California Cases August 12, 2020: In re Johnson

Case Description

NOT TO BE PUBLISHED

California Rules of Court , rule 8.1115(a) , prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published , except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. STK-CR-FMISC-2018-0004591)

Petitioner Darrell Allen Johnson contests regulations promulgated by the California Department of Corrections and Rehabilitation (Department) excluding him from early parole consideration for inmates convicted of a nonviolent offense as adopted by the voters through Proposition 57 in 2016. The Attorney General contends Proposition 57 authorized the Department to exclude petitioner because he was previously convicted of a crime requiring him to register as a sex offender. The Department requests that we disagree with In re Gadlin (2019) 31 Cal.App.5th 784 and other cases previously rejecting the arguments advanced by the Attorney General. Once again, we reject the Attorney General's arguments and agree with petitioner.

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Proposition 57 and Early Parole Consideration

In November 2016 California voters passed Proposition 57, The Public Safety and Rehabilitation Act of 2016. The initiative added section 32 to article I of the California Constitution which, among other things, provides for early parole consideration for inmates serving prison sentences for nonviolent offenses. The added section (Amendment) reads in part: "(a) 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: [¶] (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. [¶] (A) For purposes of this section only, the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence. [¶] . . . [¶] (b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety."

Section 2 of Proposition 57 states the voters' purposes, as relevant here, in approving the measure: "1. Protect and enhance public safety. [¶] 2. Save money by reducing wasteful spending on prisons. [¶] 3. Prevent federal courts from indiscriminately releasing prisoners. [¶] 4. Stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles." (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of proposed law, § 2, p. 141.)

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The Department adopted emergency regulations to implement the Amendment. (See Cal. Code Regs., tit. 15, former §§ 3490, 3491, Register 2017, No. 15 (Apr. 13, 2017).) As relevant here, the regulations defined a "nonviolent offender" as an inmate who is not (1) condemned, incarcerated for a term of life without the possibility of parole, or incarcerated for a term of life with the possibility of parole; (2) serving a term of incarceration for a violent felony within the meaning of Penal Code section 667.5, subdivision (c); or (3) "[c]onvicted of a sexual offense that requires registration as a sex offender under Penal Code section 290." (Tit. 15, former §§ 3490, subds. (a) & (c), 2449.1, subds. (a) & (c), Register 2017, No. 15 (Apr. 13, 2017).)

As required by the Amendment, the Secretary of the Department (Secretary) certified that the regulations as adopted "protect and enhance public safety for all Californians." In an initial statement of reasons accompanying the regulations, the Department provided its justification for excluding sex offenders from the nonviolent parole consideration process: "[T]he crimes listed in [Pen. Code, § 290] reflect the determination of the people of the State of California (through initiatives and the legislature) that, 'Sex offenders pose a potentially high risk of committing further sex offenses after release from incarceration or commitment, and the protection of the public from reoffending by these offenders is a paramount public interest.' " (Cal. Dept. of Corrections, Initial Statement of Reasons NCR 17-05, July 14, 2017, p. 15.)

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On May 1, 2018, the Department adopted, in final form, what it had previously considered interim regulations on Proposition 57. The adopted regulations defined a "determinately-sentenced nonviolent offender" as an inmate who is not : (1) condemned to death, (2) currently incarcerated for a term of life without the possibility of parole, (3) currently incarcerated for a term of life with the possibility of parole for a "violent felony," (4) currently serving a determinate term prior to beginning a term of life with the possibility of parole for an in-prison offense that is a "violent felony," (5) currently serving a term of incarceration for a "violent felony," or (6) currently serving a term of incarceration for a nonviolent felony offense after completing a concurrent determinate term for a "violent felony." (Tit. 15, former § 3490, subd. (a), Register 2018, No. 18 (May 1, 2018).)

As relevant here, the regulations stated a nonviolent offender as defined in former Title 15, section 3490, subdivision (a) shall be eligible for early parole consideration as provided for by the Amendment except, inter alia , inmates who are "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." (Tit. 15, former § 3491, subds. (a), (b)(3).) The Secretary, in his final statement of reasons, reiterated the reasons stated in the initial statement of reasons for excluding inmates who must register as sex offenders from early parole consideration. (Cal. Dept. of Corrections, Credit Earning and Parole Consideration Final Statement of Reasons, April 30, 2018, p. 20.) The Secretary also listed multiple crimes not considered serious or violent felonies but that "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." ( Ibid .)

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Habeas Corpus Proceedings

In April 2018 petitioner filed a petition for writ of habeas corpus in the San Joaquin County Superior Court challenging his exclusion from consideration for parole under Proposition 57. Petitioner is currently serving a 13 year determinate sentence in state prison: three years--doubled to six for defendant's prior strike--for dissuading a witness by force or threat (Pen. Code, § 136.1, subd. (c)), one year--doubled to two years the strike--for inflicting corporal injury to a spouse or cohabitant (§ 273.5, subd. (a)), two years for making criminal threats (§ 422) stayed pursuant to section 654, and a five-year enhancement for being previously convicted of a serious felony (§ 667, subd. (a)). Defendant's prior strike conviction was for an assault to commit certain offenses, with the intended offense being rape (§§ 1170.12, subd. (a), 667, subd. (d), 220); that conviction requires him to register as a sex offender for life (§ 290, subds. (b) & (c)).

Defendant's three-year full term for his primary offense--which excludes the doubling of the sentence due to defendant's prior strike (Tit. 15, § 3490, subds. (d)-(f))--began to run on April 19, 2015, the date from which defendant was incarcerated for his offense. However, the Department had excluded petitioner from early parole consideration due to his previous conviction for a registerable sex offense.

In May 2018 the superior court denied defendant's petition pursuant to the Department's regulations in effect as of May 1, 2018. In June 2018 petitioner filed an original petition for writ of habeas corpus in this court raising the same claims he raised in superior court. In August 2018, we issued an order to show cause returnable in the superior court.

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In January 2019 the superior court issued an order staying further proceedings pending our decision in Alliance for Constitutional Sex Offense Laws v . Department of Corrections and Rehabilitation , et al . (2020) 45 Cal.App.5th 225, review granted May 27, 2020, S261362 ( Alliance ). Following the court's order, the Second Appellate District, Division Five decided In re Gadlin , supra , 31 Cal.App.5th 784, review granted May 15, 2019, S254599 ( Gadlin ), which held the Department's regulations are invalid insofar as they bar early parole consideration for an inmate who is subject to registration under section 290 for a prior crime for which the inmate has already fully served his or her sentence.

Petitioner requested that the superior court lift the stay and grant relief based on Gadlin . In February 2019 the court granted petitioner's request, ordering, "[the Department] shall provide a parole hearing to Petitioner pursuant to Section 32 of Article I of the California Constitution."

In March 2019 the superior court granted the Attorney General's request to stay its order pending appeal. The Attorney General timely filed a notice of appeal.

In June 2019 the Attorney General requested that these proceedings be held in abeyance pending our Supreme Court's decision in Gadlin . We denied that motion.

In December 2019 this court decided In re Schuster (2019) 42 Cal.App.5th 943, review granted February 19, 2020, S260024 ( Schuster ). In Schuster we agreed with Gadlin "that the focus of the Amendment for early parole consideration is on the inmate's current conviction, not on any prior convictions." ( Id . at p. 955.)

Most recently, in February 2020 we decided Alliance , supra , 45 Cal.App.5th 225, review granted May 27, 2020, S261362, which concluded Proposition 57 did not permit the Department to exclude inmates convicted of a current nonviolent sex offense from early parole consideration.

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The Attorney General contends article I, section 32 authorizes the Department to promulgate regulations excluding from early parole consideration inmates previously convicted of sex offenses requiring sex offender registration. The Attorney General acknowledges his argument was considered and rejected in Gadlin , supra , 31 Cal.App.5th at pages 787 to 790, review granted May 15, 2019, S254599, but he argues we should disagree with Gadlin and uphold the Department's regulation. We reject the Attorney General's argument.

A. Standard of Review

Gadlin set forth the scope of our review of an agency's regulations: " ' "In order for a regulation to be valid, it must be (1) consistent with and not in conflict with the enabling statute and (2) reasonably necessary to effectuate the purpose of the statute. [Citation.]" [Citations.] Therefore, "the rulemaking authority of the agency is circumscribed by the substantive provisions of the law governing the agency." [Citation.] " 'The task of the reviewing court in such a case is to decide whether the [agency] reasonably interpreted [its] legislative mandate. . . . Such a limited scope of review constitutes no judicial interference with the administrative discretion in that aspect of the rulemaking function which requires a high degree of technical skill and expertise. . . . [T]here is no agency discretion to promulgate a regulation which is inconsistent with the governing statute. . . . Whatever the force of administrative construction . . . final

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responsibility for the interpretation of the law rests with the courts. . . . Administrative regulations that alter or amend the statute or enlarge or impair its scope are void. . . .' [Citation.]" [Citation.]' [Citation.]" ( Gadlin , supra , 31 Cal.App.5th at pp. 788-789, review granted May 15, 2019, S254599.)

" 'When construing constitutional provisions and statutes, including those enacted through voter initiative, "[o]ur primary concern is giving effect to the intended purpose of the provisions at issue. [Citation.] In doing so, we first analyze provisions' text in their relevant context, which is typically the best and most reliable indicator of purpose. [Citations.] We start by ascribing to words their ordinary meaning, while taking account of related provisions and the structure of the relevant statutory and constitutional scheme. [Citations.] If the provisions' intended purpose nonetheless remains opaque, we may consider extrinsic sources, such as an initiative's ballot materials. [Citation.] Moreover, when construing initiatives, we generally presume electors are aware of existing law. [Citation.] Finally, we apply independent judgment when construing constitutional and statutory provisions. [Citation.]" [Citation.]' [Citation.]" ( Gadlin , supra , 31 Cal.App.5th at p. 789, review granted May 15, 2019, S254599.)

B. Gadlin, Schuster, and Alliance

Article I, section 32, subdivision (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." (Italics added.) The court in Gadlin observed: "The reference to 'convicted' and 'sentenced,' in conjunction with present eligibility for parole once a full term is completed, make clear that early parole eligibility must be assessed based on the conviction for which an inmate is now serving a state prison sentence (the current offense), rather than prior criminal history." ( Gadlin , supra , 31 Cal.App.5th at p. 789, review granted May 15, 2019, S254599.) The court acknowledged the Department's argument that sex offenses involve a sufficient degree of violence and that registerable inmates present an unreasonable risk

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to public safety. ( Ibid .) But, the court noted, those policy considerations do not trump the plain language of article I, section 32, subdivision (a)(1). ( Gadlin , at p. 789.) Thus, the court concluded the plain language of article I, section 32, subdivision (a)(1) precluded the Department from excluding the petitioner from early parole consideration based on his prior sex offense. ( Gadlin , at pp. 789, 790.)

In In re Schuster , supra , 42 Cal.App.5th 943, review granted February 19, 2020, S260024, we agreed with the analysis in Gadlin . ( Schuster , at p. 955.) We observed, "The Amendment makes no mention of prior convictions or an inmate's status as a section 290 sex registrant." ( Ibid .) We concluded, "To the extent that Title 15, section 3491, subdivision (b)(3) is applied to bar inmates with prior sex offenses requiring registration from early parole consideration, it conflicts with the Amendment and is invalid." ( Ibid .)

In Alliance , supra , 45 Cal.App.5th 225, review granted May 27, 2020, S261362, we struck down the Department's regulations to the extent they excluded from early parole consideration inmates currently convicted of sex offenses. We concluded the plain language of the Amendment, when read as a whole, "unequivocally demonstrates the voters' intent to provide early parole consideration for all inmates convicted of a nonviolent offense-as opposed to only those inmates the Department believes are sufficiently unlikely to reoffend." ( Id . at p. 234.)

C. Analysis

The Attorney General asks us to disagree with Gadlin , which it contends excessively adhered to the text of article I, section 32, subdivision (a)(1) at the expense of the voters' intent. (See People v . Buycks (2018) 5 Cal.5th 857, 879 [where a law is passed by the voters, their intent governs].) The Attorney General's argument proceeds as follows: (1) article I, section 32, subdivision (a)(1) has an "undefined scope" because it does not define "convicted" or "nonviolent felony offense," (2) article I, section 32, subdivision (b) authorizes the Department to "fill up the details" and gaps within the

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scheme, including determining which inmates qualify for nonviolent parole consideration, and to exclude classes of inmates that would present a public safety risk, (3) Proposition 57's ballot materials clearly indicate that registered sex offenders would be excluded from early parole consideration.

We disagree with the Attorney General that Gadlin 's analysis was overly textual and failed to discern the voters' intent in passing the Amendment. Indeed, as Gadlin observed, the provisions' text in their relevant context is typically the best and most reliable indicator of the intended purpose of the statute. ( Gadlin , supra , 31 Cal.App.5th at p. 789, review granted May 15, 2019, S254599.)

We agree with the Attorney General that the text of article I, section 32, subdivision (a)(1) does not define "convicted" or "nonviolent felony offense." We also agree that article I, section 32, subdivision (b) authorizes the Department to promulgate regulations "in furtherance" of the provisions of the Amendment. However, as Gadlin recognized, " ' "[T]here is no agency discretion to promulgate a regulation which is inconsistent with the governing statute. . . ." ' " ( Gadlin , supra , 31 Cal.App.5th at p. 789, review granted May 15, 2019, S254599.) Therefore, while the Department is entitled to some latitude in its regulations, the Department is not entitled to contradict the plain language of the Amendment by excluding inmates it acknowledges are eligible for early parole consideration under article I , section 32 , subdivision (a)(1) . That subdivision unequivocally states that 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 Department's regulation is doing more than "filling up the details"; it is contradicting the Amendment.

We disagree with the Attorney General that article I, section 32, subdivision (b)'s requirement that the Secretary must "certify that these regulations protect and enhance public safety" authorizes the Department to promulgate regulations excluding classes of inmates otherwise eligible for early parole consideration. As we have stated: "Nothing

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in the language of section 32, subdivision (a) suggests that it is limited by the provisions of section 32, subdivision (b). Indeed, subdivision (a) is prefaced with the following: '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.' (Italics added.) The language in subdivision (b) confirms that point: '[The Department] shall adopt regulations in furtherance of these provisions . . . .' (Italics added.) Subdivision (b), contrary to the Department's contention, does not permit the Department to promulgate regulations limiting the express requirements of subdivision (a)(1). Rather, it requires that the Department promulgate regulations to advance the express requirements of subdivision (a)(1), which does not limit the categories of inmates eligible for early parole consideration based on their likelihood of recidivism." ( Alliance , supra , 45 Cal.App.5th at p. 235, review granted May 27, 2020, S261362.)

By ascribing to the words in article I, section 32, subdivision (a)(1) their ordinary meaning, and taking into account the structure of the constitutional scheme, we conclude the voters intended to extend early parole consideration, as the Amendment expressly states, to any inmate convicted of a nonviolent felony offense and sentenced to state prison upon completing the full term of his or her primary offense. The Department's application of Title 15, section 3491, subdivision (b)(3) to exclude petitioner and all similarly situated inmates from early parole consideration runs afoul of article I, section 32, subdivision (a)(1). ( Gadlin , supra , 31 Cal.App.5th at p. 790, review granted May 15, 2019, S254599.) Under the plain language of the statute, petitioner is entitled to early parole consideration.

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The Department contends the trial court's order requiring it to give petitioner a parole hearing must be reversed. The trial court ordered, "[the Department] shall provide a parole hearing to Petitioner pursuant to Section 32 of Article I of the California Constitution."

We agree with the Department that the Board of Parole Hearings, rather than the Department itself, is empowered to consider inmates for release on parole, and we agree the regulations applicable to determinately sentenced nonviolent offenders, like petitioner, do not contemplate a parole hearing . (See tit. 15, §§ 2449.1-2449.7, 3490-3493.) Rather, for determinately sentenced inmates, "a hearing officer shall confirm the inmate is eligible for parole consideration under section 3491 of Division 3 of this title and, if the inmate's eligibility is confirmed, review the inmate's case on the merits and determine whether to approve the inmate's release." (Tit. 15, § 2449.4.) We shall modify the order accordingly.

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We modify paragraph 2 of the trial court's order to read: "The California Department of Corrections and Rehabilitation shall refer Petitioner to the Board of Parole Hearings for nonviolent offender parole review." This referral shall occur within 60 days of issuance of the remittitur. As modified, the judgment is affirmed.

/s/ _________
Duarte, J.

We concur:

/s/ _________
Mauro, Acting P. J.

/s/ _________
Renner, J.