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Prop 57 Early Parole Consideration & CDCR Discretion

In 2014, Stephen Guice was convicted in Monterey County Superior Court on three separate cases of transportation of a controlled substance (Health & Safety (H & S) Code § 11352(a)), two counts of possession of cocaine base for sale (H & S § 11351.5), evading a police officer (Vehicle Code § 2800.2(a)); robbery (Penal Code § 211); possession of a controlled substance for sale (H & S § 11351), and bringing a controlled substance into jail (Penal Code § 4573).  The allegation that Guice has suffered a prior strike conviction (Penal Code §§ 667(b) – (i), 1170.12) was found true by the jury, as were a few other sentence enhancements.
The Reader’s Digest Version:  Proposition 57 permits certain qualified, nonviolent prisoners to be considered for parole after completion of serving the time associated with his or her “primary offense.”  The CDCR was tasked with implementing such early parole consideration and has broad discretion in how to do so, particularly in mixed sentences involving violent and nonviolent offenses.
The judge sentenced Guice to an aggregate term of 19 years and four months.  The term was based on ten years for transportation of a controlled substance (H & S § 11352), one year and four months for evading a police officer (Veh. Code § 2800.2(a)), one year for robbery (P.C. § 211), and seven years for sentence enhancements.  Guice had 1,405 days of custody credit (almost two years of actual custody, plus two years of good time / work time) to apply towards the 19 years, four-month term.

In November 2016, California voters approved Proposition 57 (“Prop 57”), the “Public Safety and Rehabilitation Act.”  Among its provisions, it amended article 1 of the California Constitution by adding § 32.

Section 32(a) provides: “Any 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 primary offense.”  This is the “early parole” provision that Prop 57 is known for to many.

art_1537_-_court_of_appeal__sixth_appellate_district__san_jose_.jpgCourt of Appeal Sixth Appellate District San Jose

“Primary offense” is 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). 

Section 32 directs the California Department of Corrections and Rehabilitation (CDCR) to “adopt regulations in furtherance of these provisions.”

Section 32 does not define the phrase “[a]ny person convicted of a nonviolent felony offense” and is silent regarding its application to individuals who are convicted of both nonviolent and violent felonies (“mixed convictions”) and are currently serving a term for a violent felony.

In 2018, Guice requested that the CDCR consider him for early parole under Prop 57.  The CDCR advised him that he was not qualified for early parole because of his conviction for robbery, which was part of a consecutive sentence he had not yet finished.
In 2019, Guice then filed a petition for a writ of habeas corpus in the superior court, arguing he was eligible for early parole consideration under Prop 57 because his primary offense was transportation of a controlled substance, which is nonviolent.

The judge considering the petition denied it, observing “what constitutes a nonviolent offender is not specifically defined by the initiative (Prop 57)” and finding that the CDCR’s regulations excluding offenders currently serving a sentence for a violent offense “reasonably effectuates the initiative’s directives.” 

Guice then appealed this ruling to the Sixth Appellate District Court of Appeal in San Jose.  The Sixth Appellate District affirmed the trial court, finding that in In re Douglas (2021) 62 Cal. App. 5th 726, an appellate court upheld the CDCR’s regulation excluding mixed offense inmates from nonviolent parole consideration because a literal interpretation of section 32(a) (1) “would lead to the absurd results the voters did not intend.”  Douglas, supra, at 729.  The Douglas court acknowledged that, as construed, section 32(a)(1) was really only clear for someone who was convicted for one violent offense, in which case that person would be ineligible for early parole consideration.

The Sixth Appellate District also cited to In re Viehmeyer (2021) 62 Cal. App. 5th 973, which addressed § 32(a)(1), holding that “where a defendant is convicted of both a violent felony and a nonviolent felony, and the nonviolent felony is the primary offense for purposes of sentencing, the defendant is not entitled to early parole consideration under section 32(a) after completing the full term for the primary offense if he or she is still serving a term for the violent offense.”  Id., at 978.

We present this summary for the reader because in many cases, a person may be convicted of both violent and non-violent offenses.  In such cases, Proposition 57 usually is not applicable for early parole consideration if that person was convicted of a violent offense such as robbery (P.C. § 211) as in this case.

The citation for the Sixth Appellate District Court ruling discussed above is In re. Stephen Guice (6th App. Dist., 2021) 66 Cal. App. 5th 933, 281 Cal. Rptr. 3d 558.

For more information about early parole eligibility under Proposition 57, please click on the following articles:
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