Filed 11/5/21 P. v. Hicks CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN HICKS,

Defendant and Appellant.

 B307878

 (Los Angeles County

 Super. Ct. No. BA370760)

THE COURT:

On February 7, 2014, Kevin Hicks (appellant) was 

convicted of conspiracy to commit kidnaping for robbery in 

violation of Penal Code sections 182, subd. (a)(1) and 209, subd. 

(a).

1 He was sentenced to life with the possibility of parole after 

1 All further statutory refences are to the Penal Code unless 

otherwise indicated.

We affirmed appellant’s conviction in People v. Rose (Dec. 1, 

2015, B254912) [nonpub. opn.] (Rose). The opinion recounts 

evidence that appellant and two others planned to kidnap a 
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14 years, plus one year because a principal was armed (§ 12022, 

subd. (a)(1)) and five years because appellant had committed a 

prior serious felony (§ 667, subd. (a)(1)). In Rose, we reversed the 

firearm enhancement and otherwise affirmed the judgment.

According to appellant, the California Department of 

Corrections and Rehabilitation (CDCR) interpreted his offense as

a violent felony (§ 667.5, subd. (c)). He filed a request seeking

clarification that his conviction was for a serious felony (§ 1192.7, 

subd. (c)), claiming this would impact the calculation of his goodtime credits and release date.2 The trial court treated the 

request as a petition for writ of habeas corpus3 and invited an 

informal response from the District Attorney. The District 

Attorney agreed that appellant was convicted of a serious felony. 

The trial court declared that appellant’s crime was a serious, 

nonviolent felony and ordered the prison officials to adjust its 

female bank manager as part of a plan to rob the vault in her 

bank. The coconspirators took various steps in preparation for 

the kidnapping and robbery. The police arrested them soon after. 

(Id. at pp. 6–13.)

2 The CDCR’s interpretation brings appellant within the 

scope of section 2933.1. That statute provides: “Notwithstanding 

any other law, any person who is convicted of a felony offense 

listed in subdivision (c) of [s]ection 667.5 shall accrue no more 

than 15 percent of worktime credit, as defined in section 2933.” 

(§ 2933.1, subd. (a).)

3 Case law supports the trial court’s decision. (In re Mitchell

(2000) 81 Cal.App.4th 653 (Mitchell) [habeas petition granted by 

the reviewing court when the CDCR improperly classified the 

defendant’s crime as a violent felony and limited his custody 

credits under section 2933.1].) 
3

records to reflect the true nature of appellant’s conviction, and to 

recalculate his custody credits accordingly.

The Attorney General asked the trial court to reconsider its 

order, arguing that appellant’s felony was both violent under 

section 667.5, subdivision (c)(7) [“any felony punishable by death 

or imprisonment in the state prison for life”] and serious. The 

trial court vacated its previous order and declared that appellant 

was convicted of a violent felony. It ordered the clerk to prepare 

an amended abstract of judgment and send a certified copy to the 

CDCR.

Appellant noticed this appeal. Appointed counsel filed a no 

merit brief and asked us to conduct an independent review under 

People v. Wende (1979) 25 Cal.3d 436. Appellant filed a letter 

brief raising various arguments.

As a preliminary matter, we observe that the denial of a 

habeas petition is not appealable. (People v. Garrett (1998) 67 

Cal.App.4th 1419, 1421–1422.) Appellant’s remedy was to file an 

original petition with us. (Id. at p. 1423.) We could dismiss the 

appeal. But in the interest of justice, we opt to consider the 

appeal as though it is a habeas petition. (People v. Segura (2008) 

44 Cal.4th 921, 928, fn. 4.)

Appellant offers a series of arguments.

First, he contends the trial court erred because “conspiracy” 

is not enumerated as a violent felony in section 667.5, subdivision 

(c). This contention misses the mark. 

The Legislature declared in section 667.5, subdivision (c) 

that the specified felonies “‘merit special consideration when 

imposing a sentence to display society’s condemnation for these 

extraordinary crimes of violence against the person.’” (People v. 

Henson (1997) 57 Cal.App.4th 1380, 1385–1386 (Henson).) 
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“[M]ost offenses punishable by life in prison[] indisputably fall 

into the category of ‘extraordinary crimes of violence against the 

person.’” (Id. at p. 1386.) Section 209, subdivision (a) provides 

that any person who kidnaps another person to commit extortion 

or exact money, and any person who aids and abets such act, is 

guilty of a felony and shall be sentenced to life in prison. Any 

person who conspires to commit a felony (other than those 

excepted), is “punishable in the same manner and to the same 

extent as is provided for the punishment of that felony.” (§ 182, 

subd. (a)(6), 2d par.) Undeniably, appellant’s crime was a 

“violent felony” under section 667.5, subdivision (c)(7) because he

was subject to a life sentence. It does not matter whether, as 

here, no acts of violence occurred. While section 667.5, 

subdivisions (c)(1)-(6) and (c)(7)-(23) define violent felonies by 

specified crimes or actions, subdivision (c)(7) stands alone by 

defining a crime as violent based solely on the punishment. 

In reaching this conclusion, we have analyzed Mitchell. In 

that case, the defendant was convicted of conspiracy to commit 

first degree robbery in concert. He received a sentence of seven 

years eight months. The CDCR characterized the offense as a 

violent felony under section 667.5, subdivision (c) and calculated 

custody credits pursuant to section 2933.1. (Mitchell, supra, 81 

Cal.App.4th at p. 655.) Mitchell rejected this characterization. It 

explained that section 667.5, subdivision (c) “does not list 

conspiracy to commit the crimes set forth therein or conspiracy to 

commit any particular act or crimes as a qualifying violent 

felony.” (Id. at p. 656.) Conspiracy to commit a crime “is a 

separate and distinct crime from the offense that is the object of 

the conspiracy. [Citation.]” (Id. at pp. 656–657.) The court held 

that “to read section 182 as requiring the application of section 
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2933.1 to conspiracy to commit the violent felonies listed in 

section 667.5 . . . is contrary to the plain language of sections 

2933.1 and 667.5 and the express intent of the Legislature.” 

(Mitchell, supra, 81 Cal.App.4th at p. 657.) There is no conflict 

between our interpretation and Mitchell because it did not

interpret section 667.5, subdivision (c)(7). As discussed, that 

subdivision stands alone because it defines violent felonies in a 

wholly different way. Thus, we conclude that Mitchell is limited 

to subdivisions (c)(1)-(6) and (c)(8)-(23). 

Second, appellant argues that a life sentence does not make

a crime a violent felony, citing In re Edwards (2018) 26 

Cal.App.5th 1181 and In re Mohammad (2019) 42 Cal.App.5th 

1181, review granted February 19, 2020, S259999. Neither case 

is apposite. They did not apply section 667.5, subdivision (c)(7), 

and they did not suggest that a felony that is punishable by life 

in prison is not a violent felony within the meaning of that 

statute. Cases are not authority for propositions not considered. 

(People v. LaVoie (2018) 29 Cal.App.5th 875, 885.)

Third, appellant states: “‘Conspiracy is a separate offense 

from the crime that is the object of the conspiracy. A conspiracy 

ends when the unlawful act has been committed or (in some 

states)[,] when the agreement has been abandoned.’ [Citations.] 

[¶] Here, . . . ‘the kidnap[ping] never took place, it was part of 

the target offense of the robbery. [¶] The Attorney General is 

now asking the court to do, which, by law[], it cannot do, which is 

to ignore the literal application of a statute[] of conspiracy. 

[Citation.]” This argument carries no weight because it does not 

explain why the CDCR’s interpretation of appellant’s crime was 

erroneous.
6

Fourth, appellant suggests that sections 1192.7 and 667.5, 

subdivision (c) are ambiguous, and that we therefore must apply 

the rule of lenity. The rule provides that when a penal statute is 

so ambiguous that a court can only guess which of two or more 

interpretations the Legislature intended, a court must prefer an 

interpretation favoring the defendant. (People v. Manzo (2012) 

53 Cal.4th 880, 889.) The relevant statutory provision—section 

667.5, subdivision (c)(7)—is not ambiguous because it has only 

one reasonable interpretation: if a felony is punishable by life in 

prison, the felony qualifies as violent. This plain language 

controls (White v. Ultramar (1999) 21 Cal.4th 563, 572) and the 

rule of lenity does not apply.

Fifth, appellant argues that the Due Process Clause of the 

Fifth Amendment to the United States Constitution requires that 

a penal statute define a criminal offense with sufficient 

definiteness so that ordinary people can understand what 

conduct is prohibited, and so that arbitrary or discriminatory 

enforcement is not encouraged. This is a statement, not an 

argument, and we decline to play a guessing game as to what 

appellant is trying to say.

Sixth, appellant asks us to grant him relief based on 

Proposition 57, a constitutional amendment adopted by the 

voters and effective November 9, 2016. It provides that “[a]ny 

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.” (Cal. 

Const., art. I, § 32, subd. (a)(1).) The insurmountable obstacle for 

appellant is that his crime was a violent felony within the 

meaning of section 667.5, subdivision (c)(7) and, by its terms, 

Proposition 57 does not apply to him.
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DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________________________________________

LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.