Metropolitan News-Enterprise


Wednesday, June 23, 2021


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C.A. Panel Repudiates Decision on Proposition 57’s Effect

Guerrero Says Opinion by Baker Leads to ‘Absurd,’ ‘Unreasonable’ Results; Declares That Inmate Convicted of Nonviolent Felony Not Entitled to Early Parole Consideration if Also Convicted of Violent Felony


By a MetNews Staff Writer


A provision of Proposition 57, despite the literal meaning of its wording, does not authorize a parole hearing when an inmate has served the full term for a nonviolent felony where that person was also convicted of a violent felony, Div. One of the Fourth District Court of Appeal has declared, repudiating a contrary opinion by this district’s Div. Five.

Monday’s opinion by Justice Patricia Guerrero labels the result reached by this district to be “absurd and unreasonable.”

At issue is the effect of Art. I, §32(a)(1) of the California Constitution, added by Proposition 57— the Public Safety and Rehabilitation Act—enacted by voters on Nov. 8, 2016.

Wording of Provision

 It says:

“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.”

As directed by Proposition 57, the Department of Corrections and Rehabilitation (“CDCR”) promulgated regulations in furtherance of the provisions. One regulation specified that an inmate was “a ‘determinately-sentenced nonviolent offender’ if none of the following are true,” one disqualifying factor being: “The inmate is currently serving a term of incarceration for a ‘violent felony.’ ”

The CDCR denied a parole hearing to Mohammad Mohammad who had completed his full three-year term for receiving stolen goods, a nonviolent felony. It reasoned he was ineligible because the had also been convicted of robberies, violent felonies.

Baker’s Opinion

In Nov 26, 2019, the Court of Appeal for this district, In re Mohammad, a published decision, granted a petition for a writ of habeas corpus, ordering that parole eligibility hearing take place. Acting Presiding Justice Lamar Baker said that applying the unambiguous words of the state constitutional provision, relief must be granted.

He wrote:

“Mohammad was convicted of a nonviolent offense, among others, and he has completed the full term of his primary offense. That means he is now entitled to early parole consideration notwithstanding CDCR’s regulatory exclusion to the contrary—which we shall invalidate.”

The California Supreme Court granted review in the case on Feb. 19, 2020. Under a rule change effective July 1, 2016, the granting of review no longer wipes out the Court of Appeal opinion.

Contrary View

Seeking relief similar to that afforded Mohammad, inmate Israel Ontiveros petitioned the Fourth District’s Div. One for a writ of habeas corpus. Guerrero responded that “[e]ven accepting Mohammad’s position that the language of Proposition 57 unambiguously applies” to inmates serving sentences for both nonviolent and violent felonies, “such application would lead to the absurd result that an inmate convicted of a violent offense and several nonviolent offenses would be entitled to earlier parole consideration than an inmate convicted of only the violent offense.”

She went on to say:

“We accept, for purposes of our opinion, that the text of Proposition 57 is clear and unambiguous, as Mohammad held, and a literal reading would include Ontiveros. He is a ‘person convicted of a nonviolent felony offense and sentenced to state prison’ and therefore ‘eligible for parole consideration after completing the full term for his or her primary offense.’

“But we disagree that any reasonable person could have intended such a result. Its absurdity is clear even without considering the specific context of Proposition 57. Our society abhors crime and seeks to deter and punish it. We do not reward it.”

Guerrero said the result reached in Mohammad “is so absurd and unreasonable that the electorate could not have intended it.”

The case is In re Ontiveros, 2021 S.O.S. 2726.

Other Decisions

On April 1, Third District Justice Louis Mauro, writing for the majority, said in In re Douglas:

“Although the language of section 32(a)(1) supports an interpretation that mixed-offense inmates are entitled to early parole consideration, such an interpretation would lead to absurd results the voters did not intend.”

Acting Presiding Justice Ronald B. Robie set forth in a concurring opinion:

“Although I agree with the majority that the interpretation in In re Mohammad leads to absurd results, an interpretation that is not absurd is for the inmate convicted of one violent felony offense—being served as the primary offense—and nonviolent felony offenses becoming eligible for early parole consideration after serving his or her sentence for the violent felony offense.”

  Acting Presiding Justice Richard D. Fybel of the Fourth District’s Div. Three on April 6 said in his opinion in In re Viehmeyer that the panel must “respectfully disagree with the analysis and holding of Mohammad.”


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