Filed 11/26/ 19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re MOHAMMAD MOHAMMAD

on

Habeas Corpus. B295152

(Los Angeles County

Super. Ct. No.

BH011959)

ORIGINAL PROCEEDING S in habeas corpus. Superior

Court of Los Angeles County, William C. Ryan, Judge. Petition

granted.

Michael Satris, under appointment by the Court of Appeal,

for Petitioner.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief

Assistant Attorney General, Phillip J. Lindsay, Senior Assistant

Attorney General, Amanda J. Murray, Supervising Deputy

Attorney General, and Charles Chung, Deputy Attorney General,

for Respondent.2 In this proceeding challenging an aspect of regulations

promulgated to implement the Public Safety and Rehabilitation

Act of 2016 (Proposition 57), we give effect to the oft

- repeated

maxim that the best and most reliable indicator of the intended

purpose of a law is its text. ( National Federation of Independent

Business v. Sebelius (2012) 567 U.S. 519, 544; West Virginia

University Hospitals, Inc. v. Casey (1991) 499 U.S. 83, 98;

California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th

924, 933 [ the enacted text is typically the best and most reliable

indicator of the intended purpose of constitutional provisions and

statutes, including those adopted via voter initiative] ( California

Cannabis )

. )

I. BACKGROUND

On January 20, 2012, petitioner Mohammad Mohammad

pled no c ontest to nine counts of second degr ee robbery (Pen.

Code, § 211), which are violent felonies under Penal Code section

667.5, subdivision ( c )

, 1 and six counts of receiving stolen property

( Pen. Code, § 496, subd. (a)), which are nonviolent felon ies under

the same statutory definition

. The trial court designated one of

the receiving stolen property counts of conviction (count 11) as

Mohammad’s principal sentencing term, and ordered the

sentences imposed for the remaining convictions to run

1 “ Penal Code section 667.5, subdivision (c) defines 23

criminal violations, or categories of crimes, as violent felonies

— including murder, voluntary manslaughter, any robbery,

kidnapping, various specified sex crimes, and other offenses. ” ( In

re Edwards (2018) 26 Cal.App.5th 1181, 1188, fn. 3 ( Edwards ).)3

consecutively as sub ordinate terms. Mohammad ’s aggregate

sentence was 29 years in prison

.

Four years later, on November 8, 2016, California voters

approved Proposition 57. The proposition added section 32

,

subdivision (a) to Article I of California’s Constitution (hereaft er

“section 32(a)”), and it reads: “Any person convicted of a

nonviolent felony offense and sentenced to state prison shall be

eligible for parole consideration after completing the full term of

his or her primary offense.” ( § 32 (a)(1).) The new ly enact ed

constitutional provision further states “ 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.”

(§ 3 2(a)(1)(A).) Proposition 57 directed the Department of

Corrections and Rehabilitation (CDCR) to adopt regulations “in

furtherance of these provisions” and to “certify that these

regulations protect and enhance public safety.” (Cal. Const., art

. I, § 32, subd. (b).)

After CDCR encountered problems with an initial set of

implementing regulations it promulgated (see generally

Edwards

, supra

, 26 Cal.App.5th 1181), CDCR promulgated new

regulations effective in 2019

. When defining those inmates who

will be eligible for early parole consideration, CDCR’s rulemaking

took a different approach than the constitutional provision

—

focusing less on the nature of an offense committed by a person

(i.e., “a nonviolent felony offense”) and more on the person who

commits one or more crimes

.

S pecifically, for determinately sentenced inmate s like

Mohammad, CDCR’s regulations adopt a definition of “nonviolent

offender ” (emphasis ours) to circumscribe eligibility : “ A4

nonviolent offender, as defined in subsections 3490(a) and

3490(b), shall be eligible for parole consideration by the Board of

Parole Hearings under [the early parole consideration

regulations at C alifornia Code of Re gulations, t itle 15, sections

2449.1 et seq.] .” (Cal. Code Regs., tit. 15, § 3491.) Subsection

3490(a), in turn, describe s a “ ‘determinately

- sentenced nonviolent

offender ’ ” by exclusion, not inclusion : “An inmate is a

‘ determinately

- sentenced nonviolent offender’ if none of the

following are true : [ ¶] (1) The inmate is condemned to death; [¶]

(2) The inmate is currently incarcerated for a term of life without

the possibility of parole; [¶] (3) The inmate is currently

incarcerated for a term of life with the possibility of parole; [¶] (4)

The inmate is currently serving a determinate term prior to

beginning a term of life with the possibility of parole; [¶] (5) The

inmate is currently serving a term of incarceration for a ‘violent

felony ’; or [¶] (6) The i nmate is currently serving a term of

incarceration for a nonviolent felony offense after completing a

concurrent determina te term for a ‘violent felony.’ ” (Cal. Code

Regs., tit. 15, § 3490, subd. (a) ; see also Cal. Code Regs., tit. 15,

§ 3490, subd. (c) [“‘Violent felony’ is a crime or enhancement as

defined in subdivision (c) of section 667.5 of the Penal Code ”].)

The fifth criterion

, excluding from the nonviolent offender

definition inmates who are currently serving a term of

imprisonment for a vio lent felony, appears to be the operative

criterion in this proceeding. 2

2 Subsection (a)(5) of California Code of Regulations, t itle 15,

section 3490

— with its use of the word “currently”

— can be read to

indicate it was necessary to analyze the particular component of

Mohammad’s aggregate sentence that he was then serving to

determine his eligibility for parole consideration. It is unclear5 In December 2017, Mohammad requested an early parole

hearing pursuant to Proposition 57, arguing he had completed

the three

- year term of his non violent primary offense ( receiving

stol en property )

. CDCR denied the request, relying on a 1996

Court of Appeal decision interpreting a sentencing credit

calculation statute to conclude Mohammad should be deemed

ineligible for Proposition 57 relief because he was a “violent

offender and thereb y ineligible for the non

- violent parole

process.” (See generally People v. Ramos (1996) 50 Cal.App.4th

810, 817 [“[B] y its terms, [Penal Code] section 2933.1 applies to

the offender not to the offens e and so limits a violent felon’ s

conduct credits irresp ective of whether or not all his or her

off enses come within section 667.5”].) Mohammad pursued his

claim for early parole consideration through all levels of CDCR

administrative review

, and CDCR’s position never wavered. As

CDCR’s third

- level appeal dec ision interpreted the department’s

own regulations

, “one of [Mohammad’s] non

- controlling cases is

Second Degree Robbery and this offense makes all of his offenses

to be considered violent during this term.”

After unsuccessfully seeking habeas corpus rel ief in the

superior court, Mohammad filed a petition for writ of habeas

corpus here

. We appointed counsel for Mohammad and issued an

order to show cause.

whether CDCR undertook such an analysis when declaring him

ineligible for early parole consideration

, but as we go on to

explain, CDCR did determine Mohammad is ineligible for

Proposition 57 relief and the Attorney General defends that

decision under the aforementioned subsectio n (a)(5). We shall

proceed on the understanding that CDCR’s denial of early parole

consideration to Mohammad rested on its determination that he

was currently serving a term of incarceration for a violent felony.6 II. DISCUSSION

The issue we decide is whether CDCR’s implementing

regulations that condition eligibility for early parole

consideration on status as a “nonviolent offender” are consistent

with the constitutional provision that authorizes their

promulgation. As we shall explain, they are not. Section 32(a)

grants eligibility for early parole consideration to “[a]ny person

convicted of a nonviolent felony offense

. . . after completing the

full term of his or her primary offense ,” and the use of the

singular “a” in a sent ence that expressly contemplates criminals

would be sent to prison for more than one offense means any

nonviolent felony offense component of a sentence will suffice

.

Mohammad was convicted of a nonviolent offense

, among others

,

and he has completed the f ull term of his primary offense

. That

means he is now entitled to early parole consideration

notwithstanding CDCR’s regulat ory exclusion to the contrary

—

which we shall invalidate

. But that does not mean he is entitle d

to parole. The only certain consequ ence of our decision is that the

Board of Parole Hearings will be busier; they must evaluate the

parole worthiness of a category of inmates that CDCR’s

regulations incorrectly bar from getting before the parole board

at all.

A. Controlling Legal Principl es

“‘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.

(Gov. Code, § 11342.2.)’ ( Physicians & Surgeons Laboratories,7

Inc

. v. Department of Health Services (1992) 6 Cal.App.4th 968,

982[ ]; s ee Henning v. Division of Occupational Saf. & Health

(1990) 219 Cal.App.3d 747, 757[ ] ( Henning ).) Therefore, ‘the

rulemaking authority of the agency is circumscribed by the

substantive provisions of the law governing the agency.’

( Henning

, supra

, at p. 757.) ‘“The task of the reviewing court in

such a case is to decide whether the [agency] reasonably

interpreted [its] legislative mandate.

. . . Such a limited scope of

review constitut es no judicial interference with the

administrative discretion in that aspect of the rulemaking

function which requires a high degree of technical skill and

expertise.

. . . [T]here is no agency discretion to promulgate a

regulation which is inconsistent w ith the governing

statute.

. . . Whatever the force of administrative

construction

. . . final responsibility for the interpretation of the

law rests with the courts.

. . . Administrative regulations that

alter or amend the statute or enlarge or impair i ts scope are

void

. . . .” [Citation.]’ ( Id

. at pp. 757

- 758.)” ( Edwards

, supra

, 26

Cal.App.5th at p. 1189.)

“When construing constitutional provisions and statutes,

including those enacted through voter initiative, ‘[o]ur primary

concern is giving eff

ect to the intended purpose of the provisions

at issue. [Citation.] In doing so, we first analyze provisions’ text

in their relevant context, which is typically the best and most

reliable indicator of purpose. [Citations.] We start by ascribing

to word s their ordinary meaning, while taking account of related

provisions and the structure of the relevant statutory and

constitutional scheme. [Citations.] If the provisions’ intended

purpose nonetheless remains opaque, we may consider extrinsic

sources, su ch as an initiative’s ballot materials. [Citation.]8

Moreover, when construing initiatives, we generally presume

electors are aware of existing law. [Citation.] Finally, we apply

independent judgment when construing constitutional and

statutory provisio ns. [Citation.]’ ( California Cannabis [

, supra

, ] 3

Cal.5th [ at pp. ] 933

- 934.)” ( Edwards

, supra

, 26 Cal.App.5th at p.

1189. )

B. CDCR’s Regulations, Which Focus on the Offender

and Not the Offense, Are Inconsistent with the

Constitution’s Text

Section 32(a)(1) 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.” The

phrase “a nonviolent felon y offense ” takes the singular form

,

which ind icates it applies to an inmate so long as he or she

commits “a” single nonviolent felony offense

— even if that offense

is not his or her only offense

. This interpretation is reinforced by

th e term “primary offense

, ” which demonstrates the provision

assumes an inmate might be serving a sentence for more than

one offense, i.e., a primary offense and other secondary offenses.

Section 32(a)(1)(A) also define s the “full term for the

primary offense” to mean “the longest term of imprisonment

imposed by the court for any offense, excluding the imposition of

an enhancement, [ a ] consecutive sentence

, or [an] alternative

sentence.” (Emphasis ours.) N othing in the C onstitution’s text

suggest s a “consecutive sentence” is disqualifying if it is a

consecutive term for a violent felony. This further reinforces our

conclusion that the text the voters approved when passing

Proposition 57 is in no way ambiguous: under sections 32(a)(1)

and 32(a)(1)(

A)

, an inmate who is serving an aggregate sentence9

for more than one conviction will be eligible for an early parole

hearing if one of those convictions was for “ a ” nonviolent felony

offense

.

Mohammad was convicted of a nonviolent felony offense,

receivi ng stolen property. There is no dispute t hat his primary

offense as the C onstitution defines it ( “the longest term of

imprisonment impose d by the court for any offense”) is the

principal term prison sentence he received for the count 11

receiving stolen p roperty conviction

. Nor is there any dispute

that the “full term” in prison for that conviction

, “excluding the

imposition of an enhancement, consecutive sentence, or

alternative sentence” was three years. Therefore, under the plain

meaning of section 32 (a) (1), Mohammad is eligible for early

parole consideration now that he has serv ed three years in

prison.

CDCR’s regulations dictate a different result, but only by

impermissibly defining and limiting the universe of eligible

inmates to “nonviolent offen ders ”

— a term that does not appear

anywhere in section 32(a)(1). The leap taken by CDCR from “a

nonviolent felony offense” to a “nonviolent offender” is

unjustifiable and inconsistent with the constitutional text.

Indeed, the only justification CDCR gave Mohammad for denying

relief

— reliance on the inapposite People v. Ramos

, supra

, 50

Cal.App.4th 810 opinion

— is telling. It suggests CDCR’s

regulatory approach is founded on a misinformed offender

- based

premise.

Section 32(a)(1) extends early parole consideration to

persons “convicted of a nonviolent felony offense .” U nder section

32(a)(1)(A), an inmate who is “convicted of a nonviolent felony

offense” not only remains eligible if he or she is sentenced to a10

cons ecutive sentence, but in fact, becomes eligible for an early

parole hearing prior to serving that consecutive sentence. There

is just no escaping the conclusion that the text Proposition 57

added to the C onstitution obviously contemplate s inmates would

be sent to prison for more than one criminal offense and would

qualify for early parole consideration if one of those offenses was

a nonviolent offense. Th e regulations CDCR promulgated are at

war with that textual conclusion and therefore cannot stand.

In arguing the contrary in this proceeding

, CDCR largely

(and wisely) abandons the People v. Ramos rationale it relied on

when denying Mohammad administrative relief and instead

urges us to consider voter intent as purportedly reflected in the

Proposition 57 summary and arguments included in the official

ballot pamphl et. We decline. There is nothing ambiguous about

what section 32(a)(1) means in this case

, and there is accordingly

no cause to look beyond the text to ballot materials or other

e xtrinsic evidence of the voters’ intent. ( Silicon Valley Taxpayers’

Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44

Cal.4th 431, 444

- 445. )

We do acknowledge

, however, that the argument for

reaching a different result has some intuitive ap peal

. It cannot

be, the argument goes, that voters intended a defendant who is

convicted of more crimes

, i.e., both violent and nonviolent

felonies

, to be eligi ble for early parole consideration while a

defendant convicted of fewer crimes

, i.e., the same violent felon y

but no nonviolent felonies

, is not

. But we look for evidence of the

voters’ intent, not intuition, and as our Supreme Court has said

repeatedly

, the best evidence we have is the text the voters put in

the C ons titution. ( De La Torre v. Cash Call, Inc. (2018) 5 Cal.5th

966, 981; California Cannabis

, supra

, 3 Cal.5th at p. 933 ;11

Professional Engineers in California Government v. Kempton

(2007) 40 Cal.4th 1016, 1037 [“‘ Absent ambiguity, we presume

that the voters intend the meaning apparent on the face of an

initiative measure [citation] and the court may not add to the

statute or rewrite it to conform to an assumed intent that is n ot

apparent in its language ’ ” ]; see also People v. Valencia (2017) 3

Cal.5th 347, 379 ( conc. opn. o f Kr uger, J. ) [ “ California cases have

established a set of standard rules for the cons truction of voter

initiatives. ‘ We interpret voter initiatives using the same

principles that govern construc tion of legislative enactments.

[Citation.] Thus, we begin wit h the text as the fir st and best

indicator of intent’”].) The C onstitution’s text compels the result

we reach, and we are not prepared to declare that result so

absurd (see, e.g., Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th

627, 638) as to disregard the C onstitution’s plain meaning

— and

, indeed, the Attorney General does not ask us to.

It is also true that our rationale bespeak s a certain self

aware naivete about what most voters do and do not read before

going into the voting booth. But that is a necessary ingredient of

the initiative mechanism our C onstitution permits

. If courts are

to have a sound, predictable means of adjudicating interpretive

questions concerning popularly enacted laws (or any laws for that

matter) ; and if government agenci es and Californians are to have

a reliable means of discerning the ir legal rights and obligations;

privileging focu s

- group

- tested ballot arguments, incomplete

legislative analyses

, or intuited voter intentions over clear

textual provisions is not the answe r. Indeed, that would invite

confusion and manipulation of the initiative process. If voters

want a different result, the ballot box is open every two years to

change what the C onstitution now says

.12 In the meantime, it bears emphasizing that Mohammad’s

c ase is an unusual one

. The court at Mohammad’s sentencing

designated one of the receiving stolen property convictions

— i.e.,

one of the non violent felonies

— as the principal term of

Mohammad’s sentence. Often, however, an inmate convicted of

both violent a nd nonviolent felonies will have the most serious of

his or her violent fel onies set as the principal term. Thus, the

situation we confront in this case when an inmate become s

eligible for early parole consideration before serving time for any

of his o r h er viol ent felony offenses will not frequently arise

. 3

Furthermore, for those inmates who are eligible for early

parole consideration under section 32(a) as we read it today (and

as it must be read), the ultimate parole determination to be made

on the me rits by the Board of Parole Hearings (Board) is not

limited in the way that the eligibility determination is. The

Board ’s decision o n whether an inmate should be granted parole

will take into account the inmate’s full criminal histo ry

—

nonviolent and violent offenses alike

— when determining

whether the inmate poses a risk to public safety. ( Pen. Code,

§ 3041, subd. (b); Cal. Code Regs., tit. 15, § 2449.4, subd. (b).) So

the bottom line consequence of our decision today is that more

inmates like Mohamm a d will receive individualized parole

3 We also recognize it is possible prosec utors will exercise

their charging discretion in multiple offense cases in a way that

may affect early parole consideration eligibility. Prosecutorial

discretion is an established feature of our criminal justice system

(see, e.g., Davis v. Municipal Court (1988) 46 Cal.3d 64, 82), and

the manner in which prosecutors respond to the consequences of

the change in law worked by Proposition 57 is immaterial to the

issue we are asked to decide in this appeal.13

consideration earlier than they otherwise would have. If the

Board is convinced one of these inmate s poses no unacceptable

risk to public safety, the Board can approve the inmate for

release; if instead there are violent aspects of an inmate ’ s history

that were not part of an early parole hearing eligibility

determination, the Board can take those into account and issue a

parole denial where it deems it prudent

.14 DISPOSITION

The petition for writ of habeas corpus is granted. CDCR is

directed to treat as void and repeal California Code of

Regulations, title 15

, section 3490, subdivision (a)(5) an d to

thereafter make further changes as necessary to ensure its

Proposition 57 implementing regulations are consistent with this

opinion

. Mohammad shall be evaluated for early parole

consideration within 60 days of remittitur issuance.

CERTIFIED FOR PUBL ICATION

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.