Filed 2/25/21

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re ALEXEI KAVANAUGH on 

Habeas Corpus.

 D076500

 (Super. Ct. No. HC23654; 

 SCD238494; SCD239633; 

 SCD240841)

In re ALBERTO J. MORENO on 

Habeas Corpus.

 D076821

 (Super. Ct. No. HCN1586; 

 SCN367442)

In re LARRY SMITH on 

Habeas Corpus.

D077003

 (Super. Ct. No. HC19685; 

 SCD208823)

CONSOLIDATED APPEAL from orders of the Superior Court of San 

Diego County, Howard H. Shore and Harry M. Elias, Judges. Reversed.

Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant 

Attorney General, Amanda J. Murray and Linnea D. Piazza, Deputy 

Attorneys General, for Appellant California Department of Corrections and 

Rehabilitation.

Angela Bartosik, Chief Public Defender, and Euketa Oliver, Public 

Defender, for Respondents Alexei Kavanaugh, Alberto J. Moreno, and Larry 

Smith.
2

I

INTRODUCTION

In 2016, voters approved Proposition 57, the “Public Safety and 

Rehabilitation Act of 2016.” Proposition 57 amended the California 

Constitution to grant early parole consideration to persons convicted of a 

nonviolent felony offense. (Cal. Const., art I, § 32, subd. (a)(1).)1 It also 

authorized the California Department of Corrections and Rehabilitation 

(CDCR) to adopt regulations in furtherance of its guarantee of early parole 

consideration. (Id., subd. (b).) Acting pursuant to this authority, CDCR 

issued regulations governing early parole consideration for persons serving a 

determinate sentence for a nonviolent felony offense. (Cal. Code Regs. tit. 15, 

§§ 2449.1, 2449.3–2449.7, 3490–34932 (hereafter, the parole regulations).)

Petitioners Alexei Kavanaugh, Alberto Moreno, and Larry Smith 

(hereafter, the petitioners) were denied parole release under the procedures 

established by the parole regulations. In separate habeas corpus proceedings

challenging the parole denials, the trial courts invalidated the parole 

regulations and ordered new parole consideration proceedings for the 

petitioners. The courts found the parole regulations are unconstitutional 

because they do not guarantee the assistance of legal counsel for potential 

parolees, they do not require in-person parole hearings, and they permit 

individual hearing officers—rather than multi-member panels—to make 

parole release decisions. According to the courts, the parole regulations 

conflict with section 32’s guarantee of parole consideration and violate

prisoners’ procedural due process rights. 

1 Subsequent references to section 32 are to article I, section 32 of the 

California Constitution.

2 Subsequent references to Regulations are to the Code of Regulations.
3

In contrast to the trial courts, we conclude the parole regulations do not 

conflict with the constitutional guarantee of parole consideration or violate 

due process. Section 32 broadly ensures parole consideration for eligible 

felons, but it does not specify the procedures governing the parole 

consideration process. Rather, it vests CDCR with authority to adopt 

regulations in furtherance of its guarantee of parole consideration. CDCR 

acted within its mandate by enacting the parole regulations. Further, the 

parole regulations do not impinge on the procedural due process rights of 

prisoners seeking parole. They require annual parole eligibility reviews, set 

forth sufficiently definite criteria governing parole release decisions, mandate

a written statement of reasons for each parole release decision, and grant 

prisoners notice of the parole proceeding, an opportunity to submit a written 

statement to the Board of Parole Hearings (the Board), and the right to seek 

review of an adverse decision. These features adequately safeguard against 

arbitrary and capricious parole release decisions.

Because we conclude the parole regulations are consistent with 

section 32’s guarantee of parole consideration and do not violate prisoners’ 

procedural due process rights, we reverse the orders granting the petitioners’ 

habeas corpus petitions.

II

BACKGROUND

A

Legal Background

1

In the November 2016 general election, California voters approved

Proposition 57. Proposition 57 added section 32 to the California 

Constitution. (Prop. 57, § 3.) Section 32, subdivision (a)(1) states in 
4

pertinent part as follows: “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.” (§ 32, subd. (a)(1).) The expressed goals of the early parole 

consideration provision are “to enhance public safety, improve rehabilitation, 

and avoid the release of prisoners by federal court order ....” (Id., subd. (a).)

Section 32, subdivision (b) instructs CDCR to adopt implementing 

regulations for the early parole consideration provision set forth in section 32, 

subdivision (a)(1). It states that CDCR “shall adopt regulations in 

furtherance of these provisions, and the Secretary of [CDCR] shall certify 

that these regulations protect and enhance public safety.” (§ 32, subd. (b).)

2

CDCR promulgated the parole regulations pursuant to section 32, 

subdivision (b).3 Under the parole regulations, a person sentenced to a 

determinate term for a nonviolent felony is generally eligible for early parole 

consideration when he or she has served the full term of his or her primary 

3 CDCR issued separate regulations that “excluded [from parole 

consideration prisoners] serving indeterminate terms. [Citation.] Those 

regulations were found to be invalid because they conflicted with section 32’s 

intent [citation], and the CDCR subsequently enacted new regulations that 

did not exclude all of those serving indeterminate terms.” (In re Chavez 

(2020) 51 Cal.App.5th 748, 752, fn. 7.) The new regulations governing parole 

consideration for indeterminately-sentenced nonviolent felons (see Regs., 

tit. 15, §§ 2449.30–2449.34, 3495–3497) are not at issue in this appeal.
5

offense.4 (Regs., tit. 15, §§ 3490, subds. (e)–(f); 3492, subd. (a).) CDCR 

conducts the parole eligibility reviews and refers eligible prisoners to the 

Board for parole consideration on the merits. (Id., §§ 3491, subds. (c)–(e); 

3492, subds. (a)–(b).) Eligibility reviews are conducted annually “until the 

inmate is released from custody or is no longer eligible for parole 

consideration ....” (Id., § 3492, subd. (b); see id., § 2449.4, subd. (h).)

If a prisoner is found eligible for parole consideration and referred to 

the Board, the Board must provide notification about the pending parole 

review to the prisoner, the prosecuting agency, and the victim(s) who were 

harmed by the prisoner’s crime(s). (Regs., tit. 15, §§ 2449.3; 3492, subd. (c).) 

The Board must also afford the prisoner, the prosecuting agency, and the 

victim(s) an opportunity to submit a written statement to the Board. (Ibid.)

A hearing officer—defined by regulation as a Board commissioner, a 

deputy commissioner, an associate chief deputy commissioner, or the Chief 

Hearing Officer (Regs., tit. 15, § 2449.1, subd. (g))—must then review the

“case on the merits and determine whether to approve the inmate’s release,” 

(id., § 2449.4, subd. (a)). When conducting the merits review, the hearing 

officer must “review and consider all relevant and reliable information” 

including but not limited to the prisoner’s central file, the prisoner’s 

documented criminal history, and any written statements submitted by the 

4 The parole regulations exclude from 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.” (Regs., tit. 15, 

§ 3491, subd. (b)(3).) After briefing in this appeal was complete, the Supreme 

Court issued In re Gadlin (2020) 10 Cal.5th 915 (Gadlin), which determined 

the eligibility exclusion pertaining to sex offenders conflicts with section 32 

and is therefore invalid. The sex offender eligibility exclusion is not germane 

to this appeal, as the trial courts did not rely on the exclusion as a basis to 

invalidate the parole regulations. 
6

prisoner, the prosecuting agency, and/or the victim(s). (Id., subd. (b).) The 

hearing officer must weigh various aggravating and mitigating factors 

pertaining to the prisoner’s current conviction(s), prior criminal conviction(s) 

and behavior, and institutional behavior, work history, and rehabilitative 

programming, as well as the written statements received by the Board. (Id., 

§ 2449.5, subds. (a)–(h).) The factors are “general guidelines” and “the 

importance attached to any factor or combination of factors in a particular 

case is left to the judgment of the hearing officer.” (Id., subd. (a).)

The hearing officer must then issue a written decision, supported by a 

statement of reasons, determining whether the prisoner poses a current, 

unreasonable risk of violence or a current, unreasonable risk of significant 

criminal activity. (Regs., tit. 15, § 2449.4, subds. (c)–(d).) If the hearing 

officer finds the prisoner poses such a risk, the hearing officer must deny 

parole release. (Id., subd. (e).) If the hearing officer finds the prisoner does 

not pose such a risk, the hearing officer must grant parole release. (Id., 

subd. (f).) But, if the parole release decision will result in the prisoner’s 

release two or more years prior to his or her earliest possible release date, the 

parole release decision must be reviewed by an associate chief deputy 

commissioner or the Chief Hearing Officer, who may concur with the decision 

or issue a new decision approving or denying the parole release. (Ibid.)

Within 30 days of being served with the hearing officer’s parole release 

decision, the prisoner may request review of the decision. (Regs., tit. 15, 

§§ 2449.4, subd. (i); 2449.7, subd. (a).) The request for review must “include a 

description of why the inmate believes the previous decision was not correct 

and may include additional information not available to the hearing officer at 

the time the previous decision was issued.” (Ibid.) A hearing officer not 

involved in the original decision must then, within 30 days of the Board’s
7

receipt of the request for review, “consider all relevant and reliable 

information and issue a decision either concurring with the previous decision 

or overturning the previous decision with a statement of reasons supporting 

the new decision.” (Id., subds. (c)–(d).)

B

Lower Court Proceedings

This appeal arises from three separate habeas corpus proceedings in 

which the trial courts found the parole regulations are unconstitutional.

1

Petitioners’ Parole Denials

In 2013, Kavanaugh pleaded guilty to three counts of obtaining and 

using personal identifying information of another person (Pen. Code, § 530.5), 

one count of obtaining a controlled substance by fraud (Health & Saf. Code, 

§ 11173, subd. (a)), one count of possession of a concealed firearm as an 

individual with a prior violent felony conviction (Pen. Code, § 29900, 

subd. (a)(1)), and one count of making a criminal threat (Pen. Code, § 422), 

and he admitted an on-bail enhancement (Pen. Code, § 12022.1) and a strike 

prior (Pen. Code, §§ 667, subds. (b)–(i); 1170.12). He was sentenced to a 

determinate term of 14 years eight months in prison. In 2017, and again in 

2018, a hearing officer reviewed Kavanaugh’s case for early parole

consideration, found Kavanaugh posed an unreasonable risk to the 

community, and denied release. 

In 2017, Moreno pleaded guilty to one count of unlawful taking of 

personal property (Pen. Code, § 484), and admitted a strike prior (Pen. Code, 

§§ 667, subds. (b)–(i); 1170.12) and a prison prior (Pen. Code, § 667.5). He 

was sentenced to a determinate term of five years in prison. In 2018, a 

hearing officer reviewed Moreno’s case for early parole consideration, found 
8

Moreno posed an unreasonable risk to the community, and denied release. At 

Moreno’s request, a second hearing officer reviewed the parole denial, found 

no error, and concurred with the initial decision denying parole. 

In 2010, a jury convicted Smith of 18 counts of grand theft (Pen. Code, 

§ 487, subd. (a)), two counts of conspiracy to commit grand theft (Pen. Code, 

§ 182, subd. (a)(1)), and one count of prohibited practices by a foreclosure 

consultant (Civ. Code, § 2945.4), and Smith admitted eight strike priors (Pen. 

Code, §§ 667, subds. (b)–(i); 1170.12). Smith was sentenced to a determinate 

term of 20 years four months in prison. In 2017, and again in 2018, a hearing 

officer reviewed Smith’s case for early parole consideration, found Smith 

posed an unreasonable risk to the community, and denied release. Smith 

sought review of the 2018 parole denial and a second hearing officer 

concurred with the initial decision denying parole. 

2

The Habeas Corpus Proceedings

Each petitioner filed a pro se petition for writ of habeas corpus in the 

trial court challenging his parole denial(s). Kavanaugh alleged: (1) the 

Board “used erroneous facts ... to deny [him] early release” in violation of his

due process rights; and (2) the parole regulation setting forth the parole 

criteria violated his due process rights and the will of the voters who enacted 

Proposition 57. Moreno alleged: (1) the parole regulations “do not conform 

with the actual intent of the California voter’s [sic] who approved 

Proposition 57” because they result in systematic parole denials; and (2) a 

modicum of evidence did not support his parole denial. In his lengthy, 

sometimes-unintelligible petition, Smith alleged: (1) a modicum of evidence 

did not support his parole denial; (2) his parole denial was based on

impermissible factors such as Smith’s race and the Board’s alleged financial 
9

interests in keeping Smith incarcerated; and (3) there were sentencing errors

in Smith’s underlying criminal case. 

The trial courts issued virtually identical orders to show cause in each 

proceeding. The orders to show cause stated as follows: “Petitioner claims 

the parole process promulgated by CDCR’s adoption of regulations for 

determinately sentenced non-violent offenders violates his due process rights 

for early parole consideration provided under the California Constitution. 

[The] court finds that Petitioner has made a prima facie case for relief and 

hereby issues an Order to Show Cause as to why relief should not be granted. 

[The] court requests that the Return focus on the following issue[] ... [¶] Do 

California Code of Regulations, Title 15, Division 2, Chapter 3, 

sections 2449.1, 2449.2, 2449.4, 2449.5, and 2449.7 satisfy an inmate’s due 

process right to receive ‘due consideration’ for parole?”5

The People filed a return to each order to show cause and the 

petitioners each filed a denial. 

The trial courts granted all three petitions for writs of habeas corpus on 

grounds that the parole regulations are unconstitutional. The courts found

the parole regulations are unconstitutional because they do not guarantee the 

assistance of legal counsel for potential parolees, permit in-person parole 

hearings, or mandate that parole decisions be made by multi-member parole 

panels. The courts found these alleged deficiencies failed to ensure parole 

consideration under section 32 and violated prisoners’ procedural due process 

5 The orders to show cause requested that the returns focus on a second 

issue as well—whether the Board’s then-existing process of conducting 

jurisdictional reviews conflicted with Proposition 57. In response to In re 

McGhee (2019) 34 Cal.App.5th 902 (McGhee), CDCR repealed the pertinent 

regulation requiring jurisdictional reviews (Regs., tit. 15, former § 2449.2). 

The jurisdictional review process, which no longer exists, is not at issue in 

this appeal.
10

rights under the California Constitution.6 Based on these findings, the 

courts ordered new parole proceedings for the petitioners and ordered CDCR 

to repeal and amend the parole regulations. 

Subsequently, all three petitioners were released from prison for 

reasons unrelated to the habeas corpus proceedings. Kavanaugh was granted 

parole under the standard parole consideration procedures set forth in the 

parole regulations. Smith was released from prison under Government Code 

section 8658 in response to the COVID-19 pandemic. Moreno was released 

from prison as well, though the basis for his release is not apparent from the 

appellate record.7

The People appeal the orders granting the habeas corpus petitions, 

which were stayed pending appeal.8

III

DISCUSSION

A

Summary of the Habeas Corpus Procedure

“Our state Constitution guarantees that a person improperly deprived 

of his or her liberty has the right to petition for a writ of habeas corpus.” 

6 The courts characterized the petitioners’ alleged due process violations 

as arising under the California Constitution. They also relied exclusively on 

judicial authorities interpreting the due process clause of the California 

Constitution. It is therefore apparent the courts based their rulings on the 

due process guarantee of the California Constitution, not the federal 

Constitution.

7 We grant the People’s request for judicial notice of the hearing officer’s 

decision approving Kavanaugh’s parole release and the prison release records 

and change in status notifications for all three petitioners. (Evid. Code, 

§ 452, subd. (c).) 

8 The petitioners’ release from prison does not moot the appeal of the 

trial court orders, given that the orders invalidated the parole regulations.
11

(People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall).) “[T]he petitioner bears 

a heavy burden initially to plead sufficient grounds for relief, and then later 

to prove them.” (Ibid.) “The petition ‘must allege unlawful restraint, name 

the person by whom the petitioner is so restrained, and specify the facts on 

which [the petitioner] bases his [or her] claim that the restraint is 

unlawful.’ ” (People v. Romero (1994) 8 Cal.4th 728, 737 (Romero).)

A court presented with a petition for a writ of habeas corpus “must first 

determine whether the petition states a prima facie case for relief—that is, 

whether it states facts that, if true, entitle the petitioner to relief—and also 

whether the stated claims are for any reason procedurally barred.” (Romero, 

supra, 8 Cal.4th at p. 737.) “ ‘The court determines on the basis of the 

allegations of the original petition ..., as well as the supporting documentary 

evidence and/or affidavits, which should be attached if available, whether a 

prima facie case entitling the petitioner to relief if the allegations are proven 

has been stated.’ ” (In re Reno (2012) 55 Cal.4th 428, 458, fn. 15.) 

“If no prima facie case for relief is stated, the court will summarily deny 

the petition.” (Duvall, supra, 9 Cal.4th at p. 475.) “When, on the other hand, 

a habeas corpus petition is sufficient on its face (that is, the petition states a 

prima facie case on a claim that is not procedurally barred), the court is 

obligated by statute to issue a writ of habeas corpus,” i.e., a command to “the 

person having custody of the petitioner to bring the petitioner ‘before the 

court or judge before whom the writ is returnable’ ... and to submit a written 

return justifying the petitioner’s imprisonment or other restraint on the 

petitioner’s liberty [citation].” (Romero, supra, 8 Cal.4th at pp. 737–738.)

“Because ‘appellate courts are not equipped to have prisoners brought 

before them ... [they] developed the practice of ordering the custodian to show 

cause why the relief sought should not be granted.’ ” (Romero, supra, 8 
12

Cal.4th at p. 738.) “Many superior courts have likewise adopted the practice 

of issuing an order to show cause in place of the writ of habeas corpus when a 

habeas corpus petition states a prima facie case for relief.” (Ibid.) The order 

to show cause directs the custodian to file a pleading called a return, which 

“ ‘becomes the principal pleading’ [citation] and is ‘analogous to the complaint 

in a civil proceeding’ [citations].” (Ibid.) The return must allege facts 

establishing the legality of the petitioner’s detention. (Id. at pp. 738–739.)

Upon the filing of the return, the petitioner may file a response, known 

as a traverse (or a denial in the trial court), in which the petitioner “may 

deny or controvert any of the material facts or matters set forth in the return, 

or except to the sufficiency thereof, or allege any fact to show either that his 

imprisonment or detention is unlawful, or that he is entitled to his 

discharge.” (Pen. Code, § 1484; Cal. Rules of Court, rule 4.551.) The traverse 

(or denial) “is analogous to the answer in a civil proceeding.” (Romero, supra, 

8 Cal.4th at p. 739.) “[I]t is through the return and the traverse [or denial] 

that the issues are joined in a habeas corpus proceeding.” (Ibid.)

“Once the issues have been joined in this way, the court must 

determine whether an evidentiary hearing is needed. If the written return 

admits allegations in the petition that, if true, justify the relief sought, the 

court may grant relief without an evidentiary hearing. [Citations.] 

Conversely, consideration of the written return and matters of record may 

persuade the court that the contentions advanced in the petition lack merit, 

in which event the court may deny the petition without an evidentiary 

hearing. [Citations.] Finally, if the return and traverse [or denial] reveal 

that petitioner’s entitlement to relief hinges on the resolution of factual 

disputes, then the court should order an evidentiary hearing.... After the 

evidentiary hearing, the court in which the return has been filed will then 
13

either grant or deny relief based upon the law and the facts as so 

determined.” (Romero, supra, 8 Cal.4th at pp. 739–740.)

B

The Petitioners Challenged the Parole Regulations

in Their Habeas Corpus Petitions

Before we address the merits of the trial courts’ constitutional rulings, 

we consider a predicate procedural question—whether the trial courts 

impermissibly expanded the scope of the habeas corpus proceedings beyond 

the claims that were presented in the petitioners’ habeas corpus petitions.

The People contend the petitioners challenged only the sufficiency of 

the evidence supporting their parole denials and, in Kavanaugh’s case, the 

validity of the parole regulation setting forth the parole criteria. However, 

the trial courts issued orders to show cause, and subsequently granted 

habeas relief, on grounds that the parole regulations are inconsistent with

section 32 and violative of prisoners’ due process rights. According to the 

People, the courts exceeded their authority in addressing and granting relief 

based on claims that were not raised in the habeas corpus petitions. 

The issues in a habeas corpus proceeding are defined by the pleadings 

and “may not extend beyond the claims alleged in the habeas corpus 

petition.” (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 

1212, 1235 (Ngo).) Thus, a court exceeds its authority when it “issue[s] an 

order to show cause that requires the respondent to address new claims not 

expressly or implicitly raised in the original habeas corpus petition or 

supported by the factual allegations in the original habeas corpus petition, 

unless those claims were raised ... in a supplemental or amended habeas 

corpus petition filed with the permission of the court.” (Id. at p. 1237.)

On the other hand, “[t]he goal ... of the procedures that govern habeas 

corpus is to provide a framework in which a court can discover the truth and 
14

do justice in timely fashion.” (Duvall, supra, 9 Cal.4th at p. 482.) Therefore, 

courts “should not construe the pleadings in ... a parsimonious fashion.” 

(Ibid.) Further, a court “crafting [an] order to show cause has the power to 

explain its preliminary assessment of the petitioner’s claims, restate 

inartfully drafted claims for purposes of clarity, and limit the issues to be 

addressed in the return to only those issues for which a prima facie showing 

has been made.” (Ngo, supra, 130 Cal.App.4th at p. 1239, italics added.)

It is a fairly close call whether the trial courts’ orders to show cause 

and orders granting habeas relief addressed claims that were presented in 

the habeas corpus petitions. As the People note, the petitions focused largely 

on the alleged insufficiency of the evidence supporting the petitioners’ parole 

denials and, to a lesser extent, the criteria governing parole release decisions. 

Those issues appear to be distinct from the matters discussed in the orders to 

show cause and the orders granting habeas relief. Nevertheless, upon close 

examination, it is apparent to us that each petition also alleged a due process 

violation or an arbitrary and capricious parole release decision, as well as an 

irreconcilable conflict between the Board’s parole consideration procedures 

and section 32 (referred to as Proposition 57 in the habeas corpus petitions). 

For instance, Kavanaugh alleged the parole regulations violated his 

“right to due process” and the Board “implemented policies (under 

Proposition 57) that the voters never intended ....” Moreno alleged that his 

parole denial was “arbitrary and procedurally flawed,” and that CDCR 

“systematically deni[ed] him and other inmates ... the full benefit’s [sic] of 

Proposition 57, by adopting regulation[s] ... which do not conform with the 

actual intent of the California voter’s [sic] who approved Proposition 57 ....” 

Similarly, Smith alleged the Board deprived him of “earned liberty interests 

without due process of enacted laws,” and “failed and/or refused to exercise 
15

sound discretion governed by legal rules, valid, enacted laws[] [and] to do 

justice according to such laws in conducting hearings, receiving and 

reviewing evidence, and ... issu[ing] rulings ....” (Quotation marks and 

underline omitted.) 

Based on these allegations, as well as the policies underpinning the 

procedures governing habeas corpus proceedings, we conclude the petitioners’ 

pro se habeas corpus petitions sufficiently alleged the claims upon which 

habeas corpus relief was granted. (See In re Lewis (2009) 172 Cal.App.4th 

13, 27 [habeas corpus petition raised constitutional vagueness challenge to 

parole regulations by alleging the Board acted in an arbitrary and capricious 

manner].) It follows that the trial courts did not impermissibly expand the 

scope of the habeas corpus proceedings.9 Therefore, we proceed to the merits 

of the trial courts’ orders granting habeas relief.

C

The Parole Regulations Ensure Parole Consideration

As previously noted, section 32, subdivision (a)(1) states as follows:

“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 petitioners contend section 32’s 

guarantee of parole consideration for eligible felons includes an implicit 

promise that such felons will receive the assistance of legal counsel during 

the parole process, as well as in-person parole hearings and multi-member

9 In their appellate brief, the petitioners contend the hearing officer 

relied on inadmissible and unreliable hearsay to deny parole release to 

Moreno. Moreno did not allege this as a basis for relief in his habeas corpus 

petition and the trial court did not mention it in the order granting Moreno’s 

habeas corpus petition. Therefore, the hearing officer’s alleged reliance on 

hearsay is not properly before us.
16

parole panels. They claim the parole regulations conflict with section 32 

because the parole regulations do not fulfill this alleged promise.

The People argue there is no conflict between section 32’s guarantee of 

parole consideration and the parole regulations. They emphasize that 

section 32 does not impose express procedural requirements applicable to the 

parole consideration process. They also contend that section 32, 

subdivision (b) commands CDCR to adopt regulations in furtherance of the 

new parole consideration requirement. According to the People, CDCR acted 

in accordance with this directive when it issued the parole regulations. 

For the following reasons, we agree with the People.

1

Legal Standards

“A regulation adopted by a state agency, like any agency action, comes 

to the court with a presumption of validity.” (Delta Stewardship Council 

Cases (2020) 48 Cal.App.5th 1014, 1047–1048.) “In determining the proper 

interpretation of a statute [or constitutional provision such as section 32] and 

the validity of an administrative regulation, the administrative agency’s 

construction is entitled to great weight, and if there appears to be a 

reasonable basis for it, a court will not substitute its judgment for that of the 

administrative body.” (Ontario Community Foundations, Inc. v. State Bd. of 

Equalization (1984) 35 Cal.3d 811, 816.) “ ‘ “Our function is to inquire into 

the legality of ... regulations, not their wisdom.” ’ ” (Gadlin, supra, 10 

Cal.5th at p. 926.)

On the other hand, an agency has no authority to adopt a regulation 

unless it is “ ‘[1] consistent and not in conflict with the [enabling] statute [or 

constitutional provision] and [2] reasonably necessary to effectuate the 

purpose of the [enabling] statute [or constitutional provision].’ ” (Gov. Code, 
17

§ 11342.2; see Gadlin, supra, 10 Cal.5th at p. 926.) In assessing whether the 

regulation is consistent with an enabling statute or constitutional provision, 

we must ask “ ‘whether the regulation alters or amends the governing 

[mandate] or case law, or enlarges or impairs its scope.’ ” (Association of 

California Ins. Cos. v. Poizner (2009) 180 Cal.App.4th 1029, 1045.)

“In construing ... section 32, subdivision (a)(1), we apply normal 

standards governing the interpretation of constitutional provisions. ‘ “[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 ... provisions.” ’ ” (McGhee, supra, 34 Cal.App.5th at p. 909.) 

2

There is no Conflict Between the Parole Regulations and 

Section 32’s Guarantee of Parole Consideration

To assess whether a conflict exists between section 32 and the parole 

regulations, we begin by examining the language of section 32. (Gadlin, 

supra, 10 Cal.5th at p. 926; McGhee, supra, 34 Cal.App.5th at p. 909.) 

Section 32 broadly states in pertinent part that certain qualifying felons

“shall be eligible for parole consideration ....” (§ 32, subd. (a)(1).)

The parties have not directed us to any constitutional or statutory

definitions for the term “parole consideration,” and we are aware of none
18

based on our own research. In the absence of such definitions, we presume 

the words were intended to be understood “ ‘in [their] ordinary sense and, 

consequently, we may refer to [those words’] dictionary definition[s] to 

ascertain [their] ordinary, usual meaning.’ ” (Russell City Energy Co., LLC v. 

City of Hayward (2017) 14 Cal.App.5th 54, 64; see Cacho v. Boudreau (2007) 

40 Cal.4th 341, 349 [“In the absence of a statutory definition, we assume that 

the Legislature intended that ‘rent’ would have its ordinary meaning ....”]; 

accord Gadlin, supra, 10 Cal.5th at p. 933 [relying on dictionary definition to 

interpret the meaning of language contained within section 32].)

Webster’s dictionary defines the term “consideration,” as relevant here, 

to mean “the act of regarding or weighing carefully.” (Webster’s 3d New 

Internat. Dict. (2002) p. 484, col. 1.) Similarly, the online Oxford English 

Dictionary defines “consideration” to mean “[t]he keeping of a subject before 

the mind; attentive thought, reflection, meditation.” (<https://www.oed.com/

view/Entry/39602?redirectedFrom=consideration#eid> [as of Feb. 24, 2021], 

archived at <https://perma.cc/2RL4-ADT7>.) The American Heritage 

Dictionary gives “consideration” an analogous meaning, defining it as

“[c]areful thought; deliberation.” (American Heritage Dict. (5th ed. 2011) 

p. 392.) Collectively, these definitions indicate that “parole consideration”

refers to the giving of careful thought and deliberation to a person’s parole 

suitability.

When the term “parole consideration” is given this common and 

ordinary meaning, it is apparent the parole regulations are in harmony with 

section 32. The parole regulations require the referral of each eligible 

prisoner to the Board for a parole assessment whereby a hearing officer 

reviews all relevant information and applies criteria to determine whether 

the prisoner poses a risk of violence or significant criminal activity. (Regs. 
19

tit. 15, §§ 2449.4, subds. (a)–(c); 2449.5; 3491, subd. (a).) Depending on the 

outcome of the assessment, the hearing officer then approves or denies parole 

release. (Id., §§ 2449.4, subds. (e)–(f); 3493.) In short, the Board affords 

parole consideration to the prisoner when the hearing officer reviews the

prisoner’s record and weighs various factors bearing on the prisoner’s parole 

suitability in order to reach a reasoned parole release decision.

Our interpretation is bolstered by the fact that section 32 does not 

expressly mandate any procedures for the parole consideration it guarantees, 

let alone the features emphasized by the petitioners. The measure’s drafters

could have defined “parole consideration” to incorporate such procedural 

requirements.10 Or they could have imposed the procedural requirements in 

other provisions of the measure. It is not our role to insert this language—

language the voters never considered or approved—into section 32. (People v. 

Roach (2016) 247 Cal.App.4th 178, 183 [“Our job is to ascertain and declare 

what is in terms or in substance contained in the provision, not to insert what 

has been omitted or omit what has been inserted.”]; Hodges v. Superior Court 

(1999) 21 Cal.4th 109, 114 [“In the case of a voters’ initiative ... we may not 

properly interpret the measure in a way that the electorate did not 

contemplate: the voters should get what they enacted, not more and not 

less.”]; accord Gadlin, supra, 10 Cal.5th at p. 935 [“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.”].)

In sum, section 32 does not specify any procedural requirements for the 

parole consideration to which nonviolent felons are entitled. Rather, it 

10 Section 32 defines the term “full term for the primary offense,” but 

leaves the term “parole consideration” undefined. (§ 32, subd. (a)(1)(A).)
20

charges CDCR to issue regulations implementing its guarantee of parole 

consideration. (§ 32, subd. (b).) As the Supreme Court has explained, this 

charge of authority confers on CDCR “meaningful power to promulgate 

regulations” in furtherance of section 32. (Gadlin, supra, 10 Cal.5th at p. 

934.) In particular, it affords CDCR “ample room to protect public safety by 

crafting the specific processes under which parole suitability is determined on 

a case-by-case basis. And [CDCR] has done so; the regulations direct the 

Board of Parole Hearings to consider ‘all relevant and reliable information’

([Regs., tit. 15,] § 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)).” (Ibid.) We discern no 

tension between section 32, subdivision (a)’s broad promise of parole 

consideration and the parole regulations CDCR has adopted.

3

The Petitioners’ Interpretive Arguments Are Unavailing

In finding a conflict between section 32’s guarantee of parole 

consideration and the parole regulations, the trial courts relied on statutes 

and regulations governing the parole consideration process for 

indeterminately-sentenced persons. Those statutes and regulations require 

the appointment of legal counsel for potential parolees (e.g., Pen. Code, 

§ 3041.7), in-person parole hearings (e.g., id., §§ 3041, subd. (a)(2); 3041.5, 

subd. (a)(2); Regs., tit. 15, §§ 2280, 2304), and multi-member parole panels

(e.g., Pen. Code, §§ 3041, subds. (a)(2), (d); Regs., tit. 15, § 2281, subds. (a)–

(b), 2315). The courts reasoned the voters who passed Proposition 57 “were 

aware of the state’s parole process” and—by approving “parole consideration” 

for eligible nonviolent felons—they impliedly adopted all the same procedural
21

requirements that apply when indeterminately-sentenced prisoners undergo

parole consideration. The petitioners repeat these arguments on appeal. 

“There is a presumption, though not conclusive, that voters are aware 

of existing laws at the time a voter initiative is adopted.” (Santos v. Brown 

(2015) 238 Cal.App.4th 398, 410.) However, the parole consideration process 

for indeterminately-sentenced persons was not, as the trial courts apparently 

assumed, the only parole consideration process in existence at the time the 

voters enacted Proposition 57. Indeed, in 2009, a three-member federal court 

found that overcrowding in the prison system caused the state to deliver 

constitutionally-inadequate medical and mental health care to inmates. 

(Coleman v. Schwarzenegger (E.D. Cal. & N.D. Cal. 2009) 922 F.Supp.2d 882, 

affd. sub nom. Brown v. Plata (2011) 563 U.S. 493.) In connection with this 

finding, the federal court ordered the state to reduce the population of its 

adult prisons to 137.5% of their total design capacity (ibid.), and issued a 

remedial order intended to achieve this goal (In re Ilasa (2016) 3 Cal.App.5th 

489, 500–501 (Ilasa)). The order mandated “ ‘a new parole determination 

process through which non-violent second-strikers [would] be eligible for 

parole consideration by the Board ... once they have served 50% of their 

sentence.’ ” (Id. at p. 495, italics omitted.) 

In response to this remedial order, CDCR “created a [parole] process 

entitled ‘Non–Violent, Non–Sex–Registrant, Second–Strike (NVSS) Review,’ 

which was implemented on January 1, 2015.” (Ilasa, supra, 3 Cal.App.5th at 

p. 495.) Under the NVSS parole consideration process, prisoners were 

screened for parole eligibility and referred to the Board for potential release. 

(Id. at p. 502.) Once referred to the Board, the prisoners were permitted to 

submit a written statement and a single deputy commissioner—not a parole 

panel—would consider the documentary record and determine whether to 
22

grant parole. (Id. at p. 503.) A written parole decision was required, but no 

in-person parole hearing was held. (Ibid.) Under the NVSS parole 

consideration process, a single associate chief deputy commissioner—not a 

parole panel—could review the parole decision and issue a decision upholding 

or vacating the original parole decision. (Ibid.) As this brief description 

demonstrates, the parole regulations establish a parole consideration process 

that in many respects resembles the NVSS parole consideration process.11

Returning to the presumption of voter awareness, it is untenable for us 

to conclude the voters were somehow aware of the parole consideration 

process available to indeterminately-sentenced felons, yet inexplicably 

unaware of the NVSS parole consideration process. It is equally untenable 

for us to conclude the voters intended to replicate the former process, as

opposed to the latter process—or to adopt a new process altogether—given 

that the language of Proposition 57 evinces no such intention. In light of this 

textual omission, we decline to infer through sheer speculation that the 

voters who passed Proposition 57 intended to adopt the broad and complex 

swathe of procedural requirements governing parole consideration for 

11 The People request judicial notice of a stipulation executed by the 

parties to the federal prison-overcrowding lawsuit, which states the parole 

regulations mirror NVSS review. We deny judicial notice of the stipulation, 

which is not relevant to the disposition of the appeal.
23

indeterminately-sentenced felons.12 (See Gadlin, supra, 10 Cal.5th at p. 942 

[“Without language in the constitutional provision that expressed or strongly 

implied the authority of the Department to carry out [parole eligibility]

exclusions, we cannot say the voters intended such exclusions.”].)

The ballot materials for Proposition 57 also do not suggest the voters 

intended a wholesale adoption of the procedures by which indeterminatelysentenced persons are considered for parole.13 “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).” (Gadlin, supra, 10 Cal.5th at p. 936.) The Legislative 

Analyst’s analysis obliquely references the parole consideration hearings that 

are provided to indeterminately-sentenced persons and the NVSS parole 

12 McGhee, supra, 34 Cal.App.5th 902 is not to the contrary. In McGhee, 

the court considered the viability of a regulation requiring CDCR to conduct a 

prescreening of otherwise eligible inmates before referring those inmates to 

the Board for parole consideration. (Id. at pp. 906–907.) The McGhee court—

applying the presumption that voters were aware of existing parole statutes 

and regulations—concluded the regulation was inconsistent with Proposition 

57’s guarantee of parole consideration, which could “only be understood to 

mean parole consideration by the [B]oard,” as opposed to parole consideration 

by CDCR. (Id. at pp. 909–910.) The application of the presumption of voter 

awareness can be explained by the fact that, for purposes of the appeal, there 

were no material differences between the two parole consideration processes 

governing indeterminately-sentenced persons and determinately-sentenced 

second-strike offenders; under both processes, parole consideration was 

undertaken by the Board, not CDCR. (Id. at pp. 911–912.) Here, there are

material differences between the two parole consideration processes.

13 We grant the People’s request for judicial notice of the ballot materials 

for Proposition 57. (Evid. Code, § 452, subd. (c).) 
24

consideration process. (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) analysis of 

Prop. 57 by Legislative Analyst, p. 54.) However, neither the analysis nor 

any other portion of the ballot materials states that the parole consideration 

guaranteed by Proposition 57 would resemble either of these processes, nor

that it would resemble one of the processes to the exclusion of the other.

Further, while the Legislative Analyst’s analysis states Proposition 57 

would “increase the number of inmates eligible for parole consideration,” the 

analysis—as well as the proponents’ arguments in favor of Proposition 57—

do not mention any of the procedures that might apply when an eligible felon 

undergoes parole consideration. (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) 

analysis of Prop. 57 by Legislative Analyst, p. 56; id., argument in favor of

Prop. 57, p. 58.) They say nothing about the appointment of legal counsel for 

prospective parolees, in-person parole hearings, or multi-member parole 

panels. The ballot materials’ silence on these topics strongly suggests the

voters did not contemplate them. (Citizens Assn. of Sunset Beach v. Orange 

County Local Agency Formation Com. (2012) 209 Cal.App.4th 1182, 1197 

[ballot materials’ silence “indicative of the voters’ understanding of what they 

were doing”]; accord Gadlin, supra, 10 Cal.5th at p. 939 [“If, as [CDCR]

asserts, the voters intended to carve out an entire category of offenders from 

nonviolent parole consideration based on prior criminal history, the[] [ballot 

materials] sources likely would have mentioned as much.”].) 

The petitioners make one final argument in support of their claim that 

the parole regulations irreconcilably conflict with section 32. They assert the 

parole regulations cause some parole-eligible prisoners to be denied release 

and remain incarcerated at the expense of the taxpayer. They claim the 

parole regulations thus contravene one of section 32’s objectives—the 

reduction of public spending on the prison population. (See Prop. 57, § 2 [“[I]t 
25

is the purpose and intent of the people of the State of California to ... [s]ave

money by reducing wasteful spending on prisons.”].) We are not persuaded. 

By establishing a parole consideration system that did not previously 

exist—and ensuring the release of some prisoners who would not otherwise 

have been subject to parole consideration—the parole regulations clearly 

advance the goal of reducing incarceration-related costs. Insofar as the 

petitioners argue the parole regulations do not do enough to reduce public 

expenditures, that alleged shortcoming does not establish an incompatibility

between section 32 and the parole regulations. Nor does it require us to 

interpret section 32 in a manner that its language does not support. (People 

v. Morales (2016) 63 Cal.4th 399, 408 [“Certainly, one purpose was to save 

money, and the measure has done so by causing the release of some prisoners 

.... But the purpose of saving money does not mean we should interpret the 

statute in every way that might maximize any monetary savings.”].)

4

Conclusion

Section 32 guarantees parole consideration for eligible persons who 

have been sentenced to prison for a nonviolent felony offense. But it does not

mandate any specific parole consideration procedures. Rather, it vests 

authority with CDCR to craft the specific processes under which parole 

suitability is determined. (Gadlin, supra, 10 Cal.5th at p. 934.) CDCR 
26

properly exercised this authority in its enactment and implementation of the 

parole regulations.14

D

The Parole Regulations Do Not Violate the Due Process Clause

The trial courts found the parole regulations are unconstitutional, in 

the alternative, on grounds that the parole regulations deprive prospective 

parolees of their rights to procedural due process. The courts found the 

parole regulations run afoul of the California Constitution’s due process

clause for the reasons previously discussed—i.e., because they do not 

guarantee the appointment of legal counsel for prisoners undergoing parole

consideration, in-person parole hearings, or multi-member parole panels. On 

appeal, the petitioners contend the parole regulations violate their due 

process rights for these same reasons. They also assert the parole regulation 

setting forth the criteria for parole release decisions is void-for-vagueness.

The People assert the parole regulations afford prisoners the 

procedural due process to which they are entitled. The People claim the 

parole regulations ensure that eligible prisoners receive reasonable notice 

and a reasonable opportunity to be heard, both before the parole release 

decision is made and prior to any subsequent review of an adverse decision. 

Further, the People claim the additional safeguards promoted by the 

petitioners would impose undue fiscal and administrative burdens on the 

state that are not commensurate with the limited liberty interests at stake in 

14 The petitioners assert in passing that the parole regulations are 

unconstitutional because they “impermissibly amend” Proposition 57. The 

petitioners provide no substantive analysis or pertinent legal authorities 

supporting their claim that the parole regulations impermissibly amended a 

voter initiative. Therefore, the argument is waived. (Cahill v. San Diego Gas 

& Electric Co. (2011) 194 Cal.App.4th 939, 956.)
27

a parole release decision. In response to the petitioners’ void-for-vagueness 

challenge, the People assert the parole criteria regulation is sufficiently 

definite to guide the Board’s exercise of discretion when making parole 

release determinations. 

Once again, we agree with the People.

1

Legal Standards

Parole release proceedings are “informal, in contrast to judicial or 

formal administrative proceedings.” (In re Rosenkrantz (2002) 29 Cal.4th 

616, 654–655 (Rosenkrantz).) “[P]arole release decisions concern an inmate’s 

anticipation or hope of freedom, and entail the Board’s attempt to predict by 

subjective analysis whether the inmate will be able to live in society without 

committing additional antisocial acts.” (Id. at p. 655.) The Board must 

consider criteria set forth in regulations established by CDCR. (Id. at 

pp. 653–654; In re Shaputis (2008) 44 Cal.4th 1241, 1256 (Shaputis)

[regulations “guide the Board’s assessment of whether [an] inmate ... is 

suitable for parole”].) However, the Board has broad discretion in making 

parole release decisions. (Rosenkrantz, at p. 655.) “ ‘The [Board’s] discretion 

in parole matters has been described as ‘great’ [citation] and ‘almost 

unlimited’ [citation].’ ” (Ibid., quoting In re Powell (1988) 45 Cal.3d 894, 902 

(Powell).)

“Although broad, the [B]oard’s discretion is not absolute. That 

discretion ... is subject to the prisoner’s right to procedural due process.” 

(Powell, supra, 45 Cal.3d at p. 902.) A prisoner “is not entitled to ... receive 

parole, [but] he is entitled to have his application for the[] benefit[] ‘duly 

considered.’ ” (In re Minnis (1972) 7 Cal.3d 639, 646 (Minnis).) By way of 

example, the Board may not categorically deny parole to all persons who have 
28

been imprisoned for committing a particular offense. (Id. at pp. 642–648.) 

Because “a right to due consideration of parole applications necessarily gives 

rise to a concomitant right to an available remedy.... [¶] ... [¶] ... due process 

requires that the [Board] support its determinations with a statement of its 

reasons therefor.” (In re Sturm (1974) 11 Cal.3d 258, 268–270.) Further,

courts may conduct limited judicial review of parole denials to determine 

whether the denials are supported by “some evidence,” given that a denial 

without “some evidence” would be “arbitrary and capricious, thereby 

depriving the prisoner of due process of law.” (Rosenkrantz, supra, 29 Cal.4th 

at p. 657–658; see Shaputis, 44 Cal.4th at pp. 1254–1255 [clarifying scope of 

judicial review].)

In assessing a due process claim, we conduct a “case by case 

determination of whether a particular incident of due process is required for 

parole decisions ....” (Sturm, supra, 11 Cal.3d at p. 266.) We apply the 

balancing test announced in People v. Ramirez (1979) 25 Cal.3d 260 (plur. 

opn. of Mosk, J.) (Ramirez), to assess the amount of process that is required

under the circumstances.15 Under the Ramirez test, we consider the 

following factors: “(1) the private interest that will be affected by the official 

action, (2) the risk of an erroneous deprivation of such interest through the 

procedures used, and the probable value, if any, of additional or substitute 

procedural safeguards, (3) the dignitary interest in informing individuals of 

the nature, grounds and consequences of the action and in enabling them to 

present their side of the story before a responsible governmental official, and 

(4) the governmental interest, including the function involved and the fiscal 

15 Although the Ramirez decision was a plurality decision, a unanimous 

Supreme Court subsequently applied the Ramirez balancing test in In re 

Jackson (1987) 43 Cal.3d 501.
29

and administrative burdens that the additional or substitute procedural 

requirement would entail.”16 (Id. at p. 269.)

The Ramirez balancing test recognizes “that ‘due process is flexible and 

calls for such procedural protections as the particular situation demands.’ ” 

(Ramirez, supra, 25 Cal.3d at p. 268; see Minnis, supra, 7 Cal.3d at p. 649 

[“The exact boundaries of due process ‘are undefinable, and its content varies 

according to specific factual contexts.’ ”].) In some contexts, due process may 

require “formal hearing procedures that include the rights of confrontation 

and cross-examination, as well as a limited right to an attorney.” (Ramirez,

at p. 269.) “In others, due process may require only that the administrative 

agency comply with the statutory limitations on its authority.” (Ibid.) 

2

Prisoners Do Not Have a Due Process 

Right to Legal Counsel for Parole Proceedings

At the outset, we will address the question of whether due process

mandates the assistance of legal counsel for prospective parolees in parole

release proceedings. We need not conduct a full-blown Ramirez analysis or 

engage in an extended discussion on this question because our Supreme 

Court has already answered this question in the negative. 

In In re Schoengarth (1967) 66 Cal.2d 295, a prisoner filed a petition for 

writ of habeas corpus challenging the denial of his request for appointment of 

legal counsel during parole proceedings. The Supreme Court denied the 

petition and ruled the prisoner had no constitutional right to legal counsel. 

16 “[O]ther than the addition of the dignity factor, the Ramirez balancing 

test for determining what procedural protections are warranted, given the 

governmental and private interests involved, is essentially identical to that 

employed under the federal analysis.” (Ryan v. California Interscholastic 

Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1071, citing 

Matthews v. Eldridge (1976) 424 U.S. 319, 335, 347–349.)
30

(Id. at pp. 304, 306.) As the Court explained, “[t]he proceedings of the 

[Board] are wholly administrative in nature, and that agency’s determination 

of ... [the] conditions of parole is not a judicial act.” (Id. at p. 304.) Therefore, 

a prisoner has “no right to the appointment of counsel in proceedings of the 

[Board] to determine whether and under what conditions a prisoner should 

be granted parole,” and no “such appointment [of counsel is] compelled by any 

constitutional mandate.” (Ibid.)

Five years later, in Minnis, a prisoner challenged the validity of the 

parole procedures that were adopted by the Board’s predecessor, alleging the 

procedures deprived him of “due process because he receive[d] ‘no [legal] 

representation at the sentencing[.]’ ” (Minnis, supra, 7 Cal.3d at p. 650.) The 

Supreme Court again rejected the claim that due process entitles a prisoner 

to the assistance of legal counsel during parole proceedings. It reasoned that 

parole proceedings are “administrative in nature. [Citations.] Consequently, 

due process takes on a different significance in evaluating [the parole]

agency’s determination on ... parole-granting than it had at trial.” (Ibid.) 

Citing Schoengarth, the Court reaffirmed its prior holding that “counsel is 

not necessary to insure fairness” in parole proceedings. (Minnis, at p. 650.)

Under the doctrine of stare decisis, the California Supreme Court’s 

holdings in Schoengarth and Minnis are binding on this court. (Auto Equity 

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we 

conclude prisoners do not have a procedural due process right to the 

assistance of legal counsel during parole proceedings.
31

3

Prisoners Do Not Have a Due Process Right 

to In-Person Parole Hearings or Multi-Member Parole Panels

We turn now to the more difficult question of whether determinatelysentenced nonviolent prisoners have due process rights to in-person parole 

hearings and/or parole panels consisting of at least two or more panelists. 

Under the first factor of the Ramirez test, we begin by identifying the 

private interest at stake in a parole release proceeding. “ ‘The essence of 

parole is release from prison, before the completion of sentence, on the 

condition that the prisoner abide by certain rules during the balance of the 

sentence.’ ” (Samson v. California (2006) 547 U.S. 843, 850, quoting 

Morrissey v. Brewer (1972) 408 U.S. 471, 477.) The parolee “ ‘is not free from 

legal restraint, but is constructively a prisoner in the legal custody of state 

prison authorities until officially discharged from parole.’ ” (In re Taylor

(2015) 60 Cal.4th 1019, 1037.) Thus, a parole revocation decision “deprives 

an individual[] not of the absolute liberty to which every citizen is entitled, 

but only of the conditional liberty properly dependent on observance of 

special parole restrictions.” (Morrissey, at p. 480; see Taylor, at p. 1037.)

“ ‘An incarcerated individual for whom a parole date has not been set 

possesses less of an expectation of liberty than one for whom a release date 

previously has been established by the Board.’ ” (In re J.G. (2008) 159 

Cal.App.4th 1056, 1064 (J.G.).) That is because parole revocation involves 

the loss of conditional freedom, whereas “parole release decisions concern an 

inmate’s mere anticipation or hope of freedom.” (Sturm, supra, 11 Cal.3d at 

p. 266, italics added.) Therefore, in a parole consideration proceeding, the 

private interest at stake is not a prisoner’s interest in his or her conditional 

liberty; rather, it is the mere expectancy of his or her conditional liberty—a 

“limited liberty interest.” (J.G., at p. 1064; accord Greenholtz v. Inmates of 
32

Nebraska Penal and Correctional Complex (1979) 442 U.S. 1, 10 (Greenholtz)

[“ ‘It is not sophistic to attach greater importance to a person’s justifiable 

reliance in maintaining his conditional freedom so long as he abides by the 

conditions of his release, than to his mere anticipation or hope of freedom.’ ”].)

Next, under the second Ramirez factor, we assess the parole 

regulations, the extent to which the parole regulations protect against the

erroneous and arbitrary deprivation of a prisoner’s expectancy of conditional

freedom, and the probable value, if any, of additional procedural safeguards. 

In conducting this assessment, we remain mindful that “due process does not 

mandate that all governmental decision making comply with standards that 

assure perfect, error-free determinations.” (California Consumer Health Care 

Council, Inc. v. Department of Managed Health Care (2008) 161 Cal.App.4th 

684, 691; see Mackey v. Montrym (1979) 443 U.S. 1, 13 [“the Due Process 

Clause has never been construed to require that the procedures used to guard 

against an erroneous deprivation of a protectible ‘property’ ... interest be so 

comprehensive as to preclude any possibility of error”].)

The parole regulations provide that a prisoner who is deemed eligible 

for parole consideration and referred to the Board is entitled to receive notice 

of the referral. (Regs., tit. 15, § 3492, subd. (c).) The prisoner is “provided 

information about the nonviolent offender parole process, including the 

opportunity to submit a written statement to the Board” prior to the parole 

decision. (Ibid.) If the prisoner submits a statement to the Board, the parole 

criteria require the hearing officer to consider the prisoner’s statement, in 

addition to all other relevant and available information pertaining to the 

prisoner. (Id., §§ 2449.4, subd. (b); 2449.5, subd. (h) [“[A] [w]ritten 

statement[] submitted by the inmate ... shall be considered.”].) 
33

Collectively, these procedural requirements ensure that a prisoner

eligible for parole has a reasonable opportunity to inform the Board of any 

considerations weighing in favor of his or her parole suitability. For example, 

the prisoner can discuss any existing mitigating factors pertaining to his or 

her current conviction(s) or prior criminal behavior (Regs., tit. 15, § 2449.5, 

subds. (c), (e)), or attempt to explain away or blunt the impact of any 

aggravating factors (id., subds. (b), (d), (f)). The prisoner can also highlight 

his or her rehabilitation in prison, including whether he or she has followed

institutional rules, successfully participated in vocational, educational, or 

work assignments, or taken advantage of rehabilitative or self-help 

programming. (Id., subd. (g).) By providing the prisoner notice and an 

opportunity to submit a written statement concerning parole suitability, the 

parole regulations reduce the risk that the Board will base its parole 

decisions on incomplete, incorrect, or otherwise flawed information.

Moreover, once the hearing officer has determined whether the 

prisoner is suitable for parole, the hearing officer must then issue a written 

parole decision, supported by a statement of reasons. (Regs., tit. 15, § 2449.4, 

subd. (d).) The requirement of a written parole decision reduces the 

likelihood a hearing officer will render an arbitrary and unsupported parole 

denial. It guarantees that a prisoner will be apprised of the reasons for his or 

her parole decision, thus allowing the prisoner to make a more informed 

choice as to whether to challenge the parole decision. (Sturm, supra, 11 

Cal.3d at p. 267.) If a prisoner elects to challenge his or her parole denial, the 

written statement requirement facilitates the challenge by ensuring that a 

reviewing court has an adequate basis upon which to decide whether the 

parole decision is supported by “some evidence,” as due process requires. 

(Rosenkrantz, supra, 29 Cal.4th at p. 656; Sturm, at p. 270.)
34

The parole regulations afford additional process by allowing a prisoner

to request review of an adverse parole decision. (Regs., tit. 15, §§ 2449.4, 

subd. (i); 2449.7, subd. (a).) A prisoner seeking review has an opportunity to 

articulate why he or she believes the initial parole decision was incorrect and 

provide additional information not available to the hearing officer when the 

initial parole decision was made. (Id., subd. (a).) The review is conducted by 

a hearing officer who was not involved in the initial parole decision. (Id., 

subds. (c)–(d).) Further, the parole regulations do not provide the prosecuting 

agency or the victims of the prisoner’s crimes a means by which to seek 

review of a decision granting parole. Thus, it appears the review procedure

advantages only the prisoner who is seeking parole release. This nonreciprocal review procedure further minimizes the risk of an arbitrary or 

capricious parole denial. (See Stevens v. Workers’ Comp. Appeals Bd. (2015) 

241 Cal.App.4th 1074, 1099 [“[A]s a result of the multiple layers of review, 

the risks of erroneous deprivations ... appear to be fewer].) 

The petitioners contend prisoners would benefit from an additional 

procedural safeguard—a requirement that each parole release decision be 

made by a panel of at least two hearing officers. However, it is not apparent 

to us—and the petitioners have not tried to explain to us—how additional 

panelists would reduce the likelihood of an arbitrary parole release decision. 

A parole release decision is, after all, “an attempt to predict by subjective 

analysis whether the inmate will be able to live in society without committing 

additional antisocial acts ....” (Sturm, supra, 11 Cal.3d at p. 266; In re Busch 

(2016) 246 Cal.App.4th 953, 966 [“The decision whether to grant parole is an 

inherently subjective determination”].) Such an evaluation “is not so readily 

adapted to procedural due process safeguards as are decisions that turn on 

specific factual questions ....” (Ramirez, supra, 25 Cal.3d at p. 273; San Jose 
35

Police Officers Association v. City of San Jose (1988) 199 Cal.App.3d 1471, 

1482–1483 [there are “problems with imposing additional procedural 

safeguards on inherently subjective, evaluative judgments”].) 

We suppose it is conceivable the addition of a second (or third, fourth, 

or even fifth) hearing officer might aid some prisoners in some cases. For 

instance, additional hearing officers inclined to grant parole release to a 

given prisoner might carry the day whereas a single parole officer, left to his 

or her own devices, might otherwise have denied parole release. But it seems 

equally possible that the addition of more hearing officers to the equation 

would cause some prisoners to be denied parole release when they might 

otherwise have been granted parole release if the decision had been left to 

one hearing officer. In short, we have little reason to believe that more

panelists necessarily mean more (and more sound) parole release decisions.

We also question whether additional hearing officers would 

substantially promote the accuracy of the information on which parole 

release decisions are made. The Supreme Court has opined that when multimember panels conduct parole release proceedings for indeterminatelysentenced prisoners, it can be the case that only one panelist devotes his or 

her full attention to the prisoner’s parole suitability while the second panelist 

“usually reads [the] file pertaining to the next inmate who will appear ....” 

(Sturm, supra, 11 Cal.3d at p. 262.) According to the Court, the first “panel 

member states his proposed decision to the other panel member” and “[t]here 

is rarely any disagreement between the two ....” (Ibid.) The Court’s 

observation bolsters our conclusion that the purported advantages of multimember parole panels are, at most, unclear.

The petitioners contend prisoners would also benefit from in-person 

parole hearings. We agree hearings “may be useful in resolving conflicting 
36

information and in the introduction of subjective factors into the decisionmaking process that might otherwise not be considered; it thereby may often 

tend to enhance the accuracy and reliability of the exclusion decision.” 

(Ramirez, supra, 25 Cal.3d at p. 275.) The prisoner’s body language may 

assist the parole decision-maker “in assessing signs of remorse and the effect 

of age,” (J.G., supra, 159 Cal.App.4th at p. 1059)—factors that may in turn 

impact the parole suitability decision. (Regs., tit. 15, § 2449.5, subd. (a).) 

“And even in cases in which [in-person] participation [at a parole hearing] is 

unlikely to affect the outcome of the [parole] decision, it nevertheless 

promotes important dignitary values that underlie due process.” (Ramirez, at 

p. 275; see Cramer v. Gillermina R. (1981) 125 Cal.App.3d 380, 392–393.)

However, under the fourth Ramirez factor, these potential benefits 

cannot be considered in isolation without accounting for the weighty fiscal 

and administrative burdens that in-person parole hearings would impose on 

the government. The appellate record contains a declaration from the 

Board’s Executive Officer in which she averred there were approximately 

4,000 nonviolent, determinately-sentenced inmates who were eligible for 

early parole consideration. She further averred there were about 2,700 more 

inmates who would become eligible for early parole consideration within one 

year. This evidence suggests the Board conducts early parole consideration 

reviews—and would be required to conduct in-person parole hearings if we 
37

were to adopt the petitioners’ argument—for thousands of determinatelysentenced inmates each year.17

These in-person parole hearings would be exceptionally costly for the 

government. Based on the costs associated with in-person parole hearings for 

indeterminately-sentenced prisoners, the People estimate it would cost the 

Board tens of millions of dollars annually to conduct in-person parole 

hearings for all eligible determinately-sentenced nonviolent prisoners.18

Furthermore, we can reasonably infer in-person parole hearings would

consume substantially more time than a documentary review of a prisoner’s 

parole suitability—both to prepare for the in-person hearing and to conduct

the in-person hearing. Therefore, it is apparent in-person parole hearings for 

determinately-sentenced nonviolent felons would place painful fiscal and 

administrative strain on the government.

Finally, with respect to the Ramirez factor concerning dignitary 

interests, we note that the parole regulations permit prisoners to make their 

case for parole release in ways other than in-person parole hearings. As 

noted, they allow prisoners to file a written statement before an initial parole 

decision and, if necessary, in a second written statement explaining why the 

initial parole decision is incorrect. (Regs., tit. 15, §§ 2449.7, subd. (a); 3492, 

17 We grant the People’s request for judicial notice of administrative 

notices and statements pertaining to the adoption of parole regulations. 

(Evid. Code, § 452, subd. (c).) One of those statements indicates that nearly 

30,000 inmates were screened for early parole consideration after voters 

passed Proposition 57. (See Cal. Dept. of Corrections, Credit Earning and 

Parole Consideration Final Statement of Reasons, April 30, 2018, pp. 481, 

552.) 

18 The People note the Governor allocated $8.2 million in his proposed 

annual budget for the implementation of the early parole consideration 

process for indeterminately-sentenced felons. 
38

subd. (c).) Prisoners receive these opportunities annually, assuming they 

remain incarcerated and eligible for parole consideration. (Id., §§ 2449.4, 

subd. (h); 3492, subd. (b).) These opportunities promote the dignitary values 

of the persons seeking parole release. (See Rodriguez v. Department of Real 

Estate (1996) 51 Cal.App.4th 1289, 1298–1299 [broker’s dignitary interest 

satisfied because broker could oppose suspension of his or her license with 

written statement].)

Balancing all these factors, we conclude the parole regulations do not 

violate the procedural due process rights of prisoners. We acknowledge inperson parole hearings might increase the accuracy of some parole release 

decisions and promote the dignity interests of prisoners. However, in our 

view, those potential benefits simply do not prevail over all the other factors 

weighing against a new constitutionally-based right to annual, in-person 

parole hearings. We are particularly cognizant of the fact that prisoners have 

limited liberty interests in parole release proceedings, as well as the obvious 

and considerable fiscal and administrative burdens flowing from in-person 

parole hearings. And while the parole regulations may not assure error-free 

parole decisions in all cases, they contain numerous features that reduce the 

risk of arbitrary parole decisions. Many of those same features promote 

prisoners’ dignitary interests. Considering all these factors, we conclude the 

parole regulations afford prisoners reasonable notice and a reasonable 
39

opportunity to be heard. That is all due process requires.19 (Jonathan Neil 

& Associates v. Jones (2004) 33 Cal.4th 917, 936, fn. 7.)

4

The Parole Criteria Regulation Does Not Offend Due Process

In their appellate brief, the petitioners claim the regulation setting 

forth the criteria for parole suitability determinations (Regs. tit. 15, § 2449.5) 

is void-for-vagueness. The petitioners assert the regulation is impermissibly 

vague because it does not identify the specific amount or type of 

rehabilitative programming in which a prisoner must engage to ensure that 

he or she will be found suitable for parole. 

19 Lower federal court decisions construing the due process clause of the 

federal Constitution do not bind us in our interpretation of the due process 

clause of the California Constitution. (Qualified Patients Association v. City 

of Anaheim (2010) 187 Cal.App.4th 734, 764.) However, we note—and find 

persuasive—that numerous lower federal courts have found the parole 

regulations do not violate prisoners’ procedural due process rights under the 

federal Constitution. (Young v. Lozano (E.D. Cal. Oct. 26, 2020, No. 2:20-cv0350 TLN KJN P) 2020 U.S. Dist. Lexis 198856, at *8–9 [“There is no federal 

requirement that petitioner be physically present at the Proposition 57 parole 

consideration hearing ... [or] that his suitability hearing be conducted with a 

minimum of two commissioners ....”]; Garcia v. Callahan (C.D. Cal. Jan. 8, 

2020, No. CV 19-00661-VAP (DFM)) 2020 U.S. Dist. Lexis 28564, at *4

[“Although Petitioner did not receive an in-person hearing, such a hearing is 

not required.”]; see also, e.g., Cleveland v. Warden (C.D. Cal. Dec. 20, 2019, 

No. 2:19-cv-09730-DSF (GJS)) 2019 U.S. Dist. Lexis 219185, at *10–11; 

Hewitt v. Board of Parole Hearings (E.D. Cal. Oct. 25, 2019, No.: 1:19-cv00501-SAB (PC)) 2019 U.S. Dist. Lexis 185482, at *6–7; Stephens v. Kunz

(C.D. Cal. Sept. 18, 2019, No. CV 19-1008-AB (KS)) 2019 U.S. Dist. Lexis 

212017, at *10.) Further, we note that there is federal appellate authority 

standing for the proposition that in-person parole hearings are not 

guaranteed by the federal due process clause. (Franklin v. Shields (4th Cir. 

1977) 569 F.2d 784, 800 [en banc] [“[W]e discern no constitutional 

requirement that each prisoner receive a personal [parole] hearing ....”].)
40

Moreno and Smith did not challenge the parole criteria regulation on 

vagueness grounds in their petitions for writs of habeas corpus and none of 

the trial courts granted habeas relief based on the alleged vagueness of the 

parole criteria regulation. Therefore, we have doubts the petitioners’ voidfor-vagueness challenge is properly before us. However, assuming the 

general due process violations alleged in the petitioners’ habeas corpus 

petitions adequately encompassed the void-for-vagueness challenges they 

now raise,20 and further assuming those challenges are ripe for our review,

we conclude the parole criteria regulation is sufficiently definite to survive 

the petitioners’ vagueness challenge. 

“The due process clauses of the federal and state Constitutions require 

a reasonable degree of certainty in legislation [and regulation].” (Menefield v. 

Board of Parole Hearings (2017) 13 Cal.App.5th 387, 396.) However, 

regulations governing parole release decisions do not proscribe criminal 

behavior; instead, they guide the exercise of administrative decision-making. 

(Hess v. Board of Parole & Post-Prison Supervision (9th Cir. 2008) 514 F.3d 

909, 914.) Therefore, due process “does not require the same precision in the 

drafting of parole release [regulations] as is required in the drafting of penal 

laws.” (Ibid.; accord Hoffman Estates v. Flipside, Hoffman Estates, Inc. 

(1982) 455 U.S. 489, 498 [“The degree of vagueness that the Constitution 

tolerates ... depends in part on the nature of the enactment.].) 

Title 15, Division 2, Chapter 3, Article 15, section 2449.5 sets forth the 

factors a hearing officer is required to consider when determining whether a 

nonviolent determinately-sentenced prisoner is suitable for early parole. The 

hearing officer must consider aggravating and mitigating factors relating to 

20 “The void-for-vagueness doctrine is a component of the constitutional 

requirement of due process of law.” (Ivory Education Institute v. Department 

of Fish & Wildlife (2018) 28 Cal.App.5th 975, 982.)
41

the prisoner’s current conviction(s), prior criminal conviction(s) and criminal 

behavior, and the institutional behavior, work history, and rehabilitative 

programming, in addition to any statements the prisoner, the prosecuting 

agency, and/or the crime victim(s) submitted. (Regs., tit. 15, § 2449.5.) 

The portion of the regulation concerning the prisoner’s institutional 

behavior, work history, and rehabilitative programming states in pertinent 

part that the hearing officer can consider, as a mitigating factor weighing in 

favor of parole, whether the prisoner “has successfully participated in 

vocational, educational, or work assignments for a sustained period of time,” 

or “successfully participated in rehabilitative or self-help programming to 

address the circumstances that contributed to his or her criminal behavior, 

such as substance abuse, domestic violence, or gang involvement, if any, for a 

sustained period of time.” (Regs., tit. 15, § 2449.5, subd. (g)(2)–(3).) This 

portion of the regulation affords reasonable and sufficient notice to prisoners 

of the nature and type of rehabilitative behavior that will constitute a 

mitigating factor during a parole release decision. Therefore, it is sufficiently 

definite to survive the petitioners’ void-for-vagueness challenge.

To the extent the petitioners contend that due process demands greater

specificity to inform prisoners whether they will receive parole or the weight 

that will be placed on each parole factor, the petitioners are mistaken. As 

noted, a parole release decision is subjective and predictive. (Rosenkrantz, 

supra, 29 Cal.4th at pp. 654-655.) “[T]here is no set of facts which, if shown, 

mandate a decision favorable to the individual.” (Greenholtz, supra, 442 U.S. 

at p. 10.) A parole release decision “may be made ‘for a variety of reasons and 

often involve[s] no more than informed predictions as to what would best 

serve [correctional purposes] or the safety and welfare of the inmate.’ ” 

(Ibid.) “[T]he precise manner in which the specified factors relevant to parole 
42

suitability are considered and balanced lies within the discretion of the 

[parole authority] ....” (Rosenkrantz, at p. 677; see In re Lawrence (2008) 44 

Cal.4th 1181, 1212 [“It is not the existence or nonexistence of suitability or 

unsuitability factors that forms the crux of the parole decision; the significant 

circumstance is how those factors interrelate to support a conclusion of 

current dangerousness to the public.”].) The parole criteria regulation 

specifies the factors that the Board, in its discretion, may weigh and balance 

during each individual prisoner’s parole consideration proceeding. Therefore, 

the parole criteria regulation is not unconstitutionally vague.

IV

DISPOSITION

The orders granting the petitions for writs of habeas corpus are 

reversed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

O’ROURKE, J.