In re Nelson

Filed 10/21/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re RICHARD ALLEN NELSON F079378

On Habeas Corpus. (Kern Super. Ct. No. LF005528A)

ORIGINAL PROCEEDINGS; application for writ of habeas corpus. Gary T.
Friedman, Judge.
Richard Allen Nelson, in pro. per., for Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Jennifer
Oleksa, and Cavan Cox, Deputy Attorneys General, for Respondent.
-ooOoo-
 In this opinion, we hold that People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo),
which limited a sentencing court’s factfinding abilities with respect to prior conviction
enhancement allegations, does not apply retroactively on collateral review of final
convictions. We further conclude the sentencing court in the present case did not violate
Gallardo’s proscriptions in any event. Accordingly, we deny the petition for writ of
habeas corpus.
PROCEDURAL HISTORY
A jury convicted Richard Allen Nelson (petitioner) of assault with a deadly
weapon upon a peace officer (Pen. Code,1 § 245, subd. (c); count 1), eluding a pursuing
peace officer with willful or wanton disregard for safety (Veh. Code, § 2800.2; count 2),
and resisting or deterring an executive officer (§ 69; count 3). Following a bifurcated
court trial, he was found to have suffered five prior “strike” convictions (§§ 667,
subds. (c)-(j), 1170.12, subds. (a)-(e)), and he was sentenced to 75 years to life in prison.
(People v. Nelson (Oct. 7, 2004, F043776) [nonpub. opn.] [2004 Cal.App. Unpub. Lexis
9147, *1-*2].)2 On appeal, we modified the judgment so that execution of sentence on
count 2 was stayed (§ 654), but otherwise affirmed. (People v. Nelson, supra, F043776
[2004 Cal.App. Unpub. Lexis, supra, at pp. *35-*36].) The California Supreme Court
denied review.
On September 27, 2018, petitioner filed a petition for writ of habeas corpus in
Kern County Superior Court, challenging his sentence. On December 27, 2018, the
petition was denied.

1 All statutory references are to the Penal Code unless otherwise stated.
2 By separate order, we have taken judicial notice of the record on appeal and our
opinion in case No. F043776. We cite the unpublished opinion in that case only to
explain the factual background of the present proceeding and not as legal authority. (Cal.
Rules of Court, rule 8.1115(a), (b); see The Utility Reform Network v. Public Utilities
Com. (2014) 223 Cal.App.4th 945, 951, fn. 3; Pacific Gas & Electric Co. v. City and
County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10.)

2.
 On June 4, 2019, petitioner filed the instant petition for writ of habeas corpus with
this court. In it, he alleged (1) because his five prior felony convictions arose from a
single course of conduct, they constituted only one strike; (2) in determining whether the
prior convictions constituted strikes, the trial court relied on documents and evidence that
were not part of the record of conviction; (3) in determining whether the strike allegations
were proven, the trial court relied on uncertified documents; and (4) the trial court
imposed an unlawful sentence on count 3. On September 26, 2019, this court summarily
denied the petition.
Petitioner sought review in the California Supreme Court. On January 2, 2020,
review was granted. The Supreme Court transferred the matter back to this court, with
directions to vacate our summary denial and to order the Secretary of the Department of
Corrections and Rehabilitation to show cause why petitioner is not entitled to relief
pursuant to Gallardo, and why Gallardo should not apply retroactively on habeas corpus
to final judgments of conviction. On January 7, 2020, we vacated our prior summary
denial and issued the order to show cause. We also directed the Secretary to address the
issue of whether reliance upon admissions in the plea form violates the proscriptions of
Gallardo. The Secretary (respondent) filed a return to the order to show cause on
January 30, 2020. Petitioner filed traverses on March 20 and 25, 2020.
DISCUSSION
I
GALLARDO DOES NOT APPLY RETROACTIVELY TO CONVICTIONS THAT ARE FINAL.
A. Gallardo and Its Predecessors
“ ‘In order for a prior conviction from another jurisdiction to qualify as a strike
under the Three Strikes law, it must involve the same conduct as would qualify as a strike
in California.’ ” (People v. Woodell (1998) 17 Cal.4th 448, 453.) For years, California
law permitted sentencing courts to examine “the entire record” of a conviction “to
determine the substance of” that conviction for sentence enhancement purposes (People

3.
v. Guerrero (1988) 44 Cal.3d 343, 355), regardless of whether the conviction was
incurred in California or another jurisdiction (People v. Myers (1993) 5 Cal.4th 1193,
1195, 1201).
After petitioner was convicted in Oregon, but before his conviction and
sentencing, the United States Supreme Court held that under the Sixth and Fourteenth
Amendments to the United States Constitution, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
(Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) The exception for the fact of a prior
conviction was based on Almendarez-Torres v. United States (1998) 523 U.S. 224.
(Apprendi, supra, at pp. 487, 489-490.)
In People v. McGee (2006) 38 Cal.4th 682 (McGee), the California Supreme Court
interpreted the Apprendi court as “addressing itself to issues that pertained to the charged
offense, not to issues involving the defendant’s previously adjudicated criminal conduct.”
(McGee, supra, at p. 697, italics omitted.) The state high court explained, however, that a
sentencing court’s inquiry concerning the nature of a prior conviction “is a limited one
and must be based upon the record of the prior criminal proceeding, with a focus on the
elements of the offense of which the defendant was convicted. If the enumeration of the
elements of the offense does not resolve the issue, an examination of the record of the
earlier criminal proceeding is required in order to ascertain whether that record reveals
whether the conviction realistically may have been based on conduct that would not
constitute a serious felony under California law. [Citation.] The need for such an inquiry
does not contemplate that the court will make an independent determination regarding a
disputed issue of fact relating to the defendant’s prior conduct [citation], but instead that
the court simply will examine the record of the prior proceeding to determine whether
that record is sufficient to demonstrate that the conviction is of the type that subjects the
defendant to increased punishment under California law.” (Id. at p. 706, italics omitted.)

4.
 Applying these principles, the McGee court found no error in the sentencing
court’s examination of the victim’s preliminary hearing testimony, in the prior case, to
determine the nature of the prior conviction. (McGee, supra, 38 Cal.4th at pp. 689, 709.)
The California Supreme Court acknowledged, however, the possibility the United States
Supreme Court might someday extend Apprendi. (McGee, supra, at p. 709.)
The extension arrived in Descamps v. United States (2013) 570 U.S. 254
(Descamps) and, more recently, Mathis v. United States (2016) 579 U.S. ___ [136 S.Ct.
2243] (Mathis). Although both cases construed a federal sentence enhancement statute,
the Armed Career Criminal Act (ACCA), and so relied on the high court’s ACCA
jurisprudence, each also took into account Sixth Amendment principles.
In Descamps, the issue was whether the defendant’s California burglary
conviction constituted a burglary conviction for ACCA purposes. In making this
determination, the district court relied on the defendant’s plea colloquy in the burglary
case, in which the defendant did not object to the prosecutor’s statement of the
defendant’s conduct. The Supreme Court concluded this was error. (Descamps, supra,
570 U.S. at pp. 258-260.) With respect to a sentencing court’s attempt to discern what a
trial or plea proceeding revealed about a defendant’s underlying conduct, the high court
stated: “The Sixth Amendment contemplates that a jury — not a sentencing court — will
find such facts, unanimously and beyond a reasonable doubt. And the only facts the
court can be sure the jury so found are those constituting elements of the offense — as
distinct from amplifying but legally extraneous circumstances. [Citation.] Similarly, . . .
when a defendant pleads guilty to a crime, he waives his right to a jury determination of
only that offense’s elements; whatever he says, or fails to say, about superfluous facts
cannot license a later sentencing court to impose extra punishment. [Citation.] So when
the District Court here enhanced Descamps’[s] sentence, based on his supposed
acquiescence to a prosecutorial statement (that he ‘broke and entered’) irrelevant to the
crime charged, the court did just what we have said it cannot: rely on its own finding

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about a non-elemental fact to increase a defendant’s maximum sentence.” (Id. at pp. 269-
270.)
In Mathis, the high court further explained: “[A]n elements-focus avoids
unfairness to defendants. Statements of ‘non-elemental fact’ in the records of prior
convictions are prone to error precisely because their proof is unnecessary. [Citation.]
At trial, and still more at plea hearings, a defendant may have no incentive to contest
what does not matter under the law; to the contrary, he ‘may have good reason not to’ —
or even be precluded from doing so by the court. [Citation.] When that is true, a
prosecutor’s or judge’s mistakes as to means, reflected in the record, is likely to go
uncorrected. [Citation.] Such inaccuracies should not come back to haunt the defendant
many years down the road by triggering a lengthy mandatory sentence.” (Mathis, supra,
579 U.S. at p. ___ [136 S.Ct. at p. 2253], fn. omitted.)
In Gallardo, the California Supreme Court acknowledged the tension between the
McGee and Descamps approaches, and agreed it was time to reconsider McGee.
(Gallardo, supra, 4 Cal.5th at p. 124.)3 Based on its review of Descamps and Mathis, the
state Supreme Court concluded: “We are persuaded that the approach sanctioned in
McGee is no longer tenable insofar as it authorizes trial courts to make findings about the
conduct that ‘realistically’ gave rise to a defendant’s prior conviction. The trial court’s
role is limited to determining the facts that were necessarily found in the course of
entering the conviction. To do more is to engage in ‘judicial factfinding that goes far
beyond the recognition of a prior conviction.’ [Citation.]” (Gallardo, supra, at p. 134.)
The court further explained: “The judicial factfinding permitted under the Almendarez-
Torres exception does not extend ‘beyond the recognition of a prior conviction.’

3 Prior to Gallardo, at least one appellate court found itself in the position of
concluding a strike determination did not run afoul of McGee, but nevertheless
contravened the Sixth Amendment, and so had to be reversed, pursuant to Descamps.
(People v. Saez (2015) 237 Cal.App.4th 1177, 1205-1208.)

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[Citation.] Consistent with this principle, and with the benefit of further explication by
the high court, we now hold that 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. [Citation.] That inquiry invades the jury’s
province by permitting the court to make disputed findings about ‘what a trial showed, or
a plea proceeding revealed, about the defendant’s underlying conduct.’ [Citation.] The
court’s role is, rather, limited to identifying those facts that were established by virtue of
the conviction itself — that is, facts the jury was necessarily required to find to render a
guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.” (Id. at
p. 136, fn. omitted.)
B. Retroactivity
The Courts of Appeal that have considered Gallardo’s retroactivity thus far are
divided on the issue, and the question is pending before the California Supreme Court.
(Compare, e.g., In re Haden (2020) 49 Cal.App.5th 1091, 1097-1100, review granted
Aug. 12, 2020, S263261 [Gallardo does not apply retroactively to final convictions]; In
re Scott (2020) 49 Cal.App.5th 1003, 1008-1009, 1015-1019, review granted Aug. 12,
2020, S262716 (Scott) [same]; In re Milton (2019) 42 Cal.App.5th 977, 982, 988-999,
review granted Mar. 11, 2020, S259954 [same] with In re Brown (2020) 45 Cal.App.5th
699, 714-722, review granted June 10, 2020, S261454 [Gallardo applies retroactively].)
We find Scott well reasoned and persuasive, and agree with its conclusion Gallardo does
not apply retroactively.
As Scott explained, generally speaking, only a new substantive rule can be applied
retroactively, while a new procedural rule does not apply retroactively unless it qualifies
under the state or federal retroactivity standard. (Scott, supra, 49 Cal.App.5th at p. 1016,
rev.gr.) Gallardo announced a rule that is both procedural, since it regulates only the
manner of determining a defendant’s culpability by imposing an evidentiary limitation on

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the materials a sentencing court may consider in determining whether a prior conviction
qualifies as a strike; and new, since it disapproved of McGee and was not compelled by
Apprendi, as shown by the fact McGee distinguished Apprendi. (Scott, supra, at p. 1016,
rev.gr.) Accordingly, it must meet either the federal or the state retroactivity standard if it
is to be applied retroactively on collateral attack of final convictions. (Ibid.)4
The federal retroactivity standard is set out in Teague v. Lane (1989) 489 U.S.
288. “Under Teague, as a general matter, ‘new constitutional rules of criminal procedure
will not be applicable to those cases which have become final before the new rules are
announced.’ [Citation.] Teague and its progeny recognize two categories of decisions
that fall outside this general bar on retroactivity for procedural rules. First, ‘[n]ew
substantive rules generally apply retroactively.’ [Citations.] Second, new ‘ “watershed
rules of criminal procedure,” ’ . . . will also have retroactive effect. [Citations.]” (Welch
v. United States (2016) 578 U.S. ___, ___ [136 S.Ct. 1257, 1264].)
“In order to qualify as watershed, a new rule must meet two requirements. First,
the rule must be necessary to prevent ‘an “ ‘impermissibly large risk’ ” ’ of an inaccurate
conviction. [Citations.] Second, the rule must ‘alter our understanding of the bedrock
procedural elements essential to the fairness of a proceeding.’ [Citation.]” (Whorton v.
Bockting (2007) 549 U.S. 406, 418.) “[I]n order for a new rule to meet the accuracy
requirement . . . , ‘[i]t is . . . not enough . . . to say that [the] rule is aimed at improving
the accuracy of trial,’ [citation], or that the rule ‘is directed toward the enhancement of
reliability and accuracy in some sense,’ [citation]. Instead, the question is whether the
new rule remedied ‘an “ ‘impermissibly large risk’ ” ’ of an inaccurate conviction.
[Citation.]” (Ibid.)

4 The parties do not dispute that petitioner’s convictions and sentence in case
No. F043776 have long been final. (See People v. Hargis (2019) 33 Cal.App.5th 199,
205, fn. 3 & authorities cited.)

8.
 This is such a high bar that Gideon v. Wainwright (1963) 372 U.S. 335, in which
the United States Supreme Court held counsel must be appointed for any indigent
defendant charged with a felony, is the only case that court has identified as qualifying
under this exception. (Whorton v. Bockting, supra, 549 U.S. at p. 419.) The Supreme
Court has held that Crawford v. Washington (2004) 541 U.S. 36 does not satisfy the
requirements (Whorton v. Bockting, supra, at pp. 418, 421), and Apprendi also has been
held not to be a bedrock procedural rule (U.S. v. Sanchez-Cervantes (9th Cir. 2002) 282
F.3d 664, 669-670).
We concur with Scott that Gallardo, while significant, does not meet the federal
standard. (Scott, supra, 49 Cal.App.5th at p. 1017, rev.gr.) Gallardo based its new
procedural rule on general Sixth Amendment principles, not on concerns about the
accuracy or reliability of a sentencing court’s factfinding. (Scott, supra, at p. 1017,
rev.gr.)
Our conclusion is bolstered by the United States Supreme Court’s treatment of
Ring v. Arizona (2002) 536 U.S. 584. Ring held that “a sentencing judge, sitting without
a jury, [may not] find an aggravating circumstance necessary for imposition of the death
penalty.” (Ring, supra, at p. 609.) Rather, “the Sixth Amendment requires that [those
circumstances] be found by a jury.” (Ibid.) In Schriro v. Summerlin (2004) 542 U.S.
348, the high court concluded that Ring’s holding was procedural, and that it did not
apply retroactively to cases already final on direct review. (Schriro v. Summerlin, supra,
at pp. 353, 358.)
As the California Supreme Court has recognized, “states are free to give greater
retroactive impact to a decision than the federal courts choose to give . . . .” (In re
Johnson (1970) 3 Cal.3d 404, 415.) Under Johnson, “[t]he retrospective effect of a law-
making opinion is to be 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

9.
the new standards.” ’ [Citation.]” (Id. at p. 410.) “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.” (Id. at
pp. 411-412.)
As Scott explained, Gallardo “ ‘did not impugn the accuracy of factfinding by trial
courts,’ ” and the factfinding process may not be any less reliable when conducted by a
sentencing judge rather than a jury. (Scott, supra, 49 Cal.App.5th at p. 1018, rev.gr.)
Moreover, “the second and third factors weigh strongly against applying Gallardo
retroactively,” as retroactive application would be disruptive and burdensome. (Id. at
p. 1018.) Like Scott, “we do not view the rule in Gallardo as vindicating a right so
essential to reliable factfinding that it outweighs the countervailing considerations of
reliance and disruption to the judicial process.” (Id. at p. 1019.) Accordingly, Gallardo
does not apply retroactively under the state standard.
II
PETITIONER IS NOT ENTITLED TO RELIEF EVEN IF GALLARDO IS RETROACTIVE.
Under California’s three strikes law, “[a] prior conviction in another jurisdiction
for an offense that, if committed in California, is punishable by imprisonment in the state
prison constitutes a prior conviction of a particular serious or violent felony [i.e., a strike]
if the prior conviction in the other jurisdiction is for an offense that includes all of the
elements of a particular violent felony as defined in subdivision (c) of Section 667.5 or
serious felony as defined in subdivision (c) of Section 1192.7.” (§ 667, subd. (d)(2);
accord, § 1170.12, subd. (b)(2).)5

5 These statutes have been amended since petitioner’s prior convictions were found
to be strikes. As the amendments do not affect that finding or our analysis, we quote the
version currently in effect.

10.
 Petitioner’s prior Oregon convictions consisted of robbery in the first degree,
burglary in the first degree with a firearm, two counts of attempted assault in the first
degree with a firearm, and assault in the second degree with a firearm. During the court
trial on the prior conviction allegations in petitioner’s Kern County case, the parties
recognized the elements of the Oregon offenses differed from the elements of the
corresponding California offenses. When, as here, the other state’s statutes do not, on
their face, demonstrate that a defendant’s conviction under those statutes qualifies as a
strike under California law, the record of the prior conviction must be examined before a
determination can be made whether the prior conviction qualifies as a strike. (People v.
Denard (2015) 242 Cal.App.4th 1012, 1027; People v. Saez, supra, 237 Cal.App.4th at
p. 1195.)
One of the documents before the sentencing court as part of the record of the
Oregon convictions, and on which the court relied to decide whether those convictions
constituted strikes, was petitioner’s “MOTION FOR ORDER ACCEPTING PLEA
OF GUILTY.” Item number 15 of an affidavit signed by petitioner and notarized by his
then defense counsel was preprinted: “I plead ‘GUILTY’ and request the Court to accept
my plea of ‘GUILTY’ and have entered my plea of ‘GUILTY’ on the basis of the
following acts I committed[.]” Handprinted immediately following this was: “In Polk
County on or about 5/24/93 I unlawfully and without permission entered a dwelling . . .
with the intent to commit the crime of theft. I was armed with a handgun and threaten[]
to shoot the homeowner to overcome his resistance to theft; I caused physical injury to
him by striking him with the pistol. I attempted to cause serious physical injury to 2 men
outside th[] dwelling by firin[] a pi[] at [].”6 (Some capitalization omitted.) This

6 The document was scanned or copied in such a way that words or portion of words
were cut off. The sentencing judge was able to make out some of the words and read
them into the record. Empty brackets signify words or portions of words that remain
missing.

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document was signed and notarized on September 29, 1993, the same day defendant was
permitted to plead guilty and was sentenced.
In Gallardo, the California Supreme Court determined that pursuant to Descamps
and Mathis, “a sentencing court is permitted to identify those facts that were already
necessarily found by a prior jury in rendering a guilty verdict or admitted by the
defendant in entering a guilty plea . . . .” (Gallardo, supra, 4 Cal.5th at p. 124, italics
added.) In its holding, the court reiterated: “The [sentencing] court’s role is . . . limited
to identifying those facts that were established by virtue of the conviction itself — that is,
facts the jury was necessarily required to find to render a guilty verdict, or that the
defendant admitted as the factual basis for a guilty plea.” (Id. at p. 136, italics added,
fn. omitted.)
It is readily apparent that petitioner’s statement of his own conduct contained in
the “MOTION FOR ORDER ACCEPTING PLEA OF GUILTY” constituted the
factual basis for his guilty plea. As such, it could properly be considered by the
sentencing court — even under Gallardo — in determining the nature of the Oregon
convictions. (See Scott, supra, 49 Cal.App.5th at pp. 1019-1020, rev.gr.)
III
THE REMAINING CLAIMS ARE BARRED.
Petitioner’s remaining claims — that only one strike should have been imposed
because the five Oregon convictions arose from a single course of conduct; the trial court
relied on uncertified documents; and the trial court imposed an unlawful sentence on
count 3 — could have been raised on direct appeal in case No. F043776. Habeas corpus
will not serve as a substitute for appeal, absent special circumstances not shown to exist
here. (In re Dixon (1953) 41 Cal.2d 756, 759.)7

7 The claims also lack merit. Five strikes properly were found, because petitioner’s
statement of his conduct showed he committed five separate acts. (People v. Vargas
(2014) 59 Cal.4th 635, 646.) The record reflects the sentencing court had before it a

12.
 DISPOSITION
The petition is denied.

DETJEN, Acting P.J.
WE CONCUR:

FRANSON, J.

PEÑA, J.

certified, 38-page document from Polk County Courts, Oregon, and that page 13 was
petitioner’s statement of his conduct. The sentence for violating section 69 (count 3) is
imprisonment in the state prison or in county jail. Petitioner’s offense was not declared
to be a misdemeanor or punished as such (§ 17, subd. (b)), and he was not subject to
sentencing pursuant to section 1170, subdivision (h) (see id., subd. (h)(7), formerly subd.
(h)(6); People v. Cruz (2012) 207 Cal.App.4th 664, 680); hence, the standard felony
sentencing range for this offense was 16 months, two years, or three years (§ 18,
subd. (a)), but petitioner properly received a sentence of 25 years to life on count 3 under
the three strikes law.

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