Filed 11/28/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
In re JAMES S. KOENIG on Habeas Corpus. C098893
(Super. Ct. No. 22HB0245)
ORIGINAL PROCEEDING in habeas corpus. Petition denied. Cara L. Beatty,
Judge.
Laura Arnold under appointment by the Court of Appeal for Petitioner James S.
Koenig.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Sara J. Romano, Assistant Attorney General, Maria G. Chan and Krista L.
Pollard, Deputy Attorneys General, for Respondent Department of Corrections and
Rehabilitation.
James S. Koenig filed a petition for a writ of habeas corpus in the California
Supreme Court, contending the Department of Corrections and Rehabilitation
(Department) and the Board of Parole Hearings erroneously denied his request for
nonviolent offender early parole consideration under Proposition 57, The Public Safety
and Rehabilitation Act of 2016. Proposition 57 added section 32 to article I of the
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California Constitution. It provides 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).)
Koenig was sentenced in July 2013 to an aggregate term of 42 years eight months
in prison: (1) a 12-year principal term on one count of sale by a false statement consisting
of five years plus a three-year enhancement for multiple fraudulent felonies (Pen. Code,
§ 186.11, subd. (a)(2)),1 and a four-year enhancement for taking property in excess of
$3.2 million (former § 12022.6, subd. (a)(4)); (2) 28 one-year consecutive subordinate
terms on 28 counts of sale by a false statement; and (3) 2 one-year and four-month
consecutive subordinate terms for two counts of first degree burglary (counts 14 and 33).2
The court imposed and stayed under section 654 sentences for one count of fraudulent
use of a scheme, one count of conspiracy, and two counts of sale by false statement.
Koenig contends he is eligible for early parole consideration because he has served
the full term of his primary offense—as defined by Proposition 57—and also “the violent
offense portion of his total sentence.”
1 Undesignated statutory references are to the Penal Code.
2 “Except as otherwise provided by law, and subject to Section 654, when any person is
convicted of two or more felonies, . . . and a consecutive term of imprisonment is
imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these
convictions shall be the sum of the principal term, the subordinate term, and any
additional term imposed for applicable enhancements for prior convictions, prior prison
terms, and Section 12022.1. The principal term shall consist of the greatest term of
imprisonment imposed by the court for any of the crimes, including any term imposed for
applicable specific enhancements. The subordinate term for each consecutive offense
shall consist of one-third of the middle term of imprisonment prescribed for each other
felony conviction for which a consecutive term of imprisonment is imposed, and shall
include one-third of the term imposed for any specific enhancements applicable to those
subordinate offenses.” (§ 1170.1, subd. (a), italics added.)
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Our Supreme Court ordered the Secretary of the Department of Corrections and
Rehabilitation3 to show cause, returnable before this court, why Koenig is not entitled to
relief based on his claim that he is unconstitutionally being excluded from early parole
consideration under article I, section 32, subdivision (a)(1) of the California Constitution.
We conclude Koenig is not being unconstitutionally excluded from early parole
consideration because he was convicted of and sentenced for violent felony offenses, and
he is serving a term for these violent felonies throughout his aggregate term. The fact he
has completed the full term for his primary, nonviolent offense within the meaning of
Proposition 57 is insufficient to render him eligible for early parole consideration.
Therefore, we will deny his petition for a writ of habeas corpus.
I. BACKGROUND
As we previously stated, Proposition 57 provides 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).) Additionally, “[f]or purposes of this section only, 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 enhancement, consecutive sentence, or
alternative sentence.” (Id., subd. (a)(1)(A), italics added.) The Department is authorized
to “adopt regulations in furtherance of these provisions,” and the Secretary of the
Department must “certify that these regulations protect and enhance public safety.” (Id.,
subd. (b).) In In re Mohammad (2022) 12 Cal.5th 518, our Supreme Court concluded the
Department acted within this authority when it adopted California Code of Regulations,
3 Respondent Secretary of the Department of Corrections and Rehabilitation filed a
return asserting the proper respondent is the Warden of San Quentin State Prison.
(§ 1477.)
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title 15, section 3490, former subdivision (a)(5),4 which prohibited early parole
consideration for inmates “ ‘currently serving a term of incarceration for a “violent
felony.” ’ ” (In re Mohammad, supra, at p. 524.) The regulations provide that only “[a]
determinately-sentenced nonviolent offender, as defined in subsections 3490(a) and
3490(b), shall be eligible for parole consideration by the Board of Parole Hearings.”
(Cal. Code Regs., § 3491, subd. (a).) At the time In re Mohammed was decided,
California Code of Regulations section 3490, subdivision (a)(5) defined “ ‘a
determinately-sentenced nonviolent offender’ as an inmate who is not, among other
things, ‘currently serving a term of incarceration for a “violent felony.” ’ ” (In re
Mohammed, supra, at p. 528, quoting Cal. Code Regs., § 3490, former subd. (a)(5).)5
The Department subsequently amended this provision to define an eligible inmate as one
who is “sentenced to a determinate term and none of the following are true: [¶] . . . [¶]
(5) The inmate 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
. . . section 654.” (Cal. Code Regs., § 3490, subd. (a)(5).)6 The regulations have always
4 Further undesignated references to the California Code of Regulations are to title 15
unless otherwise noted.
5 The petitioner in In re Mohammad, supra, 12 Cal.5th 518 did not contest the
Department’s determination that he was currently serving a term of incarceration for a
violent felony. (Id. at p. 541.) His only argument was “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.’ ” (Ibid.)
6 In his traverse, Koenig relies entirely on the definition of “determinately-sentenced
nonviolent offender” in California Code of Regulations section 2449.1, but that definition
only applies “[f]or the purposes of this article,” and the relevant article never uses the
term. Thus, it appears California Code of Regulations section 2449.1 has no relevance to
Koenig’s petition. Even if it did, it would not alter our analysis because the language
mirrors former California Code of Regulations section 3490.
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provided that a “ ‘[v]iolent felony’ is a crime or enhancement as defined in subdivision
(c) of Section 667.5.” (Cal. Code Regs., § 3490, subd. (c).) The parties agree Koenig’s
convictions for first degree burglary (counts 14 and 33) are violent felony offenses. The
new provision regarding stayed sentences is not at issue here.
In July 2017, Koenig was referred by the Department of Corrections and
Rehabilitation to the Board of Parole Hearings for parole review and possible release.
The Board of Parole Hearings determined it did not have jurisdiction because Koenig was
currently serving a prison term for violent offenses, specifically two counts of first degree
burglary. The Department has subsequently reached the same conclusion and refused
Koenig’s requests for referral to the Board of Parole Hearings for early parole
consideration.
After our Supreme Court issued In re Mohammad, supra, 12 Cal.5th 518, the trial
court and this court denied petitions for a writ of a habeas corpus filed by Koenig.
In his current petition for a writ of habeas corpus, Koenig asserts he is entitled to
early parole consideration under Proposition 57 because he completed his full term of
five years for his primary offense, and the terms of his violent offenses, and “is currently
serving the balance of his nonviolent consecutive and enhancement terms of his
imprisonment.”
II. DISCUSSION
Our task is to determine whether Koenig is being unconstitutionally excluded from
early parole consideration under section 32, subdivision (a)(1), of article I of the
California Constitution. This question has two interrelated components. One, we must
determine whether the regulations at issue exclude Koenig from early parole
consideration. Two, we must determine whether these regulations are permissible under
Proposition 57. As we will explain, our Supreme Court has effectively already answered
the questions before us.
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The relevant regulations exclude Koenig from early parole consideration because
they apply to inmates currently sentenced to and serving prison terms for a violent felony.
Prior to Proposition 57, it was settled that an inmate is currently serving a prison term for
a violent felony if it is part of the inmate’s aggregate sentence. Thus, both the current
and former versions of California Code of Regulations section 3490 render Koenig
ineligible for early parole consideration. As our Supreme Court explained in the context
of construing section 2933.1 regarding limitations on worktime credit for “any person
who is convicted of a felony offense,” “[u]nder the Determinate Sentencing Act (§ 1170
et seq.), multiple consecutive determinate terms must be combined into a single,
‘aggregate term of imprisonment for all [such] convictions’ (§ 1170.1, subd. (a)) that
merges all terms to be served consecutively . . . . To suggest that a prisoner serving an
aggregate term serves the component terms and enhancements in any particular sequence
would be a meaningless abstraction. For this reason, when an aggregate term includes
time for a violent offense, at any point during that term the prisoner literally ‘is convicted
of a [violent] felony offense’ (§ 2933.1[, subd. ](a)) and actually is serving time for that
offense. Accordingly, a restriction on credits applicable to ‘any person who is convicted
of a [violent] felony offense’ (ibid.) logically applies throughout the aggregate term.”
(In re Reeves (2005) 35 Cal.4th 765, 773, italics added.) Koenig’s assertion that he has
served “the violent offense portion of his total sentence” is therefore incorrect. “A
prisoner confined under consecutive sentences undergoes a single, continuous term of
confinement, not a series of distinct, independent terms.” (People v. Lobaugh (1987) 188
Cal.App.3d 780, 783.) Under the applicable regulations and relevant case law, Koenig is
not a nonviolent offender entitled to early parole consideration. We now turn to the
question of whether the applicable regulations are permissible under Proposition 57.
In deciding the validity of a regulation, “we ask whether the regulation is
‘ “consistent and not in conflict with” ’ the constitutional provision that authorizes it
[citations] and whether the regulation is reasonably necessary to effectuate the purpose of
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the authorizing law [citations]. Our task ‘ “ ‘is to decide whether the [agency] reasonably
interpreted the legislative mandate.’ [Citation.]” ’ [Citations.] In doing so, we presume
the validity of the regulation [citation]; the burden lies with the party challenging the
regulation to show its invalidity.” (In re Mohammad, supra, 12 Cal.5th at p. 529, fn.
omitted.)
“Our ‘primary concern’ in construing a constitutional provision enacted through
voter initiative is ‘giving effect to the intended purpose of the provisions at issue’
[citation] by applying ‘the same principles that govern statutory construction’ [citations].
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. [Citation.]
Although we are obligated to strike down regulations that alter or amend the
constitutional provision or its scope [citations], our role is not to examine the wisdom of
the regulations but their legality.” (In re Mohammad, supra, 12 Cal.5th at pp. 529-530.)
In In re Mohammad, supra, 12 Cal.5th 518, our Supreme Court concluded
Proposition 57 “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.” (In re Mohammad, supra, at p. 531; see also id. at p. 539.)
The court also determined the ballot materials presented to the voters did not “explicitly
state[] whether an inmate currently serving a term for a violent felony would be eligible
for parole consideration under the initiative.” (Id. at p. 537.) As the court explained,
“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. [(Nov. 8, 2016)], analysis of Prop. 57 by Legis.
Analyst, p. 56, capitalization omitted) and would not authorize early parole consideration
for ‘violent offenders’ (Voter Information Guide, Gen. Elec., supra, rebuttal to argument
against Prop. 57, p. 59).” (Ibid.) In so doing, “the ballot materials focus on the
distinction between inmates convicted of violent felonies and inmates convicted of
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nonviolent felonies.” (Ibid.) The fact proponents emphasized Proposition 57 “[d]oes
NOT authorize parole for violent offenders” and “[v]iolent criminals as defined in
[section] 667.5[, subd. ](c) are excluded from parole” lends support to the notion that
voters intended so-called mixed offenders to be excluded from early parole consideration.
(Voter Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 57, p.
59.) The current and former versions of California Code of Regulations section 3490 are
valid because they are consistent and not in conflict with Proposition 57 and reasonably
necessary to effectuate the purpose of Proposition 57 because the regulations explain how
to treat so-called mixed-offense inmates in a way that is consistent with the voter’s intent
and previously established law. (See In re Mohammad, supra, at p. 538 [concluding
California Code of Regulations section 3490, subdivision (a)(5) “ ‘reasonably
interpreted’ the Department’s mandate to adopt regulations [citation], is consistent with
the constitutional language and ballot materials, and is ‘reasonably necessary to
effectuate the purpose’ of Proposition 57”].) Another Court of Appeal also reached this
conclusion recently in In re Hicks (Nov. 17, 2023, B319925) __ Cal.App.5th __ [2023
Cal. App. LEXIS 887, 2023 WL 7983721].)
Koenig’s petition relies largely on the concurring opinion in In re Mohammad,
supra, 12 Cal.5th 518, joined by Justice Kruger, in which Justice Liu explained that the
majority’s holding left open 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.” ’ ” (In re Mohammad, supra, at p. 542 (conc. opn. of Liu, J.).)
Justice Liu quoted from In re Reeves, supra, 35 Cal.4th 765, before explaining, “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, [former] subd. (a)(5)) throughout the entire
duration of the consecutive sentence. [¶] But there is some tension between the
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Department’s view and Proposition’s 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.’ ([Cal.
Const., a]rt. I, § 32[, subd. ](a)(1)(A), italics added.) As Justice Robie explained in In re
Douglas (2021) 62 Cal.App.5th 726 [276 Cal.Rptr.3d 866], review granted June 16,
2021, S268570, 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.” (In
re Mohammad, supra, at pp. 542-543 (conc. opn. of Liu, J.).)
The difficulty with relying on this “tension” is that, as we have explained, at the
time of the passage of Proposition 57, a person was considered a violent offender
throughout an aggregate term. “ ‘We cannot presume that . . . the voters intended the
initiative to effect a change in law that was not expressed or strongly implied in either the
text of the initiative or the analyses and arguments in the official ballot pamphlet.’ ”
(People v. Valencia (2017) 3 Cal.5th 347, 364.) Furthermore, whatever “tension” exists,
Proposition 57 does not require the adoption of a regulation that breaks an inmate’s
sentence into component parts to determine whether an inmate is eligible for early parole
consideration at all as a “person convicted of a nonviolent felony offense.” As such, the
Department was not required to do so. We agree with the People that article I, section 32,
subdivision (a)(1) of the California Constitution defines both who is eligible for early
parole consideration (“Any person convicted of a nonviolent felony offense”) and when
the eligible person receives parole consideration (“after completing the full term for his
or her primary offense”). For purposes of establishing when a person is eligible for early
parole consideration, we are apparently to treat the longest base term as being completed
before the time for any other count or enhancement or alternative sentence (or at least use
the length of that term for purposes of deciding when a person is eligible), but
Proposition 57 says nothing about when or whether we should treat any other term as
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being completed or in what order. Nor does Proposition 57 say anything generally about
who should be considered convicted of a nonviolent felony. As such, it does not replace
the existing law on these issues or prevent the Department from regulating in this area.
Koenig is not entitled to early parole consideration under article I, section 32,
subdivision (a)(1) of the California Constitution.
III. DISPOSITION
The petition for writ of habeas corpus is denied.
/S/
RENNER, J.
We concur:
/S/
MAURO, Acting P. J.
/S/
WISEMAN, J.*
* Retired 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.
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