P. v. Velez

Filed 4/17/20 P. v. Velez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
RICARDO TORRES VELEZ,
Defendant and Appellant.
B296452
(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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SUMMARY
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.
FACTS
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of conviction in an unpublished opinion.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.
DISCUSSION
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.1 (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
1 Gadlin directed the CDCR to consider Mr. Gadlin for early
parole consideration within 60 days of remittitur issuance.
(Gadlin, supra, 31 Cal.App.5th at p. 790.) The inmate in
Schuster had been released from prison by the time the trial
court concluded the regulations were invalid; Schuster found this
did not moot the issue. (Schuster, supra, 42 Cal.App.5th at
pp. 951-952.)

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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,2 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
2 California Code of Regulations, title 15, section 3496,
subdivision (b), states: “Notwithstanding subsection (a)
[providing that an indeterminately-sentenced nonviolent offender
shall be eligible for a parole consideration hearing], an inmate is
not eligible for a parole consideration hearing . . . if the inmate is
convicted of a sexual offense that currently requires or will
require registration as a sex offender under the Sex Offender
Registration Act . . . .”

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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.
DISPOSITION
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.

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