In re Chamberlain

Filed 12/24/19 In re Chamberlain CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re
LEE CHAMBERLAIN,
on Habeas Corpus.
B300885
(Los Angeles County
Super. Ct. No. BA198121)
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Craig J. Mitchell, Judge. Petition denied.
Maureen L. Fox, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Michael R. Johnsen
and Yun K. Lee, Deputy Attorneys General, for Plaintiff and
Respondent.

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This matter is before us following the California Supreme Court’s
issuance of an order to show cause, returnable before this court, on
petitioner Lee Chamberlain’s petition for writ of habeas corpus. The
Supreme Court ordered the Department of Corrections and
Rehabilitation to show cause “why petitioner is not entitled to relief
pursuant to People v. Gallardo (2017) 4 Cal.5th 120 [(Gallardo)], and
why Gallardo, supra, 4 Cal.5th 120 should not apply retroactively on
habeas corpus to final judgments of conviction.” The decision in
Gallardo established a new rule for determining whether alleged prior
convictions qualify to increase a defendant’s sentence. Gallardo
overruled People v. McGee (2006) 38 Cal.4th 682 (McGee) “insofar as it
authorizes trial courts to make findings about the conduct that
‘realistically’ gave rise to a defendant’s prior conviction.” (Gallardo,
supra, at p. 134.) Rather, Gallardo held that “[w]hile a sentencing court
is permitted to identify those facts that were already necessarily found
by a prior jury in rendering a guilty verdict or admitted by the
defendant in entering a guilty plea, the court may not rely on its own
independent review of record evidence to determine what conduct
‘realistically’ led to the defendant’s conviction.” (Id. at p. 124.)
Division Seven of this court recently held in In re Milton (2019) __
Cal.App.5th __ [Dec. 3, 2019; 2019 DJDAR 11278] that Gallardo does
not apply retroactively to final judgments of conviction. We agree with
the Milton court’s reasoning and conclusion. Moreover, even if Gallardo
were retroactive to final judgments, we conclude petitioner is not

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entitled to relief under Gallardo. We discharge the order to show cause
and deny the petition.
BACKGROUND
The issues in this habeas petition arise from the trial court’s
determination, made as part of a judgment of conviction entered in
2000, that petitioner’s prior 1992 conviction of violating Penal Code
section 245, subdivision (a)(1),1 qualified as a strike (former §§ 1170.12,
subds. (a)–(d), 667, subds. (b)–(i)) and a serious felony (§ 667, subd.
(a)(1)), because defendant personally used a deadly or dangerous
weapon in committing the offense. We explain the relevant
background.
Conviction and Sentence
In 2000, a jury convicted petitioner of second degree robbery
(§ 211), assault with a deadly weapon (§ 245, subd. (a)(1)), mayhem
(§ 203), and torture (§ 206), with personal use of a deadly and
dangerous weapon (§ 12022, subd. (b)) and infliction of great bodily
injury (§ 12022.7, subd. (a)) in all counts. The information also alleged
two prior convictions as strikes and serious felonies: a 1985 conviction
of second degree robbery (§ 211), and the prior conviction at issue here,
a 1992 conviction under former section 245, subdivision (a)(1), described
in the information as “ASSAULT WITH DEADLY WEAPON WITH
GBI.”
1 Unspecified section references are to the Penal Code.

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The jury found that petitioner had suffered the two prior
convictions, and the trial court found that both qualified as strikes and
serious felonies. At that time, petitioner’s prior 1992 conviction under
former section 245, subdivision (a)(1) could qualify as a serious felony
and strike only if petitioner personally used a deadly or dangerous
weapon during the offense, or if he personally inflicted great bodily
injury on any person other than an accomplice. (Former § 1192.7,
subds. (c)(8), (c)(23); see People v. Ringo (2005) 134 Cal.App.4th 870,
884 [crucial date for determining whether prior conviction qualifies is
the date of the charged offense].) In deciding the nature of the 1992
conviction, the trial court examined the preliminary hearing transcript
from the 1992 case, and concluded that petitioner stabbed the victim,
thus making the 1992 conviction a strike and a serious felony based on
petitioner’s personal use of a deadly and dangerous weapon. The court
sentenced petitioner to an overall term of 61 years to life.2
Petitioner’s First Appeal (B142144)
In petitioner’s first direct appeal, B142144 (filed July 2001), we
issued an unpublished opinion in which we reversed the trial court’s
finding that the 1992 conviction qualified as a strike and serious felony.
2 Petitioner was sentenced as follows: 25 years to life for robbery; 25
years to life for assault with a deadly weapon; 1 year for use of a deadly
weapon (§ 12022, subd. (b)(1)); and 10 years for two prior serious felony
enhancements (§ 667, subd. (a)(1)). The court imposed and stayed two terms
of 25 years to life for mayhem and torture; three 1-year terms for use of a
deadly weapon (§ 12022, subd. (b)(1)); and three 3-year terms for inflicting
great bodily injury (§ 12022.7, subd. (a)).

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Because the 1992 prior conviction had resulted from a jury trial, not a
guilty plea, we held that under People v. Houck (1998) 66 Cal.App.4th
350, the trial court had erred in relying on the preliminary hearing
transcript rather than the trial transcript to ascertain the nature of the
offense. We remanded the matter for a retrial on the nature of the 1992
conviction, and for resentencing, but affirmed the judgment in all other
respects. Petitioner’s petitions for review and writ of certiorari were
denied in 2001 and 2002, respectively.
Retrial on 1992 Prior Conviction and Second Appeal (B156417)
On remand, the trial court held a new trial on the nature of the
1992 conviction, again concluded that the conviction qualified as a
strike and serious felony, and re-imposed the original sentence.
Petitioner appealed for a second time.
As reflected in our unpublished opinion in that appeal, B156417
(filed December 2002), the trial court took judicial notice of three
documents from the 1992 conviction: the 1992 amended information,
the jury verdict form, and the abstract of judgment.3 The trial court
also reviewed a transcript of the victim’s trial testimony. As we
3 We notified the parties of our intent to take judicial notice of the 1992
amended information, verdict form, abstract of judgment, and jury
instructions that were refused, withdrawn, and given to the jury in case No.
BA054760, as they appear in the trial court file in case No. BA198121.
Petitioner objected to our taking judicial notice of the jury instructions on the
grounds of relevance. We overrule the objection and take judicial notice of
the jury instructions, amended information, verdict form, and abstract of
judgment. (Evid. Code, § 452, subd. (d).)

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summarized in our opinion, the trial court stated that the victim’s trial
testimony showed that that the victim “was stabbed by [petitioner]; that
as a result of being stabbed by [petitioner], the victim was cut, received
stitches, was sutured and at the time he testified, still bore a scar from
the knife wound.” We also stated that the verdict form “reflected [that
petitioner] was found guilty in count 2 of ADW with a knife,” and that
the trial court “noted that . . . count 2 of the information charged
[petitioner] with committing ADW with ‘a knife,’ the ‘actual verdict
form’ reflected [that] the jury expressly found [petitioner] guilty of count
2, i.e., ‘the crime of assault with a deadly weapon, to wit, knife,’ and the
abstract of judgment reflected [that] he was convicted of the crime in
count 2.”4
In his direct appeal from the reinstated judgment, petitioner
contended that the trial court erred in considering the transcript of the
victim’s testimony from the 1992 case, rather than considering the
4 The 1992 amended information alleged: “ASSAULT GREAT BODILY
INJURY AND WITH DEADLY WEAPON, in violation of PENAL CODE
SECTION 245(a)(1), a Felony, was committed by [petitioner], who did
willfully and unlawfully commit an assault upon [the victim] with a deadly
weapon, to wit, knife, and by means of force likely to produce great bodily
injury.”
The actual verdict form states: “We, the Jury . . . find [petitioner]
guilty of the crime of ASSULT [sic] WITH A DEADLY WEAPON, to wit, a
knife, in violation of Section 245(a)(1) Penal Code, a felony, as charged in
Count 2 of the Information.”
The abstract of judgment reflects petitioner was convicted in count 2
under section 245, subdivision (a)(1), and lists the crime as “ASSLT W/
DEADLY WEAPON & GBI.”

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entire transcript of the trial.5 We disagreed, concluding that petitioner
had failed to establish the relevance of the remainder of the trial
testimony: “[Petitioner] does not dispute that the trial testimony of the
1992 ADW victim was sufficient to establish he was the one who used
the knife during the attack.” As we noted, “[d]uring the trial, the victim
positively identified [petitioner] as the knife wielder, and his testimony
established [that] there was only one perpetrator.” “Accordingly, it was
[petitioner’s] burden to refute such evidence of his personal use of a
dangerous and deadly weapon by showing that it was someone else, not
he, who wielded that knife. Clearly, [petitioner] knew what his defense
was in that matter. If such defense primarily was that he was simply
an aider and abettor, not the knife wielder, then it was incumbent on
[petitioner] to point this out and to identify what evidence was
presented to support such [a] defense. This he did not do. He therefore
failed to show that any of the untranscribed portions of the 1992 oral
trial was relevant.”
We also noted, in any event, “that the additional portion of the
1992 ADW oral trial proceedings subsequently transcribed establish
that [petitioner] did not rely on the defense that an accomplice, not he,
wielded the knife.” As we summarized: “A review of [the July 9, 1992
trial] transcript reflects that on that day the defense commenced and
[petitioner] presented the testimony of two witnesses, Ron Carman, a
Los Angeles County deputy probation officer, and Rebecca Schreiber, a
5 As of the time of the retrial on the 1992 conviction, only the trial
testimony of the victim in that case had been transcribed.

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public defender investigator. Carman essentially testified that he
contacted the victim by telephone and prepared a report of his
statements. He did not testify as to what those statements were.
Schreiber testified that she contacted Josephine Villalobos, a witness,
by phone and that Villalobos ‘indicate[d] quite firmly she did not want
to talk to [Schreiber] because [she] was working with the defense, and
her friend had been a victim of [petitioner].’ [¶] Afterwards,
[petitioner’s] attorney informed the court and the prosecutor that
‘officer Martinez’ was the only remaining defense witness and that he
would not be available until July 13, a Monday. He expected to
examine Martinez regarding the victim’s statements as recited in the
police report, which were allegedly contradictory to the victim’s
testimony and the testimony of another witness at trial regarding
whether the victim walked up to or ran over to the police after the
stabbing; whether the stabbing occurred in front of the bar or after the
victim ran off; and how the victim was stabbed. The court then
continued the matter to July 13 to allow the defense to examine the
officer. The proceedings on July 13, 1992, and any proceedings
thereafter were not transcribed.”
Petitions for Writ of Habeas Corpus
Following the Supreme Court’s decision in Gallardo, petitioner
filed petitions for writs of habeas corpus in the trial court and this
court, arguing that his sentence was prohibited because it was based on
a fact (i.e., personal use of a deadly weapon) the jury did not necessarily
find in rendering its verdict. After both petitions were denied,

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petitioner filed a habeas petition in the Supreme Court. The Supreme
Court issued an order to show cause returnable to this court “why
petitioner is not entitled to relief pursuant to [Gallardo], and why
Gallardo . . . should not apply retroactively on habeas corpus to final
judgments of conviction.”
We agree with In re Milton that Gallardo does not retroactively
apply to final convictions, and in the alternative find that petitioner is
not entitled to relief under the rule of Gallardo.
DISCUSSION
Division Seven of this court recently held that Gallardo does not
apply retroactively to convictions that became final before Gallardo was
decided. (In re Milton, supra, __ Cal.App.5th __ [2019 DJDAR at p.
11280; 2019 WL 6485068] (Milton).) The Milton court came to this
conclusion under the framework of Teague v. Lane (1989) 489 U.S. 288,
and in In re Johnson (1970) 3 Cal.3d 404. (Milton, supra, at pp. 11281–
11284 [Teague analysis], 11284–11285 [Johnson analysis].) The parties
in this case agree Teague and Johnson dictate whether Gallardo should
be afforded retroactive application.
We agree with the Milton court that Gallardo should not be
afforded retroactive effect because (1) Gallardo stated a new procedural
rule of criminal procedure that neither prevents an impermissibly large
risk of an inaccurate conviction nor alters our understanding of the
bedrock procedural elements essential to a fair proceeding (Teague,
supra, 489 U.S. at pp. 307, 311; Schriro v. Summerlin (2004) 542 U.S.

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348, 352–353); (2) Gallardo is not intended to vindicate a right essential
to the reliability of the fact-finding process, but is instead intended to
limit the universe of information a court may consider when
determining what a jury necessarily found in rendering its verdict
(Johnson, supra, 3 Cal.3d at p. 411); (3) Gallardo departed from the
long-standing practice of reviewing the entire record of conviction to
evaluate the nature of a prior offense (id. at p. 410); and (4) the effect of
applying Gallardo would be burdensome and could deprive criminal law
of “much of its deterrent effect” (Teague, supra, 489 U.S. at p. 309;
Johnson, supra, 3 Cal.3d at p. 410).
Even if Gallardo were retroactive to final judgments, petitioner is
not entitled to relief under Gallardo. The Sixth and Fourteenth
Amendments of the United States Constitution entitle a criminal
defendant to “‘a jury determination that [he] is guilty of every element
of the crime with which he is charged, beyond a reasonable doubt.’”
(Apprendi v. New Jersey (2000) 530 U.S. 466, 477 (Apprendi).) A
defendant’s Sixth Amendment right to a jury trial extends to “those
disputed facts that may not be formally designated as ‘elements’ of the
offense, but nevertheless expose the defendant to additional
punishment.” (Gallardo, supra, 4 Cal.5 at p. 128.)
In McGee, supra, 38 Cal.4th 682, the California Supreme Court
ruled “Apprendi does not preclude a court from making sentencing
determinations related to a defendant’s recidivism.” (Id. at p. 707.)
However, “the inquiry is a limited one and must be based upon the
record of the prior criminal proceeding” to determine “whether that

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record is sufficient to demonstrate that the conviction is of the type that
subjects the defendant to increased punishment under California law.”
(Id. at p. 706.) In the event the elements do not resolve the issue of
qualifying the offense as a serious felony, the trial court must examine
the prior conviction’s record to assess “whether that record reveals
whether the conviction realistically may have been based on conduct
that would not constitute a serious felony under California law.” (Ibid.)
In Gallardo, our Supreme Court considered recent decisions by
the United States Supreme Court (e.g., Descamps v. United States
(2013) 570 U.S. 254 (Descamps); Mathis v. United States (2016) 136
S.Ct. 2243 (Mathis)), and overruled McGee “insofar as it authorizes trial
courts to make findings about the conduct that ‘realistically’ gave rise to
a defendant’s prior conviction.” (Gallardo, supra, 4 Cal.5th at p. 134.)
The defendant in Gallardo was alleged to have suffered a prior
strike based on her conviction for assault with a deadly weapon under a
former version of section 245. (Gallardo, supra, 4 Cal.5th at p. 123.)
The defendant had pleaded guilty to the assault but did not specifically
admit that she used a deadly weapon when she entered her plea. (Id. at
p. 136.) A bench trial on the defendant’s prior conviction resulted in a
true finding, but the trial court’s “sole basis for concluding that
defendant used a deadly weapon was a transcript from a preliminary
hearing.” (Id. at p. 136 [“Nothing in the record shows that defendant
adopted the preliminary hearing testimony as supplying the factual
basis for her guilty plea”].)

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After reviewing Descamps and Mathis, the Gallardo court held
that the trial court improperly relied on the preliminary hearing
transcript to find “a disputed fact about the conduct underlying
defendant’s assault conviction that had not been established by virtue
of the conviction itself.” (Gallardo, supra, 4 Cal.5th at pp. 124–125.)
The court explained that “when the criminal law imposes added
punishment based on findings about the facts underlying a defendant’s
prior conviction, ‘[t]he Sixth Amendment contemplates that a jury—not
a sentencing court—will find such facts, unanimously and beyond a
reasonable doubt.’ (Descamps, supra, 570 U.S. at p. 269.)” (Gallardo,
supra, 4 Cal.5th at p. 124.) The 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. (McGee, supra, 38
Cal.4th at p. 706.) That 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 the defendant’s underlying
conduct.’ (Descamps, supra, at p. 269.) The court’s role is, rather,
limited to identifying those facts that were established by virtue of the
conviction itself—that is, facts the jury was necessarily required to find
to render a guilty verdict, or that the defendant admitted as the factual
basis for a guilty plea.” (Gallardo, supra, 4 Cal. 5th at p. 136.) The
court remanded the matter “to permit the People to demonstrate to the
trial court, based on the record of the prior plea proceedings, that

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defendant’s guilty plea encompassed a relevant admission about the
nature of her crime.” (Id. at p. 139.)
Despite disapproving the trial court’s reliance on the preliminary
hearing transcript to make an independent determination of a disputed
fact, Gallardo did not designate or define the universe of documents a
sentencing court may use to identify “those facts . . . the jury was
necessarily required to find to render a guilty verdict.” (Gallardo,
supra, 4 Cal.5th at p. 136.) Instead, the court left intact earlier
precedent that permits a sentencing court to review the evidence
presented at trial (though not to make an independent factual
determination as to the defendant’s conduct based on that evidence)
(e.g., People v. Equarte (1986) 42 Cal.3d 456 (Equarte)), and to review
prior appellate opinions (e.g., People v. Trujillo (2006) 40 Cal.4th 165;
People v. Woodell (1998) 17 Cal.4th 448 (Woodell)).
Equarte is instructive. The defendant in Equarte argued his
conviction for assault with a deadly weapon under former section 245,
subdivision (a)(1), did not constitute a serious felony because “the jury
never found . . . that defendant had ‘personally used a dangerous or
deadly weapon,’ one of the necessary elements of subdivision (c)(23).”
(Equarte, supra, 42 Cal.2d at p. 466.) Finding no merit to defendant’s
claim, the Supreme Court found there was “no doubt” the trial court
properly found personal use of a deadly weapon “since the evidence at
trial clearly demonstrated that there had been no accomplice in this
case.” (Id. at pp. 460, 467.)

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In the present case, were Gallardo to apply retroactively to
petitioner’s final judgment, the trial court’s consideration of the
amended information, verdict form, and judgment of conviction from the
1992 case would not be improper. Those documents are part of the
record of conviction, and the trial court used them not to make an
independent judgment as to the conduct that was realistically the basis
of the conviction, but rather to show that in convicting petitioner, the
jury necessarily found that the assault was committed with a deadly
weapon, a knife. Indeed, the verdict form specifically recited that the
jury found petitioner guilty of “the crime of ASSULT [sic] WITH A
DEADLY WEAPON, to wit, a knife.”
The only remaining question under Gallardo would be whether in
convicting petitioner, the jury necessarily found that he personally used
a knife, or whether the jury might have found him guilty on a theory of
vicarious liability not involving personal use of the knife. The trial
court reviewed the transcript of the victim’s testimony in the 1992 case.
To the extent the court considered that transcript to make an
independent judgment that petitioner personally used a deadly or
dangerous weapon based on disputed facts, that use could arguably
violate Gallardo. But the record before us in this habeas proceeding
establishes that, in fact, the victim’s testimony at the 1992 trial was
undisputed as to the fact that he was stabbed by one man, and that no
other person was involved. As we noted in our opinion in B156417, at
the retrial whether the 1992 conviction qualified as a strike and serious
felony, petitioner did not contend that there was evidence to suggest
someone else used the knife. More to the point, we noted that, in fact,

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the available record of the 1992 trial established that there was no
evidence presented to show that anyone other than the perpetrator who
used the knife was involved in the assault. To the contrary, the 1992
jury instructions required a finding “beyond a reasonable doubt that the
[petitioner] is the person who committed the crime with which he is
charged. [¶] If, after considering the circumstances of the identification
. . . you have a reasonable doubt whether [petitioner] was the person
who committed the crime, you must give [him] the benefit of that doubt
and find [him] not guilty.” (Former CALJIC No. 2.91.) In light of the
jury instructions, the jury must have found petitioner was the person
who used a deadly weapon, to wit, knife, during the assault.6
Significantly, Gallardo does not prohibit consideration of the
evidence presented at the trial in which the prior conviction occurred, if
that evidence was not disputed and, as such, necessarily demonstrates a
fact the jury found in returning a guilty verdict. Here, as established by
the entire record presented in this habeas corpus petition, there was no
dispute at the trial resulting in the 1992 conviction that the perpetrator
of the assault personally used a knife and had no accomplice. Hence,
the record shows beyond any doubt that, in finding petitioner guilty of
“assault with a deadly weapon, to wit, knife,” the jury necessarily found
the qualifying fact that petitioner personally used a deadly and
dangerous weapon. There is no other explanation for the jury’s verdict.
6 None of the jury instructions, whether refused by the court, withdrawn
by the parties, or given to the jury, set forth theories of aiding and abetting or
vicarious liability.

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Therefore, on the record presented in this habeas corpus
proceeding, the trial court’s consideration of the victim’s testimony from
the 1992 trial does not entitle petitioner to relief under Gallardo. It
was not error under the rule of Gallardo, because, as now appears, the
victim’s testimony that there was only one perpetrator and no
accomplice was undisputed at the 1992 trial, and consideration of that
testimony demonstrates that the jury necessarily found petitioner
personally used a deadly or dangerous weapon. In the alternative,
based on the same reasoning, any error under the rule of Gallardo
premised on the trial court’s consideration of the victim’s testimony to
determine the conduct underlying the 1992 offense was harmless
beyond a reasonable doubt: there is no doubt that the jury in the 1992
trial found that petitioner personally used a deadly and dangerous
weapon. (Chapman v. California (1967) 386 U.S. 18, 24 [“the
beneficiary of a constitutional error [must] prove beyond a reasonable
doubt that the error complained of did not contribute to the verdict
obtained”]; Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [“an
otherwise valid conviction should not be set aside if the reviewing court
may confidently say, on the whole record, that the constitutional error
was harmless beyond a reasonable doubt”].)
//
//
//
//

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DISPOSITION
The order to show cause is discharged, and petition for writ of
habeas corpus is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.

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