In re Ontiveros

Filed 6/21/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
D077905
In re ISRAEL ONTIVEROS on Habeas
Corpus. (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
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.
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