In re Guice

Filed 7/21/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
H047989
In re STEPHEN GUICE (Monterey County
Super. Ct. Nos. SS100975A,
on Habeas Corpus. SS110737B, SS130742A,
19HC000143)
I. INTRODUCTION
This case asks us to decide whether the regulations adopted by the California
Department of Corrections and Rehabilitation (CDCR) are “ ‘consistent and not in
conflict with’ ” the constitutional provision mandating nonviolent parole consideration
that was enacted by voters through their approval of Proposition 57. (In re Gadlin
(2020) 10 Cal.5th 915, 926 (Gadlin).) The initiative measure amended the California
Constitution to provide that “[a]ny person convicted of a nonviolent felony offense and
sentenced to state prison shall be eligible for parole consideration after completing the
full term for his or her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1).)1
Section 32 does not define the phrase “convicted of a nonviolent felony offense.”
Section 32 directs CDCR to “adopt regulations in furtherance of these provisions”
and to “certify that these regulations protect and enhance public safety.” (§ 32(b).) As
relevant here, the regulations CDCR adopted in furtherance of section 32 exclude from
nonviolent parole consideration any inmate who is “currently serving a term of
We use “section 32” to refer to article I, section 32 of the California Constitution
1
generally. We use “section 32(a)(1)” to specify subdivision (a)(1) of section 32, and so
on.
incarceration for a ‘violent felony.’ ” (Cal. Code Regs., tit. 15, § 3490, subd. (a)(5); see
id., § 3491, subd. (a).)
Petitioner Stephen Guice challenges CDCR’s regulations, contending that they
are contrary to section 32 and electoral intent. Petitioner asserts that under section 32’s
plain language, he is entitled to nonviolent parole consideration because he has
completed serving the full term for his primary, nonviolent offense. The Courts of
Appeal examining this issue have reached different conclusions on the meaning of
section 32 as applied to mixed-offense inmates like petitioner—inmates who are
currently convicted of both nonviolent and violent felony offenses and are currently
serving a term for a violent felony offense.
In In re Mohammad (2019) 42 Cal.App.5th 719 (Mohammad), review granted
February 19, 2020, S259999, the court held that CDCR’s regulations improperly
exclude mixed-offense inmates from nonviolent parole consideration because “under
[section 32’s] plain meaning,” an individual “who is serving an aggregate sentence for
more than one conviction will be eligible for an early parole hearing if one of those
convictions was for ‘a’ nonviolent felony offense.” (Id. at p. 726.)
In In re Douglas (2021) 62 Cal.App.5th 726 (Douglas), in contrast, the court
upheld CDCR’s regulations excluding mixed-offense inmates from nonviolent parole
consideration because a literal interpretation of section 32(a)(1) “would lead to absurd
results the voters did not intend.” (Douglas, supra, at p. 729.) Justice Robie concurred
in Douglas, concluding that section 32(a)(1) was ambiguous as applied to mixed-offense
inmates and construing section 32(a)(1) to mean that an individual convicted of one
violent felony offense that was designated as the primary offense shall be eligible for
parole consideration once the individual has served the full term for his or her primary
offense. (Douglas, supra, at p. 735 (conc. opn. of Robie, J.).)
In In re Viehmeyer (2021) 62 Cal.App.5th 973 (Viehmeyer), based on
section 32(a)’s language, the court held that “where a defendant is convicted of both a
2
violent felony and a nonviolent felony, and the nonviolent felony is the primary offense
for purposes of sentencing, the defendant is not entitled to early parole consideration
under section 32(a) after completing the full term for the primary offense if he or she is
still serving a term for the violent offense.” (Viehmeyer, supra, at p. 978.)
And most recently, in In re Ontiveros (2021) 65 Cal.App.5th 899 (Ontiveros), the
court “join[ed] Viehmeyer and Douglas in disagreeing with Mohammad’s conclusion that
an inmate serving a determinate sentence for both violent and nonviolent convictions is
entitled to early parole consideration under Proposition 57” because “[e]ven accepting
Mohammad’s position that the language of Proposition 57 unambiguously applies to such
inmates, such application would lead to the absurd result that an inmate convicted of a
violent offense and several nonviolent offenses would be entitled to earlier parole
consideration than an inmate convicted of only the violent offense.” (Id. at pp. 902-903.)
Although section 32 clearly mandates nonviolent parole consideration for
individuals convicted solely of nonviolent offenses, the fact that the provision does not
define the phrase, “convicted of a nonviolent felony offense,” renders it “reasonably
susceptible of more than one meaning” when applied to mixed-offense inmates. (Arias v.
Superior Court (2009) 46 Cal.4th 969, 979 (Arias).) Thus, mindful that “our primary
task here is to ascertain the intent of the electorate” (id. at pp. 978-979), we believe the
appropriate course is to examine Proposition 57’s ballot materials in order to determine
the voters’ intent and whether CDCR’s regulations “constitute a reasonable interpretation
of the requirement . . . that ‘[a]ny person convicted of a nonviolent felony offense and
sentenced to state prison shall be eligible for parole consideration after completing the
full term for his or her primary offense’ ” (Gadlin, supra, 10 Cal.5th at p. 934).
Under the California Supreme Court’s guidance in People v. Gadlin, supra, 10
Cal.5th 915 and People v. Valencia (2017) 3 Cal.5th 347 (Valencia), based on
Proposition 57’s text and the ballot materials as a whole, we conclude that CDCR’s
regulations excluding mixed-offense inmates who are currently serving a term for a
3
violent felony offense from nonviolent parole consideration are “a reasonable
interpretation” of section 32(a) (Gadlin, supra, at p. 934). Accordingly, we deny the
petition for writ of habeas corpus.
II. PROCEDURAL BACKGROUND
In 2014, petitioner was convicted of the following offenses in three separate cases:
transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a));
two counts of possession of cocaine base for sale (id., § 11351.5); evading an officer
(Veh. Code, § 2800.2, subd. (a)); robbery (Pen. Code, § 211); possession of a controlled
substance for sale (Health & Saf. Code, § 11351); and bringing a controlled substance
into jail (Pen. Code, § 4573).2 The allegation that petitioner had a prior strike conviction
(Pen. Code, §§ 667, subds. (b)-(i), 1170.12) was found true, as were various sentence
enhancement allegations.
The superior court sentenced petitioner to an aggregate term of 19 years 4 months,
comprised of 10 years for transportation of a controlled substance, 1 year 4 months for
evading an officer, 1 year for robbery, and 7 years for the sentence enhancements.3 The
court awarded petitioner 1,405 days of custody credit.
In 2018, CDCR denied petitioner’s request for nonviolent parole consideration
because he did not qualify as a nonviolent offender under California Code of Regulations,
title 15, section 3490 based on his consecutive sentence for robbery, a violent felony
offense.
In 2019, petitioner filed a petition for writ of habeas corpus in the superior court,
contending that he is eligible for parole consideration under Proposition 57 because his
primary offense of transportation of a controlled substance is nonviolent. The court
2
Petitioner was also convicted of possession of marijuana for sale (Health and Saf.
Code, § 11359), which was reduced to a misdemeanor in 2019.
3
The terms imposed for petitioner’s remaining offenses and enhancements were
either concurrent or stayed.
4
denied the petition, observing that “what constitutes a nonviolent offender is not
specifically defined by the initiative,” and finding that CDCR’s regulations excluding
offenders currently serving a sentence for a violent offense “reasonably effectuate[] [the
initiative’s] directive.”
In March 2020, petitioner petitioned this court for a writ of habeas corpus on the
same ground asserted in the superior court. After we received informal briefing, we
ordered CDCR to show cause why petitioner is not entitled to relief. The Attorney
General filed a return and petitioner filed a traverse through appointed counsel.
III. DISCUSSION
A. Proposition 57 and Section 32
In November 2016, the electorate approved Proposition 57, the Public Safety and
Rehabilitation Act of 2016. (Gadlin, supra, 10 Cal.5th at p. 919.) Among other
enactments, the initiative amended article I of the California Constitution by adding
section 32. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 3,
p. 141.)
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.” “Primary offense” is defined as “the longest
term of imprisonment imposed by the court for any offense, excluding the imposition of
an enhancement, consecutive sentence, or alternative sentence.” (§ 32(a)(1)(A).) The
provision states that it was “enacted to enhance public safety, improve rehabilitation, and
avoid the release of prisoners by federal court order,” and directs CDCR to “adopt
regulations in furtherance of these provisions” and “certify that these regulations protect
and enhance public safety.” (§ 32(a), (b).)
B. CDCR’s Regulations
As relevant here, the regulations CDCR adopted in furtherance of section 32
provide that “[a] determinately-sentenced nonviolent offender, as defined in
5
subsections 3490(a) and 3490(b), shall be eligible for parole consideration by the Board
of Parole Hearings.” (Cal. Code Regs., tit. 15, § 3491, subd. (a).) Section 3490 excludes
from its definition of “ ‘determinately-sentenced nonviolent offender’ ” any inmate who
is “currently serving a term of incarceration for a ‘violent felony.’ ” (Id., § 3490,
subd. (a)(5).) The regulations define “ ‘[v]iolent felony’ ” as “a crime or enhancement as
defined in subdivision (c) of Section 667.5 of the Penal Code.”4 (Id., § 3490, subd. (c)).
C. Standard of Review and Principles of Interpretation
When evaluating the validity of a regulation, “we first ask whether the regulation
is ‘ “consistent and not in conflict with” ’ the provision that authorizes it. [Citation.] We
then inquire whether the regulation is reasonably necessary to effectuate the purpose of
the authorizing law. [Citations.] Our task as a reviewing court ‘ “ ‘is to decide whether
the [agency] reasonably interpreted [its] mandate.’ ” ’ ” (Gadlin, supra, 10 Cal.5th at
p. 926.) The validity of a state agency’s regulation is presumed, and the party
challenging the regulation must show its invalidity. (Ibid.) “ ‘ “Administrative
regulations that alter or amend [an enactment] or enlarge or impair its scope are void and
courts not only may, but it is their obligation to strike down such regulations.” ’
[Citations.]” (Ibid.)
“To determine whether the regulation here is consistent with the constitutional
provisions enacted by Proposition 57, we must interpret the constitutional provisions
themselves. Our ‘primary concern’ in construing a constitutional provision enacted
through voter initiative is ‘giving effect to the intended purpose of the provisions at
issue.’ [Citation.] And, ‘[i]n interpreting a voter initiative . . . , we apply the same
principles that govern statutory construction.’ [Citations.] In doing so, we look to the
text of the constitutional provision at issue and, as appropriate, extrinsic sources such as
an initiative’s ballot materials.” (Gadlin, supra, 10 Cal.5th at pp. 926-927.)
4
As stated, petitioner was convicted of robbery, among other crimes. Robbery is
a violent felony under Penal Code section 667.5, subdivision (c)(9).
6
“Usually, there is no need to construe a provision’s words when they are clear and
unambiguous and thus not reasonably susceptible of more than one meaning.” (Arias,
supra, 46 Cal.4th at p. 979.) “A literal construction of an enactment, however, will not
control when such a construction would frustrate the manifest purpose of the enactment
as a whole. . . . In determining the purpose of an initiative measure, we consider the
analysis and arguments contained in the official election materials submitted to the
voters. [Citations.]” (Ibid.) However, “when an argument for or against a ballot
measure conflicts with the measure’s plain text, the text must govern the measure’s
interpretation.” (Gadlin, supra, 10 Cal.5th at p. 942.)
D. Section 32(a) Is Ambiguous as Applied to Mixed-Offense Inmates
Section 32 does not define the phrase, “[a]ny person convicted of a nonviolent
felony offense,” and is silent regarding its application to individuals who are currently
convicted of both nonviolent and violent felonies and are currently serving a term for a
violent felony offense.
Notwithstanding section 32’s silence regarding its application to mixed-offense
inmates, petitioner urges us to follow the Mohammad court’s plain-language approach to
conclude that section 32 mandates nonviolent parole consideration for individuals who
are currently convicted of both nonviolent and violent felonies. The Mohammad court
reasoned that “[t]he phrase ‘a nonviolent felony offense’ takes the singular form, which
indicates it applies to an inmate so long as he or she commits ‘a’ single nonviolent felony
offense,” which “is reinforced by the term ‘primary offense,’ ” as that “demonstrates the
provision assumes an inmate might be serving a sentence for more than one offense, i.e.,
a primary offense and other secondary offenses.” (Mohammad, supra, 42 Cal.App.5th at
p. 726.)
But it is just as reasonable to conclude that the phrase, “[a]ny person convicted of
a nonviolent felony offense,” does not include an individual who is currently convicted
of nonviolent and violent felonies and is currently serving a term for a violent felony
7
offense. (See Viehmeyer, supra, 62 Cal.App.5th at p. 985 [“considering only the
language of section 32(a)” and determining that it does not apply to mixed-offense
inmates who are currently serving a term for a violent felony]; see id. at pp. 985-988
[further determining that the ballot materials support its conclusion].)5 While the
language of section 32, which defines “the full term for the primary offense” as “the
longest term of imprisonment imposed by the court for any offense, excluding the
imposition of an enhancement, consecutive sentence, or alternative sentence”
(§ 32(a)(1)(A)), clearly demonstrates that voters contemplated that nonviolent parole
consideration would include individuals currently convicted of multiple offenses, the
5
In contrast to Viehmeyer, the Court of Appeal in Douglas determined that “the
language of section 32(a)(1) supports an interpretation that mixed-offense inmates are
entitled to early parole consideration,” but that “such an interpretation would lead to
absurd results the voters did not intend.” (Douglas, supra, 62 Cal.App.5th at p. 729; see
also Ontiveros, supra, 65 Cal.App.5th at pp. 902-903 [joining Douglas’s conclusion that
a literal interpretation of section 32 would lead to absurd results].) The court observed
that “nothing in the election materials, other than the language of section 32(a)(1),
evinces an intent on the part of the voters to extend early parole consideration to persons
convicted of violent felony offenses,” and concluded that “a person convicted of a violent
felony offense and sentenced to state prison is ineligible for early parole consideration
under section 32(a)(1).” (Douglas, supra, at pp. 733, 734; see also Ontiveros, supra, at
pp. 906-907 [determining that the ballot materials demonstrate an electoral intent to
exclude inmates convicted of a violent felony offense from Proposition 57 parole
consideration].)
Justice Robie concurred in Douglas. Unlike the majority, Justice Robie concluded
that “[i]t is clear section 32(a)(1) is ambiguous given the divergence of appellate opinions
as to its meaning.” (Douglas, supra, 62 Cal.App.5th at p. 735 (conc. opn. of Robie, J.).)
Finding that the ballot materials “provide[] no answers,” Justice Robie construed
section 32(a)(1) to mean that any individual convicted of one violent felony offense that
was designated as the primary offense shall be eligible for parole consideration once the
individual has served his or her full term for the primary offense. (Douglas, supra, at
p. 735.) Because after completing the term for his primary, nonviolent offense, the
petitioner in Douglas was currently serving a term for a violent felony offense, Justice
Robie concluded he was ineligible for nonviolent parole consideration because he was
“not presently convicted of a nonviolent felony as described in section 32(a)(1).” (Id. at
p. 739.)
8
provision’s silence regarding mixed-offense inmates currently serving a term for a violent
felony offense renders its application to those individuals ambiguous.
Moreover, it is notable that petitioner’s interpretation of section 32 differs from
the interpretations reached by the appellate courts on this issue, including in Mohammad.
Petitioner asserts that “only mixed-offense offenders whose primary term is for a non-
violent felony are entitled to parole consideration under Proposition 57.” (Italics added.)
Petitioner’s interpretation is thus narrower than the Mohammad court’s conclusion that
the plain language of section 32(a) unambiguously means that any person convicted of a
nonviolent felony offense is eligible for nonviolent parole consideration after serving the
full term for his or her primary offense—regardless of whether the individual’s primary
offense was for a nonviolent or violent felony. (See Mohammad, supra, 42 Cal.App.5th
at p. 726; see id. at p. 725 [finding section 32(a)’s plain language “means any nonviolent
felony offense component of a sentence will suffice” to render an inmate eligible for
nonviolent parole consideration].)
Petitioner argues that in 2020 “the voters agreed with Mohammad when they
overwhelmingly rejected Proposition 20,” demonstrating that the Mohammad court
“correctly interpreted section 32.” (Some capitalization omitted.) However, “we cannot
speculate that the rejection amounted to an implied approval of the [Mohammad]
decision.” (Santa Clara County Local Transportation Authority v. Guardino (1995)
11 Cal.4th 220, 238 [regarding the voters’ rejection of Proposition 136 four years after
“adopting its substance in Proposition 62”].) This is especially true given that
Proposition 20 proposed to “[r]eform the parole system,” “[r]eform theft laws,” and
“[e]xpand DNA collection.” (Text of Proposed Laws, Gen. Elec. (Nov. 3, 2020) text of
Prop. 20, § 2, p. 15.) There is simply no way of knowing why voters rejected
Proposition 20 four years after they approved Proposition 57.
In sum, section 32’s silence on its application to mixed-offense inmates and its
reasonable susceptibility of more than one meaning in this context lead us to conclude
9
that the provision is ambiguous as applied to individuals who are currently convicted of
nonviolent and violent felony offenses and are currently serving a term for a violent
felony offense.
E. The Ballot Materials Demonstrate that CDCR’s Regulations Are
Consistent with Voter Intent
Because the language of section 32(a) as applied to mixed-offense inmates is
“reasonably susceptible of more than one meaning” (Arias, supra, 46 Cal.4th at p. 979),
it is appropriate to “consider ballot summaries and arguments in determining the voters’
intent and understanding of [the] measure” (People v. Superior Court (Pearson) (2010)
48 Cal.4th 564, 571).
Here, the question is whether the ballot materials indicate that voters intended to
exclude from nonviolent parole consideration inmates currently convicted of nonviolent
and violent felony offenses who are currently serving a term for a violent felony offense.
(See Gadlin, supra, 10 Cal.5th at p. 939.) Under the California Supreme Court’s
guidance in Gadlin and Valencia, based on Proposition 57’s text and the ballot materials
as a whole, we conclude that voters intended to exclude mixed-offense inmates who are
currently serving a term for a violent felony offense from Proposition 57’s parole
consideration scheme.
In Gadlin, the court held that CDCR’s categorical exclusion of “all inmates
convicted of a registerable sex offense, regardless of whether that offense is defined by
the regulations as a nonviolent felony and regardless of whether the inmate is currently
incarcerated for that conviction,” from nonviolent parole consideration conflicted with
section 32(a)(1). (Gadlin, supra, 10 Cal.5th at p. 919.) After determining that the
language of section 32(a)(1) unambiguously “indicates the voters intended that
nonviolent offender parole consideration would be premised on the inmate’s current
conviction alone” (Gadlin, supra, at p. 932), the court found that the ballot materials
“buttress[ed] [its] reading of the constitutional text in this case” (id. at p. 936).
10
The court observed that “[t]he language of the constitutional provision did not
indicate to the voters that inmates’ prior convictions would play a role in determining
nonviolent offender parole eligibility. Nor did the Attorney General’s official title and
summary, the Legislative Analyst’s analysis, or the proponents’ initial argument in favor
of Proposition 57 so indicate. If . . . the voters intended to carve out an entire category of
offenders from nonviolent parole consideration based on prior criminal history, these
sources likely would have mentioned as much.” (Gadlin, supra, 10 Cal.5th at p. 939.)
The court also noted that the arguments of Proposition 57’s opponents clearly told voters
that “[a]n inmate’s prior convictions, regardless of their number or nature, would not be a
disqualifying factor for nonviolent parole consideration purposes,” and that voters
approved Proposition 57 “ ‘despite these warnings,’ ” which “supports a conclusion that
the voters intended to provide broad parole consideration for nonviolent offenders
without regard for prior convictions.” (Gadlin, supra, at p. 940.) Finally, the court
rejected CDCR’s contention that “a single line in the proponent’s rebuttal argument”
stating that the opponents were “ ‘wrong,’ ” demonstrated a voter intent to exclude
inmates based on their criminal history. (Id. at pp. 939, 940.) The court focused instead
on “the context of the entire ballot materials provided to the voters.” (Id. at p. 939.)
In Valencia, the California Supreme Court considered whether Proposition 47’s
definition of “ ‘ “unreasonable risk of danger to public safety” ’ ” applies to
Proposition 36 resentencing proceedings based on the provision in Proposition 47 that
stated, “ ‘As used throughout this code, “unreasonable risk of danger to public safety”
means an unreasonable risk that the petitioner will commit a new violent felony within
the meaning of’ [Penal Code] section 667, subdivision (e)(2)(C)(iv).” (Valencia, supra,
3 Cal.5th at p. 351, italics added.) In holding that Proposition 47’s definition does not
apply to Proposition 36 resentencing proceedings, the majority observed that “neither the
initiative’s text nor its supporting materials describe any intention to amend the criteria
for [Proposition 36] resentencing . . . , and both the Attorney General, who is required by
11
law to summarize ballot measures, and the Legislative Analyst, who is required by law to
provide and explain to voters a measure’s potential impacts, did not interpret the phrase
‘[a]s used throughout this code’ as referring to [Proposition 36] sentencing criteria.”
(Valencia, supra, at p. 357; see also id. at pp. 365-367.)
Here, as in Gadlin and Valencia, neither the measure’s text, the Attorney
General’s official summary, nor the Legislative Analyst’s analysis “describe[s] any
intention” to amend the Constitution to make individuals currently convicted of
nonviolent and violent felony offenses who are currently serving a term for a violent
felony offense eligible for nonviolent parole consideration. (Valencia, supra, 3 Cal.5th
at p. 357; see also Gadlin, supra, 10 Cal.5th at p. 939.) Beginning with the measure’s
text, it is significant that Proposition 57 states solely that “[a]ny person convicted of a
nonviolent felony offense . . . shall be eligible for parole consideration after completing
the full term for his or her primary offense,” with no mention of violent felony offenses.
(Voter Information Guide, Gen. Elec., supra, text of Prop. 57, § 3, p. 141.) Likewise,
both the Attorney General’s official summary and the Legislative Analyst’s analysis
spoke solely in terms of individuals convicted of nonviolent felonies as being eligible
for nonviolent parole consideration.
The Attorney General stated that the initiative measure “[a]llows 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, p. 54.) In addition, the Attorney General stated that the
measure “[r]equires [CDCR] to adopt regulations to implement new parole and sentence
credit provisions and certify they enhance public safety.” (Ibid.)
The Legislative Analyst, when providing background on adult sentencing,
explained that “[i]ndividuals in prison have been convicted of a main or primary offense.
They often serve additional time due to other, lesser crimes for which they are convicted
at the same time. In addition, state law includes various sentencing enhancements that
12
can increase the amount of time individuals serve.” (Voter Information Guide, Gen.
Elec., supra, Analysis by the Legis. Analyst, p. 54.) Regarding parole consideration
hearings, the Legislative Analyst observed that “[i]ndividuals who receive a determinate
sentence do not need a parole consideration hearing to be released from prison at the end
of their sentence. However, some of these individuals currently are eligible for parole
consideration hearings before they have served their entire sentence. For example,
certain individuals who have not been convicted of violent felonies are currently eligible
for parole consideration after they have served half of their prison sentence. This was
one of several measures put in place by a federal court to reduce the state’s prison
population.” (Ibid.)
Regarding the initiative’s proposed constitutional amendment, the Legislative
Analyst stated that “[t]he measure changes the State Constitution to make individuals
who are convicted of ‘nonviolent felony’ offenses eligible for parole consideration after
serving the full prison term for their primary offense. As a result, [the parole board]
would decide whether to release these individuals before they have served any additional
time related to other crimes or sentencing enhancements.” (Voter Information Guide,
Gen. Elec., supra, Analysis by the Legis. Analyst, p. 56.) Explaining that “[t]he measure
requires CDCR to adopt regulations to implement these changes,” the Legislative Analyst
stated that “[a]lthough the measure and current law do not specify which felony crimes
are defined as nonviolent, this analysis assumes a nonviolent felony offense would
include any felony offense that is not specifically defined in statute as violent.” (Ibid.)
Finally, when discussing the fiscal effects of the measure, the Legislative Analyst
repeatedly referred to the affected inmates as “nonviolent offenders.” (Ibid.)
Thus, the Attorney General and the Legislative Analyst “failed to note or identify
any effect the measure might have” on mixed-offense inmates currently serving a term
for a violent felony offense (Valencia, supra, 3 Cal.5th at p. 374), or that the inclusion of
these mixed-offense inmates would render Proposition 57’s parole consideration scheme
13
broader than the scheme described by the Legislative Analyst that was ordered by the
federal court and was in place at the time of the election (Voter Information Guide, Gen.
Elec., supra, Analysis by the Legis. Analyst, p. 54). Had the voters intended to include
mixed-offense inmates in Proposition 57’s parole consideration scheme, “these sources
likely would have mentioned as much.” (Gadlin, supra, 10 Cal.5th at p. 939; see also
Valencia, supra, at pp. 365-366.)
Arguments for and against the measure were also presented to voters. As relevant
here, when discussing “what [Proposition 57] does,” proponents argued that it “[a]llows
parole consideration for people with non-violent convictions who complete the full prison
term for their primary offense.” (Voter Information Guide, Gen. Elec., supra, argument
in favor of Prop. 57, p. 58, italics omitted.) Proponents added, “And as the California
Supreme Court clearly stated: parole eligibility in Prop. 57 applies ‘only to prisoners
convicted of non-violent felonies.’ ” (Ibid.)
Proposition 57’s opponents argued that “[t]he authors of Prop. 57 are not telling
you the truth. IT APPLIES TO VIOLENT CRIMINALS.” (Voter Information Guide,
Gen. Elec., supra, rebuttal to argument in favor of Prop. 57, p. 58.) Opponents asserted
that the measure amends the Constitution “to give these new early parole rights to
criminals who are convicted of many violent and horrible crimes, including: [¶] rape of
an unconscious victim; human sex trafficking; assault with a deadly weapon; lewd acts
against a 14-year-old; hostage taking; hate crimes causing injury.”6 (Ibid., capitalization
omitted.)
In rebuttal, the measure’s proponents argued that it “[d]oes NOT authorize parole
for violent offenders,” and asserted that “[t]he California Supreme Court clearly stated
that parole eligibility under Prop. 57 applies, ‘only to prisoners convicted of non-violent
6
It appears that the opponents were highlighting crimes not listed in Penal Code
section 667.5, subdivision (c).
14
felonies.’ (Brown v. Superior Court, June 6, 2016).”7 (Voter Information Guide, Gen.
Elec., supra, rebuttal to argument against Prop. 57, p. 59.) Lastly, proponents argued that
“[v]iolent criminals as defined in Penal Code 667.5(c) are excluded from parole.” (Ibid.)
Read in the context of the ballot materials as a whole (see Gadlin, supra, 10
Cal.5th at p. 939), the arguments informed voters that the measure excluded individuals
currently serving a term for a violent felony offense. The proponents consistently argued
as much. And although the opponents argued that the measure applied to inmates
“convicted of many violent and horrible crimes” (Voter Information Guide, Gen. Elec.,
supra, rebuttal to argument in favor of Prop. 57, p. 58), the proponents specifically and
unmistakably denied it, arguing that the measure did “not authorize parole for violent
offenders” and that “[v]iolent criminals as defined in Penal Code 667.5(c) are excluded
from parole” (Voter Information Guide, Gen. Elec., supra, rebuttal to argument against
Prop. 57, p. 59, capitalization omitted).
Moreover, to the extent that these arguments conflicted, “we presume that the
voters relied on the text of the measure.” (Gadlin, supra, 10 Cal.5th at p. 940.) The
measure’s text reinforced the proponents’ arguments as it made no mention of violent
felony offenses, stating solely that “[a]ny person convicted of a nonviolent felony
offense . . . shall be eligible for parole consideration after completing the full term for his
7
Brown v. Superior Court (2016) 63 Cal.4th 335, 339 (Brown) involved whether
amendments to Proposition 57 violated the Elections Code. When summarizing the
amendments, the California Supreme Court stated, “The newly proposed constitutional
provision also addresses parole suitability review. It would be significantly more
restrictive in one way, because it would apply only to prisoners convicted of nonviolent
felonies. It would be significantly less restrictive in another way, because it would apply
to all prisoners regardless of their age at the time of the offense. It would also authorize
[CDCR] to award credits for good behavior and rehabilitation.” (Brown, supra, at p. 352,
fn. omitted, second italics added; see id. at p. 353 [observing that Proposition 57 as
amended would apply to inmates serving Three Strike sentences “so long as their offense
was nonviolent”].)
15
or her primary offense.”8 (Voter Information Guide, Gen. Elec., supra, text of Prop. 57,
§ 3, p. 141, italics omitted.) The clear implication from the measure’s text, the Attorney
General’s official summary, the Legislative Analyst’s analysis, and the ballot arguments
is that inmates currently serving a term for a violent felony offense are excluded from
nonviolent parole consideration. “ ‘We cannot presume that . . . the voters intended the
initiative to effect a change in law that was not expressed or strongly implied in either the
text of the initiative or the analyses and arguments in the official ballot pamphlet.’ ”
(Valencia, supra, 3 Cal.5th at p. 364.)
Certainly, an uncodified section of Proposition 57 stated that in its enactment, the
electorate’s “purpose and intent” was 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, supra,
text of Prop. 57, § 2 p. 141.) And another uncodified section stated that the “act shall be
liberally construed to effectuate its purposes.” (Id., § 9, p. 146.) Even so, to discern from
the ballot materials an electoral intent to include in Proposition 57’s nonviolent parole
consideration scheme individuals currently convicted of nonviolent and violent felony
offenses who are currently serving a term for a violent felony offense “would be imputing
to voters an intent that could not reasonably have existed, where even the Attorney
General and Legislative Analyst, in advising voters, apparently were unaware of that
professed intent.” (Valencia, supra, 3 Cal.5th at p. 375.) “ ‘ “[I]n the case of a voters’
initiative . . . we may not properly interpret the measure in a way that the electorate did
8
Listing 15 offenses, opponents also argued that “[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.” (Voter Information Guide, Gen. Elec., supra, argument against Prop. 57,
p. 59.) However, the measure’s text does not “deem” any offenses nonviolent or violent;
it is entirely silent in that regard. (See Voter Information Guide, Gen. Elec., supra, text
of Prop. 57, § 3, p. 141.)
16
not contemplate: the voters should get what they enacted, not more and not less.” ’ ”
(Ibid., fn. omitted.) Based on Proposition 57’s text and the ballot materials as a whole,
voters clearly did not contemplate that inmates currently serving a term for a violent
felony offense would be eligible for nonviolent parole consideration, and we should not
interpret section 32 to the contrary. “ ‘The intent prevails over the letter, and the letter
will, if possible, be so read as to conform to the spirit of the act.’ ” (Arias, supra, 46
Cal.4th at p. 979.)
For these reasons, based on the principles articulated in Gadlin and Valencia, we
determine that CDCR “ ‘ “ ‘reasonably interpreted [its] mandate’ ” ’ ” (Gadlin, supra,
10 Cal.5th at p. 926) by adopting regulations that exclude from nonviolent parole
consideration any inmate who is “currently serving a term of incarceration for a ‘violent
felony’ ” (Cal. Code Regs., tit. 15, § 3490, subd. (a)(5); see id., § 3491, subd. (a)). In
other words, we conclude that the regulations are “ ‘ “consistent and not in conflict
with” ’ ” section 32. (Gadlin, supra, 10 Cal.5th at p. 926.)
IV. DISPOSITION
The petition for writ of habeas corpus is denied.
17
BAMATTRE-MANOUKIAN, J.
I CONCUR:
ELIA, J.
In re Guice
H047989
Greenwood, P.J., Dissenting:
I respectfully dissent. The majority concludes the text of section 32(a)(1) is
ambiguous and relies solely on selected ballot materials to infer the voters’ intent. This
contravenes the first rule of statutory construction that the best indicator of intent is the
text itself. (People v. Mentch (2008) 45 Cal.4th 274, 282.) That rule is particularly apt
here because the text of section 32(a) expressly states its purposes: “to enhance public
safety, improve rehabilitation, and avoid the release of prisoners by federal court order.”
We presume the electorate, which voted overwhelmingly for Proposition 57, intended to
advance the purposes stated in the text.
To determine whether the challenged regulations are valid, we first ask whether
the regulations are “consistent and not in conflict with” those purposes. (In re Gadlin
(2020) 10 Cal.5th 915, 926 (Gadlin).) But the majority conducts no such analysis.
Rather, the majority bypasses that question and proceeds directly to the ballot materials,
which the majority treats as dispositive. I disagree with this approach to constitutional
analysis, and I conclude the regulations are in direct conflict with the purposes stated in
the text of section 32(a).
At issue is the phrase “[a]ny person convicted of a nonviolent felony offense” in
section 32(a)(1).1 The majority argues the phrase is ambiguous because it is “silent
regarding its application to individuals currently convicted of both nonviolent and violent
felonies.” (Maj. Opn. at p. 7.) I respectfully disagree. The language is not silent in that
application; basic syntax and logic compel the conclusion that it includes persons
convicted of both violent and nonviolent felonies. While there may be some ambiguity in
what constitutes a “nonviolent felony offense,” the parties all agree this phrase references
the classification of violent felonies defined in Penal Code section 667.5, subdivision (c).
1I adopt the majority’s use of “section 32” to refer to article I, section 32 of the
California Constitution, “section 32(a)(1)” to specify subdivision (a)(1) of section 32, and
so on.
Given that definition, the plain meaning of the phrase is unambiguous. To use a simple
analogy, the phrase “any person with a right arm” unambiguously includes any person
with both right and left arms. We would not say the phrase is “silent regarding its
application” to such a person simply because the phrase does not mention left arms. The
text of section 32 makes no mention of registered sex offenders either, but that did not
render it ambiguous in that regard. (Gadlin, supra, 10 Cal.5th at p. 932 [section 32(a)(1)
is not ambiguous concerning its scope regarding sex offenders].) For these reasons, I
agree with In re Mohammad (2019) 42 Cal.App.5th 719. I would hold the plain meaning
of section 32(a)(1) controls, mandating parole consideration to any person convicted of a
nonviolent felony offense who has completed the full term for his or her primary offense.
The CDCR’s regulations invert the meaning of the provision. Instead of granting
parole consideration to persons convicted of a nonviolent felony offense, the regulations
eliminate parole consideration based on a violent felony conviction. In its informal reply,
the Attorney General indicated that the effect of these regulations was to reduce the
number of eligible persons by tens of thousands. The regulations thereby alter the scope
of section 32 drastically. “ ‘ “Administrative regulations that alter or amend the statute or
enlarge or impair its scope are void and courts not only may, but it is their obligation to
strike down such regulations.” ’ [Citation.]” (Gadlin, supra, 10 Cal.5th at p. 926.)
The regulations also conflict with at least two of the three stated purposes of
section 32(a). First, the regulations conflict with the constitutional directive to “avoid the
release of prisoners by federal court order.” (Section 32, subd. (a).) The 2009 federal
court order to reduce the prisoner population was a response to overcrowding. (Coleman
v. Schwarzenegger (E.D.Cal. 2009) 922 F.Supp.2d 882, 962.) By excluding tens of
thousands of persons from parole consideration, the regulations reduce the number of
persons who might be found suitable for parole. This would hinder the reduction of the
prisoner population and increase—not avoid—the likelihood of federal court
intervention. Second, the regulations conflict with the purpose of improving
2
rehabilitation. By eliminating early parole consideration for tens of thousands of persons,
the regulations remove a powerful incentive for those inmates to adhere to prison rules
and engage in rehabilitative efforts.
The Attorney General argues that the regulations serve to enhance public safety,
and he argues the regulations are presumptively valid in service of that purpose. But the
plain language of section 32 does not require the release of any prisoner who would
threaten public safety; it only requires the CDCR to evaluate eligible prisoners. The
result under the plain language of section 32(a)(1) is that the CDCR will be required to
review more inmates for parole consideration. “A conclusion that the electorate made
certain inmates eligible for parole consideration does not require the Department to find
each of those inmates suitable for parole. Indeed, many factors relevant to public safety
may best be addressed through parole suitability determinations. The Department is left
with ample room to protect public safety by crafting the specific processes under which
parole suitability is determined on a case-by-case basis.” (Gadlin, supra, 10 Cal.5th at p.
934.) In short, holding a parole hearing does not threaten public safety, and the absence
of a hearing does not enhance it.
As to the ballot materials, I believe the majority errs by treating them as
dispositive. (See Scher v. Burke (2017) 3 Cal.5th 136, 149 [legislative history and
circumstances are entitled to some weight but are not dispositive].) “[W]hen an argument
for or against a ballot measure conflicts with the measure’s plain text, the text must
govern the measure’s interpretation.” (Gadlin, supra, 10 Cal.5th at p. 942.) Even
assuming there is ambiguity in the phrase “any person convicted of a nonviolent felony
offense,” we should not resolve it by “relying solely on the ballot materials. Rather, we
presume that the voters relied on the text of the measure.” (Id. at p. 940.) Because the
purposes of section 32 are set forth in its text, those purposes are the best indicator of
voters’ intent.
3
Furthermore, I do not believe the ballot materials taken as a whole support the
majority’s conclusion regarding voters’ intent. The opponents made statements that are
not supported by the text of the initiative in their argument against the proposition,
including the claim that “Prop. 57 would authorize the IMMEDIATE RELEASE of
thousands of dangerous criminals.”2 The majority instead emphasizes a sentence in the
proponents’ rebuttal, which stated that Proposition 57 “[d]oes not authorize parole for
violent offenders.” But this statement is entirely consistent with the plain meaning of
section 32(a)(1). The plain language does not “authorize parole for violent offenders.”
The text does not “authorize parole”—it mandates parole consideration for persons
convicted of nonviolent offenses, provided they have served the full term for their
primary offense. The CDCR may determine on a case-by-case basis whether a person is
still so violent as to be unsuitable for parole.
Guice qualifies for parole consideration under the plain language of section
32(a)(1). He is serving an aggregate term of 19 years four months, composed almost
entirely of terms imposed for drug-related offenses. His primary offense was
transporting a controlled substance, for which he received a ten-year term. There is no
dispute that he has completed that term. But the CDCR regulations exclude him from
parole consideration because his sentence includes a one-year term for robbery. As for
whether Guice is a “violent offender,” I would rely on the Board of Parole Hearings to
determine whether he currently presents a danger to public safety making him unsuitable
for parole, as the language of the initiative provides.
The CDCR’s regulations categorically exclude Guice and prisoners like him from
early parole consideration based on an impermissibly narrow regulation defining
“nonviolent offenders.” Because these regulations are inconsistent and in conflict with
2That the voters approved Proposition 57 “despite these warnings” supports a
conclusion that the voters’ intent was congruent with the plain text of the proposition.
(Gadlin, supra, 10 Cal.5th at p. 940.)
4
the plain language and purposes in the text of Section 32, I would grant relief, striking
down the regulations and ordering the CDCR to evaluate Guice for early parole
consideration.
5
_________________________________
Greenwood, P.J.
In re Guice
H047989
Trial Court: Monterey County Superior Court
Superior Court Nos.: SS100975A,
SS110737B, SS130742A, 19HC000143
Trial Judge: Hon. Timothy P. Roberts
Attorneys for Defendant and Petitioner: Eric Weaver
Stephen Guice
Sixth District Appellate Program
Attorney for Plaintiff and Respondent: Xavier Becerra
The People Attorney General of California
Phillip J. Lindsay
Senior Assistant Attorney General
Amanda J. Murray
Supervising Deputy Attorney General
Andrew M. Gibson
Deputy Attorney General
Rachael A. Campbell
Deputy Attorney General
In re Guice
H047989