Filed 8/27/20 P. v. Payne CA1/4

                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                  DIVISION FOUR


 THE PEOPLE,
           Plaintiff and Appellant,
                                                                        A158497
 v.
 THOMAS PAYNE,                                                          (Marin County
                                                                        Super. Ct. No. SC206090)
           Defendant and Respondent.


         Thomas Payne filed a petition for writ of habeas corpus alleging that
the Department of Corrections and Rehabilitation (the Department) is
unlawfully excluding him from consideration for early parole under
Proposition 57. The Attorney General disputed Payne’s claim, contending
that the Department has authority to exclude inmates from early parole
consideration when they, like Payne, have a prior conviction for a
registerable sex offense. The superior court granted Payne’s petition, finding
that the challenged regulation is void for reasons set forth in In re Gadlin
(2019) 31 Cal.App.5th 784 (Gadlin), review granted May 15, 2019, S254599.
         The Department filed the present appeal. We reject Payne’s contention
that this appeal is not authorized by statute. However we find that the
Department does not have authority to deny an inmate consideration for




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parole under Proposition 57 because of a prior conviction for a registerable
sex offense. Accordingly, we affirm the order granting Payne’s petition.
                                BACKGROUND
      In 1996, Payne was convicted of forcible oral copulation and sodomy by
force. He was sentenced to a 10-year prison term and required to register as
a sex offender under Penal Code section 290. In 2006, Payne was convicted of
possession of a firearm by a person previously convicted of a violent felony
(Pen. Code, former § 12021.1, subd. (a)) and possession of ammunition by a
person previously convicted of a felony (id. at § 12316, subd. (b)(1)). He was
sentenced to prison for 25 years to life under the Three Strikes Law (Pen.
Code, § 1170.12) plus an additional year for a prior prison term (id. at
§ 667.5, subd. (b)), for an aggregate term of 26 years to life in state prison.
      In 2016, California voters passed Proposition 57, the Public Safety and
Rehabilitation Act of 2016. “[T]he (uncodified) text of Proposition 57 declares
the voters’ purposes in approving the measure were to: ‘1. Protect and
enhance public safety. [¶] 2. Save money by reducing wasteful spending on
prisons. [¶] 3. Prevent federal courts from indiscriminately releasing
prisoners. [¶] 4. Stop the revolving door of crime by emphasizing
rehabilitation, especially for juveniles.’ ” (In re Edwards (2018) 26
Cal.App.5th 1181, 1185.)
      Proposition 57 added section 32 to Article I of the California
Constitution (section 32). Section 32, subdivision (a), provides that “[a]ny
person convicted of a nonviolent felony offense and sentenced to state prison
shall be eligible for parole consideration after completing the full term for his
or her primary offense. [¶] . . . For purposes of this section only, the full term
for the primary offense means the longest term of imprisonment imposed by




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the court for any offense, excluding the imposition of an enhancement,
consecutive sentence, or alternative sentence.”
      Section 32, subdivision (b) directs the Department to “adopt regulations
in furtherance of these provisions.” The regulation that is pertinent to this
appeal provides that an inmate is ineligible for parole consideration if “[t]he
inmate is convicted of a sexual offense that currently requires or will require
registration as a sex offender under the Sex Offender Registration Act,
codified in sections 290 through 290.024 of the Penal Code.” (Cal. Code Regs.,
tit. 15, § 3491, subd. (b)(3) (regulation 3491(b)(3)).) As illustrated by Payne’s
case, the Department interprets this regulation to apply if an inmate has ever
been convicted of a sex-registerable offense, even if that conviction is not a
crime for which the inmate is currently incarcerated.
      In September 2018, Payne filed a habeas petition challenging his
exclusion from consideration for early parole under Proposition 57. Payne
alleged he is entitled to parole consideration under section 32 because his
current offenses are nonviolent felonies for which he has already served full
base terms. He alleged further that the Department’s parole consideration
system for nonviolent offenders contravenes Proposition 57 by, among other
things, excluding from eligibility anyone serving an indeterminate life
sentence and anyone required to register as a sex offender.
      In January 2019, the Attorney General filed an informal response
arguing Payne’s petition was moot because amended Department regulations
that took effect on January 1, 2019, “implement parole review hearings for
certain indeterminately-sentenced offenders under Proposition 57, as ordered
in In re Edwards (2018) 26 Cal.App.5th 1181.”
      In February 2019, the Attorney General filed a supplemental informal
response stating that its original response “inadvertently” failed to address



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Payne’s status as a registered sex offender. The Attorney General
acknowledged that Payne stated a prima facie claim for relief under Gadlin,
supra, 31 Cal.App.5th 784, which had just been decided. Gadlin held that
Department regulations run afoul of section 32 to the extent they disqualify
inmates for early parole consideration because they have prior convictions
that require sex offender registration. (Id. at p. 790.)
      In March 2019, the superior court issued an order to show cause,
directing the Attorney General to file a return. In that return, the Attorney
General alleged that Payne is ineligible for parole review under regulation
3491(b)(3) because he is required to register as a sex offender upon release
from prison. The Attorney General argued that this regulation is not invalid
“in any way,” and that it does not conflict with section 32 because it is
“consistent with public safety and voter intent.” The Attorney General
conceded his position was rejected in Gadlin but argued that Gadlin was not
dispositive because the Department had filed a petition for review.
Accordingly, the Attorney General urged the superior court to approve
regulation 3491(b)(3), deny Payne’s petition, and discharge the order to show
cause.
      Before the superior court ruled on the habeas petition, the California
Supreme Court granted review in Gadlin. In response, the Attorney General
filed a motion to hold the proceeding in abeyance. The Attorney General
argued that because the Supreme Court’s decision in Gadlin would directly
impact Payne’s petition, there was good cause to extend the time for ruling on
it. (Citing Cal. Rules of Court, rule 4.551(h).)
      In an August 2, 2019 order, the superior court denied the Attorney
General’s motion to hold the proceeding in abeyance and granted Payne a
writ of habeas corpus. The court observed that the legal issue presented by



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Payne’s petition is identical to the issue in Gadlin. And, “for the same
reasons stated in Gadlin,” the court found that the regulatory provision that
makes Payne ineligible for early parole consideration is “inconsistent with”
section 32 “and therefore void.” The court directed the Department to
evaluate Payne for early parole consideration within 90 days.
                                 DISCUSSION
I. The Appeal Will Not Be Dismissed
      As a preliminary matter, we address Payne’s contention that this
“purported appeal” should be dismissed because it is “without statutory
basis.” The notice of appeal and appellant’s opening brief cite Penal Code
section 1507 as authority for the proposition that a superior court order
granting a petition for writ of habeas corpus is appealable. Payne contends
that Penal Code section 1507 does not authorize this particular appeal and
therefore a dismissal is warranted. We reject this contention.
      Penal Code section 1507 provides: “Where an application for a writ of
habeas corpus has been made by or on behalf of any person other than a
defendant in a criminal case, an appeal may be taken to the court of appeal
from a final order of a superior court granting all or any part of the relief
sought.” Payne contends this provision does not apply here because he is a
criminal defendant. Technically, Payne’s status in this case is that of a
prison inmate rather than a defendant in a criminal proceeding. Thus, this
appeal is authorized by Penal Code section 1507. (See e.g. In re Smith (2009)
171 Cal.App.4th 1631, 1633 [order reversing Governor’s decision that inmate
was unsuitable for parole appealed under Pen. Code, § 1507].)
      Furthermore, Payne overlooks Penal Code section 1506, which states:
“An appeal may be taken to the court of appeal by the people from a final
order of a superior court made upon the return of a writ of habeas corpus



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discharging a defendant or otherwise granting all or any part of the relief
sought, in all criminal cases, excepting criminal cases where judgment of
death has been rendered . . .” Even if Payne retains his status as a criminal
defendant for purposes of this proceeding, the order granting him habeas
relief would be appealable under Penal Code section 1506. (See e.g., In re
Morganti (2012) 204 Cal.App.4th 904, 915 [order reversing parole board
finding that inmate was unsuitable for parole appealable under Pen. Code,
§ 1506].)
      Thus, whether it be Penal Code section 1506, section 1507, or both,
there is a statutory basis for this appeal.
II. The Challenged Regulation Is Invalid
      “ ‘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. (Gov. Code, § 11342.2.)’ [Citations.]
Therefore, ‘the rulemaking authority of the agency is circumscribed by the
substantive provisions of the law governing the agency.’ ” (In re Edwards,
supra, 26 Cal.App.5th at p. 1189; see also In re McGhee (2019) 34 Cal.App.5th
902, 911 [agency does not have “ ‘discretion to promulgate a regulation which
is inconsistent with the governing statute’ ”].)
      Several courts have found that the Department exceeded its
rulemaking authority by adopting regulation 3491(b)(3) because the
regulation conflicts with section 32, which affords early consideration for
parole to inmates serving a sentence for a nonviolent felony. (Gadlin, supra,
31 Cal.App.5th 784; In re Schuster (2019) 42 Cal.App.5th 943, rev. granted
Feb. 19, 2020, S260024; Alliance for Constitutional Sex Offense Laws v.
Department of Corrections & Rehabilitation (2020) 45 Cal.App.5th 225, rev.
granted May 27, 2020, S261362; In re Chavez (2020) 51 Cal.App.5th 748



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(Chavez).) We agree with these courts with respect to an inmate whose
current offenses are non-violent, and reach the same conclusion.
      Section 32 “broadly applies to ‘[a]ny’ inmate convicted of a nonviolent
felony and, because it uses ‘shall,’ is explicitly mandatory. It contains no
suggestion that it is restricted to those lacking certain prior convictions. The
fact that Proposition 57 expressly requires its provisions ‘shall be liberally
construed to effectuate its purposes’ rebuts any possible inference that the
voters intended for this broad mandate to be restricted by the [Department’s]
enactment of regulations deeming ineligible some of those identified as
eligible in section 32.” (Chavez, supra, 51 Cal.App.5th at p. 754, italics
omitted.)
      Chavez was decided after this appeal was fully briefed, but Gadlin
reaches the same conclusion, finding that the plain language of section 32
makes “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.” (Gadlin, supra, 31
Cal.App.5th at p. 789.) The Department’s policy concerns about public safety
risks posed by inmates with prior convictions for registerable sex offenses do
not “trump the plain text of section 32, subdivision (a)(1).” (Gadlin, at
p. 789.)1
      The Department contends Gadlin was wrongly decided because the
court considered only the literal wording of section 32 and failed to take
account of voter intent as gleaned from Proposition 57’s ballot material. We
are not persuaded by this argument. Courts should not adopt a literal


      1  The Department has filed a motion for judicial notice of court records
from a federal action to implement reforms in the California prison system.
The motion is denied because the material was not before the trial court and
is not relevant to our resolution of this appeal.

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construction of a statute “if it is contrary to the legislative intent apparent in
the statute.” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) “The intent
prevails over the letter, and the letter will, if possible, be so read as to
conform to the spirit of the act.” (Ibid.) Here, “Proposition 57 expressly
requires that its provisions ‘shall be liberally construed to effectuate its
purposes.’ ” (Chavez, supra, 51 Cal.App.5th at p. 754, italics omitted.) This
express intent precludes the Department from relying on ballot arguments to
justify a restrictive regulation that is inconsistent with section 32’s express
provisions. (Id. at pp. 754–755)
      Moreover, we are not persuaded by the Department’s argument about
voter intent expressed in Proposition 57 ballot materials. The Department’s
evidence, which appears to be an excerpt from an official voter pamphlet,
contains an argument by opponents of Proposition 57 and a rebuttal by
proponents of the measure. Opponents urged voters to vote no if they did not
want a criminal who raped an unconscious person or a child molester to
secure “early release from prison.” In the rebuttal argument, proponents
urged voters not to be “misled by false attacks,” and stated that Proposition
57 would not automatically release anyone from prison or change a federal
court order that excludes sex offenders from parole. Assuming that this
material could be judicially noticed, it would show nothing more than a
disagreement about what Proposition 57 would accomplish. This evidence
does not prove that voters necessarily intended to exclude all inmates with
registerable sex offenses from early consideration for parole.
      As the trial court found, Payne is similarly situated in all material
respects to the petitioner in Gadlin. The same is true of this case and
Chavez. For the reasons stated here and in these analogous cases, we affirm
the order granting the petition for writ of habeas corpus and directing the



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Department to grant Payne early parole consideration under section 32. We
emphasize that it is only consideration for parole we are ordering, not release
on parole. It will be for the Parole Board to determine whether or when
Payne is an appropriate candidate for release into the community.
                               DISPOSITION
      The order is affirmed.




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                                 _________________________
                                 TUCHER, J.


WE CONCUR:


_________________________
POLLAK, P. J.


_________________________
BROWN, J.




People v. Payne (A158497)




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