Filed 6/30/20
                            CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT



            In re FRANK RAY CHAVEZ                H046921
                                                 (Santa Clara County
            on Habeas Corpus.                     Super. Ct. No. C9804583)


        Appellant California Department of Corrections and Rehabilitation (CDCR)
challenges the superior court’s order granting respondent Frank Ray Chavez’s habeas
corpus petition and ordering the CDCR to grant early parole consideration to Chavez
under Proposition 57. The CDCR contends that the superior court erred in ruling
invalid the CDCR’s regulation, which excluded from eligibility for early parole
consideration under Proposition 57 any inmate who, like Chavez, had suffered a prior
conviction for a sexual offense that required sex offender registration. The superior
court, relying on In re Gadlin (2019) 31 Cal.App.5th 784 (Gadlin), review granted
May 15, 2019, S254599, concluded that the CDCR’s regulation was inconsistent with
Proposition 57 and therefore did not justify the CDCR’s refusal to grant Chavez early
parole consideration. The CDCR challenges that conclusion on appeal, but we agree
with the superior court and affirm.
I.      BACKGROUND
        In 1994, Chavez was convicted by plea of assault with intent to commit rape
                        1
(Pen. Code, § 220), a sex offense requiring sex offender registration under section 290
                    2
(§ 290, subd. (c)). He was sentenced to nine years in state prison. In 1999, Chavez


        1
         All further statutory references are to the Penal Code unless otherwise
specified.
       2
         The section 220 offense was also a violent felony. (§ 667.5, subd. (c)(15).)
pleaded guilty to failing to register as a sex offender (former § 290, subd. (g)(2);
current § 290.018, subd. (b)) and admitted five strike (§§ 667, subds. (b)-(i), 1170.12)
            3
allegations. Chavez was sentenced to a Three Strikes term of 25 years to life for the
                           4
failure to register offense.
       In February 2018, Chavez’s request to be granted early parole consideration
under Proposition 57 was denied, and he was informed that his initial parole
consideration proceeding was tentatively scheduled for July 2021.
       In May 2018, Chavez filed a petition for a writ of habeas corpus raising
numerous issues, including his challenge to the CDCR’s refusal to grant him early
parole consideration under Proposition 57. The superior court denied his petition as to
the other issues, but in October 2018 it issued an order to show cause (OSC) on the
Proposition 57 issue.
       In March 2019, the court granted Chavez’s petition as to the Proposition 57
issue and ordered the CDCR to “provide Chavez with early parole consideration
within 60 days” of its order. On May 1, the CDCR asked the superior court to stay its
order pending appeal. The court denied the request. On May 9, the CDCR filed a
notice of appeal from the court’s order. On May 23, we issued a temporary stay, and
on October 2, we issued a writ of supersedeas staying the superior court’s order
pending final resolution of this appeal.




       3
          This offense would have been punishable by a maximum prison term of three
years if Chavez had not been sentenced under the Three Strikes alternative sentencing
scheme. (Former § 290, subd. (g)(2); current § 290.018, subd. (b).)
        4
          When he was sentenced in September 2000, Chavez was awarded 848 days of
credit against his term.

                                            2
II.    ANALYSIS
       A.     Proposition 57
       Proposition 57, which took effect in November 2016, is entitled “The Public
Safety and Rehabilitation Act of 2016.” (Voter Information Guide, Gen. Elec.
(Nov. 8, 2016) text of Prop. 57, § 1, p. 141 (Voter Information Guide).) Its express
purposes are: “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. [¶] 5. Require a judge, not a prosecutor, to
decide whether juveniles should be tried in adult court.” (Id., § 2, p. 141.)
       One of the provisions added by Proposition 57 was section 32 of Article I of the
                        5
California Constitution. Section 32 provides: “(a) The following provisions are
hereby enacted to enhance public safety, improve rehabilitation, and avoid the release
of prisoners by federal court order, notwithstanding anything in this article or any
other provision of law: [¶] (1) Parole Consideration: Any person convicted of a
nonviolent felony offense and sentenced to state prison shall be eligible for parole
consideration after completing the full term for his or her primary offense.
[¶] (A) For purposes of this section only, the full term for the primary offense means
the longest term of imprisonment imposed by the court for any offense, excluding the
                                                                                6
imposition of an enhancement, consecutive sentence, or alternative sentence.[ ]


       5
         All further references to section 32 are to this provision.
       6
         The CDCR’s regulations further defined “primary offense” under section 32:
“ ‘Primary offense’ means the single crime for which any sentencing court imposed
the longest term of imprisonment, excluding all enhancements, alternative sentences,
and consecutive sentences. For purposes of determining the primary offense under
this section, the term of imprisonment for inmates sentenced to a life term under an
alternative sentencing scheme for a nonviolent crime shall be the maximum term
applicable by statute to the underlying nonviolent offense.” (Cal. Code Regs., tit. 15,
§ 3495, subd. (d).) Chavez was sentenced to a life term under the Three Strikes

                                            3
[¶] (2) Credit Earning: The Department of Corrections and Rehabilitation shall have
authority to award credits earned for good behavior and approved rehabilitative or
educational achievements. [¶] (b) The Department of Corrections and Rehabilitation
shall adopt regulations in furtherance of these provisions, and the Secretary of the
Department of Corrections and Rehabilitation shall certify that these regulations
protect and enhance public safety.” (Cal. Const., Art. I, § 32.) Proposition 57
provided that “[t]his act shall be liberally construed to effectuate its purposes.” (Voter
Information Guide, supra, text of Prop. 57, § 9, p. 146; see also id. § 5, p. 145 [“This
act shall be broadly construed to accomplish its purposes”].)
       B.     The CDCR’s Regulations
       After Proposition 57 took effect, the CDCR adopted regulations implementing
early parole consideration for inmates under section 32. “When defining those
inmates who will be eligible for early parole consideration, CDCR’s rulemaking took a
different approach than the constitutional provision—focusing less on the nature of an
offense committed by a person (i.e., ‘a nonviolent felony offense’) and more on the
person who commits one or more crimes.” (In re Mohammad (2019) 42 Cal.App.5th
719, 723, review granted Feb. 19, 2020, S259999.) The CDCR’s regulations provide
that an indeterminately-sentenced inmate convicted of a nonviolent offense is eligible
for early parole consideration under section 32 and generally is entitled to a parole
                                                           7
consideration hearing within one year of January 1, 2019. (Cal. Code Regs., tit. 15,
§§ 2449.32, 3496, 3497.) However, the CDCR’s regulations also provide that “an


alternative sentencing scheme, but his nonviolent offense, his “primary offense,”
otherwise had a maximum term of three years.
       7
         The CDCR’s original regulations under section 32 entirely excluded those
serving indeterminate terms. (In re Edwards (2018) 26 Cal.App.5th 1181, 1188
(Edwards).) Those regulations were found to be invalid because they conflicted with
section 32’s intent (Edwards, supra, at p. 1191), and the CDCR subsequently enacted
new regulations that did not exclude all of those serving indeterminate terms. (Gadlin,
supra, 31 Cal.App.5th at p. 787.)

                                            4
inmate is not eligible for a parole consideration hearing by the Board of Parole
Hearings under [Cal. Code Regs., tit. 15, § 2449.32 (early parole consideration under
section 32)] if the 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, § 3496,
subd. (b).) The CDCR enacted this restrictive regulation because, in its view, “ ‘these
sex offenses demonstrate a sufficient degree of violence and represent an unreasonable
risk to public safety to require that sex offenders be excluded from nonviolent parole
consideration.’ ” (Gadlin, supra, 31 Cal.App.5th at p. 788.)
       C.     Standard of Review
       “Whenever by the express or implied terms of any statute a state agency has
authority to adopt regulations to implement, interpret, make specific or otherwise carry
out the provisions of the statute, no regulation adopted is valid or effective unless
consistent and not in conflict with the statute and reasonably necessary to effectuate
the purpose of the statute.” (Gov. Code, § 11342.2.)
       “In determining the proper interpretation of a statute 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. . . . [¶] On the other hand, . . . ‘there is
no agency discretion to promulgate a regulation which is inconsistent with the
governing statute.’ ” (Ontario Community Foundations, Inc. v. State Bd. of
Equalization (1984) 35 Cal.3d 811, 816.) “[T]he burden of proof is on the party
challenging the regulation. ‘The agency’s action comes before the court with a
presumption of correctness and regularity, which places the burden of demonstrating
invalidity upon the assailant.’” (Credit Ins. Gen. Agents Assn. v. Payne (1976) 16
Cal.3d 651, 657.)



                                             5
       D.     Analysis
                                                                           8
       The CDCR contends that its regulation excluding sex offenders is valid
because it is consistent with the CDCR’s understanding of the voters’ intent in
enacting section 32. The CDCR maintains that “subdivision (a)(1) of Section 32 has
an undefined scope,” and that, looking beyond section 32’s “text alone” to the “ballot
pamphlet,” it could reasonably conclude that “the voters’ intent” was “that sex
offenders be excluded from Proposition 57’s nonviolent parole process.” The CDCR
believes that “Proposition 57’s intent was to implement parole reform for nonviolent
                                      9
inmates who are not sex offenders.”
       “The general principles that govern interpretation of a statute enacted by the
Legislature apply also to an initiative measure enacted by the voters. [Citation.] Thus,
our primary task here is to ascertain the intent of the electorate [citation] so as to
effectuate that intent [citation]. [¶] We look first to the words of the initiative
measure, as they generally provide the most reliable indicator of the voters’
intent. [Citations.] Usually, there is no need to construe a provision’s words when
they are clear and unambiguous and thus not reasonably susceptible of more than one
meaning. [Citations.] . . . [¶] A literal construction of an enactment, however, will
not control when such a construction would frustrate the manifest purpose of the


       8
         Our references to “sex offenders” in this opinion are to those with prior sex
offenses requiring registration. We express no opinion on the validity of any CDCR
regulation to the extent that it excludes those with current sex offenses from early
parole consideration. (Compare Gadlin, supra, 31 Cal.App.5th at pp. 790-791
(concurring opn. of Baker, Acting P.J.) [CDCR may validly exclude those with current
sex offenses] with Alliance for Constitutional Sex Offense Laws v. Department of
Corrections & Rehabilitation (2020) 45 Cal.App.5th 225, 234-235 (Alliance), review
granted May 27, 2020, S261362 [CDCR’s exclusion of current sex offenders is
invalid].)
       9
         We deny the CDCR’s request for judicial notice of materials related to the
federal court’s orders because we find those materials irrelevant to the issues before
us.

                                             6
enactment as a whole. [Citations.] . . . In determining the purpose of an initiative
measure, we consider the analysis and arguments contained in the official election
materials submitted to the voters.” (Arias v. Superior Court (2009) 46 Cal.4th 969,
978-979.)
       The key questions we must ask are whether the CDCR’s exclusion of sex
offenders is consistent or inconsistent with section 32’s provisions and whether the
CDCR could reasonably conclude that its exclusion of sex offenders was “in
furtherance of” section 32’s “provisions.”
       We begin with the relevant express provisions of section 32. Section 32
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.” This provision 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 that 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 CDCR’s enactment of
regulations deeming ineligible some of those identified as eligible in section 32.
(Voter Information Guide, supra, text of Prop. 57, § 9, p. 146, italics added.)
Accordingly, we conclude that the CDCR’s restrictive regulation is inconsistent with
section 32’s express provisions.
       The CDCR claims otherwise and points to section 32’s express authorization
for the CDCR to “adopt regulations in furtherance of [section 32’s] provisions” and to
“certify that these regulations protect and enhance public safety.” We disagree. The
CDCR could not have reasonably concluded that its restrictive regulation was “in
furtherance” of the broad mandate that the voters had explicitly required to be
liberally construed.

                                             7
       The CDCR claims that the words “[a]ny person convicted of a nonviolent
felony offense” is ambiguous and that we should examine arguments in the Voter
Information Guide for evidence of the voters’ intent. It is true that, even where
provisions are clear and unambiguous, “the ‘plain meaning’ rule does not prohibit a
court from determining whether the literal meaning of a statute comports with its
purpose. . . . Literal construction should not prevail if it is contrary to the legislative
intent apparent in the statute. The intent prevails over the letter, and the letter will, if
possible, be so read as to conform to the spirit of the act. [Citations.] . . . . These rules
apply as well to the interpretation of constitutional provisions.” (Lungren v.
Deukmejian (1988) 45 Cal.3d 727, 735.) The flaw in the CDCR’s argument is that the
voters expressly stated their intent: a broad mandate that they required to be liberally
construed. This express intent precludes reliance on ballot arguments to support a
                                                   10
restrictive interpretation of that broad mandate.

       10
           We decline to resort to the Voter Information Guide to determine whether it
contains indications that are inconsistent with the voters’ express intent. Even if we
did, we would find no support for the CDCR’s claim. The Voter Information Guide
contained the Legislative Analyst’s description of Proposition 57’s early parole
consideration provisions. This description said nothing about sex offenders, but it did
mention a federal court order that was in place: “[C]ertain individuals who have not
been convicted of violent felonies are currently eligible for parole consideration after
they have served half of their prison sentence. This was one of several measures put in
place by a federal court to reduce the state’s prison population.” (Voter Information
Guide, supra, Legislative Analyst’s analysis, p. 54.)
        The Voter Information Guide also contained the arguments for and against
Proposition 57, which did mention sex offenders. The opponents of Proposition 57
argued that “[t]hose previously convicted of MURDER, RAPE and CHILD
MOLESTATION would be eligible for early parole.” (Voter Information Guide,
supra, rebuttal to argument in favor of Prop. 57, p. 58.) The opponents also argued
that “at least 16,000 dangerous criminals, including those previously convicted of
murder and rape, would be eligible for early release.” (Id., argument against Prop. 57,
p. 59, italics omitted.) The proponents’ only response to these arguments was their
argument that Proposition 57 “does NOT and will not change the federal court order
that excludes sex offenders, as defined in Penal Code 290, from parole.” (Id., rebuttal
to argument in favor of Prop. 57, p. 59.)

                                              8
       The Second District Court of Appeal rejected a similar argument in Gadlin.
It concluded that section 32’s express references to “convicted,” “sentenced,” “felony
offense,” “primary offense,” and “term” “make clear that early parole eligibility must
be assessed based on the conviction for which an inmate is now serving a state prison
sentence (the current offense), rather than prior criminal history.” (Gadlin, supra, 31
Cal.App.5th at p. 789; see also In re Schuster (2019) 42 Cal.App.5th 943, review
granted Feb. 19, 2020, S260024 [agreeing with Gadlin].) The Third District Court of
Appeal in Alliance also rejected the CDCR’s restrictive view of section 32’s broad
mandate. “Permitting the Department to restrict the number of eligible inmates due to
perceived danger to public safety does not broadly construe the stated goals of the
proposition. For example, restricting the number of inmates eligible for early parole
consideration would not save money by reducing wasteful spending on prisons.
Rather, it would require continued spending to house nonviolent sex offenders
otherwise eligible for parole. The Department’s regulation would also not help
prevent federal courts from indiscriminately releasing prisoners due to state prisons’
overcrowding; the Department’s decision to render ineligible otherwise eligible
inmates impedes the goal of reducing the prison population.” (Alliance, supra, 45
Cal.App.5th at pp. 234-235.)
       We conclude that section 32’s broad mandate is inconsistent with the CDCR’s
restrictive regulation barring early parole consideration for those with prior
convictions for sex offenses that require sex offender registration and that the CDCR
could not have reasonably concluded that its restrictive regulation was “in furtherance”
of a broad mandate that the voters had expressly required to be liberally construed.
Consequently, the superior court correctly concluded that Chavez was entitled to early
parole consideration under section 32.
III.   DISPOSITION
       The order is affirmed.

                                            9
                                _______________________________
                                ELIA, J.




WE CONCUR:




_____________________________
PREMO, Acting P.J.




_____________________________
BAMATTRE-MANOUKIAN, J.




In re Chavez on Habeas Corpus
H046921
Trial Court:                    Santa Clara County Superior Court
                                Superior Court No.: C9804583


Trial Judge:                    Honorable Daniel T. Nishigaya


Counsel for Respondent:         Joseph Vincent Doyle
FRANK RAY CHAVEZ


Counsel for Appellant:          Xavier Becerra
DEPARTMENT OF CORRECTIONS       Attorney General of California
AND REHABILITATION
                                Phillip J. Lindsay
                                Senior Assistant Attorney General

                                Sarah J. Romano
                                Supervising Deputy Attorney General

                                Michael Joseph Lagrama
                                Deputy Attorney General




In re Chavez on Habeas Corpus
H046921
