52 Cal.App.5th 1088
Cal. Ct. App.2020Background
- Proposition 57 (Cal. Const., art. I, § 32) makes "any person convicted of a nonviolent felony offense" eligible for parole consideration after completing the full term of the primary offense and authorizes CDCR to adopt implementing regulations that "protect and enhance public safety."
- CDCR promulgated regulations (Cal. Code Regs., tit. 15, §§ 3490–3491) that: define "violent felony" by reference to Penal Code § 667.5(c); and categorically bar any inmate "convicted of a sexual offense that currently requires or will require registration" under Penal Code § 290 from early parole consideration.
- Rick Ryan Febbo was convicted of three counts of felony indecent exposure (Pen. Code § 314), has prior indecent-exposure convictions, must register under § 290, and was denied early parole consideration under the CDCR regulation.
- Febbo filed a habeas petition; the trial court held the CDCR regulation conflicted with § 32(a)(1) and ordered Febbo evaluated for early parole consideration. CDCR appealed.
- The Court of Appeal held indecent exposure is a "nonviolent felony offense" under § 32(a)(1) and that the CDCR regulation is invalid to the extent it denies early parole consideration solely because of a current or prior indecent-exposure conviction; the court left broader questions about excluding all § 290 registrants unresolved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether indecent exposure (Pen. Code § 314) is a "nonviolent felony offense" under Prop. 57 § 32(a)(1) | Febbo: indecent exposure involves no physical force, injury, sexual contact, coercion, or threats and therefore is nonviolent | CDCR: it may define nonviolent/violent via regulations and exclude registrable sex offenders to protect public safety | Court: indecent exposure is a nonviolent felony under § 32(a)(1); regs invalid to the extent they bar eligibility solely for indecent exposure |
| Whether CDCR may categorically exclude all inmates with current or prior offenses requiring registration under Penal Code § 290 from early parole consideration | Febbo: § 32(a)(1) unambiguously grants eligibility to those convicted of nonviolent felonies; CDCR cannot override that text by regulation | CDCR: § 32(b) certification duty and public-safety purpose permit excluding § 290 registrants as a class | Court: declined to resolve the broad issue; acknowledged some § 290 offenses are violent though not listed in § 667.5(c) and that CDCR may exclude violent felonies not listed in § 667.5(c) |
| Whether the CDCR regulation is a valid exercise of delegated rulemaking authority (interpretive/quasi‑legislative) | Febbo: the regulation conflicts with the plain text of § 32(a)(1) and is not a proper interpretation | CDCR: the rule is within delegated authority and reasonably necessary to protect public safety | Court: as applied to indecent exposure, the CDCR interpretation conflicts with § 32(a)(1) and is invalid; agency authority is limited by the constitutional text |
Key Cases Cited
- Alliance for Constitutional Sex Offense Laws v. Department of Corrections & Rehabilitation, 45 Cal.App.5th 225 (2020) (CDCR exceeded rulemaking authority by categorically excluding sex offenders from Prop. 57 parole consideration)
- In re Gadlin, 31 Cal.App.5th 784 (2019) (construction of § 32 and limits on excluding inmates with prior registrable offenses)
- In re Edwards, 26 Cal.App.5th 1181 (2018) (CDCR regulatory certification under § 32 and adoption process)
- Association of California Ins. Companies v. Jones, 2 Cal.5th 376 (2017) (distinguishing quasi‑legislative and interpretive regulations and standards of review)
- California Cannabis Coalition v. City of Upland, 3 Cal.5th 924 (2017) (principles for construing voter‑enacted initiatives and ascribing ordinary meaning)
- Hi‑Voltage Wire Works, Inc. v. City of San Jose, 24 Cal.4th 537 (2000) (use of extrinsic ballot materials to test construction of initiatives)