Judge: Mitchell L. Beckloff, Case: BS172639, Date: 2022-09-09 Tentative Ruling

Case Number: BS172639    Hearing Date: September 9, 2022    Dept: 86

JOHNSON v. KERNAN

Case Number: BS172639

Hearing Date: September 9, 2022

[Tentative]       ORDER SUSTAINING DEMURRER

Respondent Kathleen Allison, Secretary for the California Department of Corrections and Rehabilitation (CDCR) demurs to the petition. Petitioner did not file an opposition.

The demurrer is sustained.

ALLEGATIONS IN THE PETITION

On November 26, 1996, Petitioner was convicted of (1) possession of an access card with intent to use it fraudulently and (2) possession of a false identification card to facilitate the commission of a forgery. On January 2, 1997, he was sentenced to an indeterminate life term, with a minimum 25-year sentence.

In 2016, California voters passed Proposition 57, which added Section 32 to Article I of the California Constitution. Under section 32, subdivision (a)(1), “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.” In response to Proposition 57, the CDCR adopted emergency regulations to carry out its new legal mandate. Relevant to the petition, the CDCR promulgated a regulation—title 15, section 3490 subdivision (a)(1)—which Petitioner claims unlawfully redefines the statutory language and alters the plain languages of “non-violent felony offense” and “non-violent offender” to exclude offenders such as Petitioner from entitlement to the parole process under Proposition 57.

Petitioner filed an administrative appeal of the CDCR’s emergency regulation. The facility where Petitioner is incarcerated rejected Petitioner’s appeal multiple times on the basis that Petitioner did not qualify for non-violent parole process under Proposition 57 because of Petitioner’s third-strike status. According to the appellate body, the CDCR’s newly adopted regulations and a request to change the emergency regulations was beyond the scope of the appeal process.

The petition, filed on December 27, 2017 (originally as a petition for habeas corpus), challenges the CDCR’s newly adopted regulations. Petitioner contends the regulations, which exclude him from Proposition 57 parole consideration, are inconsistent with Proposition 57’s intent and violate his equal protection.

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STANDARD OF REVIEW

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc. § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.”  (California Logistics, Inc. v. State (2008) 161 Cal.App.4th 242, 247.)

A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) Indeed, where the facts are not in dispute and the nature of the plaintiff's claim is clear, but no liability exists under substantive law and no amendment would change the result, the sustaining of a demurrer without leave to amend is proper. (City of Ceres v. City of Modesto (1969) 274 Cal. App. 2d 545, 554.) The burden is on the plaintiff to show how the complaint might be amended so as to cure the defect. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.)

ANALYSIS

Respondent CDCR demurs to the petition on the grounds that Petitioner has failed to state a claim.

A writ of mandate will lie to “compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station” (Code Civ. Proc. § 1085) “where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc. § 1086.) The writ will issue against a county, city or other public body or against a public officer. (Housing Authority of the City of Los Angeles v. City of Los Angeles (1952) 38 Cal.2d 853, 869-871; Hawthorn v. City of Beverly Hills (1952) 111 Cal.App.2d 723, 731.) Code of Civil Procedure section 1085 permits judicial review of ministerial duties as well as quasi-legislative and legislative acts. (County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 972.)

Here, the CDCR contends Petitioner challenges the CDCR’s quasi-legislative act of adopting title 15, section 3490 subdivision (a)(1) (Section 3490(a)(1)) to exclude third-strike inmates from Proposition 57 parole consideration. (Pet., pp. 6-12.) To challenge “a quasi-legislative decision, the petitioner has the burden of proving the agency’s decision is unreasonable or invalid as a matter of law, and there is a presumption that the agency ascertained sufficient facts to support its action.” (Fair Education Santa Barbara v. Santa Barbara Unified School Dist. (2021) 72 Cal.App.5th 884, 895.)

Here, however, the CDCR contends no claim can be stated because—as result of the Court’s ruling in In re Edwards (2018) 26 Cal.App.5th 1181, 1192—the CDCR amended its regulations. (Cal. Code Regs., tit. 15, §§ 3490 et seq., Register 2018, No. 52 (Jan. 1, 2019).)

In particular, the version of Section 3490(a)(1) that existed at the time Petitioner filed his writ petition no longer exists. The amended regulations provide definitions for “determinately-sentenced nonviolent offender” (Cal. Code Regs., tit. 15, § 3490, subd. (a)) and “indeterminately-sentenced nonviolent offender” (Cal. Code Regs., tit. 15, § 3495, subd. (a)). In compliance with the Court’s ruling in In re Edwards, an inmate incarcerated for life with the possibility of parole for an offense that is not a violent felony may now be eligible for Proposition 57 parole consideration. (Cal. Code Regs., tit. 15, §§ 3495-3496.)

As such, Petitioner’s claims appear moot.

CONCLUSION

For the foregoing reasons, the court will sustain the demurrer. Sustaining the demurrer without leave to amend appears appropriate here. Certainly, Petitioner has filed no opposition indicating how he might amend the petition to state a cause of action.

IT IS SO ORDERED.

September 9, 2022                                                               ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court