62 Cal.App.5th 973
Cal. Ct. App.2021Background
- Robbie R. Viehmeyer shot four times from a semiautomatic pistol directly at a police officer’s head while being chased; he was arrested and later convicted of attempted voluntary manslaughter, assault with a firearm on a peace officer, possession of a firearm by a felon, and unlawful taking of a vehicle.
- The trial court designated assault with a firearm on a peace officer as the primary offense for sentencing; Viehmeyer has served the full term for that primary offense but remains incarcerated on other counts and enhancements (including a 12022.53 personal-discharge enhancement).
- Proposition 57 added Cal. Const., art. I, § 32(a), making persons convicted of a "nonviolent felony offense" eligible for early parole consideration after completing the full term for their primary offense; §32(a) does not define "nonviolent" or "violent."
- CDCR regulations (Cal. Code Regs., tit. 15, §3490) disqualify inmates "currently serving a term of incarceration for a 'violent felony'" and define "violent felony" by reference to Penal Code §667.5(c).
- CDCR denied Viehmeyer’s parole-request under that regulation; habeas petitions were denied by the trial court and this Court, which held (1) an inmate serving both violent and nonviolent felony terms is not entitled to §32(a) early-parole consideration merely because the primary offense is nonviolent, and (2) assault with a firearm on a peace officer was a violent felony on these facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §32(a) entitles an inmate serving both violent and nonviolent felonies to early parole after completing a primary nonviolent term | Viehmeyer: §32(a) uses "a nonviolent felony offense" (singular) and "primary offense," so completing a nonviolent primary term suffices even if other violent terms remain | AG/CDCR: §32(a) should not allow early parole for inmates who remain incarcerated on violent felony terms; regulations excluding those "currently serving" violent felonies are consistent with voters’ intent to protect public safety | Held: §32(a) does not entitle inmates serving both violent and nonviolent felony terms to early parole solely because they completed a nonviolent primary term; CDCR regulation is consistent with §32(a) |
| Whether CDCR may define "violent felony" for §32(a) eligibility solely by reference to Penal Code §667.5(c) | Viehmeyer: §667.5(c) list is arbitrary for §32(a); Mohammad supported a broader reading favoring eligibility | AG/CDCR: §667.5(c) is a reasonable, administrable definition; excludes dangerous offenders | Held: Court rejects using §667.5(c) as the sole criterion in all cases but upholds §3490(a)(5) as consistent with §32(a) in this context (regulation passes muster to deny Viehmeyer) |
| Whether assault with a firearm on a peace officer here is a nonviolent felony because it is not listed in §667.5(c) | Viehmeyer: assault with a firearm on a peace officer is not listed in §667.5(c), so it should be treated as nonviolent for §32(a) | AG: the assault—and attendant 12022.53 discharge enhancement—was violent in nature; §667.5(c)(22) and (8) show firearm-related conduct is violent | Held: On these facts (four shots at an officer’s head, personal-discharge enhancement proved), the assault was violent for §32(a) purposes; even under broader definitional analysis, the offense is violent |
Key Cases Cited
- In re Mohammad, 42 Cal. App. 5th 719 (Cal. Ct. App. 2019) (held a single nonviolent conviction could suffice for §32(a) eligibility; invalidated CDCR regulation in that case)
- In re Febbo, 52 Cal. App. 5th 1088 (Cal. Ct. App. 2020) (concluded §667.5(c) is not an exclusive definition of violent felonies for §32(a) and criticized CDCR’s reliance solely on that list)
- Gadlin v. Superior Court (In re Gadlin), 10 Cal. 5th 915 (Cal. 2020) (set standards for reviewing CDCR regulations under §32 and declined to resolve whether §667.5(c) must control §32(a) definitions)