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CDCR Ban on Prop 57 Early Parole for Violent Felons Upheld
Brief Synopsis: Proposition 57 permits consideration of parole for an inmate who has served his primary term when the principal offense is neither serious nor violent. The following extreme case epitomizes how the CDCR may use discretion in following such a provision to deny parole, as here, where consecutive terms are for violent offenses (robberies).
In 2012, Mohammad Mohammad pleaded no contest in Beverly Hills Superior Court to nine counts of second degree robbery (Penal Code § 211) and six counts of receiving stolen property (Penal Code § 496(a)). The trial court judge designated one count of receiving stolen property to be the principal term and ordered the remaining counts to run consecutively (not concurrently).
The sentence was therefore quite long – 29 years – calculated as three years for the principal term of receiving stolen property, plus eight months for each of the remaining five counts of receiving stolen property (40 months total), plus one year for each of the nine counts of second degree robbery and a total of 13 years and eight months for gang enhancements attached to six counts (Penal Code § 186.22(b)(1)(A)).
In 2016, the electorate approved Proposition 57 (“Prop 57”) which, among other things, added section 32 to article 1 of the California Constitution to require the California Department of Corrections and Rehabilitation (CDCR) to provide early parole consideration to “[a]any person convicted of a nonviolent felony offense and sentenced to state prison . . . after completing the full term for his or her primary offense.” Prop 57 directed the CDCR to “adopt regulations in furtherance of these provisions.”
The question arose immediately whether Prop 57’s early parole eligibility applied to someone, like Mohammad, who was serving a sentence for both nonviolent and violent, particularly when the principal term is not a violent felony (receiving stolen property).
As the reader of this article may be aware, many defendants, facing both violent and non-violent offenses, were counseled by their attorney immediately after Prop 57 was passed that if their sentence included both violent and non-violent offenses, but the judge designated a non-violent offense as the principal term (as with Mohammad), they would be eligible for early parole consideration under Prop 57. Our office always regarded such advice as gamesmanship, not only of Prop 57, the CDCR and the judge, but of the client himself or herself as such advice seemed “too slick.”
Indeed, the CDCR regulations excluded nonviolent early parole consideration to any inmate who is currently serving a term of incarceration for a violent offense. The CDCR regulations state that a violent felony is a crime or enhancement as defined in Penal Code § 667.5(c) of the Penal Code.
Mohammad was not considered by the CDCR for early parole under Prop 57 because of his sentence for nine robberies, which are a crime of violence under Penal Code § 667.5(c). He therefore filed a petition for writ of habeas corpus (which seems to assume he would be granted parole, which is not what Prop 57 permits, as it only allows early parole consideration), arguing that Prop 57 requires early parole consideration for inmates who have completed the full term for a primary offense that is nonviolent.
CA Supreme Court San FranciscoThe trial court denied the petition for writ of habeas corpus, agreeing with the CDCR regulations that Mohammad was ineligible despite completing the full term for receiving stolen property, which is a nonviolent offense, as his primary offense.
Mohammad then appealed this ruling to the Second Appellate District in Los Angeles, which reversed the trial court, rejecting the CDCR regulations as being incompatible with section 32 to article 1 of the California Constitution. In re Mohammad (2019) 42 Cal. App. 5th 719.
The Attorney General then appealed this court of appeal decision to the California Supreme Court, as such a ruling would affect hundreds if not thousands of inmates.
The California Supreme Court then reversed the Second Appellate District, finding that the language of Proposition 57 was ambiguous on this issue. The Supreme Court evaluated the purpose of the proposition was to enhance public safety, so to let inmates convicted of both nonviolent and violent offenses be allowed early parole consideration would undermine the legislative intent.
Moreover, as pointed out by Justice Liu in a separate concurring opinion, the sentence for the robbery offense makes all of Mohammad’s offenses to be considered violent for purposes of Prop 57 early parole consideration. This “merger” theory is perhaps the best way to regard Mohammad’s sentence and not break up his sentence into component parts as he suggested.
We present this summary because we believe no one should be tricked into accepting such a sentence as we have seen some criminal defense attorneys recommend on the rationale that if a nonviolent offense is designated the principal term, that individual would or will be eligible for early parole consideration under Prop 57. It did not “work” for Mohammad.
The citation for the California Court ruling discussed above is In re Mohammad Mohammad (2022) 12 Cal. 5th 518, 288 Cal. Rptr. 3d 271, 501 P. 3d 635.
For more information about early parole issues under Prop 57, please click on the following articles:
