In Re Saade

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1393

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1394

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1395 OPINION

The trial court granted defendant Jalal Khalid Saade's petition for writ of habeas corpus, ruling that the decision of the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856,127 S.Ct. 856] (Cunningham) applied retroactively to defendant's aggravated term sentence for first degree burglary, even though defendant's sentence was final when Cunningham was decided. We reverse the judgment, and reinstate defendant's original sentence.Cunningham does not apply retroactively to sentences for which all avenues of direct appeal have been exhausted. Our conclusion is not altered by the recent decision of the United States Supreme Court inDanforth v. Minnesota (2008) 552 U.S. ___ [169 L.Ed.2d 859, 128 S.Ct. 1029] (Danforth), which held that states are free to give broader retroactive effect to new federal constitutional rules of criminal procedure than would otherwise be available under the high court's analysis in Teaguev. Lane (1989) 489 U.S. 288 [103 L.Ed.2d 334, 109 S.Ct. 1060] (Teague). *Page 1396 On collateral review, California courts have applied a federal test (most recently Teague) where the decision being analyzed for retroactivity was a United States Supreme Court decision based on a federal constitutional right. But where a state court decision founded on a state-based right is the subject of the retroactivity inquiry, California courts have applied the test first set forth in In re Johnson (1970) 3 Cal.3d 404, 410 [90 Cal.Rptr. 569, 475 P.2d 841] (Johnson). We conclude the retroactivity analysis under either Teague or Johnson arrives at the same result: Cunningham is not retroactive. Thus, the permission granted by Danforth, allowing us to grant broader relief on habeas corpus by applying state law to determine the retroactivity ofCunningham, does not assist defendant's cause.

PROCEDURAL BACKGROUND In July 2003, a jury convicted defendant of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)) and cutting a utility line (Pen. Code, § 591). In August 2003, the trial court sentenced him to the aggravated term of six years in state prison. The upper term was based on the court's finding that the manner in which defendant carried out the crime indicated planning and sophistication because defendant "had in his possession items to commit the offense including gloves, mask, flashlight, dark clothing, pepper spray, and items used in the security profession." Defendant appealed, contending his sentence violated the Sixth andFourteenth Amendments to the United States Constitution under the decisions of the United States Supreme Court in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely) andApprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435,120 S.Ct. 2348] (Apprendi). In Apprendi, the Supreme Court held, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, at p. 490.) InBlakely, the United States Supreme Court held that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, at p. 303, italics omitted.) On June 28, 2005, we affirmed defendant's conviction in an unpublished opinion. (People v. Saade (June 28, 2005, G032844) [nonpub. opn.].) We concluded defendant's sentence did not violate his Sixth Amendment jury trial right under Blakely. In doing so, we relied on People v. Black (2005) 35 Cal.4th 1238 [29 Cal.Rptr.3d 740, 113 P.3d 534] (Black I), where the California Supreme Court held that "judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive *Page 1397 terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Id. at p. 1244.) On January 22, 2007, in Cunningham, supra, 549 U.S. 270, the United States Supreme Court overruled Black I and held that "California's determinate sentencing law (DSL) violates a defendant's federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence." (People v. Black (2007) 41 Cal.4th 799, 805 [62 Cal.Rptr.3d 569,161 P.3d 1130] (Black II).) The following month, defendant filed a petition for writ of habeas corpus. Defendant argued his sentence violated his Sixth Amendment right under Cunningham because it was imposed based on facts found true by the sentencing judge rather than by a jury. The trial court agreed and concluded Cunningham applied retroactively to defendant's case. The court granted the petition, vacated defendant's sentence, and directed the sentencing judge "to conduct a new sentencing hearing in compliance withCunningham. . . ." We reverse the judgment and hold Cunningham does not apply retroactively to sentences for which all avenues of direct appeal had been exhausted before the Cunningham decision was issued. Defendant's conviction was final in November 2005, well before Cunningham was decided.1 DISCUSSION The issue before us is whether the rule announced in Cunningham should apply retroactively to defendant's case.2 Our review is de novo. (Inre Serrano (1995) 10 Cal.4th 447, 457 [41 Cal.Rptr.2d 695, 895 P.2d 936] [where the lower court rules on a petition for writ of habeas corpus without conducting an evidentiary hearing, the standard of review is de novo].) In Teague, supra, 489 U.S. 288, the United States Supreme Court held that, as a general rule, "new constitutional rules of criminal procedure" will not be applied retroactively to cases which were final "before the new *Page 1398 rules are announced." (Id. at p. 310.) "Under Teague, the determination whether a constitutional rule of criminal procedure applies to a case on collateral review" requires the court to determine if "the rule is actually `new.'" (Beard, supra, 542 U.S. at p. 411.) "[I]f the rule is new, the court must consider whether [the rule] falls within either of the two exceptions to nonretroactivity." (Ibid.) "A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a `"watershed rul[e] of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding.'" (Whorton v. Bockting (2007) 549 U.S. ___, ___ [167 L.Ed.2d 1, 127 S.Ct. 1173, 1180] (Whorton).) Numerous courts — including the California Courts of Appeal — have applied the Teague analysis on collateral review to determine whether a new federal constitutional rule of criminal procedure applies retroactively. (See In re Moore (2005) 133 Cal.App.4th 68, 75-76 [34 Cal.Rptr.3d 605] [applying Teague analysis to determine whetherCrawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] (Crawford) would be given retroactive effect]; In re Consiglio (2005)128 Cal.App.4th 511, 514 [27 Cal.Rptr.3d 167] [citing Schriro v.Summerlin (2004) 542 U.S. 348, 352 [159 L.Ed.2d 442, 124 S.Ct. 2519] (Schriro), which relied on Teague, in deciding whether Blakely, supra,542 U.S. 296 would be given retroactive effect]; see also 4 Witkin Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Criminal Procedure, § 11, p. 18 [collecting federal cases].) And the parties briefed the issue using the Teague analysis. But at oral argument, defendant brought to our attention Danforth,supra, 552 U.S. ___ [128 S.Ct. 1029], a case decided by the United States Supreme Court a few days earlier. In Danforth, a jury convicted the defendant of criminal sexual conduct with a minor. (Id. at p. ___ [128 S.Ct. at p. 1033].) At trial, the minor did not testify; instead, the jury watched a videotaped interview with the child. (Ibid.) After the defendant's conviction became final, the United States Supreme Court decided Crawford, supra, 541 U.S. 36, which announced a "`new rule' for evaluating the reliability of testimonial statements in criminal cases." (Danforth, at p. ___ [128 S.Ct. at p. 1033].) The defendant then filed a petition for writ of habeas corpus in the Minnesota state court, arguing that the admission of the videotape violated his Sixth Amendment right to confront witnesses against him as outlined in Crawford. The Minnesota trial court ruled Crawford would not be applied retroactively. On appeal, the Minnesota Supreme Court performed the Teague analysis and agreed with the trial court, concluding Crawford could not be retroactively applied to the defendant's case. (Danforth, at pp. ___-___ [128 S.Ct. at pp. 1033-1034].) The court also determined it could not retroactively apply Crawford to a broader class of cases than the limited class permitted by Teague. (Danforth, at p. ___ [128 S.Ct. at p. 1033].) *Page 1399 The United States Supreme Court reversed. It held that "the Teague decision limits the kinds of constitutional violations that will entitle an individual to relief on federal habeas, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed `nonretroactive' under Teague." (Danforth, supra, 552 U.S. at p. ___ [128 S.Ct. at p. 1042], italics added.) But Danforth did not hold that theTeague framework for determining retroactivity cannot be applied in state courts. Danforth merely clarified that Teague had "considered what constitutional violations may be remedied on federal habeas" but not "whether States can provide remedies for violations of these rights in their own postconviction proceedings." (Danforth, at p. ___ [128 S.Ct. at p. 1038].) Thus, under Danforth, states are free either to adopt the Teague analysis as part of state law or to adopt a standard providing greater retroactive relief than available under Teague. The California Supreme Court has neither expressly adopted nor expressly rejected the Teague analytical framework where the new rule of criminal procedure is based on the federal Constitution. Our high court has, however, suggested by negative implication that the United States Supreme Court's retroactivity analysis would apply where the new rule of criminal procedure is based on the federal Constitution. (People v.Murtishaw (1989) 48 Cal.3d 1001, 1012-1013 [258 Cal.Rptr. 821,773 P.2d 172] (Murtishaw) [justifying departure from federal retroactivity standard for cases on direct review because the new rule was based on state law, not the federal Constitution or federal judicial supervisory power]; People v. Carrera (1989) 49 Cal.3d 291, 327 [261 Cal.Rptr. 348, 777 P.2d 121] [same].) And, as noted above, California Courts of Appeal have utilized the Teague analysis to determine retroactivity of new federal constitutional rules of criminal procedure on collateral review. Moreover, nearly 20 years before the United States Supreme Court's decision in Teague, the California Supreme Court adopted the then extant United States Supreme Court standard for determining the retroactivity of a new rule based on the federal Constitution. In Johnson, supra,3 Cal.3d 404, our high court considered whether a United States Supreme Court decision should be applied retroactively in a state habeas corpus proceeding. Johnson held that the retroactivity of a new rule "is to be determined by `"(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."`" (Id. at p. 410.) TheJohnson test was taken verbatim from Desist v. United States (1969)394 U.S. 244, 249 [22 L.Ed.2d 248, 89 S.Ct. 1030], a (now outdated) United States Supreme Court case governing when decisions should be applied retroactively on direct review, even though the issue in Johnson *Page 1400 was raised in a state habeas corpus proceeding.3 Perhaps significantly, the Johnson court adopted the federal retroactivity test even though, presaging Danforth by nearly 40 years, it recognized that "the states are free to give greater retroactive impact to a decision than the federal courts choose to give. . . ." (Johnson, at p. 415, citations omitted.) Although the Johnson test was based on a United States Supreme Court decision which has since been superseded, California courts have uniformly applied the Johnson test on collateral review where the issue is the retroactivity of a new rule based on state decisional or statutory law.4 (See In re Joe R. (1980) 27 Cal.3d 496, 510-511 [165 Cal.Rptr. 837, 612 P.2d 927] (Joe R.) [applying Johnson test and concluding In re Scott K. (1979) 24 Cal.3d 395, 403-404 [155 Cal.Rptr. 671, 595 P.2d 105] (Scott K.), where our Supreme Court held, under California's Constitution, that a father's consent could not justify a warrantless search of a locked toolbox in his minor son's bedroom, did not apply retroactively]; In re Pratt (1980)112 Cal.App.3d 795, 860-861 [170 Cal.Rptr. 80] (Pratt) [applyingJohnson test and concluding Barber v. Municipal Court (1979) 24 Cal.3d 742,751-752 [157 Cal.Rptr. 658, 598 P.2d 818], where the California Supreme Court held that the right to counsel guaranteed by the California Constitution is violated when a state agent is present at a confidential attorney-client conference, did not apply retroactively].) Thus, California courts have applied the Johnson test on collateral review to determine the retroactivity of a state-created right and applied Teague to determine the retroactivity of a right based on the federal Constitution. Our high court, however, has never held thatJohnson is not an appropriate tool *Page 1401 to determine whether a newly announced federal right applies retroactively. And Danforth allows us to apply California law to determine whether Cunningham should be given broader retroactive effect than would be available under Teague. Whether Danforth will cause our Supreme Court to depart from the Teague analysis currently utilized by the California Courts of Appeal when determining whether a new rule, based on a federal constitutional right, is retroactive on collateral review, is not yet known. Our high court may decide to adopt the Teague formulation as the law of California, much as it did in Johnson, where it adopted the then federal standard, even while recognizing it could, as a matter of state law, give broader relief on collateral review of final judgments. Or our Supreme Court may decide it prefers the Johnson formulation as a rule now well embedded as part of our state law. Or it may ultimately adopt a rule that differs from both Teague and Johnson. We think it more likely, however, that the California Supreme Court will adopt either Johnson or Teague as the better or more appropriate rule, and not manufacture still a third rule. Accordingly, we analyze the retroactivity issue in defendant's case separately under both theJohnson and Teague formulations to determine (1) whether Johnson would provide retroactive relief not available under Teague and (2) whether under either Johnson or Teague defendant should obtain retroactive relief.