Opinion
G055939
07-23-2018
THE PEOPLE, Plaintiff and Respondent, v. MATUA MONGO RUSHING, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. M-17149) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In 1995, Matua Rushing received a sentence of 15 years to life plus five years in prison following a conviction for second degree murder (Pen. Code, § 187, subd. (a); all statutory citations are to the Penal Code) and other offenses. He appeals from the superior court's November 2, 2017, order denying his postjudgment petition for writ of administrative mandate. His petition sought immediate release from imprisonment under the Public Safety and Rehabilitation Act of 2016 (Proposition 57). Appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Rushing filed a supplemental brief. Because our review of the record discloses no arguable issues, we affirm the order.
Counsel filed a declaration stating she thoroughly reviewed the record in this case, as did an attorney at Appellate Defenders, Inc. Counsel advised Rushing he was filing a brief on his behalf per the procedures outlined in Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. He provided Rushing with a copy of the brief and informed him he personally could file a supplemental brief raising any points he wished to call to this court's attention. He made a copy of the record available to Rushing. Counsel advised Rushing he could ask counsel to withdraw and counsel would move to be relieved upon his request. --------
I
FACTS AND PROCEDURAL HISTORY
Rushing was convicted of second degree murder and several other offenses. In July 1995, the court imposed a term of 15 years to life for second degree murder, plus five years for use of a deadly weapon (§ 12022.5, subd. (a).) The court imposed concurrent or stayed terms for two counts each of second degree burglary and second degree robbery. This court affirmed the judgment. (People v. Rushing (Feb. 27, 1997, G018421) [nonpub. opn.].)
In August 2017, Rushing filed a petition for writ of administrative mandate in the Orange County Superior Court seeking to compel his immediate release from prison. He asserted he had served more than "the base term that is mandated for" second degree murder and a deadly weapon enhancement. He asserted the Department of Corrections and Rehabilitation (CDCR) was "implementing policies and procedures that" were contrary to Proposition 57, including the following: "The inmate's behavior will be reviewed and considered by BPH (Board of Parole Hearings). The commissioners may find that inmate suitable for parole if they believe he or she does not pose a current threat to public safety." He also asserted CDCR's regulations (Cal. Code Regs., tit. 15, § 3490) defining "nonviolent offender" to include any person incarcerated for a term of life with the possibility of parole were not consistent with Proposition 57. He asserted he was "convicted of a non-violent offense." He also sought to "[i]nvalidate [CDCR's] regulation in regards to the vague and ambiguous term of determining if [he] would pose an unreasonable risk of danger to society [and] . . . language that since petitioner is serving a life sentence he cannot obtain relief pursuant to the Act."
The superior court denied the petition for the following reasons: (1) lack of proof of service on the real party in interest; (2) failure to establish standing to pursue relief via administrative mandate because Rushing did not demonstrate a unique interest to be served or protected by challenging the validity of administrative regulations adopted by CDCR; (3) Rushing was convicted of second degree murder, an offense statutorily classified as a violent felony and therefore rendered him ineligible under the plain terms of Proposition 57.
II
DISCUSSION
Following Wende guidelines, we have reviewed counsel's brief and the appellate record. To assist the court in its review, counsel identified several issues for our consideration: Whether second degree murder is necessarily a violent offense rendering Rushing ineligible for relief under Proposition 57; whether CDCR failed to properly implement the provisions of Proposition 57; whether CDCR improperly added disqualifying considerations to its regulations, including whether the inmate poses a current threat to public safety; whether service on the real party in interest was necessary; and whether Rushing established standing to pursue administrative relief.
Rushing has filed a supplemental brief. (People v. Kelly (2006) 40 Cal.4th 106). He recounts some of the facts allegedly underlying his second degree murder conviction, and argues "the elements of his second degree murder conviction . . . [are] consistent with a vehicular manslaughter conviction," which he asserts is a nonviolent offense. Relying on dictionary definitions of "'violence,'" Rushing argues there is "no reason to assume that reasonable voters seeking to anticipate the consequences of enacting [Proposition 57] would have concluded that second degree murder as committed by appellant is a serious crime exempt from [its] reach." He also faults CDCR's regulations as erroneously "limiting parole eligibility for inmates whom [it] was passed for."
Proposition 57 added Section 32 to Article I of the California Constitution. Section 32 reads as follows: "(a) The following provisions are hereby enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law: [¶] (1) 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. [¶] (A) For purposes of this section only, the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence. [¶] (2) Credit Earning: The Department of Corrections and Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements. [¶] (b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety."
It arguable whether the superior court had jurisdiction to entertain Rushing's petition for administrative mandate, and whether the denial order is appealable. (See People v. Dynes (2018) 20 Cal.App.5th 523, 528 [section 32 does not create or authorize a substantial right to be resentenced or authorize a statutory postjudgment motion with the superior court for recall or resentencing in the first instance; inmate generally first must request relief through CDCR]; People v. Gallardo (2000) 77 Cal.App.4th 971, 980 [criminal appeal by the defendant may be taken from a final judgment of conviction and from an order made after judgment affecting his substantial rights]; In re Roberts (2005) 36 Cal.4th 575, 584 [denial of parole is reviewed through a petition for writ of habeas corpus].)
In any event, although section 32 does not define "nonviolent felony offense," second degree murder, the sentence for which is 15 years to life in prison (§§ 187 [murder defined], 189 [degrees of murder], 190 [punishment for second degree murder is a term of 15 years to life]), is defined as a "violent" felony by section 667.5. Section 667.5 provides "(c) For the purpose of this section, 'violent felony' shall mean any of the following: (1) Murder or voluntary manslaughter. [¶] . . . (7) Any felony punishable by death or imprisonment in the state prison for life." Rushing is not serving a term for a nonviolent offense. We need not address Rushing's claims concerning CDCR's regulations, and service of his petition, because it is plain he is not entitled to relief under Proposition 57.
Our review of the entire record, including the matters identified by counsel, does not show the existence of an arguable issue. Consequently, we affirm the judgment. (Wende, supra, 25 Cal.3d at p. 443.)
III
DISPOSITION
The order is affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. GOETHALS, J.