*836*905We confront another attempt by the California Department of Corrections and Rehabilitation (the department) to curtail the right created by Proposition 57 of numerous inmates to parole consideration by the Board of Parole Hearings (the board). Proposition 57, The Public Safety and Rehabilitation Act of 2016, added a provision to California's Constitution stating: "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." ( Cal. Const., art. I, § 32, subd. (a)(1).)
We now hold that the department's creation of a screening and referral process that excludes from parole consideration more than a third of otherwise eligible inmates based on their in-prison conduct is at odds with the clear language of the constitutional amendment. Despite the policy considerations advanced by the department, section 32, subdivision (a)(1) mandates that these prisoners receive parole consideration if they have been convicted of a nonviolent felony and have served the full term of their primary offense.
*906BACKGROUND
Petitioner Tijue Adolphus McGhee pleaded guilty in 2012 to first degree burglary ( Pen. Code, §§ 459, 460, subd. (a) ). He received a four-year prison sentence for the burglary, plus five additional years for a prior felony conviction ( Pen. Code, § 667, subd. (a)(1) ).
In November 2016, the electorate passed Proposition 57, The Public Safety and Rehabilitation Act of 2016. Proposition 57 added section 32 to article I of the state Constitution. Subdivision (a) of section 32 states that its provisions are "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."
Under subdivision (a)(1) of section 32, "[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." For that purpose, *837"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." (§ 32, subd. (a)(1)(A).) Subdivision (b) of section 32 directs the department to "adopt regulations in furtherance of these provisions."
In response, the department created a "new parole consideration process for nonviolent offenders" (see "The Initial Statement of Reasons in Support of Regulations to Be Adopted in Compliance with New Section 32 of Article I of the California Constitution"), patterned largely after the procedures that it had previously adopted to screen nonviolent second-strikers for parole consideration to comply with a federal court mandate to reduce California's prison population. (See, e.g., Coleman v. Brown (E.D. Cal. Feb. 10, 2014, No. 2:90-cv-0520 LKK DAD (PC),
On July 1, 2017, McGhee was advised that although he is "eligible," he would not be referred to the board for parole consideration because he did not satisfy two of the criteria. First, McGhee had "served a Security Housing Unit term in the past five years" that was not assessed "solely for the inmate's safety" ( Cal. Code Regs., tit. 15, § 3492, subd. (c)(3).) According to the statement of reasons, "[p]lacement in a Security Housing Unit is reserved for the most serious offenses committed in prison." Second, McGhee had "been found guilty of a serious rule violation for a Division A-1 or Division A-2 offense ... within the past five years." ( Cal. Code Regs., tit. 15, § 3492, subd. (c)(4).) The A-1 and A-2 offenses are considered by the department to be tantamount to "in-prison felony offenses" (Statement of Reasons, p. 18) and range from murder to distribution of a controlled substance. ( Cal. Code Regs., tit. 15, § 3323, subds. (b), (c).) McGhee's underlying offense under both criteria was possession of an inmate-manufactured weapon, to which he pleaded guilty in August 2015.
*838McGhee filed an administrative appeal challenging the department's decision not to refer him to the board. The department denied McGhee's appeal at the first two levels of review. McGhee then filed a petition for a writ of habeas corpus in this court challenging the department's refusal to refer him to the board. At the time McGhee filed his petition, his administrative appeal challenging the decision was pending at the department's third and final level of review. After McGhee's appeal was denied at the third level, we issued an order to show cause and appointed counsel for McGhee. McGhee's appointed counsel has filed a supplemental petition contending that the department's screening regulations conflict with section 32, subdivision (a)(1) and should *908be invalidated. The department, represented by the Attorney General, has filed a return to the order to show cause defending the validity of the regulations.
DISCUSSION
McGhee contends the regulations are invalid because they are inconsistent with the mandate in section 32, subdivision (a)(1) that "[a]ny person convicted of a nonviolent felony and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense." McGhee argues that the term "parole consideration" means consideration for release by the board. Because the challenged regulations preclude consideration by the board for otherwise eligible inmates who have committed certain in-prison offenses, McGhee contends the regulations conflict with section 32 and must be stricken.
The department defends the regulations, claiming they are part of a "two-tiered" process that is "consistent with the term 'parole consideration.' " The department describes the process as follows: "The first phase of the process objectively evaluates whether the inmate's file contains one or more of the eight criteria [the department] has identified as categorical proof the inmate being reviewed 'pose[s] an unreasonable risk of violence' based on he or she having 'recently committed serious [in-prison] misconduct.' ... If none of the eight criteria are present, the inmate's file is next reviewed holistically by a board official to determine whether the inmate's release poses an unreasonable risk of future violence and/or risk of significant criminal activity." The department contends that inmates who "fail to advance to the second phase of the parole-review process are not deprived of parole consideration." Rather, "those inmates are considered but denied parole during the first stage of the process."
The standard of review in evaluating the validity of the department's regulations was explained in In re Edwards , supra, 26 Cal.App.5th at page 1189,
In construing section 32, subdivision (a)(1), we apply normal standards governing the interpretation of constitutional provisions. " '[O]ur primary concern is giving effect to the intended purpose of the provisions at issue. [Citation.] In doing so, we first analyze provisions' text in their relevant context, which is typically the best and most reliable indicator of purpose. [Citations.] We start by ascribing to words their ordinary meaning, while taking account of related provisions and the structure of the relevant statutory and constitutional scheme. [Citations.] If the provisions' intended purpose nonetheless remains opaque, we may consider extrinsic sources, such as an initiative's ballot materials. [Citation.] Moreover, when construing initiatives, we generally presume electors are aware of existing law. [Citation.] Finally, we apply independent judgment when construing constitutional and statutory provisions.' " ( In re Edwards , supra, 26 Cal.App.5th at p. 1189,
Applying these well-settled principles, the process the department has created in section 3492 of its regulations, by which the department screens out otherwise eligible inmates from parole consideration by the board, cannot be upheld. The permissibility of the "two-tiered" process is based on the premise that the "parole consideration" mandated by section 32, subdivision (a)(1), need not necessarily be conducted by the board, and that the department itself may determine that an inmate is unsuitable for parole. This premise is unsupportable.
The reference to parole consideration in the constitutional amendment can only be understood to mean parole consideration by the board. The board is "the administrative agency within the executive branch that generally is authorized to grant parole and set release dates." ( In re Lawrence (2008)
This statutory and regulatory scheme, referring to parole consideration by the board, was in place when Proposition 57 went before the voters. We presume that voters were aware of the state's parole process at the time they passed the proposition. ( California Cannabis Coalition v. City of Upland (2017)
Moreover, the ballot pamphlet provided to voters confirmed that parole consideration referred to consideration for parole by the board. (See People v. Valencia (2017)
Deeming the department's newly created screening process consistent with, much less a part of, the parole consideration mandated by section 32, subdivision (a)(1) is a misconstruction of the language of the constitutional provision and is contrary to *841the intent of section 32, subdivision (a)(1). The parole consideration process defined in division 2 of title 15 specifies that the board shall determine whether an inmate is or is not suitable for parole. While the criteria under the department's new screening process undoubtedly bear on whether an inmate is suitable for parole, that ultimate determination is to be made by the board, not the department.
The department argues that the challenged regulations should be upheld as within the department's discretion. But there is " 'no agency discretion to promulgate a regulation which is inconsistent with the governing statute.' " ( Ontario Community Foundations, Inc. v. State Bd. of Equalization (1984)
The department defends its regulation by pointing to one of the stated purposes of Proposition 57: to "avoid the release of prisoners by federal court order." (§ 32, subd. (a).) While Proposition 57 undoubtedly was intended to maintain the inmate population at a level that complies with the federal court order (see Coleman v. Brown,
The department also argues that invalidating the regulation will create practical problems that ultimately will defeat the purpose of Proposition 57. The department states that between July 1, 2017 and June 30, 2018, approximately 10,900 nonviolent inmates were eligible for parole consideration, but that only approximately 6,363 of these inmates were referred to the board for review; 4,450 were not referred because they did not pass the department's screening process. The department argues that if the screening process is eliminated, the board will be compelled to review thousands more prison files annually and "[s]uch a result may not only undermine public safety, it could have the unintended consequence of fewer inmates being granted parole."
We do not gainsay the practical issues presented by implementation of section 32, subdivision (a)(1) as intended, nor do we fail to recognize the sensible rationale underlying the department's two-tiered scheme-to "ensure[ ] that the board focuses its resources on inmates who are more likely to be found suitable for parole." (Statement of Reasons, p. 17.) Nonetheless, *842although an inmate may not be paroled soon after committing such an offense, the appearance before the board may still serve a constructive purpose. The hearing panel may recommend to the prisoner what steps may be undertaken to enhance the possibility of a grant of parole at a future hearing." ( Cal. Code Regs., tit. 15, § 2304, subd. (a).)
The increase in the number of inmates eligible for parole consideration may well require an increase in board staffing, but an increased burden on the board necessarily was contemplated by Proposition 57. According to the ballot pamphlet, "As of September 2015, there were about 30,000 individuals in state prison who would be affected by the parole consideration provisions of the measure." (Ballot Pamp., Gen. Elec., supra , proposal, *913p. 56.) Thus, the need for an increase in personnel cannot be regarded as unanticipated. Moreover, we do not preclude the board from adjusting its procedures to accommodate the increased workload, so long as the board rather than the department determines the inmate's suitability for parole in compliance with its statutory mandate.
We unequivocally reject the assertion that compliance with Proposition 57 will undermine public safety. Before granting parole the board will continue to review the record of an eligible inmate to determine whether the inmate presents a risk to public safety. ( Cal. Code Regs., tit. 15, § 2449.4, subd. (b).) In doing so, the board must consider "all relevant and reliable information." (Ibid. ) There is no reason to assume that the board will be insensitive to the concern for public safety or will grant parole to those who present a public danger. By enforcing the mandate of section 32, subdivision (a)(1), we hold that McGhee and similar inmates are entitled to parole consideration, not that they are necessarily entitled to release.
Finally, we observe that the department's reference to the parole procedures in other jurisdictions does little to support the validity of its two-tiered procedure. The practice in other states is of minimal, if any, significance in determining the meaning of the measure adopted by Proposition 57. Beyond that, the parole processes of the states cited by the department do not indicate that inmates receive parole consideration even if a parole board never reviews the inmates' suitability for parole. In Nebraska, all inmates receive an initial parole hearing at which the parole board determines whether the inmate is "reasonably likely to be granted parole." Inmates then proceed on different tracks depending on the initial conclusion of the board. (Neb. Revs. Stats. § 83-1,111, subd. (1).) In Georgia, the parole board is required to apply a set of parole "guidelines" when reviewing inmates not serving life sentences. ( Ga. Code Ann., § 42-9-40, subd. (a).) "However, nothing in the applicable statutes mandates that the guidelines control the final parole decision. The guidelines simply establish an initial date of eligibility for parole, and the ultimate grant or denial of parole to a prisoner who is eligible under the guidelines remains a discretionary matter for the Board." ( Daker v. Ray (Ga. 2002)
The petition for habeas corpus is granted. The department is directed to treat as void and repeal the portions of section 3492 of title 15 of the California Code of Regulations challenged in this proceeding, and to make any further conforming changes necessary to render the regulations consistent with section 32, subdivision (a)(1) of article I of the California Constitution and this opinion. McGhee shall be referred to the board for parole consideration within 60 days after this court issues its remittitur, and the department shall thereafter proceed as required by law.
WE CONCUR:
STREETER, J.
TUCHER, J.
All further references to section 32 are to article I, section 32 of the California Constitution.
Subdivision (a)(2) of section 32 authorizes the department to award credits for good behavior and approved rehabilitative or educational achievements.
The additional criteria specified in section 3492, subdivision (c) of the California Code of Regulations, not directly relevant to McGhee's denial of review, are these: "(1) The inmate is not currently serving a Security Housing Unit term; [¶] (2) The Institutional Classification Committee has not assessed the inmate a Security Housing Unit term within the past five years, unless the department assessed the Security Housing Unit term solely for the inmate's safety; [¶] ... [¶] (5) The inmate has not been assigned to Work Group C ... in the past year; [¶] (6) The inmate has not been found guilty of two or more serious Rules Violation Report in the past year; [¶] (7) The inmate has not been found guilty of a drug-related offense ... or refused to provide a urine sample ... in the past year; [¶] (8) The inmate has not been found guilty of any Rules Violation Reports in which a Security Threat Group nexus was found in the past year." Subdivision (c) also provides that an inmate will be referred to the board for parole consideration only if the "inmate's nonviolent parole eligible date falls at least 180 calendar days prior to his or her earliest possible release date and the inmate will not reach his or her earliest possible release date for at least 210 calendar days."
Penal Code section 5075, subdivision (a) abolishes the former Board of Prison Terms and provides that any statutory reference to the Board of Prison Terms shall refer to the Board of Parole Hearings.
Indeed the challenged regulation implicitly recognizes as much. Section 3492, subdivision (d) of title 15 of the California Code of Regulations provides: "Within five business days of being screened, inmates who are eligible for referral under this section shall be referred to the Board of Parole Hearings for parole consideration under article 15 of chapter 3 of division 2 of this title." (Italics added.)