California Cases April 17, 2020: People v. Velez

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court , rule 8.1115(a) , prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published , except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. KA072076)

APPEAL from an order of the Superior Court for the County of Los Angeles. Juan Carlos Dominguez, Judge. Reversed and remanded with directions.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, and Charles Chung, Deputy Attorney General, for Plaintiff and Respondent.

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Proposition 57 added a provision to the Constitution that 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." (Cal. Const., art. I, § 32, subd. (a)(1).)

This case poses an issue now under review in the California Supreme Court: the validity of regulations of the California Department of Corrections and Rehabilitation (CDCR) that exclude otherwise eligible inmates, who have prior convictions requiring sex offender registration, from early parole consideration. Two Court of Appeal decisions have found those regulations run afoul of Proposition 57. ( In re Gadlin (2019) 31 Cal.App.5th 784, review granted May 15, 2019, S254599 ( Gadlin ); In re Schuster (2019) 42 Cal.App.5th 943, review granted Feb. 19, 2020, S260024 ( Schuster ).)

We agree with Gadlin and Schuster , and we reject respondent's contentions that appellate review is improper in this case.

In 2005, a jury convicted defendant Ricardo Torres Velez of two counts of first degree burglary, one count of second degree burglary, grand theft of an automobile, and petty theft with a prior. The court found defendant had suffered two prior serious or violent felony convictions. The court sentenced defendant to a total of 100 years to life: four consecutive terms of 25 years to life under the "Three Strikes" law. This court affirmed the judgment of conviction in an unpublished opinion. ( People v . Velez (Aug. 31, 2006, B188376) [nonpub. opn.].) This court later affirmed the denial of defendant's petition for recall of sentence under Proposition 36, the Three Strikes Reform Act of 2012. Defendant was ineligible for resentencing because one of his strike offenses

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required registration as a sex offender. (See People v . Velez (Sept. 17, 2015, B262296) [nonpub. opn.].)

In 2016, California voters approved Proposition 57, making a nonviolent felony offender eligible for early parole consideration after completing the full term for his or her primary offense.

On September 7, 2018, In re Edwards invalidated a regulation of the CDCR that denied Proposition 57 relief to admittedly nonviolent third strike offenders on the basis that they were serving indeterminate terms. ( In re Edwards (2018) 26 Cal.App.5th 1181, 1192 ["the Three Strikes law indeterminate sentence 'is put aside for purposes of determining the full term for his primary offense, which [here] is the upper term of three years.' "] ( Edwards ).) The defendant in Edwards was not a sex offender registrant.

On November 26, 2018, defendant, representing himself, filed a petition for writ of habeas corpus in the superior court, requesting early parole consideration under Proposition 57 and the authority of Edwards . The trial court issued an order requesting an informal response to defendant's petition, and allowing defendant to file a reply to the response.

The Attorney General's response contended defendant's claims were moot because the ruling in Edwards "resolved any claim [defendant] had before he filed [his] petition," and the CDCR "complied with Edwards and adopted regulations providing parole review under Proposition 57 for indeterminately sentenced, nonviolent offenders like [defendant]." Respondent attached a copy of the new emergency regulations, issued December 26, 2018, and effective January 1, 2019.

On February 8, 2019, defendant filed his reply, contending the new regulations "put[] in place multiple exclusions which were not addressed by the Edwards Court" and "would have an adverse effect on [defendant's] prospects for early release."

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Defendant asked the court to issue a court order "to have [CDCR] within 60-days consider [defendant] for early parole consideration."

On March 1, 2019, the trial court denied defendant's petition, finding it was moot and citing Edwards .

On March 12, 2019, defendant, still representing himself, filed an appeal, stating the ruling was "eligible for appeal as issue arises from Voter enacted Proposition 57."

While his appeal was pending, on April 15, 2019, defendant filed an "inmate/parolee request" with the CDCR, asking to be notified of his status with respect to nonviolent offender early release. The April 18, 2019 response stated there was "no policy for including [Penal Code] 290 [sex offender] registrants in the early parole process."

On October 3, 2019, counsel was appointed for defendant.

On October 9, 2019, defendant wrote to his appointed counsel, telling counsel the CDCR was still excluding him from consideration and attaching (according to his letter) a copy of his CDCR request and response.

On October 29, 2019, appointed counsel filed a Wende brief requesting our independent review of the record. ( People v . Wende (1979) 25 Cal.3d 436.)

On November 25, 2019, defendant filed a supplemental brief. He attached a copy of his inmate request and the CDCR response. He argued that his "30-year old plea bargain case" should not exclude him from eligibility for early parole consideration, and that he had made his claim for relief clear to appointed counsel.

On January 22, 2020, this court sent a letter to counsel (Gov. Code, § 68081). We asked the parties to file letter briefs addressing the significance to defendant's appeal of Gadlin and Schuster , both of which held that application of CDCR

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regulations to exclude from early parole consideration all inmates with prior convictions requiring sex offender registration runs afoul of Proposition 57. ( Gadlin , supra , 31 Cal.App.5th at p. 789; Schuster , supra , 42 Cal.App.5th at pp. 954-955.)

We have received and reviewed those briefs, and conclude defendant is entitled to an order directing the CDCR to evaluate defendant for early parole consideration.

As stated, both Gadlin and Schuster conclude the CDCR regulations, to the extent they exclude from early parole consideration all inmates with prior convictions requiring sex offender registration, violate Proposition 57. Gadlin found that the language in Proposition 57 "make[s] clear" that early parole eligibility must be assessed based on the inmate's current offense rather than prior criminal history. ( Gadlin , supra , 31 Cal.App.5th at p. 789; ibid . [the policy considerations of public safety offered by the CDCR "do not trump the plain text of [Cal. Const., art. I,] section 32, subdivision (a)(1)"].) Schuster agreed with Gadlin . ( Schuster , supra , 42 Cal.App.5th at pp. 954-955.)

Respondent, in its supplemental brief, contends Gadlin and Schuster have no bearing on this appeal. Respondent contends this "is an improper appeal of an order denying a petition for writ of habeas corpus," citing Briggs v . Brown (2017) 3 Cal.5th 808, 836 ("A petitioner currently has no right to appeal from a

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superior court denial of habeas corpus relief. Instead, review is obtained by filing a new habeas corpus petition in a higher court.").

But this is not a habeas corpus attack on the validity of a judgment of conviction; it is an appeal from a postjudgment order. And an appeal may be taken by the defendant "[f]rom any order made after judgment, affecting the substantial rights of the party." (Pen. Code, § 1237, subd. (b); see People v . Washington (2018) 23 Cal.App.5th 948, 953 [where petitioner filed a writ of habeas corpus challenging the trial court's denial of his petition to reclassify his burglary as shoplifting under Proposition 47, the Court of Appeal "designated his habeas corpus petition as a notice of appeal of the trial court's order under Proposition 47"]; cf. People v . Gallardo (2000) 77 Cal.App.4th 971, 986 [treating an appeal from the trial court's denial of a request for resentencing as a petition for writ of habeas corpus].)

Respondent also contends that defendant's prior sex offense conviction "makes [defendant] ineligible for the nonviolent parole program," citing the CDCR regulation at issue, and that defendant "did not raise this claim in the petition below" but "is free to raise this claim in a new habeas petition." While respondent is correct that defendant's petition to the trial court (which preceded the CDCR's December 26, 2018 emergency regulations) did not (and had no reason to) raise the sex offender

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registration issue, he claimed he was entitled to the same relief as the defendant in Edwards "concerning [defendant's] early parole consideration." Moreover, in his brief to the trial court (see ante , at pp. 3-4), after receipt of respondent's brief with the attached emergency regulations, defendant contended the new regulations "put[] in place multiple exclusions which were not addressed" in Edwards and "would have an adverse effect on [defendant's] prospects for early release."

Under these circumstances, we consider defendant sufficiently raised the issue to the trial court, and the parties have had a full opportunity to brief the issue before this court. We find Gadlin and Schuster soundly reasoned, and follow those authorities. Defendant here is in all material respects similarly situated to the inmates in those cases, and is entitled to early parole consideration.

We reverse the trial court's order denying defendant's petition, and remand the cause to the trial court with directions to issue a new order directing the CDCR to evaluate defendant for early parole consideration within 60 days of the issuance of our remittitur.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J.

WILEY, J.