In re Gadlin

Filed 1/28/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re GREGORY GADLIN, B289852
(Los Angeles County
on Habeas Corpus. Super. Ct. No. BA165439)
ORIGINAL PROCEEDINGS; petition for writ of habeas
corpus. William C. Ryan, Judge. Petition granted.
Michael Satris, under appointment by the Court of Appeal,
for Petitioner.
Xavier Becerra, Attorney General, Phillip J. Lindsay,
Senior Assistant Attorney General, Julie A. Malone, Supervising
Deputy Attorney, Charles Chung, Deputy Attorney General, for
Respondent.
I. INTRODUCTION
In 2016, voters approved Proposition 57, which added a
provision to the California Constitution that significantly
expanded parole consideration to all state prisoners convicted of a
nonviolent felony offense. (Cal. Const., art. 1, § 32, subd. (a)(1)
(section 32(a)(1).) Petitioner Gregory Gadlin, a third-strike
offender with two prior convictions that render him a sex-
offender registrant, contends the regulations of the California
Department of Corrections and Rehabilitation (CDCR) invalidly
exclude him from Proposition 57 relief. We agree and grant the
petition.
II. PROCEDURAL HISTORY
In 2007, a jury convicted Gadlin of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1)). 1 The jury sustained
allegations of two prior serious felony convictions (§ 667, subd.
(a)(1)). Those priors were: (1) a 1984 conviction for forcible rape
(§ 261, former subd. (2)); and (2) a 1986 conviction for forcible
child molestation (§ 288, subd. (b)), each of which is a registrable
offense under the Sex Offender Registration Act (§ 290, subd. (c)).
Gadlin was sentenced to 25 years to life pursuant to the Three
Strikes law (§§ 667, subds. (b)-(i), 1170.12), plus an additional 5-
year term for each of his prior serious felony convictions, for a
total of 35 years to life in state prison. On appeal, this court
1 All further statutory references are to the Penal Code
unless otherwise stated.
2
affirmed the judgment. (People v. Gadlin (May 21, 2009,
B203647) [nonpub. opn.].) 2
On November 22, 2017, Gadlin filed a habeas corpus
petition in the superior court, challenging his exclusion from
early parole consideration by CDCR. On March 2, 2018, the
superior court denied the petition, concluding that under the
then-applicable regulations, Gadlin was not entitled to early
parole consideration because he had been sentenced as a third-
strike offender.
On May 7, 2018, Gadlin filed a habeas corpus petition in
this court. We appointed counsel for Gadlin and directed counsel
to file an amended petition addressing the validity of CDCR’s
regulations. Appointed counsel thereafter filed an amended
petition challenging CDCR’s regulations. We issued an order to
show cause why the relief requested in the petition should not be
granted. CDCR filed a return to the order to show cause, arguing
that the following two factors render Gadlin ineligible for early
parole consideration: (1) his status as an inmate serving an
indeterminate Three Strikes sentence with the possibility of
parole; and (2) his prior convictions for sex offenses that require
him to register as a sex offender.
2 In 1998, Gadlin was previously convicted of identical
charges, resulting in the same 35 years to life sentence. This
court affirmed the judgment on appeal. (People v. Gadlin (2000)
78 Cal. App. 4th 587.) In 2006, the United States District Court
for the Central District of California granted Gadlin’s petition for
writ of habeas corpus, and directed the State of California to
provide Gadlin with a new trial. (Gadlin v. Woodford (C.D.Cal.
May 2, 2006, Case No. CV-02-7759-PA (AJW)) 2006 U.S. Dist.
LEXIS 101656.)
3
The CDCR then adopted emergency regulations, effective
January 1, 2019, to comply with our holding in In re Edwards
(2018) 26 Cal.App.5th 1181, 1192-1193 (Edwards). (Cal. Code
Regs., tit. 15, § 3491, subd. (b)(1), Register 2018, No. 52
(Dec. 26, 2018).) Those modified regulations moot CDCR’s
argument that Gadlin is ineligible for early parole consideration
based on his status as a Three Strikes offender. We thus
consider only CDCR’s second argument, that Gadlin’s two prior
convictions for registrable sex offenses render him ineligible for
consideration for early release.
III. DISCUSSION
A. Proposition 57
On November 8, 2016, California voters passed Proposition
57, also known as the Public Safety and Rehabilitation Act of
2016, adding section 32, article I, to the California Constitution.
“As relevant here, the (uncodified) text of Proposition 57 declares
the voters’ purposes in approving the measure were to: ‘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.)” (Edwards, supra, 26
Cal.App.5th at p. 1185.) Under section 32(a)(1), “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.” And for purposes of
4
section 32(a)(1), “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.” CDCR was directed to “adopt
regulations in furtherance of these provisions, and the Secretary
of [CDCR] shall certify that these regulations protect and
enhance public safety.” (Cal. Const., art.1, § 32, subd. (b).)
CDCR’s regulations exclude from early parole consideration
an inmate who “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., tit. 15, §3491, subd.
(b)(3) (section 3491(b)(3).) In a Final Statement of Reasons
accompanying the adopted regulations, CDCR stated, “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.” (Cal. Dept. of
Corrections, Credit Earning and Parole Consideration Final
Statement of Reasons, Apr. 30, 2018, p. 20.)
B. Standard of Review
“‘In order for a regulation to be valid, it must be (1)
consistent with and not in conflict with the enabling statute and
(2) reasonably necessary to effectuate the purpose of the statute.
(Gov. Code, § 11342.2.)’ (Physicians & Surgeons Laboratories,
Inc. v. Department of Health Services (1992) 6 Cal. App. 4th 968,
982 . . .; see Henning v. Division of Occupational Saf. & Health
(1990) 219 Cal. App. 3d 747, 757 . . . (Henning).) Therefore, ‘the
rulemaking authority of the agency is circumscribed by the
5
substantive provisions of the law governing the agency.’
(Henning, supra, at p. 757.) ‘“The task of the reviewing court in
such a case is to decide whether the [agency] reasonably
interpreted [its] legislative mandate. . . . Such a limited scope of
review constitutes no judicial interference with the
administrative discretion in that aspect of the rulemaking
function which requires a high degree of technical skill and
expertise. . . . [T]here is no agency discretion to promulgate a
regulation which is inconsistent with the governing statute. . . .
Whatever the force of administrative construction . . . final
responsibility for the interpretation of the law rests with the
courts. . . . Administrative regulations that alter or amend the
statute or enlarge or impair its scope are void. . . .” [Citation.]’
(Id. at pp. 757-758.)” (Edwards, supra, 26 Cal.App.5th at
p. 1189.)
“When construing constitutional provisions and statutes,
including those enacted through voter initiative, ‘[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. [Citation.]’ (California Cannabis Coalition
6
v. City of Upland (2017) 3 Cal.5th 924, 933-934 . . . .)” (Edwards,
supra, 26 Cal.App.5th at p. 1189.)
C. Analysis
Section 32(a)(1) provides, “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.” The 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’s current offense triggering his Three Strikes
sentence is assault with a deadly weapon (§ 245, subd. (a)(1)),
which does not require registration as a sex offender. CDCR
argues that its application of the regulations to exclude inmates
who have sustained prior registrable convictions is consistent
with its determination that registrable sex offenses involve a
sufficient degree of violence and registrable inmates represent an
unreasonable risk to public safety. These policy considerations,
however, do not trump the plain text of section 32(a)(1).
CDCR’s application of section 3491(b)(3) to exclude Gadlin
and all similarly situated inmates from early parole consideration
runs afoul of section 32(a)(1). Gadlin is entitled to early parole
7
consideration. 3
We express no opinion on whether CDCR’s application of
its regulations to exclude inmates whose current offense requires
registration as a sex offender similarly violates section 32(a)(1).
IV. DISPOSITION
The petition for habeas corpus is granted. The California
Department of Corrections and Rehabilitation is directed to
consider Gadlin for early parole consideration within 60 days of
remittitur issuance.
KIM, J.
I concur:
MOOR, J.
3 We note that this holding only permits Gadlin early parole
consideration, not release. The Board of Parole Hearings will be
permitted to consider his full criminal history, including his prior
sex offenses, in deciding whether a grant of parole is warranted.
(§ 3041, subd. (b); Cal. Code Regs., tit. 15, § 2449.32, subd. (c).)
8
In re Gregory Gadlin
B289852
BAKER, Acting P. J., Concurring
The opinion of the court resolves the appeal before us on
narrow grounds, correctly concluding that regulations
promulgated by the California Department of Corrections and
Rehabilitation (CDCR) are unconstitutional as applied to bar
early parole consideration for petitioner Gregory Gadlin
(petitioner) based on two prior sex offenses committed in the
1980s for which petitioner has already been imprisoned and
released.
Almost always, the wise choice is to refrain from saying
more than necessary to dispose of an appeal. But under the
unusual circumstances here where the parties have briefed the
issue in broader terms—effectively, whether the regulatory
prohibition of early parole consideration for sex offender
registrants is facially consistent with the pertinent provisions of
Proposition 57, the Public Safety and Rehabilitation Act of
2016—and where all concerned would benefit from knowing
sooner rather than later what regulatory approaches are
permissible, I believe there is good reason to say a bit more than
strictly necessary. I therefore write separately to outline my view
that the regulatory provisions in question are not inconsistent on
their face with the provisions added to the constitution by
Proposition 57.
In my view, Proposition 57 authorizes the Secretary of the
CDCR to adopt rules that exclude from early parole consideration
those inmates who are currently in custody as a result of an
offense that would require registration as a sex offender.
Succinctly put, I believe the Secretary has that authority because
he acts pursuant to an express grant of authority to promulgate
regulations to implement an initiative with an undefined term,
because a clear textual indication that Proposition 57 was
intended to bar regulatory exclusion of current-offense sex
offenders is absent (which distinguishes this case from our
holding in In re Edwards (2018) 26 Cal.App.5th 1181 (Edwards)),
and because the ballot materials for Proposition 57—including a
ballot argument signed by the then-sitting Governor that
addresses whether early parole consideration for nonviolent
felony offenses extends to sex offenders—illuminate an ambiguity
about the intended scope of the initiative and illustrate why
CDCR’s regulatory approach cannot be deemed inconsistent with
the voters’ intent.
I
Two provisions that Proposition 57 added to our state
Constitution are important in this appeal. The first is the
provision enacted as Article I, section 32, subdivision (a)(1)
(hereafter section 32(a)). It reads: “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.” The second is the provision in the
next subdivision: “The Department of Corrections and
Rehabilitation shall adopt regulations in furtherance of these
provisions, and the Secretary of the Department of Corrections
and Rehabilitation shall certify that these regulations protect
2
and enhance public safety.” (Cal. Const., art. I, § 32, subd. (b)
(hereafter section 32(b).)
In regulations promulgated pursuant to section 32(b), the
Secretary adopted the Penal Code’s definition of a “violent felony”
for use in defining what “nonviolent felony offense” means as
used in section 32(a). (Cal. Code Regs., tit. 15, §§ 3490, subds.
(a)-(c) [with additional qualifications not relevant here, an inmate
is a nonviolent offender if the inmate is not serving a determinate
sentence for a crime listed in the Penal Code’s definition of a
violent felony], 3495, subds. (a)-(b) [same for indeterminate
sentences]; see also Pen. Code, § 667.5, subd. (c) [defining “violent
felony”].) As relevant here, the Penal Code definition includes a
significant number of sex crimes: specified forms of rape, sodomy,
oral copulation, and committing a lewd or lascivious act; sexual
penetration by a foreign object; assault with intent to commit
specified sex crimes (including rape, sodomy, and oral
copulation), continuous sexual abuse of a child, and specified sex
crimes committed in concert. (Pen. Code, § 667.5, subds. (c)(3)-
(6), (11), (15)-(16), (18).) Inmates currently serving a sentence as
a result of these sex crimes are ineligible for early parole
consideration (Cal. Code Regs., tit. 15, §§ 3491, subd. (a), 3496,
subd. (a)) and there is no dispute about that.
What is disputed by the parties is a further step taken by
the CDCR regulations promulgated pursuant to section 32(b), a
step that makes offenders who have committed other sex-related
offenses ineligible for early parole consideration. Specifically, the
regulations bar early parole consideration for any inmates
“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
3
Penal Code.” (Cal. Code Regs., tit. 15, §§ 3491, subd. (b)(3), 3496,
subd. (b).) To understand the significance of this regulatory
exclusion, we must compare the crimes that trigger mandatory
sex offender registration with those sex offenses defined as
violent felonies under Penal Code section 667.5; where there is no
overlap between the two is where the regulations’ sex offender
registration exclusion is operative.
Penal Code section 290 is the principal statutory provision
that defines the crimes for which a convicted defendant must
register as a sex offender. The statute’s list of crimes (as it
existed at the time of Proposition 57’s passage) is long. It
provides: “Any person who, since July 1, 1944, has been or is
hereafter convicted in any court in this state or in any federal or
military court of a violation of Section 187 [murder] committed in
the perpetration, or an attempt to perpetrate, rape or any act
punishable under Section 286 [sodomy], 288 [lewd or lascivious
conduct], 288a [oral copulation], or 289 [forcible penetration],
Section 207 or 209 [kidnapping] committed with intent to violate
Section 261 [rape], 286, 288, 288a, or 289, Section 220 [assault
with intent to commit rape, sodomy, or oral copulation], except
assault to commit mayhem, subdivision (b) and (c) of Section
236.1 [human trafficking], Section 243.4 [sexual battery],
paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261
[rape, except rape by false impersonation of a person known to
the victim], paragraph (1) of subdivision (a) of Section 262
[spousal rape] involving the use of force or violence for which the
person is sentenced to the state prison, Section 264.1 [rape in
concert], 266 [enticement of a minor for prostitution], or 266c
[fear-induced sex acts], subdivision (b) of Section 266h [pimping a
minor], subdivision (b) of Section 266i [pandering a minor],
4
Section 266j [procuring a minor for lewd and lascivious conduct],
267 [abduction for prostitution], 269 [aggravated child sexual
assault], 285 [incest], 286, 288, 288a, 288.3 [contacting a minor to
commit a sex offense], 288.4 [arranging a meeting with a minor to
engage in lewd or lascivious conduct], 288.5 [continuous sexual
abuse of a child], 288.7 [sex or sodomy with a child under ten
years old], 289, or 311.1 [sale of child pornography], subdivision
(b), (c), or (d) of Section 311.2 [production and distribution of
child pornography], Section 311.3 [child sexual exploitation],
311.4 [employing a minor in sale or distribution of child
pornography], 311.10 [advertising child pornography], 311.11
[possession of child pornography], or 647.6 [annoying or
molesting children], . . . , subdivision (c) of Section 653f
[solicitation of rape by force or violence, sodomy by force or
violence, or oral copulation by force or violence], subdivision 1 or
2 of Section 314 [indecent exposure], any offense involving lewd
or lascivious conduct under Section 272 [contributing to the
delinquency of a minor], or any felony violation of Section 288.2
[sending “harmful matter,” i.e. patently offensive sexual matter,
to a minor] . . . .” (Former Pen. Code, § 290, added by Stats. 2007,
ch. 579, § 8.)
Comparing this list of registrable offenses to the categories
of crimes statutorily deemed violent, there are many offenders
who will be barred from early parole consideration under the
CDCR regulations even though those offenders have not been
convicted of a violent felony as defined by the Penal Code.
Among them are those convicted of human trafficking, sexual
penetration accomplished when the victim is prevented from
resisting by an intoxicating or anesthetic substance, solicitation
of another to commit rape by force or violence, pimping a minor,
5
and various child sexual exploitation offenses. 1 (Pen. Code,
§§ 236.1, 289, subd. (e), 653f, subd. (c), 266h, subd. (b); see also,
e.g., Pen. Code, § 311.3.) The question is whether we can discern
an intent by California voters to preclude the Secretary from
exercising the regulatory authority they conferred upon him in
the manner he has.
II
The fundamental objective when interpreting constitutional
provisions and statutes is “is giving effect to the intended purpose
of the provisions at issue.” (California Cannabis Coalition v. City
of Upland (2017) 3 Cal.5th 924, 933.) “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.” (Id. at pp. 933-934; see also People
v. Valencia (2017) 3 Cal.5th 347, 358 [“A reason to further
explore the meaning of statutory language and to consider
extrinsic evidence of legislative intent is where statutory
language is ambiguous when considered ‘in the context of the
statute and initiative as a whole’”] (Valencia).)
Examining Article I, Section 32 of our constitution as a
whole, the precise scope of who is meant to benefit from early
1
Also among them are those convicted of indecent exposure.
(Pen. Code, § 314.)
6
parole consideration relief is left fuzzy at the margins. Section
32(a) states the rule—that those convicted of a “nonviolent felony
offense” and sentenced to state prison are eligible for parole
consideration—but the key term, nonviolent felony offense, is
noticeably left undefined (see Brown v. Superior Court (2016) 63
Cal. 4th 335, 360 (dis. opn. of Chin, J.)) even though it cannot be
applied in practice without further definition. That is where
section 32(b) comes in, directing the Secretary to “adopt
regulations in furtherance of these provisions.” That direction is
a textually explicit grant of authority that must at least extend to
clarifying the margins of what constitutes a nonviolent felony
offense.
As we know, the Secretary makes reference to the Penal
Code section 667.5 definition when crafting a regulatory
definition of “nonviolent offender.” That choice was not
constitutionally compelled, but it is consistent with the ballot
arguments authored by the proponents of Proposition 57. (Cal.
Code Regs., tit. 15, §§ 3490, subds. (a)-(c), 3495, subds. (a)-(b);
Ballot Pamp., Gen. Elec. (Nov. 8, 2016) rebuttal to argument
against Prop. 57, p. 59 [“Violent criminals as defined in Penal
Code [section] 667.5(c) are excluded from parole”].) Although the
regulations make use of Penal Code section 667.5 in defining
“nonviolent offender” (Cal. Code Regs., tit. 15, §§ 3490, subds. (a)-
(c), 3495, subd. (a)), I do not believe we are required, when
undertaking a holistic review of the constitutional provisions and
the regulations themselves, to understand sections 3490,
subdivision (c) and 3495, subdivision (b) in isolation, i.e., as the
only means by which CDCR sought to flesh out the relevant
constitutional term—“nonviolent felony offense.” Rather, CDCR
was entitled, consistent with the text of Article I, Section 32 of
7
our Constitution, to conclude that it was appropriate to make use
of the Penal Code’s definition of “violent felony” only concomitant
with a regulatory exclusion for those subject to sex offender
registration.
That conclusion is fully consistent with our decision in
Edwards, supra, 26 Cal.App.5th 1181 because we were not there
asked to decide the meaning and scope of “nonviolent felony
offense.” Rather, CDCR conceded Edwards was imprisoned for a
nonviolent felony offense and the issue for our decision was
whether CDCR’s formerly adopted regulations “validly exclude
admittedly nonviolent ‘Third Strike’ offenders sentenced to
indeterminate [prison] terms from Proposition 57 relief.” (Id. at
pp. 1184, 1186, 1191.) We, of course, held the answer was no,
and importantly, that was our answer because there was an
explicit textual basis in the constitutional provisions added by
Proposition 57 that revealed barring relief for those serving
indeterminate Three Strikes sentences was inconsistent with the
voters’ intent. (Id. at p. 1190 [“There is no question that the
voters who approved Proposition 57 intended Edwards and others
serving Three Strikes indeterminate sentences to be eligible for
early parole consideration; the express exclusion of alternative
sentences when determining the full term is dispositive”]; see
also § 32(a)(1)(A) [“For purposes of this section only, 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”],
italics added.) Edwards therefore does not answer the question I
take on here because absent from the text of section 32 is any
8
explicit direction as to whether sex offenders should be eligible
for Proposition 57 relief. 2
Proposition 57’s ballot materials, however, were anything
but silent on that score. In the argument against Proposition 57,
the opponents of the initiative warned “[t]he authors of
Proposition 57 claim it only applies to ‘non-violent’ crimes, but
their poorly drafted measure deems the following crimes ‘non-
violent’ and makes the perpetrators eligible for EARLY PAROLE
and RELEASE into local communities: [¶] ● Rape by intoxication
2
Those voting for Proposition 57 could have reasonably
thought the term “nonviolent felony offense” would not
encompass sex crimes against adults and children, many of which
involve what are at least arguably elements of violence as
popularly conceived. (See, e.g., Pen. Code, §§ 236.1, subd. (b) [“A
person who deprives or violates the personal liberty of another
with the intent to effect or maintain a violation of Section 266,
266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or
518 is guilty of human trafficking and shall be punished by
imprisonment in the state prison for 8, 14, or 20 years and a fine
of not more than five hundred thousand dollars ($500,000)”].)
That is true even as to child pornography offenses, where some
have argued such offenses are linked to crimes of violence, if not
crimes of violence themselves. (See, e.g., American Booksellers
Ass’n, Inc. v. Hudnut (7th Cir. 1985) 771 F.2d 323, 328-329 & fns.
1 & 2; United States v. Cocco (M.D. Pa. 1985) 604 F. Supp. 1060,
1062.) Indeed, CDCR’s statement of reasons accompanying the
formerly adopted regulations relied on just such a broad
understanding of violence. (Cal. Dept. of Corrections, Credit
Earning and Parole Consideration Final Statement of Reasons,
April 30, 2018, p. 20 [“The department has determined that 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”].)
9
● Rape of an unconscious person ● Human Trafficking involving
sex act with minors . . . .” (Ballot Pamp., Gen. Elec. (Nov. 8,
2016) argument against Prop. 57, p. 59.) The proponents—
including California’s sitting Governor at the time (who was
identified as such in the ballot pamphlet)—answered the charge
that those convicted of sex crimes like human trafficking would
benefit from Proposition 57. In their rebuttal argument, they
asserted Proposition 57 “[d]oes not and will not change the
federal court order that excludes sex offenders, as defined in
Penal Code [section] 290, from parole.” (Ballot Pamp., Gen. Elec.
(Nov. 8, 2016) rebuttal to argument against Prop. 57, p. 59.) The
“federal court order” referenced by the proponents was left
unspecified, but the import of their assertion was clear enough to
everyday voters: do not be alarmed, those sex offenders specified
in Penal Code section 290 will be excluded from benefitting from
early parole consideration.
The ballot arguments are highly significant in my view
because they help establish how voters expected, and we can
infer intended, CDCR to more precisely define the group of
offenders who would benefit from Proposition 57 that the text of
the initiative left ambiguous at the margins. 3 (See generally
3
It appears CDCR framed its overall approach to defining
“nonviolent felony offense” by relying on the ballot arguments
that provide helpful clues to voter intent where the text of the
initiative does not. Just as the proponents of the measure argued
“[v]iolent criminals as defined in Penal Code [section] 667.5(c) are
excluded from parole,” CDCR’s regulations exclude from early
parole consideration those convicted of a violent felony within the
meaning of that Penal Code provision. And just as the
proponents assured sex offenders within the meaning of Penal
10
Valencia, supra, 3 Cal.5th at p. 364 [courts examine the
materials before the voters to resolve questions of purpose and
ambiguity].) Proposition 57’s proponents assured voters that
those required to register as sex offenders would not benefit from
the initiative, and that assurance leaves me convinced voters did
not intend to preclude CDCR from promulgating regulations that
preclude relief for state prison inmates incarcerated for a current
crime that requires registration as a sex offender.
The problem in this case, of course, is that section 3496,
subdivision (b) of CDCR’s regulations was applied to bar early
parole consideration for petitioner based not on an offense for
which he is now incarcerated but on older crimes for which he
was long ago released from prison. That is why I concur in the
result reached by the majority. 4
BAKER, Acting P. J.
Code section 290 would be excluded from parole, the regulations
enforce that exclusion.
4
Although I have said more than the majority does, there
are still questions I too leave for another day, among them the
question of whether an inmate incarcerated for indecent exposure
could successfully challenge the sex offender regulatory exclusion
as unconstitutional under Proposition 57 as applied to him or
her.
11