Filed 9/7/18
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

               SECOND APPELLATE DISTRICT

                       DIVISION FIVE




In re VICENSON D. EDWARDS,                B288086

                                          (Los Angeles County
on Habeas Corpus.                         Super. Ct. No. NA028053)




      ORIGINAL PROCEEDINGS; petition for writ of habeas
corpus. Laura L. Laesecke, Judge. Petition granted.
      Michael Satris, under appointment by the Court of Appeal,
for Petitioner.
      Xavier Becerra, Attorney General, Phillip J. Lindsay,
Senior Assistant Attorney General, Jessica N. Blonien, Julie A.
Malone, Supervising Deputy Attorneys General and Charles
Chung, Deputy Attorney General, for Respondent.
       Proposition 57, approved by California voters in 2016,
added a provision to California’s Constitution that reads: “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.” (Cal.
Const., art. I, § 32, subd. (a)(1) (hereafter section 32(a)(1)).) The
newly added constitutional provision defines “the full term for the
primary offense” as “the longest term of imprisonment imposed
by the court for any offense, excluding the imposition of an
enhancement, consecutive sentence, or alternative sentence.”
(§ 32(a)(1)(A).) We consider whether Department of Corrections
and Rehabilitation (CDCR) regulations adopted to implement
this constitutional amendment validly exclude admittedly
nonviolent “Third Strike” offenders sentenced to indeterminate
terms from Proposition 57 relief.

                        I. BACKGROUND
       Petitioner Vicenson D. Edwards (Edwards) is currently
serving an indeterminate life sentence in state prison, imposed
pursuant to the Three Strikes law (Pen. Code, §§ 667, subds. (b)-
(i), 1170.12). He sustained the convictions that triggered his 53-
years-to-life sentence—felon in possession of a firearm (former
Pen. Code, § 12021) and evading a police officer while driving
recklessly (Veh. Code, § 2800.2)—in 1998.1 This court affirmed


1
       Edwards’ sentence was comprised of two consecutive terms
of 25 years to life (one for each count of conviction), plus three
one-year enhancements for prior prison term allegations. The
record before us includes no information about the prior
convictions Edwards sustained that qualified as serious or violent
felony convictions under the Three Strikes law, but our prior


                                 2
these convictions and the sentence imposed (with modifications)
on direct appeal.
       Some twenty years later, following enactment of
Proposition 57, Edwards filed a habeas corpus petition
challenging regulations CDCR promulgated, initially on an
emergency basis (see discussion, post), that made him ineligible
to seek Proposition 57 relief. We directed the California
Appellate Project to appoint counsel, and appointed counsel filed
an amended petition. We then issued an order directing CDCR to
show cause why the relief sought in the petition should not be
granted.
       The Attorney General, on CDCR’s behalf, filed a return
defending the emergency regulations and maintaining Edwards
was ineligible for Proposition 57 relief. Shortly before Edwards
filed his traverse, CDCR promulgated final regulations that
altered CDCR’s theory on which inmates like Edwards would be
deemed ineligible for relief (again, see discussion, post). We
solicited supplemental briefs from the parties concerning the
newly issued final regulations—both sides adhered to the bottom
line positions taken in their principal briefing—and we now
decide the interpretive dispute.

                        II. DISCUSSION
      California voters approved Proposition 57, dubbed the
Public Safety and Rehabilitation Act of 2016, at the November
2016 general election. As relevant here, the (uncodified) text of
Proposition 57 declares the voters’ purposes in approving the


appellate opinion (People v. Edwards (June 6, 2000, B129484)
[nonpub. opn.]) indicates there were at least three such
convictions, apparently including one for attempted murder.


                                 3
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.” (Ballot Pamp., Gen. Elec.
(Nov. 8, 2016) text of Prop. 57, p. 141 [§ 2].) The text of section
32(a)(1) that furthers these purposes is of course crucial to the
question we decide, so we shall reiterate the key language.
Under section 32(a)(1), “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(a)(1).) And for purposes of section
32(a)(1), “the full term for the primary offense means the longest
term of imprisonment imposed by the court for any offense,
excluding the imposition of an enhancement, consecutive
sentence, or alternative sentence.” (§ 32(a)(1)(A).)
      Parsing this language, it is obvious the electorate intended
to establish a new rule: all nonviolent state prisoners are eligible
for parole consideration, and they are eligible when they complete
the full term for their primary offense. CDCR’s implementing
regulations, as finally adopted, concede Edwards and similarly
situated prisoners are nonviolent, but the regulations seize on
section 32(a)(1)’s language that establishes when nonviolent
inmates like Edwards are entitled to parole consideration to deny
them eligibility for relief altogether. CDCR, represented by the
Attorney General, argues the reference to “the full term for the
primary offense” can only refer to a determinate sentence, and
because Edwards and others like him are serving indeterminate
sentences, the regulations properly deem him ineligible for relief
because he has completed no full term that was “imposed by the



                                 4
court.” We hold this regulatory approach is inconsistent with the
newly added constitutional command—most prominently the
language that specifies the full term of the primary offense must
be calculated “excluding the imposition of . . . [an] alternative
sentence.” We shall invalidate the offending provisions of the
CDCR regulations for that reason.

      A.     Legal Background
             1.    The Three Strikes law
       “The Three Strikes law consists of two, nearly identical
statutory schemes designed to increase the prison terms of repeat
felons. The earlier provision, which the Legislature enacted, was
codified as [Penal Code] section 667, subdivisions (b) through (i).
The later provision, which the voters adopted through the
initiative process, was codified as [Penal Code] section 1170.12.”
(People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, fn.
omitted (Romero).) “The purpose of the Three Strikes law ‘is to
provide greater punishment for recidivists.’ (People v. Davis
(1997) 15 Cal.4th 1096, 1099[ ]; see [Pen. Code,] § 667, subd. (b).)
It ‘uses a defendant’s status as a recidivist to separately increase
the punishment for each new felony conviction.’ (People v.
Williams (2004) 34 Cal.4th 397, 404[ ].)” (People v. Hojnowski
(2014) 228 Cal.App.4th 794, 801.)
       When a defendant is convicted of a felony, and it is pleaded
and proved that he or she has committed one or more prior
felonies defined as “violent” or “serious,” sentencing proceeds
under the Three Strikes law. (Pen. Code, §§ 667, subd. (d),
1170.12, subd. (b).) If the defendant has only one qualifying prior
felony conviction, the prescribed term of imprisonment is “twice
the term otherwise provided as punishment for the current felony



                                 5
conviction.” (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd.
(c)(1).) If the defendant has two or more prior qualifying felonies,
the prescribed term for the current (or “triggering”) felony
conviction will be an indeterminate term of life imprisonment,
with the minimum term of the indeterminate sentence calculated
as the greatest of three options. (Pen. Code, § 667, subd.
(e)(2)(A); People v. Acosta (2002) 29 Cal.4th 105, 108.) These
options are: (i) three times the term otherwise provided as
punishment for the current offense, not including enhancements;
(ii) 25 years; or (iii) the term for the underlying conviction, plus
“any applicable enhancement that would be used to lengthen the
term the defendant would receive absent the Three Strikes Law.”
(People v. Acosta, supra, at p. 115.)
        Edwards and CDCR agree, as long-established authority
holds, that “an indeterminate life term under the Three Strikes
law . . . . is an alternative sentence . . . .” (People v. Turner (2005)
134 Cal.App.4th 1591, 1597; accord, Romero, supra, 13 Cal.4th at
p. 527 [“The Three Strikes law . . . articulates an alternative
sentencing scheme for the current offense rather than an
enhancement”]; People v. Frutoz (2017) 8 Cal.App.5th 171, 174,
fn. 3 [“It has long been settled that the [T]hree [S]trikes law
‘articulates an alternative sentencing scheme . . .’”] (Frutoz).)

             2.    The Proposition 57 regulations promulgated by
                   CDCR
      Proposition 57 directed CDCR to adopt regulations “in
furtherance of [section 32(a)]” and “certify that these regulations
protect and enhance public safety.” (Cal. Const., art. I, § 32,
subd. (b) (hereafter section 32(b)).)




                                   6
       In April 2017, California’s Office of Administrative Law
(OAL) approved an “emergency rulemaking action”2 promulgated
by CDCR in response to section 32(b)’s direction. The rulemaking
purported to flesh out the terms of section 32(a), adding
definitions of “nonviolent offender,” “primary offense,” and “full
term.” (Cal. Code Regs., tit. 15, former § 3490.) Most relevant
here was the definition of nonviolent offender, which the
emergency regulations defined as all inmates except those who (1)
are “[c]ondemned, incarcerated for a term of life without the
possibility of parole, or incarcerated for a term of life with the
possibility of parole,” (2) are incarcerated for a violent felony
within the meaning of Penal Code section 667.5, subdivision (c),
or (3) have been convicted of a sexual offense that requires
registration as a sex offender. (Cal. Code Regs., tit. 15, former
§ 3490, subd. (a), italics added; see also Cal. Code Regs., tit. 15,
former § 2449.1, subd. (a).) With this definition, inmates like
Edwards who were not then incarcerated for a triggering violent




2
       CDCR is empowered to adopt emergency regulations
without the usual required showing of an emergency. (Pen. Code,
§ 5058.3, subd. (a)(2).) Instead, CDCR certifies in a written
statement filed with OAL that “operational needs of the
department require adoption, amendment, or repeal of the
regulation on an emergency basis. The written statement shall
include a description of the underlying facts and an explanation
of the operational need to use the emergency rulemaking
procedure.” (Pen. Code, § 5058.3, subd. (a)(2).) The emergency
regulation becomes effective upon filing, or upon any later date
specified by CDCR in writing, for a period of 160 days. (Gov.
Code, § 11346.1, subd. (d); Pen. Code, § 5058.3, subd. (a)(1).)


                                 7
felony specified in Penal Code section 667.53 were nevertheless
excluded from the “nonviolent offender” definition because they
were serving an indeterminate sentence of life with the
possibility of parole pursuant to the Three Strikes law.
       When it later came time to issue final, adopted regulations
in May 2018 after a public comment period, CDCR reconsidered
its definition of nonviolent offender. The adopted regulations,
now codified at sections 3490 and 2449.1 of title 15 of the
California Code of Regulations, no longer exclude Edwards and
others like him from the nonviolent offender definition. (Cal.
Code Regs., tit. 15, § 3490, subd. (a) [providing an inmate is a
nonviolent offender so long as the inmate is not, among other
things, condemned to death, serving a life without possibility of
parole sentence, or serving a sentence for commission of a violent
felony within the meaning of Penal Code section 667.5,
subdivision (c)]; Cal. Code Regs., tit. 15, § 2449.1, subd. (a)
[same].)
       Although the adopted regulations therefore treat Edwards
as a nonviolent offender, CDCR made another change in the
regulations as adopted so that he and similarly situated others
would remain ineligible for Proposition 57 relief. Specifically, the
adopted regulations state nonviolent inmates are generally


3
       Penal Code section 667.5, subdivision (c) defines 23
criminal violations, or categories of crimes, as violent felonies—
including murder, voluntary manslaughter, any robbery,
kidnapping, various specified sex crimes, and other offenses.
Being a felon in possession of a firearm and evading a police
officer while driving recklessly—Edwards’ crimes triggering his
Three Strikes sentence—are not among the violent crimes listed
in Penal Code section 667.5, subdivision (c).


                                 8
eligible for early parole consideration (Cal. Code Regs., tit. 15,
§ 3491, subd. (a)), but notwithstanding that general eligibility,
“an inmate is not eligible for early parole consideration by the
Board of Parole Hearings . . . if . . . [¶] [t]he inmate is currently
incarcerated for a term of life with the possibility of parole for an
offense that is not a violent felony . . . .” (Cal. Code Regs., tit. 15,
§ 3491, subd. (b)(1)). In a Final Statement of Reasons
accompanying the adopted regulations, CDCR asserted “life term
inmates remain ineligible for parole consideration because the
plain text of Proposition 57 makes clear that parole eligibility
only applies to determinately sentenced inmates, and
furthermore, public safety requires their exclusion.” (Cal. Dept.
of Corrections, Credit Earning and Parole Consideration Final
Statement of Reasons, April 30, 2018, p. 14.)

       B.    Standard of Review
       “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.)” (Physicians & Surgeons Laboratories,
Inc. v. Department of Health Services (1992) 6 Cal.App.4th 968,
982; Henning v. Division of Occupational Saf. & Health (1990)
219 Cal.App.3d 747, 757 (Henning).) Therefore, “the rulemaking
authority of the agency is circumscribed by the substantive
provisions of the law governing the agency.” (Henning, supra, at
p. 757.) “‘The task of the reviewing court in such a case is to
decide whether the [agency] reasonably interpreted [its]
legislative mandate. . . . Such a limited scope of review
constitutes no judicial interference with the administrative
discretion in that aspect of the rulemaking function which



                                   9
requires a high degree of technical skill and expertise. . . . [T]here
is no agency discretion to promulgate a regulation which is
inconsistent with the governing statute. . . . Whatever the force of
administrative construction . . . final responsibility for the
interpretation of the law rests with the courts. . . . Administrative
regulations that alter or amend the statute or enlarge or impair
its scope are void . . . .’ [Citation.]” (Id. at pp. 757-758.)
       When construing constitutional provisions and statutes,
including those enacted through voter initiative, “[o]ur primary
concern is giving effect to the intended purpose of the provisions
at issue. [Citation.] In doing so, we first analyze provisions’ text
in their relevant context, which is typically the best and most
reliable indicator of purpose. [Citations.] We start by ascribing
to words their ordinary meaning, while taking account of related
provisions and the structure of the relevant statutory and
constitutional scheme. [Citations.] If the provisions’ intended
purpose nonetheless remains opaque, we may consider extrinsic
sources, such as an initiative’s ballot materials. [Citation.]
Moreover, when construing initiatives, we generally presume
electors are aware of existing law. [Citation.] Finally, we apply
independent judgment when construing constitutional and
statutory provisions. [Citation.]” (California Cannabis Coalition
v. City of Upland (2017) 3 Cal.5th 924, 933-934 (California
Cannabis).)

      C.     Certain Provisions of CDCR’s Regulations Are
             Inconsistent with Section 32(a)(1) and Therefore
             Invalid
     It is (now) undisputed that Edwards qualifies as a
nonviolent offender and, under section 32(a)(1), is “eligible for



                                 10
parole consideration after completing the full term for
his . . . primary offense.” There is also no dispute that Edwards
is currently serving an alternative sentence and the “full term” of
Edwards’ primary offense is “the longest term of imprisonment
imposed by the court for any offense, excluding the imposition of
an enhancement, consecutive sentence, or alternative sentence.”
(§ 32(a)(1)(A), italics added.) The plain language analysis is
therefore straightforward in our view. There is no question that
the voters who approved Proposition 57 intended Edwards and
others serving Three Strikes indeterminate sentences to be
eligible for early parole consideration; the express exclusion of
alternative sentences when determining the full term is
dispositive. (California Cannabis, supra, 3 Cal.5th at p. 934
[“[W]hen construing initiatives, we generally presume electors
are aware of existing law”]; Frutoz, supra, 8 Cal.App.5th at p.
174, fn. 3 [“It has long been settled that the [T]hree [S]trikes law
‘articulates an alternative sentencing scheme . . .’”].) The
Attorney General and CDCR present no persuasive
interpretation of section 32(a)(1) that does not render this
exclusionary language largely if not entirely4 surplusage—indeed,


4
      At oral argument, the Attorney General appeared to agree
that so-called “two-strike” inmates, those who have one prior
serious or violent felony conviction (such that the prison term
imposed for their prison conviction under the Three Strikes law is
a term that is double than what otherwise would have been
imposed) are eligible for Proposition 57 parole consideration once
they complete the non-doubled prison term, i.e., half the sentence
actually imposed. (See generally People v. Gallardo (2017) 4
Cal.5th 120, 125 [“[T]he Three Strikes law . . . requires a second
strike defendant to be sentenced to double the otherwise
applicable prison term for his or her current felony conviction.


                                11
CDCR’s Statement of Reasons accompanying the adopted
regulations never mentions the exclusionary language at all.
       Rather than reckon with the exclusion for alternative
sentences, CDCR highlights other features of section 32(a)(1)’s
text, devising an argument by negative implication that is at war
with the straightforward textual conclusion just outlined. Here is
the argument, as articulated by the Attorney General: “The
proposition defines ‘the full term for the primary offense’ to mean
‘the longest term of imprisonment imposed by the court for any
offense, excluding the imposition of an enhancement, consecutive
sentence, or alternative sentence.’ [Citation.] The phrasing of
this definition indicates that it applies to determinate sentences,
which involve ‘fixed and uniform terms, set by the court at the
time of conviction.’ [Citations.] That is not the same with
indeterminate sentencing, in which ‘the court imposing the
sentence shall not fix the term or duration of the period of
imprisonment.’ [Citations.] An indeterminately sentenced
inmate completes his term only upon a finding that he is suitable

(Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)”].) We
see no principled basis in the plain text of section 32(a)(1) to
distinguish two-strike inmates from three-strike inmates. Yes,
two-strike inmates are serving a determinate term, but there is
no reference to determinate terms in the text of section 32(a)(1)
(though such a reference would have been easy to add were the
intention to provide relief only to determinately sentenced
inmates). The constitutional provision instead says “excluding
the imposition of an enhancement, consecutive sentence, or
alternative sentence” (§ 32(a)(1)(A)), and if the impact of the
Three Strikes alternative sentencing scheme is excluded for two-
strike offenders—where no non-Three Strikes law sentence is
actually imposed by a court—so must it be for three-strike
offenders.


                                 12
for parole.” In other words, CDCR believes California voters
should be understood to have barred a “nonviolent offender” like
Edwards from relief not by expressly limiting Proposition 57
relief to those serving determinate sentences, but by using “term
of imprisonment” in a technical, idiosyncratic sense to sub rosa
exclude those currently serving indeterminate terms by
implication.
       This intricate argument creates tension in the statutory
terms that is unnecessary, and we are convinced it does not
reflect the legislative intention behind Proposition 57. (People v.
Pennington (2017) 3 Cal.5th 786, 795 [courts should adopt
statutory construction that best serves to harmonize the statute
internally and with related statutes]; see People v. Valencia
(2017) 3 Cal.5th 347, 373 [refusing to attribute to “‘the average
voter, unschooled in the patois of criminal law’” an arcane
understanding of legal terminology that is more
straightforwardly understood otherwise].) This is especially true
when we consider the purposes animating Proposition 57, which
include reducing wasteful spending on prisons, emphasizing
rehabilitation, protecting public safety, and avoiding compelled,
indiscriminate inmate releases by federal court decree. (Ballot
Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 57, p. 141 [§ 2].)
       There is strong evidence the voters who approved
Proposition 57 sought to provide relief to nonviolent offenders,
and CDCR’s concessions in its briefing and in the adopted
regulations themselves that Edwards is such an offender (at least
for Proposition 57 purposes) leaves us convinced that excluding
him for relief is inconsistent with the voters’ intentions. (Ballot
Pamp., Gen. Elec. (Nov. 8, 2016) argument in favor of Prop. 57, p.
58 [“[A]s the California Supreme Court clearly stated: parole



                                13
eligibility in Prop. 57 applies ‘only to prisoners convicted of non-
violent felonies’”]; Ballot Pamp., Gen. Elec. (Nov. 8, 2016) rebuttal
to argument against Prop. 57, p. 59 [“The California Supreme
Court clearly stated that parole eligibility under Prop. 57 applies,
‘only to prisoners convicted of non-violent felonies.’ (Brown v.
Superior Court, June 6, 2016). Violent criminals as defined in
Penal Code [section] 667.5[, subdivision] (c) are excluded from
parole”]; see also Brown v. Superior Court (2016) 63 Cal.4th 335,
353 [“[S]ome offenders covered by the original proposal [that
eventually became Proposition 57 as enacted] are serving Three
Strikes sentences. Those prisoners would have been middle aged
by the time they received parole suitability review. The amended
version would apply to the same class of offenders, so long as
their offense was nonviolent”].) In addition, excluding from early
parole consideration the prison population of indeterminately
sentenced inmates deemed nonviolent by CDCR frustrates rather
than facilitates the voters’ declared intention to avoid
indiscriminate inmate releases that might otherwise be required
to respond to constitutional overcrowding concerns (see, e.g.,
Coleman v. Schwarzenegger (E.D.Cal. 2009) 922 F.Supp.2d 882,
949, affd. Brown v. Plata (2011) 563 U.S. 493).
       All that said, we still have before us the question of
precisely when Edwards is entitled to early parole consideration.
CDCR, as we have described at length, answers this question by
reasoning Edwards is not entitled to relief at all because a “full
term” can only be a prison term that was in fact “imposed by the
court,” “not a hypothetical act that could have or might have
happened under different circumstances.” CDCR, however,
misunderstands the upshot of the literalist argument it makes.
Were we to agree with CDCR on this point, the logical



                                 14
implication may well be that nonviolent inmates serving a Three
Strikes indeterminate sentence were eligible for parole
consideration immediately upon passage of Proposition 57
because section 32(a)(1) makes these inmates eligible after
completion of their primary term but excluding any alternative
sentence. In other words, on an overly literal interpretation,
excluding the alternative Three Strikes sentence imposed on
Edwards may mean he has no primary sentence left to complete
and was thus immediately eligible.
       That, however, is not our interpretation. Rather, we agree
with Edwards that the Three Strikes law indeterminate sentence
“is put aside for purposes of determining the full term for his
primary offense, which [here] is the upper term of three years.”
The language in section 32(a)(1) that excludes any alternative
sentence from consideration is most naturally understood as a
command to calculate the parole eligibility date as if the Three
Strikes law alternative sentencing scheme had not existed at the
time of Edwards’ sentencing. In that circumstance, the
maximum term Edwards would face for the current crimes of
conviction is three years in state prison. (Pen. Code, § 18.)
Edwards has long since completed that prison term, and he is
therefore now eligible for early parole consideration.
       In sum, CDCR’s adopted regulations impermissibly
circumscribe eligibility for Proposition 57 parole by barring relief
for Edwards and other similarly situated inmates serving Three
Strikes sentences for nonviolent offenses. The offending
provisions of the adopted regulations are inconsistent with
section 32 and therefore void. (Henning, supra, 219 Cal.App.3d
at p. 758.)




                                 15
                            DISPOSITION
        The petition for habeas corpus is granted. The California
Department of Corrections and Rehabilitation is directed to treat
as void and repeal that portion of section 3491, subdivision (b)(1)
of title 15 of the California Code of Regulations challenged in this
proceeding, and to make any further conforming changes
thereafter necessary to render the regulations adopted pursuant
to section 32(b) consistent with section 32(a) and this opinion.
Edwards shall be evaluated for early parole consideration within
60 days of remittitur issuance, and the California Department of
Corrections and Rehabilitation shall thereafter proceed as
required by law.

              CERTIFIED FOR PUBLICATION




                       BAKER, Acting P. J.

We concur:




                                                              
      MOOR, J.                                   SEIGLE, J.





      Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.


                                 16
