In re Hughes CA2/6 ( 2021 )

Filed 8/18/21 In re Hughes CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re WAYNE VERITEL 2d Crim. No. B309804
HUGHES (Super. Ct. Nos. F338205,
20HC-0009)
on Habeas Corpus. (San Luis Obispo County)
Wayne Veritel Hughes filed a petition for writ of
habeas corpus seeking an order directing the California
Department of Corrections and Rehabilitation (CDCR) to
determine his eligibility for early parole consideration. We deny
the petition as moot.
FACTUAL AND PROCEDURAL HISTORY
In 2003, a jury convicted Hughes of conspiracy to
possess marijuana for sale and conspiracy to sell marijuana (Pen.
Code,1 § 182, subd. (a)(1); Health & Saf. Code, §§ 11359, 11360,
1 Unlabeled statutory references are to the Penal Code.
subd. (a)). In a bifurcated proceeding, the trial court found that
Hughes had suffered three prior “strike” convictions (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)), including a 1983 conviction
for forcible rape that required him to register as a sex offender
pursuant to the Sex Offender Registration Act (SORA). It
sentenced him to 25 years to life in state prison.
Thirteen years later, the electorate adopted
Proposition 57 (Prop. 57), which provides “that ‘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 [their] primary offense.’ [Citation.]” (In re
Gadlin (2020) 10 Cal.5th 915, 919 (Gadlin II), alterations
omitted.) Prop. 57 also directed CDCR to adopt regulations to
implement that provision. (Gadlin II, at p. 919.) In response,
CDCR adopted “regulations [that] exclude[d] from nonviolent
offender parole consideration any inmate who ‘[had been]
convicted of a sexual offense that currently requires or will
require registration as a sex offender’ under [SORA].’” (Ibid.)
Hughes was among the inmates excluded from early parole
consideration under the regulations.
In 2019, our colleagues in Division 5 concluded that
CDCR’s categorical exclusion of SORA registrants from early
parole consideration conflicted with the plain language of Prop.
57, and invalidated the regulations. (In re Gadlin (2019) 31
Cal.App.5th 784, 789-790 (Gadlin I).) The following year,
Hughes filed a petition for writ of habeas corpus in the trial court
challenging CDCR’s refusal to determine his eligibility for early
parole consideration, arguing that he was entitled to such a
determination under Gadlin I. The court denied Hughes’s
petition, noting that the Supreme Court had granted review of
2
that case. We summarily denied Hughes’s renewed petition
without prejudice pending the Supreme Court’s decision.
The Supreme Court decided Gadlin II in December
2020, agreeing with our Division 5 colleagues that excluding
inmates required to register under SORA from early parole
consideration was inconsistent with the terms of Prop. 57.
(Gadlin II, supra, 10 Cal.5th at p. 943.) Instead, Prop. 57
required eligibility for early parole consideration to be based on
the status of the inmate’s current conviction: violent or
nonviolent. (Gadlin II, at p. 943.) CDCR was thus required to
repeal the regulations it had promulgated and issue new ones
consistent with the terms of Prop. 57. (Gadlin II, at p. 943.)
Two weeks later, Hughes filed another petition for
writ of habeas corpus with this court, this time asserting his
eligibility for early parole consideration under Gadlin II. We
ordered CDCR to show cause as to why we should not order it to
“consider [Hughes] for early parole within 60 days of the date of
issuance of the remittitur in this case.” In its return to our order,
CDCR admitted that Hughes: (1) is serving a state prison term
for a nonviolent offense, (2) has completed the full term on his
primary offense, and (3) is eligible for early parole consideration.2
It thus urged us to deny Hughes’s petition as moot. In his
traverse, Hughes argued that the case is not moot and that he is
entitled to a parole hearing within 60 days.
Simultaneous to these proceedings, CDCR issued
emergency regulations to comply with Gadlin II. The regulations
provide that CDCR “shall, by no later than December 31, 2022,
schedule all parole consideration hearings for indeterminately-
2 Hughesbecame eligible for early parole consideration on
November 21, 2016.
3
sentenced nonviolent offenders who became eligible for an initial
parole consideration hearing as a result of [Gadlin II] and whose
nonviolent parole eligible date[s] [are] on or before December 31,
2022.” (Cal. Code Regs., tit. 15, § 2449.32, subd. (c).)
DISCUSSION
CDCR contends Hughes’s petition is moot because
Gadlin II provided him with the relief he sought in his habeas
petition: a determination of his eligibility for early parole
consideration. We agree.
A case is moot “‘“when a court ruling can have no
practical impact or cannot provide the parties with effective
relief.” [Citation.]’ [Citation.]” (In re Arroyo (2019) 37
Cal.App.5th 727, 732 (Arroyo).) Here, Hughes’s petition asked us
to direct CDCR to determine his eligibility for early parole
consideration. The order to show cause we issued did so. In its
return to our order, CDCR confirmed that it had determined that
Hughes is indeed eligible for early parole consideration. Because
that is the precise relief Hughes sought in his petition, our
decision can have no practical impact in the case. It is moot.
In his traverse, Hughes counters that, “[a]lthough
[his] petition was initially filed to secure a ruling that . . . CDCR’s
determination that [he] was ineligible for early parole
consideration was erroneous, in the order to show cause, this
[c]ourt raised the issue of when [he] should be afforded his
hearing.” (Italics omitted.) Hughes misreads our order. Our
order said nothing about the timing of a hearing to determine his
suitability for parole; in response to his petition seeking an
eligibility determination, we directed CDCR to show cause as to
why it should not be ordered to “consider [Hughes] for early
parole within 60 days of the date of issuance of the remittitur.”
4
(Italics added.) Because Hughes’s petition did not request an
order directing CDCR to hold a parole hearing within a specified
timeframe, had our order included that request it would have
been erroneous. (In re Lawley (2008) 42 Cal.4th 1231, 1248
[claims raised in order to show cause are limited to those alleged
in habeas petition].)
At base, Hughes “conflates parole eligibility with
parole suitability.” (Arroyo, supra, 37 Cal.App.5th at p. 731.)
Gadlin I and Gadlin II involved parole eligibility dates, which are
determined by CDCR. (Arroyo, at p. 731.) In the wake of those
cases CDCR properly and correctly calculated Hughes’s parole
eligibility date as November 21, 2016. Parole hearings, in
contrast, occur when the Board of Parole Hearings (BPH) makes
parole suitability determinations. (Ibid.; see also In re McGhee
(2019) 34 Cal.App.5th 902, 909.) Under the newly adopted
regulations, and confirmed by BPH’s executive director, Hughes
is entitled to and will have his parole suitability hearing on or
before December 31, 2022. Because his petition did not request
that we order BPH to advance that date, and because the parties
have not an opportunity to fully brief such a request, we cannot
entertain it now. (Arroyo, at p. 732.)
DISPOSITION
The order to show cause is discharged. The petition
for writ of habeas corpus is denied.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J. PERREN, J.
5
Richard B. Lennon, under appointment by the Court
of Appeal, for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Phillip J. Lindsay, Assistant
Attorney General, Julie A. Malone and Jennifer O. Cano, Deputy
Attorneys General, for Respondent.