In re Febbo

Filed 8/3/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re RICK RYAN FEBBO G057667
on Habeas Corpus. (Super. Ct. No. M-17593)
OPINION
Appeal from an order of the Superior Court of Orange County, Cheri T.
Pham, Judge. Affirmed.
Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney
General, Amanda J. Murray and Gregory J. Marcot, Deputy Attorneys General, for
Appellant.
C. Matthew Missakian, under appointment by the Court of Appeal, for
Respondent.
* * *
INTRODUCTION
Proposition 57, enacted by the voters in November 2016, amended the
California Constitution to permit early parole consideration for “[a]ny person convicted
of a nonviolent felony offense.” (Cal. Const., art. I, § 32, subd. (a)(1) (section 32(a)(1).)
The California Department of Corrections and Rehabilitation (CDCR), pursuant to its
authority to promulgate regulations “in furtherance of these provisions” (id., subd. (b)),
adopted regulations which rendered ineligible for early parole consideration any inmate
who “is convicted of a sexual offense that currently requires or will require registration as
a sex offender.” (Cal. Code Regs., tit. 15, § 3491, subd. (b)(3) (Title 15, section
3491(b)(3).) This ineligibility applies categorically to any and all offenses requiring
registration as a sex offender, regardless whether or not they might be characterized as
violent.
Rick Ryan Febbo was deemed ineligible for early parole consideration
because he is serving a sentence and has prior convictions for indecent exposure, an
offense requiring registration as a sex offender under Penal Code section 290. He filed a
petition for writ of habeas corpus in the trial court to challenge the decision denying him
eligibility for early parole consideration. The trial court concluded the regulation making
him ineligible for such consideration violated Proposition 57 and granted Febbo relief.
The CDCR1 appealed.
We hold that indecent exposure under Penal Code section 314 is a
nonviolent felony offense as that term is used in section 32(a)(1). The CDCR regulations
are therefore invalid to the extent they deny early parole consideration to inmates based
solely on a current or prior conviction for indecent exposure. As a consequence, Febbo
cannot be denied eligibility for early parole consideration solely based on his convictions
for that offense.
1
Febbo’s habeas corpus petition named as a respondent Scott Kernan, as Secretary of the
CDCR. We refer to appellant, respondent below, as the CDCR.
2
We decline to resolve the broader issue of whether the CDCR may
categorically exclude from eligibility for early parole consideration all inmates currently
serving sentences or having prior convictions for any offense requiring sex offender
registration under Penal Code section 290. Although indecent exposure is a nonviolent
felony offense, we recognize there are unquestionably violent crimes—for example, rape
of a drugged person in violation of Penal Code section 289, subdivision (e)—which
require sex offender registration but are not identified as violent felony offenses in Penal
Code section 667.5, subdivision (c) (section 667.5(c).) Section 32(a)(1) does not restrict
the CDCR’s authority to promulgate regulations denying eligibility for early parole
consideration to inmates serving time for violent felony offenses not identified in section
667.5(c).
BACKGROUND LAW
I.
Proposition 57
California voters approved Proposition 57, called the Public Safety and
Rehabilitation Act of 2016, at the November 2016 general election. Proposition 57 added
article I, section 32 to the California Constitution, which, among other things, permits
early parole consideration for prison inmates convicted of nonviolent felony offenses.
(§ 32(a)(1).) In relevant part, section 32(a)(1) states: “(1) Parole Consideration: 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.”
Proposition 57 was a response to federal court orders requiring California
to implement measures to reduce its prison population. (Voter Information Guide, Gen.
Elec. (Nov. 8, 2016) argument in favor of Prop. 57, p. 58.) That purpose, and others, are
stated expressly and directly in article I, section 32, subdivision (a) of the California
3
constitution: “The following provisions are hereby 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.” (Ibid.) These
purposes reflect those identified in the uncodified text of Proposition 57, which were:
“‘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., supra, text of Prop. 57,
§ 2, p. 141, quoted in In re Edwards (2018) 26 Cal. App. 5th 1181, 1185.)
II.
Regulations Promulgated by the CDCR
Proposition 57 granted the CDCR authority to adopt regulations to
implement early parole consideration: “The [CDCR] shall adopt regulations in
furtherance of these provisions, and the Secretary of the [CDCR] shall certify that these
regulations protect and enhance public safety.” (Cal. Const., art. I, § 32, subd. (b)
(section 32(b).) Pursuant to this authority, the CDCR promulgated and adopted final
regulations, issued in May 2018, and certified them in accordance with section 32(b).
(In re Edwards, supra, 26 Cal.App.5th at pp. 1187-1188.)
The CDCR’s regulations, which are found at California Code of
Regulations, title 15, sections 3490 through 3493, define a “determinately-sentenced
nonviolent offender” as an inmate sentenced to a determinate term and for whom no fact
from a list of disqualifying facts is true. (Cal. Code Regs., tit. 15, § 3490, subd. (a).)
Among the disqualifying facts is “[t]he inmate is currently serving a term of incarceration
for a ‘violent felony.’” (Id., subd. (a)(5).) California Code of Regulations, title 15,
section 3490, subdivision (c) (Title 15, section 3490(c)) defines violent felony as “a
crime or enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code.”
4
The regulations then state, “a determinately-sentenced nonviolent offender,
as defined in subsections 3490(a) and 3490(b), shall be eligible for parole consideration.”
(Cal. Code Regs., tit. 15, § 3491, subd. (a).) An inmate who comes within the definition
of a determinately-sentenced nonviolent offender nonetheless is ineligible for early parole
consideration if any one of three conditions apply. (Id., subd. (b).) The third condition
is: “The 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.” (Title 15, § 3491(b)(3).)
Public safety was the CDCR’s justification for excluding all sex offenders
for early parole consideration. (CDCR, Credit Earning and Parole Consideration Final
Statement of Reasons (Apr. 30, 2018), p. 20.) The CDCR observed that some offenses
requiring sex offender registration are not considered violent felonies but do involve
“some degree of physical force, coercion, or duress with the victim, often a minor.”
(Ibid.) Examples of such offenses are “incest, pimping of a minor under sixteen, sexual
battery, and lewd and lascivious acts with a fourteen or fifteen year old victim where the
perpetrator is at least ten years older.” (Ibid.) The CDCR concluded: “[T]hese 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. Accordingly, the proposed regulations exclude inmates who are
‘convicted of a sexual offense that requires registration as a sex offender under Penal
Code section 290’ from the nonviolent parole consideration process.” (Id. at pp. 20-21.)
III.
Penal Code Section 290
Every person convicted of a crime identified in Penal Code section 290,
subdivision (c) is required to register as a sex offender with the relevant branch of local
law enforcement while that person resides or works in California. (Id., subd. (b).) Most
5
of the crimes listed in Penal Code section 290, subdivision (c) are also listed as violent
offenses in section 667.5(c). But several offenses listed in Penal Code section 290,
subdivision (c) are not violent offenses under section 667.5(c). Indecent exposure is such
an offense. (Compare Pen. Code, § 290, subd. (c) [indecent exposure in violation of
Penal Code section 314 listed as offense requiring registration] with § 667.5(c) [indecent
exposure in violation of Penal Code section 314 not listed as violent felony].)
BACKGROUND FACTS AND PROCEDURE
In July 2016, a jury convicted Febbo of three counts of felony indecent
exposure in violation of Penal Code section 314, subdivision (1). He was sentenced to a
determinate term of six years eight months in prison and is currently serving that term.
Febbo previously had been convicted of indecent exposure in 2007 and 2009.2 Due to his
prior and current convictions for indecent exposure, Febbo must register as a sex offender
in accordance with Penal Code section 290. (Id., § 290, subd. (c).)
In April 2018, Febbo filed an inmate/parolee appeal to the CDCR by which
he sought confirmation he would be given an early parole hearing after serving the first
two years of his sentence. The appeal was rejected with instructions for Febbo to direct
his appeal to the Board of Parole Hearings (BPH). Febbo’s attorney made a written
request to the BPH to consider Febbo for an early parole hearing under Proposition 57.
The BPH responded with a letter stating, “[I]t appears [Febbo] has been convicted of a
sexual offense requiring his registration under Penal Code section 290; therefore, he is
2
The CDCR’s opening brief makes the representations that Febbo’s prior convictions
requiring sex offender registration were for oral copulation of a minor and that he
suffered those convictions in 1980 and 1984. The CDCR’s record citations do not
support those representations, and they are nearly impossible. According to the probation
report for the current offense, Febbo was born in May 1974, which would have made him
about six years old in 1980 and ten years old in 1984. The only prior registrable offenses
identified in the probation report are indecent exposure, for which he was convicted in
2008 and 2009.
6
not eligible for the nonviolent parole process.” In May 2018, Febbo filed an
inmate/parolee appeal formally requesting an early parole hearing under Proposition 57.
That appeal also was rejected.
Febbo filed a petition for writ of habeas corpus in the trial court. He
alleged the CDCR regulations making nonviolent sex offenders ineligible for early parole
consideration under Proposition 57 were unlawful and “a clear violation of the California
Constitution, as amended by Proposition 57.” The trial court issued an order to show
cause, the CDCR filed a return, and Febbo filed a traverse.
The trial court granted Febbo’s petition for writ of habeas corpus. The
court concluded, “[t]he plain language of Article I, § 32 appears to extend eligibility for
early parole consideration to all nonviolent offenders, including those who are required to
register as sex offenders per Penal Code § 290” and “[t]he regulation excluding inmates
. . . from early parole consideration is inconsistent with California Constitution, article I,
§ 32, and is therefore invalid.” As relief, the court ordered the CDCR not to exclude
nonviolent sex offenders from early parole consideration “based on such status alone”
and to evaluate Febbo for early parole consideration within 60 days. The CDCR
appealed from the order granting Febbo’s petition for writ of habeas corpus.
DISCUSSION
I.
Standards of Review
In resolving the issue raised by this appeal, we must construe portions of
section 32(a)(1) and section 32(b) and assess the validity of the regulations implementing
those provisions. We independently construe constitutional provisions enacted by voter
initiative in a manner that gives effect to the voters’ purpose in adopting the law.
(California Cannabis Coalition v. City of Upland (2017) 3 Cal. 5th 924, 933-934.) We
begin by analyzing the text of the constitutional provision in its relevant context because
7
that is typically the best and most reliable indicator of the voters’ intent. (Ibid.) We
ascribe to words their ordinary meaning, and consider the text of related provisions and
the structure of the constitutional scheme. (Id. at p. 933.) We turn to extrinsic sources,
such as ballot pamphlets and other election materials, only if the language of the
constitutional provision remains ambiguous after considering its text and structure. (Id.
at p. 934; Larkin v. Workers’ Comp. Appeals Bd. (2015) 62 Cal. 4th 152, 158.) In
construing initiatives, we presume the voters were aware of existing law. (California
Cannabis Coalition v. City of Upland, supra, 3 Cal.5th at p. 934.)
To be valid, a regulation must be (1) consistent with and not in conflict
with the enabling statute or constitutional provision and (2) reasonably necessary to
effectuate the purpose of the statute or constitutional provision. (In re Gadlin (2019) 31
Cal. App. 5th 784, 788 (Gadlin), review granted May 15, 2019, S254599.) Thus, the
relevant substantive law circumscribes an agency’s rulemaking authority. (Ibid.)
Regulations can be quasi-legislative or interpretive. (Association of
California Ins. Companies v. Jones (2017) 2 Cal. 5th 376, 396 (Jones).) Quasi-legislative
regulations are those adopted by an agency to which the Legislature has or the voters
have delegated a portion of its or their lawmaking power. (Ibid.) Quasi-legislative
regulations “‘have the dignity of statutes.’” (Id. at p. 397.) Judicial review of
quasi-legislative regulations is therefore limited to deciding whether the challenged
regulation falls within the scope of the delegated power and whether the regulation was
reasonably necessary to implement the statute. (Ibid.)
Interpretive regulations are those in which the agency interprets a statute or
regulation. (Jones, supra, 2 Cal.5th at p. 297.) “A court reviewing the validity of an
interpretive rule therefore must consider more than simply whether the rule is within the
scope of the authority conferred, and whether the rule is reasonably necessary to
effectuate the statute’s purpose. Rather, a court must also consider whether the
administrative interpretation is a proper construction of the statute.” (Ibid.)
8
A regulation can have both quasi-legislative and interpretive
characteristics—“‘as when an administrative agency exercises a legislatively delegated
power to interpret key statutory terms.’” (Jones, supra, 2 Cal.5th at p. 397.) The
regulations at issue in this case have those mixed characteristics: The voters expressly
delegated to the CDCR the power to adopt regulations in furtherance of the early parole
consideration provisions of Proposition 57 (§ 32(b)) and in exercising that delegated
power, the CDCR interpreted key constitutional terms.
II.
Indecent Exposure Is a Nonviolent Felony Offense
Under Section 32(a)(1).
A. The Text of Section 32(a)(1)
The CDCR contends it had the authority to adopt regulations rendering
ineligible for early parole consideration any inmate required to register as a sex offender
under Penal Code section 290 by virtue of that inmate’s current or past offenses. Febbo
is ineligible for early parole consideration, the CDCR argues, because he is required to
register as a sex offender due to his current conviction for indecent exposure, and for his
prior sex offenses, which also were for indecent exposure. Febbo is eligible for early
parole consideration, we conclude, because indecent exposure is a nonviolent felony
offense under section 32(a)(1).
Our analysis begins, as the standard of review instructs, with the text of
section 32(a)(1), viewed in its context and in light of the structure of the constitutional
scheme. The relevant part of 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.” The structure
and meaning of section 32(a)(1) is unambiguous. “Section 32, subdivision (a) of article I
of the California Constitution unequivocally states that any person convicted of a
9
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.” (Alliance for
Constitutional Sex Offense Laws v. Department of Corrections & Rehabilitation (2020)
45 Cal. App. 5th 225, 234 (Alliance), review granted May 27, 2020, S261362.)
Two recent opinions address the issue whether the CDCR may exclude
from eligibility for early parole consideration inmates required to register as sex
offenders. In Alliance, the Court of Appeal held the CDCR exceeded its rulemaking
authority by categorically excluding from eligibility for early parole consideration all
inmates serving sentence for current nonviolent sex offenses requiring registration under
Penal Code section 290. (Alliance, supra, 45 Cal.App.5th at pp. 228, 231-234.) The
CDCR had argued the exclusion of sex offenders was valid because they are more likely
than other offenders to recidivate and therefore are more dangerous to the public.
(Alliance, supra, 45 Cal.App.5th at pp. 231-232.)
The issue in Alliance was whether the CDCR’s stated justification for
excluding sex offenders from early parole consideration supported the regulation, and the
Alliance court was not called upon to address the definition of nonviolent felony offense.
The Alliance court explained: “At the outset we observe the [CDCR] 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 [section 32(a)(1)]. In other words,
the issue before us is not whether the [CDCR] may define ‘nonviolent offender’ to
exclude inmates convicted of a nonviolent sex offense. Rather, the issue presented here
is whether the [CDCR] is authorized to exclude from early parole consideration all sex
offenders regardless of their undisputed status as convicted of ‘nonviolent offenses’ on
the basis that they are more likely than other offenders to recidivate and are therefore
dangerous to public safety.” (Alliance, supra, 45 Cal.App.5th at pp. 231-232, fn.
omitted.) The court concluded that section 32(a)(1) “unequivocally demonstrates the
voters’ intent to provide early parole consideration for all inmates convicted of a
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nonviolent felony offense—as opposed to only those inmates the [CDCR] believes are
sufficiently unlikely to reoffend.” (Alliance, supra, at p. 234.) Proposition 57’s generally
stated goal of enhancing public safety did not grant the CDCR authority to promulgate
regulations that contradict the unambiguous language of section 32(a)(1). (Alliance,
supra, at pp. 234, 238.)
In Gadlin, supra, 31 Cal.App.5th at page 789, the Court of Appeal
concluded the exclusion of all sex offenders from eligibility for early parole consideration
did not apply to inmates with prior convictions for offenses requiring sex offender
registration. The court held the plain language of section 32(a)(1) limited the criteria for
eligibility for early parole consideration to the offense for which the inmate is presently
incarcerated. (Gadlin, supra, at p. 789.) The court expressed no opinion on whether
application of the CDCR’s regulations to exclude inmates, such as Febbo, who are
currently serving a sentence for an offense requiring registration as a sex offender
violates section 32(a)(1). (Gadlin, supra, at p. 790.)
B. The CDCR Regulations and Scope of Authority to Define Nonviolent Felony Offense
This case poses an issue unresolved by Alliance or Gadlin, namely, whether
indecent exposure is a nonviolent felony offense under section 32(a)(1). Section 32(a)(1)
leaves the term “nonviolent felony offense” undefined and does not refer to any other
constitutional or statutory provision to supply a definition. (See Brown v. Superior Court
(2016) 63 Cal. 4th 335, 360 (dis. opn. of Chin, J.) [“the absence of a definition [of
nonviolent offense] is troublesome, to say the least”].) The CDCR was delegated
authority to adopt regulations (§ 32(b)) to “flesh out the relevant constitutional term—
‘nonviolent felony offense.’” (Gadlin, supra, 31 Cal.App.5th at p. 794 (conc. opn. of
Baker, J.).)
The CDCR’s authority to define nonviolent felony offense is not
unbounded: To be valid, a regulation must be consistent with and correctly interpret the
11
enabling provision of the constitution. (Jones, supra, 2 Cal.5th at p. 396.) The CDCR’s
authority to promulgate regulations is thus limited by the text of section 32(a)(1), which,
according to its plain meaning, grants eligibility to any inmate convicted of a nonviolent
felony offense. The California Constitution does not permit the CDCR to adopt
regulations making inmates ineligible for early parole consideration based solely on a
conviction for a nonviolent felony offense. (See Alliance, supra, 45 Cal.App.5th at
p. 234.)
The plain meaning of the term nonviolent felony offense is an offense that
is a felony and is not violent in nature. The CDCR regulations do not provide a general
definition for the word violent but instead define nonviolent felony offense by reference
to the offenses identified in section 667.5(c) and Penal Code section 290. Thus, Title 15,
section 3490(c) defines the term “nonviolent felony offense” under section 32(a)(1) by
defining “‘[v]iolent felony’” as a crime or enhancement defined in section 667.5(c).
Section 667.5(c) does not provide a general definition of violent, but identifies the
specific offenses deemed to be violent felonies.3 Title 15, section 3491(b)(3) excludes
from early parole consideration an inmate convicted of an offense requiring registration
as a sex offender under Penal Code section 290.
What is the net effect when Title 15, section 3490(c) is read in conjunction
with Title 15, section 3491(b)(3)? The effect is that the term nonviolent felony offense
under section 32(a)(1) means any crime or enhancement that is not identified in section
667.5(c) or for which registration as a sex offender is not required under Penal Code
sections 290 through 290.024. Whether an inmate was convicted of a violent felony
under Title 15, section 3490(c) or an offense requiring sex offender registration under
Title 15, section 3291(b)(3), the result under the regulations is the same: the inmate is
ineligible for early parole consideration. These regulations are, therefore, an exercise of
3
In contrast, section 16 of title 18 of the United States Code provides a general
definition of the term “crime of violence” for use in federal criminal law.
12
the CDCR’s interpretive authority, subject to scrutiny for whether they correctly interpret
the meaning of the term nonviolent felony offense under section 32(a)(1). (Jones, supra,
2 Cal.5th at p. 397.)
The CDCR was “not constitutionally compelled” to limit violent felonies to
those crimes and enhancements identified in section 667.5(c) (Gadlin, supra, 31
Cal.App.5th at p. 794 (conc. opn. of Baker, J.)), and the text of section 32(a)(1) does not
use, much less mandate, such a definition. By its terms, section 667.5(c) is not an
all-purpose list of violent felonies for use in every aspect of California law. Instead,
section 667.5(c) expressly states it is identifying violent felonies only “[f]or the purpose
of this section,” and the purpose of section 667.5 is only to impose a sentence
enhancement for the specified offenses. There are many decidedly violent felonies, such
as rape of a drugged person (Pen. Code, § 289, subd. (e)), sex trafficking (Pen. Code,
§ 236.1), and hostage taking (Pen. Code, § 210.5), that are not among the violent felonies
listed in section 667.5(c).
The CDCR’s authority to define the scope of eligibility for early parole
consideration is subject to a strict limitation imposed by section 32(a)(1) which is, as we
have explained, the CDCR cannot adopt regulations denying eligibility for early parole
consideration to an inmate serving time for a nonviolent felony offense. The CDCR
cannot by regulatory fiat turn an intrinsically nonviolent felony offense into a violent one.
C. Definitions of Nonviolent Felony Offense and Violent Felony
The terms nonviolent felony offense and violent felony, though undefined
by section 32(a)(1), have been defined in various sources and have commonly understood
meanings. A survey of the crimes identified in section 667.5(c) as violent felonies shows
they all, with maybe one exception, involve killing, physical force, infliction of physical
injury, coercion, rape, sexual assault or abuse, destruction of property, fear, duress, or
13
threats.4 Federal law defines the term “crime of violence” as “(a) an offense that has as
an element the use, attempted use, or threatened use of physical force against the person
or property of another, or [¶] (b) any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the person or property of another
may be used in the course of committing the offense.” (18 U.S.C., § 16.) Violence has
been defined in case law as denoting “‘the unjust or unwarranted exercise of force,
usually with the accompaniment of vehemence, outrage, or fury’” (People v. McIlvain
(1942) 55 Cal. App. 2d 322, 328-329), and violent has been defined as “characterized by
extreme force . . . marked by abnormally sudden physical activity and intensity”
(Webster’s 3d New Internat. Dict. (2002) p. 2554, col. 2).
These definitions share common elements: Violence or a violent crime
involves physical force, sexual contact, physical injury or destruction of property, fear,
coercion, or duress. The CDCR, in its final statement of reasons supporting the
regulations, described violent felonies in a similar way. The CDCR stated that some
offenses requiring sex offender registration, though not considered violent felonies, are
nonetheless violent because they involve “some degree of physical force, coercion, or
duress with the victim, often a minor.” (CDCR, Credit Earning and Parole Consideration
Final Statement of Reasons, supra, p. 20.) Sex offenders should be excluded from
eligibility for early parole consideration because, the CDCR concluded, “these sex
offenses demonstrate a sufficient degree of violence and represent an unreasonable risk to
public safety.” (Id. at pp. 20-21.)
Indecent exposure is not a violent crime under any of the given definitions.
Under Penal Code section 314, a person commits indecent exposure if that person:
“1. Exposes his person, or the private parts thereof, in any public place, or in any place
where there are present other persons to be offended or annoyed thereby; or [¶]
4
An exception might be first degree burglary. (Pen. Code, § 667.5, subd. (c)(21).)
14
2. Procures, counsels, or assists any person so to expose himself or . . . to make any other
exhibition of himself to public view, or the view of any number of persons, such as is
offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts.”
None of the conduct punishable under Penal Code section 314 involves
physical contact, use of physical force against persons or property, infliction of physical
injury or property damage, use of fear, duress, sexual contact, coercion, or threats.
Indecent exposure does not meet the CDCR’s own standard for violent offense. (CDCR,
Credit Earning and Parole Consideration Final Statement of Reasons, supra, p. 20.) The
CDCR does not attempt to show how indecent exposure is violent.
The concurring justice in Gadlin, while concluding the CDCR had the
authority to exclude sex offenders generally from eligibility for early parole
consideration, suggested indecent exposure might not be a nonviolent felony offense
under section 32(a)(1). At the very end of the concurring opinion in Gadlin, the
concurring justice wrote: “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.”
(Gadlin, supra, 31 Cal.App.5th at p. 796, fn. 4 (conc. opn. of Baker, J.).) This opinion
answers that question by concluding the inmate’s challenge should be successful.
The CDCR argues that section 32(b), by requiring the CDCR to certify that
its regulations “protect and enhance public safety,” gave it the authority to exclude all sex
offenders from early parole consideration. The CDCR argues that public safety is the
policy driving section 32(a)(1) and it could not certify as promoting public safety a
regulation making sex offenders eligible for early parole release. The CDCR’s duty to
certify its regulations promote and enhance the policies supporting section 32(a) did not
grant the CDCR authority to promulgate and adopt policies that are inconsistent or
conflict with section 32(a)(1). (Alliance, supra, 45 Cal.App.5th at pp. 235.)
15
D. Conclusion
The term nonviolent felony offense in section 32(a)(1) is unambiguous and
includes the crime of indecent exposure under Penal Code section 314. The CDCR
regulations are invalid to the extent they deny early parole eligibility solely on the ground
the inmate committed that offense. Section 32(a)(1) only makes an inmate eligible for
early parole consideration and does not mean the inmate will be paroled. That decision
rests with the BPH, which may consider an inmate’s full criminal history, including prior
sex offenses, in deciding whether to grant parole. (See Pen. Code, § 3040 et seq.; Cal.
Code Regs., tit. 15, § 2449.32, subd. (c).)
III.
Extrinsic Materials Support Our Conclusions
Because we have concluded section 32(a)(1) is unambiguous on its face
with respect whether indecent exposure is a nonviolent felony offense, it is unnecessary
for us to consider extrinsic materials to discern the voters’ intent. Considering such
materials is useful, however, to test the soundness of our conclusions. (See Hi-Voltage
Wire Works, Inc. v. City of San Jose (2000) 24 Cal. 4th 537, 560 [“we may ‘test our
construction against those extrinsic aids that bear on the enactors’ intent’ [citation], in
particular the ballot materials”].) We consider extrinsic materials, including the ballot
summary, arguments for and against the initiative, and the Legislative Analyst’s analysis,
to determine voter intent. (Silicon Valley Taxpayers’ Assn., Inc. v. Santa Clara County
Open Space Authority (2008) 44 Cal. 4th 431, 445.)
The Official Title and Summary section of the Voter Information Guide for
the November 2016 general election states that Proposition 57 would, among other
things, “[a]llow[] parole consideration for persons convicted of nonviolent felonies, upon
completion of prison term for their primary offense as defined.” (Voter Information
Guide, Gen. Elec., supra, official title and summary of Prop. 57, p. 54.) The Legislative
16
Analyst’s analysis states Proposition 57 would change the state constitution to make
inmates convicted of nonviolent felony offenses eligible for early parole consideration.
(Id., analysis of Prop. 57 by Legis. Analyst, p. 56.) As to what are nonviolent felony
offenses, the analysis states: “The measure requires CDCR to adopt regulations to
implement these changes. Although 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.)
The Official Title and Summary and the Legislative Analyst’s analysis state
that eligibility for early parole consideration is based on whether the inmate currently is
serving a sentence for a nonviolent felony, with no other exceptions or qualifications as
to the nature of the offense. The Legislative Analyst assumes nonviolent felonies are
those offenses not defined “in statute” as violent.
The arguments for and against Proposition 57 offered differing views of its
potential effects on public safety. In the rebuttal to the proponents’ argument in favor of
Proposition 57, and in the argument against Proposition 57, opponents argued Proposition
57 would grant early parole to inmates convicted of various violent offenses, including
rape of an unconscious victim, human sex trafficking, and lewd acts against a
14-year-old. (Voter Information Guide, Gen. Elec., supra, rebuttal to argument in favor
of Prop. 57, p. 58, argument against Prop. 57, p. 59.) The opponents of Proposition 57
similarly argued in the argument against Proposition 57 that it would deem various
violent crimes to be nonviolent and make perpetrators of those crimes eligible for early
parole. (Id., argument against Prop. 57, p. 59.) Indecent exposure was not on the list of
violent offenses which, the opponents argued, would be deemed nonviolent under
Proposition 57.
In rebuttal, the proponents of Proposition 57 emphasized that it granted
early parole eligibility only to inmates convicted of nonviolent felonies. The proponents
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asserted “violent criminals as defined in Penal Code [section] 667.5(c) are excluded from
parole” and 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.” (Voter
Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 57, p. 59.) It
appears the order referred to by the proponents is an order issued in November 2014 by a
three-judge court of the United States District Court for the Eastern and Northern
Districts of California requiring the State of California to create and implement a parole
determination process by which nonviolent second-strike offenders would be eligible for
parole consideration. (Coleman et al. v. Brown et al. (E.D.Cal. & N.D.Cal. Nov. 14,
2014, Civ. No. 2:90-cv-0520.) In response to that order, the State of California submitted
a report on a proposed parole process. The proposal excluded from parole eligibility
inmates required to register as sex offenders pursuant to Penal Code section 290 “based
on a current or prior sex-offense conviction.” This report was not included or cited in the
Voter Information Guide.
According to the CDCR, these passages from the ballot pamphlet tell us
“[t]he intended result of Proposition 57 is parole reform for nonviolent inmates who are
not sex offenders.” According to Febbo, they tell us “the bulk of the ballot materials
made very clear that some sex offenders would be eligible for early parole.”
What we glean from the Voter Information Guide is the voters intended to
grant early parole consideration to an inmate currently serving a sentence for a nonviolent
offense, with no express definition of nonviolent provided. That is what the Official Title
and Summary, the Legislative Analyst’s analysis, and the text of Proposition 57, told the
voters. We presume the voters duly considered the text of Proposition 57 (Amador
Valley Joint Union High School Dist. v. State Bd. of Equalization (1978) 22 Cal. 3d 208,
243-244), voted intelligently (Brosnahan v. Brown (1982) 32 Cal. 3d 236, 252), and
intended the meaning apparent on the proposition’s face (People ex rel. Lungren v.
Superior Court (1996) 14 Cal. 4th 294, 301).
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In attempting to discern voter intent from the ballot materials, we find
noteworthy the absence in the ballot arguments of any mention of indecent exposure.
The opponents of Proposition 57 listed a number of felonies, including sex offenses,
which they claimed were violent but would not be deemed violent felony offenses under
Proposition 57. The opponents did not argue indecent exposure was a violent felony,
perhaps because they did not believe indecent exposure was violent, did not realize
indecent exposure was an offense requiring sex offender registration, or did not think
about indecent exposure at all in preparing their arguments. Under any scenario, nothing
in the ballot pamphlet explicitly told the voters indecent exposure would be a violent
felony offense under Proposition 57. The extrinsic materials thus confirm the soundness
of our conclusion the term nonviolent felony offense in section 32(a)(1) does include
indecent exposure in violation of Penal Code section 314.
DISPOSITION
The order granting the petition for writ of habeas corpus is affirmed.
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
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