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Name: In re Guice
Case #: H047989
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 07/21/2021

Proposition 57 does not require nonviolent early parole consideration for mixed-offense inmates who are currently convicted of both nonviolent and violent felony offenses and are currently serving a term for a violent felony offense. Petitioner Guice is an inmate serving a sentence for multiple counts related to possession of controlled substances and robbery. Guice argued he is entitled to early parole consideration under Proposition 57 because his primary offense is nonviolent. In 2018, CDCR denied Guice’s request for nonviolent parole consideration because he did not qualify as a nonviolent offender under California Code of Regulations, title 15, section 3490 based on his consecutive sentence for robbery, a violent felony offense. Guice sought habeas relief. Held: Petition denied. Proposition 57 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 consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1).) Meanwhile, CDCR regulations adopted in furtherance of section 32 exclude from relief any inmate who is currently serving a term for a violent felony. (Cal. Code Regs, tit. 15, § 3490, subd. (a)(5).) Section 32 does not define the phrase “convicted of a nonviolent felony offense,” and is ambiguous as applied to mixed-offense inmates like Guice. (Cf. In re Mohammad (2019) 42 Cal.App.5th 719, review granted 2/19/2020 (S259999/B295152).). In light of the ambiguity, and to determine the purpose of Proposition 57, the court considered the ballot materials, which spoke solely of extending early parole consideration to people convicted of nonviolent felonies and enhancing public safety. The initiative did not contemplate that inmates currently serving a term for a violent felony offense would be eligible for nonviolent parole consideration. Therefore, CDCR’s regulations excluding mixed-offense inmates from nonviolent parole consideration are “a reasonable interpretation” of section 32. [Editor’s Note: Presiding Justice Greenwood dissented, and would have followed In re Mohammad, finding that the plain meaning of “any person convicted of a nonviolent felony” is not ambiguous, and mixed-offense inmates who have served the full term of their primary offense are entitled to parole consideration.]