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Prop. 57–CDCR Excluding Sex Offenders From Early Parole Consideration

Case Name: In re Gadlin (2020) 10 Cal.5th 915
Case #: S254599
Last Updated: December 28, 2020

Under Proposition 57 (Cal. Const., art. I, § 32), may the California Department of Corrections and Rehabilitation categorically exclude from early parole consideration all prisoners who have been previously convicted of a sex offense requiring registration under Penal Code section 290?

On 10/8/2020, the court directed the parties to file supplemental briefs addressing the following issue: Did the California Department of Corrections and Rehabilitation exceed its authority under article I, section 32 of the California Constitution by promulgating regulations excluding from nonviolent offender parole consideration inmates currently convicted of nonviolent offenses requiring registration pursuant to Penal Code section 290?

Opinion By: Chief Justice Cantil-Sakauye (unanimous decision)
Held: CDCR regulation implementing Proposition 57 improperly excludes from nonviolent offender parole consideration defendants who are currently convicted of a nonviolent offense, but who must register as sex offenders. Gadlin was convicted of assault with a deadly weapon and sentenced as a third strike offender due to two prior registrable sex offenses. In 2016, voters approved Proposition 57 (adding Calif. Const., art. I, § 32) which expanded parole consideration to all state prisoners convicted of a nonviolent felony offense by rendering them eligible for parole after completion of the full term for the primary offense (i.e., the longest term of imprisonment imposed for any offense, excluding enhancements, consecutive sentences, and alternative sentences). It directed CDCR to adopt regulations to implement those provisions. The regulations categorically excluded from early parole consideration state prisoners required to register as sex offenders, even when their current offense was classified as nonviolent. Gadlin’s habeas petition filed in superior court seeking early parole consideration was denied. He refiled the petition in the Court of Appeal. It was granted. The Attorney General’s review petition was granted. Held: Affirmed. In evaluating the validity of a regulation implementing a Constitutional amendment the court determines whether it is “consistent and not in conflict with” the provision that authorizes it and whether the regulation is reasonably necessary to effectuate the purpose of the law. CDCR’s regulation improperly treats all individuals with convictions for registrable sex offenses as ineligible for early parole, even though its own regulations classify them as having been convicted of a nonviolent felony (Pen. Code, § 667.5, subd. (c)), ostensibly to protect public safety. This is inconsistent with the Constitution as amended by Proposition 57, under which nonviolent offender parole eligibility must be based on an inmate’s current conviction. Further, an inmate may not be excluded from nonviolent offender parole consideration based on a conviction for a registrable felony offense that the CDCR’s regulations have defined as nonviolent. (In re Gadlin (2020) 10 Cal.5th 915 (S254599).) This case was decided on 12/28/2020.

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