Filed 11/26/19
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION FIVE




In re MOHAMMAD MOHAMMAD                  B295152

           on                            (Los Angeles County
                                         Super. Ct. No.
           Habeas Corpus.                BH011959)




      ORIGINAL PROCEEDINGS in habeas corpus. Superior
Court of Los Angeles County, William C. Ryan, Judge. Petition
granted.
      Michael Satris, under appointment by the Court of Appeal,
for Petitioner.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Phillip J. Lindsay, Senior Assistant
Attorney General, Amanda J. Murray, Supervising Deputy
Attorney General, and Charles Chung, Deputy Attorney General,
for Respondent.
      In this proceeding challenging an aspect of regulations
promulgated to implement the Public Safety and Rehabilitation
Act of 2016 (Proposition 57), we give effect to the oft-repeated
maxim that the best and most reliable indicator of the intended
purpose of a law is its text. (National Federation of Independent
Business v. Sebelius (2012) 567 U.S. 519, 544; West Virginia
University Hospitals, Inc. v. Casey (1991) 499 U.S. 83, 98;
California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th
924, 933 [the enacted text is typically the best and most reliable
indicator of the intended purpose of constitutional provisions and
statutes, including those adopted via voter initiative] (California
Cannabis).)

                         I. BACKGROUND
      On January 20, 2012, petitioner Mohammad Mohammad
pled no contest to nine counts of second degree robbery (Pen.
Code, § 211), which are violent felonies under Penal Code section
667.5, subdivision (c),1 and six counts of receiving stolen property
(Pen. Code, § 496, subd. (a)), which are nonviolent felonies under
the same statutory definition. The trial court designated one of
the receiving stolen property counts of conviction (count 11) as
Mohammad’s principal sentencing term, and ordered the
sentences imposed for the remaining convictions to run



1
      “Penal Code section 667.5, subdivision (c) defines 23
criminal violations, or categories of crimes, as violent felonies—
including murder, voluntary manslaughter, any robbery,
kidnapping, various specified sex crimes, and other offenses.” (In
re Edwards (2018) 26 Cal.App.5th 1181, 1188, fn. 3 (Edwards).)




                                 2
consecutively as subordinate terms. Mohammad’s aggregate
sentence was 29 years in prison.
        Four years later, on November 8, 2016, California voters
approved Proposition 57. The proposition added section 32,
subdivision (a) to Article I of California’s Constitution (hereafter
“section 32(a)”), and it reads: “Any person convicted of a
nonviolent felony offense and sentenced to state prison shall be
eligible for parole consideration after completing the full term of
his or her primary offense.” (§ 32(a)(1).) The newly enacted
constitutional provision further states “the full term for the
primary offense means 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).) Proposition 57 directed the Department of
Corrections and Rehabilitation (CDCR) to adopt regulations “in
furtherance of these provisions” and to “certify that these
regulations protect and enhance public safety.” (Cal. Const., art.
I, § 32, subd. (b).)
        After CDCR encountered problems with an initial set of
implementing regulations it promulgated (see generally
Edwards, supra, 26 Cal.App.5th 1181), CDCR promulgated new
regulations effective in 2019. When defining those inmates who
will be eligible for early parole consideration, CDCR’s rulemaking
took a different approach than the constitutional provision—
focusing less on the nature of an offense committed by a person
(i.e., “a nonviolent felony offense”) and more on the person who
commits one or more crimes.
        Specifically, for determinately sentenced inmates like
Mohammad, CDCR’s regulations adopt a definition of “nonviolent
offender” (emphasis ours) to circumscribe eligibility: “A




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nonviolent offender, as defined in subsections 3490(a) and
3490(b), shall be eligible for parole consideration by the Board of
Parole Hearings under [the early parole consideration
regulations at California Code of Regulations, title 15, sections
2449.1 et seq.].” (Cal. Code Regs., tit. 15, § 3491.) Subsection
3490(a), in turn, describes a “‘determinately-sentenced nonviolent
offender’” by exclusion, not inclusion: “An inmate is a
‘determinately-sentenced nonviolent offender’ if none of the
following are true: [¶] (1) The inmate is condemned to death; [¶]
(2) The inmate is currently incarcerated for a term of life without
the possibility of parole; [¶] (3) The inmate is currently
incarcerated for a term of life with the possibility of parole; [¶] (4)
The inmate is currently serving a determinate term prior to
beginning a term of life with the possibility of parole; [¶] (5) The
inmate is currently serving a term of incarceration for a ‘violent
felony’; or [¶] (6) The inmate is currently serving a term of
incarceration for a nonviolent felony offense after completing a
concurrent determinate term for a ‘violent felony.’” (Cal. Code
Regs., tit. 15, § 3490, subd. (a); see also Cal. Code Regs., tit. 15,
§ 3490, subd. (c) [“‘Violent felony’ is a crime or enhancement as
defined in subdivision (c) of section 667.5 of the Penal Code”].)
The fifth criterion, excluding from the nonviolent offender
definition inmates who are currently serving a term of
imprisonment for a violent felony, appears to be the operative
criterion in this proceeding.2


2
      Subsection (a)(5) of California Code of Regulations, title 15,
section 3490—with its use of the word “currently”—can be read to
indicate it was necessary to analyze the particular component of
Mohammad’s aggregate sentence that he was then serving to
determine his eligibility for parole consideration. It is unclear




                                  4
       In December 2017, Mohammad requested an early parole
hearing pursuant to Proposition 57, arguing he had completed
the three-year term of his nonviolent primary offense (receiving
stolen property). CDCR denied the request, relying on a 1996
Court of Appeal decision interpreting a sentencing credit
calculation statute to conclude Mohammad should be deemed
ineligible for Proposition 57 relief because he was a “violent
offender and thereby ineligible for the non-violent parole
process.” (See generally People v. Ramos (1996) 50 Cal.App.4th
810, 817 [“[B]y its terms, [Penal Code] section 2933.1 applies to
the offender not to the offense and so limits a violent felon’s
conduct credits irrespective of whether or not all his or her
offenses come within section 667.5”].) Mohammad pursued his
claim for early parole consideration through all levels of CDCR
administrative review, and CDCR’s position never wavered. As
CDCR’s third-level appeal decision interpreted the department’s
own regulations, “one of [Mohammad’s] non-controlling cases is
Second Degree Robbery and this offense makes all of his offenses
to be considered violent during this term.”
       After unsuccessfully seeking habeas corpus relief in the
superior court, Mohammad filed a petition for writ of habeas
corpus here. We appointed counsel for Mohammad and issued an
order to show cause.

whether CDCR undertook such an analysis when declaring him
ineligible for early parole consideration, but as we go on to
explain, CDCR did determine Mohammad is ineligible for
Proposition 57 relief and the Attorney General defends that
decision under the aforementioned subsection (a)(5). We shall
proceed on the understanding that CDCR’s denial of early parole
consideration to Mohammad rested on its determination that he
was currently serving a term of incarceration for a violent felony.




                                 5
                          II. DISCUSSION
        The issue we decide is whether CDCR’s implementing
regulations that condition eligibility for early parole
consideration on status as a “nonviolent offender” are consistent
with the constitutional provision that authorizes their
promulgation. As we shall explain, they are not. Section 32(a)
grants eligibility for early parole consideration to “[a]ny person
convicted of a nonviolent felony offense . . . after completing the
full term of his or her primary offense,” and the use of the
singular “a” in a sentence that expressly contemplates criminals
would be sent to prison for more than one offense means any
nonviolent felony offense component of a sentence will suffice.
Mohammad was convicted of a nonviolent offense, among others,
and he has completed the full term of his primary offense. That
means he is now entitled to early parole consideration
notwithstanding CDCR’s regulatory exclusion to the contrary—
which we shall invalidate. But that does not mean he is entitled
to parole. The only certain consequence of our decision is that the
Board of Parole Hearings will be busier; they must evaluate the
parole worthiness of a category of inmates that CDCR’s
regulations incorrectly bar from getting before the parole board
at all.

       A.     Controlling Legal Principles
       “‘In order for a regulation to be valid, it must be (1)
consistent with and not in conflict with the enabling statute and
(2) reasonably necessary to effectuate the purpose of the statute.
(Gov. Code, § 11342.2.)’ (Physicians & Surgeons Laboratories,




                                 6
Inc. v. Department of Health Services (1992) 6 Cal.App.4th 968,
982[ ]; see Henning v. Division of Occupational Saf. & Health
(1990) 219 Cal.App.3d 747, 757[ ] (Henning).) Therefore, ‘the
rulemaking authority of the agency is circumscribed by the
substantive provisions of the law governing the agency.’
(Henning, supra, at p. 757.) ‘“The task of the reviewing court in
such a case is to decide whether the [agency] reasonably
interpreted [its] legislative mandate. . . . 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. . . . [T]here is no agency discretion to promulgate a
regulation which is inconsistent with the governing
statute. . . . Whatever the force of administrative
construction . . . final responsibility for the interpretation of the
law rests with the courts. . . . Administrative regulations that
alter or amend the statute or enlarge or impair its scope are
void . . . .” [Citation.]’ (Id. at pp. 757-758.)” (Edwards, supra, 26
Cal.App.5th at p. 1189.)
       “When construing constitutional provisions and statutes,
including those enacted through voter initiative, ‘[o]ur primary
concern is giving effect to the intended purpose of the provisions
at issue. [Citation.] In doing so, we first analyze provisions’ text
in their relevant context, which is typically the best and most
reliable indicator of purpose. [Citations.] We start by ascribing
to words their ordinary meaning, while taking account of related
provisions and the structure of the relevant statutory and
constitutional scheme. [Citations.] If the provisions’ intended
purpose nonetheless remains opaque, we may consider extrinsic
sources, such as an initiative’s ballot materials. [Citation.]




                                  7
Moreover, when construing initiatives, we generally presume
electors are aware of existing law. [Citation.] Finally, we apply
independent judgment when construing constitutional and
statutory provisions. [Citation.]’ (California Cannabis[, supra, ]3
Cal.5th [at pp.] 933-934.)” (Edwards, supra, 26 Cal.App.5th at p.
1189.)

      B.     CDCR’s Regulations, Which Focus on the Offender
             and Not the Offense, Are Inconsistent with the
             Constitution’s Text
       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.
       Section 32(a)(1)(A) also defines the “full term for the
primary offense” to mean “the longest term of imprisonment
imposed by the court for any offense, excluding the imposition of
an enhancement, [a] consecutive sentence, or [an] alternative
sentence.” (Emphasis ours.) Nothing in the Constitution’s text
suggests a “consecutive sentence” is disqualifying if it is a
consecutive term for a violent felony. This further reinforces our
conclusion that the text the voters approved when passing
Proposition 57 is in no way ambiguous: under sections 32(a)(1)
and 32(a)(1)(A), an inmate who is serving an aggregate sentence




                                 8
for more than one conviction will be eligible for an early parole
hearing if one of those convictions was for “a” nonviolent felony
offense.
      Mohammad was convicted of a nonviolent felony offense,
receiving stolen property. There is no dispute that his primary
offense as the Constitution defines it (“the longest term of
imprisonment imposed by the court for any offense”) is the
principal term prison sentence he received for the count 11
receiving stolen property conviction. Nor is there any dispute
that the “full term” in prison for that conviction, “excluding the
imposition of an enhancement, consecutive sentence, or
alternative sentence” was three years. Therefore, under the plain
meaning of section 32(a)(1), Mohammad is eligible for early
parole consideration now that he has served three years in
prison.
      CDCR’s regulations dictate a different result, but only by
impermissibly defining and limiting the universe of eligible
inmates to “nonviolent offenders”—a term that does not appear
anywhere in section 32(a)(1). The leap taken by CDCR from “a
nonviolent felony offense” to a “nonviolent offender” is
unjustifiable and inconsistent with the constitutional text.
Indeed, the only justification CDCR gave Mohammad for denying
relief—reliance on the inapposite People v. Ramos, supra, 50
Cal.App.4th 810 opinion—is telling. It suggests CDCR’s
regulatory approach is founded on a misinformed offender-based
premise.
      Section 32(a)(1) extends early parole consideration to
persons “convicted of a nonviolent felony offense.” 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




                                9
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 those offenses was
a nonviolent offense. The regulations CDCR promulgated are at
war with that textual conclusion and therefore cannot stand.
       In arguing the contrary in this proceeding, CDCR largely
(and wisely) abandons the People v. Ramos rationale it relied on
when denying Mohammad administrative relief and instead
urges us to consider voter intent as purportedly reflected in the
Proposition 57 summary and arguments included in the official
ballot pamphlet. We decline. There is nothing ambiguous about
what section 32(a)(1) means in this case, and there is accordingly
no cause to look beyond the text to ballot materials or other
extrinsic evidence of the voters’ intent. (Silicon Valley Taxpayers’
Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44
Cal.4th 431, 444-445.)
       We do acknowledge, however, that the argument for
reaching a different result has some intuitive appeal. 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. But we look for evidence of the
voters’ intent, not intuition, and as our Supreme Court has said
repeatedly, the best evidence we have is the text the voters put in
the Constitution. (De La Torre v. CashCall, Inc. (2018) 5 Cal.5th
966, 981; California Cannabis, supra, 3 Cal.5th at p. 933;




                                10
Professional Engineers in California Government v. Kempton
(2007) 40 Cal.4th 1016, 1037 [“‘Absent ambiguity, we presume
that the voters intend the meaning apparent on the face of an
initiative measure [citation] and the court may not add to the
statute or rewrite it to conform to an assumed intent that is not
apparent in its language’”]; see also People v. Valencia (2017) 3
Cal.5th 347, 379 (conc. opn. of Kruger, J.) [“California cases have
established a set of standard rules for the construction of voter
initiatives. ‘We interpret voter initiatives using the same
principles that govern construction of legislative enactments.
[Citation.] Thus, we begin with the text as the first and best
indicator of intent’”].) The Constitution’s text compels the result
we reach, and we are not prepared to declare that result so
absurd (see, e.g., Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th
627, 638) as to disregard the Constitution’s plain meaning—and,
indeed, the Attorney General does not ask us to.
       It is also true that our rationale bespeaks a certain self-
aware naivete about what most voters do and do not read before
going into the voting booth. But that is a necessary ingredient of
the initiative mechanism our Constitution permits. If courts are
to have a sound, predictable means of adjudicating interpretive
questions concerning popularly enacted laws (or any laws for that
matter); and if government agencies and Californians are to have
a reliable means of discerning their legal rights and obligations;
privileging focus-group-tested ballot arguments, incomplete
legislative analyses, or intuited voter intentions over clear
textual provisions is not the answer. Indeed, that would invite
confusion and manipulation of the initiative process. If voters
want a different result, the ballot box is open every two years to
change what the Constitution now says.




                                11
       In the meantime, it bears emphasizing that Mohammad’s
case is an unusual one. The court at Mohammad’s sentencing
designated one of the receiving stolen property convictions—i.e.,
one of the nonviolent felonies—as the principal term of
Mohammad’s sentence. Often, however, an inmate convicted of
both violent and nonviolent felonies will have the most serious of
his or her violent felonies set as the principal term. Thus, the
situation we confront in this case when an inmate becomes
eligible for early parole consideration before serving time for any
of his or her violent felony offenses will not frequently arise.3
       Furthermore, for those inmates who are eligible for early
parole consideration under section 32(a) as we read it today (and
as it must be read), the ultimate parole determination to be made
on the merits by the Board of Parole Hearings (Board) is not
limited in the way that the eligibility determination is. The
Board’s decision on whether an inmate should be granted parole
will take into account the inmate’s full criminal history—
nonviolent and violent offenses alike—when determining
whether the inmate poses a risk to public safety. (Pen. Code,
§ 3041, subd. (b); Cal. Code Regs., tit. 15, § 2449.4, subd. (b).) So
the bottom line consequence of our decision today is that more
inmates like Mohammad will receive individualized parole

3
       We also recognize it is possible prosecutors will exercise
their charging discretion in multiple offense cases in a way that
may affect early parole consideration eligibility. Prosecutorial
discretion is an established feature of our criminal justice system
(see, e.g., Davis v. Municipal Court (1988) 46 Cal.3d 64, 82), and
the manner in which prosecutors respond to the consequences of
the change in law worked by Proposition 57 is immaterial to the
issue we are asked to decide in this appeal.




                                 12
consideration earlier than they otherwise would have. If the
Board is convinced one of these inmates poses no unacceptable
risk to public safety, the Board can approve the inmate for
release; if instead there are violent aspects of an inmate’s history
that were not part of an early parole hearing eligibility
determination, the Board can take those into account and issue a
parole denial where it deems it prudent.




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                           DISPOSITION
      The petition for writ of habeas corpus is granted. CDCR is
directed to treat as void and repeal California Code of
Regulations, title 15, section 3490, subdivision (a)(5) and to
thereafter make further changes as necessary to ensure its
Proposition 57 implementing regulations are consistent with this
opinion. Mohammad shall be evaluated for early parole
consideration within 60 days of remittitur issuance.

               CERTIFIED FOR PUBLICATION




                      BAKER, Acting P. J.



We concur:




     MOOR, J.




     KIM, J.




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