In re MOHAMMAD MOHAMMAD on Habeas Corpus.
B295152
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Filed 11/26/19
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. BH011959)
ORIGINAL PROCEEDINGS in habeas corpus. Superior Court of Los Angeles County, William C. Ryan, Judge. Petition granted.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Phillip J. Lindsay, Senior Assistant Attorney General, Amanda J. Murray, Supervising Deputy Attorney General, and Charles Chung, Deputy Attorney General, for Respоndent.
In this proceeding challenging an aspect of regulations promulgated to implement the Public Safety and Rehabilitation Act of 2016 (Proposition 57), we give effect to the oft-repeated maxim that the best and most reliable indicator of the intended purpose of a law is its text. (National Federation of Independent Business v. Sebelius (2012) 567 U.S. 519, 544; West Virginia University Hospitals, Inc. v. Casey (1991) 499 U.S. 83, 98; California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 933 [the enacted text is typically the best and most reliable indicator of the intended purpose of constitutional provisions and statutes, including those adopted via voter initiative] (California Cannabis).)
I. BACKGROUND
On January 20, 2012, petitioner Mohammad Mohammad pled no contest to nine counts of second degree robbery (
Four years later, on November 8, 2016, California voters approved Proposition 57. The proposition added section 32, subdivision (a) to Article I of California‘s Constitution (hereafter “section 32(a)“), and it 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.” (
After CDCR encountered problems with an initial set of implementing regulations it promulgated (see generally Edwards, supra, 26 Cal.App.5th 1181), CDCR promulgated new regulations effective in 2019. When defining those inmates who will be eligible for early parole consideration, CDCR‘s rulemaking took a different approach than the constitutional provision—focusing less on the nature of an offense committed by a person (i.e., “a nonviolent felony offense“) and more on the person who commits one or more crimes.
Specifically, for determinately sentenced inmates like Mohammad, CDCR‘s regulations adopt a definition of “nonviolent offender” (emphasis ours) to circumscribe eligibility: “A nonviolent offender, as defined in subsections 3490(a) and 3490(b), shall be eligible for parole consideration by the Board of Parole Hearings under [the early parole considerаtion regulations at California Code of Regulations, title 15, sections 2449.1 et seq.].” (
In December 2017, Mohammad requested an early parole hearing pursuant to Proposition 57, arguing he had completed the three-year term of his nonviolent primary offense (receiving stolen property). CDCR denied the request, relying on a 1996 Court of Appeal decision interpreting a sentencing credit calculation statute to conclude Mohammad should be deemed ineligible for Proрosition 57 relief because he was a “violent offender and thereby ineligible for the non-violent parole process.” (See generally People v. Ramos (1996) 50 Cal.App.4th 810, 817 [“[B]y its terms, [Penal Code] section 2933.1 applies to the offender not to the offense and so limits a violent felon‘s conduct credits irrespective of whether or not all his or her offenses come within section 667.5“].) Mohammad pursued his claim for early parole consideration through all levels of CDCR administrative review, and CDCR‘s position never wavered. As CDCR‘s third-level appeal decision interpreted the department‘s own regulations, “one of [Mohammad‘s] non-controlling cases is Second Degree Robbery and this offense makes all of his offenses to be considered violent during this term.”
After unsuccessfully seeking habeas corpus reliеf in the superior court, Mohammad filed a petition for writ of habeas corpus here. We appointed counsel for Mohammad and issued an order to show cause.
II. DISCUSSION
The issue we decide is whether CDCR‘s implementing regulations that condition eligibility for early parole consideration on status as a “nonviolent offender” are consistent with the constitutional provision that authorizes
A. Controlling Legal Principles
“‘In order for a regulation to be valid, it must be (1) consistent with and not in conflict with the enabling statute and (2) reasonаbly necessary to effectuate the purpose of the statute. (
“When construing constitutional provisions and statutes, including those enacted through voter initiative, ‘[o]ur primary concern is giving effect to the intended purpose of the provisions at issue. [Citation.] In doing so, we first analyze provisions’ text in their relevant context, which is typically the best and most reliable indicator of purpose. [Citations.] We start by ascribing to words their ordinary meaning, while taking account of related provisions and the structure of the relevant statutory and constitutional scheme. [Citations.] If the provisions’ intended purpose nonetheless remains opaque, we
B. CDCR’s Regulations, Which Focus on the Offender and Not the Offense, Are Inconsistent with the Constitution’s Text
Mohammad was convicted of a nonviolent felony offense, receiving stolen property. There is no dispute that his primary offense as the Constitution defines it (“the longest term of imprisonment imposed by the court for any offense“) is the principal term prison sentence he received for the count 11 receiving stolen property conviction. Nor is there any dispute that the “full term” in prison for that conviction, “excluding the imposition of an enhancement, consecutive sentence, or alternative sentence” was three years. Therefore, under the plain meaning of section 32(a)(1), Mohammad is eligible for early parole considеration now that he has served three years in prison.
CDCR‘s regulations dictate a different result, but only by impermissibly defining and limiting the universe of eligible inmates to “nonviolent offenders“—a term that does not appear anywhere in section 32(a)(1). The leap
Section 32(a)(1) extends early parole consideration to persons “convicted of a nonviolent felony offense.” Under section 32(a)(1)(A), an inmate who is “convicted of a nonviolent felony offense” not only remains eligible if he or she is sentenced to a consecutive sentence, but in fact, becomes eligible for an early parole hearing prior to serving that consecutive sentence. There is just no escaping the conclusion that the text Proposition 57 added to the Constitution obviously contemplates inmates would be sent to prison for more than one criminal offense and would qualify for early parole consideration if one of those offenses was a nonviolent offense. The regulations CDCR promulgated are at war with that textual conclusion and therefore cannot stand.
In arguing the contrary in this proceeding, CDCR largely (and wisely) abandons the People v. Ramos rationale it relied on when denying Mohammad administrative relief and instead urges us to consider voter intеnt as purportedly reflected in the Proposition 57 summary and arguments included in the official ballot pamphlet. We decline. There is nothing ambiguous about what section 32(a)(1) means in this case, and there is accordingly no cause to look beyond the text to ballot materials or other extrinsic evidence of the voters’ intent. (Silicon Valley Taxpayers’ Assn., Inc. v. Santa Clara County Open Sрace Authority (2008) 44 Cal.4th 431, 444-445.)
We do acknowledge, however, that the argument for reaching a different result has some intuitive appeal. It cannot be, the argument goes, that voters intended a defendant who is convicted of more crimes, i.e., both violent and nonviolent felonies, to be eligible for early parole consideration while a defendant convicted of fewer crimes, i.e., thе same violent felony but no nonviolent felonies, is not. But we look for evidence of the voters’ intent, not intuition, and as our Supreme Court has said repeatedly, the best evidence we have is the text the voters put in the Constitution. (De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 966, 981; California Cannabis, supra, 3 Cal.5th at p. 933; Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037 [“‘Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure [citation] and the court may not add to the statutе or rewrite it to conform to
It is also true that our rationale bespeaks a certain self-aware naivete about what most voters do and do not read before going into the voting booth. But that is a necessary ingredient of the initiative mechanism our Constitution permits. If courts are to have a sound, predictable means of adjudicating interpretive questions concerning popularly enacted laws (or any laws for that matter); and if government agencies and Californians are to have a reliable means of discerning their legal rights and obligations; privileging focus-group-tеsted ballot arguments, incomplete legislative analyses, or intuited voter intentions over clear textual provisions is not the answer. Indeed, that would invite confusion and manipulation of the initiative process. If voters want a different result, the ballot box is open every two years to change what the Constitution now says.
In the meantime, it bears emphasizing that Mohammad‘s case is an unusual onе. The court at Mohammad‘s sentencing designated one of the receiving stolen property convictions—i.e., one of the nonviolent felonies—as the principal term of Mohammad‘s sentence. Often, however, an inmate convicted of both violent and nonviolent felonies will have the most serious of his or her violent felonies set as the principal term. Thus, the situation we confront in this case when an inmate becomes eligible for early parole consideration before serving time for any of his or her violent felony offenses will not frequently arise.3
Furthermore, for those inmates who are eligible for early parole consideration under section 32(a) as we read it today (and as it must be read), the ultimate parole determination to be made on thе merits by the Board of
DISPOSITION
The petition for writ of habeas corpus is granted. CDCR is directed to treat as void and repeal
CERTIFIED FOR PUBLICATION
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.