In re Mohammad

IN THE SUPREME COURT OF

CALIFORNIA

In re MOHAMMAD MOHAMMAD

on Habeas Corpus.

S259999

Second Appellate District, Division Five

B295152

Los Angeles County Superior Court

BH011959

January 3, 2022

Chief Justice Cantil-Sakauye authored the opinion of the

Court, in which Justices Corrigan, Liu, Kruger, Groban,

Jenkins, and Levy* concurred.

Justice Liu filed a concurring opinion in which Justice Kruger

concurred.

__________________________

*

Associate Justice of the Court of Appeal, Fifth Appellate

District, assigned by the Chief Justice pursuant to article VI,

section 6 of the California Constitution.

In re MOHAMMAD

S259999

Opinion of the Court by Cantil-Sakauye, C. J.

This case asks whether Proposition 57, The Public Safety

and Rehabilitation Act of 2016, requires California’s

Department of Corrections and Rehabilitation (the Department)

to provide early parole consideration to individuals currently

serving a term of incarceration for a violent felony.

Petitioner Mohammad Mohammad was incarcerated after

having been convicted of nine violent felony counts and six

nonviolent felony counts. The trial court ordered all terms to be

served consecutively. After petitioner’s conviction, the

electorate approved Proposition 57 in November 2016, which

added section 32 to article I of the California Constitution to

provide, in relevant part, 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).)1 The ballot initiative also directed the Department to

“adopt regulations in furtherance of these provisions” and

instructed the Secretary of the Department to “certify that these

1

Article I, subdivisions 32(a), 32(a)(1), 32(a)(1)(A), and

32(b) of the California Constitution are referred to in this

opinion as “article I, section 32(a),” “article I, section 32(a)(1),”

“article I, section 32(a)(1)(A),” and “article I, section 32(b).”

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

regulations protect and enhance public safety.” (Art. I, § 32,

subd. (b).)

The Department subsequently adopted regulations

implementing early parole consideration under article I, section

32.2 Those regulations exclude from nonviolent offender early

parole consideration any inmate who “is currently serving a

term of incarceration for a ‘violent felony[.]’ ” (Cal. Code Regs.,

tit. 15, § 3490, subd. (a)(5).)3 The regulations state that a

“ ‘[v]iolent felony’ is a crime or enhancement as defined in

subdivision (c) of Section 667.5 of the Penal Code.” (Id., § 3490,

subd. (c).)

Consistent with those regulations, the Department

determined petitioner was ineligible for nonviolent offender

early parole consideration because he was serving a term of

incarceration for a violent felony. Petitioner challenged that

determination, and the Court of Appeal granted relief, holding

that the language of article I, section 32(a) requires early parole

consideration for any inmate convicted of a nonviolent felony

even when that inmate was also convicted of a violent felony.

(In re Mohammad (2019) 42 Cal.App.5th 719, 727

(Mohammad).)

2

The Department refers to early parole consideration under

article I, section 32 as “nonviolent offender parole review.”

(California Department of Corrections and Rehabilitation,

Nonviolent Offender Parole Review Process for Determinately-

Sentenced Inmates <https://www.cdcr.ca.gov/bph/nvopr-

overview/> [as of Dec. 28, 2021].) All internet citations in this

opinion are archived by year, docket number, and case name at

<http://courts.ca.gov/38324.htm>.

3

Further undesignated references to the California Code of

Regulations are to title 15 unless otherwise noted.

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Opinion of the Court by Cantil-Sakauye, C. J.

We granted review to decide the validity of the

Department’s regulation prohibiting early parole consideration

under the Proposition 57 scheme for inmates “currently serving

a term of incarceration for a ‘violent felony.’ ” (Cal. Code Regs.,

§ 3490, subd. (a)(5).) While the matter was pending in this

court, four other appellate courts disagreed with Mohammad

and concluded the Department’s regulations properly excluded

from early parole consideration inmates currently serving a

term of incarceration for a violent felony offense.4

We conclude that the Department acted within the

authority provided by article I, section 32(b) when it adopted the

regulation at issue here. In reaching this conclusion, we find

the constitutional text is ambiguous concerning the application

of article I, section 32(a) to an inmate like petitioner who is

currently serving a term of incarceration for a violent felony

offense. Considering the text together with the materials

presented to the voters, we hold that the Department’s approach

is reasonably necessary to effectuate the purpose of

Proposition 57. We therefore agree with the majority of the

appellate courts, and reverse the decision of the Court of Appeal

below.

4

We granted review in each of those four matters and

deferred further action pending consideration and disposition of

the issue before us in this case. (In re Guice (2021)

66 Cal.App.5th 933, 937, review granted Sept. 29, 2021,

S270524; In re Ontiveros (2021) 65 Cal.App.5th 899, 902–903,

review granted Aug. 25, 2021, S269832; In re Viehmeyer (2021)

62 Cal.App.5th 973, 984–985, review granted June 30, 2021,

S268660; In re Douglas (2021) 62 Cal.App.5th 726, 729, review

granted June 16, 2021, S268570.)

3

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

I. FACTS AND PROCEDURAL HISTORY

A. The Underlying Conviction

In 2012, petitioner pleaded no contest to nine counts of

second degree robbery (Pen. Code, § 211) and six counts of

receiving stolen property (id., § 496, subd. (a)). The trial court

designated one count of receiving stolen property to be the

principal term and ordered the remaining counts to run

consecutively. Petitioner was sentenced to 29 years in prison —

three years for the principal term of receiving stolen property,

eight months for each of the other counts of receiving stolen

property, one year for each of the nine counts of robbery, and a

total of 13 years eight months for gang enhancements attached

to six counts (id., § 186.22, subds. (b)(1)(A), (b)(1)(C)).5

Petitioner did not appeal.

B. The Petition for Writ of Habeas Corpus and the

Court of Appeal Opinion

The electorate approved Proposition 57 in 2016.

Petitioner subsequently filed a request with the Department

asking for early parole consideration. He asserted that

Proposition 57 requires early parole consideration for inmates

who have completed the full term for a primary offense when

that offense is nonviolent. He noted that the trial court in his

case designated as the principal term one count of receiving

stolen property, and that receiving stolen property is not defined

as a violent felony under Penal Code section 667.5, subdivision

(c). The Department denied petitioner’s request. Petitioner

5

The principal term is “the greatest term of imprisonment

imposed by the court for any of the crimes, including any term

imposed for applicable specific enhancements.” (Pen. Code,

§ 1170.1, subd. (a).)

4

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

filed a petition for a writ of habeas corpus in the Los Angeles

County Superior Court. The superior court denied the petition

in November 2018, agreeing with the Department.

In January 2019, petitioner sought habeas corpus relief in

the Court of Appeal. That court ultimately held in a published

opinion that the Department’s regulations improperly excluded

petitioner from early parole consideration. (Mohammad, supra,

42 Cal.App.5th at p. 729.) The court focused on the language of

the constitutional provision establishing parole consideration

for “ ‘[a]ny person convicted of a nonviolent felony offense’ upon

completion of ‘the full term of his or her primary offense.’ ”

(Id. at p. 726, quoting art. I, § 32(a)(1).) This language, the court

held, contains the sole requirement for early parole

consideration under Proposition 57 — conviction of a nonviolent

felony. (Mohammad, supra, 42 Cal.App.5th at p. 726.) Early

parole consideration is therefore required, according to the

Court of Appeal, “so long as [the inmate] commits ‘a’ single

nonviolent felony offense — even if that offense is not his or her

only offense.” (Ibid.)

In support of its conclusion, the court pointed to the

constitutional language defining the “ ‘full term for the primary

offense’ as ‘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.’ ” (Mohammad, supra, 42 Cal.App.5th at p. 726,

quoting art. I, § 32(a)(1)(A).) Under this provision, the court

asserted, “an inmate who is ‘convicted of a nonviolent felony

offense’ not only remains eligible if he or she is sentenced to a

consecutive sentence, but in fact, becomes eligible for an early

parole hearing prior to serving that consecutive sentence.”

5

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

(Mohammad, supra, 42 Cal.App.5th at p. 727, quoting art. I,

§ 32(a)(1).)

The court rejected the Department’s regulations as

incompatible with the language of article I, section 32(a)(1).

(Mohammad, supra, 42 Cal.App.5th at pp. 726–727.) The court

noted that those 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 [article I,] section 32(a)(1).” (Id. at p. 726, quoting

Cal. Code Regs., § 3491.) The court declined to consider the

ballot materials presented to the voters, determining that

review of extrinsic sources was unnecessary because the

language of the constitutional provision itself was unambiguous.

(Mohammad, supra, 42 Cal.App.5th at p. 727, citing Silicon

Valley Taxpayers’ Assn., Inc. v. Santa Clara County Open Space

Authority (2008) 44 Cal.4th 431, 444–445.)

The Court of Appeal acknowledged that the Department’s

argument “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.” (Mohammad, supra,

42 Cal.App.5th at p. 727.) But this “intuitive appeal” is

overcome and that interpretation foreclosed, the court

determined, by the language of the provision. (Id. at pp. 727–

728.)

The court also noted that petitioner’s case “is an unusual

one” in that the trial court designated a nonviolent felony as

petitioner’s principal term, while “[o]ften” an individual’s most

6

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

serious violent felony is deemed the principal term.

(Mohammad, supra, 42 Cal.App.5th at p. 728.) The court

suggested that these facts — “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.”

(Ibid., fn. omitted.)

We granted the Attorney General’s petition for review.

After the filing of our opinion in In re Gadlin (2020) 10 Cal.5th

915 (Gadlin), we granted petitioner’s motion to file

supplemental briefing to address Gadlin as well as Proposition

20, a ballot initiative that was rejected by the voters in

November 2020.

II. DISCUSSION

A. Proposition 57

We recently described the history of Proposition 57 in

Gadlin. We noted there that the California Legislature and the

electorate have taken steps to decrease the California prison

population, including the electorate’s approval of Proposition 57

in November 2016. (Gadlin, supra, 10 Cal.5th at pp. 922–923,

citing Cal. Sect. of State, Statement of Vote Summary Pages

(2016) p. 12 <https://elections.cdn.sos.ca.gov/sov/2016-

general/sov/06-sov-summary.pdf> [as of Dec. 28, 2021].) The

initiative, in relevant part, added section 32 to article I of the

California Constitution, which provides: “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 or her primary offense.” (Art. I, § 32(a)(1).) Article I,

section 32 further specifies that “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

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

enhancement, consecutive sentence, or alternative sentence”

(id., subd. (a)(1)(A)),6 directs the Department to “adopt

regulations in furtherance of these provisions” (id., § 32(b)), and

instructs the Secretary of the Department to “certify that these

regulations protect and enhance public safety” (ibid.).

We described the purposes of the constitutional provision

in Gadlin: “ ‘[T]o enhance public safety, improve rehabilitation,

and avoid the release of prisoners by federal court order,

notwithstanding anything in this article or any other provision

of law.’ ” (Gadlin, supra, 10 Cal.5th at p. 923, quoting art. I,

§ 32(a).) Uncodified portions of Proposition 57 further identify

the initiative’s purpose and intent, in relevant part, as follows:

“1. Protect and enhance public safety. [¶] 2. Save money by

reducing wasteful spending on prisons. [¶] 3. Prevent federal

courts from indiscriminately releasing prisoners. [¶] 4. Stop

the revolving door of crime by emphasizing rehabilitation,

especially for juveniles.” (Voter Information Guide, Gen. Elec.

(Nov. 8, 2016) text of Prop. 57, § 2, p. 141.) The initiative further

states that the “act shall be liberally construed to effectuate its

purposes.” (Id., § 9, p. 146.)

B. The Department’s Regulations

In March 2017, the Department proposed emergency

regulations to implement Proposition 57. As we described in

Gadlin, those emergency regulations were replaced by final

6

This definition of an individual’s “primary offense” for

purposes of early parole consideration renders the primary

offense distinct from an individual’s principal term. (See art. I,

§ 32(a)(1).) As noted above, the principal term is “the greatest

term of imprisonment imposed by the court for any of the crimes,

including any term imposed for applicable specific

enhancements.” (Pen. Code, § 1170.1, subd. (a).)

8

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

regulations in May 2018 and subsequently amended in response

to various appellate opinions. (Gadlin, supra, 10 Cal.5th at

pp. 924–925.) The regulations define a “determinately-

sentenced nonviolent offender” as an inmate who is not, among

other things, “currently serving a term of incarceration for a

‘violent felony.’ ” (Cal. Code Regs., § 3490, subd. (a)(5).)

Further, the regulations define a “violent felony” for purposes of

early parole consideration as “a crime or enhancement” listed in

Penal Code section 667.5, subdivision (c). (Id., § 3490, subd. (c).)

Other provisions of the regulations exclude from early

parole consideration individuals “currently serving a

determinate term prior to beginning a term of life with the

possibility of parole or prior to beginning a term for an in-prison

offense that is a ‘violent felony’ ” (Cal. Code Regs., § 3490, subd.

(a)(4)) and those “currently serving a term of incarceration for a

nonviolent felony offense after completing a concurrent

determinate term for a ‘violent felony’ ” (id., § 3490, subd. (a)(6)).

Additionally, the regulations detail the eligibility criteria for

both determinately-sentenced offenders (see id., §§ 3490–3491)

and indeterminately-sentenced offenders (see id., §§ 3495–

3496). Like the regulatory provision defining a “determinately-

sentenced nonviolent offender” (id., § 3490, subd. (a)), the

regulations define an “indeterminately-sentenced nonviolent

offender” as an inmate who is not, among other things,

“currently serving a term of life with the possibility of parole for

a ‘violent felony’ ” (id., § 3495, subd. (a)(3)). Because petitioner’s

exclusion from early parole consideration is governed solely by

section 3490, subdivision (a)(5) of the California Code of

Regulations, however, we decline to address in this case the

validity of any other portion of the regulations.

9

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

C. Standard of Review and Principles of Statutory

Interpretation

We apply well settled principles to determine the validity

of regulations promulgated by a state agency. As in Gadlin, we

acknowledge that although these precepts “have traditionally

been applied in the context of a state agency’s regulations

addressing statutes enacted by the Legislature (Gadlin, supra,

10 Cal.5th at p. 925, citing Morris v. Williams (1967) 67 Cal.2d

733, 748 (Morris)), the parties here do not assert that “the

relevant principles of interpretation differ when an agency has

promulgated regulations to give force to a constitutional

provision, rather than a statutory provision” (id. at p. 926).

In undertaking this analysis, we ask whether the

regulation is “ ‘consistent and not in conflict with’ ” the

constitutional provision that authorizes it (see Morris, supra,

67 Cal.2d at p. 748, italics omitted, quoting Gov. Code, former

§ 113747) and whether the regulation is reasonably necessary to

effectuate the purpose of the authorizing law (Morris, supra,

67 Cal.2d at p. 749; see also Gov. Code, § 11342.2 [“Whenever by

the express or implied terms of any statute a state agency has

authority to adopt regulations to implement, interpret, make

specific or otherwise carry out the provisions of the statute, no

regulation adopted is valid or effective unless consistent and not

in conflict with the statute and reasonably necessary to

effectuate the purpose of the statute”]; Woods v. Superior Court

(1981) 28 Cal.3d 668, 679 (Woods)). Our task “ ‘ “is to decide

whether the [agency] reasonably interpreted the legislative

mandate.” [Citation.] ’ ” (Woods, supra, 28 Cal.3d at p. 679,

7

Former section 11374 of the Government Code was

renumbered as section 11342.2. (Stats. 1979, ch. 567, §§ 1–2.)

10

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

quoting Credit Ins. Gen. Agents Assn. v. Payne (1976) 16 Cal.3d

651, 657.) In doing so, we presume the validity of the regulation

(Assn. of California Ins. Companies v. Jones (2017) 2 Cal.5th

376, 389); the burden lies with the party challenging the

regulation to show its invalidity (Payne, supra, 16 Cal.3d at

p. 657). Because this inquiry poses a question of law (see

Western States Petroleum Assn. v. Board of Equalization (2013)

57 Cal.4th 401, 415), we review the Court of Appeal’s decision

de novo. (See People v. Gonzales (2018) 6 Cal.5th 44, 49, citing

Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 135.)

Our “primary concern” in construing a constitutional

provision enacted through voter initiative is “giving effect to the

intended purpose of the provisions at issue” (California

Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 933)

by applying “the same principles that govern statutory

construction” (People v. Rizo (2000) 22 Cal.4th 681, 685, citing

Horwich v. Superior Court (1999) 21 Cal.4th 272, 276). In doing

so, we look to the text of the constitutional provision at issue

and, as appropriate, extrinsic sources such as an initiative’s

ballot materials. (See City of Upland, supra, 3 Cal.5th at

pp. 933–934.) Although we are obligated to strike down

regulations that alter or amend the constitutional provision or

its scope (Woods, supra, 28 Cal.3d at p. 679, citing Morris, supra,

67 Cal.2d at p. 748), our role is not to examine the wisdom of the

regulations but their legality (Woods, supra, 28 Cal.3d at p. 679,

quoting Morris, supra, 67 Cal.2d at p. 737). “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.” (Woods, supra, 28 Cal.3d at p. 679.)

11

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

D. The Language of Proposition 57

We begin our analysis with the language of the

constitutional provisions enacted by Proposition 57. Article I,

section 32(a)(1) states: “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 or her

primary offense.” Article I, section 32(a)(1)(A) defines the “full

term for the primary offense” as “the longest term of

imprisonment imposed by the court for any offense, excluding

the imposition of an enhancement, consecutive sentence, or

alternative sentence.” And article I, section 32(b) provides that

the Department shall “adopt regulations in furtherance of these

provisions.” The question here is whether these constitutional

provisions require the Department to provide early parole

consideration when the inmate is currently serving a term for a

violent felony.

As noted, the Court of Appeal below concluded that the

voters intended to extend early parole consideration to an

inmate convicted of “a” nonviolent felony, regardless of whether

that inmate was currently serving a term for a violent felony.

(Mohammad, supra, 42 Cal.App.5th at p. 725; see id. at pp. 725–

726.) The court declined to consider the ballot materials

presented to the voters, concluding “[t]here is nothing

ambiguous about what [article I,] section 32(a)(1) means in this

case . . . .” (Id. at p. 727.) The Department asserts, on the other

hand, that the constitutional provisions are ambiguous and

require consideration of the ballot materials to determine the

intent of the electorate.

We first examine whether the constitutional language is

ambiguous; if the text “is unambiguous and provides a clear

12

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Opinion of the Court by Cantil-Sakauye, C. J.

answer, we need go no further.” (Microsoft Corp. v. Franchise

Tax Bd. (2006) 39 Cal.4th 750, 758.) When a constitutional

provision is “ ‘clear and unambiguous’ ” it should be given its

ordinary meaning. (People v. Valencia (2017) 3 Cal.5th 347, 357,

quoting Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)

“The words of the statute must be construed in context, keeping

in mind the statutory purpose . . . .” (Dyna-Med, Inc. v. Fair

Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387

(Dyna-Med).) If the text is ambiguous, it is appropriate to

examine the ballot materials before the voters. (People v.

Valencia (2017) 3 Cal.5th 347, 364, citing Robert L. v. Superior

Court (2003) 30 Cal.4th 894, 905.)

Article I, section 32(a)(1) establishes early parole

consideration for “[a]ny person convicted of a nonviolent felony

offense . . . after completing the full term for his or her primary

offense.” This language does not expressly address whether

inmates with nonviolent felony convictions who are currently

serving a prison term for a violent felony are eligible for early

parole consideration. The parties and appellate courts have

offered various interpretations of this provision.

The Court of Appeal concluded the language is clear and

unambiguous: An inmate convicted of “a” nonviolent felony

would be eligible for early parole consideration after completing

the full term of the primary offense. (Mohammad, supra,

42 Cal.App.5th at p. 725; see id. at pp. 725–726.) The court

stated that the requirement that an inmate be convicted of “a”

nonviolent felony “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.” (Id. at p. 726.) The court also determined the

inclusion of the term “primary offense” in the constitutional

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

provision further indicates the electorate would have

understood that inmates “might be serving a sentence for more

than one offense, i.e., a primary offense and other secondary

offenses.” (Ibid.) Moreover, the court noted that the

constitutional definition of the “full term for the primary

offense” specifically references (and excludes) the imposition of

a consecutive sentence. (Ibid.)

Considered alone and outside of the context of the entire

initiative, the Court of Appeal’s interpretation is a plausible

reading of the language that is, on its face, consistent with

article I, section 32(a).8 But language that seems plain when

considered in isolation may be ambiguous when examined

within the context of the scheme it implements. (See, e.g., Small

v. United States (2005) 544 U.S. 385, 388 [finding phrase

“convicted in any court” to be ambiguous when determining

whether statute included a conviction in a foreign court], citing

Nixon v. Missouri Municipal League (2004) 541 U.S. 125, 132

[“ ‘any’ ” can mean “different things depending upon the

setting”]; People v. Woodhead (1987) 43 Cal.3d 1002, 1008

[noting the term “convicted” “may have different meanings in

8

Another Court of Appeal reached the same conclusion,

finding that the language of section 32(a)(1) “support[s] a

conclusion that an inmate is eligible for early parole

consideration after completing his or her primary offense if the

inmate was convicted of a nonviolent offense, even if the term

for that nonviolent offense was not designated as the primary

offense, and even if the inmate was also convicted of one or more

violent offenses . . . .” (In re Douglas, supra, 62 Cal.App.5th at

p. 731.) Ultimately, however, that appellate court concluded

that interpreting the initiative in such a manner would lead to

absurd results not intended by the electorate and thus declined

to do so. (Id. at pp. 732–734.)

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Opinion of the Court by Cantil-Sakauye, C. J.

different contexts, or even different meanings within a single

statute”].)

We have found similar language to be ambiguous. (In re

Reeves (2005) 35 Cal.4th 765 (Reeves).) In Reeves, we considered

a statute that provided “ ‘any person who is convicted of a

[violent] felony offense . . . shall accrue no more than 15 percent

of worktime credit . . . .’ ” (Id. at p. 768, fn. omitted, quoting

Pen. Code, § 2933.1, subd. (a).) The issue in Reeves was whether

an inmate convicted of both nonviolent and violent felonies was

subject to the 15 percent credit limit. (Id. at p. 770.) We noted

that the “seemingly plain language” of the statute was subject

to various possible interpretations based on the term “ ‘is

convicted.’ ” (Id. at p. 770; see id. at p. 771 [“ ‘any person who is

convicted of a [violent] felony offense’ [citation], might

conceivably refer simply to a point of historical fact”].) We

therefore determined that “the conclusion that [the statute] is

ambiguous, at least as applied to the facts of this case, seems

inescapable.” (Id. at pp. 770–771.)

The constitutional provision here contains language

nearly identical to the statutory language we considered in

Reeves. Article I, section 32(a) does not directly state whether

an inmate like petitioner — who has nonviolent felony

convictions but is currently serving a term of incarceration for a

violent felony — would be eligible for early parole consideration.

Like in Reeves, it “seems inescapable” that the language is

ambiguous as it applies to inmates like petitioner. (Reeves,

supra, 35 Cal.4th at pp. 770–771.)

Further, the appellate courts and the parties here advance

various interpretations of article I, section 32(a) that reflect

ambiguities in the constitutional language. Petitioner, for

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

example, asserts that inmates convicted of a nonviolent felony

as their primary offense are eligible for early parole

consideration “once they have served the full term for that

offense.” (Italics added.) In other words, under petitioner’s

view, early parole consideration is required when an inmate’s

primary offense is a nonviolent felony even if the inmate is

currently serving a term for a violent felony, but not when the

inmate’s primary offense is a violent felony and the inmate is

currently serving a term for a nonviolent felony.9

A concurring opinion in another appellate decision

provides a different approach: When an inmate has been

convicted of a violent felony offense that is deemed the primary

offense and also has been convicted of a nonviolent felony

offense, the inmate is eligible for nonviolent offender parole

consideration after serving the sentence for the violent felony.

(In re Douglas, supra, 62 Cal.App.5th at p. 735 (conc. opn. of

Robie, Acting P. J.).) The Department asserts the language

permits the exclusion of inmates who have nonviolent felony

9

Petitioner asserts this approach is consistent with the

approach adopted by the Court of Appeal below. We disagree.

Although the court’s discussion took place in the context of

evaluating petitioner’s eligibility for early parole consideration

(and petitioner’s primary offense was a nonviolent felony), no

language in the Court of Appeal’s opinion limited its holding to

inmates whose primary offense was a nonviolent felony. Indeed,

the Court of Appeal’s language was quite broad: “under

[article I, section 32(a) and article I, section 32(a)(1)(A)], an

inmate who is serving an aggregate sentence 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, supra, 42 Cal.App.5th at p. 726.)

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

convictions and are currently serving a term of incarceration for

a violent felony offense.

The language of article I, section 32(a) alone does not tell

us which of these interpretations is correct. That there are

several plausible interpretations of the constitutional language

indicates the meaning of the text is ambiguous. (See People v.

Gonzales (2018) 6 Cal.5th 44, 52 [considering ballot materials

when statutory language “could have several possible

interpretations”]; Arias v. Superior Court (2009) 46 Cal.4th 969,

979 [“there is no need to construe a provision’s words when they

are clear and unambiguous and thus not reasonably susceptible

of more than one meaning”], citing People v. Leal (2004)

33 Cal.4th 999, 1007, People v. Gardeley (1996) 14 Cal.4th 605,

621; see also In re Douglas, supra, 62 Cal.App.5th at p. 735

(conc. opn. of Robie, Acting P. J.) [“It is clear section 32(a)(1) is

ambiguous given the divergence of appellate opinions as to its

meaning”].)

Petitioner contends that our recent opinion in Gadlin

compels a contrary conclusion. But in Gadlin, we found the

language of article I, section 32(a)(1) to be unambiguous in other

respects. (Gadlin, supra, 10 Cal.5th at p. 935.) There, we were

asked to decide whether the Department could exclude from

early parole consideration all inmates convicted of a sex offense

requiring registration under Penal Code section 290, even when

the Department’s regulations defined some of those inmates as

nonviolent offenders. (Gadlin, supra, 10 Cal.5th at pp. 919–

920.) We held it could not in light of the language of article I,

section 32(a)(1), which provides that “[a]ny person convicted of

a nonviolent felony offense” shall be eligible for early parole

consideration. (Gadlin, supra, 10 Cal.5th at pp. 932–933.)

Indeed, in so holding, we stated that “article I, section 32(a)(1),

17

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

although containing some terms that might be ambiguous in

other respects, is not ambiguous concerning its scope regarding

offenders who were previously convicted of a registerable sex

offense or who are currently convicted of a registerable sex

offense that the Department has itself defined as nonviolent.”

(Gadlin, supra, 10 Cal.5th at p. 932, italics added.) Our holding

was thus limited to the specific question before us in that case,

and we acknowledged that the language of the constitutional

provision might be ambiguous in other respects. Thus, Gadlin

does not compel a conclusion that the constitutional provision is

unambiguous as it relates to the distinct question before us now.

We disapprove of the following opinions to the extent they have

held the language of article I, section 32(a) is unambiguous in

this context: In re Ontiveros (2021) 65 Cal.App.5th 899, 905

[“We accept, for purposes of our opinion, that the text of

Proposition 57 is clear and unambiguous”]; In re Douglas (2021)

62 Cal.App.5th 726, 731.

E. Consideration of the Ballot Materials

Because the constitutional text provides “ ‘no definitive

answer’ ” to the question before us (People v. Hazelton (1996)

14 Cal.4th 101, 105, quoting People v. Coronado (1995)

12 Cal.4th 145, 151), we consider the materials that were before

the voters. (People v. Valencia, supra, 3 Cal.5th at p. 364, citing

Robert L. v. Superior Court, supra, 30 Cal.4th at p. 905.)

1. The ballot materials presented to the voters

The voters were provided ballot materials that consisted

of the official title and summary prepared by the Attorney

18

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

General, the analysis by the Legislative Analyst, and the

arguments in favor of and against the proposition.10

The official title and summary described the relevant

provisions of Proposition 57 as follows: “Allows parole

consideration for persons convicted of nonviolent felonies, upon

completion of prison term for their primary offense as defined.

[¶] . . . [¶] Requires Department of Corrections and

Rehabilitation to adopt regulations to implement new parole

and sentence credit provisions and certify they enhance public

safety.” (Voter Information Guide, Gen. Elec., supra, Official

Title and Summary, p. 54.)

The analysis by the Legislative Analyst generally

summarized California’s then-existing sentencing and parole

consideration scheme, and described the changes to the parole

system that would result were Proposition 57 to be adopted. The

analysis described the proposed parole scheme as “parole

consideration for nonviolent offenders” and stated that the

initiative “changes the State Constitution to make individuals

who are convicted of ‘nonviolent felony’ offenses eligible for

parole consideration after serving the full prison term for their

primary offense.” (Voter Information Guide, Gen. Elec., supra,

analysis of Prop. 57 by Legis. Analyst, p. 56.) The analysis noted

that “[a]lthough the measure and current law do not specify

which felony crimes are defined as nonviolent, this analysis

assumes a nonviolent felony offense would include any felony

offense that is not specifically defined in statute as violent.”

10

The Arguments included an argument in favor of the

initiative by the proponents followed by a rebuttal by the

opponents, and an argument against the initiative by the

opponents followed by a rebuttal by the proponents.

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Opinion of the Court by Cantil-Sakauye, C. J.

(Ibid.) Based on that assumption, the analysis estimated that,

“[a]s of September 2015, there were about 30,000 individuals in

state prison who would be affected by the parole consideration

provisions of the measure.” (Ibid.) And the analysis estimated

that eligible inmates “currently serve about two years in prison

before being considered for parole and/or released” but under the

initiative “would serve around one and one-half years in prison

before being considered for parole and/or released.” (Ibid.)

Finally, the arguments in favor of and against the

initiative were presented to the voters. The proponents urged

that Proposition 57 would allow “parole consideration for people

with non-violent convictions who complete the full prison term

for their primary offense.” (Voter Information Guide, Gen. Elec.,

supra, argument in favor of Prop. 57, p. 58.) The proponents did

not address whether individuals with nonviolent felony

convictions who are currently serving a term of incarceration for

a violent felony would be eligible for early parole consideration.

The opponents’ rebuttal and argument against

Proposition 57 asserted that the initiative would allow parole

consideration for “VIOLENT CRIMINALS.” (Voter Information

Guide, Gen. Elec., supra, rebuttal to argument in favor of

Prop. 57, p. 58.) The opponents claimed the measure was

“poorly drafted” and would allow for parole consideration for

various crimes allegedly categorized by Proposition 57 as “non-

violent.” (Id., p. 59.) The opponents asserted that if the measure

passed “16,000 dangerous criminals, including those previously

convicted of murder and rape, would be eligible for early

release.” (Id., p. 59, italics omitted.) The opponents did not

address whether individuals with nonviolent felony convictions

who are currently serving a term of incarceration for a violent

felony would be eligible for early parole consideration.

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

The proponents’ rebuttal responded by stating that the

initiative would not authorize parole for violent offenders, and

cited Brown v. Superior Court (2016) 62 Cal.4th 335 for the

position that Proposition 57 would apply “ ‘only to prisoners

convicted of non-violent felonies.’ ” (Voter Information Guide,

Gen. Elec., supra, rebuttal to argument against Prop. 57, p. 59,

quoting Brown v. Superior Court, supra, 63 Cal.4th at p. 352.)

The proponents emphasized, too, that “[v]iolent criminals as

defined in Penal Code 667.5(c) are excluded from parole.” (Voter

Information Guide, Gen. Elec., supra, rebuttal to argument

against Prop. 57, p. 59.)

2. Analysis

The Department contends the ballot materials reveal that

the voters intended to exclude any inmate currently serving a

term for a violent felony from early parole consideration,

regardless of whether such an inmate has also been convicted of

a nonviolent felony. The Department stresses that the

Legislative Analyst stated that the initiative provided for

“parole consideration for nonviolent offenders.” (Voter

Information Guide, Gen. Elec., supra, analysis of Prop. 57 by

Legis. Analyst, p. 56.) The Department also emphasizes that

the rebuttal to the arguments opposing Proposition 57

reiterated that the initiative “Does NOT authorize parole for

violent offenders” and that “[v]iolent criminals as defined in

Penal Code 667.5(c) are excluded from parole.” (Voter

Information Guide, Gen. Elec., supra, rebuttal to argument

against Prop. 57, p. 59.)11

11

In its briefing before this court, the Department also

asserted that the number of inmates eligible for early parole

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

The Department further contends that even if it was not

compelled to exclude from early parole consideration inmates

currently serving a term of incarceration for a violent felony, it

acted within its discretion to do so. In support of this position,

the Department points to article I, section 32(b), which directs

the Department to “adopt regulations in furtherance of [the

constitutional] provisions . . . .” (Art. I, § 32(b).) The exclusion

of inmates currently serving a term for a violent felony from

early parole consideration, the Department asserts, reflects its

reasoned consideration of the policy and public safety

considerations vested in it by article I, section 32(b), and aligns

with the intent of the voters as reflected by the ballot materials.

We agree that the Department acted within the authority

granted by article I, section 32(b) when it promulgated section

consideration under the Court of Appeal’s approach — inmates

convicted only of nonviolent felonies and inmates convicted of

both nonviolent and violent felonies — constituted

approximately 96 percent of the prison population in 2019. The

Department contrasted this number with the Legislative

Analyst’s estimate that 30,000 inmates would receive early

parole consideration under the initiative.

Prior to oral argument, however, the Department

discovered its statistics were erroneous and withdrew its

arguments related to those statistics. Following oral argument,

the Department submitted additional data regarding the

inmate population but did not purport to rely on the new data

or to otherwise reassert its original argument. Although such

data may be relevant to interpreting the voters’ intent in some

contexts, we decline to consider it here given the Attorney

General’s withdrawal of the argument on this point.

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

3490, subdivision (a)(5) of the California Code of Regulations.12

We reach this conclusion based on our consideration of the

constitutional text, the ballot materials, the stated purposes of

the initiative, and the Department’s discretion to promulgate

regulations under the Constitution. We hold that the

Department’s regulation is consistent with article I, section 32,

and is reasonably necessary to effectuate the purpose of

Proposition 57. (See Morris, supra, 67 Cal.2d at pp. 748–749.)

Neither the language of the constitutional provision nor

the materials presented to the voters explicitly stated whether

an inmate currently serving a term for a violent felony would be

eligible for parole consideration under the initiative. As we have

explained, the constitutional text is ambiguous on this point.

Although the ballot materials do not directly answer the

question, they conveyed to the voters that Proposition 57 would

establish “parole consideration for nonviolent offenders” (Voter

Information Guide, Gen. Elec., supra, analysis of Prop. 57 by

Legis. Analyst, p. 56) and would not authorize early parole

consideration for “violent offenders” (Voter Information Guide,

Gen. Elec., supra, rebuttal to argument against Prop. 57, p. 59).

As the Department observes, the proponents’ rebuttal

asserted “violent offenders” and “[v]iolent criminals as defined

in Penal Code 667.5(c)” would not be eligible for early parole

consideration. (Voter Information Guide, Gen. Elec., supra,

rebuttal to argument against Prop. 57, p. 59.) Moreover, the

ballot materials focus on the distinction between inmates

convicted of violent felonies and inmates convicted of nonviolent

12

In light of this conclusion, we do not address the

Department’s position that article I, section 32 compels the

approach the Department adopted in its regulations.

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

felonies. For this reason, the opponents and proponents sparred

over the scope of the term nonviolent felony. The proponents

asserted violent felonies would be defined by Penal Code section

667.5, subdivision (c) (Voter Information Guide, Gen. Elec.,

supra, rebuttal to argument against Prop. 57, p. 59), that the

initiative would “[k]eep[] the most dangerous offenders locked

up” (id., argument in favor of Prop. 57, p. 58), and that “parole

eligibility under Prop. 57 applies, ‘only to prisoners convicted of

non-violent felonies.’ [Brown v. Superior Court, supra,

63 Cal.4th at p. 352.] Violent criminals as defined in Penal Code

667.5(c) are excluded from parole” (Voter Information Guide,

Gen. Elec., supra, rebuttal to argument against Prop. 57, p. 59).

The opponents’ arguments in the ballot materials did not

allege that inmates currently serving a term for a violent felony

offense would be eligible for parole consideration under the

initiative, or assert the initiative should be rejected for that

reason. Instead, the thrust of the opponents’ arguments was

that the scope of the term “violent felony” was too narrow. (See

Voter Information Guide, Gen. Elec., supra, argument against

Prop. 57, p. 59.) The opponents described a number of

offenses — including certain types of rape, sex trafficking, and

assault with a deadly weapon — that would be categorized as

“nonviolent” under the initiative. (Id., rebuttal to argument in

favor of Prop. 57, p. 58.)

In this context, Proposition 57 directed the Department to

“adopt regulations in furtherance of [the constitutional]

provisions,” and to “certify that these regulations protect and

enhance public safety.” (Art. I, § 32(b).) In doing so, the

Department determined that individuals currently serving a

term of incarceration for a violent felony should be excluded

from early parole consideration, regardless of whether the

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

inmate had also been convicted of a nonviolent felony. (See Cal.

Code. Regs., § 3490, subd. (a)(5).) This approach “reasonably

interpreted” the Department’s mandate to adopt regulations

(Woods, supra, 28 Cal.3d at p. 679), is consistent with the

constitutional language and ballot materials, and is “reasonably

necessary to effectuate the purpose” of Proposition 57 (Gov.

Code, § 11342.2).

The ballot materials support such a conclusion.

Underlying the debate between the proponents and opponents

of Proposition 57 was the implication that an inmate serving a

prison term for a violent felony would be excluded from parole

consideration. As the Department puts it, “the singular focus on

‘nonviolent felonies’ supports the inference that individuals

serving time for violent felonies would not be eligible.” There

would be little reason to debate the meaning and scope of the

term violent felony if having a conviction for a nonviolent felony

triggered early parole consideration regardless of whether an

individual was currently serving a term of incarceration for a

violent felony conviction. The Department’s decision to craft its

regulations in a way that excluded individuals currently serving

a term of incarceration for a violent felony is consistent with the

distinction between violent and nonviolent felonies emphasized

in the ballot materials.

Petitioner’s arguments to the contrary are unavailing.

First, he notes the materials presented to the voters stated that

“persons convicted of nonviolent felonies” would be eligible for

parole “upon completion of [a] prison term for their primary

offense as defined,” but did not indicate that there was an

exception that would apply if these individuals were currently

serving a term for a violent felony. (See Voter Information

Guide, Gen. Elec., supra, Official Title and Summary, p. 54.)

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

This assertion is premised on the assumption that the phrase

“any person convicted of a nonviolent felony” in article I, section

32(a)(1) clearly and unambiguously applies to inmates currently

serving a term of incarceration for a violent felony conviction —

a premise we have already rejected above.

Second, petitioner asserts the ballot materials should not

be relied on because they are partisan and “may serve to mislead

a voter about an initiative’s purpose, intent, and effect.” It is

true that, as we noted in Gadlin, the voters “were explicitly

warned in the margins of the voter guide that ‘Arguments

printed on this page are the opinions of the authors, and have

not been checked for accuracy by any official agency.’ ” (Gadlin,

supra, 10 Cal.5th at pp. 940–941, quoting Voter Information

Guide, Gen. Elec., supra, pp. 58, 59.) Still, petitioner provides

no explanation regarding why any potential partisan bias aids

him here. He observes that the opponents emphasized the

initiative would apply to “violent criminals.” (Voter Information

Guide, Gen. Elec., supra, rebuttal to argument in favor of

Prop. 57, p. 58, capitalization omitted.) But the opponents’ focus

on the term “violent criminals,” when taken in context, had

nothing to do with inmates currently serving a term for a violent

felony. Rather, the opponents were concerned with the types of

offenses that would be considered nonviolent under the

initiative. (See Voter Information Guide, Gen. Elec., supra,

rebuttal to argument in favor of Prop. 57, p. 58 [asserting

inmates convicted of crimes including sex trafficking, assault

with a deadly weapon, lewd acts against a 14-year-old, hostage

taking, and hate crimes causing injury would be classified as

nonviolent].) As noted above, neither the proponents nor the

opponents of Proposition 57 expressly addressed the

circumstance we consider here. Thus, it cannot be said that the

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

materials misled the voters with respect to the treatment of

inmates currently serving a term of incarceration for a violent

felony, or that the Department acted in excess of its authority

when crafting the regulation at issue here.

Petitioner next asserts that the initiative informed the

voters that the Board of Parole Hearings would guard public

safety by evaluating each eligible inmate for parole suitability.

(Voter Information Guide, Gen. Elec., supra, argument in favor

of Prop. 57, p. 58.) But petitioner does not explain how this

would have conveyed to the voters an understanding that

inmates currently serving a term for a violent felony would be

eligible for early parole consideration.

Further, petitioner’s reliance on Gadlin with regard to the

ballot materials is misplaced. In Gadlin, we rejected the

Department’s position that the ballot materials indicated the

voters intended to exclude from early parole consideration

inmates convicted of nonviolent offenses requiring registration

pursuant to section 290. (Gadlin, supra, 10 Cal.5th at pp. 939–

940.) We noted that the Department relied on “a single line in

the proponents’ rebuttal argument” in a manner that “overlooks

the context of the entire ballot materials provided to the voters.”

(Id. at p. 939.) Here, by contrast, the ballot materials provide

much stronger support for the Department’s position than the

single line on which it relied in Gadlin. As described above, the

ballot materials consistently contrasted for voters the

distinction between violent felonies and nonviolent felonies.

This contrast was further underscored by the analysis of the

Legislative Analyst, which “assume[d] a nonviolent felony

offense would include any felony offense that is not specifically

defined in statute as violent.” (Voter Information Guide, Gen.

Elec., supra, analysis of Prop. 57 by Legis. Analyst, p. 56.)

27

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

Unlike the circumstances in Gadlin, the Department was well

within its discretion to frame its regulations in light of the

robust debate captured in the ballot materials.

Finally, petitioner asserts the voters’ rejection of

Proposition 20 at the 2020 election constitutes evidence that the

voters, in passing Proposition 57 in 2016, intended to afford

parole consideration to inmates serving terms of imprisonment

for both violent and nonviolent felonies. He notes that

Proposition 20 would have explicitly excluded such inmates

from early parole consideration by adding Penal Code section

3040.3, subdivision (a) to state: “An inmate whose current

commitment includes a concurrent, consecutive, or stayed

sentence for an offense or allegation defined as violent by

subdivision (c) of Section 667.5 or Section 3040.1 shall be

deemed a violent offender for purposes of Section 32 of Article I

of the Constitution.” (Text of Proposed Laws, Gen. Elec. (Nov. 3,

2020) text of Prop. 20, p. 20.) He asserts that voters’ rejection of

this “opportunity to override the lower court’s decision in the

current case” indicates that voters intended Proposition 57 to

apply to inmates like him who have been convicted of both

violent and nonviolent felonies.

Petitioner’s argument is entirely unavailing. A failed

initiative presented to the voters in 2020 cannot provide

evidence of the voters’ intent when they cast their ballots in

2016. (Santa Clara County Local Transportation Authority v.

Guardino (1995) 11 Cal.4th 220, 238 [“we cannot speculate that

the rejection [of an initiative by the voters] amounted to an

implied approval” of a court opinion that would have been

effectively overturned by the initiative], citing Dyna-Med, supra,

43 Cal.3d at p. 1396; In re Guice, supra, 66 Cal.App.5th at p. 942

28

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

[“There is simply no way of knowing why voters rejected

Proposition 20 four years after they approved Proposition 57”].)

We therefore conclude that the Department acted within

its discretion when it promulgated section 3490, subdivision

(a)(5) of the California Code of Regulations excluding

individuals currently serving a sentence for a violent felony from

early parole consideration. This conclusion, however, is not a

determination that the Department’s regulation is the most

plausible of the various interpretations offered. Because the

Department is vested with the authority to adopt regulations in

this context, we need only conclude that its regulation is a valid

exercise of its rulemaking authority.

As to the application of the regulation to this case,

petitioner does not contest the Department’s determination that

he is currently serving a term of incarceration for a violent

felony. As described, petitioner was convicted of nine counts of

second degree robbery (a violent felony), six counts of receiving

stolen property (a nonviolent felony), and various gang

enhancements. His only argument before this court is that he

should be entitled to early parole consideration because he is a

“mixed-offense prisoner whose nonviolent felony offense is his

primary offense and whose violent offenses are secondary ones

that run consecutive and subordinate to that primary and

principal offense.” Because petitioner has not contested the

Department’s determination that he is currently serving a term

for a violent felony, and because we have determined that the

regulation excluding from early parole consideration inmates

who are currently serving a term for a violent felony is a valid

exercise of the Department’s rulemaking authority under

article I, section 32(b), we conclude the Department’s denial of

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In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

petitioner’s request for early parole consideration was

permissible.13

III. CONCLUSION

Neither the language of article I, section 32(a)(1) of the

California Constitution nor the ballot materials presented to the

voters speak directly to whether inmates with nonviolent felony

convictions who are currently serving a term for a violent felony

must be considered for early parole suitability. Against this

backdrop, and the direction in article I, section 32(b) to

promulgate regulations, the Department determined that

inmates serving a term of incarceration for a violent felony

should be excluded from early parole consideration. (Cal. Code

Regs., § 3490, subd. (a)(5).) The Department’s approach is

consistent with a reasonable interpretation of the constitutional

language and the ballot materials. We cannot say that the

Department abused its rulemaking authority in coming to this

conclusion.

13

The concurring opinion in Douglas agreed that the

petitioner there was “still serving a sentence for a violent felony

offense” and thus was ineligible for early parole consideration at

the time he sought it. (Douglas, supra, 62 Cal.App.5th at p. 739

(conc. opn. of Robie, Acting P. J.).) The concurring opinion

further asserted that article I, section 32(a)(1)(A) required the

court to “break an inmate’s sentence into its component parts

for the purpose of determining whether that inmate has served

his or her primary offense, making the particular sequence in

which an inmate serves his or her violent offense a meaningful

abstraction.” (Id. at p. 738.) Because petitioner here does not

contest that he is currently serving a term of incarceration for a

violent felony, we are not presented with the issue of whether

article I, section 32 requires us to break an inmate’s sentence

into its component parts. We express no view on that issue or

on the approach adopted by the concurring opinion in Douglas.

30

In re MOHAMMAD

Opinion of the Court by Cantil-Sakauye, C. J.

The judgment of the Court of Appeal is reversed.

CANTIL-SAKAUYE, C. J.

We Concur:

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

LEVY, J.*

*

Associate Justice of the Court of Appeal, Fifth Appellate

District, assigned by the Chief Justice pursuant to article VI,

section 6 of the California Constitution.

31

In re MOHAMMAD

S259999

Concurring Opinion by Justice Liu

The Public Safety and Rehabilitation Act of 2016, known

as Proposition 57, provides that “[a]ny person convicted of a

nonviolent felony offense . . . 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) (article I,

section 32(a)(1)).) To implement this provision, the Department

of Corrections and Rehabilitation (Department) adopted a

regulation that makes ineligible for early parole consideration

any inmate who is “currently serving a term of incarceration for

a ‘violent felony.’ ” (Cal. Code Regs., tit. 15, § 3490, subd. (a)(5).)

For the reasons stated in today’s opinion, I agree that this

regulation, as written, is a reasonable construction of article I,

section 32(a)(1).

Lurking beneath this holding, however, are a number of

questions concerning what it means for an inmate with both

violent and nonviolent felony convictions to be “currently

serving a term of incarceration for a ‘violent felony.’ ” (Cal. Code

Regs., tit. 15, § 3490, subd. (a)(5).) But because petitioner

Mohammad Mohammad has not contested the Department’s

determination that he is currently serving a term for a violent

felony, we have no occasion here to examine the proper

application of the regulation to inmates like Mohammad who

are incarcerated for both violent and nonviolent felony offenses.

(Maj. opn., ante, at pp. 29–30 & fn. 13.)

Mohammad was sentenced to a consecutive term of 29

years for multiple violent (robbery) and nonviolent (receiving

In re MOHAMMAD

Liu, J., concurring

stolen property) offenses. In its administrative review of his

request for early parole consideration, the Department

determined that his robbery offense (any one of them) “ ‘makes

all of his offenses to be considered violent during this term.’ ”

(In re Mohammad (2019) 42 Cal.App.5th 719, 724.) In In re

Reeves (2005) 35 Cal.4th 765, 772, we said that “[u]nder the

Determinate Sentencing Act ([Pen. Code,] § 1170 et seq.),

multiple consecutive determinate terms must be combined into

a single, ‘aggregate term of imprisonment for all [such]

convictions’ ([id.,] § 1170.1, subd. (a)) that merges all terms to

be served consecutively . . . .” The Department seems to

contemplate that the merger of consecutive terms into a single

aggregate term means that an inmate serving a consecutive

sentence for violent and nonviolent felony convictions is

“currently serving a term of incarceration for a ‘violent felony’ ”

(Cal. Code Regs., tit. 15, § 3490, subd. (a)(5)) throughout the

entire duration of the consecutive sentence.

But there is some tension between the Department’s view

and Proposition 57’s definition of “primary offense” to mean “the

longest term of imprisonment imposed by the court for any

offense, excluding the imposition of an enhancement,

consecutive sentence, or alternative sentence.” (Art. I,

§ 32(a)(1)(A), italics added.) As Justice Robie explained in In re

Douglas (2021) 62 Cal.App.5th 726, this language seems to

“require[ ] us to break an inmate’s sentence into its component

parts,” notwithstanding the merger rule, in order to determine

what term the inmate is currently serving at the time he or she

seeks early parole consideration. (Id. at p. 738 (conc. opn. of

Robie, Acting P. J.); see art. I, § 32(a) [“The following provisions

are hereby enacted . . . notwithstanding anything in this article

or any other provision of law . . . .”].)

2

In re MOHAMMAD

Liu, J., concurring

Consider, for example, an inmate serving a consecutive

sentence for a robbery offense with a six-year term and a

receiving stolen property offense with a three-year term. The

robbery offense is the “primary offense” because it carries “the

longest term of imprisonment imposed by the court for any

offense.” (Art. I, § 32(a)(1)(A).) Once the inmate has completed

the six-year term for his primary offense of robbery, is he then —

for purposes of article I, section 32(a)(1) — currently serving a

term for the nonviolent offense of receiving stolen property and

thus eligible for early parole consideration, as Justice Robie’s

view suggests? Or does article I, section 32(a)(1) allow the

Department to treat him as currently serving a term for the

violent offense throughout the entire nine-year aggregate

sentence and find him ineligible for early parole consideration

on that basis?

Today’s decision does not answer these questions, nor does

it address at what point, if any, during Mohammad’s consecutive

sentence he may become eligible for early parole consideration.

These issues await resolution in future cases.

LIU, J.

I Concur:

KRUGER, J.

3

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion In re Mohammad

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Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 42 Cal.App.5th 719

Review Granted (unpublished)

Rehearing Granted

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Opinion No. S259999

Date Filed: January 3, 2022

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Court: Superior

County: Los Angeles

Judge: William C. Ryan

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Counsel:

Michael Satris and Heather MacKay, under appointments by the

Supreme Court, for Petitioner Mohammad Mohammad.

Xavier Becerra and Rob Bonta, Attorneys General, Michael Mongan,

State Solicitor General, Gerald A. Engler and Lance E. Winters, Chief

Assistant Attorneys General, Janill L. Richards, Principal Deputy

State Solicitor General, Phillip J. Lindsay, Assistant Attorney General,

Helen H. Hong, Deputy State Solicitor General, Amanda J. Murray

and Charles Chung, Deputy Attorneys General, for Respondent the

People.

Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice

Legal Foundation as Amicus Curiae on behalf of Respondent the

People.

Richard J. Sachs, Deputy District Attorney (San Diego) and Mark

Zhaner for California District Attorneys Association as Amicus Curiae

on behalf of Respondent the People.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Heather MacKay

P.O. Box 3112

Oakland, CA 94609

(510) 653-7507

Helen H. Hong

Deputy State Solicitor General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9693