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Name: In re Koenig (2023) 97 Cal.App.5th 558
Case #: C098893
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/28/2023

Inmate convicted of both violent and nonviolent offenses is not entitled to early parole consideration under Proposition 57 because he is serving a term for the violent felonies throughout his aggregate term. In 2013, Koenig was sentenced to an aggregate prison term that included both nonviolent and violent offenses. After CDCR refused Koenig’s requests for a referral to the Parole Board for early parole consideration, he eventually filed a habeas petition in the Court of Appeal arguing that he is entitled to early parole consideration under Proposition 57 because he completed his full term of five years for his primary offense (a nonviolent felony), and the terms of his violent offenses, and “is currently serving the balance of his nonviolent consecutive and enhancement terms of his imprisonment.” Held: Petition denied. The Court of Appeal first determined that Koenig is not a nonviolent offender under the relevant CDCR regulations and case law, so he is excluded from early parole consideration under Proposition 57. “Prior to Proposition 57, it was settled that an inmate is currently serving a prison term for a violent felony if it is part of the inmate’s aggregate sentence.” The Court of Appeal also analyzed In re Mohammad (2022) 12 Cal.5th 518 and concluded that the applicable CDCR regulations are permissible. Proposition 57 does not expressly address who should be considered convicted of a nonviolent offense and the CDCR regulations explain how to treat “mixed-offense” inmates in a way that is consistent with the voter’s intent and previously established law. The court also addressed Justice Liu’s concurring opinion in Mohammad, which noted a tension between CDCR’s view and Proposition 57’s definition of “primary offense.” [Editor’s Note: Another Court of Appeal also reached this conclusion recently in In re Hicks (2023) 97 Cal.App.5th 348.]