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

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 [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 .

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

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

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

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

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

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) [as of Dec. 17, 2020].) And in its verb form,
“further” is defined as “to help forward; PROMOTE.” (Merriam-
Webster Dict. Online, supra, [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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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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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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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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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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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