Date: 09-21-2020

Case Style:

Case Number: E074401

Judge: Menetrez, J.

Court: California Court of Appeals Fourth Appellate District, Division Two on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Ural King, in pro. per.; James R. Bostwick, Jr., under appointment by the Court of Appeal

Defendant's Attorney: Xavier Becerra, Phillip J. Lindsay, Amanda J. Murray and Rachael A. Campbell

Description: In 2016, Proposition 57 amended the California Constitution to allow early parole
consideration for persons “convicted of a nonviolent felony.” (Prop. 57, § 32, subd.
(a)(1); Cal. Const., art. I, § 32, subd. (a)(1) (section 32(a)(1)).) Proposition 57 expressly
authorized the California Department of Corrections and Rehabilitation (CDCR) to
promulgate regulations to implement this mandate. (Prop. 57, § 32, subd. (b); Cal.
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Const., art. I, § 32, subd. (b) (section 32(b)).) The regulations that the CDCR has adopted
pursuant to that authority exclude from early parole consideration any person convicted
of an offense requiring the person to register as a sex offender. (Cal. Code Regs., tit. 15,
§ 3491, subd. (b)(3).)
Ural King is serving 25 years to life for a conviction in 2000 of possession of
ephedrine or pseudoephedrine with the intent to distribute methamphetamine. The
CDCR denied King early parole consideration under Proposition 57 on the ground that he
is required to register as a sex offender because of prior offenses. King has petitioned
this court for a writ of habeas corpus, claiming that the CDCR’s regulation improperly
excludes from the benefits of Proposition 57 inmates like him who are serving sentences
for nonviolent offenses but are required to register as sex offenders because of prior
offenses.
Our colleagues in Division Five of the Court of Appeal, Second Appellate District
have analyzed this issue and concluded that under the plain language of Proposition 57
these inmates are entitled to early parole consideration. (In re Gadlin (2019) 31
Cal.App.5th 784, 789-790, review granted S254599, May 15, 2019 (Gadlin).) Two other
sister courts have reached the same conclusion. (In re Schuster (2019) 42 Cal.App.5th
943, 954-955, review granted S260024, Feb. 19, 2020 (Schuster); In re Chavez (2020) 51
Cal.App.5th 748, 756 (Chavez).) We agree with those decisions.
We conclude that the plain language of section 32(a)(1) requires early parole
consideration to be based solely on the present offense of conviction. We therefore
conclude that the CDCR regulation excluding from early parole consideration prisoners
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who are required to register as sex offenders because of prior convictions is invalid. We
consequently grant King’s petition for writ of habeas corpus.
BACKGROUND
In 2000, a jury convicted King of one count of possession of ephedrine or
pseudoephedrine with the intent to manufacture methamphetamine. (Former Health &
Saf. Code, § 11383, subd. (c)(1).) The trial court found true three serious felony strike
allegations. (People v. King (Feb. 7, 2002, E028883) [nonpub. opn.] (King).) Those
prior felonies were (1) two counts of oral copulation by force or fear on a minor under 14
years old (former Pen. Code, § 288a, subd. (c)(1)), and (2) one count of rape by force or
fear (Pen. Code, § 261, subd. (a)). All of those priors require King to register as a sex
offender. (Pen. Code, § 290, subd. (c).) King was sentenced to 25 years to life pursuant
to the Three Strikes law. (King, supra, E028883; Pen. Code, §§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d).) We affirmed the judgment. (King, E028883.)
In 2019, King was denied early parole consideration by the CDCR because he is
required to register as a sex offender. King subsequently filed a petition for writ of
habeas corpus in Monterey County Superior Court, challenging the CDCR’s exclusion of
him from early parole consideration under Proposition 57. The petition was transferred
to San Bernardino County Superior Court. The superior court denied King’s petition
without prejudice to King raising the issue again if the Supreme Court invalidates the
CDCR regulation excluding petitioners like him from early parole consideration under
Proposition 57. King petitioned this court for a writ of habeas corpus on the same
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grounds on which he sought relief in the superior court. We appointed counsel for King
and issued an order to show cause.
DISCUSSION
A. Proposition 57 and the Relevant Implementing Regulations
In 2016, voters passed Proposition 57, the Public Safety and Rehabilitation Act of
2016. The express purposes of Proposition 57, as relevant here, are to protect and
enhance public safety, to reduce wasteful spending on prisons, and to prevent the
“indiscrimate[]” release of prisoners by federal courts. (Prop. 57, § 2.) An uncodified
section of Proposition 57 mandates that the initiative “shall be liberally construed to
effectuate its purposes.” (Prop. 57, § 9.)
To effectuate those purposes, Proposition 57 added section 32 to article I of the
California Constitution. (Prop. 57, § 3.) That constitutional provision authorizes early
parole consideration for nonviolent offenders as follows: “Any person convicted of a
nonviolent felony offense and sentenced to state prison shall be eligible for parole
consideration after completing the full term for his or her primary offense.” (§ 32(a)(1).)
Section 32 further defines what is meant by “the full term for the primary offense.”
(Cal. Const., art. I, § 32, subd. (a)(1)(A).) Section 32 also directs the CDCR to “adopt
regulations in furtherance of these provisions.” (§ 32(b).) The Secretary of the CDCR is
required to “certify that these regulations protect and enhance public safety.” (Ibid.)
The CDCR’s implementing regulations exclude from nonviolent early parole
consideration any inmate “convicted of a sexual offense that currently requires or will
require registration as a sex offender under the Sex Offender Registration Act, codified in
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Sections 290 through 290.024 of the Penal Code.” (Cal. Code Regs., tit. 15, § 3491,
subd. (b)(3); Gadlin, supra, 31 Cal.App.5th at p. 788.) In its Final Statement of Reasons
accompanying the implementing regulations for Proposition 57, the CDCR explained that
it had concluded that “[p]ublic safety requires that sex offenders be excluded from
nonviolent parole consideration” because all offenses requiring registration as a sex
offender (regardless of whether the offense is elsewhere categorized as a violent or
serious felony) “demonstrate a sufficient degree of violence and represent an
unreasonable risk to public safety.” (CDCR, Credit Earning and Parole Consideration
Final Statement of Reasons (Apr. 30, 2018) p. 20.)
B. Standard of Review
When construing a constitutional provision enacted through voter initiative, we
apply ordinary principles of statutory interpretation. (California Cannabis Coalition v.
City of Upland (2017) 3 Cal.5th 924, 933-934 (California Cannabis).) Our primary
concern “is giving effect to the intended purpose of the provisions at issue.” (Id. at
p. 933.) “We begin by analyzing the text of the constitutional provision in its relevant
context because that is typically the best and most reliable indicator of the voters’ intent.”
(In re Febbo (2020) 52 Cal.App.5th 1088, 1097 (Febbo); California Cannabis, supra, at
p. 933.) “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.”
(California Cannabis, at p. 933.) “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
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electors are aware of existing law.” (Id. at p. 934.) We independently review questions
of constitutional and statutory interpretation. (Ibid.)
When “a state agency has authority to adopt regulations to implement, interpret,
make specific or otherwise carry out the provisions of the statute, no regulation adopted
is valid or effective unless consistent and not in conflict with the statute and reasonably
necessary to effectuate the purpose of the statute.” (Gov. Code, § 11342.2; Mooney v.
Pickett (1971) 4 Cal.3d 669, 679.) “In determining the proper interpretation of a statute
and the validity of an administrative regulation, the administrative agency’s construction
is entitled to great weight, and if there appears to be a reasonable basis for it, a court will
not substitute its judgment for that of the administrative body.” (Ontario Community
Foundation, Inc. v. State Bd. of Equalization (1984) 35 Cal.3d 811, 816.) “On the other
hand, . . . ‘[w]here a statute empowers an administrative agency to adopt regulations,
such regulations “must be consistent, not in conflict with the statute, and reasonably
necessary to effectuate its purpose.”’” (Ibid.) “A regulation that is inconsistent with the
statute it seeks to implement is invalid.” (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262,
269, superseded by statute on another ground as stated in Arch v. Superior Court (2004)
122 Cal.App.4th 339, 396-397.)
C. Analysis
King argues that he is entitled to early parole consideration pursuant to the plain
language of Proposition 57 and that the CDCR’s implementing regulation improperly
excludes him from such consideration because he is required to register as a sex offender
as a result of prior offenses. The CDCR does not dispute that King was denied early
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parole consideration on the basis of the requirement that he register as a sex offender.
The parties do not dispute that King is currently serving a sentence for a nonviolent
offense.
We first look to the language of the constitutional provision added by Proposition
57. Section 32(a)(1) mandates that early parole consideration shall be made available to
“[a]ny person convicted of a nonviolent felony offense and sentenced to state prison”
who has served the full term for the primary offense. (§ 32(a)(1).) The CDCR urges that
it is not clear from the language of that provision which state inmates meet the criteria for
early parole consideration because neither “‘convicted’” nor “‘nonviolent felony
offense’” is further defined. Because of that purported ambiguity, the CDCR contends
that the CDCR properly looked at section 32 as a whole and properly exercised its
authority by “defin[ing] which inmates qualify for nonviolent parole consideration.”
We do not agree that the language is ambiguous. We instead agree with the other
courts that have analyzed the issue. The plain language of the text is clear: The focus of
Proposition 57’s mandate on who should be eligible “for early parole consideration is on
the inmate’s current conviction, not on any prior convictions.” (Schuster, supra, 42
Cal.App.5th at p. 955; Gadlin, supra, 31 Cal.App.5th at p. 789; Chavez, supra, 51
Cal.App.5th at p. 756.)
As Gadlin explained, “[t]he 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
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history. This interpretation is supported by section 32[(a)(1)]’s use of the singular form
in ‘felony offense,’ ‘primary offense,’ and ‘term.’” (Gadlin, supra, 31 Cal.App.5th at
p. 789.) We agree with and adopt that reasoning and analysis. Gadlin’s interpretation is
further supported by the fact that section 32(a)(1) “contains no suggestion that it is
restricted to those lacking certain prior convictions.” (Chavez, supra, 51 Cal.App.5th at
p. 754; Schuster, supra, 42 Cal.App.5th at p. 955 [“The Amendment makes no mention
of prior convictions or an inmate’s status as a section 290 sex registrant”].) Because it is
clear from the language of section 32(a)(1) that “convicted” applies to the offense for
which the inmate is presently sentenced, the lack of a specific definition of the term
“convicted” was not necessary and does not render the provision ambiguous.
Moreover, because it is undisputed that King’s current offense is nonviolent, we
need not and do not consider whether “nonviolent felony offense” is sufficiently defined
by the plain language of section 32. Regardless of the CDCR’s latitude under section 32
to define what constitutes a nonviolent current offense, the plain language of section
32(a)(1) prescribes that the relevant offense for early parole consideration is limited to
the current offense only. We therefore, like Gadlin, do not consider “whether [the]
CDCR’s application of its regulations to exclude inmates whose current offense requires
registration as a sex offender similarly violates [section 32(a)(1)].” (Gadlin, supra, 31
Cal.App.5th at p. 790; see also Alliance for Constitutional Sex Offense Laws v.
Department of Corrections and Rehabilitation (2020) 45 Cal.App.5th 225, 235-236,
review granted, S261362, May 27, 2020 (Alliance) [concluding that the CDCR’s
regulation excluding inmates serving sentences for current nonviolent sex offenses
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requiring sex offender registration contravenes the plain language of Prop. 57], review
granted May 27, 2020, S261362; Febbo, supra, 52 Cal.App.5th at p. 1103 [concluding
that indecent exposure constitutes a nonviolent offense].)
The CDCR urges us to reject Gadlin, supra, 31 Cal.App.5th 784, but does not
point to any specific weakness or deficiency in Gadlin’s analysis of the plain language of
section 32(a)(1). Instead, focusing on the language of section 32 as a whole, the CDCR
argues that it was authorized to exclude all inmates required to register as sex offenders,
even those serving terms for nonviolent offenses, because of section 32(b)’s requirement
that the CDCR certify that the regulations “protect and enhance public safety.” We agree
with the other courts that have rejected that argument. “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).” (Febbo, supra, 52 Cal.App.5th at p. 1103; Alliance, supra, 45
Cal.App.5th at pp. 235-236.) Thus, the authority granted the CDCR under section 32(b)
is circumscribed by the plain language of section 32(a)(1).
Because we conclude that the plain language of section 32(a)(1) is clear and
unambiguous as to the voters’ intent in passing Proposition 57, we need not consult the
ballot materials to determine the initiative’s meaning. (Alliance, supra, 45 Cal.App.5th at
p. 238; Chavez, supra, 51 Cal.App.5th at p. 755 & fn. 10; see also Gadlin, supra, 31
Cal.App.5th at p. 789 [policy considerations “do not trump the plain text of” section
32(a)(1)].)
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For all of the foregoing reasons, we conclude that the plain language of section
32(a)(1) requires early parole consideration to be based solely on the present offense of
conviction. We therefore conclude that the CDCR regulation (Cal. Code Regs., tit. 15,
§ 3491, subd. (b)(3)) is invalid insofar as it excludes from early parole consideration
inmates who are sex offender registrants because of prior convictions.

Outcome: The petition for habeas corpus is granted. The California Department of
Corrections and Rehabilitation is directed to consider King for early parole within 60 days of the issuance of the remittitur.

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