Filed 5/17/22 In re Guice CA6

(opinion on 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Stephen Guice contended that a regulation promulgated by the California Department of Corrections and Rehabilitation (CDCR) that excludes inmates currently serving a 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 one 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, nonviolent 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.

Defendant petitioned the California Supreme Court for review. On September 29, 2021, the court granted review (case No. S270524) 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 requests that we remand the matter to the superior court for it to determine whether he is eligible for nonviolent offender early parole consideration as it appears that he may have served the term for his violent felony offense. The Attorney General opposes petitioner’s request for remand. 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 2014, petitioner was convicted of the following offenses in three separate cases: transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)); two counts of possession of cocaine base for sale (id., § 11351.5); evading an officer (Veh. Code, § 2800.2, subd. (a)); robbery (Pen. Code, § 211); possession of a controlled substance for sale (Health & Saf. Code, § 11351); and bringing a controlled substance into jail (Pen. Code, § 4573).[2] The allegation that petitioner had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) was found true, as were various sentence enhancement allegations.

The superior court sentenced petitioner to an aggregate term of 19 years 4 months, comprised of 10 years for transportation of a controlled substance, 1 year 4 months for evading an officer, 1 year for robbery, and 7 years for the sentence enhancements.[3] The court awarded petitioner 1,405 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 California Code of Regulations, title 15, section 3490[4] based on his consecutive sentence for robbery, a violent felony offense.

In 2019, petitioner filed a petition for writ of habeas corpus in the superior court, contending that he is eligible for parole consideration under Proposition 57 because his primary offense of transportation of a controlled substance is nonviolent. The court denied the petition, observing that “what constitutes a nonviolent offender is not specifically defined by the initiative,” and finding that CDCR’s regulations excluding offenders currently serving a sentence for a violent offense “reasonably effectuate[] [the initiative’s] directive.”

In March 2020, petitioner petitioned this court for a writ of habeas corpus on the same ground asserted in the superior court. After we received informal briefing, we 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] determinately-sentenced nonviolent offender, as defined in subsections 3490(a) and 3490(b), shall be eligible for parole consideration by the Board of Parole Hearings.” (Cal. Code Regs., § 3491, subd. (a).) Section 3490 excludes from its definition of “ ‘determinately-sentenced nonviolent offender’ ” any inmate who is “currently convicted of and is sentenced to a term of incarceration for a ‘violent felony.’ ” (Id., § 3490, subd. (a)(5).) The regulations define “ ‘[v]iolent felony’ ” as “a crime or enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code.”[5] (Id., § 3490, 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 here challenged CDCR’s regulation excluding from nonviolent offender early parole consideration any inmate who is “currently convicted of and is sentenced to a term of incarceration for a ‘violent felony.’ ” (Cal. Code Regs., § 3490, subd. (a)(5).) As 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 and upheld the regulation. (Id. at p. 537.) We are bound by that decision. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)

Petitioner now asserts in supplemental briefing that he “may be eligible for early parole consideration pursuant to the issue left unresolved by . . . Mohammad” because he either has or soon will have served the one-year consecutive term imposed for his violent offense of robbery. Petitioner requests that we remand this case to the superior court “to determine, in consultation with the CDCR, whether petitioner has completed his one year term for robbery. If so, the Superior Court should then determine whether petitioner is eligible for early parole consideration.”

However, as the Attorney General points out, petitioner did not allege in his petition that he has served the full term for his violent felony offense and should therefore be eligible for nonviolent offender early parole consideration. Rather, petitioner alleged that under section 32, he had the right to early parole consideration “after completing the full term for the primary offense.” And petitioner “admit[ted]” in his traverse that “he is serving a combined term consisting of one year for robbery which is a violent felony and 18 years four months for non-violent offenses and enhancements.”

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. 481, fn. 16.)

By contending for the first time in his supplemental brief that he may be eligible for nonviolent offender early parole consideration because he either has or soon will have served the term imposed for his violent felony offense, 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.)

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), “we are not 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 “may file a separate habeas petition in the superior court based on any new legal issue he seeks to raise.”

For these reasons, based on the California Supreme Court’s decision in Mohammad, supra, 12 Cal.5th 518, we must 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 Guice

H047989

[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] Petitioner was also convicted of possession of marijuana for sale (Health and Saf. Code, § 11359), which was reduced to a misdemeanor in 2019.

[3] The terms imposed for petitioner’s remaining offenses and enhancements were either concurrent or stayed.

[4] Further undesignated references to the California Code of Regulations are to title 15 unless otherwise noted.

[5] As stated, petitioner was convicted of robbery, among other crimes. Robbery is a violent felony under Penal Code section 667.5, subdivision (c)(9).