In re Poslof CA4/2 ( 2020 )

Filed 11/13/20 In re Poslof CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
E074992
In re LONNIE LEE POSLOF, SR.,
(Super.Ct.No. WHCJS1800247)
on Habeas Corpus.
OPINION
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Gregory S. Tavill,
Judge. Petition granted.
C. Matthew Missakian, under appointment by the Court of Appeal, for Petitioner.
Xavier Becerra, Attorney General, Gregory J. Marcot, Deputy Attorney General,
for Respondent.
Petitioner Lonnie Lee Poslof, Sr., (Defendant) is serving a “Three Strikes”
sentence of 27 years to life after a jury convicted him in 2003 of failing to register as a
sex offender, a nonviolent felony offense. Defendant was required to register as a sex
offender based on two prior Penal Code section 288 convictions. In 2016, voters
approved Proposition 57, the Public Safety and Rehabilitation Act of 2016, which
amended the California Constitution to provide early parole consideration to all state
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prisoners convicted of nonviolent felony offenses. Proposition 57 tasked the California
Department of Corrections and Rehabilitation (CDCR), to adopt regulations in
furtherance of these provisions. These CDCR regulations excluded from early parole
consideration any person convicted of an offense requiring the person to register as a
sex offender. Defendant was denied early parole consideration by the Bureau of Prison
Hearings (BPH) based on his prior strike convictions requiring him to register as a sex
offender. He filed this petition for writ of habeas corpus (Petition) challenging the
denial of early parole consideration.
The California Supreme Court is currently reviewing this issue in In re Gadlin
(2019) 31 Cal. App. 5th 784, review granted S254599, May 15, 2019 (Gadlin). We grant
the Petition and direct the CDCR to conduct an early parole consideration hearing.
FACTUAL AND PROCEDURAL HISTORY
In 2003, Defendant was convicted of failing to register as a sex offender (Pen.
Code, former § 290, subd. (g)(2)). He was found to have suffered two prior strike
convictions for lewd and lascivious acts on a child under age 14 (§ 288, subd. (a))
committed in 1992 (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). He was sentenced to
27 years to life. Defendant filed a direct appeal where his claims of instructional
error—that there was insufficient evidence he had actual knowledge he was required to
register a second residence, and that his sentence of 27 years was cruel and unusual
punishment—were rejected. (People v. Poslof (2005) 126 Cal. App. 4th 92, 99-109.) He
filed a later appeal from the denial of his Penal Code section 1170.26 petition to recall
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his indeterminate life term, which was affirmed. (People v. Poslof (Sept. 24, 2013,
E058866), 2013 WL 5316167 [nonpub. opn.].)
In 2019, Defendant filed a petition for writ of habeas corpus in the California
Supreme Court, which was denied without prejudice “to any relief to which defendant
might be entitled after this court decides In re Gadlin, S254599.” Defendant filed a
petition for writ of habeas corpus in the San Bernardino Superior Court on January 21,
2020, claiming he was entitled to relief pursuant to Proposition 57. The habeas corpus
petition was denied.
Defendant filed his Petition in this court on April 3, 2020, claiming he was
entitled to an early parole hearing under Proposition 57. CDCR filed an informal
response and asked that this court hold the writ proceedings in abeyance until Gadlin is
decided.
Defendant filed a reply to the informal response on July 24, 2020. Attached to
the reply, Defendant included a BPH decision dated January 12, 2017, stating the BPH
did not have jurisdiction to advance his parole hearing. In addition, Defendant included
a letter from the BPH dated May 23, 2020, stating he was not eligible for early parole
consideration because he was not eligible under the nonviolent offender parole review
process. He was eligible for review on March 21, 2024.1
1 Defendant raised other issues in his reply to the informal response, which were
not raised in the Petition. Those issues were not further addressed in Defendant’s
traverse to the return. We will not consider these issues raised for the first time in the
reply to the informal response that are not supported by any argument or documentation.
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We declined to hold the writ proceedings in abeyance and issued an order to
show cause why relief should not be granted. Defendant was appointed counsel.
CDCR filed its return to the order to show cause, arguing at length that its regulations
disallowing early parole consideration for those convicted of offenses that required the
inmate to register as a sex offender were appropriate based on voter intent. Further,
CDCR argued that this court should not follow Gadlin.
Counsel for Defendant filed a traverse to the return, primarily arguing that the
plain language of Proposition 57 does not provide for an exclusion for those required to
register as sex offenders.
DISCUSSION
Defendant contends this court should grant the Petition, finding that the CDCR’s
regulations excluding sex offender registrants from early parole consideration conflicts
with Proposition 57’s amendment to the California Constitution, and direct the BPH to
grant him an early parole hearing.
Proposition 57 amended the California Constitution to provide as follows: “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.1, § 32, subd. (a)(1) (hereafter § 32(a)(1)).) “[T]he 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.” (Cal. Const., art. 1, § 32, subd. (a)(1)(A).) It also directed the
CDCR to “adopt regulations in furtherance of these provisions” and the CDCR was
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directed to “certify that [the] regulations protect and enhance public safety.” (Cal.
Const., art. 1, § 32, subd. (b).)
The CDCR adopted regulations making nonviolent third strike offenders serving
a life sentence eligible for early parole consideration. (Cal. Code Regs., tit. 15, § 3496,
subd. (a).) Defendant’s current offense is for failing to register as a sex offender, which
is a nonviolent felony offense because it is not listed as a “violent felony” in Penal Code
section 667.5, subdivision (c). Defendant has served his sentence on the primary
offense of failing to register as a sex offender, which carries a 16 month, two year, or
three year sentence. (Pen. Code, former § 290, subd. (g)(2).)
However, the CDCR regulations further provide that such early parole
consideration does not apply to inmates “convicted of a sexual offense that currently
requires or will require registration as a sex offender” under Penal Code section 290.
(Cal. Code of Regs, tit. 15, § 3496, subd. (b).)2 The CDCR construes this language to
deny early parole consideration for any inmate who is required to register as a sex
offender regardless of the plain language of section 32(a)(1) that “any person” convicted
of a nonviolent felony offense is entitled to early parole consideration. (Gadlin, supra,
31 Cal.App.5th at pp. 789-790.)
The validity of the CDCR regulations restricting early parole consideration for
sex offender registrants was addressed in Gadlin. We find its reasoning persuasive.
2 California Code of Regulations, title 15, section 3491, subdivision (b)(3),
provides similar language that an inmate who is convicted of a sexual offense, which
requires registration as a sex offender, is not entitled to early parole consideration.
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The court in Gadlin held that California Code of Regulations, title 15, section 3491,
subdivision (b)(3), was invalid for excluding from early parole consideration those
subject to registration pursuant to Penal Code section 290 for a prior crime, for which
the inmate has served the sentence. The Gadlin court found, referring to the language
of section 32(a)(1), it “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. This interpretation is supported by section
32(a)(1)’s use of the singular form in ‘felony offense,’ ‘primary offense,’ and ‘term.’ ”
(Gadlin, supra, 31 Cal.App.5th at p. 789.) The court in Gadlin found that California
Code of Regulations, title 15, section 3491, subdivision (b)(3), is inconsistent with the
plain language of section 32(a)(1) and is therefore void. (Gadlin, at pp. 789-790.)
Further, this court in In re King (2020) 54 Cal. App. 5th 814, found “[T]he plain
language of section 32(a)(1) requires early parole consideration to be based solely on
the present offense of conviction. We therefore conclude that the CDCR regulation
(Cal. Code Regs., tit. 15, § 3491, subd. (b)(3)) is invalid insofar as it excludes from
early parole consideration inmates who are sex offender registrants because of prior
convictions.” (Id. at p. 817.) The plain language of section 32(a)(1) requires that
Defendant be afforded early parole consideration based solely on the present offense of
conviction.3
3 We need not address CDCR’s claims in the Return that the voters intended to
exclude sex offender registrants from early parole consideration. “Because we conclude
that the plain language of section 32(a)(1) is clear and unambiguous as to the voters’
[footnote continued on next page]
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For the same reasons stated in Gadlin and King, Defendant is entitled to a writ of
habeas corpus because he is currently serving a term for a nonviolent felony offense and
has already served the full term of that offense. Defendant is entitled to early parole
consideration. The CDCR regulations—California Code of Regulations, title 15,
sections 3491, subdivision (b)(3), and 3496, subdivision (b)—excluding sex offender
registrants from early parole consideration are invalid. We grant the Petition.4
DISPOSITION
The petition for writ of habeas corpus is granted. The California Department of
Corrections and Rehabilitation is directed to evaluate Defendant for early parole
consideration within 60 days of the issuance of the remittitur.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
RAPHAEL
J.
MENETREZ
J.
intent in passing Proposition 57, we need not consult the ballot materials to determine
the initiative’s meaning.” (In re King, supra, 54 Cal.App.5th at p. 822.)
4We express no opinion as to whether the BPH should grant parole to
Defendant.
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