In re Ellington

Filed 1/14/20 In re Ellington CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 MARCUS RUBEN
ELLINGTON
on
Habeas Corpus.
B296112
(Los Angeles County
Super. Ct. No.
YA095609)
ORIGINAL PROCEEDING; petition for writ of habeas
corpus. Superior Court of Los Angeles County, William C. Ryan,
Judge. Petition granted.
Michael Satris, under appointment by the Court of Appeal,
for Petitioner.
Xavier Becerra, Attorney General, Phillip J. Lindsay,
Senior Assistant Attorney General, Charles Chung, Deputy
Attorney General, for Respondent.

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I. INTRODUCTION
Petitioner Marcus Ruben Ellington contends the California
Department of Corrections and Rehabilitation (CDCR)
improperly found him ineligible for early parole consideration
under Proposition 57, or the Public Safety and Rehabilitation Act
of 2016, because he is required to register as a sex offender under
Penal Code section 290 due to a current conviction for
misdemeanor sexual battery and five prior convictions for felony
sex offenses. We agree and grant his petition for writ of habeas
corpus.
II. BACKGROUND
Petitioner Marcus Ruben Ellington is currently serving a
55 years to life sentence for possession of a collapsible baton (Pen.
Code, § 22210) and criminal threats (Pen. Code, § 422, subd. (a)),
plus 360 days for two counts of sexual battery (Pen. Code,
§ 243.4, subd. (e)(1).) Possession of a collapsible baton and
criminal threats are nonviolent felony convictions. Sexual
battery is a misdemeanor sex offense registrable under Penal
Code section 290 (section 290).
Prior to sentencing on April 20, 2018, petitioner admitted
he had five prior strike convictions under the Three Strikes law.
The five prior strikes were sustained on November 20, 1989,
when a jury convicted him of three counts of forcible rape, one
count of forcible sexual penetration, and one count of forcible oral
copulation. All five convictions are registrable sex offenses under
section 290.

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Following his commitment to state prison in this case,
petitioner learned CDCR considers him ineligible for an early
parole hearing under Proposition 57 because he is subject to
registration under section 290 for his prior felony sex offense
convictions and his current misdemeanor sexual battery
conviction. On March 8, 2019, petitioner filed a petition for writ
of habeas corpus, seeking an order directing CDCR to grant him
an early parole hearing. We appointed counsel, issued an order
to show cause to CDCR, and now grant the petition.
III. DISCUSSION
Approved by California voters on November 8, 2016,
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 of
his or her primary offense.” (Cal. Const, art. I, § 32, subd. (a)(1)
(section 32(a)(1)).) The “full term” of the “primary offense” is “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., art I, § 32, subd.
(a)(1)(A) (section 32(a)(1)(A)).) Proposition 57 directs CDCR to
adopt regulations “in furtherance of [section 32(a)]” and “certify
that these regulations protect and enhance public safety.” (Cal.
Const., art I, § 32, subd. (b).)
After this court partially invalidated CDCR’s initial set of
implementing regulations (see generally In re Edwards (2018) 26
Cal.App.5th 1181 (Edwards)), CDCR promulgated new
regulations effective in 2019. These regulations exclude from
early parole consideration any inmate who “is convicted of a

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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).)
In In re Gadlin (2019) 31 Cal.App.5th 784, review granted
May 15, 2019, S254599 (Gadlin), we held these regulations
invalid insofar as they bar early parole consideration for an
inmate who is subject to registration under section 290 for a prior
crime for which the inmate has already fully served his or her
sentence. Gadlin disposes of CDCR’s argument that petitioner is
ineligible for early parole consideration due to his prior sex
offense convictions.
In In re Mohammad (2019) 42 Cal.App.5th 719
(Mohammad), we held “under sections 32(a)(1) and 32(a)(1)(A),
an inmate who is serving an aggregate sentence for more than
one conviction will be eligible for an early parole hearing if one of
those convictions was for ‘a’ nonviolent felony offense.” (Id. at
p. 726.) That holding describes petitioner, who is currently
serving an aggregate sentence for a nonviolent felony offense—
actually two: possession of a collapsible baton and making
criminal threats. Mohammad therefore disposes of CDCR’s
argument that petitioner is ineligible for early parole
consideration by virtue of now serving a sentence that includes
time for a misdemeanor sexual battery conviction. (Id. at
pp. 726–727.)

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IV. DISPOSITION
The petition for writ of habeas corpus is granted. CDCR is
directed to evaluate petitioner for early parole consideration
within 60 days of remittitur issuance.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.

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