Prosecutors no longer have discretion to directly file cases in adult court against minors.

Transcription

1 Date: November 15, 2016 Date: November 28, #25- IPG (PROPOSITION 57) On November 8, 2016, California voters passed Proposition 57 The Public Safety and Rehabilitation Act of This IPG discusses the most significant aspects of that initiative with Santa Clara County DDA Kathy Storton. Here are some of the highlights: Under an amendment to the California Constitution, defendants who are sentenced to crimes other than those listed as violent felonies will be eligible for release on parole once they have served their sentence on the crime with the longest sentence, regardless of any enhancements, alternative sentences, or how many crimes they were convicted of. Under an amendment to the California Constitution, the Department of Corrections and Rehabilitation will have the authority to give additional conduct credit to any prisoner and potentially without regard to statutes limiting conduct credits. It is no longer required that juveniles age 14 or older who personally commit murder with special circumstances or certain forcible sex crimes be prosecuted in adult court. Prosecutors no longer have discretion to directly file cases in adult court against minors. This IPG memo is accompanied by a podcast providing 50 minutes of general MCLE credit. Click below to listen to the podcast: 1

2 TABLE OF CONTENTS I. PROPOSITION 57 (THE PUBLIC SAFETY AND REHABILITATION ACT OF 2016) 4 1. Overview of Prop What is the effective date of Prop 47? 4 3. What is the stated purpose and intent of Prop 57? 4 4. What is the impact of Prop 57 on when persons in state prison may be released? 5 5. Who is eligible for early release? 6 6. What is a non-violent felony offense under Prop 57? 6 7. If the defendant is a registered sex offender, will the defendant be ineligible for early parole pursuant to Prop 57 regardless of whether the offense for which defendant is serving time is a non-violent felony? 9 8. How much of a defendant s sentence must a defendant serve before becoming eligible for early release under Prop 57? (That is, what is the full term of a primary offense? ) 11 A. What is an alternative sentence? 11 (i) Will defendants who are serving Three Strike sentences be eligible for early release? 13 B. Will crimes that are designated violent felonies only because of an attached enhancement qualify as non-violent felony offenses? 13 C. Will defendants who are serving time based on convictions for both nonviolent felony offenses and violent felony offenses be eligible for early parole consideration? What does it mean to be eligible for parole consideration does it include persons released on PRCS? Will there be a hearing to determine whether and when a defendant who is eligible for parole consideration should be released? What criteria will be used to determining whether someone eligible for early parole consideration gets released? Will victims of the crimes committed by Prop 57 eligible offenders have a right to be present and heard at parole consideration hearings under Marsy s Law? Does Proposition 57 have any impact on defendants convicted of felonies who are serving their time in county jail under an 1170(h) sentence? What impact does Prop 57 have on the ability of state prisoners to obtain additional conduct credits? 23 2

3 A. Will CDCR s authority to award additional credits override existing statutory limitations on the amount of conduct credit that can be received by certain defendants? What impact does Prop 57 have on the prosecutor s ability to directly file charges against juvenile defendants in adult criminal court? What impact does Prop 57 have on the criteria used by the juvenile court in determining whether a minor should be subject to criminal proceedings? Is the requirement that a juvenile have a transfer hearing before being prosecuted in adult court retroactive to pending cases? 27 A. If Prop 57 is retroactive, will it impact cases where convictions occurred before its effective date? 44 B. Is a juvenile defendant who has a pending criminal case, but who was determined to be unfit for prosecution in juvenile court by a judge before Prop 57 passed, entitled to a new transfer hearing? If a case had already been direct filed in criminal court before Prop 57 was enacted, and the court indicates a desire to halt the proceedings (and/or the prosecution agrees to halt the proceedings) in order for a transfer hearing to occur, is there anything to keep in mind? 45 A. If a case had already been direct filed in criminal court before Prop 57, can the transfer determination be made by a judge in criminal court rather than having the case sent down for the determination to be made by a juvenile court judge? 48 3

4 PROPOSITION 57 (THE PUBLIC SAFETY AND REHABILITATION ACT OF 2016) 1. Overview of Prop 57 Proposition 57 amends the California Constitution and juvenile statutes by: (1) Providing for early parole for any person convicted of a non-violent felony offense and sentenced to state prison... after completing the full term for his or her primary offense; (2) Authorizing the California Department of Corrections and Rehabilitation (CDCR) to grant any state prison inmate additional good behavior credits and rehabilitative or educational achievement credits; (3) Requiring CDCR to adopt regulations and then certify that they protect and enhance public safety; and (4) Requiring juvenile courts to decide whether a minor should be transferred to adult court by eliminating mandatory and discretionary direct filing by prosecutors. 2. What is the effective date of Prop 57? Prop 57 is effective on November 9, 2016, the day after the election. Pursuant to Article II, Section 10(a) of the California Constitution, an initiative approved by the voters takes effect the day after the election unless the measure provides otherwise. Since Prop 57 does not provide for a different effective date, it is effective on November 9, *Editor s note: The potential retroactivity of Prop 57 is discussed in this IPG, section 17 at pp What is the stated purpose and intent of Prop 57? In section 2 of Prop 57, it states: In enacting this act, it is the purpose and intent of the people of the State of California to: 1. Protect and enhance public safety. 2. Save money by reducing wasteful spending on prisons. 4

5 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. 4. What is the impact of Prop 57 on when persons in state prison may be released? Prop 57 may have immense impact on when persons are released from state prison because it amended the California Constitution to add provisions that will permit inmates to be eligible for parole consideration much earlier than they would previously have been eligible and will allow inmates to accrue conduct credits in greater amounts than previously dictated by statute. Prosecutors need to be aware of the potential effects of Proposition 57 (i) when negotiating plea bargains; (ii) when informing victims of crime how long a defendant will have to serve before he or she is potentially eligible for release from prison; and (iii) when informing victims of crimes of their right to be notified upon request when a hearing on defendant s potential release on parole or PRCS from state prison is going to be held. Specifically, Prop 57 added section 32 to article I of the California Constitution: (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 non-violent 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 imposition of an enhancement, consecutive sentence, or alternative sentence. (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. 5

6 (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. (Emphasis added by IPG.) 5. Who is eligible for early release? Persons eligible for early release under Prop 57 are persons convicted of a non-violent felony offense and sentenced to state prison who have completed the full term of their primary offense. (Cal. Const., art. I, 32, subd. (a)(1).) 6. What is a non-violent felony offense under Prop 57? Prop 57 does not define the term non-violent felony offense. Accordingly, how it will be defined will likely be the subject of some litigation. Since there is no definition of non-violent felony offense provided in Prop 57, there is a reasonable probability that courts will interpret the definition of that term by looking to how the term violent felony is defined; and then defining non-violent felony offense as referring to all felony offenses not defined as violent felonies. Indeed, in the Analysis by the Legislative Analyst, it was stated: Although the measure and current law do not specify which felony crimes are defined as nonviolent, this analysis assumes a nonviolent offense would include any felony offense that is not specifically defined in statute as violent. (Ballot Pamp., Primary Elec. (Nov. 8, 2016) Analysis by the Legislative Analyst at p. 56.) The term violent felony is defined in Penal Code section 667.5(c). And in the REBUTTAL TO ARGUMENT AGAINST PROPOSITION 57 listed in the official voter information ballot, it was stated: Violent criminals as defined in Penal Code 667.5(c) are excluded from parole. Does NOT and will not change the federal court order that excludes sex offenders, as defined in Penal Code 290, from parole. If the definition of the term non-violent felony is viewed as ambiguous, these ballot statements may be considered in determining how to interpret the term. (See Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037 [Where there is ambiguity in the language of the measure, [b]allot summaries and arguments may be considered when determining the voters intent and understanding of a ballot measure. ]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208,

7 [ ballot summary and arguments and analysis presented... in connection with a particular measure may be helpful in determining the probable meaning of uncertain language ].) However, just because a term is undefined in an initiative, this does not necessarily mean a term is ambiguous. When a phrase is not defined within the initiative, it can be assumed to refer not to any special term of art, but rather to a meaning that would be commonly understood by the electorate. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 302.) If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) [A]nd in the absence of specifically defined meaning, a court looks to the plain meaning of a word as understood by the ordinary person, which would typically be a dictionary definition. (Hammond v. Agran (1999) 76 Cal.App.4th 1181, 1189.) If the dictionary definition is used, then the term would be given a much broader definition than crimes not listed in section (See e.g., [ You can refer to someone or something such as a crime as non-violent when that person or thing does not hurt or injure people. ].) Moreover, unlike some other statutes, which define the term violent felony by making specific reference to the definition used in Penal Code section 667.5(c) (see e.g., Educ. Code, ; Govt. Code, 7282(g); Pen. Code, , 1319, 31360/17320, ; and Welf & Inst. Code, 707(b)(21)), Prop 57 does not refer to section at all. Moreover, Penal Code section 667.5(c) itself specifically confines its definition of violent felony to section (See Pen. Code, 667.5(c) [ For the purpose of this section, violent felony shall mean any of the following: [listing designated offenses], emphasis added by IPG.].) Indeed, an argument can be made when the intent of a new initiative is to allow a benefit to attach to every defendant but those convicted of offenses listed in Penal Code section 667.5, the language of the new law specifically says so as was done when Proposition 36 (2012 version) enacted Penal Code section and when Proposition 36 (2000 version) enacted Penal Code section (See Pen. Code, (b) [ Any person serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section upon conviction,... of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section or subdivision (c) of Section , may file a petition for a recall... ]; Pen. Code, 7

8 1210.1(a)&(b) [granting probation to any person convicted of a nonviolent drug possession offense but, inter alia, excluding (1) Any defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section or subdivision (c) of Section ].) (Emphasis added by IPG.) Regardless, as indicated above, and as expressly recognized by Justice Chin in his dissenting opinion in Brown v. Superior Court (2016) 63 Cal.4th 335: Because the United States Supreme Court recently declared unconstitutional as impermissibly vague the term violent felony in a federal statute (Johnson v. U.S. (2015) U.S., 135 S.Ct. 2551, 192 L.Ed.2d 569), the absence of a definition is troublesome, to say the least. The Penal Code contains various lists of crimes satisfying various definitions, including a list of violent felonies. (Pen.Code 667.5, subd. (c).) Does that statute apply to mean that any crime not listed in it would be a nonviolent felony, even though many such crimes are arguably violent? Can a statute define a constitutional term? What if the Legislature amends the list? What happens if the term non-violent felony offense is also found to be void for vagueness? Would that mean all inmates would be eligible for parole? (Brown, dissenting opinion of Justice Chin at p. 360.) Accordingly, until the issue is resolved, when it is important to the parties whether the crime qualifies or does not qualify as a non-violent felony offense, prosecutors and defense attorneys crafting negotiated dispositions should specify whether the crime(s) for which defendant is being sentenced is intended to qualify as a non-violent felony offense for purposes of section 32 of Article I of the California Constitution. The parties may also want to specify on the record that whether the crime does or does not qualify as a non-violent felony is an express provision of the plea bargain so that if a court or the Department of Corrections and Rehabilitation comes to a different conclusion, either party may withdraw from the plea bargain at least in cases where the interpretation of the term would have a practical impact on when the defendant is eligible for parole. When a defendant has pled open to the court or has been convicted after trial, prosecutors and defense counsel should ask the court to make it clear on the record whether the crime is a non-violent felony offense for purposes of section 32 of Article I of the California Constitution. 8

9 7. If the defendant is a registered sex offender, will the defendant be ineligible for early parole pursuant to Prop 57 regardless of whether the offense for which defendant is serving time is a non-violent felony? Many registrable sex offenses qualify as violent felony offenses under Penal Code section 667.5(c). (See Pen. Code, 667.5(c)(3) - (6), (11), (18).) However, many other registrable sex offenses do not. (See e.g., Pen. Code, 243.4; 314, subds 1 and 2; 311.1, subds (b), (c), or, 311.3, 311.4, , , or ) As noted above, in the ballot argument section of the official voter information guide, proponents claimed Proposition 57 [d]oes NOT and will not change the federal court order that excludes sex offenders, as defined in Penal Code 290, from parole. (Ballot Pamp., Primary Elec. (Nov. 8, 2016) Rebuttal to Argument Against Proposition 57, at p. 59.) However, nothing in the language of Proposition 57 states a defendant currently serving time for a registrable sex offense or who has a prior conviction for a registrable sex offense is ineligible for early parole consideration. Moreover, the actual federal court order presumably referenced in the argument does not actually exclude sex offenders from being paroled in California. In February 10, 2014, in the joined cases of Coleman v. Brown and Plata v. Brown No. 2:90 cv 0520 LKK DAD (PC), a three-judge panel in federal court approved of extending time to the State of California to reduce its prison population to 137.5% of capacity, which the State of California had earlier been ordered to do. This order was made in light of the agreement of California to take certain measures to reduce the population. One of several measures imposed by the order was to [c]reate and implement a new parole determination process through which non-violent second-strike offenders will be eligible for parole consideration by the Board of Parole Hearings once they have served 50% of their sentence. (Id. at p. 3.) Another measure imposed by the order required that [n]on-violent second-strikers will be eligible to earn good time credits at 33.3% and will be eligible to earn milestone credits for completing rehabilitative programs. (Ibid.) The order also required that, in selecting inmates for release, to take into consideration public safety by minimizing any risk of violent re-offense. (Id. at p. 4.) Editor s note: The following information is taken from Verbatim (Ballotpedia s Fact-Checking Desk), which did an incredibly impressive job of answering the following question in an insightful and neutral manner: Is there a federal court order that would prohibit sex offenders in California from being paroled under Proposition 57? 9

10 The panel did not address the issue of excluding sex offenders until its order issued on October 29, In it, the panel reported the state had claimed they have always indicated that sex offenders would be excluded from the population of non-violent second-strikers eligible for increased good time credits, and they should be permitted to do so to minimize the risks of public safety, particularly when they are currently in compliance with the Court s population benchmarks. But the panel noted the state did not exclude sex offenders in their January 23, 2014, proposed order that became the basis of this Court s February 10, 2014 order. It is unclear whether this omission was intentional. The panel concluded that it did not have enough information to determine what effect excluding sex offenders would have on reducing the prison population to the mandated level. The court s next order, issued on November 14, 2014, required the state to file a report describing the new parole process, including an estimate of the number of inmates who will be affected by December 1, In that report, the state explained which nonviolent offenders it planned to exclude from the court-ordered parole changes. The state proposed excluding from consideration for early parole inmates required to register under section 290, among others. Other examples of inmates to be excluded from consideration are those who refused to provide urine samples for drug testing and inmates found guilty of any rules violation committed at the behest of or in connection with a designated prison gang. The court did not publish any comments on the report after it was filed. The court also did not modify any of its previous orders or issue any new orders to prohibit from parole consideration the inmates excluded in the state s plan. In January 2015, the California prison system finally reached the court-mandated population threshold and has remained in compliance since then. Currently, the prison system is operating at percent of its designed capacity, with a population of 129,045 inmates. It is still under the supervision of the three-judge panel. [Sub-title omitted] Verbatim ed Dan Newman, the spokesman for Yes on 57, to ask the basis for the claim that the exclusion of inmates who must register under section 290 is the result of a federal court order rather than a state policy. Newman replied: 10

11 The sex registrant exclusion has been in effect since the start of implementation of non-violent parole on January 1, The State s filing explains that this exclusion was adopted for public safety reasons. The Court accepted it, and has not issued any further orders altering how the State implements non-violent parole or its public safety exclusions. (See mes_in_california_be_eligible_for_early_parole_under_proposition_57%3f.) Editor s note: Readers accustomed to media outlets that skew data, misunderstand legal issues, or exhibit a bias should check out Ballotpedia s Verbatim. At least as to the questions posed regarding claims made relating to Prop 57, Verbatim nailed it. Bottom line: While the Department of Corrections and Rehabilitation may seek to exclude sex offender registrants from the benefits of early parole, Prop 57 does not facially speak to whether they can do so. Accordingly, prosecutors should not assume that persons either currently serving sentences for registrable sex offenses identified in Penal Code section 290(c) or persons with prior offenses that require them to register will be ineligible for early release under Prop How much of a defendant s sentence must a defendant serve before becoming eligible for early release under Prop 57? (That is, what is the full term of a primary offense? ) for becoming eligible for early release under Prop 57, i.e., what is the Subdivision (a)(1) of section 32 of article I of the California Constitution (as enacted by Prop 57) provides: Parole consideration: Any person convicted of a non-violent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense. Subpart (A) of subdivision(a)(1) of section 32 states: 11

12 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 imposition of an enhancement, consecutive sentence, or alternative sentence. (Cal. Const., art. I, 32, subd. (a)(1)(a.) This means that a defendant serving a sentence for a non-violent felony offense will be eligible for parole consideration after serving his sentence on the substantive offense for which defendant received the longest term, regardless of the number of other offenses defendant was simultaneously sentenced on, regardless of how much additional time was added on to the defendant s sentence by way of an enhancement, and regardless of whether the sentence on the substantive offense was increased by some circumstance that resulted in an alternative sentence. A. What is an alternative sentence? The term alternative sentence is not defined in Prop 57 and it is not even a commonly used term although it sometimes crops up in describing sentencing schemes. Courts have distinguished alternate sentences from enhancements by noting that, unlike enhancements (which add a term to a defendant s sentence), an alternate sentencing statute provides an alternate method to calculate either the determinate term or minimum term for an indeterminate sentence. (People v. Tillman (1999) 73 Cal.App.4th 771, 780; People v. Sipe (1995) 36 Cal.App.4th 468, ) The Three Strikes law is an alternate sentencing statute because the sentence is not based on the imposition of a particular additional term for each prior. Rather the priors create a whole new sentence. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527 [ The Three Strikes law articulates an alternative sentencing scheme for the current offense rather than an enhancement. ]. The one strike law and the habitual sex offender act are also considered alternate sentencing schemes. (People v. McQueen (2008) 160 Cal.App.4th 27, 37.) The California Supreme Court has also drawn a distinction between what is calls penalty provisions and sentence enhancements. This distinction tracks the distinction drawn between alternate sentences and enhancements. [A] penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances. A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899 citing to People v. Bright (1996) 12 Cal.4th 652, 661; see also People v. Brookfield 12

13 (2009) 47 Cal.4th 583, 592 [an enhancement is a statute that imposes an additional term of imprisonment while a penalty provision provides an alternate penalty rather than an additional punishment ].) It is very likely that statutory provisions that are referred to as penalty provisions, as alternate penalties or as alternate sentences are what the drafters of Prop 57 had in mind when using the term alternative sentence. It is somewhat less likely that the term alternative sentence would include statutes that have different subdivisions changing the penalty based on the existence of different circumstances, such as when the substantive crime is accompanied by the use of force (see e.g., Penal Code section 136.1(c)(a) [increasing sentence for false imprisonment when accompanied by force]) or when the defendant is a repeat offender (see e.g., Penal Code section 647.6(c)(2) [increasing sentence for annoying children when defendant has specified prior convictions].) These may be viewed as separate crimes because the different subdivisions encompass different elements. (i) Will defendants who are serving Three Strike sentences be eligible for early release? Assuming defendants eligible for early parole consideration are excluded if serving a sentence for a violent felony defined in Penal Code section 667.5(c), there is nothing in the language of Prop 57 that would prevent defendants serving Three-Strike sentences for offenses other than violent felonies from being eligible for early parole consideration. This is so for the reasons discussed in this IPG at section 8-A at pp B. Will crimes that are designated violent felonies only because of an attached enhancement qualify as non-violent felony offenses? Will a felony conviction that is only a violent felony, for example, because of the infliction of great bodily injury or the use of firearm (see Pen. Code, 667.5(c)(8) [rendering any felony a violent offense if the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section , , or , or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section , or Section or ]) qualify as a non-violent felony considering that in determining when a person is eligible for parole consideration, section 32 of Article I, does not take into account attached enhancements? 13

14 Assuming violent felonies listed in section 667.5(c) do not qualify for early parole consideration, the answer is very likely to be no considering how section 32 is structured. The only persons eligible for early parole consideration are defendants serving sentences for nonviolent crimes. It is only when a defendant has already been determined to be serving a sentence for a nonviolent felony offense that the question of eligibility for early parole consideration even arises. There is no reason to believe that the definition of a primary offense (which excludes enhancements and which only becomes relevant once the determination has been made the offense qualifies for early release) will be used to define non-violent felony offense since the latter deals with what crimes are eligible for early release and the former with how to calculate the date of release eligibility based on the sentence imposed for those crimes. It s really apples and oranges. This distinction won t deter defendants from making a contrary argument, but should dissuade any judges from agreeing with the defendant s argument. C. Will defendants who are serving time based on convictions for both non-violent felony offenses and violent felony offenses be eligible for early parole consideration? Subdivision (a)(1) of section 32 of article I of the California Constitution, in pertinent part, provides: notwithstanding anything in this article or any other provision of law:... Any person convicted of a non-violent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense. (Emphasis added by IPG.) Expect defendants convicted of multiple offenses, some non-violent and some violent, to argue that they qualify for early parole consideration - especially in circumstances where the nonviolent felony offense was the offense that provided the longest term of imprisonment (i.e., is the primary offense ). The argument is going to be that a defendant who has been convicted of both a non-violent felony offense and a violent felony offense has necessarily been convicted of a non-violent felony offense. Thus, technically, such a defendant would be eligible for parole consideration. Moreover, the defendant will argue that if early parole consideration was meant to be limited to defendants only convicted of non-violent felony offenses, it would have stated: Any person convicted solely of a non-violent felony offense... Whether this argument will have any legs is another question. Certainly, it makes no sense to provide for early release of defendants who commit not only violent felonies but also non-violent 14

15 felonies since these folks present an even greater threat than those who just committed violent felonies. Moreover, such an interpretation would be inconsistent with the ballot argument in favor of Prop 57, which stated: And as the California Supreme Court clearly stated: parole eligibility in Prop. 57 applies only to prisoners convicted non-violent felonies. (Ballot Pamp., Primary Elec. Nov. 8, 2016) argument in favor of Prop. 57, p. 58, italics in original.) Similarly, in the rebuttal ballot argument, the proponents of Prop 57 stated: Does NOT authorize parole for violent offenders. The California Supreme Court clearly stated: parole eligibility in Prop. 57 applies only to prisoners convicted non-violent felonies. (Brown v. Superior Court, June 6, 2016). Violent criminals as defined in Penal Code section 667.5(c) are excluded from parole. Ballot Pamp., Primary Elec. Nov. 8, 2016) rebuttal to argument against Prop. 57, p. 59, italics in original.) Editor s note: [A]s a reviewing court is directed to look at the arguments contained in the official ballot pamphlet to ascertain voter intent, it is well settled that such an analysis necessarily includes the arguments advanced by both the proponents and opponents of the initiative. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 906.) Defendants may seek to characterize the issue as being of a similar nature to the issue raised in the California Supreme Court case of People v. Johnson (2015) 61 Cal.4th 674. That case had to construe Proposition 36 (The Three Strikes Reform Act of 2012), which allowed resentencing of inmates convicted of a third strike under the Three Strikes law when the third strike was neither a violent nor a serious felony. The question arose whether a defendant who was convicted of both a violent/serious felony and a nonviolent/nonserious felony would be entitled to resentencing on the nonviolent/nonserious felony. The Johnson court held that the Three Strikes Reform Act required an inmate s eligibility for resentencing to be evaluated on a countby-count basis, and thus an inmate could obtain resentencing with respect to a three-strikes sentence imposed for a felony that is neither serious nor violent, despite the fact that the inmate remains subject to a third-strike sentence of 25 years to life. (Id. at pp ) However, the Johnson s court interpretation of Prop 36 was expressly tied to the historical understanding of how sentencing worked under the Three Strikes law, which focused on the sentence to be imposed with respect to each count individually[.] (Id. at p. 688.) Moreover, the ballot arguments in Prop 36 did not undermine such an interpretation in the same way the Prop 57 ballot arguments would undermine the position that Prop 57 allows for early parole consideration for persons convicted of both nonviolent and violent felonies. Finally, as a practical matter, even if the holding in Johnson was applicable by way of analogy, it would only 15

16 permit early parole consideration on the portion of the sentence imposed for the nonviolent offenses, not the portion of the sentence being served for the violent offenses. (Cf., In re Reeves (2005) 35 Cal.4th 765, 768 [holding Penal Code section limited a prisoner s ability to earn worktime credit to no more than 15% if the prisoner was serving a term for a violent offense even though the defendant was concurrently punished for a nonviolent offense but once the prisoner completed the term for the violent offense he became prospectively eligible to earn credit at a rate unrestricted by section s limitation].) One other important notion to keep in mind is that the Department of Corrections and Rehabilitation is given authority to adopt regulations in furtherance of Prop 57 which must protect and enhance public safety. (Cal. Const., art. I, 32, subd. (b).) These regulations are likely to exclude anyone serving a sentence for a violent offense even if they are simultaneously serving as sentence for a nonviolent offense. 9. What does it mean to be eligible for parole consideration does it include persons released on PRCS? for becoming eligible for early release under Prop 57, i.e., what is the full term of Prop 57 provides that [a]ny person convicted of a non-violent 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)(a, emphasis added by IPG.) The majority of prisoners eligible for parole consideration under Prop 57 will be serving determinate term sentences instead of life sentences. Determinate term prisoners are automatically released onto parole or postrelease community supervision (PRCS) after having served a specific portion of their entire sentence (e.g., 50% pursuant to Penal Code section 2933) without having to go through an actual parole hearing. Parole consideration is not defined and this lack of definition may cause some confusion because most of the persons who might be eligible for early parole consideration are more likely to be persons released on PRCS rather than on parole. This is because only defendants who are serving sentences for serious or violent felonies, three-strikers, high-risk sex offenders, or persons with severe mental disorders are subject to parole supervision (Pen. Code, (a).) [A]ll other offenders released from prison are placed on PRCS (Pen. Code, (a). However, no mention is made in Prop 57 of defendants who are released on PRCS. 16

17 As Kathy Storton has observed, the use of nonviolent felony offense and parole in the same sentence could indicate an intent by the drafters to limit early release to inmates eligible for parole (i.e., defendants convicted of serious felonies, three-strikers, high risk sex offenders, and severely mentally disordered offenders - who are not serving sentences for violent offenses defined in Penal Code section 667.5(c)). If the intent of the drafters was to have the early release provisions apply only to lower level offenders in state prison, then Prop 57 should have referenced release onto PRCS. However, it is much more likely that this is a drafting error. It is possible that if this failure to reference PRCS falls into the category of a drafter s error, it can be corrected by the courts. (See People v. Robles (2000) 23 Cal.4th 1106, 1114 [ It is true, of course, that we occasionally have used the concept of drafters error in applying statutes. However, we do[ ] not lightly assume drafting error... ]; People v. Garcia (1999) 21 Cal.4th 1, 14 [ Consistent with the separation of powers doctrine (Cal. Const., art. III, 3), we have previously limited ourselves to relatively minor rewriting of statutes and, even then, only resorted to that drastic tool of construction when it has been obvious that a word or number had been erroneously used or omitted. ].) But regardless of whether this omission falls into this category, PRCS offenders who meet the criteria of having served their full sentence on their primary offense would have a decent equal protection argument that they are entitled to consideration for early release as well. Granted, distinguishing between parolees and PRCS generally does not violate equal protection because persons convicted of different crimes are not similarly situated for equal protection purposes. (People v. Gutierrez (2016) 245 Cal.App.4th 393, 403; see also People v. Espinoza (2014) 226 Cal.App.4th 635, 639.) But ultimately, the test is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. (People v. Cruz (2012) 207 Cal.App.4th 664, 674.) And in light of the stated purpose behind Prop 57, it is difficult to conceive of a rational basis for allowing early release to more serious offenders than less serious offenders. (See People ex rel. San Francisco & S.J. Ry. Co. v. Craycroft (1896)111 Cal. 544, 547 [ generally, no law will be so applied as to work a palpable absurdity ]; see also People v. Superior Court (2016) 208 Cal.Rptr.3d 636, 645 [recognizing that persons originally sentenced under section who are released on parole and persons subject to postrelease community supervision under section 3451 should be treated similarly for some purposes albeit finding prisoners who are resentenced under Proposition 36 are not situated similarly with persons originally sentenced under section for purposes of determining whether to apply excess custody credits, emphasis added by IPG].) 17

18 10. Will there be a hearing to determine whether and when a defendant who is eligible for parole consideration should be released? becoming eligible for early release under Prop 57, i.e., what is the full term of a primary offense? Although Prop 57 states a [a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration, it does not specify the nature of the hearing to determine whether such a person will be released. (Cal. Const., art. I, 32, subd. (a)(1).) Presumably some hearing will occur. In the Analysis by the Legislative Analyst, there was a discussion of Parole Consideration Hearings in order to give the voters the background information necessary to understand what Prop 57 would do. (Ballot Pamp., Primary Elec. Nov. 8, 2016) Analysis by the Legislative Analyst at p. 54.) That discussion described the hearing available to a prisoner who has served the minimum number of years required for an indeterminate sentence as a parole consideration hearing. (Ibid.) It is reasonable to conclude some of the regulations governing the parole consideration hearings issued by the Department of Corrections and Rehabilitation pursuant to article I, section 32(b) will be similar to the regulations governing the parole suitability hearings referred to by the Legislative Analyst. However, whether Prop 57 parole consideration hearings will parallel the parole suitability hearings currently authorized by statute and regulation (see e.g., Pen. Code, 3041; California Code of Regulations, title 15, 2402) remains to be seen. 11. What criteria will be used to determining whether someone eligible for early parole consideration gets released? Prop 57 did not identify the criteria to be used by the Department of Corrections and Rehabilitation in determining whether a prisoner who is eligible for parole consideration should be released. Subdivision (b) of section 32 of article I of the California Constitution, as enacted by Prop 57, states: 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. The Department of Corrections and Rehabilitation (hereinafter CDCR ) already has statutory authority to adopt regulations pursuant to the Administrative Procedures Act (Gov. Code, et seq.). The Administrative Procedures Act requires that proposed regulations proffered 18

19 by a state agency (such as the CDCR) be provided to the Office of Administrative Law and be subject to some public scrutiny and input. (See e.g., Gov. Code, 11343, ) For example, a public hearing is required, if at least 15 days before the close of the written comment period, an interested person submits in writing a request to hold a public hearing. (Gov. Code, (a).) And the state agency promulgating the regulation is required to consider all relevant matter presented to it before adopting, amending, or repealing any regulation. (Ibid.) Regulations issued subject to the Administrative Procedures Act can be challenged in court. Any interested person may obtain a judicial declaration as to the validity of a regulation by bringing an action for declaratory relief in the superior court in accordance with the Code of Civil Procedure (Govt. Code, 11350(a)). In addition to any other ground that may exist, a regulation may be declared invalid if [t]he agency s determination that the regulation is reasonably necessary to effectuate the purpose of the statute, court decision, or other provision of law that is being implemented, interpreted, or made specific by the regulation is not supported by substantial evidence. (Govt. Code, 11350(b)(1)).) In adopting the regulations authorized by Prop 57, it is likely that the CDCR will be subject to the Administrative Procedures Act. However, one limitation on the regulations is that they may not conflict with statutory or constitutional law. (See Gov. Code, , ) Whether this limitation will apply when the authority to issue regulations given to the CDCR has been made part of the California Constitution (see Cal. Const., art. I, 32(b)) is an open question. 12. Will victims of the crimes committed by Prop 57 eligible offenders have a right to be present and heard at parole consideration hearings under Marsy s Law? becoming eligible for early release under Prop 57, i.e., what is the full term of In 2008, California voters enacted The Victims Bill of Rights Act of 2008: Marsy s Law by amending Article 1, section 28 of the California Constitution. The amendment provided some collective rights as well as some individual enforceable rights for victims of crimes. The individual enforceable rights include the following rights: [t]o reasonable notice of all public proceedings,... upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings. (Cal. Const., art. I, 28(b)(7), emphasis added by IPG.) 19

20 [t]o be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue. (Cal. Const., art. I, 28(b)(7), emphasis added by IPG.) [t]o be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody. (Cal. Const., art. I, 28(b)(12), emphasis added by IPG.) [t]o be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified, upon request, of the parole or other release of the offender. (Cal. Const., art. I, 28(b)(15), emphasis added by IPG.) [t]o have the safety of the victim, the victim s family, and the general public considered before any parole or other post-judgment release decision is made. (Cal. Const., art. I, 28(b)(15), emphasis added by IPG.) Any parole consideration hearing under Proposition 57 would seem to fall squarely within the definition of a post-conviction release proceeding or post-judgment release decision. And, at least as to each of these specific rights, there is nothing on the face of Prop 57 that precludes these rights from being enforced - especially considering the general rule that when constitutional provisions can reasonably be construed so as to avoid conflict, such a construction should be adopted. (Bowens v. Superior Court (1991) 1 Cal.4th 36, 45.) Moreover, there is statutory authority for enforcement of these rights that has not been abrogated by Prop 57. Penal Code section 3043 requires the Board of Parole Hearings (upon request of the victim) to provide notice of any hearing to review or consider the parole suitability for any inmate in a state prison 90 days before the hearing and requires the board to notify every person entitled to attend the hearing confirming the date, time, and place of the hearing no later than 14 days before the date selected for the hearing. (Pen. Code, 3043(a).) Section 3043 also gives victims, and members of the victims families, and two representatives (including potentially, prosecutors) the right to appear and be heard at the hearings. (Pen. Code, 3043(b)-(e).) 20

21 If the Department of Corrections and Rehabilitation fails to respect these rights, the victim or the prosecution should be able to enforce them in court. (See Cal. Const., art. I, 28(c)(1) [ A victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim, may enforce the rights enumerated in subdivision (b) in any trial or appellate court with jurisdiction over the case as a matter of right. The court shall act promptly on such a request.], emphasis added by IPG.) Bottom line: Because many of these rights are contingent upon a request by the victim to exercise the right, it is incumbent upon prosecutors obtaining convictions (by way of trial or plea) of defendants who might be subject to early release to let victims know that they must put in a request that they wish to exercise one or more of their Marsy s Law rights. Marsy s Law also established various collective rights of victims of crime. Among those potentially, but not necessarily, in conflict with Prop 57: The rights of victims also include broader shared collective rights that are held in common with all of the People of the State of California and that are enforceable through the enactment of laws and through good-faith efforts and actions of California's elected, appointed, and publicly employed officials. These rights encompass the expectation shared with all of the people of California that persons who commit felonious acts causing injury to innocent victims will be... sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance. (Cal. Const., art. I, 28(a)(4), emphasis added by IPG.) Victims of crime have a collectively shared right to expect that persons convicted of committing criminal acts are sufficiently punished in both the manner and the length of the sentences imposed by the courts of the State of California. This right includes the right to expect that the punitive and deterrent effect of custodial sentences imposed by the courts will not be undercut or diminished by the granting of rights and privileges to prisoners that are not required by any provision of the United States Constitution or by the laws of this State to be granted to any person incarcerated in a penal or other custodial facility in this State as a punishment or correction for the commission of a crime. (Cal. Const., art. I, 28(a)(5), emphasis added by IPG.) 21

22 Reform of the parole process. The current process for parole hearings is excessive, especially in cases in which the defendant has been convicted of murder. The parole hearing process must be reformed for the benefit of crime victims. (Cal. Const., art. I, 28(f)(6), emphasis added by IPG.) Whether and/or how these collective rights can be enforced is not specified in Marsy s Law. Arguably, these rights could conflict with Prop 57 - but that will depend to a certain extent on how Prop 57 is carried out in practice. Since the regulations still must be adopted, it would be premature to speculate on any conflict. That being said, it is likely the courts will be reluctant to find any conflict. As stated in City and County of San Francisco v. County of San Mateo (1995) 10 Cal.4th 554, one constitutional provision should not be construed to effect the implied repeal of another constitutional provision. (Id. at p. 567.) [I]f the two provisions can be construed to apply concurrently, we must do so. (Ibid.) Only if they are in irreconcilable conflict must we decide which constitutional provision prevails. (Ibid.) Moreover, Prop 57 is the more recent and arguably more specific provision, which would weigh in favor of it trumping Marsy s law. (See Bowens v. Superior Court (1991) 1 Cal.4th 36, 45 [ As a means of avoiding conflict, a recent, specific provision is deemed to carve out an exception to and thereby limit an older, general provision. ].) 13. Does Proposition 57 have any impact on defendants convicted of felonies who are serving their time in county jail under an 1170(h) sentence? The parole consideration provisions of Proposition 57 on their face only apply to persons sentenced to state prison[.] (Cal. Const., art. I, 32(a)(1).) No mention is made of county jail in Proposition 57 at all. Defendants serving time in county jail pursuant to Penal Code section 1170(h) may seek to bring an equal protection challenge claiming they also should be entitled to consideration for early release. It is unlikely such a challenge will prevail. The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (People v. Brown (2012) 54 Cal.4th 314, 328.) This initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. (Ibid.) Moreover, even if the groups are similarly situated, 22