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When is Prior Conviction Outside California a Strike?

When someone suffers a conviction outside California and then later faces sentencing on a case in California, the prosecutor in California may seek to classify the prior conviction as a strike under California’s Three Strikes Law.  How a California judge is supposed to analyze such an earlier conviction has undergone recent changes in 2017 in the case of People v. Gallardo (2017) 4 Cal.5th 120.
In a Nutshell:  An out-of-state, prior conviction may be considered a strike under California’s Three Strikes Law if the elements of the out-of-state conviction include all elements of a crime considered a strike under California law, as the following summary explains.  The court may not look deeper into the facts of the case that were not stipulated to or admitted by defendant because this would violate defendant’s right to cross-examine a witness being offered against defendant, as provided under the Sixth Amendment.
This change and how it is applied is exemplified in the rather tough case of In re Steven L. Haden (2020 DJDAR 5424).  In 1998, he pleaded no contest to violating Penal Code § 273.5(a) and admitted the special allegation of personal use of a deadly weapon (former Penal Code § 1192.7(c)(23)).  This was a strike.

Previously, Haden had suffered two convictions in North Dakota for robbery.  When the prosecutor filed the case, she alleged that the two earlier convictions were strikes under the Three Strikes Law.  Haden argued that the two earlier North Dakota convictions were not strikes, so the judge evaluated the underlying facts of the earlier convictions and determined they met the elements of robbery under California law.

The San Mateo Superior Court judge then sentenced Haden to twenty-five years to life in prison.

Haden appealed the trial court judge’s ruling that the North Dakota convictions constituted strikes and the First Appellate District affirmed the trial court.  

Over the next 15 years, Haden filed multiple petitions for writs of habeas corpus on multiple issues (it should be noted that in general, only one writ of habeas corpus is permitted and successive writs of habeas corpus are looked upon with skepticism or reluctance by a court).

California Supreme Court San FranciscoCalifornia Supreme Court San Francisco

In October, 2015, he filed another habeas petition in the trial court, which was denied, and then appealed it to the First Appellate District, arguing that under the United States Supreme Court’s then-recent decision in Descamps v. United States (2013) 570 U.S. 254, the trial court made improper factual findings when treating the North Dakota convictions as strikes.  The First Appellate District denied the petition after concluding that Descamps “does not apply retroactively to this case, which has been final for more than a decade.”

Haden then appealed the ruling of the First Appellate District to the California Supreme Court, which denied the petition “without prejudice to any relief to which petitioner might be entitled after this court decides People v. Gallardo.”

The California Supreme Court then issued its ruling in Gallardo, supra.  In Gallardo, the Supreme Court held 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.”  Such an inquiry, the Supreme Court explained, violates a defendant’s Sixth Amendment right to a jury trial because such an 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 defendant’s underlying conduct.”  “The court’s role is, rather, limited to identifying those facts that were established by virtue of the conviction itself – that it, facts the jury was necessarily required to find to render a guilty verdict, or that defendant admitted as the factual basis for the guilty plea.”

Haden then filed a petition for writ of habeas corpus, arguing that the trial court’s analysis violated Gallardo because the judge examined the record from the North Dakota cases to determine the factual basis for the prior convictions.

The issue thus became whether Gallardo applied retroactively.  The First Appellate District Court explained that California court generally apply two separate tests, one federal and one state, in determining whether new constitutional rules of criminal procedure apply retroactively.  Under the federal standard stated in Teague v. Lane (1989) 489 U.S. 288, such new constitutional rules of criminal procedure do not apply to cases with final judgements.  Under the California standard on this same issue, In re Milton (2019) 42 Cal.App.5th 977, applies, similarly holding that such new constitutional procedures do not apply to cases with final judgments.

Therefore, the First Appellate District declined to issue a writ of habeas corpus for Mr. Haden.

We bring this article to the reader’s attention to show how in 2017, the law on considering out-of-state convictions changed and how, in this case, it may have made a big difference, but we’ll never know because the analysis of the prior robbery convictions under Gallardo was not performed.  It is possible that the two prior convictions would have still been found to be strikes even using the more limited examination of the prior record.

The citation for the First Appellate District Court ruling discussed above is In re Steven L. Haden (1st App. Dist., 2020) 49 Cal. App. 5th 1091, 263 Cal. Rptr. 3d 570.

For more information about convictions outside California being considered for sentencing in California, please click on the following articles:

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