June 24, 2021 By Paul Wallin

In re Viehmeyer: Can a Person Be Eligible For Early Parole Under Prop 57 if She is Convicted of Violent and Non-violent Felonies?

In 2002, Viehmeyer was pulled over in Santa Ana, California for making an illegal “U-turn” and while running the plates, the officer found the vehicle was reported stolen. Viehmeyer got out of his car and began running from the police. While running, Viehmeyer pulled out a gun and fired four shots at the officers, but was later arrested by police.

Viehmeyer was convicted by a jury of attempted voluntary manslaughter, assault with a firearm on a peace officer, possession of a firearm by a felon, and unlawful taking of a vehicle. At sentencing, the trial court designated assault with a firearm on a peace officer as the principal term which carried an 8-year sentence plus a 20-year enhancement for discharging a firearm in commission of a crime. However, the court also sentenced Viehmeyer to the unlawful taking of a vehicle.Prop 57 Wallin & Klarich Criminal Defense Attorney Orange County

Viehmeyer attempted to exercise his right to early parole under Prop 57 but was denied by the CDRC.  Viehmeyer filed a Writ of Habeas Corpus Petition with the trial court which was denied and then appealed that decision to the 4th Appellate District of California.

The Court of Appeal granted review looking into the trial court’s denial relief under prop 57. In his petition, Viehmeyer argued that he was eligible for early parole pursuant to Proposition 57(Prop 57).  Viehmeyer relied on a case In re: Mohammed, where Habeas relief was granted when the defendant has been convicted of inherently dangerous charges but was also convicted of a non-violent offense.

The Attorney General successfully argued that under Penal Code 667.5, Viehmeyer’s manslaughter charge is a violent felony which precluded him from the benefits of Prop 57. The Court agreed with the Attorney General and denied the Petitioner’s appeal. However, in doing so, the Court disagreed with the holding from In re: Mohammed. The Viehmeyer court states, “We respectfully disagree with our colleagues in the Second Appellate District and reject the conclusion that section 32(a) authorizes early parole consideration for an inmate who has suffered both violent and nonviolent felony offenses.”

Consequently, there is now a disagreement between California Appellate Courts as to whether early parole is available pursuant to Prop 57 when a person is charged with a violent and non-violent felony. As such, it will likely be up to the Supreme Court of California to answer this question and give guidance to the lower courts of appeal.

Proposition 57

The Public Safety and Rehabilitation Act of 2016 or Prop 57 added section 32 to Article I of the California Constitution.  Section 32 states “[a] person convicted of a nonviolent felony offense shall be eligible for early parole consideration after completing the full term for his or her primary offense.”  Of note section32(a) does not define a nonviolent felony.

The California Department of Corrections (CDCR) added rules to allow for inmate’s early release from prison under Section 32. However, the CDRC denies the possibility of early parole any inmate currently incarcerated for a violent felony as defined by Penal Code 667.5. (for an explanation of Penal Code 667.5 please click the link https://www.youtube.com/watch?v=zBiHMKMrp2o). 


In doing so, the CDRC may have gone beyond the scope of Prop 57 in creating its guidelines.


In re: Mohammed:

Mohammed pled no contest to 9 counts of robbery and 6 counts of receipt of stolen property. Of note, a no-contest plea has the same legal effect as a guilty plea except it cannot be used in civil court as an admission). Mohammed applied to the CDRC for early parole based on Prop 57 but the CDRC denied his request. In denying, the CDRC stated Mohammed was ineligible as his robbery charges were violent offenses pursuant to Penal Code 667.5. Mohammed filed a Writ of Habeas Corpus Petition challenging the decision of the CDRC which was granted. The Court found that the plain meaning of Prop 57 and the California Constitution allowed for early parole so long as the defendant is charged with at least one non-violent felony.  As such, the Court overruled the CDRC as Mohammed was charged with a non-violent felony.    


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AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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