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California Court of Appeal Invalidates Title 15 § 3490(a)(5) of the California Code of Regulations

by Douglas Ankney

Division Five of the Second Appellate District of the California Court of Appeal granted Mohammad Mohammad’s petition for writ of habeas corpus and ordered the California Department of Corrections and Rehabilitation (“CDCR”) to treat as void and repeal the California Code of Regulations (“Cal. Code Regs.”), title 15, § 3490, subdivision (a)(5).

In January 2012, Mohammad pleaded guilty to nine counts of second-degree robbery, which were violent felonies. California Penal Code § 667.5(c).

He also pleaded guilty to six counts of receiving stolen property, which were nonviolent felonies. Pen. Code § 496(a). The trial court designated one of the receiving stolen property counts (Count 11) as Mohammad’s principal sentencing term and ordered the sentences imposed for the remaining convictions to be run consecutively for an aggregate term of 29 years’ imprisonment.

In 2016, voters approved Proposition 57 (“Prop. 57”) which added § 32(a) to Article I of California’s Constitution and reads: “Any person convicted of a nonviolent felony offense and sentenced to a state prison shall be eligible for parole consideration after completing the full term of his or her primary offense.”

Prop. 57 also stated 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 enhancement, consecutive sentence, or alternative sentence.” Prop. 57 further directed the CDCR to adopt regulations “in furtherance of these provisions.” The CDCR adopted regulations stating criteria that excluded certain persons from parole eligibility under Prop. 57. One criterion was if “[t]he inmate is currently serving a term of incarceration for a violent felony.” Cal. Code Regs., Title 15, § 3490(a)(5).

After completing the three-year term of his primary nonviolent offense, Mohammad requested an early parole hearing pursuant to Prop. 57. The CDCR, citing Cal. Code Regs., Title 15, § 3490(a)(5), denied Mohammad’s request because he was now serving a consecutive sentence for a violent felony.

After Mohammad unsuccessfully sought habeas relief in the superior court, he filed a petition for writ of habeas corpus in the Court of Appeal, which appointed counsel for Mohammad and issued an order to show cause.

In deciding this case, the Court observed Prop. 57 makes early parole hearings available to “[a]ny person convicted of a nonviolent felony offense” upon completion of “the full term of his or her primary offense.” When construing constitutional provisions, the court’s primary concern is giving effect to the intended purpose of the provisions at issue. The court ascribes to words their ordinary meanings. In order for a regulation to be valid, it must be (1) consistent with and not in conflict with the enabling statute and (2) reasonably necessary to effectuate the purpose of the statute. Henning v. Division of Occupational Saf. & Health, 219 Cal. App. 3d 747 (1990).

The task of the reviewing court is to decide whether the agency reasonably interpreted its legislative mandate, and administrative regulations that alter or amend the statute or enlarge or impair its scope are void. In re Edwards, 26 Cal. App. 5th 1181 (2018).

The Court concluded the CDCR’s regulation is inconsistent with the text of Prop. 57. The text of Prop. 57 defines the full term of the primary offense to exclude any consecutive sentence, yet the CDCR’s regulation made Mohammad ineligible for parole consideration because he was now serving a consecutive sentence for a violent felony. The CDCR’s regulation requires prisoners to be nonviolent offenders, i.e., no convictions for any violent offenses, to be eligible for early parole; whereas, Prop. 57 requires only that the prisoner be convicted of a nonviolent offense irrespective of whether he or she was also convicted of violent offenses.

Accordingly, the Court granted Mohammad’s petition for a writ of habeas corpus and directed the CDCR to treat as void and repeal Cal. Code Regs., Title 15, § 3490(a)(5) and thereafter make further changes as necessary to ensure its Prop. 57 implementing regulations are consistent with the Court’s opinion. The Court noted that its opinion does not entitle Mohammad to release; it only entitles him to early parole consideration. See: In re Mohammad, 42 Cal. App. 5th 719 (2019). 

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