In re Mohammad ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
In re MOHAMMAD MOHAMMAD
on Habeas Corpus.
S259999
Second Appellate District, Division Five
B295152
Los Angeles County Superior Court
BH011959
January 3, 2022
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 Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
In re MOHAMMAD
S259999
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.” (Cal. Const., art. I, § 32, subd.
(a)(1).)1 The ballot initiative also directed the Department to
“adopt regulations in furtherance of these provisions” and
instructed the Secretary of the Department to “certify that these
1
Article I, subdivisions 32(a), 32(a)(1), 32(a)(1)(A), and
32(b) of the California Constitution are referred to in this
opinion as “article I, section 32(a),” “article I, section 32(a)(1),”
“article I, section 32(a)(1)(A),” and “article I, section 32(b).”
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In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
regulations protect and enhance public safety.” (Art. I, § 32,
subd. (b).)
The Department subsequently adopted regulations
implementing early parole consideration under article I, section
32.2 Those regulations exclude from nonviolent offender early
parole consideration any inmate who “is currently serving a
term of incarceration for a ‘violent felony[.]’ ” (Cal. Code Regs.,
tit. 15, § 3490, subd. (a)(5).)3 The regulations state that a
“ ‘[v]iolent felony’ is a crime or enhancement as defined in
subdivision (c) of Section 667.5 of the Penal Code.” (Id., § 3490,
subd. (c).)
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 article I, section 32(a) requires early parole
consideration for any inmate convicted of a nonviolent felony
even when that inmate was also convicted of a violent felony.
(In re Mohammad (2019) 42 Cal.App.5th 719, 727
(Mohammad).)
2
The Department refers to early parole consideration under
article I, section 32 as “nonviolent offender parole review.”
(California Department of Corrections and Rehabilitation,
Nonviolent Offender Parole Review Process for Determinately-
Sentenced Inmates [as of Dec. 28, 2021].) All internet citations in this
opinion are archived by year, docket number, and case name at
.
3
Further undesignated references to the California Code of
Regulations are to title 15 unless otherwise noted.
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Opinion of the Court by Cantil-Sakauye, C. J.
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.’ ” (Cal. Code Regs.,
§ 3490, subd. (a)(5).) While the matter was pending in this
court, four other appellate courts disagreed with Mohammad
and concluded the Department’s regulations properly excluded
from early parole consideration inmates currently serving a
term of incarceration for a violent felony offense.4
We conclude that the Department acted within the
authority provided by article I, section 32(b) when it adopted the
regulation at issue here. In reaching this conclusion, we find
the constitutional text is ambiguous concerning the application
of article I, section 32(a) to an inmate like petitioner who is
currently serving a term of incarceration for a violent felony
offense. Considering the text together with the materials
presented to the voters, we hold that the Department’s approach
is reasonably necessary to effectuate the purpose of
Proposition 57. We therefore agree with the majority of the
appellate courts, and reverse the decision of the Court of Appeal
below.
4
We granted review in each of those four matters and
deferred further action pending consideration and disposition of
the issue before us in this case. (In re Guice (2021)
66 Cal.App.5th 933, 937, review granted Sept. 29, 2021,
S270524; In re Ontiveros (2021) 65 Cal.App.5th 899, 902–903,
review granted Aug. 25, 2021, S269832; In re Viehmeyer (2021)
62 Cal.App.5th 973, 984–985, review granted June 30, 2021,
S268660; In re Douglas (2021) 62 Cal.App.5th 726, 729, review
granted June 16, 2021, S268570.)
3
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
I. FACTS AND PROCEDURAL HISTORY
A. The Underlying Conviction
In 2012, petitioner pleaded no contest to nine counts of
second degree robbery (Pen. Code, § 211) and six counts of
receiving stolen property (id., § 496, subd. (a)). The trial court
designated one count of receiving stolen property to be the
principal term and ordered the remaining counts to run
consecutively. Petitioner was sentenced to 29 years in prison —
three years for the principal term of receiving stolen property,
eight months for each of the other counts of receiving stolen
property, one year for each of the nine counts of robbery, and a
total of 13 years eight months for gang enhancements attached
to six counts (id., § 186.22, subds. (b)(1)(A), (b)(1)(C)).5
Petitioner did not appeal.
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 Penal Code section 667.5, subdivision
(c). The Department denied petitioner’s request. Petitioner
5
The principal term is “the greatest term of imprisonment
imposed by the court for any of the crimes, including any term
imposed for applicable specific enhancements.” (Pen. Code,
§ 1170.1, subd. (a).)
4
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
filed a petition for a writ of habeas corpus in the Los Angeles
County Superior Court. The superior court denied the petition
in November 2018, agreeing with the Department.
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 consideration
for “ ‘[a]ny person convicted of a nonviolent felony offense’ upon
completion of ‘the full term of his or her primary offense.’ ”
(Id. at p. 726, quoting art. I, § 32(a)(1).) This language, the court
held, contains the sole requirement for early parole
consideration under Proposition 57 — conviction of a nonviolent
felony. (Mohammad, supra, 42 Cal.App.5th at p. 726.) Early
parole consideration is therefore required, according to the
Court of Appeal, “so long as [the inmate] commits ‘a’ single
nonviolent felony offense — even if that offense is not his or her
only offense.” (Ibid.)
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 art. I, § 32(a)(1)(A).) Under this provision, the court
asserted, “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.”
5
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
(Mohammad, supra, 42 Cal.App.5th at p. 727, quoting art. I,
§ 32(a)(1).)
The court rejected the Department’s regulations as
incompatible with the language of article I, section 32(a)(1).
(Mohammad, supra, 42 Cal.App.5th at pp. 726–727.) The court
noted that those 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 [article I,] section 32(a)(1).” (Id. at p. 726, quoting
Cal. Code Regs., § 3491.) The court declined to consider the
ballot materials presented to the voters, determining that
review of extrinsic sources was unnecessary because the
language of the constitutional provision itself was unambiguous.
(Mohammad, supra, 42 Cal.App.5th at p. 727, citing Silicon
Valley Taxpayers’ Assn., Inc. v. Santa Clara County Open Space
Authority (2008) 44 Cal.4th 431, 444–445.)
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 “[o]ften” an individual’s most
6
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
serious violent felony is deemed the principal term.
(Mohammad, supra, 42 Cal.App.5th at p. 728.) The court
suggested that these facts — “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.”
(Ibid., fn. omitted.)
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 [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.” (Art. I, § 32(a)(1).) Article I,
section 32 further specifies 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
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Opinion of the Court by Cantil-Sakauye, C. J.
enhancement, consecutive sentence, or alternative sentence”
(id., subd. (a)(1)(A)),6 directs the Department to “adopt
regulations in furtherance of these provisions” (id., § 32(b)), and
instructs the Secretary of the Department to “certify that these
regulations protect and enhance public safety” (ibid.).
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 art. I,
§ 32(a).) Uncodified portions of Proposition 57 further identify
the initiative’s purpose and intent, in relevant part, as follows:
“1. Protect and enhance public safety. [¶] 2. Save money by
reducing wasteful spending on prisons. [¶] 3. Prevent federal
courts from indiscriminately releasing prisoners. [¶] 4. Stop
the revolving door of crime by emphasizing rehabilitation,
especially for juveniles.” (Voter Information Guide, Gen. Elec.
(Nov. 8, 2016) text of Prop. 57, § 2, p. 141.) The initiative further
states that the “act shall be liberally construed to effectuate its
purposes.” (Id., § 9, p. 146.)
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
6
This definition of an individual’s “primary offense” for
purposes of early parole consideration renders the primary
offense distinct from an individual’s principal term. (See art. I,
§ 32(a)(1).) As noted above, the principal term is “the greatest
term of imprisonment imposed by the court for any of the crimes,
including any term imposed for applicable specific
enhancements.” (Pen. Code, § 1170.1, subd. (a).)
8
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
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.’ ” (Cal. Code Regs., § 3490, subd. (a)(5).)
Further, the regulations define a “violent felony” for purposes of
early parole consideration as “a crime or enhancement” listed in
Penal Code section 667.5, subdivision (c). (Id., § 3490, subd. (c).)
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’ ” (Cal. Code Regs., § 3490, subd.
(a)(4)) and those “currently serving a term of incarceration for a
nonviolent felony offense after completing a concurrent
determinate term for a ‘violent felony’ ” (id., § 3490, subd. (a)(6)).
Additionally, the regulations detail the eligibility criteria for
both determinately-sentenced offenders (see id., §§ 3490–3491)
and indeterminately-sentenced offenders (see id., §§ 3495–
3496). Like the regulatory provision defining a “determinately-
sentenced nonviolent offender” (id., § 3490, subd. (a)), the
regulations define an “indeterminately-sentenced nonviolent
offender” as an inmate who is not, among other things,
“currently serving a term of life with the possibility of parole for
a ‘violent felony’ ” (id., § 3495, subd. (a)(3)). Because petitioner’s
exclusion from early parole consideration is governed solely by
section 3490, subdivision (a)(5) of the California Code of
Regulations, however, we decline to address in this case the
validity of any other portion of the regulations.
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In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
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 although these precepts “have traditionally
been applied in the context of a state agency’s regulations
addressing statutes enacted by the Legislature (Gadlin, supra,
10 Cal.5th at p. 925, citing Morris v. Williams (1967) 67 Cal.2d
733, 748 (Morris)), the parties here do not assert that “the
relevant principles of interpretation differ when an agency has
promulgated regulations to give force to a constitutional
provision, rather than a statutory provision” (id. at p. 926).
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 Gov. Code, former
§ 113747) and whether the regulation is reasonably necessary to
effectuate the purpose of the authorizing law (Morris, supra,
67 Cal.2d at p. 749; see also Gov. Code, § 11342.2 [“Whenever by
the express or implied terms of any statute a state agency has
authority to adopt regulations to implement, interpret, make
specific or otherwise carry out the provisions of the statute, no
regulation adopted is valid or effective unless consistent and not
in conflict with the statute and reasonably necessary to
effectuate the purpose of the statute”]; Woods v. Superior Court
(1981) 28 Cal.3d 668, 679 (Woods)). Our task “ ‘ “is to decide
whether the [agency] reasonably interpreted the legislative
mandate.” [Citation.] ’ ” (Woods, supra, 28 Cal.3d at p. 679,
7
Former section 11374 of the Government Code was
renumbered as section 11342.2. (Stats. 1979, ch. 567, §§ 1–2.)
10
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
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 appropriate, extrinsic sources such as an initiative’s
ballot materials. (See City of Upland, supra, 3 Cal.5th at
pp. 933–934.) Although we are obligated to strike down
regulations that alter or amend the constitutional provision or
its scope (Woods, supra, 28 Cal.3d at p. 679, citing Morris, supra,
67 Cal.2d at p. 748), our role is not to examine the wisdom of the
regulations but their legality (Woods, supra, 28 Cal.3d at p. 679,
quoting Morris, supra, 67 Cal.2d at p. 737). “Such a limited
scope of review constitutes no judicial interference with the
administrative discretion in that aspect of the rulemaking
function which requires a high degree of technical skill and
expertise.” (Woods, supra, 28 Cal.3d at p. 679.)
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In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
D. The Language of Proposition 57
We begin our analysis with the language of the
constitutional provisions enacted by Proposition 57. Article I,
section 32(a)(1) states: “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.” Article I, section 32(a)(1)(A) defines 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, consecutive sentence, or
alternative sentence.” And article I, section 32(b) provides that
the Department shall “adopt regulations in furtherance of these
provisions.” The question here is whether these constitutional
provisions require the Department to provide early parole
consideration when the inmate is currently serving a term for a
violent felony.
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
12
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Opinion of the Court by Cantil-Sakauye, C. J.
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 words of the statute must be construed in context, keeping
in mind the statutory purpose . . . .” (Dyna-Med, Inc. v. Fair
Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387
(Dyna-Med).) If the text is ambiguous, it is appropriate to
examine the ballot materials before the voters. (People v.
Valencia (2017) 3 Cal.5th 347, 364, citing Robert L. v. Superior
Court (2003) 30 Cal.4th 894, 905.)
Article I, section 32(a)(1) establishes early parole
consideration for “[a]ny person convicted of a nonviolent felony
offense . . . after completing the full term for his or her primary
offense.” This language does not expressly address whether
inmates with nonviolent felony convictions who are currently
serving a prison term for a violent felony are eligible for early
parole consideration. The parties and appellate courts have
offered various interpretations of this provision.
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
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Opinion of the Court by Cantil-Sakauye, C. J.
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.” (Ibid.) 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
article I, section 32(a).8 But language that seems plain when
considered in isolation may be ambiguous when examined
within the context of the scheme it implements. (See, e.g., Small
v. United States (2005) 544 U.S. 385, 388 [finding phrase
“convicted in any court” to be ambiguous when determining
whether statute included a conviction in a foreign court], citing
Nixon v. Missouri Municipal League (2004) 541 U.S. 125, 132
[“ ‘any’ ” can mean “different things depending upon the
setting”]; People v. Woodhead (1987) 43 Cal.3d 1002, 1008
[noting the term “convicted” “may have different meanings in
8
Another Court of Appeal reached the same conclusion,
finding that the language of section 32(a)(1) “support[s] a
conclusion that an inmate is eligible for early parole
consideration after completing his or her primary offense if the
inmate was convicted of a nonviolent offense, even if the term
for that nonviolent offense was not designated as the primary
offense, and even if the inmate was also convicted of one or more
violent offenses . . . .” (In re Douglas, supra, 62 Cal.App.5th at
p. 731.) Ultimately, however, that appellate court concluded
that interpreting the initiative in such a manner would lead to
absurd results not intended by the electorate and thus declined
to do so. (Id. at pp. 732–734.)
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Opinion of the Court by Cantil-Sakauye, C. J.
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
Pen. Code, § 2933.1, subd. (a).) The issue in Reeves was whether
an inmate convicted of both nonviolent and violent felonies was
subject to the 15 percent credit limit. (Id. at p. 770.) We noted
that the “seemingly plain language” of the statute was subject
to various possible interpretations based on the term “ ‘is
convicted.’ ” (Id. at p. 770; see id. at p. 771 [“ ‘any person who is
convicted of a [violent] felony offense’ [citation], might
conceivably refer simply to a point of historical fact”].) We
therefore determined that “the conclusion that [the statute] is
ambiguous, at least as applied to the facts of this case, seems
inescapable.” (Id. at pp. 770–771.)
The constitutional provision here contains language
nearly identical to the statutory language we considered in
Reeves. Article I, section 32(a) does not directly state whether
an inmate like petitioner — who has nonviolent felony
convictions but is currently serving a term of incarceration for a
violent felony — would be eligible for early parole consideration.
Like in Reeves, it “seems inescapable” that the language is
ambiguous as it applies to inmates like petitioner. (Reeves,
supra, 35 Cal.4th at pp. 770–771.)
Further, the appellate courts and the parties here advance
various interpretations of article I, section 32(a) that reflect
ambiguities in the constitutional language. Petitioner, for
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Opinion of the Court by Cantil-Sakauye, C. J.
example, asserts that inmates convicted of a nonviolent felony
as their primary offense are eligible for early parole
consideration “once they have served the full term for that
offense.” (Italics added.) In other words, under petitioner’s
view, early parole consideration is required when an inmate’s
primary offense is a nonviolent felony even if the inmate is
currently serving a term for a violent felony, but not when the
inmate’s primary offense is a violent felony and the inmate is
currently serving a term for a nonviolent felony.9
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
9
Petitioner asserts this approach is consistent with the
approach adopted by the Court of Appeal below. We disagree.
Although the court’s discussion took place in the context of
evaluating petitioner’s eligibility for early parole consideration
(and petitioner’s primary offense was a nonviolent felony), no
language in the Court of Appeal’s opinion limited its holding to
inmates whose primary offense was a nonviolent felony. Indeed,
the Court of Appeal’s language was quite broad: “under
[article I, section 32(a) and article I, section 32(a)(1)(A)], an
inmate who is serving an aggregate sentence for more than one
conviction will be eligible for an early parole hearing if one of
those convictions was for ‘a’ nonviolent felony offense.”
(Mohammad, supra, 42 Cal.App.5th at p. 726.)
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Opinion of the Court by Cantil-Sakauye, C. J.
convictions and are currently serving a term of incarceration for
a violent felony offense.
The language of article I, section 32(a) alone does not tell
us which of these interpretations is correct. That there are
several plausible interpretations of the constitutional language
indicates the meaning of the text is ambiguous. (See People v.
Gonzales (2018) 6 Cal.5th 44, 52 [considering ballot materials
when statutory language “could have several possible
interpretations”]; Arias v. Superior Court (2009) 46 Cal.4th 969,
979 [“there is no need to construe a provision’s words when they
are clear and unambiguous and thus not reasonably susceptible
of more than one meaning”], citing People v. Leal (2004)
33 Cal.4th 999, 1007, People v. Gardeley (1996) 14 Cal.4th 605,
621; see also In re Douglas, supra, 62 Cal.App.5th at p. 735
(conc. opn. of Robie, Acting P. J.) [“It is clear section 32(a)(1) is
ambiguous given the divergence of appellate opinions as to its
meaning”].)
Petitioner contends that our recent opinion in Gadlin
compels a contrary conclusion. But in Gadlin, we found the
language of article I, section 32(a)(1) to be unambiguous in other
respects. (Gadlin, supra, 10 Cal.5th at p. 935.) There, we were
asked to decide whether the Department could exclude from
early parole consideration all inmates convicted of a sex offense
requiring registration under Penal Code section 290, even when
the Department’s regulations defined some of those inmates as
nonviolent offenders. (Gadlin, supra, 10 Cal.5th at pp. 919–
920.) We held it could not in light of the language of article I,
section 32(a)(1), which provides that “[a]ny person convicted of
a nonviolent felony offense” shall be eligible for early parole
consideration. (Gadlin, supra, 10 Cal.5th at pp. 932–933.)
Indeed, in so holding, we stated that “article I, section 32(a)(1),
17
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
although containing some terms that might be ambiguous in
other respects, is not ambiguous concerning its scope regarding
offenders who were previously convicted of a registerable sex
offense or who are currently convicted of a registerable sex
offense that the Department has itself defined as nonviolent.”
(Gadlin, supra, 10 Cal.5th at p. 932, italics added.) Our holding
was thus limited to the specific question before us in that case,
and we acknowledged that the language of the constitutional
provision might be ambiguous in other respects. Thus, Gadlin
does not compel a conclusion that the constitutional provision is
unambiguous as it relates to the distinct question before us now.
We disapprove of the following opinions to the extent they have
held the language of article I, section 32(a) is unambiguous in
this context: In re Ontiveros (2021) 65 Cal.App.5th 899, 905
[“We accept, for purposes of our opinion, that the text of
Proposition 57 is clear and unambiguous”]; In re Douglas (2021)
62 Cal.App.5th 726, 731.
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
18
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
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 and certify they enhance public
safety.” (Voter Information Guide, Gen. Elec., supra, Official
Title and Summary, p. 54.)
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.”
10
The Arguments included an argument in favor of the
initiative by the proponents followed by a rebuttal by the
opponents, and an argument against the initiative by the
opponents followed by a rebuttal by the proponents.
19
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
(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 individuals with nonviolent felony convictions
who are currently serving a term of incarceration for a violent
felony would be eligible for early parole consideration.
20
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
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 Penal Code 667.5(c) are excluded from parole.” (Voter
Information Guide, Gen. Elec., supra, rebuttal to argument
against Prop. 57, p. 59.)
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
Penal Code 667.5(c) are excluded from parole.” (Voter
Information Guide, Gen. Elec., supra, rebuttal to argument
against Prop. 57, p. 59.)11
11
In its briefing before this court, the Department also
asserted that the number of inmates eligible for early parole
21
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
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 article I, section 32(b), which directs
the Department to “adopt regulations in furtherance of [the
constitutional] provisions . . . .” (Art. I, § 32(b).) The exclusion
of inmates currently serving a term for a violent felony from
early parole consideration, the Department asserts, reflects its
reasoned consideration of the policy and public safety
considerations vested in it by article I, section 32(b), and aligns
with the intent of the voters as reflected by the ballot materials.
We agree that the Department acted within the authority
granted by article I, section 32(b) when it promulgated section
consideration under the Court of Appeal’s approach — inmates
convicted only of nonviolent felonies and inmates convicted of
both nonviolent and violent felonies — constituted
approximately 96 percent of the prison population in 2019. The
Department contrasted this number with the Legislative
Analyst’s estimate that 30,000 inmates would receive early
parole consideration under the initiative.
Prior to oral argument, however, the Department
discovered its statistics were erroneous and withdrew its
arguments related to those statistics. Following oral argument,
the Department submitted additional data regarding the
inmate population but did not purport to rely on the new data
or to otherwise reassert its original argument. Although such
data may be relevant to interpreting the voters’ intent in some
contexts, we decline to consider it here given the Attorney
General’s withdrawal of the argument on this point.
22
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
3490, subdivision (a)(5) of the California Code of Regulations.12
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 article I, section 32,
and is reasonably necessary to effectuate the purpose of
Proposition 57. (See Morris, supra, 67 Cal.2d at pp. 748–749.)
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 Penal Code 667.5(c)” would not be eligible for early parole
consideration. (Voter Information Guide, Gen. Elec., supra,
rebuttal to argument against Prop. 57, p. 59.) Moreover, the
ballot materials focus on the distinction between inmates
convicted of violent felonies and inmates convicted of nonviolent
12
In light of this conclusion, we do not address the
Department’s position that article I, section 32 compels the
approach the Department adopted in its regulations.
23
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
felonies. For this reason, the opponents and proponents sparred
over the scope of the term nonviolent felony. The proponents
asserted violent felonies would be defined by Penal Code section
667.5, subdivision (c) (Voter Information Guide, Gen. Elec.,
supra, rebuttal to argument against Prop. 57, p. 59), that the
initiative would “[k]eep[] the most dangerous offenders locked
up” (id., argument in favor of Prop. 57, p. 58), and that “parole
eligibility under Prop. 57 applies, ‘only to prisoners convicted of
non-violent felonies.’ [Brown v. Superior Court, supra,
63 Cal.4th at p. 352.] Violent criminals as defined in Penal Code
667.5(c) are excluded from parole” (Voter Information Guide,
Gen. Elec., supra, rebuttal to argument against Prop. 57, p. 59).
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.” (Art. I, § 32(b).) In doing so, the
Department determined that individuals currently serving a
term of incarceration for a violent felony should be excluded
from early parole consideration, regardless of whether the
24
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
inmate had also been convicted of a nonviolent felony. (See Cal.
Code. Regs., § 3490, subd. (a)(5).) This approach “reasonably
interpreted” the Department’s mandate to adopt regulations
(Woods, supra, 28 Cal.3d at p. 679), is consistent with the
constitutional language and ballot materials, and is “reasonably
necessary to effectuate the purpose” of Proposition 57 (Gov.
Code, § 11342.2).
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
exception that would apply if these individuals were currently
serving a term for a violent felony. (See Voter Information
Guide, Gen. Elec., supra, Official Title and Summary, p. 54.)
25
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
This assertion is premised on the assumption that the phrase
“any person convicted of a nonviolent felony” in article I, section
32(a)(1) clearly and unambiguously applies to inmates currently
serving a term of incarceration for a violent felony conviction —
a premise we have already rejected above.
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
26
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
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 materials indicated the
voters intended to exclude from early parole consideration
inmates convicted of nonviolent offenses requiring registration
pursuant to section 290. (Gadlin, supra, 10 Cal.5th at pp. 939–
940.) We noted that the Department relied on “a single line in
the proponents’ rebuttal argument” in a manner that “overlooks
the context of the entire ballot materials provided to the voters.”
(Id. at p. 939.) Here, by contrast, the ballot materials provide
much stronger support for the Department’s position than the
single line on which it relied in Gadlin. As described above, the
ballot materials consistently contrasted for voters the
distinction between violent felonies and nonviolent felonies.
This contrast was further underscored by the analysis of the
Legislative Analyst, which “assume[d] a nonviolent felony
offense would include any felony offense that is not specifically
defined in statute as violent.” (Voter Information Guide, Gen.
Elec., supra, analysis of Prop. 57 by Legis. Analyst, p. 56.)
27
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
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 Penal Code section
3040.3, subdivision (a) to state: “An inmate whose current
commitment includes a concurrent, consecutive, or stayed
sentence for an offense or allegation defined as violent by
subdivision (c) of Section 667.5 or Section 3040.1 shall be
deemed a violent offender for purposes of Section 32 of Article I
of the Constitution.” (Text of Proposed Laws, Gen. Elec. (Nov. 3,
2020) text of Prop. 20, p. 20.) He asserts that voters’ rejection of
this “opportunity to override the lower court’s decision in the
current case” indicates that voters intended Proposition 57 to
apply to inmates like him who have been convicted of both
violent and nonviolent felonies.
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
28
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
[“There is simply no way of knowing why voters rejected
Proposition 20 four years after they approved Proposition 57”].)
We therefore conclude that the Department acted within
its discretion when it promulgated section 3490, subdivision
(a)(5) of the California Code of Regulations excluding
individuals currently serving a sentence for a violent felony from
early parole consideration. This conclusion, however, is not a
determination that the Department’s regulation is the most
plausible of the various interpretations offered. Because the
Department is vested with the authority to adopt regulations in
this context, we need only conclude that its regulation is a valid
exercise of its rulemaking authority.
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
article I, section 32(b), we conclude the Department’s denial of
29
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
petitioner’s request for early parole consideration was
permissible.13
III. CONCLUSION
Neither the language of article I, section 32(a)(1) of the
California Constitution nor the ballot materials presented to the
voters speak directly to whether inmates with nonviolent felony
convictions who are currently serving a term for a violent felony
must be considered for early parole suitability. Against this
backdrop, and the direction in article I, section 32(b) to
promulgate regulations, the Department determined that
inmates serving a term of incarceration for a violent felony
should be excluded from early parole consideration. (Cal. Code
Regs., § 3490, subd. (a)(5).) The Department’s approach is
consistent with a reasonable interpretation of the constitutional
language and the ballot materials. We cannot say that the
Department abused its rulemaking authority in coming to this
conclusion.
13
The concurring opinion in Douglas agreed that the
petitioner there was “still serving a sentence for a violent felony
offense” and thus was ineligible for early parole consideration at
the time he sought it. (Douglas, supra, 62 Cal.App.5th at p. 739
(conc. opn. of Robie, Acting P. J.).) The concurring opinion
further asserted that article I, section 32(a)(1)(A) required the
court to “break an inmate’s sentence into its component parts
for the purpose of determining whether that inmate has served
his or her primary offense, making the particular sequence in
which an inmate serves his or her violent offense a meaningful
abstraction.” (Id. at p. 738.) Because petitioner here does not
contest that he is currently serving a term of incarceration for a
violent felony, we are not presented with the issue of whether
article I, section 32 requires us to break an inmate’s sentence
into its component parts. We express no view on that issue or
on the approach adopted by the concurring opinion in Douglas.
30
In re MOHAMMAD
Opinion of the Court by Cantil-Sakauye, C. J.
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 article VI,
section 6 of the California Constitution.
31
In re MOHAMMAD
S259999
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.” (Cal. Const., art. I, § 32, subd. (a)(1) (article I,
section 32(a)(1)).) To implement this provision, the Department
of Corrections and Rehabilitation (Department) adopted a
regulation that makes ineligible for early parole consideration
any inmate who is “currently serving a term of incarceration for
a ‘violent felony.’ ” (Cal. Code Regs., tit. 15, § 3490, subd. (a)(5).)
For the reasons stated in today’s opinion, I agree that this
regulation, as written, is a reasonable construction of article I,
section 32(a)(1).
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.’ ” (Cal. Code
Regs., tit. 15, § 3490, subd. (a)(5).) But because petitioner
Mohammad Mohammad has not contested the Department’s
determination that he is currently serving a term for a violent
felony, we have no occasion here to examine the proper
application of the regulation to inmates like Mohammad who
are incarcerated for both violent and nonviolent felony offenses.
(Maj. opn., ante, at pp. 29–30 & fn. 13.)
Mohammad was sentenced to a consecutive term of 29
years for multiple violent (robbery) and nonviolent (receiving
In re MOHAMMAD
Liu, J., concurring
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 ([Pen. Code,] § 1170 et seq.),
multiple consecutive determinate terms must be combined into
a single, ‘aggregate term of imprisonment for all [such]
convictions’ ([id.,] § 1170.1, subd. (a)) that merges all terms to
be served consecutively . . . .” The Department seems to
contemplate that the merger of consecutive terms into a single
aggregate term means that an inmate serving a consecutive
sentence for violent and nonviolent felony convictions is
“currently serving a term of incarceration for a ‘violent felony’ ”
(Cal. Code Regs., tit. 15, § 3490, subd. (a)(5)) throughout the
entire duration of the consecutive sentence.
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.” (Art. I,
§ 32(a)(1)(A), italics added.) As Justice Robie explained in In re
Douglas (2021) 62 Cal.App.5th 726, this language seems to
“require[ ] us to break an inmate’s sentence into its component
parts,” notwithstanding the merger rule, in order to determine
what term the inmate is currently serving at the time he or she
seeks early parole consideration. (Id. at p. 738 (conc. opn. of
Robie, Acting P. J.); see art. I, § 32(a) [“The following provisions
are hereby enacted . . . notwithstanding anything in this article
or any other provision of law . . . .”].)
2
In re MOHAMMAD
Liu, J., concurring
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.” (Art. I, § 32(a)(1)(A).) Once the inmate has completed
the six-year term for his primary offense of robbery, is he then —
for purposes of article I, section 32(a)(1) — currently serving a
term for the nonviolent offense of receiving stolen property and
thus eligible for early parole consideration, as Justice Robie’s
view suggests? Or does article I, section 32(a)(1) allow the
Department to treat him as currently serving a term for the
violent offense throughout the entire nine-year aggregate
sentence and find him ineligible for early parole consideration
on that basis?
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.
3
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re Mohammad
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 42 Cal.App.5th 719Review Granted (unpublished)
Rehearing Granted
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Opinion No. S259999
Date Filed: January 3, 2022
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Court: Superior
County: Los Angeles
Judge: William C. Ryan
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Counsel:
Michael Satris and Heather MacKay, under appointments by the
Supreme Court, for Petitioner Mohammad Mohammad.
Xavier Becerra and Rob Bonta, Attorneys General, Michael Mongan,
State Solicitor General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Janill L. Richards, Principal Deputy
State Solicitor General, Phillip J. Lindsay, Assistant Attorney General,
Helen H. Hong, Deputy State Solicitor General, Amanda J. Murray
and Charles Chung, Deputy Attorneys General, for Respondent the
People.
Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice
Legal Foundation as Amicus Curiae on behalf of Respondent the
People.
Richard J. Sachs, Deputy District Attorney (San Diego) and Mark
Zhaner for California District Attorneys Association as Amicus Curiae
on behalf of Respondent the People.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Heather MacKay
P.O. Box 3112
Oakland, CA 94609
(510) 653-7507
Helen H. Hong
Deputy State Solicitor General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9693