Tuesday, January 29, 2019
Court of Appeal:
By a MetNews Staff Writer
The Court of Appeal for this district yesterday declared invalid a regulation promulgated by the California Department of Corrections and Rehabilitation which categorically bars inmates who were previously convicted of crimes requiring registration as a sex offender from seeking early parole under a recently-enacted constitutional provision.
The majority opinion, written by Justice Dorothy C. Kim of Div. Five, only invalidates the department’s rule that registered sex offenders currently serving time for a conviction not requiring registration are prohibited from seeking early parole under a law created in 2016 by Proposition 57. It leaves open the question of whether those currently serving a sentence requiring sex offender registration are similarly barred, though Justice Lamar W. Baker wrote a separate concurrence indicating he would reach that question and answer it in the affirmative.
Proposition 57 added to the state Constitution article 1, §32(a)(1), which provides:
“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.”
Sec. 32(b), in turn, directs the department to “adopt regulations in furtherance of these provisions,” which the secretary of the department is to certify “protect and enhance public safety.”
Petitioner in Case
The opinion comes in response to a petition for a writ of habeas corpus filed by Gregory Gadlin, a registered sex offender since his convictions for forcible rape and forcible child molestation in the 1980s. Gadlin had already served his time for those two convictions when he was sentenced to 25 years to life for assault with a deadly weapon (which is not a violent felony under the applicable definition in Penal Code §667.5(c)), plus enhancements under the state’s three strikes law.
After his initial habeas corpus petition was denied by Los Angeles Superior Court Judge William C. Ryan and while Div. Five was considering his current petition, the department—responding to the division’s 2018 holding In re Edwards invalidating its regulation prohibiting §32(a)(1) parole for non-violent three strikes offenders—changed its regulations, leaving for the court’s consideration only Gadlin’s challenge to the registered sex offender rule.
The department noted, in its statement of reasons accompanying its adopted regulations, that “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.”
Plain Language Interpreted
Addressing §32(a)(1), Kim said:
“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’s current offense triggering his Three Strikes sentence is assault with a deadly weapon (§ 245, subd. (a)(1)), which does not require registration as a sex offender. CDCR argues that its application of the regulations to exclude inmates who have sustained prior registrable convictions is consistent with its determination that registrable sex offenses involve a sufficient degree of violence and registrable inmates represent an unreasonable risk to public safety. These policy considerations, however, do not trump the plain text of section 32(a)(1).”
Baker’s Broader View
The concurring justice said:
“Almost always, the wise choice is to refrain from saying more than necessary to dispose of an appeal. But under the unusual circumstances here where the parties have briefed the issue in broader terms—effectively, whether the regulatory prohibition of early parole consideration for sex offender registrants is facially consistent with the pertinent provisions of Proposition 57, the Public Safety and Rehabilitation Act of 2016—and where all concerned would benefit from knowing sooner rather than later what regulatory approaches are permissible, I believe there is good reason to say a bit more than strictly necessary….
“In my view, Proposition 57 authorizes the Secretary of the CDCR to adopt rules that exclude from early parole consideration those inmates who are currently in custody as a result of an offense that would require registration as a sex offender. Succinctly put, I believe the Secretary has that authority because he acts pursuant to an express grant of authority to promulgate regulations to implement an initiative with an undefined term, because a clear textual indication that Proposition 57 was intended to bar regulatory exclusion of current-offense sex offenders is absent…, and because the ballot materials for Proposition 57—including a ballot argument signed by the then-sitting Governor that addresses whether early parole consideration for nonviolent felony offenses extends to sex offenders—illuminate an ambiguity about the intended scope of the initiative and illustrate why CDCR’s regulatory approach cannot be deemed inconsistent with the voters’ intent.”
The case is In re Gadlin, B289852.
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