Tuesday, February 25, 2020

In re Brown (Cal. Ct. App. - Feb. 25, 2020)

Read this one while you can.  Because it'll soon be in the California Supreme Court and no longer controlling precedent.

The question at issue is whether People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo) is retroactive.  Gallardo held that "when determining whether a prior conviction is a serious felony for purposes of increasing a sentence, the trial court is limited to '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.'”  In short, you've just got to look at the record of conviction.  Nothing else.

The Court of Appeal here held that Gallardo was indeed retroactive, and accordingly granted the defendant's habeas petition.  But (1) Justice Menetrez disagreed, and dissented, and (2) back in December, another panel in the Court of Appeal held that Gallardo wasn't retroactive, essentially for the same reasons expressed here by Justice Menetrez.  (In re Milton (2019) 42 Cal.App.5th 977, 982)

So there's (1) a split in the panel opinion, (2) and a split in the various Court of Appeal holdings, (3) on an issue that's present in a boatload of cases.

There's exactly a zero chance that the California Supreme Court doesn't grant review.  The petition writes itself.