California Cases June 10, 2021: In re Haynes

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. M-17380)

OPINION

Appeal from an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Vacated and remanded with instructions.

Xavier Becerra and Rob Bonta, Attorneys General, Phillip J. Lindsay, Assistant Attorney General, Amanda J. Murray and Gregory J. Marcot, Deputy Attorneys General, for Appellant.

Sharon Petrosino and Martin Schwarz, Public Defenders, Sara Ross, Assistant Public Defender, and Scott Kawamoto, Deputy Public Defender, for Respondent.

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Proposition 57 amended the California Constitution to permit early parole consideration for "[a]ny person convicted of a nonviolent felony offense and sentenced to state prison," (Cal. Const., art. I, § 32, subd. (a)(1)), and it authorized the California Department of Corrections and Rehabilitation (CDCR) to adopt regulations to implement this provision. (Cal. Const., art. I, § 32, subd. (b).) The CDCR later promulgated a regulation categorically excluding from Proposition 57 parole consideration all offenders "convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code." (Cal. Code Regs, tit. 15, § 3491, subd. (b)(3).)

After being informed he was not eligible for early parole consideration, Luther Haynes filed a petition for habeas corpus, alleging he was unlawfully precluded from Proposition 57 parole consideration because of his status as a sex offender registrant. Haynes is required to register as a sex offender due to: (1) two prior felony convictions for sex offenses committed in the 1980's, and (2) a felony conviction for annoying or molesting a child (Pen. Code, § 647.6; all further statutory citations are to Penal Code unless otherwise stated), for which he presently is serving an indeterminate third strike sentence. The trial court granted the habeas petition, and the CDCR appealed.

We initially concluded Proposition 57 parole consideration must be based on Haynes's current offense, not his past convictions. We further concluded that Haynes's current offense for annoying or molesting a child in violation of section 647.6 may be committed in a violent manner. Because Haynes's habeas petition raised only a facial challenge to the constitutional validity of the CDCR regulations and did not argue he violated section 647.6 in a nonviolent manner, we concluded Haynes failed to show he was entitled to habeas relief and reversed. Haynes then filed a petition for review with the California Supreme Court.

After we issued our opinion, the California Supreme Court in In re Gadlin (2019) 10 Cal.5th 915 ( Gadlin ), held that "nonviolent parole eligibility must be based on

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an inmate's current conviction" and "that an inmate may not be excluded from nonviolent offender parole consideration based on a current conviction for a registrable felony offense that the [CDCR]'s regulations have defined as nonviolent." ( Id . at p. 943.) As to the latter, the high court noted that CDCR's "regulations do not include registrable sex offenses within the definition of what constitutes a 'violent felony,' nor do the regulations explicitly state that such offenses are excluded from the definition of a 'nonviolent felony.'" ( Id . at p. 930.) The high court directed the CDCR to "treat as void and repeal California Code of Regulations, section 3491, subdivision (b)(3), and 3496, subdivision (b), and to make any further conforming changes necessary to render the regulations consistent with article I, section 32(a)(1) and this opinion." ( Id . at p. 943.)

The high court granted review of our prior decision. It transferred the matter to us with directions to vacate our decision and reconsider the cause in light of Gadlin . The Attorney General filed supplemental briefing the petition for writ of habeas corpus should be dismissed as moot because (1) the sex-offender exclusion regulation has been repealed in conformity with Gadlin and (2) Haynes has been found eligible for nonviolent parole consideration under the amended regulations. In his supplemental briefing, Haynes concurs the petition for writ of habeas corpus is moot. We agree, and will vacate the superior court's decision and remand the matter to the superior court with instructions to dismiss the petition as moot.

The underlying facts were recounted in our opinion affirming Haynes's conviction. At a pool party held at the 11-year-old victim's residence, Haynes handed the child a camera and directed her to take his picture. As she prepared to take the picture, Haynes pulled down his swim trunks and exposed his genitals. Although the child was upset and surprised, she took a picture and then ran to her mother. A jury convicted Haynes of felony child molestation, and in a bifurcated proceeding, the trial court found

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Haynes's two prior convictions for lewd and lascivious conduct with children under the age of 14 constituted strikes under the Three Strikes law. Haynes was sentenced to an indeterminate term of 25 years to life in state prison. ( People v . Haynes (Apr. 3, 2017, G051853) [nonpub. opn.].)

In November 2016, California voters approved Proposition 57, making a nonviolent felony offender eligible for early parole consideration after completing the full term of his or her primary offense. ( In re Edwards (2018) 26 Cal.App.5th 1181, 1185 ( Edwards ).) "As relevant here, the (uncodified) text of Proposition 57, [section 2], declares the voters' purposes in approving the measure were to: '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.)" ( Edwards , supra , 26 Cal.App.5th at p. 1185.)

Proposition 57 added section 32 to article I of the California Constitution, which states in relevant parts:

(a)(1) "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." [¶] . . . [¶] (b) "The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety." (Cal. Const., art. I, § 32.)

The CDCR adopted regulations to implement Proposition 57. One regulation categorically excludes from Proposition 57 parole consideration all offenders "convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code." (Cal. Code Regs, tit. 15, § 3491, subd. (b)(3).)

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In May 2017, Haynes sent a letter to the Board of Parole Hearing regarding Proposition 57. He was informed that he did not fall within the purview of Proposition 57 because he had been "convicted of a sexual offense requiring registration under Penal Code section 290."

On February 7, 2018, Haynes filed a petition for writ of habeas corpus, alleging the CDCR unlawfully precluded him from Proposition 57 parole consideration based on his status as a section 290 registrant. In his petition, Haynes argued his section 647.6 conviction was not a violent felony offense because it is not listed as a violent offense under section 667.5. Haynes raised a facial challenge on constitutional grounds; he did not argue he was entitled to early parole consideration because he committed the sex registrable offense in a nonviolent manner. The trial court did not hold an evidentiary hearing to establish the facts and circumstances of Haynes's offense.

The trial court granted Haynes's habeas petition, after concluding "[t]he regulation excluding inmates who are required to register as sex offenders from early parole consideration is inconsistent with California Constitution, article I, § 32, and is therefore invalid."

As this court has discussed in In re Arroyo (2019) 37 Cal.App.5th 727, 732 ( Arroyo ), we are bound to "'decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.' [Citations.]" ( In re Miranda (2011) 191 Cal.App.4th 757, 762.) Consequently, "'[a] case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief.' [Citation.]" ( In re Stephon L . (2010) 181 Cal.App.4th 1227, 1231.)

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In his habeas petition, Haynes argued he was unlawfully precluded from early parole consideration based on a CDCR regulation categorically excluding sex offenders. In Gadlin , supra , 10 Cal.5th 915, 943, the high court invalidated the sex-offender exclusion regulation, and the CDCR has amended its regulations in conformity with Gadlin . Moreover, Haynes has been found eligible for early parole consideration under the amended regulations. Thus, Haynes has already received everything he requested in his petition and everything that the CDCR was ordered to do in Gadlin . There are no justiciable issues left for us to decide. The matter is moot. ( Arroyo , supra , 37 Cal.App.5th at p. 733 [denying habeas petition as moot because petitioner now eligible for early parole consideration under amended regulation].)

The order granting the petition for writ of habeas corpus is vacated. The matter is remanded to the superior court with directions to dismiss the habeas petition as moot.

ARONSON, J.

I CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.