Case Number:?BS171390????Hearing Date:?October 04, 2018????Dept:?85

Anthony Shorter v. California Department of Corrections and Rehabilitation, et al.,

BS 171390

Tentative decision on demurrer: sustained without leave to amend

Respondent California Department of Corrections and Rehabilitation and Scott Kernan in his official capacity as Secretary of CDCR, (collectively, ?CDCR?) demur to the Petition and Complaint (?Petition?) filed by Petitioner Anthony Shorter (?Shorter?).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

  1. Statement of the Case

Shorter commenced this proceeding on October 18, 2017.??The Petition alleges in pertinent part as follows.

????????????On November 8, 2016, California voters approved Proposition 57 (?Prop. 57?).??Prop. 57 amended the California Constitution to make individuals convicted of non-violent felony offenses eligible for parole consideration after serving the full prison term for their primary offense.??Neither Prop. 57 nor any other statutory law exhaustively lists all ?nonviolent felonies.???Penal Code section 667.5(c), however, provides a definitive list of ?violent felonies? under state law.

????????????After Prop. 57 was enacted, CDCR issued several public statements explaining the repercussions of the proposition.??CDCR repeatedly confirmed that all inmates are eligible for early parole consideration unless their convictions were designated as violent by Penal Code section 667.5(c).

????????????On March 24, 2017, CDCR submitted draft regulations to the Office of Administrative Law (?OAL?) which purportedly would implement Prop. 57.??The regulations define a ?nonviolent offender? as an inmate who is not (1) condemned or incarcerated for a term of life without the possibility of parole or incarcerated for a term of life with the possibility of parole, including an alternative sentence under Three Strikes; (2) serving a term of incarceration for a ?violent felony? as defined in Penal Code section 667.5(c); or (3) convicted of a sexual offense that requires registration as a sexual offender under Penal Code section 290.??The regulations were eventually codified at 15 CCR sections 2449.1(a)(3) and 3490(a)(3) (?CDCR Regulations?).

????????????Shorter, an individual incarcerated in a California state prison for a non-violent Three Strikes offense conviction, alleges two causes of action.??First, Shorter alleges a cause of action for a writ of traditional mandamus under Code of Civil Procedure (?CCP?) 1085.??Shorter alleges that Respondents have failed to comply with their duties under Article I, Section 32(a)(1) of the California Constitution and the Administrative Procedure Act (?APA?) by adopting the CDCR Regulations.??Shorter alleges that the CDCR Regulations impose a definition of ?nonviolent offender? which is inconsistent with Penal Code section 667.5(c) and which unilaterally reclassifies nonviolent Three Strike Offenses as ?violent.???Shorter seeks a peremptory writ of mandate directing Respondents to comply with their duties under the California Constitution by (1) voiding and repealing the CDCR Regulations and (2) amending the CDCR Regulations to make eligible for early parole consideration all individuals serving alternative sentences for nonviolent Three Striker Offenses, unless those individuals are serving sentences exclusively for violent felonies as defined by Penal Code section 667.5(c).

????????????Second, Shorter alleges a cause of action for declaratory relief.??Shorter seeks a declaration that the CDCR Regulations are void as (1) inconsistent with Article I, Section 32(a)(1) of the California Constitution, (2) inconsistent with state law including Penal Code section 667.5(c), (3) exceeding the scope of authority granted to Respondents under the Constitution, and (4) impermissibly impairing the scope of Article I, Section 32(a)(1) of the California Constitution.

  1. Applicable Law

Demurrers are permitted in administrative mandate proceedings.??CCP ??1108, 1109.??A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face.

Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings.??CCP ?430.30(a);?Coyne v. Krempels, (1950) 36 Cal.2d 257.??The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading.??CCP ?430.10.??A demurrer is timely filed within the 30-day period after service of the complaint.??CCP ? 430.40;?Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (?uncertain? includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP ?411.35 or (i) by ?411.36.??CCP ?430.10.??Accordingly, 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.?CCP ?430.30(a);?Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay.??Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief.?Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547;?Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339.??The question of plaintiff?s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court.??Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47.??The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.??Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403.??Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.??Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.??CCP ?430.41(a).??As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies.??Id.??The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.??Id.??The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met.??CCP ?430.41(a)(3).

  1. Analysis[1]

Respondent CDCR demurs to Shorter?s Petition on the ground that it fails to state facts sufficient to constitute a cause of action.??CDCR is exempt from complying with the meet and confer requirement.??CCP ?430.41(d)(1).

Prop. 57 provides in pertinent part: ?Parole Consideration: 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(a)(2).??Subdivision (b) of this constitutional provision states that CDCR shall adopt regulations in furtherance of these provisions.

The CDCR Regulations challenged by Shorter identically define a ?nonviolent offender? for purposes of the California Constitution as all inmates except those,?inter alia,?currently incarcerated for a term of life with the possibility of parole, or who are incarcerated for a ?violent felony? as set forth in Penal Code section 667.5(c).??15 CCR ?? 2449.1(a)(3), 3490(a)(3).??The result of this regulation is that inmates who have not been incarcerated for a violent felony as defined in Penal Code section 667.5(c) are nonetheless excluded from the ?nonviolent offender? definition because they are serving an indeterminate sentence of 25 years to life with the possibility of parole under the Three Strikes law.[2]

Shorter seeks a writ of mandate directing CDCR to comply with its duties under Article I, section 32 of the California Constitution to (1) repeal the two CDCR Regulations and (2) amend its regulations to make eligible for parole all inmates serving alternative sentences for non-violent third strike offenses, unless the inmate is serving a life sentence?exclusively?for violent felonies as defined by Penal Code section 667.5(c).

Respondent CDCR contends that Shorter cannot prevail as a matter of law on his traditional mandamus cause of action because he is not a beneficially interested party within the meaning of CCP section 1085.??Dem. at 5-6.??According to CDCR, Shorter is not beneficially interested because he is not a non-violent offender who would benefit from the mandate which he seeks.??Dem. at 6.

A rule, a party must be beneficially interested to seek a writ of mandate.??Chorn v. Workers’ Comp. Appeals Bd.,?(2016) 245 Cal.App.4th 1370, 1382.??The requirement that a petition be beneficially interested has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some right to be preserved or protected over and above the interest held in common with the public at large.??Ibid.??The beneficial interest must be both direct and substantial.??Ibid.

Shorter is serving an indeterminate third strike sentence of 25 years to life for two counts of first degree residential burglary with a person present.??RJN Ex. 1.??Residential burglary with a person present is a ?violent felony? under the Three Strike Law.??CCP ?667.5(c)(21) (stating that a violent felony includes ?[a]ny burglary of the first degree ? where it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.?).??Shorter also received an indeterminate third strike sentence of 25 years to life on a count of first degree burglary (count 6) that is not a violent felony under CCP section 667.5.??RJN Ex. 1.??The sentence on Shorter?s fourth count (credit card theft) was stayed.??Id.

Because he is serving a three strikes sentence of 25 years to life based on two counts of a violent offense, Shorter is not eligible for parole for 25 years.??A writ in Shorter?s favor would not entitle him to earlier consideration for parole even though he is serving a concurrent third strike sentence on one count that is not a violent offense.

In?People v. Johnson,?(2015) 61 Cal.4th 674, 694-95, the California Supreme Court held that when a trial court resentences third strike defendant under Proposition 36[3]?and the defendant has one or more serious or violent felony convictions, the court must resentence on counts that are not serious or violent because a lower sentence on those counts could result in earlier consideration of the defendant for parole after serving the minimum 25-year term if the inmate is not considered dangerous by the Parole Board.

Johnson?is distinguishable because it involved sentencing.??Unlike?Johnson, there is nothing about a writ compelling the amendment of CDCR Regulations to consider for parole a third striker who has been sentenced for a non-violent offense which could affect Shorter?s third strike sentence for a violent offense.??As Respondents argue, all of Shorter?s convictions, nonviolent and violent, are aggregated into one term of imprisonment during which he ?literally ?is convicted of a [violent] felony offense.????Reply at 2;?see?In re Reeves,?(2005) 35 Cal.4th 765, 773 (restriction on credits for violent offense applies throughout the term of imprisonment despite concurrent term for non-violent offense).??Consideration of Shorter for parole on his non-violent third strike indeterminate offense makes no sense where he must serve an indeterminate sentence of 25 years to life on his violent third strike offenses.??An inmate can only be granted one parole, and the parole is from a single term of imprisonment.


  1. Conclusion

CDCR?s demurrer is sustained without leave to amend.

[1]?CDCR requests judicial notice of an amended abstract of judgment (Ex. 1).??The request is granted.??Evid. Code ?452(d).


[2]?The Second District Court of Appeal recently set aside the regulations preventing parole for non-violent third strikers in?In re Vicenson D. Edwards, B288086, a case which is not yet final.

[3]?Proposition 36 amended Penal Code section 667 to enable a defendant with two or more prior serious and/or violent felony convictions to receive lesser sentences if their current offense is not a serious or violent felony.??Penal Code ?667(e)(2)(C).