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Name: In re McGhee
Case #: A153721
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 04/29/2019

CDCR’s screening and referral process for parole consideration by the Board of Parole Hearings, which excludes otherwise eligible inmates based on their in-prison conduct, is inconsistent with the California Constitution. Proposition 57 amended the California Constitution to provide 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.” (Art. I, § 32, subd. (a)(1).) In carrying out its duty under Proposition 57 to adopt regulations, CDCR promulgated California Code of Regulations, title 15, section 3492, which provides that eligible inmates will first be screened by CDCR and referred to the Board for parole consideration only if the inmates satisfy eight criteria, all of which require the absence of serious or multiple disciplinary violations while in prison. In July 2017, McGhee was advised that, although he was “eligible,” he would not be referred to the Board for parole consideration because he did not satisfy two of the criteria in section 3492. After filing administrative appeals in prison, McGhee filed a habeas petition. Held: Petition granted. 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. After analyzing section 32, subdivision (a)(1), and statutes and regulations addressing “parole consideration,” the Court of Appeal concluded that the “reference to parole consideration in the constitutional amendment can only be understood to mean parole consideration by the board.” The voter materials for Proposition 57 also support this interpretation. CDCR’s newly created screening and referral process, by which CDCR screens out otherwise eligible inmates from parole consideration by the board, is not consistent with, or part of, the “parole consideration” mandated by section 32, subdivision (a)(1). CDCR was directed to repeal the challenged portions of section 3492.

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