In re MOHAMMAD MOHAMMAD on Habeas Corpus.
S259999
IN THE SUPREME COURT OF CALIFORNIA
January 3, 2022
Second Appellate District, Division Five B295152; Los Angeles County Superior Court BH011959
Chief Justice Cantil-Sakauye authored the opinion of the Court, in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and Levy* concurred.
Chief Justice Cantil-Sakauye authored the opinion of the Court, in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and Levy* concurred.
Justice Liu filed a concurring opinion in which Justice Kruger concurred.
____________________
* Associate
Opinion of the Court by Cantil-Sakauye, C. J.
This case asks whether Proposition 57, The Public Safety and Rehabilitation Act of 2016, requires California‘s Department of Corrections and Rehabilitation (the Department) to provide early parole consideration to individuals currently serving a term of incarceration for a violent felony.
Petitioner Mohammad Mohammad was incarcerated after having been convicted of nine violent felony counts and six nonviolent felony counts. The trial court ordered all terms to be served consecutively. After petitioner‘s conviction, the electorate approved Proposition 57 in November 2016, which added section 32 to article I of the California Constitution to provide, in relevant part, that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (
The Department subsequently adopted regulations implementing early parole consideration under
Consistent with those regulations, the Department determined petitioner was ineligible for nonviolent offender early parole consideration because he was serving a term of incarceration for a violent felony. Petitioner challenged that determination, and the Court of Appeal granted relief, holding that the language of
We granted review to decide the validity of the Department‘s regulation prohibiting early parole consideration under the Proposition 57 scheme for inmates “currently serving a term of incarceration for a ‘violent felony.‘” (
We conclude that the Department acted within the authority provided by
I. FACTS AND PROCEDURAL HISTORY
A. The Underlying Conviction
In 2012, petitioner pleaded no contest to nine counts of second degree robbery (
B. The Petition for Writ of Habeas Corpus and the Court of Appeal Opinion
The electorate approved Proposition 57 in 2016. Petitioner subsequently filed a request with the Department asking for early parole consideration. He asserted that Proposition 57 requires early parole consideration for inmates who have completed the full term for a primary offense when that offense is nonviolent. He noted that the trial court in his case designated as the principal term one count of receiving stolen property, and that receiving stolen property is not defined as a violent felony under
In January 2019, petitioner sought habeas corpus relief in the Court of Appeal. That court ultimately held in a published opinion that the Department‘s regulations improperly excluded petitioner from early parole consideration. (Mohammad, supra, 42 Cal.App.5th at p. 729.) The court focused on the language of the constitutional provision establishing parole
In support of its conclusion, the court pointed to the constitutional language defining the “‘full term for the primary offense’ as ‘the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, [a] consecutive sentence, or [an] alternative sentence.‘” (Mohammad, supra, 42 Cal.App.5th at p. 726, quoting
The court rejected the Department‘s regulations as incompatible with the language of
The Court of Appeal acknowledged that the Department‘s argument “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., the same violent felony but no nonviolent felonies, is not.” (Mohammad, supra, 42 Cal.App.5th at p. 727.) But this “intuitive appeal” is overcome and that interpretation foreclosed, the court determined, by the language of the provision. (Id. at pp. 727-728.)
The court also noted that petitioner‘s case “is an unusual one” in that the trial court designated a nonviolent felony as petitioner‘s principal term, while
We granted the Attorney General‘s petition for review. After the filing of our opinion in In re Gadlin (2020) 10 Cal.5th 915 (Gadlin), we granted petitioner‘s motion to file supplemental briefing to address Gadlin as well as Proposition 20, a ballot initiative that was rejected by the voters in November 2020.
II. DISCUSSION
A. Proposition 57
We recently described the history of Proposition 57 in Gadlin. We noted there that the California Legislature and the electorate have taken steps to decrease the California prison population, including the electorate‘s approval of Proposition 57 in November 2016. (Gadlin, supra, 10 Cal.5th at pp. 922-923, citing Cal. Sect. of State, Statement of Vote Summary Pages (2016) p. 12 <https://elections.cdn.sos.ca.gov/sov/2016-general/sov/06-sov-summary.pdf> [as of Dec. 28, 2021].) The initiative, in relevant part, added section 32 to article I of the California Constitution, which provides: “Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (
We described the purposes of the constitutional provision in Gadlin: “‘[T]o enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law.‘” (Gadlin, supra, 10 Cal.5th at p. 923, quoting
B. The Department‘s Regulations
In March 2017, the Department proposed emergency regulations to implement Proposition 57. As we described in Gadlin, those emergency regulations were replaced by final regulations in May 2018 and subsequently amended in response to various appellate opinions. (Gadlin, supra, 10 Cal.5th at pp. 924-925.) The regulations define a “determinately-sentenced nonviolent offender” as an inmate who is not, among other things, “currently serving a term of incarceration for a ‘violent felony.‘” (
Other provisions of the regulations exclude from early parole consideration individuals “currently serving a determinate term prior to beginning a term of life with the possibility of parole or prior to beginning a term for an in-prison offense that is a ‘violent felony‘” (
C. Standard of Review and Principles of Statutory Interpretation
We apply well settled principles to determine the validity of regulations promulgated by a state agency. As in Gadlin, we acknowledge that
In undertaking this analysis, we ask whether the regulation is “‘consistent and not in conflict with‘” the constitutional provision that authorizes it (see Morris, supra, 67 Cal.2d at p. 748, italics omitted, quoting
quoting Credit Ins. Gen. Agents Assn. v. Payne (1976) 16 Cal.3d 651, 657.) In doing so, we presume the validity of the regulation (Assn. of California Ins. Companies v. Jones (2017) 2 Cal.5th 376, 389); the burden lies with the party challenging the regulation to show its invalidity (Payne, supra, 16 Cal.3d at p. 657). Because this inquiry poses a question of law (see Western States Petroleum Assn. v. Board of Equalization (2013) 57 Cal.4th 401, 415), we review the Court of Appeal‘s decision de novo. (See People v. Gonzales (2018) 6 Cal.5th 44, 49, citing Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 135.)
Our “primary concern” in construing a constitutional provision enacted through voter initiative is “giving effect to the intended purpose of the provisions at issue” (California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 933) by applying “the same principles that govern statutory construction” (People v. Rizo (2000) 22 Cal.4th 681, 685, citing Horwich v. Superior Court (1999) 21 Cal.4th 272, 276). In doing so, we look to the text of the constitutional provision at issue and, as
D. The Language of Proposition 57
We begin our analysis with the language of the constitutional provisions enacted by Proposition 57.
As noted, the Court of Appeal below concluded that the voters intended to extend early parole consideration to an inmate convicted of “a” nonviolent felony, regardless of whether that inmate was currently serving a term for a violent felony. (Mohammad, supra, 42 Cal.App.5th at p. 725; see id. at pp. 725-726.) The court declined to consider the ballot materials presented to the voters, concluding “[t]here is nothing ambiguous about what [article I,] section 32(a)(1) means in this case....” (Id. at p. 727.) The Department asserts, on the other hand, that the constitutional provisions are ambiguous and require consideration of the ballot materials to determine the intent of the electorate.
We first examine whether the constitutional language is ambiguous; if the text “is unambiguous and provides a clear answer, we need go no further.” (Microsoft Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750, 758.) When a constitutional provision is “clear and unambiguous” it should be given its ordinary meaning. (People v. Valencia (2017) 3 Cal.5th 347, 357, quoting Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) “The
The Court of Appeal concluded the language is clear and unambiguous: An inmate convicted of “a” nonviolent felony would be eligible for early parole consideration after completing the full term of the primary offense. (Mohammad, supra, 42 Cal.App.5th at p. 725; see id. at pp. 725-726.) The court stated that the requirement that an inmate be convicted of “a” nonviolent felony “takes the singular form, which indicates it applies to an inmate so long as he or she commits ‘a’ single nonviolent felony offense — even if that offense is not his or her only offense.” (Id. at p. 726.) The court also determined the inclusion of the term “primary offense” in the constitutional provision further indicates the electorate would have understood that inmates “might be serving a sentence for more than one offense, i.e., a primary offense and other secondary offenses.” (Id. at p. 726.) Moreover, the court noted that the constitutional definition of the “full term for the primary offense” specifically references (and excludes) the imposition of a consecutive sentence. (Ibid.)
Considered alone and outside of the context of the entire initiative, the Court of Appeal‘s interpretation is a plausible reading of the language that is, on its face, consistent with
different contexts, or even different meanings within a single statute“].)
We have found similar language to be ambiguous. (In re Reeves (2005) 35 Cal.4th 765 (Reeves).) In Reeves, we considered a statute that provided “‘any person who is convicted of a [violent] felony offense ... shall accrue no more than 15 percent of worktime credit ....‘” (Id. at p. 768, fn. omitted, quoting
The constitutional provision here contains language nearly identical to the statutory language we considered in Reeves.
Further, the appellate courts and the parties here advance various interpretations of
A concurring opinion in another appellate decision provides a different approach: When an inmate has been convicted of a violent felony offense that is deemed the primary offense and also has been convicted of a nonviolent felony offense, the inmate is eligible for nonviolent offender parole consideration after serving the sentence for the violent felony. (In re Douglas, supra, 62 Cal.App.5th at p. 735 (conc. opn. of Robie, Acting P. J.).) The Department asserts the language permits the exclusion of inmates who have nonviolent felony
convictions and are currently serving a term of incarceration for a violent felony offense.
The language of
Petitioner contends that our recent opinion in Gadlin compels a contrary conclusion. But in Gadlin, we found the language of
E. Consideration of the Ballot Materials
Because the constitutional text provides “no definitive answer” to the question before us (People v. Hazelton (1996) 14 Cal.4th 101, 105, quoting People v. Coronado (1995) 12 Cal.4th 145, 151), we consider the materials that were before the voters. (People v. Valencia, supra, 3 Cal.5th at p. 364, citing Robert L. v. Superior Court, supra, 30 Cal.4th at p. 905.)
1. The ballot materials presented to the voters
The voters were provided ballot materials that consisted of the official title and summary prepared by the Attorney General, the analysis by the Legislative Analyst, and the arguments in favor of and against the proposition.10
The official title and summary described the relevant provisions of Proposition 57 as follows: “Allows parole consideration for persons convicted of nonviolent felonies, upon completion of prison term for their primary offense as defined. [¶] ... [¶] Requires Department of Corrections and Rehabilitation to adopt regulations to implement new parole and sentence credit provisions
The analysis by the Legislative Analyst generally summarized California‘s then-existing sentencing and parole consideration scheme, and described the changes to the parole system that would result were Proposition 57 to be adopted. The analysis described the proposed parole scheme as “parole consideration for nonviolent offenders” and stated that the initiative “changes the State Constitution to make individuals who are convicted of ‘nonviolent felony’ offenses eligible for parole consideration after serving the full prison term for their primary offense.” (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 57 by Legis. Analyst, p. 56.) The analysis noted that “[a]lthough the measure and current law do not specify which felony crimes are defined as nonviolent, this analysis assumes a nonviolent felony offense would include any felony offense that is not specifically defined in statute as violent.”
(Ibid.) Based on that assumption, the analysis estimated that, “[a]s of September 2015, there were about 30,000 individuals in state prison who would be affected by the parole consideration provisions of the measure.” (Ibid.) And the analysis estimated that eligible inmates “currently serve about two years in prison before being considered for parole and/or released” but under the initiative “would serve around one and one-half years in prison before being considered for parole and/or released.” (Ibid.)
Finally, the arguments in favor of and against the initiative were presented to the voters. The proponents urged that Proposition 57 would allow “parole consideration for people with non-violent convictions who complete the full prison term for their primary offense.” (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 57, p. 58.) The proponents did not address whether individuals with nonviolent felony convictions who are currently serving a term of incarceration for a violent felony would be eligible for early parole consideration.
The opponents’ rebuttal and argument against Proposition 57 asserted that the initiative would allow parole consideration for “VIOLENT CRIMINALS.” (Voter Information Guide, Gen. Elec., supra, rebuttal to argument in favor of Prop. 57, p. 58.) The opponents claimed the measure was “poorly drafted” and would allow for parole consideration for various crimes allegedly categorized by Proposition 57 as “non-violent.” (Id., p. 59.) The opponents asserted that if the measure passed “16,000 dangerous criminals, including those previously convicted of murder and rape, would be eligible for early release.” (Id., p. 59, italics omitted.) The opponents did not address whether
The proponents’ rebuttal responded by stating that the initiative would not authorize parole for violent offenders, and cited Brown v. Superior Court (2016) 62 Cal.4th 335 for the position that Proposition 57 would apply ” ‘only to prisoners convicted of non-violent felonies.’ ” (Voter Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 57, p. 59, quoting Brown v. Superior Court, supra, 63 Cal.4th at p. 352.) The proponents emphasized, too, that “[v]iolent criminals as defined in
2. Analysis
The Department contends the ballot materials reveal that the voters intended to exclude any inmate currently serving a term for a violent felony from early parole consideration, regardless of whether such an inmate has also been convicted of a nonviolent felony. The Department stresses that the Legislative Analyst stated that the initiative provided for “parole consideration for nonviolent offenders.” (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 57 by Legis. Analyst, p. 56.) The Department also emphasizes that the rebuttal to the arguments opposing Proposition 57 reiterated that the initiative “Does NOT authorize parole for violent offenders” and that “[v]iolent criminals as defined in
The Department further contends that even if it was not compelled to exclude from early parole consideration inmates currently serving a term of incarceration for a violent felony, it acted within its discretion to do so. In support of this position, the Department points to
We agree that the Department acted within the authority granted by
We reach this conclusion based on our consideration of the constitutional text, the ballot materials, the stated purposes of the initiative, and the Department‘s discretion to promulgate regulations under the Constitution. We hold that the Department‘s regulation is consistent with
Neither the language of the constitutional provision nor the materials presented to the voters explicitly stated whether an inmate currently serving a term for a violent felony would be eligible for parole consideration under the initiative. As we have explained, the constitutional text is ambiguous on this point. Although the ballot materials do not directly answer the question, they conveyed to the voters that Proposition 57 would establish “parole consideration for nonviolent offenders” (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 57 by Legis. Analyst, p. 56) and would not authorize early parole consideration for “violent offenders” (Voter Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 57, p. 59).
As the Department observes, the proponents’ rebuttal asserted “violent offenders” and “[v]iolent criminals as defined in
The opponents’ arguments in the ballot materials did not allege that inmates currently serving a term for a violent felony offense would be eligible for parole consideration under the initiative, or assert the initiative should be rejected for that reason. Instead, the thrust of the opponents’ arguments was that the scope of the term “violent felony” was too narrow. (See Voter Information Guide, Gen. Elec., supra, argument against Prop. 57, p. 59.) The opponents described a number of offenses — including certain types of rape, sex trafficking, and assault with a deadly weapon — that would be categorized as “nonviolent” under the initiative. (Id., rebuttal to argument in favor of Prop. 57, p. 58.)
In this context, Proposition 57 directed the Department to “adopt regulations in furtherance of [the constitutional] provisions,” and to “certify that these regulations protect and enhance public safety.” (
The ballot materials support such a conclusion. Underlying the debate between the proponents and opponents of Proposition 57 was the implication that an inmate serving a prison term for a violent felony would be excluded from parole consideration. As the Department puts it, “the singular focus on ‘nonviolent felonies’ supports the inference that individuals serving time for violent felonies would not be eligible.” There would be little reason to debate the meaning and scope of the term violent felony if having a conviction for a nonviolent felony triggered early parole consideration regardless of whether an individual was currently serving a term of incarceration for a violent felony conviction. The Department‘s decision to craft its regulations in a way that excluded individuals currently serving a term of incarceration for a violent felony is consistent with the distinction between violent and nonviolent felonies emphasized in the ballot materials.
Petitioner‘s arguments to the contrary are unavailing. First, he notes the materials presented to the voters stated that “persons convicted of nonviolent felonies” would be eligible for parole “upon completion of [a] prison term for their primary offense as defined,” but did not indicate that there was an
Second, petitioner asserts the ballot materials should not be relied on because they are partisan and “may serve to mislead a voter about an initiative‘s purpose, intent, and effect.” It is true that, as we noted in Gadlin, the voters “were explicitly warned in the margins of the voter guide that ‘Arguments printed on this page are the opinions of the authors, and have not been checked for accuracy by any official agency.’ ” (Gadlin, supra, 10 Cal.5th at pp. 940–941, quoting Voter Information Guide, Gen. Elec., supra, pp. 58, 59.) Still, petitioner provides no explanation regarding why any potential partisan bias aids him here. He observes that the opponents emphasized the initiative would apply to “violent criminals.” (Voter Information Guide, Gen. Elec., supra, rebuttal to argument in favor of Prop. 57, p. 58, capitalization omitted.) But the opponents’ focus on the term “violent criminals,” when taken in context, had nothing to do with inmates currently serving a term for a violent felony. Rather, the opponents were concerned with the types of offenses that would be considered nonviolent under the initiative. (See Voter Information Guide, Gen. Elec., supra, rebuttal to argument in favor of Prop. 57, p. 58 [asserting inmates convicted of crimes including sex trafficking, assault with a deadly weapon, lewd acts against a 14-year-old, hostage taking, and hate crimes causing injury would be classified as nonviolent].) As noted above, neither the proponents nor the opponents of Proposition 57 expressly addressed the circumstance we consider here. Thus, it cannot be said that the materials misled the voters with respect to the treatment of inmates currently serving a term of incarceration for a violent felony, or that the Department acted in excess of its authority when crafting the regulation at issue here.
Petitioner next asserts that the initiative informed the voters that the Board of Parole Hearings would guard public safety by evaluating each eligible inmate for parole suitability. (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 57, p. 58.) But petitioner does not explain how this would have conveyed to the voters an understanding that inmates currently serving a term for a violent felony would be eligible for early parole consideration.
Further, petitioner‘s reliance on Gadlin with regard to the ballot materials is misplaced. In Gadlin, we rejected the Department‘s position that the ballot
Unlike the circumstances in Gadlin, the Department was well within its discretion to frame its regulations in light of the robust debate captured in the ballot materials.
Finally, petitioner asserts the voters’ rejection of Proposition 20 at the 2020 election constitutes evidence that the voters, in passing Proposition 57 in 2016, intended to afford parole consideration to inmates serving terms of imprisonment for both violent and nonviolent felonies. He notes that Proposition 20 would have explicitly excluded such inmates from early parole consideration by adding
Petitioner‘s argument is entirely unavailing. A failed initiative presented to the voters in 2020 cannot provide evidence of the voters’ intent when they cast their ballots in 2016. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 238 [“we cannot speculate that the rejection [of an initiative by the voters] amounted to an implied approval” of a court opinion that would have been effectively overturned by the initiative], citing Dyna-Med, supra, 43 Cal.3d at p. 1396; In re Guice, supra, 66 Cal.App.5th at p. 942
[“There is simply no way of knowing why voters rejected Proposition 20 four years after they approved Proposition 57“].)
As to the application of the regulation to this case, petitioner does not contest the Department‘s determination that he is currently serving a term of incarceration for a violent felony. As described, petitioner was convicted of nine counts of second degree robbery (a violent felony), six counts of receiving stolen property (a nonviolent felony), and various gang enhancements. His only argument before this court is that he should be entitled to early parole consideration because he is a “mixed-offense prisoner whose nonviolent felony offense is his primary offense and whose violent offenses are secondary ones that run consecutive and subordinate to that primary and principal offense.” Because petitioner has not contested the Department‘s determination that he is currently serving a term for a violent felony, and because we have determined that the regulation excluding from early parole consideration inmates who are currently serving a term for a violent felony is a valid exercise of the Department‘s rulemaking authority under
III. CONCLUSION
Neither the language of
The judgment of the Court of Appeal is reversed.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
LEVY, J.*
* Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to
Concurring Opinion by Justice Liu
The Public Safety and Rehabilitation Act of 2016, known as Proposition 57, provides that “[a]ny person convicted of a nonviolent felony offense . . . shall be eligible for parole consideration after completing the full term for his or her primary offense.” (
Lurking beneath this holding, however, are a number of questions concerning what it means for an inmate with both violent and nonviolent felony convictions to be “currently serving a term of incarceration for a ‘violent felony.’ ” (
Mohammad was sentenced to a consecutive term of 29 years for multiple violent (robbery) and nonviolent (receiving stolen property) offenses. In its administrative review of his request for early parole consideration, the Department determined that his robbery offense (any one of them) ” ‘makes all of his offenses to be considered violent during this term.’ ” (In re Mohammad (2019) 42 Cal.App.5th 719, 724.) In In re Reeves (2005) 35 Cal.4th 765, 772, we said that “[u]nder the Determinate Sentencing Act ([
But there is some tension between the Department‘s view and Proposition 57‘s definition of “primary offense” to mean “the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.” (
Consider, for example, an inmate serving a consecutive sentence for a robbery offense with a six-year term and a receiving stolen property offense with a three-year term. The robbery offense is the “primary offense” because it carries “the longest term of imprisonment imposed by the court for any offense.” (
Today‘s decision does not answer these questions, nor does it address at what point, if any, during Mohammad‘s consecutive sentence he may become eligible for early parole consideration. These issues await resolution in future cases.
LIU, J.
I Concur:
KRUGER, J.