johnson (1970) 

3 Cal.3d 404, 411 (Johnson).)

1. GALLARDO ANNOUNCED A NEW SUBSTANTIVE RULE

As the majority explains, “a rule is substantive rather 

than procedural where it ‘ “alters the range of conduct or the 

class of persons that the law punishes.” ’ ” (Maj. opn., ante, at 

p. 18.) Whereas a procedural rule “ ‘ “regulate[s] only the 

manner of determining the defendant’s culpability.” ’ ” (Id. at 

p. 19.) The majority concludes the rule announced in Gallardo 

falls into the procedural category because it merely 

“ ‘regulate[d] the evidence that the court could consider’ in 

making prior conviction determinations.” (Id. at p. 21.) From 

the majority’s perspective, Gallardo “did not remove the 

defendant or any group of people from the reach of applicable 

sentencing laws, and we did not conclude that the conduct 

underlying [Sulma Marilyn Gallardo’s] prior conviction, i.e., 

whether she used a knife, was no longer relevant.” (Id. at 

p. 22.) 

I disagree. Sure, the range of conduct that meets the 

relevant statutory definition of “serious felony” was unchanged 

by Gallardo. Before and after Gallardo, an out-of-state felony 

has qualified as a “serious felony” under California law if the 
In re MILTON

Groban, J., dissenting

3

defendant personally used a firearm or a dangerous or deadly 

weapon in committing the offense. (Pen. Code, § 1192.7, subd. 

(c)(8), (23).) Thus, the majority rightly observes that Gallardo 

“did not [hold] that the conduct underlying [the defendant’s] 

prior conviction, i.e., whether [Gallardo] used a knife, was no 

longer relevant.” (Maj. opn., ante, at p. 22.) But the 

prosecutor’s task in the Three Strikes context is not simply to 

prove that the defendant merely committed a felony that the 

statutory scheme defines as serious or violent; the prosecutor 

must prove that the defendant was convicted of such a felony 

(or felonies). (See Pen. Code, §§ 1170.12, subd. (a), 667, 

subds. (b)–(j); see also maj. opn., ante, at p. 6.) Because 

Gallardo altered what can serve as the basis for a prior 

conviction finding, it substantively redefined the class of 

persons eligible for punishment under the Three Strikes law. 

(See In re Martinez (2017) 3 Cal.5th 1216, 1222.)

More specifically, under the old regime, a defendant 

could be found to have suffered a prior serious felony 

conviction wherever the record revealed that, “realistically,” 

the conduct that supported the conviction satisfied the 

definition. (People v. McGee (2006) 38 Cal.4th 682, 706.) But 

now, because of Gallardo, a defendant can stand convicted of a 

serious felony within the meaning of the statute only if it can 

be shown that the “facts that were necessarily found in the 

course of entering the conviction” satisfy the serious felony 

definition. (Gallardo, supra, 4 Cal.5th at p. 134; see also id. at 

p. 136 [“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”]; id. at p. 138 [“While a 
In re MILTON

Groban, J., dissenting

4

trial court can determine the fact of a prior conviction without 

infringing on the defendant’s Sixth Amendment rights, it 

cannot determine disputed facts about what conduct likely 

gave rise to the conviction”].) Where a defendant’s conviction 

does not establish the facts necessary to render a prior offense 

a serious felony, a judge can no longer impose a Three Strikes 

sentence. In other words, Gallardo narrowed the universe of 

people eligible for Three Strikes treatment to those whose 

juries necessarily found true (or the defendant necessarily 

admitted as part of a guilty plea) the strike qualifying facts. 

So understood, Gallardo did not simply alter the procedures 

used, or evidence properly considered, when determining 

whether an individual suffered a prior strike conviction, it 

substantively changed the punishable class. (See Welch, 

supra, 578 U.S. at p. 129; id. at p. 130 [“Johnson [v. United 

States (2015) 576 U.S. 591] affected the reach of the underlying 

statute rather than the judicial procedures by which the 

statute is applied. Johnson is thus a substantive decision and 

so has retroactive effect . . . in cases on collateral review” 

(italics added)]; see also People v. Trujeque (2015) 61 Cal.4th 

227, 251 [“Using the high court’s rationale, it seems fair to 

characterize Breed’s [Breed v. Jones (1975) 421 U.S. 519, 531] 

double jeopardy rule as more substantive than procedural 

because without the rule’s retroactive application, a defendant 

would otherwise ‘face[] a punishment that the law cannot 

impose upon him’ ”].) I would therefore apply Gallardo 

retroactively to cases final on appeal. 
In re MILTON

Groban, J., dissenting

5

2. GALLARDO’S PRIMARY PURPOSE IS TO PROMOTE 

RELIABLE DETERMINATIONS OF GUILT OR INNOCENCE

Even if I were to accept the majority’s view that Gallardo 

merely set forth a new procedural rule (maj. opn., ante, pp. 20–

23), I would still apply it retroactively to final convictions 

under the state balancing test for the retroactive application of 

new rules. (See Johnson, supra, 3 Cal.3d 404.) As the 

majority explains, under our state test, if the judicial decision 

establishes a new rule, courts determine whether to apply the 

new rule based on three considerations — the purpose of the 

new rule, the reliance placed on the old rule, and the effect 

retroactive application would have on the administration of 

justice. (Id. at p. 410; maj. opn., ante, at pp. 25–26.) “The first 

factor — the purpose of the new rule — is the critical factor in 

determining retroactivity.” (Maj. opn., ante, at p. 26.) State 

courts are “free to give greater retroactive impact to a decision 

than the federal courts choose to give.” (Johnson, at p. 415.) 

Pursuant to Johnson, “[f]ully retroactive decisions are seen as 

vindicating a right which is essential to a reliable 

determination of whether an accused should suffer a penal 

sanction.” (Id. at p. 411; see maj. opn., ante, at p. 27 [quoting 

Johnson on this point].) I agree with petitioner that “[t]he 

fundamental purpose of Gallardo is to promote fair and 

reliable determinations of the petitioner’s guilt or innocence on 

the allegation that he suffered a prior conviction qualifying as 

a strike under California law.” 

In rejecting petitioner’s argument, the majority reasons 

that a pre-Gallardo sentencing court’s factfinding, beyond a 

reasonable doubt, based on the prior record of conviction was 

“reasonably fair and reliable.” (Maj. opn., ante, at p. 32; see id.

at pp. 31–35.) I disagree. The majority overlooks the fact that, 
In re MILTON

Groban, J., dissenting

6

by limiting a sentencing court to simply “identifying those facts 

that were established by virtue of the conviction itself,” 

Gallardo cabined a trial court’s authority in a way that was 

primarily meant to enhance the reliability of prior serious 

felony determinations. (Gallardo, supra, 4 Cal.5th at p. 136.) 

The sentencing judge is no longer permitted to fact find —

judges may not “ ‘[try] to discern what a trial showed, or a plea 

proceeding revealed, about the defendant’s underlying 

conduct’ ” (Id. at p. 135, quoting Descamps v. United States 

(2013) 570 U.S. 254, 269 (Descamps).) Instead, sentencing 

courts may now only identify those facts that were already 

found in “the deliberate and considered way the Constitution

guarantees.” (Descamps, at p. 273.) 

In fact, the manner in which Milton was sentenced here 

highlights the inherent unreliability of a trial court’s preGallardo prior conviction determinations — and how Gallardo 

remedied this unreliability. As the majority explains, in 1987, 

Milton was convicted of two robberies in Illinois: one armed 

robbery (convicted by jury) and one simple robbery (convicted 

by plea). The certified record from the Illinois case contained 

some handwritten notes on what appears to be a charging 

document. According to the notes, in the simple robbery, 

petitioner accosted the victim, demanded money, and took 

$338. The notes also indicated that petitioner “had a gun.” At 

sentencing, the Illinois court stated that, with respect to the 

plea/simple robbery case, the “stipulated facts” indicated 

petitioner “possessed a handgun.” Later in imposing sentence, 

the Illinois court observed in aggravation that, in both cases, 

petitioner “deliberately held a gun — a loaded gun — upon an 

individual.” 
In re MILTON

Groban, J., dissenting

7

In the California case, the prosecutor conceded that 

petitioner did not admit the arming allegation as part of his 

plea to the Illinois simple robbery, but argued that the Illinois 

judge’s handwritten notes (which the prosecutor believed the 

court made at sentencing) and his comments at sentencing 

indicated that petitioner used a gun. Defense counsel argued 

that the original arming allegation was dismissed and that it 

was unclear “who or what stipulated to anything” and where 

the “facts” in the notes came from. In any event, the 

stipulation only stated that petitioner “possessed a gun.” It did 

not show he used a firearm during the commission of the 

robbery, which is necessary to qualify the offense as a serious 

felony.1

The sentencing judge concluded that the Illinois robbery 

convictions qualified as California serious felonies noting that, 

“I see nothing wrong with going beyond the court record to 

determine what really happened. And in doing so, I am 

satisfied that the defendant used a gun in both robberies.” 

In other words, Milton was sentenced to a Three Strikes 

term because the sentencing judge was personally “satisf[ied],” 

based on details presented in notes and statements that were 

not necessary to Milton’s prior underlying guilt 

1

 Cf. People v. Chambers (1972) 7 Cal. 3d 666, 672 

(discussing the firearm use enhancement under Pen. Code, 

§ 12022.5 and explaining that “[b]y employing the term ‘uses’ 

instead of ‘while armed’ the Legislature requires something 

more than merely being armed”).
In re MILTON

Groban, J., dissenting

8

determinations, that he used a gun.2 This was not a reliable 

basis upon which to sentence Milton to an indeterminate 25-

years-to-life term. 

Now look at the impact Gallardo would have if Milton 

were sentenced today; the sentencing court would be limited to 

simply identifying those “facts that were necessarily found in 

the course of entering [Milton’s prior] conviction[s].” (Gallardo, 

supra, 4 Cal.5th at p. 134.) Thus, if Milton were sentenced 

today, the court would not be able to consider the purported 

facts in the Illinois judge’s handwritten notes or the judge’s 

2 Here, the California sentencing court essentially 

attached an uncharged personal firearm use enhancement to 

petitioner’s prior Illinois robberies to render them strikes. 

Such action arguably undermined additional case law from our 

court and the high court separate and apart from Gallardo. 

(See, e.g., Apprendi v. New Jersey (2000) 530 U.S. 466, 476 

[“ ‘under the Due Process Clause of the Fifth Amendment and 

the notice and jury trial guarantees of the Sixth Amendment, 

any fact . . . that increases the maximum penalty for a crime 

must be charged in an indictment, submitted to a jury, and 

proven beyond a reasonable doubt’ ”]; People v. Anderson

(2020) 9 Cal.5th 946, 953 [while citing our case law strictly 

interpreting statutory pleading and proof requirements, we 

noted that those requirements derive from “a bedrock principle 

of due process,” one that also applies to sentence 

enhancements since a defendant has the “ ‘right to fair notice 

of the specific sentence enhancement allegations that will be 

invoked to increase punishment for his crimes’ ”].) 

Furthermore, Milton makes the persuasive argument that 

such an allowance unfairly deprived him of the benefit of his 

plea bargain. In his simple robbery case in Illinois, an arming 

allegation was dismissed in exchange for his guilty plea, but 

the California court punished him as though he had pleaded 

guilty to a greater offense. 
In re MILTON

Groban, J., dissenting

9

statements at sentencing, which were of “questionable 

reliability” (Milton, supra, 42 Cal.App.5th at p. 995) and not 

“necessarily found in the course of entering [his] conviction[s]” 

(Gallardo, at p. 134). Gallardo’s limitation thereby eliminates 

the risk that an individual like Milton will be sentenced to a 

Three Strikes term on an unreliable basis. 

The pre-Gallardo risks to reliability are elucidated by the 

high court’s rationale for limiting a sentencing court to 

comparing elements between a prior crime of conviction and 

the relevant definition of a predicate offense for purposes of an 

enhanced sentence under the Armed Career Criminal Act. 

(See Descamps, supra, 570 U.S. at p. 257; Mathis v. United 

States (2016) 579 U.S. 500 (Mathis).) “The Armed Career 

Criminal Act (ACCA or Act), 18 U.S.C. § 924(e), increases the 

sentences of certain federal defendants who have three prior 

convictions ‘for a violent felony,’ including ‘burglary, arson, or 

extortion.’ To determine whether a past conviction is for one of 

those crimes, courts use what has become known as the 

‘categorical approach’: They compare the elements of the 

statute forming the basis of the defendant’s conviction with the 

elements of the ‘generic’ crime — i.e., the offense as commonly 

understood. The prior conviction qualifies as an ACCA 

predicate only if the statute’s elements are the same as, or 

narrower than, those of the generic offense.” (Descamps, at 

p. 257.) 

In Descamps, in explaining the rationale for its elementsbased approach, the high court observed that the meaning of 

records from prior convictions “will often be uncertain” as to 

nonelements of an offense because “[a] defendant, after all, 

often has little incentive to contest facts that are not elements 

of the charged offense — and may have good reason not to.” 
In re MILTON

Groban, J., dissenting

10

(Descamps, supra, 570 U.S. at p. 270.) The high court 

reiterated this same logic in Mathis, supra, 579 U.S. at page 

512, explaining that “[s]tatements 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 mistake 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.” (Fn. omitted; see

also Sessions v. Dimaya (2018) __ U.S. __ [138 S.Ct. 1204, 

1218] (plur. opn.) [“This Court has often described the 

daunting difficulties of accurately ‘reconstruct[ing],’ often 

many years later, ‘the conduct underlying [a] conviction’ ”].)

We expressed a desire to remedy similar concerns in 

adopting Gallardo’s rule. In concluding that the sentencing 

court improperly relied on the preliminary hearing transcript 

from Gallardo’s prior plea proceedings to conclude that she 

used a knife during her prior assault offense, we observed, “A 

sentencing court reviewing that preliminary transcript has no 

way of knowing whether a jury would have credited the 

victim’s testimony had the case gone to trial. And at least in 

the absence of any pertinent admissions, the sentencing court 

can only guess at whether, by pleading guilty to a violation of 

Penal Code section 245, subdivision (a)(1), defendant was also 

acknowledging the truth of the testimony indicating that she 

had committed the assault with a knife.” (Gallardo, supra, 

4 Cal.5th at p. 137, italics added.) Gallardo thus remanded 
In re MILTON

Groban, J., dissenting

11

the matter “to permit the People to demonstrate to the trial 

court, based on the record of the prior plea proceedings, that 

defendant’s guilty plea encompassed a relevant admission 

about the nature of her crime.” (Id. at p. 139.)

By limiting the sentencing judge to “identifying those 

facts that were established by virtue of the conviction itself” 

(Gallardo, supra, 4 Cal.5th at p. 136), Gallardo prohibits 

guesswork and reliance on inaccurate or incomplete records, 

such as that which occurred here. Gallardo thus necessarily 

eliminated the risk that an individual will be sentenced to a 

Three Strikes term on an unreliable basis. Stated differently, 

Gallardo’s “primary purpose” is “to promote reliable 

determinations of guilt or innocence.” (People v. Guerra (1984) 

37 Cal.3d 385, 402.) Gallardo should therefore be applied 

retroactively on collateral review under Johnson.

In rejecting the notion that Gallardo’s “ ‘primary 

purpose’ ” was to promote reliability, the majority underscores, 

inter alia, that a pre-Gallardo sentencing court was required to 

apply a beyond a reasonable doubt standard of proof to prior 

serious felony determinations and was limited to reviewing the 

record of the prior conviction. (Maj., opn., ante, at pp. 32–37.) 

But the majority fails to account for the fact that, before 

Gallardo, a sentencing judge could look to facts that were not 

“established by virtue of the conviction itself.” (Gallardo, 

supra, 4 Cal.5th at p. 136.) These unestablished facts, which 

were not necessary to the conviction, were “prone to error

precisely because their proof [was] unnecessary” (Mathis, 

supra, 579 U.S. at p. 512). As such, any determination based

on these extraneous facts would have been unreliable

irrespective of the standard of proof they were used to satisfy. 

In this way, it simply does not matter that pre-Gallardo courts 
In re MILTON

Groban, J., dissenting

12

were utilizing a beyond a reasonable doubt standard. What 

matters is that, in order to reach this conclusion, they were 

relying on information of “questionable reliability” (Milton, 

supra, 42 Cal.App.5th at p. 995) that they are not permitted to 

rely on after Gallardo. 

Furthermore, the majority rejects Milton’s claim that the 

pre-Gallardo procedure “raised reliability concerns because 

defendants lacked the incentive to contest facts regarding 

[conduct not critical to their convictions] in the prior 

proceedings.” (Maj. opn., ante, at pp. 34–35.) The majority 

observes that Milton had incentive to contest his gun use 

because the Illinois sentencing judge relied on it to impose an 

aggravated sentence. (Id. at p. 35.) But even if Milton’s 

potential incentive to challenge his gun use in Illinois lends 

reliability to the sentencing judge’s factfinding in Milton’s case 

(a premise I disagree with),3this circumstance has no bearing 

3 Even if the circumstances of this individual petitioner 

were relevant to our determination, the majority asks too 

much of him. When Milton was convicted in Illinois, he had no 

apparent notice that a California court might, years later, look 

at the judge’s notes and statements in the record from his 

Illinois sentencing hearing to dramatically enhance his 

sentence for an unrelated offense. I disagree with the premise 

that though Milton was not even charged with committing a 

crime involving personal use of a deadly weapon, he was 

nonetheless fully incentivized to contest personal use of a 

deadly weapon. Under these circumstances, and in light of the 

important reliability concerns at stake, I do not believe the 

onus should be on a petitioner to foresee such circumstances 

and create a fuller record or, years later, require him to “raise 

[his] lack of incentive to challenge that fact during the original 
In re MILTON

Groban, J., dissenting

13

on the question of Gallardo’s global impact on the reliability of 

guilt determinations. The issue we must decide here is 

whether Gallardo applies “retroactively to final judgments.” 

(Maj. opn., ante, at p. 2.) As the majority acknowledges, in 

order to answer this question, Johnson principally compels us 

to consider “the purpose of the new rule” in Gallardo. (Id. at 

p. 26, italics added.) The fact that one defendant might have 

had reason to challenge an unproven factual allegation used to 

enhance his sentence tells us nothing about Gallardo’s 

purpose. Moreover, I read the majority’s decision to apply far 

more broadly than to just this petitioner (id. at p. 38 [“In light 

of all the pertinent considerations, we conclude the rule we 

announced in Gallardo is . . . not retroactive to cases on 

collateral review under both state and federal tests for 

retroactivity”]), and therefore unique circumstances that may 

or may not apply to this petitioner should play no part in that 

proceedings, in the course of arguing the beyond-a-reasonabledoubt standard [for prior conviction determinations] was not 

satisfied.” (Maj. opn., ante, at p. 35.) The Court of Appeal 

decisions cited by the majority in support of a contrary 

conclusion do not persuade me otherwise. (See id. at p. 35.) 

Notably, in two of the cases, People v. Johnson (1989) 

208 Cal.App.3d 19, 24 and People v. Skeirik (1991) 

229 Cal.App.3d 444, 464, the sentence enhancing statutes at 

issue existed at the time the defendant was convicted of the 

prior offense, thereby making the defendant’s incentive to 

contest certain underlying conduct an arguably closer case; 

Milton, by contrast, was convicted of the Illinois robberies 

before the 1994 passage of the Three Strikes law. (See Ewing v. 

California (2003) 538 U.S. 11, 15 [detailing California’s 

passage of the Three Strikes law].) 
In re MILTON

Groban, J., dissenting

14

determination. Even if the majority were correct and Milton 

did have incentive to contest his gun use, there is no basis for 

concluding that all petitioners “as a general matter” (maj. opn, 

ante, at p. 35) had similar incentives in their prior proceedings.

Finally, the majority asserts that pre-Gallardo courts 

were trying to “avoid the unfairness of treating [out-of-state] 

defendants with essentially identical underlying conduct very 

differently under California’s recidivist sentencing laws” based 

on “minor variations in the way different jurisdictions define 

criminal offenses.” (Maj. opn., ante, at p. 36.) But these 

differences were not “minor,” and the defendants did not 

engage in “identical underlying conduct.” (Ibid.) For instance, 

as relevant to Milton’s crimes, “[a]n essential element of the 

California crime of robbery is ‘the [specific] intent to 

permanently deprive the person of the property,’ ” whereas 

“robbery and armed robbery are general intent crimes in 

Illinois.” (Milton, supra, 42 Cal.App.5th at p. 985.) The 

difference between general and specific intent can greatly 

distinguish a defendant’s culpability. (See People v. Moore 

(2018) 19 Cal.App.5th 889, 893 [“General intent crimes require 

only a general criminal intent to commit the proscribed act, 

while specific intent crimes require an additional intent to do

some further act or achieve some further consequence”].) Such 

differences are neither “minor” (maj. opn., ante, at p. 36) nor 

the result of mere “happenstance” (ibid.) and thus illustrate 

the importance of Gallardo’s new rule. Now, under Gallardo, 

“the conviction itself” (Gallardo, supra, 4 Cal.5th at p. 136)

must qualify a petitioner for Three Strikes treatment, which 

ensures that an out-of-state offender “actually did commit 

identical conduct.” (Maj. opn., ante, at p. 37, fn. 12.) For all 

these reasons, we should apply Gallardo retroactively and 
In re MILTON

Groban, J., dissenting

15

remand for an accurate assessment of Milton’s prior 

convictions (just as we did in Gallardo). (See id. at pp. 139–

140.)

3. CONCLUSION

The upshot of the majority’s holding is that even though 

Milton’s prior use of a gun was not pleaded or proven at trial, 

or admitted to by plea, and even though the parties and the 

majority all agree that the sentencing court engaged in 

improper factfinding to conclude he personally used a gun, his 

indeterminate 25-years-to-life sentence must stand. I would 

not let Milton continue to serve a Three Strikes term without 

certainty that this severe punishment is supported by facts 

“necessarily found in the course of entering [his] prior 

conviction[s].” (Gallardo, supra, 4 Cal.5th at p. 134.) Milton 

should get the chance to be resentenced based upon the more 

reliable rule we laid out in Gallardo, the very same rule that 

would apply if he or anyone else were sentenced today. I 

dissent. 

GROBAN, J.

I Concur:

LIU, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion In re Milton

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 42 Cal.App.5th 977

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________ 

Opinion No. S259954

Date Filed: August 22, 2022

__________________________________________________________ 

Court: Superior

County: Los Angeles

Judge: Ronald J. Slick

__________________________________________________________ 

Counsel:

Brad Kaiserman, under appointment by the Supreme Court, for 

Petitioner William Milton.

Mary K. McComb, State Public Defender, Elias Batchelder, Erik Levin 

and Jessie Hawk, Deputy State Public Defenders, as Amicus Curiae on 

behalf of Petitioner William Milton.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler 

and Lance E. Winters, Chief Assistant Attorneys General, Susan 

Sullivan Pithey, Assistant Attorney General, Michael C. Keller, Eric J. 

Kohm, Louis W. Karlin and Nicholas J. Webster, Deputy Attorneys 

General, for Respondent the People.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Brad Kaiserman

5870 Melrose Avenue # 3396

Los Angeles, CA 90038

(310) 367-7632

Nicholas J. Webster

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6103