Monday, June 21, 2021

In re Ontiveras (Cal. Ct. App. - June 21, 2021)

What do you do if you're a court and the voters pass an initiative in which the text says one thing but the voters fairly clearly didn't mean what that text says?

That's a classic law school discussion question, and it's also the underlying issue in today's opinion by the Court of Appeal.

There's no doubt that when voters passed Proposition 57, they wanted to give parole consideration for defendants convicted of nonviolent offenses.  Here's what the text says:  “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.”

If you're convicted only of a violent offense, Prop. 57 clearly doesn't apply, so no early parole eligibility.  By contrast, if you're convicted only of a nonviolent offense, indisputably, Prop. 57 applies.

But what if you're convicted of both a violent offense (or more of 'em) and also a nonviolent offense (or several)?  Does Prop. 57 apply then?

The following seem almost undeniably true:

(1) The text of Prop. 57 dictates that, yes, you get parole eligibility, because you've in fact been "convicted of a nonviolent felony offense," yet

(2)  Having Prop. 57 work that way would be completely silly, because it would mean that someone who committed and was convicted of more crimes (e.g., a violent offense PLUS a nonviolent one) would be treated better than someone who was convicted of only the violent offense -- the latter would clearly be ineligible for early parole consideration, whereas the former would be eligible.

So what do you do?

A late 2019 opinion from the Court of Appeal says, well, sorry, we follow the text.  The California Supreme Court then granted review of that opinion.  Today's opinion from the Court of Appeal says, nope, I'm not going to do something that the voters obviously didn't intend, so I'm not going to follow the text.

Today's opinion will also be granted review by the California Supreme Court.  Which will then decide who's right.

It's a tough case for textualists.  On the one hand, they like to follow "unambiguous" text.  On the other hand, they're generally "tough on crime" and don't want "windfalls" for criminals.

These two things are in fairly stark conflict here.

We'll see how the California Supreme Court comes out.  But Justice Guerrero makes clear in today's opinion that the result she doesn't think that there should be much of a fight at all about the merits there.  "[W]e disagree that any reasonable person could have intended such a result. Its absurdity is clear even without considering the specific context of Proposition 57. Our society abhors crime and seeks to deter and punish it. We do not reward it. It, indeed, “cannot be . . . that voters intended a defendant who is convicted of more crimes, i.e., both violent and nonviolent felonies, to be eligible for early parole consideration while a defendant convicted of fewer crimes, i.e., the same violent felony but no nonviolent felonies, is not.” (See Mohammad, supra, 42 Cal.App.5th at p. 727, review granted, italics added.) This result is so absurd and unreasonable that the electorate could not have intended it."