In re Douglas ( 2021 )

Filed 4/1/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re TYRONE A. DOUGLAS C091545
on Habeas Corpus. (Super. Ct. Nos. 13F00422,
12F01245)
ORIGINAL PROCEEDING. Petition for writ of habeas corpus. Petition denied.
Michael Satris and Randy Kravis, under appointment by the Court of Appeal,
for Petitioner.
Matthew Rodriguez, Chief Deputy and Acting Attorney General, Phillip J.
Lindsay, Senior Assistant Attorney General, Julie A. Malone, Supervising Deputy
Attorney General and Krista L. Pollard, Deputy Attorney General, for Respondent.
Tyrone A. Douglas was convicted of two nonviolent felonies and a violent felony.
The trial court chose one of the nonviolent felonies as the primary offense, imposed
sentence for that offense, imposed but stayed sentence on the other nonviolent felony
offense, and imposed a consecutive term for the violent felony. After Douglas’s
sentencing, the voters passed Proposition 57, the Public Safety and Rehabilitation Act of
2016, which added section 32 to article I of the California Constitution. As relevant here,
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section 32 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
of his or her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1) (hereafter,
section 32(a)(1)).) For simplicity, the phrase “parole consideration after completing the
full term on the primary offense” will be referenced in this opinion as “early parole
consideration.”
Douglas filed a petition for writ of habeas corpus challenging a regulation adopted
by the California Department of Corrections and Rehabilitation (CDCR) that limited the
parole-consideration benefit of section 32(a)(1) to inmates who were convicted only of
nonviolent felonies, thus excluding from early parole consideration anyone convicted of
one or more violent felonies plus one or more nonviolent felonies, so-called “mixed-
offense inmates.” (See Cal. Code Regs., tit. 15, § 3490, subd. (a)(5) [excluding violent
offenders from nonviolent offender parole consideration].) In support of his challenge to
the CDCR regulation, Douglas cited In re Mohammad (2019) 42 Cal.App.5th 719, review
granted February 19, 2020, S259999 (Mohammad), which held that because the
unambiguous text of section 32(a)(1) provides for early parole consideration for inmates
convicted of nonviolent felony offenses, regardless of whether they were also convicted
of a violent offense, a mixed-offense inmate is eligible for early parole consideration
under section 32(a)(1). (Mohammad, at p. 726.)
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. Accordingly, we conclude that a person
convicted of a violent felony offense and sentenced to state prison is ineligible for early
parole consideration under section 32(a)(1).
We will deny the petition for writ of habeas corpus.
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BACKGROUND
Douglas was convicted in Sacramento County Superior Court of three crimes: a
criminal threat (Pen. Code, § 422), false imprisonment (Pen. Code, § 236), and domestic
battery (Pen. Code, § 273.5, subd. (a)) with an enhancement for inflicting great bodily
injury in connection with the domestic battery. (Pen. Code, § 12022.7, subd. (e).)
Because Douglas inflicted great bodily injury in committing the domestic battery, the
domestic battery was a violent felony under Penal Code section 667.5, subdivision (c)(8),
but the other offenses were nonviolent. The criminal threat and false imprisonment
charges were brought in one case (Sacramento Superior Court, case No. 13F00422) and
the domestic battery charge was brought in another case (Sacramento Superior Court,
case No. 12F01245). The two cases were joined for purposes of judgment and
sentencing.
After the trial court imposed judgment and sentencing, Douglas appealed, and this
court modified the judgment and remanded for resentencing. (People v. Douglas
(C076525, Dec. 18, 2017) [nonpub. opn.].) At resentencing, the trial court chose the
criminal threat as the primary offense, imposing a term of six years (the upper term of
three years, doubled to six years under the three strikes law). In addition, the trial court
imposed but stayed a term for the false imprisonment offense and imposed a consecutive
term (one-third the middle term) of one year for the domestic battery. The trial court also
imposed a consecutive term of one year eight months for the infliction of great bodily
injury and five years for a prior serious felony conviction, resulting in a total term of
13 years eight months in state prison.
Douglas engaged CDCR’s administrative process, asserting he is eligible for early
parole consideration under section 32(a)(1). CDCR determined that Douglas is not
eligible for early parole consideration under section 32(a)(1) because he is a violent
offender. Douglas filed petitions for writs of habeas corpus in Marin County Superior
Court, which denied the petition, and in the Court of Appeal, First Appellate District,
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Division One, which denied the petition without prejudice to filing a new petition for writ
of habeas corpus in this court, citing authority that the proper venue for filing a petition
for writ of habeas corpus with respect to denial of or suitability for parole is where
judgment and sentence were imposed. (See In re Roberts (2005) 36 Cal.4th 575, 593.)
Douglas filed a petition for writ of habeas corpus in this court and we issued an
order to show case.
DISCUSSION
A
“The general principles that govern interpretation of a statute enacted by the
Legislature apply also to an initiative measure enacted by the voters. [Citation.] Thus,
our primary task here is to ascertain the intent of the electorate [citation] so as to
effectuate that intent [citation].
“We look first to the words of the initiative measure, as they generally provide the
most reliable indicator of the voters’ intent. [Citations.] Usually, 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. [Citations.] . . .
“A literal construction of an enactment, however, will not control when such a
construction would frustrate the manifest purpose of the enactment as a whole.
[Citations.] ‘The intent prevails over the letter, and the letter will, if possible, be so read
as to conform to the spirit of the act.’ [Citation.] In determining the purpose of an
initiative measure, we consider the analysis and arguments contained in the official
election materials submitted to the voters. [Citations.]” (Arias v. Superior Court (2009)
46 Cal.4th 969, 978-979 (Arias).)
“Courts may, of course, disregard even plain language which leads to absurd
results or contravenes clear evidence of a contrary [voter] intent. [Citation.]” (Ornelas v.
Randolph (1993) 4 Cal.4th 1095, 1105, bracketed text added.) Whether a result is
absurd, however, depends in large part on what the voters intended. (See also In re J. W.
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(2002) 29 Cal.4th 200, 210 [courts will not give language a literal meaning if doing so
would result in absurd consequences that could not have been intended].)
B
Consistent with the foregoing rules of initiative interpretation, we begin our
analysis with the relevant initiative language. The words of section 32(a)(1), considered
in isolation, support a conclusion that an inmate is eligible for early parole consideration
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. Section 32(a)(1) merely says that “[a]ny
person convicted of a nonviolent offense and sentenced to state prison shall be eligible
for parole consideration after completing the full term of his or her primary offense.”
The words “primary offense” are defined as “the longest term of imprisonment imposed
by the court for any offense, excluding the imposition of an enhancement, consecutive
sentence, or alternative sentence.” (Cal. Const., art. I, § 32, subd. (a)(1)(A).) Nothing in
section 32(a)(1) says that the primary offense must be nonviolent, or that an inmate is
rendered ineligible for early parole consideration if the inmate also has one or more
violent felony convictions.
Because the words of section 32(a)(1) support 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, we must interpret it that way unless to do so would lead to
absurd results the voters did not intend. As we explain in the remainder of this opinion,
such an interpretation would in fact lead to absurd results the voters did not intend.
C
Here is but one example of an absurd result. The literal language of section
32(a)(1) suggests that an inmate convicted of 10 violent felonies and one nonviolent
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felony would be eligible for early parole consideration after serving the full term of his or
her primary offense, whatever that primary offense might be. But an inmate convicted of
the same 10 violent felonies without a nonviolent felony conviction would be ineligible
for early parole consideration under section 32(a)(1). Such a result would encourage and
reward a violent felon’s commission of at least one additional nonviolent felony, would
be inconsistent with sound public policy, and would make no sense.
In this regard, we disagree with the approach in Mohammad, supra,
42 Cal.App.5th 719. In that case, the inmate was convicted of nine violent felonies
(all robberies) and six nonviolent felonies (all receiving stolen property). In sentencing
the inmate, the trial court chose one of the nonviolent felonies as the principal
sentencing term (three years) and ordered that the remaining terms run consecutively,
for an aggregate sentence of 29 years. (Id. at pp. 722-724.) Applying the text of
section 32(a)(1), the Court of Appeal determined the inmate was eligible for early parole
consideration after completing the three-year term on the primary offense (receiving
stolen property). (Mohammad, at pp. 725-726.) The court declined to consider voter
intent (id. at p. 727) and refused to conclude its interpretation would lead to absurd
results, explaining: “The Constitution’s text compels the result we reach, and we are not
prepared to declare that result so absurd [citation] as to disregard the Constitution’s plain
meaning . . . .” (Id. at p. 728.)
We disagree with the holding in Mohammad because the court did not test the
initiative language for absurd results the voters did not intend. If the text of the
constitutional provision is the measure of whether a result is absurd, then no result based
on the text could be absurd, completely negating the benefit of determining whether a
literal interpretation of a provision would be contrary to the voters’ intent.
But as we have indicated, whether a literal interpretation of a constitutional
provision leads to absurd results is based in large part on whether the voters intended the
result. To determine whether the voters intended a result, we may consider the normal
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indicia of the voters’ intent beyond the text of the provision. “[W]e consider the analysis
and arguments contained in the official election materials submitted to the voters.
[Citations.]” (Arias, supra, 46 Cal.4th at p. 979.)
The analysis of Proposition 57 by the Legislative Analyst does not address how
section 32(a)(1) applies to mixed-offense inmates. Although the Legislative Analyst
appears to have equated “[n]onviolent [o]ffenders” with “individuals who are convicted
of ‘nonviolent felony’ offenses” (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) analysis of
Prop. 57 by Legislative Analyst, p. 56), it did not acknowledge that an inmate convicted
of a nonviolent felony offense might also be convicted of one or more violent felony
offenses.
Next, we consider the proponents’ argument in support of Proposition 57.
The argument began: “California public safety leaders and victims of crime support
Proposition 57 -- the Public Safety and Rehabilitation Act of 2016 -- because Prop. 57
focuses resources on keeping dangerous criminals behind bars, while rehabilitating
juvenile and adult inmates and saving tens of millions of taxpayer dollars.” (Ballot
Pamp., Gen. Elec. (Nov. 8, 2016) argument in favor of Prop. 57, p. 58.) This language
suggests at least a partial intent to keep dangerous criminals behind bars, a concept
reinforced in the proponents’ rebuttal to the argument against Proposition 57. The
rebuttal asserted that mixed-offense inmates would not be eligible for early parole
consideration under section 32(a)(1), stating that Proposition 57 “[d]oes NOT authorize
parole for violent offenders.” (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) rebuttal to
argument against Prop. 57, p. 59.) The rebuttal further asserted: “Violent criminals as
defined in Penal Code 667.5(c) are excluded from parole.” (Ibid.) These arguments
indicate that a person convicted of one or more violent felony offenses would not be
eligible for early parole consideration, even if the person was also convicted of a
nonviolent felony offense.
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To alleviate any doubt about absurd results based on voter intent, imagine if the
proponents had instead argued to the voters that under Proposition 57, violent criminals
would be eligible for early parole consideration regardless of how many violent crimes
they committed, so long as they also committed at least one additional nonviolent
offense. The proponents did not make such an argument to the voters, and for good
reason.
Indeed, nothing in the election materials, other than the language of section
32(a)(1), evinces an intent on the part of the voters to extend early parole consideration to
persons convicted of violent felony offenses. To the contrary, Proposition 57 was
presented to the voters as excluding violent offenders from early parole consideration.
Douglas suggests that if section 32(a)(1) were interpreted to apply only to an
inmate whose primary offense was a nonviolent felony, it would not lead to absurd
results. He claims there is “nothing unreasonable in the electorate’s focus on the
nonviolent nature of a prisoner’s primary offense in fashioning a program for early parole
consideration to reduce the prison population.” But Douglas’s view does not find support
in the language of section 32(a)(1) or in the election materials. Section 32(a)(1) does not
require the primary offense to be a nonviolent felony conviction. And the election
materials indicate that a person with a violent felony conviction is not eligible for early
parole consideration. In any event, Douglas’s proposed interpretation does not alleviate
the concern that a person with many violent felony convictions could be rewarded for
committing at least one additional nonviolent felony, as long as the sentencing judge
designates the nonviolent felony as the primary offense.
As the court correctly recognized in Mohammad, affording a person eligibility for
early parole consideration does not necessarily mean that the person will be released
early on parole. (Mohammad, supra, 42 Cal.App.5th at 728-729.) Additional measures
to protect the public would remain in place. Even with such measures, however, we are
convinced that a literal interpretation of section 32(a)(1) would lead to absurd results the
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voters did not intend. Accordingly, we conclude that a person convicted of a violent
felony offense and sentenced to state prison is ineligible for early parole consideration
under section 32(a)(1).
DISPOSITION
The petition is denied.
/S/
MAURO, J.
I concur:
/S/
RENNER, J.
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ROBIE, Acting P. J., Concurring.
I agree with the majority that petitioner is not entitled to relief under article I,
section 32, subdivision (a)(1) of the California Constitution.1 I disagree, however, with
the majority’s conclusion “that a person convicted of a violent felony offense and
sentenced to state prison is ineligible for early parole consideration under
section 32(a)(1).” (Maj. opn. at p. 2.) The majority comes to its conclusion upon the
theory that the plain language of section 32(a)(1) as interpreted in In re Mohammad
(2019) 42 Cal.App.5th 719, 727-728, review granted February 19, 2020, S259999, is
absurd and the provision must be interpreted in light of the proponent’s argument and
rebuttal, which assured voters section 32(a)(1) would not apply to violent offenders as
defined by section 667.5, subdivision (c). (Maj. opn. at pp. 2, 6, 8.) 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. I believe section 32(a)(1) allows for early parole consideration under those
circumstances. I reach this conclusion by giving “any offense” its plain meaning (i.e., the
primary offense can be either violent or nonviolent) and reading “convicted of” in its
present tense as meaning the inmate must be serving his or her sentence for a nonviolent
felony when he or she seeks parole consideration.
I believe the majority’s heavy reliance on the proponent’s argument and rebuttal to
determine voter intent is misplaced. (See In re Gadlin (2020) 10 Cal.5th 915, 940-941
[“The voters were explicitly warned in the margins of the voter guide that ‘Arguments
1 I will refer to this section and subdivision of the California Constitution as
section 32(a)(1), and the section’s other subdivision as section 32(a)(1)(A). All other
section references are to the Penal Code.
1
printed on this page are the opinions of the authors, and have not been checked for
accuracy by any official agency’ ”].) Indeed, the other analyses contained in the Voter
Information Guide show that the voter’s intent is not at all clear. The Attorney General’s
analysis merely used the language in the proposed initiative and provides no support for
the conclusion that inmates convicted of a violent felony are categorically excluded from
early parole consideration under section 32(a)(1). The Legislative Analyst broadly
discussed criminal sentencing, generally summarized the language in the proposed
initiative, and explained the general impact of the initiative. As to the latter, the
Legislative Analyst estimated the number of inmates who would be affected by the
initiative and stated those inmates would likely serve a year and one-half in prison,
instead of the two years served under current law. While this information could
hypothetically support the majority’s position, the analysis provided no context for the
numbers used and failed to disclose or describe the types of sentences at issue. In short,
nothing in the Voter Information Guide gives definitive guidance on the issue before this
court today.
It is clear section 32(a)(1) is ambiguous given the divergence of appellate opinions
as to its meaning; and, the Voter Information Guide provides no answers. “Under these
circumstances, lacking definitive guidance in the [initiative’s] language or history, ‘our
aim [must be] to provide . . . a construction [of the initiative] which is faithful to its
language, which produces fair and reasonable results in a majority of cases, and which
can be readily understood and applied by trial courts.’ ” (In re Reeves (2005) 35 Cal.4th
765, 771.) “[W]e presume the voters relied on the text of the measure” for resolution of
any ambiguity in the initiative. (In re Gadlin, supra, 10 Cal.5th at p. 940.)
Section 32(a)(1)(A) provides: “Parole Consideration: 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. [¶] (A) For
purposes of this section only, the full term for the primary offense means the longest term
2
of imprisonment imposed by the court for any offense, excluding the imposition of an
enhancement, consecutive sentence, or alternative sentence.” (Italics added.)
The plain meaning of “any offense” is “any” and thus a plain interpretation of the
statute is that inmates who served the primary offense, whether that be for a violent or
nonviolent felony offense, can apply for early parole consideration if the remaining
offenses are nonviolent felony offenses. Nothing in the voter information materials, other
than the proponent’s argument and rebuttal, preclude this plain reading of the initiative.
The present tense use of “convicted of” also supports the interpretation that a violent
felony conviction for which an inmate already served his or her sentence as the primary
offense does not preclude the inmate from receiving the benefit of section 32(a)(1) when
his or her remaining sentence is for nonviolent felony offenses only.
The People assert “convicted of” in section 32(a)(1) means the offenses an inmate
was convicted of at trial and carries with him or her while serving that inmate’s sentence.
Indeed, the People claim that because petitioner was convicted of a violent felony
offense, he is a violent offender for the purposes of section 32(a)(1) and precluded from
petitioning for nonviolent offender parole consideration.
Our Supreme Court’s analysis and interpretation of section 2933.1,
subdivision (a)2 in In re Reeves (2005) 35 Cal.4th 765, is instructive and supports a
conclusion that “convicted of” in section 32(a)(1) should be interpreted to refer to the
conviction for which an inmate is serving a sentence at the time he or she seeks parole
consideration under section 32(a)(1) rather than reading the term to encompass all of the
offenses an inmate was convicted of at trial.
Section 2933.1(a) provides: “Notwithstanding any other law, any person who is
convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no
2 I will refer to this section as section 2933.1(a).
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more than 15 percent of worktime credit, as defined in Section 2933.” (Italics added.) In
Reeves, the question before our Supreme Court was “whether section 2933.1(a)
restrict[ed] petitioner’s ability to earn worktime credit against a concurrent sentence for a
nonviolent offense” when “[p]etitioner ha[d] completed a five-year term for the violent
offense that made the section applicable and [wa]s [then] serving the remainder of a
concurrent 10-year term for a nonviolent offense.” (In re Reeves, supra, 35 Cal.4th at
pp. 768-769.) The court held “that section 2933.1(a) limited to 15 percent the rate at
which petitioner could earn worktime credit as long as he was serving the term for the
violent offense, even though the concurrently punished nonviolent offense would not by
itself have caused the section to apply; but once petitioner completed the term for the
violent offense he became prospectively eligible to earn credit at a rate unrestricted by the
section.” (Reeves, at p. 769.) Our Supreme Court reasoned that because the Legislature
used the term “convicted of” in the present tense, instead of the past perfect tense (“has
been convicted” or “previously has been convicted”), it did not intend for an inmate’s
violent felony offense to constitute a continuing disability for the purposes of worktime
credit. (Id. at pp.771-772.)
Our Supreme Court first considered how section 2933.1(a) applies in the context
of an inmate serving consecutive sentences: “Under the Determinate Sentencing Act
(§ 1170 et seq.), multiple consecutive determinate terms must be combined into a single,
‘aggregate term of imprisonment for all [such] convictions’ [citation] that merges all
terms to be served consecutively and complies with the rules for calculating aggregate
terms . . . , whether or not the consecutive terms arose from the same or different
proceedings (ibid.; see also § 669; Cal. Rules of Court, rule 4.452). To suggest that a
prisoner serving an aggregate term serves the component terms and enhancements in any
particular sequence would be a meaningless abstraction. For this reason, when an
aggregate term includes time for a violent offense, at any point during that term the
prisoner literally ‘is convicted of a [violent] felony offense’ (§ 2933.1(a)) and actually is
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serving time for that offense. Accordingly, a restriction on credits applicable to ‘any
person who is convicted of a [violent] felony offense’ (ibid.) logically applies throughout
the aggregate term.” (In re Reeves, supra, 35 Cal.4th at pp. 772-773.)
Thus, our Supreme Court acknowledged that a prisoner sentenced to a consecutive
sentence, which included at least one violent felony offense, could earn only 15 percent
worktime credit under section 2933.1(a) for the duration of that prisoner’s sentence. Our
Supreme Court, however, rejected this same conclusion for prisoners sentenced to
concurrent sentences.
“The People’s effort to apply the same logic to concurrent terms is not convincing.
A court that decides to run terms consecutively must create a new, ‘aggregate term of
imprisonment’ (§ 1170.1, subd. (a)) into which all the consecutive terms merge, but no
principle of California law merges concurrent terms into a single aggregate term. Section
1170.1, which articulates the statutory mandate and authority for creating aggregate
consecutive terms, says nothing about concurrent terms. Furthermore, a later sentencing
court may not change a prior sentencing court’s discretionary decision to make a
particular term concurrent rather than consecutive. (Cal. Rules of Court, rule 4.452(3).)
The Determinate Sentencing Law, in short, does not support the People’s argument that
all of an inmate’s overlapping terms necessarily constitute a single, unified term of
confinement for purposes of worktime credit.” (In re Reeves, supra, 35 Cal.4th at
p. 773.)
Our Supreme Court reasoned, “[t]he People’s reading of section 2933.1(a) creates
tension with the statutory language in this way: Because petitioner has already served the
term for the violent offense that caused the section to apply, the statement that he ‘is
convicted of a [violent] felony offense’ (ibid.) is true only as a matter of historical fact,
i.e., he was once convicted of a violent offense. But we have already rejected, as
contrary to the Legislature’s probable intent, the argument that section 2933.1(a) treats a
conviction for a violent offense as a continuing disability that restricts an offender’s
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ability to earn worktime credits even after he has served his sentence for that offense.
Except in this inapplicable sense, to say that petitioner at the present time ‘is convicted’
(ibid.) of a violent offense is not correct. Today, his conviction for the violent offense
gives the Department [of Corrections and Rehabilitation] no claim to his physical
custody; but for the time remaining on the separate, concurrent term for the nonviolent
offense, he would be entitled to release. For the same reason, given the statute’s
ambiguity, the People’s interpretation of section 2933.1(a) is not entirely fair (to
petitioner or others in his situation) or reasonable.” (In re Reeves, supra, 35 Cal.4th at
p. 777.)3
Much like the statute in Reeves, section 32(a)(1) classifies inmates eligible under
its provisions as those presently convicted of a certain type of offense and not as the class
of offender they were upon conviction. Thus, like the statute taken up in Reeves, there is
no indication the electorate intended for an inmate’s violent felony conviction to
constitute a continuing disability. (See In re Reeves, supra, 35 Cal.4th at pp.771-772.)
Moreover, section 32(a)(1)(A)’s definition of “primary offense” as “any offense,
excluding the imposition of an enhancement, consecutive sentence, or alternative
sentence” requires us 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 felony
offense a meaningful abstraction.
Here, after serving his primary offense, petitioner is still serving a sentence for a
violent felony offense, thus he is not presently convicted of a nonviolent felony as
3 The voters are presumed to have been aware of existing laws, including judicial
interpretations of similar provisions and statutory language, at the time the initiative was
enacted. (People v. Gangl (2019) 42 Cal.App.5th 58, 64-65.)
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described in section 32(a)(1). Accordingly, he is ineligible for early parole consideration
under that provision.
/S/
Robie, Acting P. J.
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