We are happy to announce that we have resumed normal office hours from 9:30 AM to 5:30 PM Monday through Thursday, to assist you with your essential legal matters and needs. For the short term we will remain closed on Fridays. We encourage clients to try and communicate with us by phone and email. If you do need to come into the office, we require face masks and we are maintaining social distancing.

California Supreme Court: CDCR must make nonviolent offender parole consideration available to inmates convicted of  registerable sex offenses

In re Gadlin Supreme Court of California. December 28, 2020 — P.3d —- 2020 WL 7690154

 Proposition 57- nonviolent felony parole consideration

In 2009, a three-judge federal district court panel ordered the CDCR “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, 131 S.Ct. 1910, 179 L.Ed.2d 969.) 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). In February 2014 the federal district court ordered the Department to implement additional measures.

In November 2016 the electorate approved Proposition 57. 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).)

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 Regs., tit. 15, § 3491, subd. (b)(3) [governing determinately sentenced offenders]; see also id., § 3496, subd. (b) [governing indeterminately sentenced offenders].)

The Supreme Court 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. 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.

Holding: The 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).)

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. 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.

The Underlying Habeas Corpus Petitions and the Court of Appeal Opinion

The petition 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.

Petitioner sought habeas corpus relief in the Court of Appeal.

The appellate court held that the amended regulations improperly excluded petitioner from nonviolent offender parole consideration based on his two prior sex offense convictions. 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.” 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) ].”  The court declined to express any opinion 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.

Categorical exclusion of non-violent sexual offenders from parole exclusion violates the Constitution

The constitutional provision approved by the voters does not require the release of any inmate. 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 make 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. 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.  Nonviolent offender parole eligibility must be based on an inmate’s current conviction. The Court held 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 Court directed 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.

The judgment of the Court of Appeal is affirmed.

Contact Information