*1 IN THE SUPREME COURT OF
CALIFORNIA In re GREGORY GADLIN on Habeas Corpus.
S254599 Second Appellate District, Division Five B289852
Los Angeles County Superior Court BA165439
December 28, 2020 Chief Justice Cantil-Sakauye authored the opinion of the Court, in which Justices Corrigan, Liu, Cuéllar, Kruger, Groban and Hill [*] concurred.
________________________
[*] Presiding Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In re GADLIN
S254599 In November 2016, the California electorate approved Proposition 57, the Public Safety and Rehabilitation Act of 2016. The initiative amended the California Constitution to provide, in relevant part, that “ [a]ny 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, subd. (a)(1) (article I, section 32(a)(1)).) [1] The initiative also directed the Department of Corrections and Rehabilitation (the Department) to “adopt regulations in furtherance of these provisions” and instructed the Secretary of the Department to “certify that these regulations protect and enhance public safety.” ( Art. I, § 32, subd. (b) (article I, section 32(b)).)
The Department adopted regulations implementing a nonviolent offender parole consideration process. Those regulations exclude from nonviolent offender parole consideration any inmate who “is convicted of a sexual offense that currently requires or will require registration as a sex offendеr under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code. ” ( Cal. Code Regs., tit. 15, § 3491, subd. (b)(3) [governing determinately sentenced offenders]; see also id ., § 3496, subd. (b) [governing indeterminately sentenced offenders].) [2] We granted review to address the validity of these provisions.
The Department asserts it is authorized by article I, section 32(b) to exclude from nonviolent offender parole consideration all inmates convicted of a registerable sex offense, regardless of whether that offense is defined by the regulations as a nonviolent felony and regardless of whether the inmate is currently incarcerated for that conviction. Indeed, the Department’s regulations categorize inmates convicted of a registerable sex offense as “nonviolent offenders” unless, among other criteria, they are currently incarcerated for a violent felony listed in Penal Code section 667.5, subdivision (c). (Cal. Code Regs., §§ 3490, subd. (a), 3491, subds. (a), (b), 3495, subd. (a), 3496, subds. (a), (b).) Nonetheless, the regulations entirely exclude from nonviolent offender parole consideration inmates previously convicted or currently convicted of any registerable sex offense. We conclude that this categorical exclusion conflicts with the constitutional directive that inmates “convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration.” ( Art. I, § 32(a)(1).)
We emphasize thаt this determination does not require the release on parole of any inmate. The evaluation of an inmate’s suitability for parole and the processes involved in conducting that evaluation remain squarely within the purview of the Department and the Board of Parole Hearings. We emphasize, too, that our conclusion here does not disturb the Department’s exclusion from parole consideration of inmates currently incarcerated for violent felony sex offenses as defined in Penal Code section 667.5, subdivision (c). The Department is not permitted, however, to entirely exclude from parole consideration an entire class of inmates when those inmates have been convicted of nonviolent felony offenses.
I. F ACTS A ND P ROCEDURAL H ISTORY A. The Underlying Conviction In 2007, a jury convicted petitioner Gregory Gadlin of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) [3] The jury sustained allegations that he had previously been convicted of two serious felonies (Pen. Code, § 667, subd. (a)(1)): a 1984 conviction for forcible rape ( id. , § 261, former subd. (2)), and a 1986 conviction for forcible child molestation ( id ., § 288, subd. (b)). Both prior convictions require registration under the Sex Offender Registration Act. (Pen. Code, § 290, subd. (c).)
Following his conviction in 2007, petitioner was sentenced to a total prison term of 35 years to life, consisting of 25 years to life for assault with a deadly weapon under the “ Three Strikes ” law (Pen. Code, §§ 667, subds. (b) – (i), 1170.12), and an additional five years for each of his two prior serious felony convictions. His judgment was affirmed on appeal.
B. The Underlying Habeas Corpus Petitions and the Court of Appeal Opinion After the electorate approved Proposition 57, petitioner filed a petition for a writ of habeas corpus in the Los Angeles County Superior Court. The petition challenged the Department’s determination that petitioner did not qualify for nonviolent offender parole consideration, and specifically challenged the provision of the regulations excluding from nonviolent offender parole consideration inmates like petitioner who had been convicted under the Three Strikes law. The trial court denied the petition, finding that the then-applicable regulations properly excluded inmates serving third strike sentences from eligibility for nonviolent offender parole consideration. It does not appear that either petitioner or the Department addressed in the superior court proceedings the effect of defendant’s prior sex offense convictions on his eligibility for nonviolent offender parole consideration.
Petitioner sought habeas corpus relief in the Court of Appeal. That court appointed counsel, directed counsel to file an amended petition, and eventually issued an order to show cause. In its return to the order to show cause, the Department asserted that petitioner was ineligible for nonviolent offender parole consideration for two reasons: first, because he was serving an indeterminate term pursuant to the Three Strikes law; second, because he had suffered a prior conviction for a sex offense requiring registration under Penal Code section 290. The Department’s first argument is not before us . [4]
The appellate court held that the amended regulations improperly excluded petitioner from nonviolent offender parole consideration based on his two prior sex offense convictions. ( Gadlin , , 31 Cal.App.5th at pp. 789 – 790.) Looking to the language of the constitutional provision, the court determined that “[t]he reference to ‘convicted’ and ‘sentenced’ [in article I, section 32(a)(1)], in conjunction with present eligibility for parole once a full term is completed, make[s] clear that early parole eligibility must be assessed based on the conviction for which an inmate is now serving a state prison sentence (the current offense), rather than prior criminal history. ” ( Id . at p. 789.) The court rejected the Department’s assertion that the Department could exclude offenders with prior sex offense convictions in order to protect public safety, noting that “[t]hese policy considerations . . . do not trump the plain text of section 32[(a)(1)] .” ( Ibid .) The court declined to express any opinion concerning whether the exclusion of inmates based on a current conviction for a nonviolent sex offense also violates the Constitution. ( Ibid .) The Court of Appeal granted the petition and ordered the Department to consider petitioner for parole within 60 days. ( Id. at p. 790.)
Justice Baker authored a concurring opinion agreeing with the majority that individuals convicted of prior sex offenses may not be excluded from nonviolent offender parole consideration under the newly enacted constitutional provision. ( Gadlin , , 31 Cal.App.5th at p. 790 (conc. opn. of Baker, J.).) The concurring opinion, however, maintained that individuals currently incarcerated for nonviolent sex offenses may properly be excluded from nonviolent offender parole consideration. ( Id . at pp. 793 – 796 (conc. opn. of Baker, J.).)
We granted the Attorney General ’s petition for review and directed the parties to address whether the Department had the authority to exclude from nonviolent offender parole consideration inmates with prior sex offense convictions requiring registration. Following oral argument, we asked the parties to submit supplemental briefs addressing whether the Department had the authority to exclude from nonviolent offender parole consideration those inmates with current nonviolent sex offense convictions (that is, convictions not listed as violent in Penal Code section 667.5, subdivision (c)) that require registration. [5] Although petitioner was excluded from nonviolent offender parole consideration based solely on his prior conviction, in light of the concurring opinion below and the interest in resolving the matter expeditiously we will consider the Department’s regulations as they apply to both prior and current convictions.
II. D ISCUSSION
A. Proposition 57
In 2009, a three-judge federal district court panel ordered the Department “to reduce the prisoner population to 137.5% of the adult institution’s total design capacity.” ( Coleman v. Schwarzenegger (E.D.Cal. 2009) 922 F.Supp.2d 882, 962; see also Brown v. Plata (2011) 563 U.S. 493, 501 – 503.) The California Legislature and electorate subsequently enacted several measures aimed to reduce the prison population, including Assembly Bill No. 109 (Stats. 2011, ch. 15, § 482 (2011 – 2012 Reg. Sess.); criminal realignment) and Proposition 36 (the Substance Abuse and Crime Prevention Act of 2000). Still, the issue persisted and in February 2014 the federal district court ordered the Department to implement additional measures.
Against this backdrop, in November 2016 the electorate approved Proposition 57. (Cal. Sect. of State, Statement of Vote Summary Pages (2016) p. 12 <https://elections.cdn.sos.ca.gov/ sov/2016-general/sov/06-sov-summary.pdf> [as of Dec. 17, ( Alliance ).) Counsel in the present matter is the same counsel as appeared in Alliance . We granted review in Alliance and deferred briefing pending resolution of the matter before us. 2020].) [6] As relevant here, the initiative added section 32 to article I of the California Constitution. The new section states: “Any person convicted of a nonviolent felony offense and sentеnced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” ( Art. I, § 32(a)(1).) It further provides that “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.” ( Id ., § 32(a)(1)(A).) Finally, as noted earlier, the new provision directs the Department to “adopt regulations in furtherance of these provisions” and instructs the Secretary of the Department to “certify that these regulations protect and enhance public safety.” ( Id ., § 32(b).)
Article I, section 32(a) identifies the purposes behind the constitutional provision, stating that it was “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.” Uncodified portions of Proposition 57 further identify the initiative’s purpose and intent. Those purposes, in relevant part, are: “1. Protect and enhance public safety. [¶] 2. Save money by reducing wasteful spending on prisons. [¶] 3. Prevent federal courts from indiscriminately releasing prisoners. [¶] 4. Stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 2, p. 141.) The initiative also states that the “act shall be liberally construed to effectuate its purposes.” ( Id ., § 9, p. 146.)
B. The Department’s Regulations In March 2017, the Department proposed emergency regulations to implement Proposition 57. Those regulations, which were adopted on a temporary basis, defined a “nonviolent offender” as an inmate who was not , among other things, serving a term for a violent felony as defined in Penal Code section 667.5, subdivision (c) or convicted of a sex offense requiring registration under Penal Code section 290. (Cal. Code Regs., §§ 3490, former subds. (a), (c), 2449.1, former subds. (a), (c).) Under the emergency regulations, inmates with current or prior sex offense convictions requiring registration were excluded from nonviolent offender parole consideration.
In May 2018, the Department issued final regulations to replace the March 2017 emergency regulations. The May 2018 regulations modified the March 2017 emergency regulations in various ways, including by changing the definition of “nonviolent offenders.” As relevant here, the final regulations do not exclude from the definition of “nonviolent offenders” individuals convicted of a current or prior sex offense requiring registration. (See Cal. Code Regs., §§ 3490, subd. (a) [defining “determinately - sentenced nonviolent offender”] , 3495, subd. (a) [defining “indeterminately - sentenced nonviolent offender”] .) Thus, inmates with prior sex offenses requiring registration may be deemed “nonviolent offenders” under the final regulations (unless they are excluded on another basis). The regulations state, too, thаt nonviolent offenders “shall be eligible for parole consideration by the Board of Parole Heari ngs.” ( Id ., § 3491, subd. (a); see also § 3496, subd. (a).)
The final regulations go on to say that , “[n]otwithstanding [section 3491,] subsection (a), ” even nonviolent offenders are “not eligible for parole consideration” if , among other things, “[t]he inmate is convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code.” ( Cal. Code Regs., § 3491, subd. (b), (b)(3); see also § 3496, subd. (b).) [7]
The final statement of reasons accompanying the May 2018 regulations acknowledged that individuals convicted of a sex offense “are no longer excluded from the definition of ‘nonviolent offender.’ ” ( Dept. of Corrections and Rehabilitation, Credit Earning and Parole Consideration Final Statement of Reasons (2018) p. 14.) It went on to explain that, notwithstanding that definition, inmates currently or previously convicted of a sex offense requiring registration would be excluded from nonviolent offender parole consideration based on public safety concerns. ( Id . at pp. 14, 20.) [8] The statement asserted that such offenders pose a “potentially high risk of committing further sex offenses after release from incarceration or commitment, and that protection of the public from reoffending by these offenders is a paramount public interest.” ( Id . at p. 20.) [9]
C. Other Cases Regarding Nonviolent Offender Parole Consideration
In addition to excluding from parole consideration inmates
convicted of prior offenses requiring registration, the May 2018
regulations categorically excluded certain other “nonviolent
offenders”: (i) inmates deemed ineligible based on a public
safety screening and referral, and, as noted, (ii) inmates serving
an indeterminate term under the Three Strikes law, even when
the third strike was a nonviolent felony. Courts of Appeal have
invalidated both exclusions as inconsistent with Proposition 57
and have directed the Department to adopt new regulations
consistent with the constitutional provision. (See
In re McGhee
(2019) 34 Cal.App.5th 902 (
McGhee
);
Edwards
, ,
D. Standard of Review and Principles of Statutory Interpretation
The principles applicable to determining the validity of
regulations promulgated by a state agency are well settled.
Those precepts have traditionally been applied in the context of
a state agency’s regulations addressing statutes enacted by the
Legislature. (See
Morris v. Williams
(1967)
In evaluating the validity of a regulation under these
principles, we first ask whether the regulation is “ ‘ consistent
and not in conflict with ’ ” the provision that authorizes it.
(
Morris
, , 67 Cal.2d at p. 748, italics omitted.) We then
inquire whether the regulation is reasonably necessary to
effectuate the purpose of the authorizing law. (
Id.
at pp. 748 –
749; see also Gov. Code, § 11342.2 [“Whenever by the express or
implied terms of any statute a state agency has authority to
adopt regulations to implement, interpret, make specific or
otherwise carry out the provisions of the statute, no regulation
adopted is valid or effective unless consistent and not in conflict
with the statute and reasonably necessary to effectuate the
pu rpose of the statute”] ; see also
Woods v. Superior Court
(1981)
“ ‘Our function is to inquire into the legality of the
regulations, not their wisdom.’ ” (
Woods
,
supra
, 28 Cal.3d at
p. 679, quoting
Morris
,
supra
, 67 Cal.2d at p. 737.) Still,
“ ‘ “ finаl responsibility for the interpretation of the law rests
with the courts. ” [Citations.] Administrative regulations that
alter or amend the statute or enlarge or impair its scope are void
and courts not only may, but it is their obligation to strike down
such regulations. ’ ” (
Woods
,
supra
,
To determine whether the regulation here is consistent
with the constitutional provisions enacted by Proposition 57, we
must interpret the constitutional provisions themselves. Our
“primary concern” in construing a constitutional provision
enacted through voter initiative is “giving effect to the intended
purpose of the provisions at issue.” (
California Cannabis
Coalition v. City of Upland
(2017)
E. The Language of Proposition 57 We therefore begin our analysis by returning to the language of the constitutional provisions enacted by Proposition 57. As noted above, article I, section 32(a)(1) states: “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.” Article I, s ection 32(b) provides that the Department shall “adopt regulations in furtherance of these provisions.” The question here is whether these provisions indicate that the voters intended to permit the Department to exclude an inmate from nonviolent offender parole consideration based on a conviction for a registerable sex offense. In deciding that question, we consider whether that prohibition may apply, not only with respect to prior sex offense convictions but also with respect to current sex offense convictions.
The Court of Appeal concluded that the Department could
not exclude
inmates
from nonviolent offender parole
consideration based on prior convictions : “T he reference to
‘convicted’ and ‘sentenced,’ in conjunction with present
eligibility for parole once a full term is completed, make clear
that early parole eligibility must be assessed based on the
conviction for which an inmate is now serving a state prison
sentence (the current offense), rather than prior criminal
history. This interpretation is supported by section 32[(a)(1)] ’s
use of the singular form in ‘felony offense,’ ‘primary offense,’ and
‘term.’ ” (
Gadlin
, ,
As to inmates currently convicted of an offense requiring registration, petitioner again emphasizes the language of the constitutional provision. He notes that article I, section 32(a)(1) provides for parole consideration for inmates convicted of nonviolent felony offenses and that the Department’s exclusion of inmates convicted of any sex offense requiring registration — including nonviolent felony offenses — is not based on a conclusion that these inmates have committed “ violent offenses ” as defined in Penal Code section 667.5, subdivision (c), but on the Department’s assertion that such an exclusion is required by public safety considerations.
The Department does not assert that the text of article I, section 32(a)(1) expressly demonstrates the intent of the electorate to exclude inmates from nonviolent offender parole consideration based on a prior conviction or a current conviction for any registerable offense. The Department contends, however, that the language of article I, section 32(a)(1) is ambiguous, and that the Department appropriately exercised its authority to “ ‘ “ ‘ fill up the details ’ ” ’ ” of article I, s ection 32’s parole scheme. ( Jones , supra , 2 Cal.5th at p. 391.) Thus, the Department asserts, an analysis of the ballot materials is appropriate in order to determine the voters’ intent .
In so arguing, the Department focuses on the terms “convicted” and “nonviolent felony offense.” The Department asserts that “nonviolent” аs used in the provision “lacks a firm definition ,” noting that the voter information guide informed voters that “the measure and current law do not specify which felony crimes are defined as nonviolent . . . . ” ( Voter Information Guide, Gen. Elec., , analysis of Prop. 57 by Legis. Analyst, p. 56.) We consider the alleged ambiguity of each of those terms before turning to the language of the constitutional provision as a whole.
1. “Nonviolent felony o ffense” T he term “nonviolent felony offense ” is not defined in the constitutional language. Article I, section 32(b) delegates the Department authority to promulgate regulations in furtherance of the constitutional language. That authority may include some discretion to define what co nstitutes a “nonviolent felony offense” for purposes of nonviolent offender parole consideration. We need not decide the full scope of the Department’s authority in this context, however, given the limited question before us. Rather, our task is to determine whether the Department’s current regulations, which categorially exclude from nonviolent offender parole consideration all inmates subject to sex offender registration, are consistent with the constitutional directive that “ [a]ny person convicted of a nonviolent felony offense . . . shall be eligible for parole consideration . . . . ” (Art. I, § 32(a)(1).)
In its initial briefing before this court, the Department conceded that its regulations defined petitioner as a “nonviolent offender” based on his current conviction. The Department noted that the regulation at issue “does not merely interpret particular terms, such as ‘nonviolent’ or ‘nonviolent felony offense.’ Instead, it reflects the Secretary’s public safety determinations . . . .” [11]
In an abrupt change of position, however, the Department asserts in its supplemental briefing that its regulations excluding inmates with registerable sex offenses from parole consideration “ in effect deem those offenses not to be ‘nonviolent felony offense[s] ’ under section 32, subdivision (a)(1) .” That is, the Department now asserts that any inmate excluded from nonviolent offender parole consideration under its regulations has been excluded based on an implicit determination that the inmate did not commit a “ nonviolent felony offense ” for purposes of article I, section 32(a)(1). We have previously declined to consider belated arguments not raised in a party’s opening brief. ( People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.) Even considering the Department’s new argument , we find it to be in consistent with the Department’s regulations.
Article I, section 32(a) refers to parole consideration for individuals “convicted of a nonviolent felony offense.” The regulations do not interpret this phrase, but they do provide definitions of “nonviolent offender” and “violent felony.” (Cal. Code Regs., §§ 3490, subds. (a), (c), 3495, subds. (a), (c).) An inmate is deemed a “nonviolent offender” if he or she does not meet any of thе listed criteria, including that the inmate is “currently serving a term of incarceration for a ‘violent felony.’ ” ( Id ., § 3490, subd. (a)(5); see also id ., § 3495, subd. (a)(3).) The regulations define a “violent felony” as “a crime or enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code.” ( Id ., § 3490, subd. (c); see also id ., § 3495, subd. (c).) The Department now asserts that a “nonviolent felony offense” i s “not simply any offense that is not among the violent felonies listed” in the Penal Code, but that under the regulations “all inmates not excluded by [the regulatory] criteria are considered ‘convicted of a nonviolent felony offe n se’ and eligible for par ticipation in the nonviolent parole program.”
The regulations do not support the Department’s position. Although the regulations do not define what constitutes a “nonviolent felony,” the adoption of a definition for what constitutes a “violent felony” indicates that offenses not defined as “violent” would amount to “nonviolent felonies.” This not only makes intuitive sense, but also is supported by the structure of the regulations.
The regulations refer to “nonviolent felony offense[s]” (Cal. Code Regs., § 3490, subd. (a)(6)) and offenses that are “not a ‘violent felony’ ” ( id ., § 3490, subd. (b)). In defining the term “nonviolent offender,” for example, the regulations exclude from that term an inmate “currently serving a term of incarceration for a nonviolent felony offense after completing a concurrent determinate term for a ‘violent felony.’ ” ( Id ., § 3490, subd. (a)(6), italics added; see also id ., §§ 2449.1, subd. (a)(6), 2449.30, subd. (a)(5), 3495, subd. (a)(5).) In this context, it is clear that a “nonviolent felony offense” stands in contrаst to a “violent felony.”
Other portions of the regulations make the same distinction. They note that the term “nonviolent offender” “includes an inmate who has completed a determinate or indeterminate term of incarceration and is currently serving a determinate term for an in-prison offense that is not a ‘violent felony .’ ” ( Cal. Code Regs., § 3490, subd. (b), italics added; see also id ., §§ 2449.1, subd. (b), 2449.30, subd. (b), 3495, subd. (b).) Similarly, the regulations direct the Department to review each inmate’s eligibility for nonviolent offender parole considera tion. ( Id ., § 3491.) The Department conducts a new eligibility review, in relevant part, “when an inmate begins serving a determinate term for an in-prison offense that is not a violent felony .” ( Id ., § 3491, subd. (d), italics added; see also §§ 3496, subd. (e)(2)(A), (B).) The regulations, then, effectively define the term “nonviolent felony offense” not by implicitly prescribing the scope of those inmates ultimately deemed eligible for parole consideration, but by contrasting that term with the definition of “violent felony” as adopted by the Department.
Further, the regulations exclude from nonviolent offender parole consideration another class of inmates defined by the regulations as “nonviolent offenders” — inmates eligible for a parole consideration hearing under Penal Code section 3051 or section 3055 within one year, or whose initial parole consideration hearing under those provisions has already been scheduled. (Cal. Code Regs., § 3491, subd. (b)(2).) Applying the Department’s new assertion to that cоntext, the exclusion of these inmates would reflect the Department’s determination that they have not been convicted of a “nonviolent felony offense.” But the assertion does not pass muster; although we are not considering the validity of this regulatory provision, we perceive no tenable argument that an exclusion based on the timing of a parole hearing in turn reflects a determination regarding the nature of the inmate’s underlying offense as violent or nonviolent.
Finally, the regulations do not include registerable sex offenses within the definition of what constitutes a “violent felony, ” nor do the regulations explicitly state that such offenses are excluded from the definition of a “nonviolent felony .” Although the Department now asserts the regulations effectively exclude registerable sex offenses from the category of “nonviolent felony offenses,” the regulation s at issue plainly are not focused on nonviolent felony offenses — they exclude from parole consideration an inmate convicted of any registerable sex offense, felony or misdemeanor. (Cal. Code Regs., §§ 3491, subd. (b)(3), 3496, subd. (b); see, e.g., Pen. Code, §§ 290, subd. (c) [listing offenses requiring registration, including possession of child pornography and indecent exposure], 311.11 [criminalizing possession of child pornography as a misdemeanor or felony]; 314 [criminalizing indecent exposure as misdemeanor in some cases].)
In short, the regulations do not excludе inmates with registerable sex offenses from parole consideration based on a determination that those inmates have not been convicted of nonviolent felonies. Rather, the regulations categorize otherwise eligible inmates with registerable sex offenses as “nonviolent offender[s]” who are nonetheless excluded from parole consideration. (Cal. Code Regs., §§ 3491, subds. (a), (b)(3), 3496, subds. (a), (b) .) The structure of the Department’s regulations therefore contradicts the Department ’s newly asserted position. The regulations indicate the Department’s exclusion of registerable sex offenses is not based on an interpretation of what offenses are considered “nonviolent,” but is based on a public safety determination that requires the Department to carve out exceptions to parole consideration within the class of inmates it has determined to be “nonviolent offender[s].” [12]
2. “Convicted”
The Department asserts that the term “convicted”
“ ‘ conveys no self-evident meaning, ’ ” quoting
People v.
Woodhead
(1987) 43 Cal.3d 1002, 1008 (
Woodhead
). In that
case, we considered a Welfare and Institutions Code provision
stating that “ ‘ [n]o person convicted of . . . any . . . serious felony
. . . committed when he or she was 18 years of age or older shall
be committed to Youth Authority. ’ ” (
Id
. at p. 1006, quoting
Welf. & Inst. Code, former § 1732.5.) The Youth Authority in
Woodhead
had rejected such a commitment for the defendant
because, although his current conviction was not for a serious
felony, he had previously been convicted of a serious felony.
(
Woodhead
,
supra
, 43 Cal.3d at p. 1006.) We held this was
improper, and that the term as used in the relevant code section
meant “
currently
convicted.” (
Id
. at p. 1010.) In doing so,
however, we noted that the term “convicted” “may have different
meanings in different contexts, or even different meanings
within a single statute.” (
Id
. at p. 1008, citing
People v.
Valentine
(1986)
The Department does not assert that the term “convicted” as used in the amended constitutional provisions means “ever convicted” or otherwise evinces an intent to exclude inmates from nonviolent offender parole consideration based on a prior conviction. Nor can we conclude that the term is ambiguous in this context. As the Court of Appeal explained, the language of article I, section 32(a)(1) indicates the voters intended that nonviolent offender parole consideration would be premised on the inmate’s current conviction alone. The use of the terms “convicted” and “sentenced,” viewed in context with the provision that the inmate would be eligible for parole consideration “after completing the full term for his or her primary offense,” make this clear. (Art. I, § 32(a)(1).) Parole eligibility under the provision is conditioned on an inmate’s current conviction for a nonviolent felony, the inmate’s being sentenced to prison, and the inmate’s completion of the “full term” for the “primary offense.” ( Ibid .) None of those terms indicate any intent to consider prior convictions in determining nonviolent offender parole eligibility. Nor does the Department assert that the term “convicted” has any bearing on the eligibility of inmates currently convicted of nonviolent felony offenses requiring registration under Penal Code section 290.
3. The language read as a whole We conclude, then, that article I, section 32(a)(1), although containing some terms that might be ambiguous in other respects, is not ambiguous concerning its scope regarding offenders who were previously convicted of a registerable sex offense or who are currently convicted of a registerable sex offense that the Department has itself defined as nonviolent. Under those regulations, these offenders have been convicted of a nonviolent felony offense and article I, section 32(a)(1) directs that they “shall be eligible for parole consideration.”
Still, the Department asserts that the alleged general ambiguity of those terms allows it to provide exceptions to the general rule tha t such offenders “shall be eligible for parole consideration. ” (Art. I, § 32(a)(1).) That is, even when it is not contested that an inmate is “convicted of a nonviolent felony offense and sentenced to state prison” ( ibid .), the Department asserts it retains discretion to carve out exclusions barring otherwise eligible inmates from parole consideration — notwithstanding the constitutional language stating that “ [a] ny” such inmatеs “shall be eligible for parole consideration” ( ibid .).
In support of that position, the Department points to the directive in article I, section 32(b) specifying that it “shall adopt regulations in furtherance of these provisions ,” and that the Secretary of the Department “shall certify that these regulations prote ct and enhance public safety.” According to the Department, this language “signaled to voters that the Department would continue to have an important role in shaping the implementation of the nonviolent parole consideration process ,” and that “the Proposition’s text is not itself the whole of the nonviolent parole program, but only the framework for that program.”
The Department’s position is unpersuasive. Article I, s ection 32(b) directs the adoption of regulations “in furtherance of” the prior provisions of article I, section 32. Merriam- Webster’s dictionary defines “furtherance” as “the act of furthering; ADVANCEMENT .” (Merriam-Webster Dict. Online (2020) <https://www.merriam-webster.com/dictionary/ furtherance> [as of Dec. 17, 2020].) And in its verb form, “further” is defined as “to help forward; PROMOTE .” (Merriam- Webster Dict. Online, , <https://www.merriam- webster.com/dictionary/further> [as of Dec. 17, 2020].) The Department makes no argument, and we perceive none, that deeming ineligible for parole consideration all offenders within the class considered here — those with prior registerable convictions or current convictions for nonviolent offenses requiring registration — would further the intent of the constitutional provision declаring inmates convicted of nonviolent felonies to be eligible for parole consideration.
The Department’s reliance on the requirement that the
Secretary certify that the regulations “protect and enhance
public safety” is si milarly unpersuasive. Indeed, the Secretary
must so certify. (Art. I, § 32(b).) But this requirement does not
authorize the Department to promulgate regulations that are in
conflict with the constitutional provisions. To conclude
otherwise would eviscerate the language of article I, section
32(a)(1) mandating that inmates convicted of nonviolent felony
offenses “shall be eligible ” for parole consideration. Indeed,
under the Department’s interpretation the Secretary would be
empowered to curtail parole eligibility based on any criteria so
long as the Secretary asserted those restrictions protected
public safety. Such an approach would be untenable, violating
the directive that regulations must be “ ‘ consistent and not in
conflict with ’ ” an authorizing constitutional provision. (
Morris
,
,
This is not to suggest that the Department lacks any meaningful power to promulgate regulations pursuant to article I, section 32(b). The Department is empowered to adopt regulations consistent with the constitutional provisions and the purpose of article I, section 32. As relevant here, the adopted regulations must constitute a reasonable interрretation of the requirement in article I, section 32(a)(1) that “[a]ny 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.” The regulations also must evidence some connection with the mandate to “protect and enhance public safety.” (Art. I, § 32(b).)
Nor can it be said that the initiative’s overall focus on public safety is sufficient to grant the Department the broad authority it claims. A conclusion that the electorate made certain inmates eligible for parole consideration does not require the Department to find each of those inmates suitable for parole. Indeed, many factors relevant to public safety may best be addressed through parole suitability determinations. The Department is left with ample room to protect public safety by crafting the specific processes under which parole suitability is determined on a case-by-case basis. And it has done so; the regulations direct the Board of Parole Hearings to consider “all relevant and reliable information” (Cal. Code Regs., § 2449.4, subd. (b)) to determine whether the inmate poses a “ current, unreasonable risk of violence or a current, unreasonable risk of significant criminal activity ” ( id ., subd. (c)), including an inmate’s “documented criminal history” ( id ., subd. (b)(1)).
As noted earlier, the Department also contends the voters would have understood from the constitutional provision directing the Department to adopt regulations in furtherance of the initiative that the measure provided only a “framework” for nonviolent offender parole consideration, and that the Department would “fill up the detail s ” — again, notwithstanding the constitutional directive that inmates who fall under article I, section 32(a)(1) “shall be eligible for parole consideration. ”
In support of this proposition, the Department relies on
Jones
,
supra
,
We disagreed, noting that the act vested broad power in
the Commissioner to promulgate regulations “necessary to
administer” the act. (
Jones
, ,
Jones is readily distinguishable from this case. As we have described above, the Department ’s regulations do not interpret the arguably ambiguous terms of Proposition 57. And, as the Department initially conceded, its regulations do not purport to clarify which inmates are “convicted of a nonviolent felony offense.” (Art. I, § 32(a)(1).) Rather, the Department asserts a power to create an exception not expressly or impliedly referred to in the constitutional provisions. Neither our analysis nor our holding in Jones authorizes such a departure from the ele ctorate’s command.
Instead, the framework described by the language of the constitutional provision establishes a parole consideration process for “ [a]ny person convicted of a nonviolent felony offense.” (Art. I, § 32(a)(1).) Although the Department asserts its regulations merely fill up the details of that provision, carving out wholesale exclusions from an otherwise broad mandate “is hardly a detail.” ( McGhee , , 34 Cal.App.5th at p. 911.) Had the drafters of Proposition 57, and by extension the voters, intended to exclude inmates from nonviolent offender parole consideration based on prior or current sex offense convictions, it would have been a simple matter to say so explicitly. (See, e.g., Pen. Code, §§ 1170.18, subd. (i) [statutory provision enacted by Prop. 47 “ does not apply to a person who has one or more prior convictions . . . for an offense requiring registration pursuant to subdivision (c) of Section 290”]; 1170.12, subd. (c)(2)(C)(ii) [statutory provision enacted by Prop. 36 excludes offenders whose “current offense is a felony sex offense . . . that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290”]; 2933.05, subd. (e)(3) [statute enacted by Legislature excludes from custody credit provision “ [a]ny person required to register as a sex offender”].) As it stands, the initiative ’s language provides no indication that the voters intended to allow the Department to create a wholesale exclusion from parole consideration based on an inmate’s sex offense convictions when the inmate was convicted of a nonviolent felony. We decline to creatе one ourselves. [13]
F. Consideration of the Ballot Materials When the constitutional text “is unambiguous and p rovides a clear answer, we need go no further.” (See Microsoft Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750, 758.) Consideration of the ballot materials, however, only buttresses our reading of the constitutional text in this case. (See Scher v. Burke (2017) 3 Cal.5th 136, 149 [legislative history and historical circumstances may buttress reading of a statute and are entitled to “some weight , ” but are “by no means dispositive”] .)
1. The ballot materials presented to the voters The ballot materials presented to the voters consisted of three sections: the official title and summary prepared by the Attorney General, the analysis of the Legislative Analyst, and the arguments in favor of and against the proposition (an argument in favor by the proponents followed by a rebuttal by the opponents, and an argument against by the opponents followed by a rebuttal by the proponents).
The official title and summary described the parole
provisions of Proposition 57 as follows: “Allows paro le
consideration for persons convicted of nonviolent felonies, upon
completion of prison term for their primary offense as defined.
[¶] . . . Requires Department of Corrections and Rehabilitation
to adopt regulations to implement new parole and sentence
c redit provisions and certify they enhance public safety.” (Voter
on prior offenses are contrary to the constitutional language
enacted by Proposition 57. (See
In re King
(2020) 54 Cal.App.5th
814;
In re Chavez
(2020)
Information Guide, Gen. Elec., supra , Official Title and Summary, p. 54.)
The analysis by the Legislative Analyst provided a broad description of the then-existing sentencing and parole consideration scheme. Notably, the analysis described a parole process implemented by the Department following the February 2014 federal court order in Coleman / Plata known as nonviolent second strike offender parole. [14] The analysis stated: “Individuals who receive a determinate sentence do not need a parole consideration hearing to be released from prison at the end of their sentence. However, some of these individuals currently are eligible for parole consideration hearings before they have served their entire sentence. For example, certain individuals who have not been convicted of violent felonies are currently eligible for parole consideration after they have served half of their prison sentence. This was one of several measures put in place by a federal court to reduce the state’s prison population.” (Voter Information Guide, Gen. Elec. , supra , analysis of Prop. 57 by Legis. Analyst, p. 54.)
The analysis then described the changes to the parole system that would result from the passage of Proposition 57. It stated that the initiative “changes the State Constitution to make individuals who are convicted of ‘nonviolent felony’ offenses eligible for parole consideration after serving the full prison term for their primary offense.” (Vo ter Information Guide, Gen. Elec., , analysis of Prop. 57 by Legis. Analyst, p. 56.) The a nalysis noted that “[a]lthough the measure and current law do not specify which felony crimes are defined as nonviolent, this analysis assumes a nonviolent felony offense would include any felony offense that is not specifically defined in statute as violent.” ( Ibid .) It also described the anticipated fiscal effects of the initiative “[b]ased on recent [Board of Parole Hearings] experience with parole consideration for certain nonviolent offenders,” pursuant to the federal court order. ( Ibid .) Finally, the analysis estimated that “the ongoing fiscal impact of this provision would likely be state savings in the tens of millions of dollars annually. These savings would be offset somewhat by additional costs for [the Board of Parole Hearings] to conduct more parole considerations.” ( Ibid .)
Ultimately, the arguments for and against the proposition were presented to the voters. The proponents first urged that the initiative would allow “parole consideration for people with non-violent convictions who complete the full prison term for their primary offense.” (Voter Information Guide, Gen. Elec. , supra , argument in favor of Prop. 57, p. 58.) The proponents did not address whether individuals convicted of nonviolent sex offenses would be eligible, or whether prior convictions would impact an inmate’s eligibility.
The opponents’ rebuttal and argument against Proposition 57 asserted that the initiative would allow for parole cоnsideration for those convicted of various “nonviolent” sex offenses, including rape of an unconscious victim and sex trafficking. (Voter Information Guide, Gen. Elec., , rebuttal to argument in favor of Prop. 57, p. 58.) The opponents further asserted that inmates would be eligible for nonviolent offender parole consideration despite having suffered prior convictions, stating: “Those previously convicted of MURDER, RAPE and CHILD MOLESTATION would be eligible for early parole ” ( ibid .), that “[Proposition] 57 permits the worst career criminals to be treated the same as first- time offenders” ( id ., argument against Prop. 57, p. 59, italics omitted), and that “16,000 dangerous criminals, including those previously convicted of mur der and rape, would be eligible for early release” ( ibid ., italics omitted).
The proponents’ rebuttal responded by saying the opponents “are wrong.” (Voter Information Guide, Gen. Elec. , supra , rebuttal to argument against Prop. 57, p. 59.) The rebuttal stated that the initiative would not authorize parole for violent offenders, “as defined in Penal Code 667.5(c).” ( Ibid .) Finally, the rebuttal stated that the initiative “[d]oes NOT and will not change the federal court order that excludes sex offenders, as defined in Penal Code 290, from parole.” ( Ibid. )
2. The Department’s argument The Department contends the ballot materials clearly indicate the voters’ intent to exclude inmates with any registerable sex offense conviction (prior or current) from nonviolent offender parole consideration. The Department focuses on the back-and-forth in the arguments for and against the initiative, and primarily emphasizes the statement in the proponents’ rebuttal that Proposition 57 “[d]oes NOT and will not change the federal court order that excludes sex offenders, as defined in Penal Code 290, from parole.” (Voter Information Guide, Gen. Elec., , rebuttal to argument against Prop. 57, p. 59.) According to the Department, this statement “unequivocally rebutted” the opponents’ argument that any sex offender would be eligible for nonviolent offender parole consideration, regardless of whether the conviction was for a current or prior offense. The Department also points to the proponents’ assertion that the Secretary of the Department must certify the regulations implementing Proposition 57 “as protecting public safety.” In light of these statements, the Department contends, “ A reasonable voter thereby understood that the Secretary would ensure that the adopted regulations would exclude sex offenders from parole, just as the proponents indicated.”
The Department further points to the Legislative Analyst’s discussion of the federal court order in the ballot materials. As noted, the analysis informed the voters that “certain individuals who have not been convicted of violent felonies are currently eligible for parole consideration after they have served half of their prisоn sentence” and identified that parole scheme as “one of several measures put in place by a federal court to reduce the state’s prison population.” (Voter Information Guide, Gen. Elec., , analysis of Prop. 57 by Legis. Analyst, p. 54.) Based on these “repeated references to the federal court order,” the Department asserts, the voters should be understood to have approved the initiative with the intent that individuals convicted of a registerable sex offense would be excluded from nonviolent offender parole consideration.
Finally, the Department emphasizes that the voters were considering arguments made in favor of the initiative by then- Governor Edmund G. Brown Jr., who was listed on the ballot materials as an author of the arguments in favor of the initiative and the rebuttal to the arguments against the initiative. The Department asserts that it “seems reasonable that voters would give special weight to the arguments and assurances of government experts — here, of the Governor of the State of California.”
3. Analysis The question is whether the ballot materials indicate that voters intended to exclude certain inmates convicted of nonviolent felonies from nonviolent offender parole consideration — or intended to allow the Department to craft regulations that would exclude such inmates — including those previously or currently convicted of sex offenses rеquiring registration pursuant to Penal Code section 290. Considering the ballot materials as a whole, the language of the constitutional provision, and the ambiguous nature of the ballot arguments, we cannot conclude the voters intended to base eligibility for nonviolent offender parole consideration on any prior convictions an inmate may have suffered, or any current conviction for a nonviolent offense requiring registration as a sex offender.
The Department’s focus on a single line in the proponents’
rebuttal argument overlooks the context of the entire ballot
materials provided to the voters. The language of the
constitutional provision did not indicate to the voters that
inmates’ prior convictions would play a role in determining
nonviolent offender parole eligibility. Nor did the Attorney
General’s official title and summary , the Legislative Analyst’s
analysis, or the proponents’ initial argument in favor of
Proposition 57 so indicate. If, as the Department asserts, the
voters intended to carve out an entire category of offenders from
nonviolent parole consideration based on prior criminal history,
these sources likely would have mentioned as much. (See
People
v. Valencia
(2017)
Even the arguments in the ballot materials are not as
helpful to the Department’s position as it contends. The
opponents of the initiative pointed out that “career criminals”
would be treated the same as first-time offenders under the
initiative, and that inmates “previously convicted of murder and
rape” would be eligible for early release. (Voter Information
Guide, Gen. Elec.,
supra
, argument against Prop. 57, p. 59,
italics omitted.) The opponents’ argument was thus clear: An
inmate’s prior convictions, regardless of their number or nature,
would not be a disqualifying factor for nonviolent parole
consideration purposes. That the voters approved Proposition
57 “despite these warnings” supports a conclusion that the
voters intended to provide broad parole consideration for
nonviolent offenders without regard for prior convictions.
(
Robert L. v. Superior Court
(2003)
It is true that the proponents stated broadly that the opponents’ arguments were “wrong.” (Voter Information Guide, Gen. Elec., , rebuttal to argument against Prop. 57, p. 59.) But this cannot be taken as a blanket denial of each argument raised by the opponents, and the Department does not claim it is. Indeed, there are portions of the opponents’ argument that the Department must concede were correct, including the characterization that individuals convicted of and currently serving sentences for nonviolent offenses (as defined in Pen. Code, § 667.5, subd. (c)) like assault with a deadly weapon would be eligible for nonviolent offender parole consideration, or that an individual with a prior violent felony conviction for murder would not be excluded from nonviolent offender parole consideration. The proponents’ failure to respond directly to the opponents’ clear assertion that individuals with prior sex offenses or extensive criminal histories would be eligible for parole consideration under the initiative is another indication that the voters did not intend to exclude such inmates from the nonviolent offender parole process. (See Robert L. , supra , 30 Cal.4th at pp. 906 – 907.)
The Department’s position is somewhat more persuasive
with regard to the exclusion for inmates currently convicted of
nonviolent registerable sex offenses. Plainly, there is tension
between the language of the constitutional provision directing
parole consideration for all inmates convicted of nonviolent
felonies and the assertion in the ballot argument that “sex
offenders” would be excluded from parole consideration. (Voter
Information Guide, Gen. Elec.,
supra
, rebuttal to argument
against Prop. 57, p. 59.) And there is a clear conflict between
the arguments from the proponents (asserting all sex offenders
would be excluded) and the opponents (asserting that some sex
offenders would not be excluded). But we do not resolve these
tensions by relying solely on the ballot materials. Rather, we
presume that the voters relied on the text of the measure. (See
Delaney v. Superior Court
(1990) 50 Cal.3d 785, 803; see also
Amwest Surety v. Wilson
(1995) 10 Cal.4th 1243, 1260 – 1261,
citing
Wright v. Jordan
(1923)
The voters were explicitly warned in the margins of the voter guide that “Arguments printed on this page are the opinions of the authors, and have not been checked for accuracy by any official agency.” ( Voter Information Guide, Gen. Elec., , pp. 58 – 59.) Even assuming the ballot materials conveyed to the voters that any conviction for a registerable sex offense, current or prior, would exclude an inmate from parole consideration under the proposed initiative, this interpretation remains at odds with the language of the constitutional provision before the voters, as we have already discussed. And nothing in the remaining ballot materials suggested that sex offender registration for a nonviolent felony (or for a misdemeanor) would exclude an inmate from parole consideration. We cannot say that a reasonable voter, after reviewing the ballot materials and the language of the proposed constitutional provision, would have believed that a single line reflecting the proponents’ disputed opinion would overcome the language of the constitutional provision.
The Department’s view is that because the then -existing nonviolent second strike offender parole process excluded inmates with a prior or current sex offense requiring registration, the voters would have understood that Proposition 57 would exclude those offenders as well. But there is no indication the voters would have understood that to be the case. As the Department аcknowledges, the federal court order referenced in the ballot materials did not exclude inmates with sex offenses from parole consideration. Rather, it was the Department’s implementation of the nonviolent second strike offender parole process that carved out that exception.
The Department contends that the other references in the ballot materials to the federal court order would have alerted voters that Proposition 57 would not alter the nonviolent second strike offender parole process established under that order. This argument, too, falls short. The only other reference to the federal court order in the ballot materials is contained in the analysis of the Legislative Analyst. That passage notes that under then-existing law, certain inmates sentenced to determinate terms for nonviolent offenses were eligible for parole, a measure “put in place by a federal court to reduce the state’s prison population.” (Voter Information Guide, Gen. Elec., supra , analysis of Prop. 57 by Legis. Analyst, p. 54.) Even if it were clear to the voters that this referred to the same federal court order mentioned in the proponents’ rebuttal argument, it does not assert that the then-existing parole scheme excluded inmates based on prior or current convictions for sex offenses.
The Department’s assertion, then, is that the voters would
have read the single oblique reference to the court order in the
proponents’ rebuttal and would have been familiar not only with
that order but also with the administrative documents
implementing that court order.
Those
implementing
documents, however, were not before the voters. An assumption
that voters understood the nuances of an administrative
program the ballot materials referenced only vaguely and did
not actually present would stretch beyond the breaking point
our axiom that voters are generally aware of existing law. (See
Robert L.
,
supra
, 30 Cal.4th at p. 905 [“to the extent the Court
of Appeal, in ascertaining the voters’ intent, relied on evidence
of the drafters’ intent that was not presented to the voters, we
decline to follow it”]). “[A] possible inference based on the ballot
argument is an insufficient basis on which to ignore the
unrestricted and unambiguous language of the measure itself.
It would be a strained approach to constitutional analysis if we
were to give more weight to a possible inference in an extrinsic
source (a ballot argument) than to a clear statement in the
Constitution itself.” (
Delaney v. Superior Court
, ,
Our analysis of the voters’ intent does not change merely because the proponents of the initiative here included the Governor. The Department cites no authority for the proposition that the voters would credit the views of the Governor over those of the opponents, and we have found nоne. On the contrary, our case law examining ballot materials to discern the voters’ intent has considered argument s proffered by both opponents and proponents, and without regard for whether one party was an elected official. (See, e.g., Robert L. , supra , 30 Cal.4th at pp. 906 –907 [giving weight to opponents’ arguments].) In any event, as explained earlier, when an argument for or against a ballot measure conflicts with the measure’s plain text, the text must govern the measure’s interpretation.
The Department reprises yet again its arguments that the
voters would have understood from the constitutional provision
directing the Department to adopt regulations in furtherance of
the initiative that the initiative provided only a “framework” for
nonviolent offender parole consideration, that the Department
would fill up the details, and that the focus on public safety
considerations in the constitutional language and ballot
materials would give the Department broad authority to
determine what inmates would be eligible for parole
consideration under the initiative. These assertions are no more
persuasive in the context of the ballot materials than they are
in the context of reviewing the language of the constitutional
provisions at issue. Without language in the constitutional
provision that expressed or strongly implied the authority of the
Department to carry out such exclusions, we cannоt say the
voters intended such exclusions. (
People v. Valencia
, ,
III. C ONCLUSION The constitutional provision approved by the voters does not require the release of any inmate. Whether an inmate is suitable for parole depends in part on that individual’s prior criminal history and the nature of his or her current offense. Thus, the Board of Parole Hearings may consider an inmate’s prior or current sex offense convictions when evaluating the inmate’s suitability for parole. (Cal. Code Regs., §§ 2449.4, subd. (b)(1), 2449.5.) T he Department’s regulation s, however, treat all individuals with convictions for registerable sex offenses as categorically ineligible for parole, even when the Department ’s own regulations classify those inmates as having been convicted of a nonviolent felony. In doing so, the Department denies even the mere possibility of parole to an entire cat egory of “person[s] convicted of a nonviolent felony offense. ” (Art. I, § 32(a)(1).) This precondition to parole consideration is inconsistent with the Constitution as amended by Proposition 57.
We therefore hold that nonviolent offender parole eligibi lity must be based on an inmate’s current conviction. We further hold that an inmate may not be excluded from nonviolent offender parole consideration based on a current conviction for a registerable felony offense that the Department’s regulations have d efined as nonviolent. The regulatory provisions at issuе here are inconsistent with the language of article I, section 32(a)(1) and cannot stand. We direct the Department to treat as void and repeal California Code of Regulations, section 3491, subdivision (b)(3), and section 3496, subdivision (b), and to make any further conforming changes necessary to render the regulations consistent with article I, section 32(a)(1) and this opinion.
The judgment of the Court of Appeal is affirmed. CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
HILL, J. [*]
________________________
[*] Presiding Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion In re Gadlin
__________________________________________________________________________________ Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
XXX
Rehearing Granted
__________________________________________________________________________________ Opinion No. S254599
Date Filed: December 28, 2020
__________________________________________________________________________________ Court: Superior
County: Los Angeles
Judge: William C. Ryan
__________________________________________________________________________________ Counsel:
Michael Satris; Law Office of Janice M. Bellucci and Janice M. Bellucci, under appointments by the Supreme Court, for Petitioner Gregory Gadlin. Law Office of Janice M. Bellucci and Janice M. Bellucci for Alliance for Constitutional Sex Offense Laws, Inc., as Amicus Curiae on behalf of Petitioner Gregory Gadlin. Rosen Bien Galvan & Grunfeld and Ernest Galvan for Nineteen Social Science and Law Scholars as Amici Curiae on behalf of Petitioner Gregory Gadlin.
Xavier Becerra, Attorney General, James Root and Lance E. Winters, Chief Assistant Attorneys General, Janill L. Richards, Principal Deputy Solicitor General, Phillip J. Lindsay, Assistant Attorney General, Julie A. Malone, Charles Chung and Amanda J. Murray, Deputy Attorneys General, for Respondent The People. *44 Counsel who argued in Supreme Cоurt (not intended for publication with opinion): Charles Chung
Deputy Attorney General
300 South Spring St., Suite 1702
Los Angeles, CA 90013
(213) 269-6026
Janice M. Bellucci
Law Office of Janice M. Bellucci
1215 K St., 17th Floor
Sacramento, CA 95814
(805) 896-7854
Notes
[1] Further article references are to the California Constitution unless otherwise indicated. 1
[2] Further undesignated references to the California Code of Regulations are to title 15 unless otherwise noted.
[3] As discussed below, the Department’s regulations implementing P roposition 57 adopt the definition of “violent felony” established in Penal Code section 667.5, subdivision (c). (Cal. Code Regs., §§ 3490, subd. (c), 3495, subd. (c).) Petitioner’s current conviction for assault with a deadly weapon is not a violent felony under that statute. The parties do not discuss, and we do not consider, the validity of the Department’s regulations concerning the adoption of the Penal Code on this point.
[4] When the present matter was pending in the Court of Appeal, that same court decided In re Edwards (2018) 26 Cal.App.5th 1181 ( Edwards ). Edwards held that the regulations implementing Proposition 57 improperly excluded from nonviolent offender parole consideration third strike offenders whose third strike was for a nonviolent offense. ( Edwards , at pp. 1185 – 1186.) The court directed the Department to amend the regulations accordingly, and the Department did so in December 2018. ( Id . at pp. 1192 – 1193.) The Court of Appeal in the present case concluded that the amended regulations effectively mooted the Department’s argument that petitioner’s conv iction under the Three Strikes law made him ineligible for nonviolent offender parole consideration. ( In re Gadlin (2019) 31 Cal.App.5th 784, 787 ( Gadlin ).)
[5] The Court of Appeal recently considered this issue and concluded that the Department could not exclude inmates currently convicted of a nonviolent registerable sex offense. ( Alliance for Constitutional Sex Offense Laws v. Department of Corrections & Rehabilitation (2020) 45 Cal.App.5th 225, 234
[6] All Internet citations in this opinion are archived by year, docket number, and case name at <http://courts.ca.gov/ 38324.htm>.
[7] The regulations detail the eligibility criteria for both determinately sentenced offenders (see Cal. Code Regs., §§ 3490 – 3491) and indeterminately sentenced offenders (see id ., §§ 3495 – 3496). The provisions are identical as relevant here; both exclude from nonviolent offender parole consideration an inmate convicted of a sexual offense that currently requires or will require registration. ( Id ., §§ 3491, subd. (b)(3), 3496, subd. (b).)
[8] The risk to the community posed by individuals convicted of sex offenses is sharply contested by the parties and amici. Given our conclusions regarding the language of the Constitution and the intent of the voters as reflected in the ballot materials, however, we need not address this issue.
[9] The final statement of reasons accompanying the regulations also provided estimates concerning the number of inmates who would be affected by this exclusion. According to the Department, approximately 22,400 inmates were required at that time to register for a sex offense based on a current or prior conviction. Of those, more than 18,000 were currently convicted of a violent offense as defined in Penal Code section 667.5, subdivision (c) and thus, under the Departm ent’s regulations, were ineligible for nonviolent offender parole consideration based on their current conviction in any event. Of the remaining 4,400 or so inmates convicted of a nonviolent offense (and currently incarcerated based on that offense), it is not clear how many would be excluded from nonviolent offender parole consideration based on a prior (as opposed to a current) sex offense conviction.
[10] As noted, the Department amended its regulations following the decision in Edwards , and it did so again following the decision in McGhee . As amended, the operative language regarding the exclusion of individuals convicted of registerable sex offenses remains unchanged from the May 2018 version of the regulations. (See Cal. Code Regs., §§ 3490 – 3491, 3495 – 3496.)
[11] The Department likewise asserted in Alliance that its exclusion from parole consideration of inmates with current convictions for nonviolent registerable sex offenses was based only on public safety concerns. ( Alliance , , 45 Cal.App.5th at p. 231 [“ the Department does not argue that all sex offenses requiring registration under Penal Code section 290 are excluded from the term ‘nonviolent felony offense’ for purposes of California Constitution, article I, section 32, subdivision (a)(1)”].)
[12] The Department also relies on the final statement of reasons accompanying its regulations (see ante , fn. 9) for the assertion that inmates convicted of registerable sex offenses were excluded from the parole scheme based on a determination that those felonies were not nonviolent. The final statement of reasons, however, indicates otherwise. The Department emphasizes that the final statement of reasons essentially stated that the Department had determined registerable sex offenses did not constitute nonviolent felony offenses, pointing to the language, “these sex offenses demonstrate a sufficient degree of violence and represent an unreasonable risk to public safety to require that sex offenders be excluded from nonviolent parole consideration.” Elsewhere, however, the final statement of reasons notes that “Public safety requires that sex offenders be excluded from nonviolent parole consideration.” Nowhere does the final statement of reasons provide that registerable sex offenses are not considered “nonviolent felony offenses.” Further, to the extent the final statement of reasons supports the Department’s newl y raised position, it is inconsistent with the structure of the regulations the Department ultimately adopted, as discussed above.
[13] Every Court of Appeal to have considered the issue has agreed with our conclusion that the Department’s regulations excluding inmates from nonviolent parole consideration based
[14]
The nonviolent second strike offender parole process
provided parole eligibility for nonviolent, non-sex-registrant,
second strike offenders who had served 50 percent of their
sentence. (See
In re Ilasa
(2016)