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.
1

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.
In re GADLIN 

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

2

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. 
In re GADLIN 

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

3

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.
In re GADLIN 

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

4

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 
In re GADLIN 

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

5

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).)
In re GADLIN 

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

6

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 
In re GADLIN 

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

7

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 <https://elections.cdn.sos.ca.gov/

sov/2016-general/sov/06-sov-summary.pdf> [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.
In re GADLIN 

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

8

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 <http://courts.ca.gov/

38324.htm>.
In re GADLIN 

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

9

“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).) 
In re GADLIN 

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

10

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.
In re GADLIN 

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

11

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.
In re GADLIN 

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

12

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.)
In re GADLIN 

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

13

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.) 
In re GADLIN 

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

14

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

15

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 
In re GADLIN 

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

16

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

17

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

18

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 
In re GADLIN 

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

19

“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 
In re GADLIN 

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

20

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 
In re GADLIN 

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

21

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. 
In re GADLIN 

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

22

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 
In re GADLIN 

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

23

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

24

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. MerriamWebster’s dictionary defines “furtherance” as “the act of 

furthering; ADVANCEMENT.” (Merriam-Webster Dict. Online

(2020) <https://www.merriam-webster.com/dictionary/

furtherance> [as of Dec. 17, 2020].) And in its verb form,

“further” is defined as “to help forward; PROMOTE.” (MerriamWebster Dict. Online, supra, <https://www.merriamwebster.com/dictionary/further> [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. 
In re GADLIN 

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

25

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 
In re GADLIN 

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

26

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 
In re GADLIN 

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

27

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. 
In re GADLIN 

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

28

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

29

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

30

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

31

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

32

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

33

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

34

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.) 
In re GADLIN 

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

35

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 
In re GADLIN 

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

36

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 
In re GADLIN 

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

37

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. 
In re GADLIN 

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

38

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. 
In re GADLIN 

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

39

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.) 
In re GADLIN 

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

40

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. 
In re GADLIN 

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

41

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.
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