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Name: In re Hicks (2023) 97 Cal.App.5th 348
Case #: B319925
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 11/17/2023

Proposition 57 does not require early parole consideration for inmates convicted of both violent and nonviolent felonies, even where the primary offense is a nonviolent felony. Hicks is currently serving a sentence on two counts of burglary and one count of robbery. He is considered a “mixed-offense” inmate because he is convicted of both a nonviolent and violent felony. He sought early parole consideration under section 32(a)(1) of the California Constitution, asserting he should be eligible because his primary offense (burglary) is a nonviolent felony. After the Court of Appeal denied relief, the California Supreme Court issued an order to show cause. Held: Petition denied. Proposition 57 amended the California Constitution to provide that 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. (Cal. Const., art. I, § 32, subd. (a)(1).) Thereafter, CDCR promulgated regulations providing that inmates “currently serving a term of incarceration” for a violent felony should be excluded from early parole consideration. The court upheld this regulation in In re Mohammad (2022) 12 Cal.5th 518, but the decision left open the question of whether a mixed-offense inmate who is not currently serving a sentence for a violent felony is entitled to parole consideration under section 32(a)(1). Effective February 28, 2022, CDCR promulgated regulations explicitly excluding mixed offense inmates such as petitioner from early parole consideration, by making a conviction for a violent felony a disqualifying factor for early parole eligibility. (Cal. Code Regs., tit. 15, § 3490, subd. (a)(5).) The Court of Appeal considered Proposition 57’s ballot materials, which showed the voters intended to authorize early parole consideration for nonviolent offenders while ensuring that inmates convicted of violent felonies do not receive such consideration. Given this intent, CDCR’s 2022 regulation is consistent with and constitutes a reasonable interpretation of the constitutional language and ballot materials. CDCR did not abuse its rulemaking authority in adopting this regulation. Thus, in light of his violent felony conviction, petitioner does not qualify for early parole consideration.