In re Gadlin

IN THE SUPREME COURT OF

CALIFORNIA

In re GREGORY GADLIN

on Habeas Corpus.

S254599

Second Appellate District, Division Five

B289852

Los Angeles County Superior Court

BA165439

December 28, 2020

Chief Justice Cantil-Sakauye authored the opinion of the

Court, in which Justices Corrigan, Liu, Cuéllar, Kruger,

Groban and Hill* concurred.

________________________

*

Presiding Justice of the Court of Appeal, Fifth Appellate

District, assigned by the Chief Justice pursuant to article VI,

section 6 of the California Constitution.

In re GADLIN

S254599

Opinion of the Court by Cantil-Sakauye, C. J.

In November 2016, the California electorate approved

Proposition 57, the Public Safety and Rehabilitation Act of 2016.

The initiative amended the California Constitution to provide,

in relevant part, 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) (article I,

section 32(a)(1)).)1 The initiative also directed the Department

of Corrections and Rehabilitation (the Department) to “adopt

regulations in furtherance of these provisions” and instructed

the Secretary of the Department to “certify that these

regulations protect and enhance public safety.” (Art. I, § 32,

subd. (b) (article I, section 32(b)).)

The Department adopted regulations implementing a

nonviolent offender parole consideration process. Those

regulations exclude from nonviolent offender parole

consideration any inmate who “is convicted of a sexual offense

that currently requires or will require registration as a sex

offender under the Sex Offender Registration Act, codified in

Sections 290 through 290.024 of the Penal Code.” (Cal. Code

1

Further article references are to the California

Constitution unless otherwise indicated.

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Regs., tit. 15, § 3491, subd. (b)(3) [governing determinately

sentenced offenders]; see also id., § 3496, subd. (b) [governing

indeterminately sentenced offenders].)2 We granted review to

address the validity of these provisions.

The Department asserts it is authorized by article I,

section 32(b) to exclude from nonviolent offender parole

consideration 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. Indeed, the

Department’s regulations categorize inmates convicted of a

registerable sex offense as “nonviolent offenders” unless, among

other criteria, they are currently incarcerated for a violent

felony listed in Penal Code section 667.5, subdivision (c). (Cal.

Code Regs., §§ 3490, subd. (a), 3491, subds. (a), (b), 3495,

subd. (a), 3496, subds. (a), (b).) Nonetheless, the regulations

entirely exclude from nonviolent offender parole consideration

inmates previously convicted or currently convicted of any

registerable sex offense. We conclude that this categorical

exclusion conflicts with the constitutional directive that inmates

“convicted of a nonviolent felony offense and sentenced to state

prison shall be eligible for parole consideration.” (Art. I,

§ 32(a)(1).)

We emphasize that this determination does not require

the release on parole of any inmate. The evaluation of an

inmate’s suitability for parole and the processes involved in

conducting that evaluation remain squarely within the purview

of the Department and the Board of Parole Hearings. We

2

Further undesignated references to the California Code of

Regulations are to title 15 unless otherwise noted.

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Opinion of the Court by Cantil-Sakauye, C. J.

emphasize, too, that our conclusion here does not disturb the

Department’s exclusion from parole consideration of inmates

currently incarcerated for violent felony sex offenses as defined

in Penal Code section 667.5, subdivision (c). The Department is

not permitted, however, to entirely exclude from parole

consideration an entire class of inmates when those inmates

have been convicted of nonviolent felony offenses.

I. FACTS AND PROCEDURAL HISTORY

A. The Underlying Conviction

In 2007, a jury convicted petitioner Gregory Gadlin of

assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)3

The jury sustained allegations that he had previously been

convicted of two serious felonies (Pen. Code, § 667, subd. (a)(1)):

a 1984 conviction for forcible rape (id., § 261, former subd. (2)),

and a 1986 conviction for forcible child molestation (id., § 288,

subd. (b)). Both prior convictions require registration under the

Sex Offender Registration Act. (Pen. Code, § 290, subd. (c).)

Following his conviction in 2007, petitioner was sentenced

to a total prison term of 35 years to life, consisting of 25 years to

life for assault with a deadly weapon under the “Three Strikes”

law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12), and an

3

As discussed below, the Department’s regulations

implementing Proposition 57 adopt the definition of “violent

felony” established in Penal Code section 667.5, subdivision (c).

(Cal. Code Regs., §§ 3490, subd. (c), 3495, subd. (c).) Petitioner’s

current conviction for assault with a deadly weapon is not a

violent felony under that statute. The parties do not discuss,

and we do not consider, the validity of the Department’s

regulations concerning the adoption of the Penal Code on this

point.

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Opinion of the Court by Cantil-Sakauye, C. J.

additional five years for each of his two prior serious felony

convictions. His judgment was affirmed on appeal.

B. The Underlying Habeas Corpus Petitions and

the Court of Appeal Opinion

After the electorate approved Proposition 57, petitioner

filed a petition for a writ of habeas corpus in the Los Angeles

County Superior Court. The petition challenged the

Department’s determination that petitioner did not qualify for

nonviolent offender parole consideration, and specifically

challenged the provision of the regulations excluding from

nonviolent offender parole consideration inmates like petitioner

who had been convicted under the Three Strikes law. The trial

court denied the petition, finding that the then-applicable

regulations properly excluded inmates serving third strike

sentences from eligibility for nonviolent offender parole

consideration. It does not appear that either petitioner or the

Department addressed in the superior court proceedings the

effect of defendant’s prior sex offense convictions on his

eligibility for nonviolent offender parole consideration.

Petitioner sought habeas corpus relief in the Court of

Appeal. That court appointed counsel, directed counsel to file

an amended petition, and eventually issued an order to show

cause. In its return to the order to show cause, the Department

asserted that petitioner was ineligible for nonviolent offender

parole consideration for two reasons: first, because he was

serving an indeterminate term pursuant to the Three Strikes

law; second, because he had suffered a prior conviction for a sex

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Opinion of the Court by Cantil-Sakauye, C. J.

offense requiring registration under Penal Code section 290.

The Department’s first argument is not before us.4

The appellate court held that the amended regulations

improperly excluded petitioner from nonviolent offender parole

consideration based on his two prior sex offense convictions.

(Gadlin, supra, 31 Cal.App.5th at pp. 789–790.) Looking to the

language of the constitutional provision, the court determined

that “[t]he reference to ‘convicted’ and ‘sentenced’ [in article I,

section 32(a)(1)], in conjunction with present eligibility for

parole once a full term is completed, make[s] 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.” (Id. at

p. 789.) The court rejected the Department’s assertion that the

Department could exclude offenders with prior sex offense

convictions in order to protect public safety, noting that “[t]hese

policy considerations . . . do not trump the plain text of section

32[(a)(1)].” (Ibid.) The court declined to express any opinion

4

When the present matter was pending in the Court of

Appeal, that same court decided In re Edwards (2018)

26 Cal.App.5th 1181 (Edwards). Edwards held that the

regulations implementing Proposition 57 improperly excluded

from nonviolent offender parole consideration third strike

offenders whose third strike was for a nonviolent offense.

(Edwards, at pp. 1185–1186.) The court directed the

Department to amend the regulations accordingly, and the

Department did so in December 2018. (Id. at pp. 1192–1193.)

The Court of Appeal in the present case concluded that the

amended regulations effectively mooted the Department’s

argument that petitioner’s conviction under the Three Strikes

law made him ineligible for nonviolent offender parole

consideration. (In re Gadlin (2019) 31 Cal.App.5th 784, 787

(Gadlin).)

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concerning whether the exclusion of inmates based on a current

conviction for a nonviolent sex offense also violates the

Constitution. (Ibid.) The Court of Appeal granted the petition

and ordered the Department to consider petitioner for parole

within 60 days. (Id. at p. 790.)

Justice Baker authored a concurring opinion agreeing

with the majority that individuals convicted of prior sex offenses

may not be excluded from nonviolent offender parole

consideration under the newly enacted constitutional provision.

(Gadlin, supra, 31 Cal.App.5th at p. 790 (conc. opn. of Baker,

J.).) The concurring opinion, however, maintained that

individuals currently incarcerated for nonviolent sex offenses

may properly be excluded from nonviolent offender parole

consideration. (Id. at pp. 793–796 (conc. opn. of Baker, J.).)

We granted the Attorney General’s petition for review and

directed the parties to address whether the Department had the

authority to exclude from nonviolent offender parole

consideration inmates with prior sex offense convictions

requiring registration. Following oral argument, we asked the

parties to submit supplemental briefs addressing whether the

Department had the authority to exclude from nonviolent

offender parole consideration those inmates with current

nonviolent sex offense convictions (that is, convictions not listed

as violent in Penal Code section 667.5, subdivision (c)) that

require registration.5 Although petitioner was excluded from

5

The Court of Appeal recently considered this issue and

concluded that the Department could not exclude inmates

currently convicted of a nonviolent registerable sex offense.

(Alliance for Constitutional Sex Offense Laws v. Department of

Corrections & Rehabilitation (2020) 45 Cal.App.5th 225, 234

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Opinion of the Court by Cantil-Sakauye, C. J.

nonviolent offender parole consideration based solely on his

prior conviction, in light of the concurring opinion below and the

interest in resolving the matter expeditiously we will consider

the Department’s regulations as they apply to both prior and

current convictions.

II. DISCUSSION

A. Proposition 57

In 2009, a three-judge federal district court panel ordered

the Department “to reduce the prisoner population to 137.5% of

the adult institution’s total design capacity.” (Coleman v.

Schwarzenegger (E.D.Cal. 2009) 922 F.Supp.2d 882, 962; see

also Brown v. Plata (2011) 563 U.S. 493, 501–503.) The

California Legislature and electorate subsequently enacted

several measures aimed to reduce the prison population,

including Assembly Bill No. 109 (Stats. 2011, ch. 15, § 482

(2011–2012 Reg. Sess.); criminal realignment) and Proposition

36 (the Substance Abuse and Crime Prevention Act of 2000).

Still, the issue persisted and in February 2014 the federal

district court ordered the Department to implement additional

measures.

Against this backdrop, in November 2016 the electorate

approved Proposition 57. (Cal. Sect. of State, Statement of Vote

Summary Pages (2016) p. 12 <https://elections.cdn.sos.ca.gov/

sov/2016-general/sov/06-sov-summary.pdf> [as of Dec. 17,

(Alliance).) Counsel in the present matter is the same counsel

as appeared in Alliance. We granted review in Alliance and

deferred briefing pending resolution of the matter before us.

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Opinion of the Court by Cantil-Sakauye, C. J.

2020].)6 As relevant here, the initiative added section 32 to

article I of the California Constitution. The new section 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.” (Art. I, § 32(a)(1).) It further provides that

“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.” (Id., § 32(a)(1)(A).) Finally, as noted

earlier, the new provision directs the Department to “adopt

regulations in furtherance of these provisions” and instructs the

Secretary of the Department to “certify that these regulations

protect and enhance public safety.” (Id., § 32(b).)

Article I, section 32(a) identifies the purposes behind the

constitutional provision, stating that it was “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.” Uncodified portions

of Proposition 57 further identify the initiative’s purpose and

intent. Those purposes, in relevant part, are: “1. Protect and

enhance public safety. [¶] 2. Save money by reducing wasteful

spending on prisons. [¶] 3. Prevent federal courts from

indiscriminately releasing prisoners. [¶] 4. Stop the revolving

door of crime by emphasizing rehabilitation, especially for

juveniles.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016)

text of Prop. 57, § 2, p. 141.) The initiative also states that the

6

All Internet citations in this opinion are archived by year,

docket number, and case name at <http://courts.ca.gov/

38324.htm>.

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“act shall be liberally construed to effectuate its purposes.” (Id.,

§ 9, p. 146.)

B. The Department’s Regulations

In March 2017, the Department proposed emergency

regulations to implement Proposition 57. Those regulations,

which were adopted on a temporary basis, defined a “nonviolent

offender” as an inmate who was not, among other things, serving

a term for a violent felony as defined in Penal Code section

667.5, subdivision (c) or convicted of a sex offense requiring

registration under Penal Code section 290. (Cal. Code Regs.,

§§ 3490, former subds. (a), (c), 2449.1, former subds. (a), (c).)

Under the emergency regulations, inmates with current or prior

sex offense convictions requiring registration were excluded

from nonviolent offender parole consideration.

In May 2018, the Department issued final regulations to

replace the March 2017 emergency regulations. The May 2018

regulations modified the March 2017 emergency regulations in

various ways, including by changing the definition of

“nonviolent offenders.” As relevant here, the final regulations

do not exclude from the definition of “nonviolent offenders”

individuals convicted of a current or prior sex offense requiring

registration. (See Cal. Code Regs., §§ 3490, subd. (a) [defining

“determinately-sentenced nonviolent offender”], 3495, subd. (a)

[defining “indeterminately-sentenced nonviolent offender”].)

Thus, inmates with prior sex offenses requiring registration

may be deemed “nonviolent offenders” under the final

regulations (unless they are excluded on another basis). The

regulations state, too, that nonviolent offenders “shall be eligible

for parole consideration by the Board of Parole Hearings.” (Id.,

§ 3491, subd. (a); see also § 3496, subd. (a).)

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The final regulations go on to say that, “[n]otwithstanding

[section 3491,] subsection (a),” even nonviolent offenders are

“not eligible for parole consideration” if, among other things,

“[t]he 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.” (Cal. Code Regs., § 3491, subd. (b),

(b)(3); see also § 3496, subd. (b).)7

The final statement of reasons accompanying the May

2018 regulations acknowledged that individuals convicted of a

sex offense “are no longer excluded from the definition of

‘nonviolent offender.’ ” (Dept. of Corrections and Rehabilitation,

Credit Earning and Parole Consideration Final Statement of

Reasons (2018) p. 14.) It went on to explain that,

notwithstanding that definition, inmates currently or

previously convicted of a sex offense requiring registration

would be excluded from nonviolent offender parole consideration

based on public safety concerns. (Id. at pp. 14, 20.)8 The

statement asserted that such offenders pose a “potentially high

7

The regulations detail the eligibility criteria for both

determinately sentenced offenders (see Cal. Code Regs.,

§§ 3490–3491) and indeterminately sentenced offenders (see id.,

§§ 3495–3496). The provisions are identical as relevant here;

both exclude from nonviolent offender parole consideration an

inmate convicted of a sexual offense that currently requires or

will require registration. (Id., §§ 3491, subd. (b)(3), 3496, subd.

(b).)

8

The risk to the community posed by individuals convicted

of sex offenses is sharply contested by the parties and amici.

Given our conclusions regarding the language of the

Constitution and the intent of the voters as reflected in the

ballot materials, however, we need not address this issue.

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Opinion of the Court by Cantil-Sakauye, C. J.

risk of committing further sex offenses after release from

incarceration or commitment, and that protection of the public

from reoffending by these offenders is a paramount public

interest.” (Id. at p. 20.)9

C. Other Cases Regarding Nonviolent Offender

Parole Consideration

In addition to excluding from parole consideration inmates

convicted of prior offenses requiring registration, the May 2018

regulations categorically excluded certain other “nonviolent

offenders”: (i) inmates deemed ineligible based on a public

safety screening and referral, and, as noted, (ii) inmates serving

an indeterminate term under the Three Strikes law, even when

the third strike was a nonviolent felony. Courts of Appeal have

invalidated both exclusions as inconsistent with Proposition 57

and have directed the Department to adopt new regulations

consistent with the constitutional provision. (See In re McGhee

(2019) 34 Cal.App.5th 902 (McGhee); Edwards, supra,

9

The final statement of reasons accompanying the

regulations also provided estimates concerning the number of

inmates who would be affected by this exclusion. According to

the Department, approximately 22,400 inmates were required

at that time to register for a sex offense based on a current or

prior conviction. Of those, more than 18,000 were currently

convicted of a violent offense as defined in Penal Code section

667.5, subdivision (c) and thus, under the Department’s

regulations, were ineligible for nonviolent offender parole

consideration based on their current conviction in any event. Of

the remaining 4,400 or so inmates convicted of a nonviolent

offense (and currently incarcerated based on that offense), it is

not clear how many would be excluded from nonviolent offender

parole consideration based on a prior (as opposed to a current)

sex offense conviction.

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26 Cal.App.5th at p. 1181.) The Department did not seek review

in either case.10

D. Standard of Review and Principles of Statutory

Interpretation

The principles applicable to determining the validity of

regulations promulgated by a state agency are well settled.

Those precepts have traditionally been applied in the context of

a state agency’s regulations addressing statutes enacted by the

Legislature. (See Morris v. Williams (1967) 67 Cal.2d 733, 748

(Morris).) Neither party argues that the relevant principles of

interpretation differ when an agency has promulgated

regulations to give force to a constitutional provision, rather

than a statutory provision. The parties in this case have not

suggested an alternative framework to interpret agency

regulations authorized by constitutional provisions, and we see

no reason to think a different framework would lead to a

different result. Therefore, for purposes of this case we proceed

as though the ordinary analytical approach applies. (Cf.

Samara v. Matar (2018) 5 Cal.5th 322, 330.)

In evaluating the validity of a regulation under these

principles, we first ask whether the regulation is “ ‘consistent

and not in conflict with’ ” the provision that authorizes it.

(Morris, supra, 67 Cal.2d at p. 748, italics omitted.) We then

inquire whether the regulation is reasonably necessary to

10

As noted, the Department amended its regulations

following the decision in Edwards, and it did so again following

the decision in McGhee. As amended, the operative language

regarding the exclusion of individuals convicted of registerable

sex offenses remains unchanged from the May 2018 version of

the regulations. (See Cal. Code Regs., §§ 3490–3491, 3495–

3496.)

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effectuate the purpose of the authorizing law. (Id. at pp. 748–

749; see also Gov. Code, § 11342.2 [“Whenever by the express or

implied terms of any statute 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”]; see also Woods v. Superior Court (1981)

28 Cal.3d 668, 679 (Woods).) Our task as a reviewing court “ ‘ “is

to decide whether the [agency] reasonably interpreted [its]

mandate.” ’ ” (Woods, supra, 28 Cal.3d at p. 679, quoting Credit

Ins. Gen. Agents Assn. v. Payne (1976) 16 Cal.3d 651, 657.) We

presume the validity of a regulation promulgated by a state

agency. (Assn. of California Ins. Companies v. Jones (2017)

2 Cal.5th 376, 389 (Jones).) The burden lies with the party

challenging the regulation to show its invalidity. (Payne, supra,

16 Cal.3d at p. 657.) “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.” (Woods, supra,

28 Cal.3d at p. 679.)

“ ‘Our function is to inquire into the legality of the

regulations, not their wisdom.’ ” (Woods, supra, 28 Cal.3d at

p. 679, quoting Morris, supra, 67 Cal.2d at p. 737.) Still,

“ ‘ “final responsibility for the interpretation of the law rests

with the courts.” [Citations.] 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.’ ” (Woods, supra, 28 Cal.3d at p. 679, quoting

Morris, supra, 67 Cal.2d at p. 748.)

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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.” (California Cannabis

Coalition v. City of Upland (2017) 3 Cal.5th 924, 933.) And, “[i]n

interpreting a voter initiative . . . , we apply the same principles

that govern statutory construction.” (People v. Rizo (2000)

22 Cal.4th 681, 685, citing Horwich v. Superior Court (1999)

21 Cal.4th 272, 276.) 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. (See City of

Upland, supra, 3 Cal.5th at pp. 933–934.)

E. The Language of Proposition 57

We therefore begin our analysis by returning to the

language of the constitutional provisions enacted by Proposition

57. As noted above, article I, 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.” Article

I, section 32(b) provides that the Department shall “adopt

regulations in furtherance of these provisions.” The question

here is whether these provisions indicate that the voters

intended to permit the Department to exclude an inmate from

nonviolent offender parole consideration based on a conviction

for a registerable sex offense. In deciding that question, we

consider whether that prohibition may apply, not only with

respect to prior sex offense convictions but also with respect to

current sex offense convictions.

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The Court of Appeal concluded that the Department could

not exclude inmates from nonviolent offender parole

consideration based on prior convictions: “The reference to

‘convicted’ and ‘sentenced,’ in conjunction with present

eligibility for parole once a full term is completed, make clear

that early parole eligibility must be assessed based on the

conviction for which an inmate is now serving a state prison

sentence (the current offense), rather than prior criminal

history. This interpretation is supported by section 32[(a)(1)]’s

use of the singular form in ‘felony offense,’ ‘primary offense,’ and

‘term.’ ” (Gadlin, supra, 31 Cal.App.5th at p. 789.) Petitioner

agrees and asserts there is no “suggestion in the text of the

initiative that the electorate had any concern about prior

convictions at the qualification stage: the focus was exclusively

on those offenders serving a term for a nonviolent offense,

regardless of their criminal history.”

As to inmates currently convicted of an offense requiring

registration, petitioner again emphasizes the language of the

constitutional provision. He notes that article I, section 32(a)(1)

provides for parole consideration for inmates convicted of

nonviolent felony offenses and that the Department’s exclusion

of inmates convicted of any sex offense requiring registration —

including nonviolent felony offenses — is not based on a

conclusion that these inmates have committed “violent offenses”

as defined in Penal Code section 667.5, subdivision (c), but on

the Department’s assertion that such an exclusion is required

by public safety considerations.

The Department does not assert that the text of article I,

section 32(a)(1) expressly demonstrates the intent of the

electorate to exclude inmates from nonviolent offender parole

consideration based on a prior conviction or a current conviction

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for any registerable offense. The Department contends,

however, that the language of article I, section 32(a)(1) is

ambiguous, and that the Department appropriately exercised its

authority to “ ‘ “ ‘fill up the details’ ” ’ ” of article I, section 32’s

parole scheme. (Jones, supra, 2 Cal.5th at p. 391.) Thus, the

Department asserts, an analysis of the ballot materials is

appropriate in order to determine the voters’ intent.

In so arguing, the Department focuses on the terms

“convicted” and “nonviolent felony offense.” The Department

asserts that “nonviolent” as used in the provision “lacks a firm

definition,” noting that the voter information guide informed

voters that “the measure and current law do not specify which

felony crimes are defined as nonviolent . . . .” (Voter Information

Guide, Gen. Elec., supra, analysis of Prop. 57 by Legis. Analyst,

p. 56.) We consider the alleged ambiguity of each of those terms

before turning to the language of the constitutional provision as

a whole.

1. “Nonviolent felony offense”

The term “nonviolent felony offense” is not defined in the

constitutional language. Article I, section 32(b) delegates the

Department authority to promulgate regulations in furtherance

of the constitutional language. That authority may include

some discretion to define what constitutes a “nonviolent felony

offense” for purposes of nonviolent offender parole

consideration. We need not decide the full scope of the

Department’s authority in this context, however, given the

limited question before us. Rather, our task is to determine

whether the Department’s current regulations, which

categorially exclude from nonviolent offender parole

consideration all inmates subject to sex offender registration,

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are consistent with the constitutional directive that “[a]ny

person convicted of a nonviolent felony offense . . . shall be

eligible for parole consideration . . . .” (Art. I, § 32(a)(1).)

In its initial briefing before this court, the Department

conceded that its regulations defined petitioner as a “nonviolent

offender” based on his current conviction. The Department

noted that the regulation at issue “does not merely interpret

particular terms, such as ‘nonviolent’ or ‘nonviolent felony

offense.’ Instead, it reflects the Secretary’s public safety

determinations . . . .”11

In an abrupt change of position, however, the Department

asserts in its supplemental briefing that its regulations

excluding inmates with registerable sex offenses from parole

consideration “in effect deem those offenses not to be ‘nonviolent

felony offense[s]’ under section 32, subdivision (a)(1).” That is,

the Department now asserts that any inmate excluded from

nonviolent offender parole consideration under its regulations

has been excluded based on an implicit determination that the

inmate did not commit a “nonviolent felony offense” for purposes

of article I, section 32(a)(1). We have previously declined to

consider belated arguments not raised in a party’s opening brief.

(People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.) Even

11

The Department likewise asserted in Alliance that its

exclusion from parole consideration of inmates with current

convictions for nonviolent registerable sex offenses was based

only on public safety concerns. (Alliance, supra, 45 Cal.App.5th

at p. 231 [“the Department 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 California Constitution, article I, section 32, subdivision

(a)(1)”].)

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considering the Department’s new argument, we find it to be

inconsistent with the Department’s regulations.

Article I, section 32(a) refers to parole consideration for

individuals “convicted of a nonviolent felony offense.” The

regulations do not interpret this phrase, but they do provide

definitions of “nonviolent offender” and “violent felony.” (Cal.

Code Regs., §§ 3490, subds. (a), (c), 3495, subds. (a), (c).) An

inmate is deemed a “nonviolent offender” if he or she does not

meet any of the listed criteria, including that the inmate is

“currently serving a term of incarceration for a ‘violent felony.’ ”

(Id., § 3490, subd. (a)(5); see also id., § 3495, subd. (a)(3).) The

regulations define a “violent felony” as “a crime or enhancement

as defined in subdivision (c) of Section 667.5 of the Penal Code.”

(Id., § 3490, subd. (c); see also id., § 3495, subd. (c).) The

Department now asserts that a “nonviolent felony offense” is

“not simply any offense that is not among the violent felonies

listed” in the Penal Code, but that under the regulations “all

inmates not excluded by [the regulatory] criteria are considered

‘convicted of a nonviolent felony offense’ and eligible for

participation in the nonviolent parole program.”

The regulations do not support the Department’s position.

Although the regulations do not define what constitutes a

“nonviolent felony,” the adoption of a definition for what

constitutes a “violent felony” indicates that offenses not defined

as “violent” would amount to “nonviolent felonies.” This not only

makes intuitive sense, but also is supported by the structure of

the regulations.

The regulations refer to “nonviolent felony offense[s]” (Cal.

Code Regs., § 3490, subd. (a)(6)) and offenses that are “not a

‘violent felony’ ” (id., § 3490, subd. (b)). In defining the term

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“nonviolent offender,” for example, the regulations exclude from

that term an inmate “currently serving a term of incarceration

for a nonviolent felony offense after completing a concurrent

determinate term for a ‘violent felony.’ ” (Id., § 3490, subd.

(a)(6), italics added; see also id., §§ 2449.1, subd. (a)(6), 2449.30,

subd. (a)(5), 3495, subd. (a)(5).) In this context, it is clear that a

“nonviolent felony offense” stands in contrast to a “violent

felony.”

Other portions of the regulations make the same

distinction. They note that the term “nonviolent offender”

“includes an inmate who has completed a determinate or

indeterminate term of incarceration and is currently serving a

determinate term for an in-prison offense that is not a ‘violent

felony.’ ” (Cal. Code Regs., § 3490, subd. (b), italics added; see

also id., §§ 2449.1, subd. (b), 2449.30, subd. (b), 3495, subd. (b).)

Similarly, the regulations direct the Department to review each

inmate’s eligibility for nonviolent offender parole consideration.

(Id., § 3491.) The Department conducts a new eligibility review,

in relevant part, “when an inmate begins serving a determinate

term for an in-prison offense that is not a violent felony.” (Id.,

§ 3491, subd. (d), italics added; see also §§ 3496, subd. (e)(2)(A),

(B).) The regulations, then, effectively define the term

“nonviolent felony offense” not by implicitly prescribing the

scope of those inmates ultimately deemed eligible for parole

consideration, but by contrasting that term with the definition

of “violent felony” as adopted by the Department.

Further, the regulations exclude from nonviolent offender

parole consideration another class of inmates defined by the

regulations as “nonviolent offenders” — inmates eligible for a

parole consideration hearing under Penal Code section 3051 or

section 3055 within one year, or whose initial parole

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consideration hearing under those provisions has already been

scheduled. (Cal. Code Regs., § 3491, subd. (b)(2).) Applying the

Department’s new assertion to that context, the exclusion of

these inmates would reflect the Department’s determination

that they have not been convicted of a “nonviolent felony

offense.” But the assertion does not pass muster; although we

are not considering the validity of this regulatory provision, we

perceive no tenable argument that an exclusion based on the

timing of a parole hearing in turn reflects a determination

regarding the nature of the inmate’s underlying offense as

violent or nonviolent.

Finally, the regulations do not include registerable sex

offenses within the definition of what constitutes a “violent

felony,” nor do the regulations explicitly state that such offenses

are excluded from the definition of a “nonviolent felony.”

Although the Department now asserts the regulations

effectively exclude registerable sex offenses from the category of

“nonviolent felony offenses,” the regulations at issue plainly are

not focused on nonviolent felony offenses — they exclude from

parole consideration an inmate convicted of any registerable sex

offense, felony or misdemeanor. (Cal. Code Regs., §§ 3491, subd.

(b)(3), 3496, subd. (b); see, e.g., Pen. Code, §§ 290, subd. (c)

[listing offenses requiring registration, including possession of

child pornography and indecent exposure], 311.11

[criminalizing possession of child pornography as a

misdemeanor or felony]; 314 [criminalizing indecent exposure as

misdemeanor in some cases].)

In short, the regulations do not exclude inmates with

registerable sex offenses from parole consideration based on a

determination that those inmates have not been convicted of

nonviolent felonies. Rather, the regulations categorize

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otherwise eligible inmates with registerable sex offenses as

“nonviolent offender[s]” who are nonetheless excluded from

parole consideration. (Cal. Code Regs., §§ 3491, subds. (a),

(b)(3), 3496, subds. (a), (b).) The structure of the Department’s

regulations therefore contradicts the Department’s newly

asserted position. The regulations indicate the Department’s

exclusion of registerable sex offenses is not based on an

interpretation of what offenses are considered “nonviolent,” but

is based on a public safety determination that requires the

Department to carve out exceptions to parole consideration

within the class of inmates it has determined to be “nonviolent

offender[s].”12

12

The Department also relies on the final statement of

reasons accompanying its regulations (see ante, fn. 9) for the

assertion that inmates convicted of registerable sex offenses

were excluded from the parole scheme based on a determination

that those felonies were not nonviolent. The final statement of

reasons, however, indicates otherwise. The Department

emphasizes that the final statement of reasons essentially

stated that the Department had determined registerable sex

offenses did not constitute nonviolent felony offenses, pointing

to the language, “these sex offenses demonstrate a sufficient

degree of violence and represent an unreasonable risk to public

safety to require that sex offenders be excluded from nonviolent

parole consideration.” Elsewhere, however, the final statement

of reasons notes that “Public safety requires that sex offenders

be excluded from nonviolent parole consideration.” Nowhere

does the final statement of reasons provide that registerable sex

offenses are not considered “nonviolent felony offenses.”

Further, to the extent the final statement of reasons

supports the Department’s newly raised position, it is

inconsistent with the structure of the regulations the

Department ultimately adopted, as discussed above.

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2. “Convicted”

The Department asserts that the term “convicted”

“ ‘conveys no self-evident meaning,’ ” quoting People v.

Woodhead (1987) 43 Cal.3d 1002, 1008 (Woodhead). In that

case, we considered a Welfare and Institutions Code provision

stating that “ ‘[n]o person convicted of . . . any . . . serious felony

. . . committed when he or she was 18 years of age or older shall

be committed to Youth Authority.’ ” (Id. at p. 1006, quoting

Welf. & Inst. Code, former § 1732.5.) The Youth Authority in

Woodhead had rejected such a commitment for the defendant

because, although his current conviction was not for a serious

felony, he had previously been convicted of a serious felony.

(Woodhead, supra, 43 Cal.3d at p. 1006.) We held this was

improper, and that the term as used in the relevant code section

meant “currently convicted.” (Id. at p. 1010.) In doing so,

however, we noted that the term “convicted” “may have different

meanings in different contexts, or even different meanings

within a single statute.” (Id. at p. 1008, citing People v.

Valentine (1986) 42 Cal.3d 170, 177, fn. 2.) Thus, we looked to

extrinsic sources to determine its meaning in that case.

(Woodhead, supra, 43 Cal.3d at p. 1008.)

The Department does not assert that the term “convicted”

as used in the amended constitutional provisions means “ever

convicted” or otherwise evinces an intent to exclude inmates

from nonviolent offender parole consideration based on a prior

conviction. Nor can we conclude that the term is ambiguous in

this context. As the Court of Appeal explained, the language of

article I, section 32(a)(1) indicates the voters intended that

nonviolent offender parole consideration would be premised on

the inmate’s current conviction alone. The use of the terms

“convicted” and “sentenced,” viewed in context with the

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provision that the inmate would be eligible for parole

consideration “after completing the full term for his or her

primary offense,” make this clear. (Art. I, § 32(a)(1).) Parole

eligibility under the provision is conditioned on an inmate’s

current conviction for a nonviolent felony, the inmate’s being

sentenced to prison, and the inmate’s completion of the “full

term” for the “primary offense.” (Ibid.) None of those terms

indicate any intent to consider prior convictions in determining

nonviolent offender parole eligibility. Nor does the Department

assert that the term “convicted” has any bearing on the

eligibility of inmates currently convicted of nonviolent felony

offenses requiring registration under Penal Code section 290.

3. The language read as a whole

We conclude, then, that article I, section 32(a)(1), although

containing some terms that might be ambiguous in other

respects, is not ambiguous concerning its scope regarding

offenders who were previously convicted of a registerable sex

offense or who are currently convicted of a registerable sex

offense that the Department has itself defined as nonviolent.

Under those regulations, these offenders have been convicted of

a nonviolent felony offense and article I, section 32(a)(1) directs

that they “shall be eligible for parole consideration.”

Still, the Department asserts that the alleged general

ambiguity of those terms allows it to provide exceptions to the

general rule that such offenders “shall be eligible for parole

consideration.” (Art. I, § 32(a)(1).) That is, even when it is not

contested that an inmate is “convicted of a nonviolent felony

offense and sentenced to state prison” (ibid.), the Department

asserts it retains discretion to carve out exclusions barring

otherwise eligible inmates from parole consideration —

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notwithstanding the constitutional language stating that

“[a]ny” such inmates “shall be eligible for parole consideration”

(ibid.).

In support of that position, the Department points to the

directive in article I, section 32(b) specifying that it “shall adopt

regulations in furtherance of these provisions,” and that the

Secretary of the Department “shall certify that these

regulations protect and enhance public safety.” According to the

Department, this language “signaled to voters that the

Department would continue to have an important role in

shaping the implementation of the nonviolent parole

consideration process,” and that “the Proposition’s text is not

itself the whole of the nonviolent parole program, but only the

framework for that program.”

The Department’s position is unpersuasive. Article I,

section 32(b) directs the adoption of regulations “in furtherance

of” the prior provisions of article I, section 32. Merriam-

Webster’s dictionary defines “furtherance” as “the act of

furthering; ADVANCEMENT.” (Merriam-Webster Dict. Online

(2020) <https://www.merriam-webster.com/dictionary/

furtherance> [as of Dec. 17, 2020].) And in its verb form,

“further” is defined as “to help forward; PROMOTE.” (Merriam-

Webster Dict. Online, supra, <https://www.merriam-

webster.com/dictionary/further> [as of Dec. 17, 2020].) The

Department makes no argument, and we perceive none, that

deeming ineligible for parole consideration all offenders within

the class considered here — those with prior registerable

convictions or current convictions for nonviolent offenses

requiring registration — would further the intent of the

constitutional provision declaring inmates convicted of

nonviolent felonies to be eligible for parole consideration.

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The Department’s reliance on the requirement that the

Secretary certify that the regulations “protect and enhance

public safety” is similarly unpersuasive. Indeed, the Secretary

must so certify. (Art. I, § 32(b).) But this requirement does not

authorize the Department to promulgate regulations that are in

conflict with the constitutional provisions. To conclude

otherwise would eviscerate the language of article I, section

32(a)(1) mandating that inmates convicted of nonviolent felony

offenses “shall be eligible” for parole consideration. Indeed,

under the Department’s interpretation the Secretary would be

empowered to curtail parole eligibility based on any criteria so

long as the Secretary asserted those restrictions protected

public safety. Such an approach would be untenable, violating

the directive that regulations must be “ ‘consistent and not in

conflict with’ ” an authorizing constitutional provision. (Morris,

supra, 67 Cal.2d at p. 748, italics omitted.)

This is not to suggest that the Department lacks any

meaningful power to promulgate regulations pursuant to

article I, section 32(b). The Department is empowered to adopt

regulations consistent with the constitutional provisions and

the purpose of article I, section 32. As relevant here, the adopted

regulations must constitute a reasonable interpretation of the

requirement in article I, section 32(a)(1) 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.” The regulations

also must evidence some connection with the mandate to

“protect and enhance public safety.” (Art. I, § 32(b).)

Nor can it be said that the initiative’s overall focus on

public safety is sufficient to grant the Department the broad

authority it claims. A conclusion that the electorate made

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Opinion of the Court by Cantil-Sakauye, C. J.

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. And it has done so; the

regulations direct the Board of Parole Hearings to consider “all

relevant and reliable information” (Cal. Code Regs., § 2449.4,

subd. (b)) to determine whether the inmate poses a “current,

unreasonable risk of violence or a current, unreasonable risk of

significant criminal activity” (id., subd. (c)), including an

inmate’s “documented criminal history” (id., subd. (b)(1)).

As noted earlier, the Department also contends the voters

would have understood from the constitutional provision

directing the Department to adopt regulations in furtherance of

the initiative that the measure provided only a “framework” for

nonviolent offender parole consideration, and that the

Department would “fill up the details” — again,

notwithstanding the constitutional directive that inmates who

fall under article I, section 32(a)(1) “shall be eligible for parole

consideration.”

In support of this proposition, the Department relies on

Jones, supra, 2 Cal.5th 376. There we considered the validity of

a regulation enacted by the Insurance Commissioner. (Id. at

p. 382.) The underlying statute directed the Commissioner to

“ ‘promulgate reasonable rules and regulations . . . as are

necessary to administer’ ” the Unfair Insurance Practices Act.

(Jones, supra, 2 Cal.5th at p. 382, quoting Ins. Code, § 790.10.)

Included in the act was a prohibition on making or

disseminating any “untrue, deceptive, or misleading statements

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with respect to the business of insurance.” (Jones, supra,

2 Cal.5th at pp. 390–391.) The Commissioner’s regulation, in

turn, specified how insurance company estimates concerning

the cost to rebuild or replace a home were calculated and

communicated, and barred insurance companies from

communicating a replacement cost estimate that did not comply

with the regulation. (Id. at p. 385.) The plaintiffs sought

declaratory relief, asserting that the Commissioner had

exceeded the authority given under the act by defining a new

unfair and deceptive insurance practice. (Id. at p. 388.)

We disagreed, noting that the act vested broad power in

the Commissioner to promulgate regulations “necessary to

administer” the act. (Jones, supra, 2 Cal.5th at p. 391.) We held

that the Commissioner’s authority to administer the act

included promulgating rules “applying to a specific kind of

statement prohibited under” the act. (Id. at p. 392.) Thus, we

held it was well within the Commissioner’s power to promulgate

regulations implementing and interpreting the act’s prohibition

on unfair and deceptive insurance practices by identifying a type

of specific unfair and deceptive insurance practice and

developing rules concerning that practice. (Ibid.)

Jones is readily distinguishable from this case. As we

have described above, the Department’s regulations do not

interpret the arguably ambiguous terms of Proposition 57. And,

as the Department initially conceded, its regulations do not

purport to clarify which inmates are “convicted of a nonviolent

felony offense.” (Art. I, § 32(a)(1).) Rather, the Department

asserts a power to create an exception not expressly or impliedly

referred to in the constitutional provisions. Neither our analysis

nor our holding in Jones authorizes such a departure from the

electorate’s command.

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Instead, the framework described by the language of the

constitutional provision establishes a parole consideration

process for “[a]ny person convicted of a nonviolent felony

offense.” (Art. I, § 32(a)(1).) Although the Department asserts

its regulations merely fill up the details of that provision,

carving out wholesale exclusions from an otherwise broad

mandate “is hardly a detail.” (McGhee, supra, 34 Cal.App.5th at

p. 911.) Had the drafters of Proposition 57, and by extension the

voters, intended to exclude inmates from nonviolent offender

parole consideration based on prior or current sex offense

convictions, it would have been a simple matter to say so

explicitly. (See, e.g., Pen. Code, §§ 1170.18, subd. (i) [statutory

provision enacted by Prop. 47 “does not apply to a person who

has one or more prior convictions . . . for an offense requiring

registration pursuant to subdivision (c) of Section 290”];

1170.12, subd. (c)(2)(C)(ii) [statutory provision enacted by Prop.

36 excludes offenders whose “current offense is a felony sex

offense . . . that results in mandatory registration as a sex

offender pursuant to subdivision (c) of Section 290”]; 2933.05,

subd. (e)(3) [statute enacted by Legislature excludes from

custody credit provision “[a]ny person required to register as a

sex offender”].) As it stands, the initiative’s language provides

no indication that the voters intended to allow the Department

to create a wholesale exclusion from parole consideration based

on an inmate’s sex offense convictions when the inmate was

convicted of a nonviolent felony. We decline to create one

ourselves.13

13

Every Court of Appeal to have considered the issue has

agreed with our conclusion that the Department’s regulations

excluding inmates from nonviolent parole consideration based

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F. Consideration of the Ballot Materials

When the constitutional text “is unambiguous and

provides a clear answer, we need go no further.” (See Microsoft

Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750, 758.)

Consideration of the ballot materials, however, only buttresses

our reading of the constitutional text in this case. (See Scher v.

Burke (2017) 3 Cal.5th 136, 149 [legislative history and

historical circumstances may buttress reading of a statute and

are entitled to “some weight,” but are “by no means

dispositive”].)

1. The ballot materials presented to the voters

The ballot materials presented to the voters consisted of

three sections: the official title and summary prepared by the

Attorney General, the analysis of the Legislative Analyst, and

the arguments in favor of and against the proposition (an

argument in favor by the proponents followed by a rebuttal by

the opponents, and an argument against by the opponents

followed by a rebuttal by the proponents).

The official title and summary described the parole

provisions of Proposition 57 as follows: “Allows parole

consideration for persons convicted of nonviolent felonies, upon

completion of prison term for their primary offense as defined.

[¶] . . . Requires Department of Corrections and Rehabilitation

to adopt regulations to implement new parole and sentence

credit provisions and certify they enhance public safety.” (Voter

on prior offenses are contrary to the constitutional language

enacted by Proposition 57. (See In re King (2020) 54 Cal.App.5th

814; In re Chavez (2020) 51 Cal.App.5th 748, 756; In re Schuster

(2019) 42 Cal.App.5th 943, 954–955.)

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Opinion of the Court by Cantil-Sakauye, C. J.

Information Guide, Gen. Elec., supra, Official Title and

Summary, p. 54.)

The analysis by the Legislative Analyst provided a broad

description of the then-existing sentencing and parole

consideration scheme. Notably, the analysis described a parole

process implemented by the Department following the February

2014 federal court order in Coleman/Plata known as nonviolent

second strike offender parole.14 The analysis stated:

“Individuals 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.” (Voter Information Guide, Gen. Elec., supra,

analysis of Prop. 57 by Legis. Analyst, p. 54.)

The analysis then described the changes to the parole

system that would result from the passage of Proposition 57.

It stated that the initiative “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.” (Voter Information

Guide, Gen. Elec., supra, analysis of Prop. 57 by Legis. Analyst,

14

The nonviolent second strike offender parole process

provided parole eligibility for nonviolent, non-sex-registrant,

second strike offenders who had served 50 percent of their

sentence. (See In re Ilasa (2016) 3 Cal.App.5th 489, 495.)

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p. 56.) The analysis noted 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.) It also described the anticipated

fiscal effects of the initiative “[b]ased on recent [Board of Parole

Hearings] experience with parole consideration for certain

nonviolent offenders,” pursuant to the federal court order.

(Ibid.) Finally, the analysis estimated that “the ongoing fiscal

impact of this provision would likely be state savings in the tens

of millions of dollars annually. These savings would be offset

somewhat by additional costs for [the Board of Parole Hearings]

to conduct more parole considerations.” (Ibid.)

Ultimately, the arguments for and against the proposition

were presented to the voters. The proponents first urged that

the initiative would allow “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.) The proponents did

not address whether individuals convicted of nonviolent sex

offenses would be eligible, or whether prior convictions would

impact an inmate’s eligibility.

The opponents’ rebuttal and argument against

Proposition 57 asserted that the initiative would allow for parole

consideration for those convicted of various “nonviolent” sex

offenses, including rape of an unconscious victim and sex

trafficking. (Voter Information Guide, Gen. Elec., supra,

rebuttal to argument in favor of Prop. 57, p. 58.) The opponents

further asserted that inmates would be eligible for nonviolent

offender parole consideration despite having suffered prior

convictions, stating: “Those previously convicted of MURDER,

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RAPE and CHILD MOLESTATION would be eligible for early

parole” (ibid.), that “[Proposition] 57 permits the worst career

criminals to be treated the same as first-time offenders” (id.,

argument against Prop. 57, p. 59, italics omitted), and that

“16,000 dangerous criminals, including those previously

convicted of murder and rape, would be eligible for early release”

(ibid., italics omitted).

The proponents’ rebuttal responded by saying the

opponents “are wrong.” (Voter Information Guide, Gen. Elec.,

supra, rebuttal to argument against Prop. 57, p. 59.) The

rebuttal stated that the initiative would not authorize parole for

violent offenders, “as defined in Penal Code 667.5(c).” (Ibid.)

Finally, the rebuttal stated that the initiative “[d]oes NOT and

will not change the federal court order that excludes sex

offenders, as defined in Penal Code 290, from parole.” (Ibid.)

2. The Department’s argument

The Department contends the ballot materials clearly

indicate the voters’ intent to exclude inmates with any

registerable sex offense conviction (prior or current) from

nonviolent offender parole consideration. The Department

focuses on the back-and-forth in the arguments for and against

the initiative, and primarily emphasizes the statement in the

proponents’ rebuttal that Proposition 57 “[d]oes NOT and will

not change the federal court order that excludes sex offenders,

as defined in Penal Code 290, from parole.” (Voter Information

Guide, Gen. Elec., supra, rebuttal to argument against Prop. 57,

p. 59.) According to the Department, this statement

“unequivocally rebutted” the opponents’ argument that any sex

offender would be eligible for nonviolent offender parole

consideration, regardless of whether the conviction was for a

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current or prior offense. The Department also points to the

proponents’ assertion that the Secretary of the Department

must certify the regulations implementing Proposition 57 “as

protecting public safety.” In light of these statements, the

Department contends, “A reasonable voter thereby understood

that the Secretary would ensure that the adopted regulations

would exclude sex offenders from parole, just as the proponents

indicated.”

The Department further points to the Legislative

Analyst’s discussion of the federal court order in the ballot

materials. As noted, the analysis informed the voters that

“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” and identified that

parole scheme as “one of several measures put in place by a

federal court to reduce the state’s prison population.” (Voter

Information Guide, Gen. Elec., supra, analysis of Prop. 57 by

Legis. Analyst, p. 54.) Based on these “repeated references to

the federal court order,” the Department asserts, the voters

should be understood to have approved the initiative with the

intent that individuals convicted of a registerable sex offense

would be excluded from nonviolent offender parole

consideration.

Finally, the Department emphasizes that the voters were

considering arguments made in favor of the initiative by then-

Governor Edmund G. Brown Jr., who was listed on the ballot

materials as an author of the arguments in favor of the initiative

and the rebuttal to the arguments against the initiative. The

Department asserts that it “seems reasonable that voters would

give special weight to the arguments and assurances of

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government experts — here, of the Governor of the State of

California.”

3. Analysis

The question is whether the ballot materials indicate that

voters intended to exclude certain inmates convicted of

nonviolent felonies from nonviolent offender parole

consideration — or intended to allow the Department to craft

regulations that would exclude such inmates — including those

previously or currently convicted of sex offenses requiring

registration pursuant to Penal Code section 290. Considering

the ballot materials as a whole, the language of the

constitutional provision, and the ambiguous nature of the ballot

arguments, we cannot conclude the voters intended to base

eligibility for nonviolent offender parole consideration on any

prior convictions an inmate may have suffered, or any current

conviction for a nonviolent offense requiring registration as a

sex offender.

The Department’s focus on a single line in the proponents’

rebuttal argument overlooks the context of the entire ballot

materials provided to the voters. The 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, as the Department asserts, 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. (See People

v. Valencia (2017) 3 Cal.5th 347, 365–366.)

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Even the arguments in the ballot materials are not as

helpful to the Department’s position as it contends. The

opponents of the initiative pointed out that “career criminals”

would be treated the same as first-time offenders under the

initiative, and that inmates “previously convicted of murder and

rape” would be eligible for early release. (Voter Information

Guide, Gen. Elec., supra, argument against Prop. 57, p. 59,

italics omitted.) The opponents’ argument was thus clear: An

inmate’s prior convictions, regardless of their number or nature,

would not be a disqualifying factor for nonviolent parole

consideration purposes. That the voters approved Proposition

57 “despite these warnings” supports a conclusion that the

voters intended to provide broad parole consideration for

nonviolent offenders without regard for prior convictions.

(Robert L. v. Superior Court (2003) 30 Cal.4th 894, 907 (Robert

L.).)

It is true that the proponents stated broadly that the

opponents’ arguments were “wrong.” (Voter Information Guide,

Gen. Elec., supra, rebuttal to argument against Prop. 57, p. 59.)

But this cannot be taken as a blanket denial of each argument

raised by the opponents, and the Department does not claim it

is. Indeed, there are portions of the opponents’ argument that

the Department must concede were correct, including the

characterization that individuals convicted of and currently

serving sentences for nonviolent offenses (as defined in Pen.

Code, § 667.5, subd. (c)) like assault with a deadly weapon would

be eligible for nonviolent offender parole consideration, or that

an individual with a prior violent felony conviction for murder

would not be excluded from nonviolent offender parole

consideration. The proponents’ failure to respond directly to the

opponents’ clear assertion that individuals with prior sex

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Opinion of the Court by Cantil-Sakauye, C. J.

offenses or extensive criminal histories would be eligible for

parole consideration under the initiative is another indication

that the voters did not intend to exclude such inmates from the

nonviolent offender parole process. (See Robert L., supra,

30 Cal.4th at pp. 906–907.)

The Department’s position is somewhat more persuasive

with regard to the exclusion for inmates currently convicted of

nonviolent registerable sex offenses. Plainly, there is tension

between the language of the constitutional provision directing

parole consideration for all inmates convicted of nonviolent

felonies and the assertion in the ballot argument that “sex

offenders” would be excluded from parole consideration. (Voter

Information Guide, Gen. Elec., supra, rebuttal to argument

against Prop. 57, p. 59.) And there is a clear conflict between

the arguments from the proponents (asserting all sex offenders

would be excluded) and the opponents (asserting that some sex

offenders would not be excluded). But we do not resolve these

tensions by relying solely on the ballot materials. Rather, we

presume that the voters relied on the text of the measure. (See

Delaney v. Superior Court (1990) 50 Cal.3d 785, 803; see also

Amwest Surety v. Wilson (1995) 10 Cal.4th 1243, 1260–1261,

citing Wright v. Jordan (1923) 192 Cal. 704, 713.)

The voters were explicitly warned in the margins of the

voter guide that “Arguments printed on this page are the

opinions of the authors, and have not been checked for accuracy

by any official agency.” (Voter Information Guide, Gen. Elec.,

supra, pp. 58–59.) Even assuming the ballot materials conveyed

to the voters that any conviction for a registerable sex offense,

current or prior, would exclude an inmate from parole

consideration under the proposed initiative, this interpretation

remains at odds with the language of the constitutional

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In re GADLIN

Opinion of the Court by Cantil-Sakauye, C. J.

provision before the voters, as we have already discussed. And

nothing in the remaining ballot materials suggested that sex

offender registration for a nonviolent felony (or for a

misdemeanor) would exclude an inmate from parole

consideration. We cannot say that a reasonable voter, after

reviewing the ballot materials and the language of the proposed

constitutional provision, would have believed that a single line

reflecting the proponents’ disputed opinion would overcome the

language of the constitutional provision.

The Department’s view is that because the then-existing

nonviolent second strike offender parole process excluded

inmates with a prior or current sex offense requiring

registration, the voters would have understood that Proposition

57 would exclude those offenders as well. But there is no

indication the voters would have understood that to be the case.

As the Department acknowledges, the federal court order

referenced in the ballot materials did not exclude inmates with

sex offenses from parole consideration. Rather, it was the

Department’s implementation of the nonviolent second strike

offender parole process that carved out that exception.

The Department contends that the other references in the

ballot materials to the federal court order would have alerted

voters that Proposition 57 would not alter the nonviolent second

strike offender parole process established under that order.

This argument, too, falls short. The only other reference to the

federal court order in the ballot materials is contained in the

analysis of the Legislative Analyst. That passage notes that

under then-existing law, certain inmates sentenced to

determinate terms for nonviolent offenses were eligible for

parole, a measure “put in place by a federal court to reduce the

state’s prison population.” (Voter Information Guide, Gen.

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In re GADLIN

Opinion of the Court by Cantil-Sakauye, C. J.

Elec., supra, analysis of Prop. 57 by Legis. Analyst, p. 54.) Even

if it were clear to the voters that this referred to the same federal

court order mentioned in the proponents’ rebuttal argument, it

does not assert that the then-existing parole scheme excluded

inmates based on prior or current convictions for sex offenses.

The Department’s assertion, then, is that the voters would

have read the single oblique reference to the court order in the

proponents’ rebuttal and would have been familiar not only with

that order but also with the administrative documents

implementing that court order. Those implementing

documents, however, were not before the voters. An assumption

that voters understood the nuances of an administrative

program the ballot materials referenced only vaguely and did

not actually present would stretch beyond the breaking point

our axiom that voters are generally aware of existing law. (See

Robert L., supra, 30 Cal.4th at p. 905 [“to the extent the Court

of Appeal, in ascertaining the voters’ intent, relied on evidence

of the drafters’ intent that was not presented to the voters, we

decline to follow it”]). “[A] possible inference based on the ballot

argument is an insufficient basis on which to ignore the

unrestricted and unambiguous language of the measure itself.

It would be a strained approach to constitutional analysis if we

were to give more weight to a possible inference in an extrinsic

source (a ballot argument) than to a clear statement in the

Constitution itself.” (Delaney v. Superior Court, supra,

50 Cal.3d at p. 803.)

Our analysis of the voters’ intent does not change merely

because the proponents of the initiative here included the

Governor. The Department cites no authority for the

proposition that the voters would credit the views of the

Governor over those of the opponents, and we have found none.

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In re GADLIN

Opinion of the Court by Cantil-Sakauye, C. J.

On the contrary, our case law examining ballot materials to

discern the voters’ intent has considered arguments proffered by

both opponents and proponents, and without regard for whether

one party was an elected official. (See, e.g., Robert L., supra,

30 Cal.4th at pp. 906–907 [giving weight to opponents’

arguments].) In any event, as explained earlier, when an

argument for or against a ballot measure conflicts with the

measure’s plain text, the text must govern the measure’s

interpretation.

The Department reprises yet again its arguments that the

voters would have understood from the constitutional provision

directing the Department to adopt regulations in furtherance of

the initiative that the initiative provided only a “framework” for

nonviolent offender parole consideration, that the Department

would fill up the details, and that the focus on public safety

considerations in the constitutional language and ballot

materials would give the Department broad authority to

determine what inmates would be eligible for parole

consideration under the initiative. These assertions are no more

persuasive in the context of the ballot materials than they are

in the context of reviewing the language of the constitutional

provisions at issue. Without language in the constitutional

provision that expressed or strongly implied the authority of the

Department to carry out such exclusions, we cannot say the

voters intended such exclusions. (People v. Valencia, supra,

3 Cal.5th at p. 364.)

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Opinion of the Court by Cantil-Sakauye, C. J.

III. CONCLUSION

The constitutional provision approved by the voters does

not require the release of any inmate. Whether an inmate is

suitable for parole depends in part on that individual’s prior

criminal history and the nature of his or her current offense.

Thus, the Board of Parole Hearings may consider an inmate’s

prior or current sex offense convictions when evaluating the

inmate’s suitability for parole. (Cal. Code Regs., §§ 2449.4,

subd. (b)(1), 2449.5.) The Department’s regulations, however,

treat all individuals with convictions for registerable sex

offenses as categorically ineligible for parole, even when the

Department’s own regulations classify those inmates as having

been convicted of a nonviolent felony. In doing so, the

Department denies even the mere possibility of parole to an

entire category of “person[s] convicted of a nonviolent felony

offense.” (Art. I, § 32(a)(1).) This precondition to parole

consideration is inconsistent with the Constitution as amended

by Proposition 57.

We therefore hold that nonviolent offender parole

eligibility must be based on an inmate’s current conviction. We

further hold that an inmate may not be excluded from

nonviolent offender parole consideration based on a current

conviction for a registerable felony offense that the

Department’s regulations have defined as nonviolent. The

regulatory provisions at issue here are inconsistent with the

language of article I, section 32(a)(1) and cannot stand. We

direct the Department to treat as void and repeal California

Code of Regulations, section 3491, subdivision (b)(3), and section

3496, subdivision (b), and to make any further conforming

changes necessary to render the regulations consistent with

article I, section 32(a)(1) and this opinion.

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In re GADLIN

Opinion of the Court by Cantil-Sakauye, C. J.

The judgment of the Court of Appeal is affirmed.

CANTIL-SAKAUYE, C. J.

We Concur:

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

HILL, J.*

________________________

*

Presiding Justice of the Court of Appeal, Fifth Appellate

District, assigned by the Chief Justice pursuant to article VI,

section 6 of the California Constitution.

41

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Gadlin

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 31 Cal.App.5th 784

Rehearing Granted

__________________________________________________________________________________

Opinion No. S254599

Date Filed: December 28, 2020

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: William C. Ryan

__________________________________________________________________________________

Counsel:

Michael Satris; Law Office of Janice M. Bellucci and Janice M. Bellucci, under appointments by the

Supreme Court, for Petitioner Gregory Gadlin.

Law Office of Janice M. Bellucci and Janice M. Bellucci for Alliance for Constitutional Sex Offense Laws,

Inc., as Amicus Curiae on behalf of Petitioner Gregory Gadlin.

Rosen Bien Galvan & Grunfeld and Ernest Galvan for Nineteen Social Science and Law Scholars as Amici

Curiae on behalf of Petitioner Gregory Gadlin.

Xavier Becerra, Attorney General, James Root and Lance E. Winters, Chief Assistant Attorneys General,

Janill L. Richards, Principal Deputy Solicitor General, Phillip J. Lindsay, Assistant Attorney General, Julie

A. Malone, Charles Chung and Amanda J. Murray, Deputy Attorneys General, for Respondent The People.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Charles Chung

Deputy Attorney General

300 South Spring St., Suite 1702

Los Angeles, CA 90013

(213) 269-6026

Janice M. Bellucci

Law Office of Janice M. Bellucci

1215 K St., 17th Floor

Sacramento, CA 95814

(805) 896-7854