Five years ago, the Supreme Court overruled one of its own decisions and restricted the fact finding a trial court may do in determining, for sentence enhancement purposes, the nature of a criminal defendant’s prior conviction. (People v. Gallardo (2017) 4 Cal.5th 120. (See here.)) Today in In re Milton, a 5-2 court holds “the Gallardo rule does not apply retroactively to final judgments.” The decision resolves a split in Court of Appeal decisions.

The court’s opinion by Justice Martin Jenkins applies the principle that “a judicial decision that creates a ‘new rule’ is generally not given retroactive effect in cases on collateral review that were final when the rule was announced,” except when the new rule “is substantive, as opposed to procedural.” The court concludes that “the Gallardo rule . . . was procedural in nature.” It also finds inapplicable a California Supreme Court decision that makes even some procedural rules retroactive.

Justices Goodwin Liu and Joshua Groban both dissent, each signing on to the other’s opinion. Pointing to three federal Court of Appeals opinions, Justice Liu writes that “[t]oday’s decision makes this court an outlier” and he expresses his concern that “the characterization of Gallardo in today’s opinion may reopen serious questions as to the constitutionality of the Three Strikes law.” Justice Groban says he “do[es] not agree that the rule set forth in Gallardo, which could mean the difference between a life in prison or a short determinate term for some petitioners, constitutes a mere procedural change in the law.”

The court affirms the Second District, Division Seven, Court of Appeal’s published opinion.