Prop 57: Mixed Offense Ineligible for Early Parole
Ever since Proposition 57 was passed into law, we have had many calls from people asking various questions about the new law’s early parole provisions. There have been many about what we call “mixed sentences” and whether an inmate is eligible for early parole if part of his sentence is for a nonviolent felony and part of it is for a violent felony, but the inmate has finished the violent felony sentence. Is that inmate, now serving only for a nonviolent felony, eligible for Proposition 57’s early parole provisions?
The answer to this question was provided recently (November 17, 2023) by the California Court of Appeal for the Second Appellate District in ruling on the petition for a writ of habeas corpus filed by Christopher Hicks, Jr. (In re Christopher T. Hicks, Jr.).
Mr. Hicks, in his petition, stated that he was currently serving a sentence on two counts of burglary and one count of robbery. He sought early parole consideration under article 1, section 32, subdivision (a)(1) of the California Constitution, as amended by Proposition 57 and approved by voters in November, 2016, which 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 hir or her primary offense.”
In 2017, Mr. Hicks pleaded guilty and was sentenced on one count of first degree burglary, one count of second degree burglary, one count of second degree robbery and two counts of receiving stolen property. This type of sentence is called a “mixed offense” sentence in the context of Prop 57 and Mr. Hicks is regarded as a “mixed offense inmate.”
In 2020, Mr. Hicks’ sentence was modified to ten years and six months. The sentence was composed of four years for the first degree burglary conviction, plus a five-year gang enhancement under Penal Code § 186.22(b)(1)(B) and consecutive term of eight months for the second degree burglary and one year for the robbery conviction.
Robbery is a violent felony under Penal Code § 667.5(c), but burglary is considered non-violent.
Mr. Hicks argued he was eligible for early parole consideration because he was finished serving his sentence for robbery, a violent felony, and was serving a sentence on a non-violent felony, burglary. He also argued that the California Department of Corrections (CDCR) abused its rulemaking authority allowing under Prop 57 in adopting in 2022 in excluding mixed offense inmates from early parole consideration.
The Second Appellate District affirmed the CDCR’s decision to exclude him and any other mixed offense inmate from consideration for early parole because of his violent felony conviction.
The Second District explained that in In re Mohammed (2022) 12 Cal. 5th 518, at 527, the California Supreme Court had considered this exact question and affirmed the CDCR’s policy.
In Mohammed, Mr. Mohammed had completed the full term for his primary offense, a nonviolent felony, and was then serving the term for a violent felony. The Court of Appeal found the language of section 32(a)(1) to be clear and unambiguous (“any person convicted of a nonviolent felony offense”) and that the CDCR regulation (15 C.C.R. (2019) § 3490) was incompatible with section 32(a)(1) and that Mohammed was entitled to early parole consideration under § 32(a)(1).
The California Supreme Court then reversed, noting that “language that seems plain when considered in isolation may be ambiguous when examined within the context of the scheme it implements. Mohammed, supra, 12 Cal. 5th at p. 531. To resolve the ambiguity, the state’s highest court turned to Proposition 57 ballot materials presented to voters. In looking at these, the Supreme Court found the CDCR’s policies were reasonable.
Moreover, effective February 28, 2022, the CDCR amended 15 C.C.R. (2019) § 3490(a)(5) to explicitly exclude mixed offense inmates such as Mr. Hicks from early parole consideration. Under the amended section, if an inmate is sentenced for a violent felony, he or she is ineligible for early parole consideration, regardless of whether the violent or nonviolent felony conviction is deemed the “primary offense” or whether the inmate is serving a sentence on the violent or nonviolent conviction when applying for parole.
The Second Appellate District commented that the current regulation avoids the arbitrariness and guesswork involved in determining which sentence a mixed offense inmate is “currently serving.”
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