Filed 6/21/21

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re ISRAEL ONTIVEROS on Habeas 

Corpus.

 D077905

 (San Diego Super. Ct.

 Nos. SCD264642,

 SCD263128, and

 HC24134)

ORIGINAL PROCEEDING in habeas corpus. Steven E. Stone, Judge. 

Petition denied.

Israel Ontiveros, in pro. per., and Ava R. Stralla, under appointment of 

the Court of Appeal, for Petitioner.

Rob Bonta, Attorney General, Phillip J. Lindsay, Assistant Attorney 

General, Amanda J. Murray and Gregory J. Marcot, Deputy Attorneys 

General, for Respondent.

In 2017, Israel Ontiveros was convicted of multiple felonies and 

sentenced to state prison in two criminal cases. In the first case, a jury 

convicted Ontiveros on two counts of assault with a deadly weapon 

(Pen. Code, § 245, subd. (a)(1)) with gang enhancements (id., § 186.22, 

subd. (b)(1)). Ontiveros apparently admitted suffering a prior serious felony 

conviction (id., § 667, subd. (a)(1)), a “strike” prior (id., § 667, subd. (d)), and a 

prison prior (id., § 667.5, subd. (b)). The trial court sentenced Ontiveros to an 

effective prison term of 19 years 8 months. In the second case, Ontiveros 
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pleaded guilty to one count of robbery (id., § 211), and again he apparently 

admitted a prior serious felony conviction (id., § 667, subd. (a)(1)). The court 

sentenced Ontiveros to a term of seven years in prison, to run consecutively

with Ontiveros’s sentence in the first case.

Two years later, Ontiveros requested early parole consideration under 

Proposition 57, the Public Safety and Rehabilitation Act of 2016. 

Proposition 57 amended the California Constitution to provide, in relevant 

part, 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); section 32(a)(1).) The California Department of Corrections 

and Rehabilitation (CDCR) denied his request. The trial court likewise 

denied his petition for writ of habeas corpus. The court reasoned that,

because one of Ontiveros’s convictions was for a violent felony (robbery), he 

was ineligible for early parole consideration under Proposition 57.

Ontiveros petitioned this court for habeas relief. He relied primarily on 

In re Mohammad (2019) 42 Cal.App.5th 719, 726 (Mohammad), review 

granted February 19, 2020, S259999. Ontiveros’s propria persona petition 

requested judicial notice of that opinion. We deny his request as unnecessary 

because published opinions may simply be cited as authority. (See Jaramillo 

v. County of Orange (2011) 200 Cal.App.4th 811, 817-818.)

Mohammad held that an inmate is eligible for early nonviolent offender 

parole consideration under Proposition 57 as long as any of the inmate’s

current convictions is for a nonviolent offense, even if he was convicted of 

other, violent offenses. (Mohammad, supra, 42 Cal.App.5th at p. 726, review 

granted.) It explained, “Proposition 57 is in no way ambiguous: under [its 

provisions], an inmate who is serving an aggregate sentence for more than 
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one conviction will be eligible for an early parole hearing if one of those 

convictions was for ‘a’ nonviolent felony offense.” (Ibid.) We issued an order 

to show cause why Ontiveros was not entitled to relief.

In response, the Attorney General argued that Mohammad’s

interpretation of Proposition 57 is inconsistent with the intent of the voters 

and leads to an absurd result. He relied on two recent opinions disagreeing 

with Mohammad. (See In re Viehmeyer (2021) 62 Cal.App.5th 973

(Viehmeyer); In re Douglas (2021) 62 Cal.App.5th 726 (Douglas).)

We join Viehmeyer and Douglas in disagreeing with Mohammad’s 

conclusion that an inmate serving a determinate sentence for both violent 

and nonviolent convictions is entitled to early parole consideration under 

Proposition 57. Even accepting Mohammad’s position that the language of 

Proposition 57 unambiguously applies to such inmates, such application 

would lead to the absurd result that an inmate convicted of a violent offense 

and several nonviolent offenses would be entitled to earlier parole 

consideration than an inmate convicted of only the violent offense. A policy 

that rewards inmates for additional convictions is plainly unreasonable. 

Under established principles of statutory construction, we are not bound to 

follow the literal interpretation of the text if it would lead to such an absurd 

and unreasonable result that could not have been intended. We therefore 

conclude Ontiveros is not entitled to early parole consideration under 

Proposition 57 and deny his petition.

DISCUSSION

Proposition 57 was approved by the voters in 2016. (See generally In re 

Gadlin (2020) 10 Cal.5th 915, 922-923 (Gadlin).) As noted, it amended the 

California Constitution to provide that “[a]ny person convicted of a nonviolent 

felony offense and sentenced to state prison shall be eligible for parole 
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consideration after completing the full term for his or her primary offense.” 

(§ 32(a)(1).) The “full term for the primary offense” was 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).) 

The proposition directed CDCR to “adopt regulations in furtherance of 

these provisions, and the Secretary of the Department of Corrections and 

Rehabilitation shall certify that these regulations protect and enhance public 

safety.” (§ 32(b).) As relevant here, the CDCR’s regulations exclude an 

inmate from early parole consideration if he “is currently serving a term of 

incarceration for a ‘violent felony.’ ” (Cal. Code Regs., tit. 15, § 3490, 

subd. (a)(5).) The regulations define a violent felony as “a crime or 

enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code.” 

(Cal. Code Regs., tit. 15, § 3490, subd. (c).) The CDCR and the trial court 

relied on these regulations to deny Ontiveros relief, since his current prison 

term is based in part on a conviction for robbery, which is a violent felony 

under Penal Code section 667.5, subdivision (c)(9). (See In re Reeves (2005) 

35 Cal.4th 765, 772, 773 [explaining that “multiple consecutive determinate 

terms must be combined into a single, ‘aggregate term of imprisonment for all 

[such] convictions’ ”].) 

The standard for reviewing CDCR’s regulations is well-settled: “In 

evaluating the validity of a regulation . . . , we first ask whether the 

regulation is ‘ “consistent and not in conflict with” ’ the provision that 

authorizes it. [Citation.] We then inquire whether the regulation is 

reasonably necessary to effectuate the purpose of the authorizing law. 

[Citations.] Our task as a reviewing court ‘ “ ‘is to decide whether the 

[agency] reasonably interpreted [its] mandate.’ ” ’ [Citation.] We presume 
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the validity of a regulation promulgated by a state agency. [Citation.] The 

burden lies with the party challenging the regulation to show its invalidity. 

[Citation.] ‘Such a limited scope of review constitutes no judicial interference 

with the administrative discretion in that aspect of the rulemaking function 

which requires a high degree of technical skill and expertise.’ [Citation.] [¶] 

‘ “Our function is to inquire into the legality of the regulations, not their 

wisdom.” ’ [Citation.] Still, ‘ “ ‘final responsibility for the interpretation of 

the law rests with the courts.’ [Citations.] Administrative regulations that 

alter or amend the statute or enlarge or impair its scope are void and courts 

not only may, but it is their obligation to[,] strike down such regulations.” ’ ” 

(Gadlin, supra, 10 Cal.5th at p. 926.)

“To determine whether the regulation here is consistent with the 

constitutional provisions enacted by Proposition 57, we must interpret the 

constitutional provisions themselves. Our ‘primary concern’ in construing a 

constitutional provision enacted through voter initiative is ‘giving effect to 

the intended purpose of the provisions at issue.’ [Citation.] And, ‘[i]n 

interpreting a voter initiative . . . , we apply the same principles that govern 

statutory construction.’ ” (Gadlin, supra, 10 Cal.5th at pp. 926-927.)

“ ‘The fundamental purpose of statutory construction is to ascertain the 

intent of the lawmakers so as to effectuate the purpose of the law. 

[Citations.] In order to determine this intent, we begin by examining the 

language of the statute. [Citations.] But “[i]t is a settled principle of 

statutory interpretation that language of a statute should not be given a 

literal meaning if doing so would result in absurd consequences which the 

Legislature did not intend.” [Citations.] Thus, “[t]he intent prevails over the 

letter, and the letter will, if possible, be so read as to conform to the spirit of 

the act.” [Citation.] Finally, we do not construe statutes in isolation, but 
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rather read every statute “with reference to the entire scheme of law of which 

it is part so that the whole may be harmonized and retain effectiveness.” 

[Citation.]’ [Citation.] We must also consider ‘the object to be achieved and 

the evil to be prevented by the legislation. [Citations.]’ [Citation.] These 

guiding principles apply equally to the interpretation of voter initiatives.” 

(Horwich v. Superior Court (1999) 21 Cal.4th 272, 276; accord, Arias v. 

Superior Court (2009) 46 Cal.4th 969, 979 (Arias).) 

Mohammad examined the language of Proposition 57 and found it clear 

and unambiguous: “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 felony 

offense’ takes the singular form, which indicates 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 the 

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.” (Mohammad, supra, 42 Cal.App.5th at p. 726, 

review granted.) 

The court continued, “Section 32(a)(1) extends early parole 

consideration to persons ‘convicted of a nonviolent felony offense.’ (Italics 

added.) Under 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 

a consecutive 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 Constitution 

obviously contemplates inmates would be sent to prison for more than one 

criminal offense and would qualify for early parole consideration if one of 
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those offenses was a nonviolent offense.” (Mohammad, supra, 42 Cal.App.5th 

at p. 727, review granted.)

Mohammad recognized, however, that its conclusion was open to 

question. “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 eligible for early parole consideration while a defendant convicted of fewer 

crimes, i.e., the same violent felony but no nonviolent felonies, is not.” 

(Mohammad, supra, 42 Cal.App.5th at p. 727, review granted.) Mohammad

did not explore this line of thinking, in part because the Attorney General 

apparently had not raised it. Mohammad held, “The Constitution’s text 

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

absurd [citation] as to disregard the Constitution’s plain meaning—and, 

indeed, the Attorney General does not ask us to.” (Id. at p. 728.)

Mohammad further recognized that its rationale “bespeaks a certain 

self-aware naivete” about the knowledge of the voting public. (Mohammad,

supra, 42 Cal.App.5th at p. 728, review granted.) This language appears to 

acknowledge the likelihood that Mohammad’s literal interpretation of 

Proposition 57 diverges from the policy voters believed they were enacting. 

In the court’s view, however, failing to adopt a literal interpretation would 

“invite confusion and manipulation of the initiative process.” (Ibid.) If the 

voters intended something different than the text itself, they were free to 

amend the Constitution again. (Ibid.)

We accept, for purposes of our opinion, that the text of Proposition 57 is 

clear and unambiguous, as Mohammad held, and a literal reading would 

include Ontiveros. He is a “person convicted of a nonviolent felony offense 

and sentenced to state prison” and therefore “eligible for parole consideration 

after completing the full term for his or her primary offense.” (See § 32(a)(1).)
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But we disagree that any reasonable person could have intended such a 

result. Its absurdity is clear even without considering the specific context of 

Proposition 57. Our society abhors crime and seeks to deter and punish it. 

We do not reward it. It, indeed, “cannot be . . . that voters intended a 

defendant who is convicted of more crimes, i.e., both violent and nonviolent 

felonies, to be eligible for early parole consideration while a defendant 

convicted of fewer crimes, i.e., the same violent felony but no nonviolent 

felonies, is not.” (See Mohammad, supra, 42 Cal.App.5th at p. 727, review 

granted, italics added.) This result is so absurd and unreasonable that the 

electorate could not have intended it.

Douglas similarly concluded that Mohammad’s literal interpretation of 

Proposition 57 would lead to an absurd result the voters did not intend. 

(Douglas, supra, 62 Cal.App.5th at p. 731.) It explained, “Here is but one 

example of an absurd result. The literal language of section 32(a)(1) suggests 

that an inmate convicted of 10 violent felonies and one nonviolent felony 

would be eligible for early parole consideration after serving the full term of 

his or her primary offense, whatever that primary offense might be. But an 

inmate convicted of the same 10 violent felonies without a nonviolent felony 

conviction would be ineligible for early parole consideration under 

section 32(a)(1). Such a result would encourage and reward a violent felon’s 

commission of at least one additional nonviolent felony, would be inconsistent 

with sound public policy, and would make no sense.” (Id. at p. 732; 

see Viehmeyer, supra, 62 Cal.App.5th at p. 987.) We agree.

A literal interpretation of Proposition 57 likewise specifically conflicts 

with one of its main purposes. The proposition states that its provisions were 

enacted to “enhance public safety, improve rehabilitation, and avoid the 

release of prisoners by federal court order[.]” (§ 32(a).) As Viehmeyer
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recognized, a literal interpretation “ ‘is contrary to a main purpose of 

section 32(a), namely to ‘enhance public safety.’ ” (Viehmeyer, supra, 

62 Cal.App.5th at p. 985.)

Moreover, “[i]n determining the purpose of an initiative measure, we 

consider the analysis and arguments contained in the official election 

materials submitted to the voters.” (Arias, supra, 46 Cal.4th at p. 979.) The 

ballot summary explains, in relevant part, that Proposition 57 “[a]llows 

parole consideration for persons convicted of nonviolent felonies, upon 

completion of [the] prison term for their primary offense, as defined” and it 

“[r]equires [CDCR] to adopt regulations to implement new parole and 

sentence credit provisions and certify they enhance public safety.” This 

concern for public safety reinforces Proposition 57’s explicit purposes, and it 

confirms the voters did not intend to overturn the fundamental principle that 

an inmate should not be rewarded for committing additional crimes.

The analysis by the Legislative Analyst noted that parole consideration 

hearings are normally provided to inmates serving an indeterminate term. 

The analysis explained, “Individuals who receive a determinate sentence do 

not need a parole consideration hearing to be released from prison at the end 

of their sentence. However, some of these individuals currently are eligible 

for parole consideration hearings before they have served their entire 

sentence. For example, certain individuals who have not been convicted of 

violent felonies are currently eligible for parole consideration after they have 

served half of their prison sentence. This was one of several measures put in 

place by a federal court to reduce the state’s prison population.” It described 

the amendments here under the heading “Parole Consideration for 

Nonviolent Offenders.” It stated, “The measure changes the State 

Constitution to make individuals who are convicted of ‘nonviolent felony’ 
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offenses eligible for parole consideration after serving the full prison term for 

their primary offense.” To the extent this analysis sheds light on the issue 

here, it supports the proposition that “Nonviolent Offenders” are entitled to 

parole consideration, excluding by implication inmates who were convicted of 

a violent offense.

Indeed, in their rebuttal argument, the proponents of Proposition 57 

made this idea explicit. They maintained that the proposition “[d]oes NOT 

authorize parole for violent offenders. The California Supreme Court clearly 

stated that parole eligibility under [Proposition] 57 applies, ‘only to prisoners 

convicted of non-violent felonies.’ [Citation.] Violent criminals as defined in 

Penal Code [section] 667.5[, subdivision ](c) are excluded from parole.” 

“These arguments indicate that a person convicted of one or more 

violent felony offenses would not be eligible for early parole consideration, 

even if the person was also convicted of a nonviolent felony offense.” 

(Douglas, supra, 62 Cal.App.5th at p. 733.) Similarly, as Viehmeyer noted, 

“The inescapable conclusion from the portions of ballot materials cited here is 

that, in approving Proposition 57, the voters intended to enact a mechanism 

for providing early parole consideration only to nonviolent felons, and not to 

violent felons who by happenstance were also convicted of a nonviolent 

felony . . . .” (Viehmeyer, supra, 62 Cal.App.5th at p. 987.)

Ontiveros claims the proponents’ arguments “merely beg the question 

whether Proposition 57 treated mixed-offenders whose primary offense was 

nonviolent as included in or excluded from its program for early parole 

consideration.” We disagree. The proponents’ arguments do not merely beg 

the question. They answer it: “Violent criminals as defined in Penal 

Code 667.5[, subdivision ](c) are excluded from parole.” (Italics added.)
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Ontiveros also claims that a literal reading of Proposition 57 is not 

absurd. He argues “there is nothing unreasonable in the electorate’s focus on 

the nonviolent nature of a prisoner’s primary offense in fashioning a program 

for early parole consideration to reduce the prison population.” Douglas

considered and rejected an identical argument: “Douglas suggests that if 

section 32(a)(1) were interpreted to apply only to an inmate whose primary

offense was a nonviolent felony, it would not lead to absurd results. He 

claims there is ‘nothing unreasonable in the electorate’s focus on the 

nonviolent nature of a prisoner’s primary offense in fashioning a program for 

early parole consideration to reduce the prison population.’ But Douglas’s 

view does not find support in the language of section 32(a)(1) or in the 

election materials. Section 32(a)(1) does not require the primary offense to be 

a nonviolent felony conviction. And the election materials indicate that a 

person with a violent felony conviction is not eligible for early parole 

consideration. In any event, Douglas’s proposed interpretation does not 

alleviate the concern that a person with many violent felony convictions could 

be rewarded for committing at least one additional nonviolent felony, as long 

as the sentencing judge designates the nonviolent felony as the primary 

offense.” (Douglas, supra, 62 Cal.App.5th at pp. 733-734; see Viehmeyer,

supra, 62 Cal.App.5th at p. 987.) Again, we agree with Douglas.

In sum, the literal interpretation of Proposition 57 articulated in 

Mohammad and adopted by Ontiveros would lead to absurd results the 

voters did not intend. Ontiveros’s contention that we should invalidate 

CDCR’s implementing regulations based on that interpretation is therefore 

unpersuasive. He has not shown the CDCR erred by excluding him from 

early parole consideration under Proposition 57 or that he is otherwise 

entitled to relief.
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DISPOSITION

The petition is denied.

GUERRERO, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.