In re Ontiveros CA4/1

Filed 5/18/22 In re Ontiveros CA4/1 Opinion following transfer from Supreme Court OPINION AFTER TRANSFER FROM THE

CALIFORNIA SUPREME COURT

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re ISRAEL ONTIVEROS on Habeas D077905 Corpus. (San Diego Super. Ct. Nos. SCD264642, SCD263128, and HC24134)

ORIGINAL PROCEEDING in habeas corpus. Steven E. Stone, Judge. Petition denied. Israel Ontiveros, in pro. per., and Ava R. Stralla, under appointment of the Court of Appeal, for Petitioner. Rob Bonta, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Amanda J. Murray and Gregory J. Marcot, Deputy Attorneys General, for Respondent. In 2017, Israel Ontiveros was convicted of multiple felonies and sentenced to state prison in two criminal cases. In the first case, a jury convicted Ontiveros on two counts of assault with a deadly weapon

(Pen. Code, § 245, subd. (a)(1)), a nonviolent felony (id., § 667.5, subd. (c)). With enhancements and priors, the trial court sentenced him to an effective prison term of 19 years 8 months. In the second case, Ontiveros pleaded guilty to one count of robbery (id., § 211), a violent felony (id., § 667.5, subd. (c)(9)). With priors, the court sentenced him to a term of seven years in prison, to run consecutively to the sentence in the first case. Two years later, Ontiveros requested early parole consideration under Proposition 57, the Public Safety and Rehabilitation Act of 2016. Proposition 57 amended the California Constitution to provide, in relevant part, 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).) The California Department of Corrections and Rehabilitation (Department) denied his request based on Department regulations implementing Proposition 57, which exclude from eligibility for early parole consideration any inmate who “is currently serving a term of incarceration for a ‘violent felony,’ ” as defined in Penal Code section 667.5, subdivision (c). (Cal. Code Regs., tit. 15, § 3490, subds. (a)(5), (c).) The trial court likewise denied Ontiveros’s petition for writ of habeas corpus. The court reasoned that, because one of Ontiveros’s convictions was for a violent felony (robbery), he was ineligible for early parole consideration under Proposition 57. Ontiveros petitioned this court for habeas relief. He relied primarily on In re Mohammad (2019) 42 Cal.App.5th 719 (Mohammad), revd. 12 Cal.5th 518, which held that an inmate is eligible for early nonviolent offender parole consideration under Proposition 57 as long as any of the inmate’s current convictions is for a nonviolent offense, even if he was convicted of other,