California Court of Appeals, Second District, Seventh Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[256
Cal.Rptr.3d 175] ORIGINAL PROCEEDINGS on petition for writ of
habeas corpus. Petition denied. (Los Angeles County Super.
Ct. No. TA039953)
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Page 980
COUNSEL
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.
Page 981
INTRODUCTION
In 1999
a California jury convicted William Milton of second degree
robbery. In a [256 Cal.Rptr.3d 176] bifurcated proceeding,
Milton admitted he had two prior felony convictions in
Illinois. The court ruled the out-of-state convictions
qualified
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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');">4 Cal.5th 120, 226
Cal.Rptr.3d 379, 407 P.3d 55');">407 P.3d 55 (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
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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."
[256
Cal.Rptr.3d 177] 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
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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 ...