No early parole for felon with violent and nonviolent crimes

Reversing an appellate decision, the California Supreme Court upheld Monday a state prison department rule that excludes inmates currently serving time for a violent felony from early parole consideration.

"We appreciate the court's decision to uphold the department's regulations aimed at implementing voter-approved criminal justice reforms under Prop 57, while maintaining public safety," according to a department statement provided by press secretary Dana Simas. "We will continue to follow our regulations and implementation of the nonviolent parole consideration process."

The opinion written by Chief Justice Tani Cantil-Sakauye found that the rule excluding violent felons from early parole consideration aligns with The Public Safety and Rehabilitation Act of 2016, also known as Proposition 57. In re: Mohammad, 2022 DJDAR 90 (Jan. 3, 2022).

Enacted in 2016 by voters the initiative sought to reduce the prison population by creating new avenues for parole. Among the changes was a provision added to the state constitution that "any person convicted of a nonviolent felony offense ... shall be eligible for parole consideration after completing the full term for his or her primary offense."

In 2019, Mohammad Mohammad filed a habeas corpus petition challenging the denial of his parole eligibility.

In 2012, Mohammad was convicted of nine counts of second-degree robbery, which are violent felonies, and six counts of receiving stolen property, which are considered nonviolent.

He argued because he was convicted of both violent and nonviolent felonies, under the wording of the provision, he was eligible for consideration for parole because he had completed the term of his primary crime, a nonviolent felony.

The Supreme Court justices, joined by Justice Herbert I. Levy of 5th District Court of Appeal, found that, "Because petitioner has not contested the department's determination that he is currently serving a term for a violent felony, and because we have determined that the regulation excluding from early parole consideration inmates who are currently serving a term for a violent felony is a valid exercise of the Department's rule-making authority ..., we conclude the Department's denial of petitioner's request for early parole consideration was permissible."

Mohammad's counsel, Heather J. MacKay of Oakland, said she was disappointed with the ruling. "The court left unanswered some questions about Mr. Mohammad and people with mixed offenses," particularly "whether or not they may be eligible for parole at some point during their sentences."

MacKay said she plans to file a new habeas corpus petition with these questions in mind.

Justice Goodwin Liu, in a concurring opinion signed by Justice Leondra R. Kruger, focused on these unanswered questions.

"Consider, for example, an inmate serving a consecutive sentence for a robbery offense with a six-year term and a receiving stolen property offense with a three-year term. The robbery offense is the 'primary offense' because it carries 'the longest term of imprisonment imposed by the court for any offense,' Liu wrote. "Once the inmate has completed the six-year term for his primary offense of robbery, is he then ... currently serving a term for the nonviolent offense of receiving stolen property and thus eligible for early parole...?"

Or is the department allowed "to treat him as currently serving a term for the violent offense throughout the entire nine-year aggregate sentence and find him ineligible for early parole consideration on that basis?" Liu wrote. "These issues await resolution in future cases."