In re Viehmeyer
Annotate this CaseA trial court denied Robbie Viehmeyer’s petition for writ of habeas corpus, a petition based on the contention that Viehmeyer was eligible for early parole consideration under subdivision (a) of section 32 to article I of the California Constitution. While being pursued on foot by two police officers, Viehmeyer fired a semiautomatic pistol four times directly at the head of one of the officers. Viehmeyer was convicted of attempted voluntary manslaughter with an enhancement for personal use of a firearm, assault with a firearm on a peace officer with enhancements for personal use and personal discharge of a firearm, possession of a firearm by a felon, and the unlawful taking of a vehicle. For purposes of sentencing, the trial court selected assault with a firearm on a peace officer as the primary offense. Viehmeyer served the full term for the primary offense, which section 32(a) defined as “the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement.” Viehmeyer remained incarcerated on the sentences imposed on the personal discharge of a firearm enhancement, the counts for possession of a firearm and unlawful taking of a vehicle, and for the sentencing enhancements for prior convictions. Viehmeyer argued that, pursuant to section 32(a), he was eligible for early parole consideration and relied on In re Mohammad, 42 Cal.App.5th 719 (2019), review granted Feb. 19, 2020, S259999 (Mohammad), to support that argument. The Attorney General contended Viehmeyer was not eligible for early parole consideration because of (1) the conviction for attempted voluntary manslaughter, which is a violent felony under Penal Code section 667.5(c) by virtue of the use of a firearm in its commission, and (2) the personal discharge of a firearm enhancement attendant to the assault conviction. The Court of Appeal agreed with the Attorney General and denied relief.
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