In re Milton

          ORIGINAL PROCEEDINGS on petition for writ of habeas corpus. Los Angeles County Super. Ct. No. TA039953. Petition denied.

          Brad Kaiserman, under appointment by the Court of Appeal, for Petitioner.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael C. Keller, Acting Supervising Deputy Attorney General and Eric J. Kohm, Deputy Attorney General for Respondent.

          SEGAL, J.

         INTRODUCTION

         In 1999 a California jury convicted William Milton of second degree robbery. In a bifurcated proceeding, Milton admitted he had two prior felony convictions in Illinois. The court ruled the out-of-state convictions qualified as serious felonies for purposes of the three strikes law (Pen. Code, §§ 667, subds. (b) (j), 1170.12).^[1] Milton appealed, this court affirmed, and the Supreme Court denied review.

         Eighteen years after his conviction, Milton filed this petition for a writ of habeas corpus, contending he is entitled to resentencing under the California Supreme Court's decision in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), which held a court considering whether to impose a sentence enhancement based on a prior conviction may not make factual findings about the defendant's conduct to impose the enhancement. Because Gallardo does not apply retroactively to Milton, whose conviction became final long ago, we deny the petition.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. Milton Is Convicted of Simple Robbery and Armed Robbery in Illinois

         Years before a jury in California convicted Milton of the robbery offense that gives rise to this petition, Milton was convicted of two crimes, simple robbery and armed robbery, in Illinois. The prosecution in the Illinois action alleged in an information that on February 2, 1987 Milton committed simple robbery by taking a wallet and $337 from his victim “by threatening the imminent use of force.” Underneath this allegation in the information, a handwritten note stated, “Class II. [The victim] left [the market] after cashing his check. Stopped. Money demanded. [Defendant] had a gun. $338. [Defendant] admitted to Wkgn PD he took money.” The Illinois prosecution also alleged that on February 9, 1987 Milton committed armed robbery by taking $40 from his victim, “while ar[med] with a dangerous weapon, a gun... by threatening the imminent use of force.”

         Milton pleaded guilty to the simple robbery charge, and an Illinois jury found Milton guilty of the armed robbery charge. The Illinois court held a combined sentencing hearing for the two convictions. For the armed robbery conviction, the Illinois prosecutor recounted the testimony of the victim as follows: “Mr. Milton got out of the car, pointed a gun at [the victim], and threatened him, forced him into the car where he was robbed of his goods.” The court stated to Milton, “You used a gun.... You stopped the victim.... You forced this individual into the automobile.” For the simple robbery conviction, the Illinois prosecutor stated Milton approached the victim “with a weapon, threaten[ed] him, and... [the victim] lost his entire paycheck... to Mr. Milton.” The Illinois court stated it had received “stipulated facts” for the case, which “indicated 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 the sum of three hundred thirty-eight dollars was taken from the victim....”

         Before the Illinois court pronounced sentence, the court reiterated Milton's use of a firearm: “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. And the sentence I am going to give is for the purpose of punishment.”

         B. Milton Is Convicted of Robbery in California

         On September 6, 1998 Milton committed another robbery, this time in California. Milton stopped a teenager on a street in Los Angeles at night and demanded money, “behaved as if he was armed with a weapon, ” and took money and a new pair of jeans. The victim identified Milton as the robber, and a police officer testified Milton admitted to the robbery. The jury found Milton guilty of second degree robbery. (People v. Milton (May 10, 2000, B131757) [nonpub. opn.].)

         C. The Trial Court Sentences Milton in California

         In a bifurcated proceeding Milton admitted he suffered two prior felony convictions in Illinois, one for armed robbery and one for simple robbery. Milton admitted that the armed robbery conviction was a serious felony under section 667, subdivision (a)(1), and that it qualified as a “five-year prior.” Milton denied the allegation the simple robbery conviction was a serious or violent felony that made it a “strike.” The California prosecutor acknowledged that the Illinois simple robbery conviction was not a serious or violent felony under the three strikes law because robbery under Illinois law, unlike robbery under California law, did not require the specific intent to permanently deprive the person of the property. The California prosecutor argued, however, that certified documents from the Illinois court “indicate that [Milton] used a gun during the [simple] robbery” and that “[t]his information, therefore, provides this Court with the ability to determine that this particular conviction is a strike.”

         Counsel for Milton argued the Illinois court documents, at best, showed Milton “possessed” a gun, and nothing in the record showed he “actually personally used” a gun. The prosecutor argued California law allowed the trial court “to look behind the record” to determine whether Milton used a gun in the simple robbery. The trial court ruled, “I see nothing wrong with going... beyond the court record... to determine what really happened. And in doing that, I am satisfied that the defendant used a gun in both... these prior robberies. And... I am satisfied that they're both strikes.” The trial court imposed a term of 25 years to life, plus five years under section 667, subdivision (a)(1).

         D. Milton Appeals and Files Habeas Petitions

         Milton appealed his judgment of conviction. He contended, among other things, the trial court erred in finding his Illinois felony conviction for simple robbery qualified as a serious or violent felony under the three strikes law.^[2] This court affirmed the judgment, and the Supreme Court denied review. (People v. Milton, supra, B131757, review denied, July 19, 2000, S089153.) Milton subsequently filed five petitions for a writ of habeas corpus in this court, each of which was denied.

         On January 11, 2016 Milton filed a petition in the California Supreme Court (S231762), contending the trial court erred in finding his two Illinois convictions were serious felonies under the three strikes law. On March 23, 2016 the Supreme Court denied the petition “without prejudice to any relief to which [Milton] might be entitled after this court decides People v. Gallardo, S231260, ” a case then pending in the Supreme Court.

         E. Milton Files This Petition

         On December 29, 2017, following the Supreme Court's decision in Gallardo, Milton filed this petition, arguing his “Illinois priors cannot be used as strikes.”^[3] The Supreme Court issued an order directing the Department of Corrections and Rehabilitation to show cause, returnable in this court, “why [Milton] is not entitled to relief pursuant to People v. Gallardo (2017) 4 Cal.5th 120..., and why Gallardo should not apply retroactively on habeas corpus to final judgments of conviction.”

         DISCUSSION

         A. California Sentencing Laws for Serious Felonies

         Under sections 667, subdivisions (b) (j), and 1170.12, a “‘serious felony' conviction is... a prior strike for purposes of the Three Strikes law....”^[4] (Gallardo, supra, 4 Cal.5th at p. 125.) Section 667, subdivision (d)(2), provides that a prior conviction in another jurisdiction “shall constitute a prior conviction of a particular serious and/or violent felony if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of a particular violent felony.... or serious felony as defined in subdivision (c) of Section 1192.7.” Section 1192.7, subdivision (c)(8), provides that “‘serious felony'” includes “any felony in which the defendant personally uses a firearm.” (See People v. Briceno (2004) ...