California Supreme Court Rules Proposition 57 Early Parole Review May be Denied for Any Violent Felony Conviction, Even If Not “Primary Offense”
by Douglas Ankney
On January 3, 2022, the Supreme Court of California held that the state Department of Corrections and Rehabilitation (CDCR) did not abuse its authority when it promulgated regulations excluding from nonviolent-offender parole review any prisoner currently serving a sentence for a violent felony, even one not designated the “primary” offense.
In so holding, the Court reversed the 2019 ruling of a lower state court in the case of prisoner Mohammad Mohammad, who in 2012 pleaded no contest to nine counts of second-degree robbery, all considered “violent felonies” under California Penal Code § 667.5(c), as well as six counts of receiving stolen property, considered “nonviolent felonies” under the same statute. One of the latter counts was designated Mohammad’s principal sentencing term, with the remaining sentences running consecutively for an aggregate 29-year prison term.
In 2016, California voters approved Proposition 57, which added article I, § 32(a)(1) to the California Constitution that reads: “Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term of his or her primary offense.”
That amendment further explained, at § 32(a)(1)(A), that “the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.”
Proposition 57 directed CDCR to adopt regulations “in furtherance of these provisions,” so the agency duly elaborated its “nonviolent offender parole review,” including categories of prisoners excluded, in 15 California Code of Regulations § 3490(a)(1) thru (a)(6).
One of those regulations, § 3490(a)(5), excludes any inmate who “is currently serving a term of incarceration for a ‘violent felony,’” pointing back to the definition found in California Penal Code § 667.5. Based on that, CDCR denied Mohammad’s request for a nonviolent offender parole review because the bulk of his sentence was imposed for the robberies, making him a “violent offender” based on the reasoning of People v. Ramos, 50 Cal.App.4th 810 (1996).
Mohammad disagreed, saying he had completed his term for his primary offense, which was a non-violent felony, so he should be eligible for review. Taking up his petition for a writ of habeas corpus, the California Court of Appeal, Second Appellate District, determined that CDCR’s regulations had improperly focused on the offender and not the offense, rendering them inconsistent with the text of article I, § 32(a).
Because that text plainly extended eligibility to any person convicted of a nonviolent offense who had completed the full term of his or her primary offense, the court of appeal said the provision was unambiguous; it clearly contemplated a person whose primary offense could be a violent felony but who was also convicted of another nonviolent felony. So it directed CDCR to treat § 3490(a)(5) as void and evaluate Mohammad for early parole consideration. The agency appealed, and the state Supreme Court granted its petition for review.
The Court began by observing that its primary concern in construing a constitutional provision enacted via voter initiative is to give effect to its intended purpose, citing California Cannabis Coalition v. City of Upland, 3 Cal.5th 924 (2017). So it must apply the same principles that govern statutory construction, referencing People v. Rizo, 22 Cal.4th 681 (2000).
The Court noted that while this case was pending review, four other appellate decisions had disagreed with the court of appeal to conclude CDCR’s regulations were valid: In re Guice, 66 Cal.App.5th 933 (2021); In re Ontiveros, 65 Cal.App.5th 899 (2021); In re Viehmeyer, 62 Cal.App.5th 973 (2021) and In re Douglas, 62 Cal.App.5th 726 (2021).
Yet each of those decisions interpreted § 32(a) differently. Because each was also plausible, the Court deduced that § 32(a) must be ambiguous, drawing on reasoning in People v. Gonzales, 6 Cal.5th 44 (2018). Further amplifying the ambiguity of § 32(a), the Court added, was its silence about those prisoners like Mohammad, convicted of both nonviolent and violent felonies.
When a provision is ambiguous, the Court said, the principles of statutory construction allow consideration of ballot materials to determine voter intent, again citing Gonzales. After examining those, the Court determined the primary argument between proponents and opponents of Proposition 57 was that prisoners convicted of crimes which the public may consider violent (e.g., certain sex offenses and assaults) would be considered nonviolent by statute and eligible for early release.
None of the materials addressed those convicted of both nonviolent and violent felonies. But CDCR argued that the materials demonstrated voters did not want people convicted of violent felonies considered for early release. And that was a reasonable interpretation, the Court allowed. Accordingly, it reversed the judgment of the court of appeals.
In his concurrence, Justice Goodwin H. Liu noted that the majority’s opinion left unaddressed the question of whether—and if so, when—a prisoner would be eligible if he had completed the term for his primary violent felony but was serving a consecutive term for a nonviolent felony. Mohammad was represented by his appointed counsel, Michael Satris and Heather MacKay. See: In re Mohammad, 12 Cal. 5th 518 (2022).
Additional sources: Newsweek, Redding Record-Searchlight
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