People v. Gallardo

Filed 12/21/17 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S231260 v. ) ) Ct.App. 2/6 B257357 SULMA MARILYN GALLARDO, ) ) Los Angeles County Defendant and Appellant. ) Super. Ct. No. VA126705-01 ____________________________________) Defendant Sulma Marilyn Gallardo was convicted of various offenses including second degree robbery and transportation of a controlled substance. Although her offenses would ordinarily be punishable by a maximum term of imprisonment of six years, the prosecution sought an increased sentence on the ground that defendant had previously been convicted of a “serious felony” under Penal Code section 667, subdivision (a), that was also a strike for purposes of the “Three Strikes” law. The conviction in question was for a crime—assault with a deadly weapon or with force likely to produce great bodily injury, in violation of Penal Code former section 245, subdivision (a)—whose statutory definition sweeps more broadly than the definition of “serious felony”: An assault conviction qualifies as a serious felony if the assault was committed with a deadly weapon, but not otherwise. After reviewing the transcript of the preliminary hearing in defendant’s assault case, the trial court determined that defendant did, SEE CONCURRING AND DISSENTING OPINION in fact, commit the assault with a deadly weapon, and sentenced defendant to a term of 11 years in prison. Under the Sixth Amendment to the United States Constitution, as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), any fact, other than the fact of a prior conviction, that increases the statutorily authorized penalty for a crime must be found by a jury beyond a reasonable doubt. Defendant contends that her increased sentence rests on an exercise in judicial factfinding that violated her Sixth Amendment right to a jury trial. We considered a similar issue more than a decade ago, in People v. McGee (2006) 38 Cal.4th 682 (McGee). In McGee, we held that the Sixth Amendment permits courts to review the record of a defendant’s prior conviction to determine whether the crime qualifies as a serious felony for purposes of the sentencing laws. Although we made clear that the inquiry is a “limited one” that “focus[es] on the elements of the offense of which the defendant was convicted,” we also said that a court may review the record to determine whether “the conviction realistically may have been based on conduct that would not constitute a serious felony under California law.” (Id. at p. 706.) We acknowledged, however, that continued examination of the scope of the rule announced in Apprendi—then still a relatively recent development in the high court’s jurisprudence—might one day call for reconsideration of this approach. (Id. at p. 686.) Defendant argues that day has now arrived. Specifically, she contends that the approach approved in McGee should be reconsidered in light of the high court’s recent decisions in Descamps v. United States (2013) 570 U.S. ___ [133 S.Ct. 2276] (Descamps) and Mathis v. United States (2016) 579 U.S. ___ [136 S.Ct. 2243] (Mathis), which, ...

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