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Filed 10/5/20 In re Turner CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

In re MICHAEL R. TURNER,

On Habeas Corpus.

C090868

(Super. Ct. No. STK-CRFMISC-2019-10100)

Petitioner Michael R. Turner contests regulations promulgated by the California 

Department of Corrections and Rehabilitation (Department) excluding him from early 

parole consideration for inmates convicted of a nonviolent offense as adopted by the 

voters through Proposition 57 in 2016. The Attorney General contends Proposition 57 

authorized the Department to exclude petitioner because he was previously convicted of a 

crime requiring him to register as a sex offender. The Department acknowledges the 

decisions in Alliance for Constitutional Sex Offense Laws v. Department of Corrections 

and Rehabilitation et. al. (2020) 45 Cal.App.5th 225, review granted May 27, 2020, 

S261362 (Alliance) and In re Gadlin (2019) 31 Cal.App.5th 784, review granted May 15, 

2019, S254599 (Gadlin) rejecting this precise claim, but makes the argument to preserve

the issue while the California Supreme Court considers review. The Supreme Court,
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which has granted review in Alliance and Gadlin and several other cases, will ultimately 

provide guidance on this question; however, pending further direction from the court, we 

continue to adhere to the views we expressed in Alliance. Again, we reject the Attorney 

General’s arguments and agree with petitioner.

BACKGROUND

Proposition 57 and Early Parole Consideration

In November 2016, California voters passed Proposition 57, The Public Safety and 

Rehabilitation Act of 2016. The initiative added section 32 to article I of the California 

Constitution which, among other things, provides for early parole consideration for 

inmates serving prison sentences for nonviolent offenses.1 The added section 

(Amendment) reads in part: “(a) The following provisions are hereby 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: [¶]

(1) Parole Consideration: Any person convicted of a nonviolent felony offense and 

sentenced to state prison shall be eligible for parole consideration after completing the 

full term for his or her primary offense. [¶] (A) For purposes of this section only, 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. [¶] . . . [¶] (b) The Department of Corrections and Rehabilitation 

shall adopt regulations in furtherance of these provisions, and the Secretary of the 

Department of Corrections and Rehabilitation shall certify that these regulations protect 

and enhance public safety.”

Section 2 of Proposition 57 states the voters’ purposes, as relevant here, in 

approving the measure: “1. Protect and enhance public safety. [¶] 2. Save money by 

reducing wasteful spending on prisons. [¶] 3. Prevent federal courts from 

1 Unspecified references to articles are to the California Constitution.
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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 proposed law, § 2, p. 141.)

The Department adopted emergency regulations to implement the Amendment. 

(See Cal. Code Regs., tit. 15, former §§ 3490, 3491, Register 2017, No. 15 (Apr. 13, 

2017).)2 As relevant here, the regulations defined a “nonviolent offender”3 as an inmate 

who is not (1) condemned, incarcerated for a term of life without the possibility of parole, 

or incarcerated for a term of life with the possibility of parole; (2) serving a term of 

incarceration for a violent felony within the meaning of Penal Code section 667.5, 

subdivision (c); or (3) “[c]onvicted of a sexual offense that requires registration as a sex 

offender under Penal Code section 290.” (Tit. 15, former §§ 3490, subds. (a) & (c), 

2449.1, subds. (a) & (c), Register 2017, No. 15 (Apr. 13, 2017).)

As required by the Amendment, the Secretary of the Department (Secretary) 

certified that the regulations as adopted “protect and enhance public safety for all 

Californians.” In an initial statement of reasons accompanying the regulations, the 

Department provided its justification for excluding sex offenders from the nonviolent 

parole consideration process: “[T]he crimes listed in [Penal Code section 290] reflect the 

determination of the people of the State of California (through initiatives and the 

legislature) that, ‘Sex offenders pose a potentially high risk of committing further sex 

offenses after release from incarceration or commitment, and the protection of the public 

2 Further undesignated regulation references are to Title 15 of the California Code 

of Regulations (Title 15).

3

In In re Mohammad (2019) 42 Cal.App.5th 719 at pages 726 to 727, review 

granted February 19, 2020, S259999, the appellate court concluded the Department’s 

regulations contradicted the plain language of the Amendment by defining the universe of 

limited inmates to “nonviolent offenders” rather than those convicted of “a nonviolent 

felony offense.” That issue is not before us here.
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from reoffending by these offenders is a paramount public interest.’ ” (Cal. Dept. of 

Corrections, Initial Statement of Reasons NCR 17-05 (July 14, 2017) p. 15.)

On May 1, 2018, the Department adopted, in final form, what it had previously 

considered interim regulations on Proposition 57. The adopted regulations defined a 

“determinately-sentenced nonviolent offender” as an inmate who is not: (1) condemned 

to death, (2) currently incarcerated for a term of life without the possibility of parole, 

(3) currently incarcerated for a term of life with the possibility of parole for a “violent 

felony,”4(4) currently serving a determinate term prior to beginning a term of life with 

the possibility of parole for an in-prison offense that is a “violent felony,” (5) currently 

serving a term of incarceration for a “violent felony,” or (6) currently serving a term of 

incarceration for a nonviolent felony offense after completing a concurrent determinate 

term for a “violent felony.” (Tit. 15, former § 3490, subd. (a), Register 2018, No. 18 

(May 1, 2018).)

As relevant here, the regulations stated a nonviolent offender as defined in former 

Title 15, section 3490, subdivision (a) shall be eligible for early parole consideration as 

provided for by the Amendment except, inter alia, inmates who are “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.” 

(Tit. 15, former § 3491, subds. (a), (b)(3).) The Secretary, in his final statement of 

reasons, reiterated the reasons stated in the initial statement of reasons for excluding 

inmates who must register as sex offenders from early parole consideration. (Cal. Dept. 

of Corrections, Credit Earning and Parole Consideration, Final Statement of Reasons 

(April 30, 2018) p. 20.) The Secretary also listed multiple crimes not considered serious 

or violent felonies but that “demonstrate a sufficient degree of violence and represent an 

4 Title 15, section 3490, subdivision (c) defined a “violent felony” as “a crime or 

enhancement as defined in subdivision (c) of section 667.5 of the Penal Code.”
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unreasonable risk to public safety to require that sex offenders be excluded from 

nonviolent parole consideration.” (Ibid.)

Habeas Corpus Proceedings

In March 2019, petitioner filed a petition for writ of habeas corpus in the San 

Joaquin County Superior Court challenging his exclusion from consideration for parole 

under Proposition 57. Petitioner is currently serving an eight-year determinate sentence 

in state prison: four years—doubled to eight for defendant’s prior strike—for meeting a 

minor to engage in lewd and lascivious behavior (Pen. Code, § 288.4), and a stayed term 

of eight months on a conviction for contact with a minor for a sex offense (Pen. Code, 

§ 228.3). Petitioner’s convictions require him to register as a sex offender for life. (Pen. 

Code, § 290, subds. (b) & (c).) The regulations require the Department to complete an 

eligibility review within 60 calendar days of an inmate’s admission to the Department. 

(Tit. 15, § 3491, subd. (c).) This determination also requires consideration of whether the 

inmate is eligible for parole consideration under subdivisions (a) and (b). (Id., subd. 

(e)(1).) Title 15, section 3491, subdivision (b)(3) excludes inmates convicted of sexual 

offenses that requires registration from eligibility for parole consideration.

The Department admits the regulations exclude petitioner from early parole 

consideration due to his conviction for a registerable sex offense. The Department also 

admits because petitioner is “challenging a regulation approved by the Office of 

Administrative Law, which cannot be invalidated based on administrative appeal, 

exhaustion of administrative remedies is not required . . . .”

In November 2019, the superior court denied defendant’s petition on the grounds 

defendant had not pled and proven the threshold matter that he had completed the full 

term for his primary offense. In November 2019, petitioner filed an original petition for 

writ of habeas corpus in this court raising the same claims he raised in superior court. In 

February 2020, we issued an order to show cause returnable in the superior court.
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In June 2020, the Attorney General requested that these proceedings be held in 

abeyance pending our Supreme Court’s decision in Alliance, supra, 45 Cal.App.5th 225,

review granted, Gadlin, supra, 31 Cal.App.5th 784, review granted, and In re 

Mohammad, supra, 42 Cal.App.5th 719, review granted. We denied that motion. In June 

2020, petitioner filed a cross-motion requesting calendar preference. We granted that 

motion.

DISCUSSION

I

Article I, Section 32, Subdivision (a)(1)

The Attorney General contends article I, section 32 authorizes the Department to 

promulgate regulations excluding from early parole consideration inmates previously 

convicted of sex offenses requiring sex offender registration. The Attorney General

acknowledges the existence of the decisions in Gadlin, supra, 31 Cal.App.5th at pages 

787 to 790, review granted, and Alliance, supra, 45 Cal.App.5th 225, review granted, but 

makes no argument those cases are wrongly decided or that we should disagree with 

those cases and uphold the Department’s regulation, and offers no basis for 

distinguishing those cases. We continue to agree with the reasoning of Alliance and 

Gadlin.

A. Standard of Review

Gadlin set forth the scope of our review of an agency’s regulations: “ ‘ “In order 

for a regulation to be valid, it must be (1) consistent with and not in conflict with the 

enabling statute and (2) reasonably necessary to effectuate the purpose of the statute.

[Citation.]” [Citations.] Therefore, “the rulemaking authority of the agency is 

circumscribed by the substantive provisions of the law governing the agency.” [Citation.] 

“ ‘The task of the reviewing court in such a case is to decide whether the [agency] 

reasonably interpreted [its] legislative mandate. . . . Such a limited scope of review 

constitutes no judicial interference with the administrative discretion in that aspect of the 
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rulemaking function which requires a high degree of technical skill and expertise. . . . 

[T]here is no agency discretion to promulgate a regulation which is inconsistent with the 

governing statute. . . . Whatever the force of administrative construction . . . final 

responsibility for the interpretation of the law rests with the courts. . . . Administrative 

regulations that alter or amend the statute or enlarge or impair its scope are void . . . .’ 

[Citation.]” [Citation.]’ [Citation.]” (Gadlin, supra, 31 Cal.App.5th at pp. 788-789, rev.

granted.)

“ ‘When construing constitutional provisions and statutes, including those enacted 

through voter initiative, “[o]ur primary concern is giving effect to the intended purpose of 

the provisions at issue. [Citation.] In doing so, we first analyze provisions’ text in their 

relevant context, which is typically the best and most reliable indicator of purpose. 

[Citations.] We start by ascribing to words their ordinary meaning, while taking account 

of related provisions and the structure of the relevant statutory and constitutional scheme. 

[Citations.] If the provisions’ intended purpose nonetheless remains opaque, we may 

consider extrinsic sources, such as an initiative’s ballot materials. [Citation.] Moreover, 

when construing initiatives, we generally presume electors are aware of existing law. 

[Citation.] Finally, we apply independent judgment when construing constitutional and 

statutory provisions. [Citation.]” [Citation.]’ [Citation.]” (Gadlin, supra, 

31 Cal.App.5th at p. 789, rev. granted.)

B. Gadlin, Schuster, and Alliance

Article I, section 32, subdivision (a)(1) provides: “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.” (Italics 

added.) The court in Gadlin observed: “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 
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history.” (Gadlin, supra, 31 Cal.App.5th at p. 789, rev. granted.) The court 

acknowledged the Department’s argument that sex offenses involve a sufficient degree of 

violence and that registerable inmates present an unreasonable risk to public safety. 

(Ibid.) But, the court noted, those policy considerations do not trump the plain language 

of article I, section 32, subdivision (a)(1). (Gadlin, at p. 789.) Thus, the court concluded 

the plain language of article I, section 32, subdivision (a)(1) precluded the Department 

from excluding the petitioner from early parole consideration based on his prior sex 

offense. (Gadlin, at pp. 789, 790.)

In In re Schuster (2019) 42 Cal.App.5th 943, review granted February 19, 2020, 

S260024, we agreed with the analysis in Gadlin. (Schuster, at p. 955.) We observed, 

“The Amendment makes no mention of prior convictions or an inmate’s status as a [Penal 

Code] section 290 sex registrant.” (Ibid.) We concluded, “To the extent that Title 15, 

section 3491, subdivision (b)(3) is applied to bar inmates with prior sex offenses 

requiring registration from early parole consideration, it conflicts with the Amendment 

and is invalid.” (Ibid.)

In Alliance, supra, 45 Cal.App.5th 225, review granted, we struck down the 

Department’s regulations to the extent they excluded from early parole consideration 

inmates currently convicted of sex offenses. We concluded the plain language of the 

Amendment, when read as a whole, “unequivocally demonstrates the voters’ intent to 

provide early parole consideration for all inmates convicted of a nonviolent offense—as 

opposed to only those inmates the Department believes are sufficiently unlikely to 

reoffend.” (Id. at p. 234.)

C. Analysis

The Attorney General ignores the above authorities on this subject and argues: 

(1) article I, section 32, subdivision (a)(1) has an “undefined scope” because it does not 

define “nonviolent felony offense”; (2) article I, section 32, subdivision (b) authorizes the 

Department to “fill up the details” and gaps within the scheme, including determining 
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which inmates qualify for nonviolent parole consideration, and to exclude classes of 

inmates that would present a public safety risk; (3) Proposition 57’s ballot materials 

clearly indicate that registered sex offenders would be excluded from early parole 

consideration.

We disagree with the Attorney General. As Gadlin observed, the provisions’ text 

in their relevant context is typically the best and most reliable indicator of the intended 

purpose of the statute. (Gadlin, supra, 31 Cal.App.5th at p. 789, rev. granted.)

We agree with the Attorney General that the text of article I, section 32, 

subdivision (a)(1) does not define “nonviolent felony offense.” We also agree that article 

I, section 32, subdivision (b) authorizes the Department to promulgate regulations “in 

furtherance” of the provisions of the Amendment. However, as Gadlin recognized, 

“ ‘ “[T]here is no agency discretion to promulgate a regulation which is inconsistent with 

the governing statute. . . .” ’ ” (Gadlin, supra, 31 Cal.App.5th at p. 789, rev. granted.)

Therefore, while the Department is entitled to some latitude in its regulations, the 

Department is not entitled to contradict the plain language of the Amendment by 

excluding inmates it acknowledges are eligible for early parole consideration under 

article I, section 32, subdivision (a)(1). That subdivision unequivocally states that 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. The Department’s regulation is doing more than “filling up the details”; it is 

contradicting the Amendment.

We disagree with the Attorney General that article I, section 32, subdivision (b)’s 

requirement that the Secretary must “certify that these regulations protect and enhance 

public safety” authorizes the Department to promulgate regulations excluding classes of 

inmates otherwise eligible for early parole consideration. As we have stated: “Nothing 

in the language of section 32, subdivision (a) suggests that it is limited by the provisions 

of section 32, subdivision (b). Indeed, subdivision (a) is prefaced with the following: 
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‘The following provisions are hereby 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.’ (Italics added.) The language in 

subdivision (b) confirms that point: ‘[The Department] shall adopt regulations in 

furtherance of these provisions . . . .’ (Italics added.) Subdivision (b), contrary to the 

Department’s contention, does not permit the Department to promulgate regulations 

limiting the express requirements of subdivision (a)(1). Rather, it requires that the 

Department promulgate regulations to advance the express requirements of subdivision 

(a)(1), which does not limit the categories of inmates eligible for early parole 

consideration based on their likelihood of recidivism.” (Alliance, supra, 45 Cal.App.5th 

at p. 235, rev. granted.)

By ascribing to the words in article I, section 32, subdivision (a)(1) their ordinary 

meaning, and taking into account the structure of the constitutional scheme, we conclude 

the voters intended to extend early parole consideration, as the Amendment expressly

states, to any inmate convicted of a nonviolent felony offense and sentenced to state 

prison upon completing the full term of his or her primary offense. The Department’s 

application of Title 15, section 3491, subdivision (b)(3) to exclude petitioner and all 

similarly situated inmates from early parole consideration runs afoul of article I, section 

32, subdivision (a)(1). (Gadlin, supra, 31 Cal.App.5th at p. 790, rev. granted.) Under the 

plain language of the statute, petitioner is entitled to early parole consideration.
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DISPOSITION

Subdivision (b)(3) of section 3491 of Title 15 of the California Code of 

Regulations is invalidated. The Department of Corrections and Rehabilitation is further 

directed to proceed, within 60 days of issuance of the remittitur, with an eligibility review 

determination under subdivision (e) of section 3491 of Title 15 of the California Code of 

Regulations as if petitioner had been found to be eligible for parole consideration by the 

Board of Parole Hearings under subdivisions (a) and (b) of section 3491 of Title 15 of the 

California Code of Regulations.

 /s/

BLEASE, Acting P.J.

We concur:

 /s/

MAURO, J.

 /s/

DUARTE, J.