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Name: In re Ontiveros
Case #: D077905
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 06/21/2021

An inmate is not entitled to early parole consideration under Proposition 57 if he was convicted of both violent and nonviolent felonies. In 2017, Ontiveros was convicted of multiple felonies, including assault with a deadly weapon with gang enhancements and robbery, both of which are violent felonies. Ontiveros requested early parole consideration under Proposition 57, which provides 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. CDCR denied his request. The trial court denied Ontiveros’ petition for writ of habeas corpus, reasoning that because one of his convictions was for a violent felony, he was ineligible for early parole consideration. Ontiveros then petitioned for habeas relief in the Court of Appeal. Held: Petition denied. An inmate is eligible for early nonviolent offender parole under Proposition 57 as long as any one of the inmate’s current convictions is for a nonviolent offense, even if he was convicted of other violent offenses. (In re Mohammad (2019) 42 Cal.App.5th 719, review granted 2/19/2020 (S259999/B295152).) The Attorney General argued that Mohammad’s interpretation of Proposition 57 is inconsistent with the intent of the voters and leads to an absurd result, citing two recent opinions disagreeing with Mohammad—In re Viehmeyer (2021) 62 Cal.App.5th 973 and In re Douglas (2021) 62 Cal.App.5th 726. This court joined Viehmeyer and Douglas in disagreeing with Mohammad’s conclusion that an inmate serving a determinate sentence for both violent and nonviolent convictions is entitled to early parole consideration. Such application would lead to the absurd result that an inmate convicted of a violent offense and several nonviolent offenses would be entitled to earlier parole consideration than an inmate convicted of only the violent offense. A policy that rewards inmates for additional convictions is plainly unreasonable.