Prop 57 Early Parole Consideration & CDCR Discretion

“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).

Section 32 directs the California Department of Corrections and Rehabilitation (CDCR) to “adopt regulations in furtherance of these provisions.”

Section 32 does not define the phrase “[a]ny person convicted of a nonviolent felony offense” and is silent regarding its application to individuals who are convicted of both nonviolent and violent felonies (“mixed convictions”) and are currently serving a term for a violent felony.

In 2018, Guice requested that the CDCR consider him for early parole under Prop 57. The CDCR advised him that he was not qualified for early parole because of his conviction for robbery, which was part of a consecutive sentence he had not yet finished.

In 2019, Guice then filed a petition for a writ of habeas corpus in the superior court, arguing he was eligible for early parole consideration under Prop 57 because his primary offense was transportation of a controlled substance, which is nonviolent.

The judge considering the petition denied it, observing “what constitutes a nonviolent offender is not specifically defined by the initiative (Prop 57)” and finding that the CDCR’s regulations excluding offenders currently serving a sentence for a violent offense “reasonably effectuates the initiative’s directives.”

Guice then appealed this ruling to the Sixth Appellate District Court of Appeal in San Jose. The Sixth Appellate District affirmed the trial court, finding that in In re Douglas (2021) 62 Cal. App. 5th 726, an appellate court upheld the CDCR’s regulation excluding mixed offense inmates from nonviolent parole consideration because a literal interpretation of section 32(a) (1) “would lead to the absurd results the voters did not intend.” Douglas, supra, at 729. The Douglas court acknowledged that, as construed, section 32(a)(1) was really only clear for someone who was convicted for one violent offense, in which case that person would be ineligible for early parole consideration.

The Sixth Appellate District also cited to In re Viehmeyer (2021) 62 Cal. App. 5th 973, which addressed § 32(a)(1), holding that “where a defendant is convicted of both a violent felony and a nonviolent felony, and the nonviolent felony is the primary offense for purposes of sentencing, the defendant is not entitled to early parole consideration under section 32(a) after completing the full term for the primary offense if he or she is still serving a term for the violent offense.” Id., at 978.

We present this summary for the reader because in many cases, a person may be convicted of both violent and non-violent offenses. In such cases, Proposition 57 usually is not applicable for early parole consideration if that person was convicted of a violent offense such as robbery (P.C. § 211) as in this case.

The citation for the Sixth Appellate District Court ruling discussed above is In re. Stephen Guice (6th App. Dist., 2021) 66 Cal. App. 5th 933, 281 Cal. Rptr. 3d 558.

For more information about early parole eligibility under Proposition 57, please click on the following articles: