Filed 5/26/22 In re C.R. CA6

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

In a petition for writ of habeas corpus, petitioner C.R. contended that a regulation promulgated by the California Department of Corrections and Rehabilitation (CDCR) that excluded inmates currently serving an indeterminate life term for a violent felony offense from nonviolent offender early parole consideration was contrary to article I, section 32,[1] the constitutional provision mandating early parole consideration that was enacted by voters through their approval of Proposition 57. Petitioner, who is currently convicted of two violent and several nonviolent felony offenses, asserted that under section 32’s plain language, he is entitled to nonviolent offender early parole consideration because he has completed serving the full term for his primary offense.

In an opinion filed July 21, 2021, this court held that CDCR’s regulation was a reasonable interpretation of section 32 and denied the petition.

Petitioner petitioned the California Supreme Court for review. On September 29, 2021, the court granted review (case No. S270498) and deferred briefing in the matter pending its decision in In re Mohammad (case No. S259999). On January 3, 2022, the California Supreme Court held that CDCR’s regulation “is consistent with article I, section 32, and is reasonably necessary to effectuate the purpose of Proposition 57.” (In re Mohammad (2022) 12 Cal.5th 518, 537 (Mohammad).)

On March 9, 2022, the California Supreme Court transferred the matter to this court with directions to vacate the previously filed decision and to reconsider the cause in light of Mohammad. We have vacated the prior decision by separate order.

In supplemental briefing, petitioner contends that he should be eligible for nonviolent offender early parole consideration because he “has completed the full term for his primary offense, and is not currently serving a term for a violent felony.” The Attorney General asserts that the petition should be denied under Mohammad because petitioner did not contest in his petition that he is currently serving a term for a violent felony offense.

For reasons that we will explain, based on the California Supreme Court’s decision in Mohammad, we deny the petition.

II. PROCEDURAL BACKGROUND

In 2000, petitioner was convicted of pandering a minor under the age of 16 (Pen. Code, § 266i, subd. (b)), two counts of lewd and lascivious acts on a child under the age of 14 (id., § 288, subd. (a)), pimping a minor under the age of 16 (id., § 266h, subd. (b)), and pimping (id., § 266h, subd. (a)). Various sentence enhancement allegations were also found true.

On remand from this court for resentencing, the superior court sentenced petitioner under the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) to an aggregate term of 105 years to life, comprised of 25 years to life for each offense except pimping plus five years for a prior serious felony conviction (id., § 667, subd. (a)). The court imposed a concurrent 25-year-to-life term for pimping. The court selected the term imposed for pandering a minor under the age of 16 as the principal term and awarded petitioner 1,463 days of custody credit.

In 2018, CDCR denied petitioner’s request for nonviolent offender early parole consideration because he did not qualify as a nonviolent offender under CDCR’s regulations as he was serving an indeterminate life term for a violent felony offense.[2] (See Former Cal. Code Regs., tit. 15, § 3495, subd. (a)(3).)

Petitioner filed a petition for writ of habeas corpus in the superior court, contending that he is entitled to parole consideration under Proposition 57. In January 2020, the court denied the petition because “only nonviolent offenders are eligible for Proposition 57 early parole consideration.”

In March 2020, petitioner petitioned this court for a writ of mandate or prohibition, contending that he is entitled to nonviolent offender early parole consideration because he has “serv[ed] the full term of his nonviolent offense.” After we received informal briefing, we deemed the petition a petition for a writ of habeas corpus and ordered CDCR to show cause why petitioner is not entitled to relief. The Attorney General filed a return and petitioner filed a traverse through appointed counsel.

III. DISCUSSION

A. Proposition 57 and Section 32

In November 2016, the electorate approved Proposition 57, the Public Safety and Rehabilitation Act of 2016. (Mohammad, supra, 12 Cal.5th at p. 523.) Among other enactments, the initiative amended article I of the California Constitution by adding section 32. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 3, p. 141.)

Section 32(a)(1) 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.” “Primary offense” is 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.” (§ 32(a)(1)(A).) The provision states that it was “enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order,” and directs CDCR to “adopt regulations in furtherance of these provisions” and “certify that these regulations protect and enhance public safety.” (§ 32(a), (b).)

B. CDCR’s Regulations

As relevant here, the regulations CDCR adopted in furtherance of section 32 provide that “[a]n ‘indeterminately-sentenced nonviolent offender,’ as defined in subsection 3495(a), shall be eligible for a parole consideration hearing by the Board of Parole Hearings.” (Cal. Code Regs., tit. 15, § 3496, subd. (a).) When the petition was filed, section 3495, subdivision (a) excluded from its definition of “ ‘indeterminately-sentenced nonviolent offender’ ” any inmate who “is currently serving a term of life with the possibility of parole for a ‘violent felony.’ ” (Former Cal. Code Regs., tit. 15, § 3495, subd. (a)(3).)[3] The regulations define “ ‘[v]iolent felony’ ” as “a crime or enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code.” [4] (Cal. Code Regs., tit. 15, § 3495, subd. (c)).

C. Mohammad

In Mohammad, the California Supreme Court considered “the validity of the Department’s regulation prohibiting early parole consideration under the Proposition 57 scheme” as applied to inmates convicted of both violent and nonviolent felony offenses (mixed-offense inmates) who are “ ‘currently serving a term of incarceration for a “violent felony.” ’ (Cal. Code Regs., § 3490, subd. (a)(5).)” (Mohammad, supra, 12 Cal.5th at p. 524.) The court “conclude[d] that [CDCR] acted within the authority provided by article I, section 32(b) when it adopted the regulation.” (Ibid.) The court found that “the constitutional text is ambiguous concerning the application of article I, section 32(a) to [mixed-offense inmates] who [are] currently serving a term of incarceration for a violent felony offense. Considering the text together with the materials presented to the voters, [the court held] that [CDCR’s] approach is reasonably necessary to effectuate the purpose of Proposition 57.” (Id. at pp. 524-525.) The court noted that because the petitioner did “not contest that he is currently serving a term of incarceration for a violent felony, [it was] not presented with the issue of whether article I, section 32 requires us to break an inmate’s sentence into its component parts.” (Mohammad, supra, 12 Cal.5th at p. 541, fn. 13.)

In a concurring opinion, Justice Liu elaborated on “issues [that] await resolution in future cases.” (Mohammad, supra, 12 Cal.5th at p. 543 (conc. opn. of Liu, J.).) Justice Liu opined that section 32(a)(1)(A)’s definition of “ ‘primary offense’ ”—that is, “ ‘the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence’ ”—“seems to ‘require[]’ ” that an inmate’s sentence be broken into component parts to determine what term an inmate is currently serving when he or she applies for nonviolent offender early parole consideration. (Ibid.) For example, once an inmate sentenced to a six-year term for the primary, violent offense of robbery and a three-year term for the nonviolent offense of receiving stolen property has completed serving the six-year term, “is he then—for purposes of . . . section 32(a)(1)—currently serving a term for the nonviolent offense of receiving stolen property and thus eligible for early parole consideration . . . ? Or does . . . section 32(a)(1) allow [CDCR] 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?” (Id. at p. 543.)

D. Analysis

Like the petitioner in Mohammad, petitioner alleged in his petition that under section 32’s plain language, he is entitled to nonviolent offender early parole consideration because he has completed serving the full term for his primary, nonviolent offense. (See Mohammad, supra, 12 Cal.5th at pp. 532-533.) The California Supreme Court rejected this contention in Mohammad (id. at pp. 524-525, 537), upholding CDCR’s regulation that excluded from nonviolent offender early parole consideration any inmate who is “currently serving a term of incarceration for a ‘violent felony.’ ” (Former Cal. Code Regs., tit. 15, § 3490, subd. (a)(5).) We are bound by that decision. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)

In supplemental briefing, petitioner contends that he should be eligible for nonviolent offender early parole consideration because “he has completed the full term for his primary offense and is not currently serving a term for a violent felony.” (Bold omitted.) Petitioner argues that section 32 mandates that his 105-year-to-life sentence be broken into its component parts to determine the portion of petitioner’s term he is currently serving. Petitioner asserts that because the superior court selected a principal term (despite not having to do so), that should be considered the primary offense for section 32’s purposes and run first. Petitioner states, “If the 5-year term ran before the indeterminate terms, and the 25-year-to-life term on the nonviolent pandering count ran next, petitioner would still have been serving the latter term when he applied for parole in 2018. For [section 32’s] purposes, however, he had already completed the full term for that offense, having served 5 years for the serious felony prior plus the 8-year would-be upper term on his primary offense.”

However, petitioner did not allege in his petition that he is not currently serving a term for a violent felony offense, nor did he argue that section 32 requires that his sentence be broken into its component parts.[5]

We “must and will assume . . . that a petition for writ of habeas corpus includes all claims then known to the petitioner.” (In re Clark (1993) 5 Cal.4th 750, 780-781 (Clark), superseded by statute on other grounds as stated in Briggs v. Brown (2017) 3 Cal.5th 808, 842.) “When an order to show cause . . . issue[s], it is limited to the claims raised in the petition and the factual bases for those claims.” (Clark, supra, at p. 781, fn. 16.)

By contending in his supplemental brief that he should be eligible for nonviolent offender early parole consideration because he has completed serving the full term for his primary offense and is not currently serving a term for a violent felony, petitioner has presented an “additional claim[] or wholly different factual bass” for his challenge to CDCR’s regulation. ([i]Clark, supra, 5 Cal.4th at p. 481, fn. 16.) Petitioner may not “expand the scope of the [habeas] proceeding” beyond “the claims raised in the petition and the factual bases for those claims.” (Ibid.)

Petitioner requests that we allow him to amend the petition. The Attorney General opposes petitioner’s request.

“The court may grant leave to file a supplemental petition [citation], but has no obligation either to do so or to delay action on a petition . . . . The law mandates prompt disposition of habeas corpus petitions (§ 1476), and the interest of the state in the finality of judgment weighs heavily against delayed disposition of pending petitions. [Citations.]” (See Clark, supra, 5 Cal.4th at p. 782.)

Although we have the discretion to grant a party leave to amend a habeas petition, we decline to do so here. (See Clark, supra, 5 Cal.4th at p. 782.) The contentions in petitioner’s supplemental brief regarding how an inmate’s sentence should be broken up to determine whether he or she is currently serving a term for a violent felony offense are factually detailed and complex, and are best considered first at the administrative level or in the superior court.

Because petitioner in his petition did “not contest [CDCR’s] determination that he is currently serving a term of incarceration for a violent felony” (Mohammad, supra, 12 Cal.5th at p. 541) or contend that his sentence must be broken into its component parts, “we are not [properly] presented with the issue of whether . . . section 32 requires [CDCR] to break [petitioner’s] sentence into its component parts” (id. at p. 541, fn. 13) to determine whether petitioner is eligible for nonviolent offender early parole consideration. As the Attorney General observes, petitioner “should raise the new claim in a separate petition for writ of habeas corpus in the superior court in the first instance.”

For these reasons, based on the California Supreme Court’s decision in Mohammad, supra, 12 Cal.5th 518, we deny the petition. (See Auto Equity, supra, 57 Cal.2d at p. 455.)

IV. DISPOSITION

The petition for writ of habeas corpus is denied.

Bamattre-Manoukian, J.

WE CONCUR:

GREENWOOD, P.J.

ELIA, J.

In re C.R.

H047991

[1] We use “section 32” to refer to article I, section 32 of the California Constitution generally. We use “section 32(a)(1)” to specify subdivision (a)(1) of section 32, and so on.

[2] CDCR also denied petitioner’s request for nonviolent offender early parole consideration under its regulation excluding inmates “convicted of a sexual offense that currently requires or will require registration as a sex offender.” (Former Cal. Code Regs., tit. 15, § 3496, subd. (b).) The California Supreme Court held the regulation invalid in In re Gadlin (2020) 10 Cal.5th 915, 920, and CDCR’s regulations no longer exclude inmates from nonviolent offender early parole consideration based solely on a previous or current conviction of a registrable sex offense (see Cal. Code Regs., tit. 15, § 3496).

[3] CDCR has since amended its regulations to exclude from nonviolent offender early parole consideration any inmate who “is currently convicted of a ‘violent felony’ and is sentenced to a term of life with the possibility of parole.” (Cal. Code Regs., tit. 15, § 3495, subd. (a)(3), 3496, subd. (a).) The amendment does not affect our analysis.

[4] As stated above, petitioner was convicted of two counts of lewd and lascivious acts on a child under the age of 14 in violation of Penal Code section 288, subdivision (a), among other crimes. A “[l]ewd or lascivious act as defined in subdivision (a) . . . of Section 288” is a violent felony under Penal Code section 667.5, subdivision (c)(6).

[5] While petitioner denied in his traverse that he was currently serving a term for a violent felony offense and asserted that he had served the full term for his primary offense for section 32’s purposes, he did not allege that section 32 required his sentence to be broken into its component parts to determine which portion of the sentence he was serving when he applied for nonviolent offender early parole consideration.