Filed 6/2/22 In re Watson CA2/5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re LADRAE WATSON B303328
on (Los Angeles County
Super. Ct. No.
Habeas Corpus. MA068412)
ORIGINAL PROCEEDINGS in habeas corpus. Superior
Court of Los Angeles County, Shannon Knight, Judge. Petition
denied.
Richard B. Lennon, under appointment by the Court of
Appeal, for Petitioner.
Xavier Becerra, Attorney General, Phillip J. Lindsay,
Senior Assistant Attorney General, Julie A. Malone, Supervising
Deputy Attorney General, and Krista L. Pollard, Deputy Attorney
General, for Respondent.
We previously granted Ladrae Watson’s (petitioner’s)
habeas corpus petition seeking early parole consideration under a
provision added to our state constitution by the Public Safety and
Rehabilitation Act of 2016 (Proposition 57). The cause is now
again before us after our Supreme Court directed us to reconsider
the matter in light of its opinion in In re Mohammad (2022) 12
Cal.5th 518 (Mohammad), which reversed this court’s grant of
habeas corpus relief under similar circumstances.
I. BACKGROUND
Petitioner pled no contest in 2017 to charges of assault with
a firearm (Pen. Code, § 245, subd. (a)(2)), willful infliction of
corporal injury after sustaining a prior conviction (Pen.
Code, § 273.5, subd. (f)(1)), and dissuading a witness (Pen.
Code, § 136.1, subd. (b)(1)). He also admitted, for purposes of an
alleged sentencing enhancement, that he personally used a
firearm in the commission of the assault (Pen. Code, § 12022.4,
subd. (a)). The trial court sentenced petitioner to eight years in
prison, calculated as two years for the assault conviction, four
years for the firearm enhancement, 16 months for the domestic
violence conviction, and eight months for the dissuading a
witness conviction.
Petitioner subsequently sought habeas corpus relief in the
superior court. He argued article I, section 32 of California’s
Constitution, enacted by voters as part of Proposition 57, made
him eligible for early parole consideration. The specific
constitutional provision at issue 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 of
2
his or her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1)
(hereafter Section 32(a)(1)).)
The trial court denied petitioner’s habeas corpus petition.
The court reasoned petitioner was ineligible for early parole
consideration because he “pled no contest to assault with a
firearm and admitted a special allegation of personal use of a
firearm, making the offense a violent felony.”
Petitioner then filed a petition for habeas corpus in this
court seeking the same relief he sought in the trial court. In an
opinion filed in September 2020, we concluded petitioner was
eligible for early parole consideration under the plain language of
Section 32(a)(1), as we held in In re Mohammad (2019) 42
Cal.App.5th 719—a case that was then pending in the Supreme
Court on grant of review. The Supreme Court later granted the
People’s petition to review our decision in this case and held the
matter pending its disposition of Mohammad.
In its subsequently issued Mohammad opinion, our
Supreme Court found ambiguity in Section 32(a)(1).
(Mohammad, supra, 12 Cal.5th at 532-533 [partly resting its
conclusion that the constitutional language is ambiguous on
divergent results that had been reached by different Courts of
Appeal].) Because of the perceived textual ambiguity, the
Supreme Court held the authority conferred on the Department
of Corrections and Rehabilitation (CDCR) to adopt regulations in
furtherance of the constitutional provisions (Cal. Const., art.
I, § 32, subd. (b)) provided a sufficient basis to uphold the validity
of CDCR’s regulation excluding from early parole consideration
inmates who are “currently serving a term of incarceration for a
violent felony.” (Mohammad, supra, 12 Cal.5th at 537; see also
id. at 541 [“This conclusion, however, is not a determination that
3
the [CDCR’s] regulation is the most plausible of the various
interpretations offered. Because the [CDCR] 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”].) In a separate concurrence, Justice Liu (joined by
Justice Kruger) noted there were a number of questions lurking
beneath the surface concerning what it means for an inmate with
both violent and nonviolent felony convictions to be, in the words
of the operative regulations at the time, “‘currently serving a
term of incarceration for a ‘violent felony.’’” (Id. at 542 (conc. opn.
of Liu, J.).)
Shortly after the Mohammad opinion issued, CDCR
promulgated amendments to the operative regulatory provision
at issue in Mohammad so it now excludes from early parole
consideration an inmate who is “currently convicted of and is
sentenced to a term of incarceration for a ‘violent felony,’
including a term for which a violent felony sentence was stayed
under Penal Code section 654.”1 (Cal. Code Regs., tit. 15, § 3490,
subd. (a)(5).) And shortly after promulgation of these regulatory
amendments, our Supreme Court transferred this case back to us
with directions to vacate our prior opinion and reconsider the
cause in light of Mohammad.
No supplemental briefs on remand were filed by the
parties. (See generally Cal. Rules of Court, rules 8.200(b),
8.360(a).)
1
The amendment replaces “currently serving a term of
incarceration” (emphasis ours) with “currently convicted of and is
sentenced to a term of incarceration.”
4
II. DISCUSSION
Our Supreme Court’s directions and the Mohammad
opinion dictate the result here. The parties agree two of
petitioner’s 2017 convictions, the dissuading a witness and willful
infliction of corporal injury offenses, are nonviolent offenses while
the third, assault with a firearm, is a violent felony. (Cal. Code
Regs., tit. 15, § 3490, subd. (c) [for purposes of Proposition 57, a
“‘[v]iolent felony’ is a crime or enhancement as defined in
subdivision (c) of Section 667.5 of the Penal Code”]; see also Pen.
Code, § 667.5, subd. (c).) It is also undisputed that petitioner is
ineligible for early parole consideration under the operative
CDCR regulations. (Cal. Code Regs., tit. 15, §§ 3490, subd. (a)(5),
3491, subd. (a).) Because Mohammad holds CDCR has
significant latitude to promulgate such regulations, petitioner
has been validly excluded from early parole consideration.
DISPOSITION
The petition for writ of habeas corpus is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J. KIM, J.
5