Those on registry can’t be categorically excluded rules CA Supreme Court

In re Gadlin, S254599 (CASC)

Opinion Released 12-28-20

By Larry . . . This appeal was handled by Janice Bellucci, an attorney in California, who is well known for her work on behalf of those required to register.

The case arose as a result of a ballot proposition approved by California voters in 2016. Proposition 57, known as the Public Safety and Rehabilitation Act of 2016, amended the California Constitution to provide 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 initiative also directed the California Department of Corrections and Rehabilitation, hereinafter referenced as “CDCR,” to “adopt regulations in furtherance of these provisions” and instructed the secretary of the CDCR to “certify that these regulations protect and enhance public safety.” Opinion at p. 1.

The backdrop of Proposition 57 is that California’s prisons have been packed well beyond their design capacity for many years due to their Three Strikes Law and other tough on crime initiatives that drove the inmate population through the roof. In fact, a three-judge federal district court panel ordered the CDCR to reduce the prisoner population to 137.5% of the adult institution’s total design capacity back in 2009. See Coleman v. Schwarzenegger (E.D.Cal. 2009) 922 F.Supp.2d 882, 962; see also Brown v. Plata (2011) 563 U.S. 493, 501-503.) The California Legislature and voters subsequently enacted several measures aimed to reduce the prison population, including Assembly Bill No. 109 (Stats. 2011, ch. 15, § 482 (2011-2012 Reg. Sess.); criminal realignment) and Proposition 36 (the Substance Abuse and Crime Prevention Act of 2000). Still, the issue persisted, and in February 2014, the federal district court ordered the CDCR to implement additional measures.

The CDCR adopted regulations implementing a nonviolent offender parole consideration process. Those regulations exclude from nonviolent offender parole consideration any inmate who “is convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act.” The CDCR contended that it is authorized to exclude from nonviolent offender parole consideration all inmates convicted of a registerable sex offense, regardless of whether that offense is defined by the regulations as a nonviolent felony and regardless of whether the inmate is currently incarcerated for that conviction.

The challenge was brought by Gregory Gadlin. Gadlin was convicted in 2007 of assault with a deadly weapon. The jury sustained allegations that Gadlin had previously been convicted of two serious felonies.  Gadlin had a 1984 conviction for forcible rape and a 1986 conviction for forcible child molestation. Both prior convictions require registration under the Sex Offender Registration Act. Following his conviction in 2007, Gadlin was sentenced to a total prison term of 35 years to life, consisting of 25 years to life for assault with a deadly weapon under the “Three Strikes” law. After the voters approved Proposition 57, Gadlin filed a petition for a writ of habeas corpus in the Los Angeles County Superior Court. The petition challenged the CDCR’s determination that he did not qualify for nonviolent offender parole consideration, and specifically challenged the provision of the regulations excluding from nonviolent offender parole consideration inmates like himself who had been convicted under the Three Strikes law. Not surprisingly, the trial court denied the petition, finding that the then-applicable regulations properly excluded inmates serving third strike sentences from eligibility for nonviolent offender parole consideration. Gadlin appealed the decision to the California Court of Appeal. The appellate court held that the amended regulations improperly excluded him from nonviolent offender parole consideration based on his two prior sex offense convictions. See In re Gadlin, 243 Cal.Rptr.3d 331, 31 Cal.App.5th 784. Looking to the language of the constitutional provision, the appellate court determined that the reference to “convicted” and “sentenced” in conjunction with present eligibility for parole once a full term is completed makes it clear that early parole eligibility must be assessed based on the conviction for which an inmate is now serving a state prison sentence (the current offense), rather than prior criminal history.

The California Supreme Court concluded that this categorical exclusion conflicts with the constitutional directive that inmates “. . . convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration.” (Art.  I,§ 32(a)(1).) The Court emphasized that this determination does not require the release on parole of any inmate. The evaluation of an inmate’s suitability for parole and the processes involved in conducting that evaluation remain squarely within the purview of the CDCR and the Board of Parole Hearings.

The court held that nonviolent offender parole eligibility must be based on an inmate’s current conviction, and that an inmate may not be excluded from nonviolent offender parole consideration based on a current conviction for a registerable felony offense that the Department’s regulations have defined as nonviolent. Opinion at 40.

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Larry serves as NARSOL'S treasurer, publisher of the Digest, and co-chair of the conference planning committee. He also hosts the "NARSOL in Action" and "Can They Do That?" webinars and is a regular on the "Registry Matters" podcasts.

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    • #79409 Reply

      Tom Kurey

      How do I get in contact with Janice Bellusci regarding my rights under recently passed California’s SB384. I have been on the registry for over 20yrs and would like to be removed from the DOJ Website even if I still have to register.

      • #79412 Reply

        Sandy Rozek

        Janice can be reached through ACSOL.

    • #79418 Reply

      Tim in WI

      There is no way to prevent ex post registrants from practicing their right to fair trial & jury an FTR scenario either. What i like from this article about challenging authority and winning. Ultimately the court concluded, like DOE03, was focused on
      “legislative intent” of the Act which DID NOT specifically excluded sexual oriented convicts. Lacking the specific text in statute, the agency promulgated the rules incorrectly by the exclusion. As Michigan proves this missing text in statute is easily added or altered should the state’s legislature opt to do so formally. Coming into compliance with constitutional rights doesn’t necessarily mean better situational disposition for sex offenders.

      In my estimation all this guy did was set himself up for certain rejection come parole time. Sure he will get his meeting, and they may even comment on his court victory buy in the end it will be stamped denied.

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