In re Ernst

Full title: In re JOHN ERNST, On Habeas Corpus.

Court: California Court of Appeals, Fifth District

Date published: May 4, 2022

No. F081386 (Cal. Ct. App. May. 4, 2022)

Opinion

F081386

05-04-2022

In re JOHN ERNST, On Habeas Corpus.

Rob Bonta and Xavier Becerra, Attorneys General, Matthew Rodriquez, Acting Attorney General, Phillip J. Lindsay, Julie A. Malone, Pamela B. Hooley, Amanda J. Murray, Linnea D. Piazza, Deputy Attorneys General, for Appellant Patrick Covello, Acting Warden of Mule Creek State Prison. Byron C. Lichstein, under appointment by the Court of Appeal, for Respondent John Ernst.

POOCHIGIAN, ACTING P. J.

NOT TO BE PUBLISHED

APPEAL from an order granting writ of habeas corpus Kern Super. Ct. No. HC016437A. Michael E. Dellostritto, Judge.

Rob Bonta and Xavier Becerra, Attorneys General, Matthew Rodriquez, Acting Attorney General, Phillip J. Lindsay, Julie A. Malone, Pamela B. Hooley, Amanda J. Murray, Linnea D. Piazza, Deputy Attorneys General, for Appellant Patrick Covello, Acting Warden of Mule Creek State Prison.

Byron C. Lichstein, under appointment by the Court of Appeal, for Respondent John Ernst.

OPINION

POOCHIGIAN, ACTING P. J.

INTRODUCTION

This case involves the question of whether Proposition 57 requires an in-person parole hearing for prisoners convicted of nonviolent offenses and sentenced to determinate terms.

In 2018, respondent John Ernst pleaded guilty to felony criminal threats and admitted prior serious felony enhancements; he was sentenced to 14 years in prison. In both 2018 and 2019, Ernst was eligible for the parole consideration as a prisoner convicted of a nonviolent felony and sentenced to a determinate sentence, pursuant to the provisions of Proposition 57.

Proposition 57 was approved by California voters in 2016, and added section 32 to Article I of California's Constitution that states: "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), italics added.)¹ Section 32 authorized the California Department of Corrections and Rehabilitation (CDCR) to adopt regulations in furtherance of its guarantee of early parole consideration. (§ 32, subd. (b).)

1 All further citations to "section 32" are to the amendment added by Proposition 57 to Article I of the California Constitution.

CDCR adopted regulations pursuant to the authority granted by section 32 for parole consideration of prisoners convicted of nonviolent felonies and serving determinate sentences. These regulations provide for prisoners to receive a "paper" parole review conducted by a "hearing officer," defined as "a commissioner, deputy commissioner, associate chief deputy commissioner, or Chief Hearing Officer" with the Board of Parole Hearings (the Board) (Cal. Code Regs., tit. 15, § 2449.1, subd. (g)), ² and not an in-person hearing before the Board. The prisoner may file a written statement for consideration. If parole is denied, the prisoner may request review of the decision and file a written description of why the decision was incorrect. A separate hearing officer considers the request for review. The prisoner may further seek review of the denial of parole through a petition for writ of habeas corpus. (In re Kavanaugh (2021) 61 Cal.App.5th 320, 336-337 (Kavanaugh).)

2 Subsequent references to "regulations" or "Regs." are to the California Code of Regulations.

Ernst, as a nonviolent felon sentenced to a determinate term, received a "paper" review for early parole consideration in 2018, consistent with CDCR's regulations; he did not file a written statement, parole was denied, and he did not file an administrative challenge or a writ petition. He was again considered for parole in 2019, under the same regulations, and filed a written statement as to why he should receive parole. His parole was denied by a hearing officer. He filed a written administrative challenge, his challenge was heard by a different hearing officer as required by the regulations, and the challenge was denied.

After the 2019 denial, Ernst filed the instant petition for writ of habeas corpus with the Superior Court of Kern County and argued CDCR's regulations that provide for a paper review for early "parole consideration" under section 32 was inconsistent with the intent of Proposition 57 and violated his constitutional rights. Ernst argued "parole consideration" meant an in-person hearing before members of the Board, as already provided in the Penal Code and existing regulations for prisoners serving indeterminate terms. The superior court agreed with Ernst, granted his petition, and ordered CDCR to hold an in-person parole hearing.

The instant appeal was filed by the warden of Mule Creek State Prison, represented by the People of the State of California (the People). The People argue that CDCR's regulations for a paper review for early parole consideration under Proposition 57 are not inconsistent with section 32 and do not violate Ernst's constitutional rights. Ernst asserts the superior court correctly found the regulations were not consistent with the "parole consideration" required by section 32, and the failure to provide determinately sentenced, nonviolent offenders with an in-person hearing before the Board violated his federal and state constitutional rights to due process and equal protection.

While this appeal was pending, Kavanaugh, supra, 61 Cal.App.5th 320 was filed, and held these regulations were consistent with section 32's mandate for "parole consideration" and did not violate the due process rights of the prisoner in that case; the California Supreme Court denied review in Kavanaugh.

We find Kavanaugh persuasive to the extent it addressed the same issues raised in this case. We further conclude the superior court erroneously granted Ernst's petition for relief and that CDCR's regulations do not violate Ernst's constitutional rights.

FACTUAL AND PROCEDURAL BACKGROUND

The Underlying Offense

On August 30, 2016, Ernst stated to his mother that he was going to" 'burn her'" and" 'harm her'" from her head to her knees. The victim related that she was very scared of her son due to his mental issues and believed he would possibly kill her. Later that same day, she heard knocking on her front door and believed it was possibly law enforcement outside her residence. When she unlocked the door, Ernst pushed the door open, forced his way inside, slammed the door shut, and locked it. Once inside, he grabbed the victim and threw her into her room, causing her to fall injuring her right arm. When Ernst realized law enforcement was on the way, he fled the residence in his vehicle.

Ernst had prior convictions for first degree burglary in 1983, and he was placed on probation for five years (Pen. Code, § 459); infliction of corporal injury on a spouse or cohabitant in 1992 (Pen. Code, § 273.5), and sentenced to two years in prison; and criminal threats in 2001 (Pen. Code, § 422), sentenced to 32 months in prison; he was released on parole in 2003.

Ernst's Conviction and Sentence

On January 12, 2018, Ernst pleaded guilty in the Superior Court of Kern County to one count of criminal threats (Pen. Code, § 422), and admitted two prior serious felony enhancements (Pen. Code, § 667, subd. (a)).³

3 As relevant to the Proposition 57 issues in this case, a violation of Penal Code section 422, criminal threats, is not defined as a "violent felony." (Pen. Code, § 667.5, subd. (c); Regs., tit. 15, § 2449.1, subds. (a), (c), § 3490, subds. (a), (c).)

On February 13, 2018, Ernest was sentenced to the midterm of four years for criminal threats, plus two consecutive five-year terms for the enhancements, for an aggregate determinate term of 14 years in state prison.

PAROLE PROCEDURES PRIOR TO PROPOSITION 57

Ernst's writ petition, and the superior court's order that granted relief in this case, focused on certain parole procedures and regulations that existed prior to the enactment of Proposition 57. The superior court concluded these existing regulations, that provided for in-person hearings before the Board, also applied to parole consideration and procedures for determinately sentenced prisoners under section 32. In reaching this conclusion, however, the superior court relied on statutes and regulations governing the parole consideration process for indeterminately sentenced prisoners. (Kavanaugh, supra, 61 Cal.App.5th at p. 347.)

A prisoner sentenced to a determinate term is released on parole upon expiration of his term as accelerated by any earned credits and does not receive parole based on a discretionary decision made by the Board at a hearing. (Pen. Code, § 1170, §§ 2931- 2933, § 3000; In re Dannenberg (2005) 34 Cal.4th 1061, 1078; People v. Jefferson (1999) 21 Cal.4th 86, 95.)

A prisoner sentenced to an indeterminate term of life with the possibility of parole must serve a minimum term of confinement before being eligible for parole, after which the Board is empowered to make the discretionary determination whether the prisoner is suitable to be released on parole. (Pen. Code, §§ 3040, 3041, 3041.5, 3046; In re Dannenberg, supra, 34 Cal.4th at pp. 1078-1079; People v. Felix (2000) 22 Cal.4^th 651, 659; People v. Jefferson, supra, 21 Cal.4th 86 at p. 95; In re Jackson (1985) 39 Cal.3d 464, 488-489.) "The parole consideration procedures are governed by [Penal Code] section 3040 et seq. and apply to all inmates not serving a determinate sentence. (§ 1170 et seq.; see §§ 3041, 3000.) Once such an inmate has served sufficient time to be eligible or soon eligible for parole, he or she receives notice that a parole suitability hearing before a Board hearing panel will be held. ([Pen. Code, ] §§ 3041, 3041.5, 3042.) The inmate is afforded a variety of rights before and during the hearing. These include the right (1) to examine nonconfidential documents in the prison file and answer them in writing in advance of the hearing, (2) to reasonable assistance in preparing for the hearing, (3) to ask and answer questions and present evidence at the hearing, (4) to an impartial hearing panel, and (5) to receive a record of the proceedings and a copy of the hearing panel's written decision," based on the procedural provisions contained in the Regulations at title 15, sections 2245 through 2246. (In re Jackson, supra, 39 Cal.3d at p. 468; Kavanaugh, supra, 61 Cal.App.5th at p. 347; In re J.G. (2008) 159 Cal.App.4th 1056, 1065-1066.)

Parole for Determinately Sentenced, Nonviolent Offenders (NVSS)

As a result of federal court orders on prison overcrowding, CDCR agreed in 2014 to immediately implement measures to create" 'a new parole determination process through which non-violent second-strikers will be eligible for parole consideration by the Board … once they have served 50% of these sentence.'" (In re Ilasa (2016) 3 Cal.App.5th 489, 495, 500, 501, some italics added (Ilasa).) Thereafter, CDCR created "a process entitled 'Non-Violent, Non-Sex-Registrant, Second-Strike (NVSS) Review,' which was implemented on January 1, 2015." (Id. at p. 495.)

As will be discussed below, the procedures adopted by CDCR for parole consideration of determinately sentenced nonviolent offenders under section 32 were based on the NVSS procedures for second-strike nonviolent offenders. (In re McGhee (2019) 34 Cal.App.5th 902, 906 (McGhee).)

The NVSS procedures "set forth eligibility requirements and an administrative review process for those inmates determined to be eligible for review. [Citation.] The purpose of the administrative review is to determine - and, thus, the standard to be applied by the Board is - whether the inmate's release 'would pose an unreasonable risk to public safety.'" (Ilasa, supra, 3 Cal.App.5th at p. 495.)

"If an inmate is referred to the Board for possible release, the NVSS Procedures … allowed "for input from the inmate, as well as notice to and input from the district attorney of the inmate's county of commitment and any victims registered with the CDCR." (Ilasa, supra, 3 Cal.App.5th at p. 502.) The inmate" 'may submit a written statement to the [B]oard'" for consideration. (Ibid.) When the inmate was referred to the Board for possible release," '[t]he deputy commissioner will review all relevant and reliable information, including the inmate's criminal history, institutional behavior, rehabilitation efforts, and any written statements received, '" and" '[a] deputy commissioner will conduct an administrative review to determine if the inmate's release would pose an unreasonable risk to public safety.' [Citation.] Although there is no hearing, the Board is required to issue a written decision and provide copies to specifically identified people who participated in or are administratively involved in the review process." (Id. at p. 502, some italics added.) The inmate could seek "further review of any decision of the Board concerning release of NVSS inmates," conducted "by an associate chief deputy commissioner, who is tasked with issuing a decision upholding or vacating the original decision and providing notification of the outcome." (Id. at p. 503.)

The NVSS parole procedures were found to create "a protected liberty interest" for purposes of due process, and inmates could seek judicial review of the NVSS decision to deny parole. (Ilasa, supra, 3 Cal.App.5th at p. 506.)

PROPOSITION 57

Despite the NVSS procedures for determinately sentenced offenders, the prison overcrowding situation persisted. In 2016, Proposition 57 was approved and added section 32 to the California Constitution. (In re Gadlin (2020) 10 Cal.5th 915, 923 (Gadlin); Kavanaugh, supra, 61 Cal.App.5th at p. 335.) The initiative's intent was 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…" (§ 32, subd. (a).)

Section 32, subdivision (a)(1) states in pertinent part:

"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, subd. (a)(1), italics added.)

"[T]he 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, subd. (a)(1)(A).)

Section 32, subdivision (b) states CDCR shall "adopt regulations in furtherance of these provisions," and the Secretary of CDCR "shall certify that these regulations protect and enhance public safety." (§ 32, subd. (b).) As a result, CDCR adopted regulations that addressed the procedures for" 'nonviolent offender parole review.'" (In re Mohammad (2022) 12 Cal.5th 518, 524, fn. 2.)

Section 32 did not define the phrase "parole consideration," or what type of parole proceedings should be employed to further the initiative's intent, which is the disputed question in this case - whether the regulations for the parole procedures adopted by CDCR are consistent with the intent of Proposition 57 and section 32.

Determinately Sentenced Nonviolent Offenders

The regulations that CDCR adopted pursuant to section 32 for parole consideration of determinately sentenced nonviolent offenders, and are at issue in this case, are contained in title 15. (Regs., tit. 15, §§ 2449.1-2449.7, §§ 3490-3491.) These regulations were "patterned largely after the procedures that it had previously adopted [in the NVSS process] to screen nonviolent second strikers for parole consideration to comply with a federal court mandate to reduce California's prison population." (McGhee, supra, 34 Cal.App.5th at p. 906.)

As relevant to this case, an inmate such as Ernst is defined as "a 'determinately sentenced nonviolent offender' if the inmate [was] sentenced to a determinate term," and was not sentenced to death, life with or without the possibility of parole, or serving a term for a violent felony as defined by Penal Code section 667.5, subdivision I. (Regs., tit. 15, § 2449.1, subds. (a), (c); § 3490, subds. (a), (c).)

"A 'nonviolent parole eligible date' is the date on which a nonviolent offender who is eligible for parole consideration … has served the full term of his or her primary offense …." (Regs., tit. 15, § 2449.1, subd. (f); § 3490, subd. (f); Kavanaugh, supra, 61 Cal.App.5th at p. 336.)

"CDCR conducts the parole eligibility reviews and refers eligible prisoners to the Board for parole consideration on the merits. [Citations.] Eligibility reviews are conducted annually 'until the inmate is released from custody or is no longer eligible for parole consideration .…'" (Kavanaugh, supra, 61 Cal.App.5th at p. 336.)

"If a prisoner is found eligible for parole consideration and referred to the Board, the Board must provide notification about the pending parole review to the prisoner, the prosecuting agency, and the victim(s) who were harmed by the prisoner's crime(s). [Citations.] The Board must also afford the prisoner, the prosecuting agency, and the victim(s) an opportunity to submit a written statement to the Board." (Kavanaugh, supra, 61 Cal.App.5th at p. 336; Regs., tit. 15, § 2449.3, subd. (a), § 3492.)

"A hearing officer - defined by regulation as a Board commissioner, a deputy commissioner, an associate chief deputy commissioner, or the chief hearing officer [citation] - must then review the 'case on the merits and determine whether to approve the inmate's release,' [citation]. When conducting the merits review, the hearing officer must 'review and consider all relevant and reliable information' including but not limited to the prisoner's central file, the prisoner's documented criminal history, and any written statements submitted by the prisoner, the prosecuting agency, and/or the victim(s). [Citation.] The hearing officer must weigh various aggravating and mitigating factors pertaining to the prisoner's current conviction(s), prior criminal conviction(s) and behavior, and institutional behavior, work history, and rehabilitative programming, as well as the written statements received by the Board. [Citations.] The factors are 'general guidelines' and 'the importance attached to any factor or combination of factors in a particular case is left to the judgment of the hearing officer.'" (Kavanaugh, supra, 61 Cal.App.5th at pp. 336-337; Regs., tit. 15, § 2449.4, subds. (a), (b), § 2449.1, subd. (g), § 2449.5.)

After reviewing and considering the relevant information, "the hearing officer shall determine whether the inmate poses a current, unreasonable risk of violence or a current, unreasonable risk of significant criminal activity as determined by considering and applying the risk factors" set forth in the regulations. (Regs., tit. 15, § 2449.4, subd. I.) "If the hearing officer finds the prisoner poses such a risk, the hearing officer must deny parole release. [Citation.] If the hearing officer finds the prisoner does not pose such a risk, the hearing officer must grant parole release. [Citation.] But, if the parole release decision will result in the prisoner's release two or more years prior to his or her earliest possible release date, the parole release decision must be reviewed by an associate chief deputy commissioner or the chief hearing officer, who may concur with the decision or issue a new decision approving or denying the parole release." (Kavanaugh, supra, 61 Cal.App.5th at p. 337.)

"Within 30 days of being served with the hearing officer's parole release decision, the prisoner may request review of the decision. [Citations.] The request for review must 'include a description of why the inmate believes the previous decision was not correct and may include additional information not available to the hearing officer at the time the previous decision was issued.' [Citation.] A hearing officer not involved in the original decision must then, within 30 days of the Board's receipt of the request for review, 'consider all relevant and reliable information and issue a decision either concurring with the previous decision or overturning the previous decision with a statement of reasons supporting the new decision.'" (Kavanaugh, supra, 61 Cal.App.5th at p. 337; Regs., tit. 15, § 2449.4, subd. (i), § 2449.7, subds. (a), (c), (d).)⁴

4 As will be discussed below, CDCR's initial regulations, adopted under section 32 in 2017 and 2018, "excluded from early parole consideration nonviolent felony offenders sentenced to indeterminate sentences under California's Three Strikes Law. In 2018, the California Court of Appeal found that the Regulations' exclusion of these offenders was inconsistent with Section 32. [Citation.] [¶] Thereafter, in 2019, the CDCR amended the Regulations to include, for early parole consideration, state prisoners serving indeterminate sentences for nonviolent third-strike offenses." (Jones v. Allison (9th Cir. 2021) 9 F.4th 1136, 1138, fn. omitted.)

These regulations thus provide for a single hearing officer to determine parole consideration for a determinately sentenced nonviolent offender based on a "paper" review of documents, and not at an in-person heard before the Board.

ERNST'S 2018 PAROLE PROCEEDING ⁵

5 While Ernst did not challenge the denial of parole in 2018, we review the reasons for that decision since they were similar to the reasons given for the denial of parole in 2019.

On August 6, 2018, CDCR notified Ernst that he had been referred to the Board of Parole Hearings (the Board) for nonviolent parole review and possible release, pursuant to the regulations described above. The notice stated Ernst had 30 days to submit a written statement, explaining why he believed he would not "pose a current, unreasonable risk of violence or a current, unreasonable risk of significant criminal activity." The Board would make a decision about his release "even if you do not submit anything."

The notice further stated that Ernst would receive "a 'paper review' process. There will not be a hearing for you or others to attend. You will not be provided an attorney for this process. The board will first double-check to make sure you are eligible for the Nonviolent Parole Review Process. This is referred to as a 'jurisdictional review.'" (Italics added.)

If the Board found Ernst was eligible, it would review his central file and consider four factors to determine if he should be approved for release: (1) the facts of his current conviction; (2) his prior criminal record; (3) his behavior and rehabilitative programming in prison; and (4) statements in writing received from the inmate, his victim, and the district attorney.

There is nothing in the record to show that Ernst sent a written statement to the Board for the 2018 hearing.⁶

6 The written notices received by Ernst stated that the "board" would determine whether he would be released on parole. It is settled, however, that Ernst received the "paper review" conducted by a hearing officer consistent with the regulations for nonviolent offenders sentenced to determinate terms, and not an in-person hearing before the Board.

Denial of Parole

On September 20, 2018, the Board denied parole to Ernst because it determined he posed "an unreasonable risk of violence to the community" after considering the requisite four factors.

The Board found the current conviction was an aggravating risk factor for future violence because he threatened to, and in fact did, inflict physical injury on the victim. Ernst's prior criminal record was a mitigating risk factor because he did not have a prior serious felony conviction within the past 15 years and had been free from incarceration for almost 15 years before the current conviction.

The Board found Ernst's institutional behavior, work history, and rehabilitative programming aggravated his current risk of violence. He did not have any serious rules violations, but "he has yet to immerse himself into any type of programming to improve himself, whether through work/vocations, education or self-help. Because his criminal history goes back over thirty years, and because he now has two convictions for criminal threats, [he] likely has issues behind his behavior that he has yet to explore. Until he does that, and gets tools that will assist him in changing negative conduct, he is apt to continue repeating harmful behavior."

The Board concluded that "[w]hen reviewing all of the case factors as documented above, taking into account the totality of the circumstances, including the inmate's age of 57, the factors aggravating the inmate's current risk of violence outweigh the factors mitigating the inmate's current risk of violence. [¶] The inmate's commitment offense involving him threatening to physically harm his mother, putting her in great fear. The inmate then did hurt the victim, causing an injury to her arm. While the inmate was free from incarceration for about 15 years prior to his conviction, it is very concerning that it is the same charges as his most recent prior conviction. That points to unresolved issues within the inmate that he needs to discover and work on correcting, so that he does not create more victims in the future. At this point, the inmate remains an unreasonable risk of violence to the community."

On September 24, 2018, Ernst was served with a copy of the Board's decision and notified that if he disagreed, he could send a written objection within 30 days. He did not file an objection.

ERNST'S 2019 PAROLE PROCEEDING

On August 13, 2019, CDCR notified Ernst that he had again been referred to the Board for nonviolent parole review and possible release, in a notice identical to the one he received in 2018 - that he had 30 days to submit a written statement in support of receiving parole, and he would receive "a 'paper review' process" and not an in-person hearing to review the four factors to determine if he should be approved for release.

Ernst's Letter

On August 28, 2019, the Board received a letter from Ernst, and he asked to be released on parole. Ernst stated he had been clean and sober for three years, and his brain had "healed" from his methamphetamine use that had made him "insane." He had previously been clean for 16 years but got "high" again on his 53^rd birthday, became addicted, and his life took a turn for the worse. Now he realized he could not use drugs even once because he would get hooked again. Ernst stated he would never put his mother, his community, or himself through that again.

Ernst also stated that when the Board denied parole in 2018, he had "nothing to bring to the table," but he had now covered the areas that had been the basis for denying parole. Ernst stated he had been unable to quit using methamphetamine on the streets, and his arrest had given him time to heal.

Initial Denial

On November 6, 2019, the Board issued an order that again denied parole because Ernst posed a current, unreasonable risk of violence or significant criminal activity to the community based on the four factors. In making this ruling, it stated that it had received and considered letters from Ernst, his mother, and the district attorney's office.⁷

7 Any letters submitted by the district attorney and his mother for the 2019 parole proceeding are not in the instant record.

The Board again found the circumstances of Ernst's conviction were an aggravating risk factor because he threatened the victim "that he was going to 'burn her' and 'harm her' and later in the day he physically grabbed her causing her to fall and injury her arm. The victim related that she believed [he] would possibly kill her."

Next, the Board found the circumstances of Ernst's prior record mitigated his current risk of violence because "there are not any aggravating circumstances of the inmate's prior criminal history, only factors in mitigation," he had not been convicted of a violent felony in the past 15 years, and he had been free from incarceration for a prior felony conviction for more than five years prior to his current conviction.

The Board commended Ernst's "recent participation" in self-help and rehabilitative programming, but concluded his institutional behavior, work history, and rehabilitative programming aggravated his current risk of violence because "he had no participation in available work assignments, limited participation in available vocational and educational assignments and limited participation in rehabilitative or self-help programming to address the circumstances that contributed to his criminal behavior, such as domestic violence. The limited participation to date is insufficient to be considered successful participation for a sustained period of time. As a result, the inmate has not addressed the circumstances that contributed to his criminal behavior in the commitment offense and his ability to life a crime free life, which increases his recidivism risk and the current risk of violence or significant criminal activity. On balance, the lack of sustained positive programming was weighed more heavily" than the lack of any criminal activity or rules violations in prison.

The Board denied parole because it concluded the factors aggravating Ernst's current risk of violence outweighed the mitigating factors.

"[Ernst's] current commitment offense and institutional behavior are considered aggravating. The inmate's current offense involved physical injury and the threat of physical injury to the victim in a domestic setting; as the inmate threatened his mother and caused her to fall to the ground sustaining personal injuries. The inmate's institutional behavior was aggravating, as the inmate has not yet participated in self-help and rehabilitative programming or work, vocation and educational assignments to address the circumstances of his criminal behavior for a sustained period of time. The inmate's prior criminal record was found to be a mitigating factor…. On balance, the aggravating factors, when weighed in their totality, aggravate the inmate's current risk of violence or significant criminal activity in this case."

Ernst's Challenge

On November 12, 2019, Ernst was served with a copy of the Board's decision that denied parole and notified that he could send a written objection within 30 days if he disagreed with the decision.

On December 6, 2019, the Board received a letter from Ernst where he disagreed with the decision and requested review. Ernst stated he understood why parole was denied in 2018, because he did not have "one thing" to bring to the Board at that time. In 2019, however, he had "something to show" about why he would be a "great" choice to receive parole based on letters from his mother and himself that showed he would not be a threat to the community. His mother was 89 years old and ill, and she needed him to take care of her because he was her only living family member.

Ernst stated he had finished serving the base term for his conviction, he participated in substance abuse, coping, and anger management groups, he was on waiting lists for other groups, and he had never received any disciplinary actions.

Ernst did not challenge the parole procedures or regulations, or object that the decision was made by a single hearing officer without an in-person hearing.

Denial of Ernst's Challenge

On December 9, 2019, the Board issued a ruling and upheld its prior decision to deny parole. The Board found there were no factual errors in the earlier decision, the regulatory criteria had been properly applied, there was no new material information supporting a different decision, and there was a substantial nexus between the conclusion that Ernst posed a current unreasonable risk and the facts and circumstances upon which the decision was based.

The Board stated Ernst was "provided with an opportunity to be heard, a fair and impartial hearing and a thorough review of his case and therefore has been afforded due process in the nonviolent review parole process. There was no material new information provided to [the Board] in the inmate's request for reconsideration."

The Board further stated "the hearing officer" reviewed the facts and circumstances of the case, made findings on each factor and properly applied the regulatory criteria, and balanced those factors against each other to find Ernst would "pose an unreasonable risk of violence or significant criminal activity if released. The denial decision is found to have a substantial nexus to facts and the findings in this case finding the inmate poses a current unreasonable risk of violence or significant criminal activity," and there were no material errors of fact or law.

On December 31, 2019, Ernst was served with the Board's ruling.

ERNST'S WRIT PETITION

The instant appeal is from the grant of Ernst's petition for writ of habeas corpus, filed pro se, in superior court on January 2, 2020.

Ernst's writ petition challenged the Board's decision to deny parole on November 6, 2019. Ernst argued his constitutional rights to both due process and equal protection were violated by the regulations adopted by CDCR after the enactment of Proposition 57 for "the parole consideration process" that resulted in the denial of his parole.

Ernst asserted the regulations for determinately sentenced, nonviolent offenders violated his due process rights because a single hearing officer had the authority to determine whether he should receive parole based on reviewing his file and other documents, and the regulations did not provide for the inmate's presence at a parole hearing before the full Board.

Ernst acknowledged that section 32 delegated authority to the CDCR to draft regulations to implement the Proposition 57 parole process but argued the regulations did not provide for the "parole consideration" that was required by section 32, and CDCR's "creation of a completely different parole review system for otherwise eligible inmates is hardly justifiable." Ernst argued section 32's mandate for "parole consideration," as intended by the voters who enacted Proposition 57, meant his presence at a parole hearing held by the entire Board, and not a paper review of his file conducted by a single hearing officer.

Ernst relied on statutory and regulatory provisions that existed before enactment of Proposition 57, that provided for in-person parole hearings before the Board, and argued different parole procedures could not be justified based on "levels of dangerousness" and differences between determinate and indeterminate sentence.⁸ Ernst argued his constitutional right to equal protection was violated because CDCR's regulations that existed prior to the enactment of Proposition 57 granted "lifer" prisoners sentenced to indeterminate terms the right to an in-person hearing before the Board. Ernst argued there was no rationale for CDCR's disparate treatment of determinately sentenced nonviolent offenders in the regulations enacted after section 32, limiting inmates to a "paper" hearing conducted by a single hearing officer.

8 In his petition, Ernst stated that a trial court had granted relief in a case involving similar issues, the case was pending in the Fourth District, and cited to the case that was later known as Kavanaugh, supra, 61 Cal.App.5th 320. Ernst stated the Board had "hurried up" and granted parole to the inmates in Kavanaugh to make the superior court's findings in favor of in-person parole hearings moot. As we will discuss below, Kavanaugh reversed the superior court's decision that found section 32 required an in-person parole hearing before the Board and held the "paper" review parole regulations were consistent with section 32. Kavanaugh acknowledged the inmates involved in that case had received parole while the case was pending on appeal, but found the issues were not moot and addressed the merits because the superior court separately invalidated the contested regulations. (Kavanaugh, supra, 61 Cal.App.5th at p. 340, fn. 8.)

Order to Show Cause

On February 24, 2020, the superior court found Ernst's petition stated a prima facie case for relief, that he was improperly denied parole after a review conducted by a single hearing officer who conducted a" 'paper review, '" without his personal attendance at a hearing before the entire Board, and issued an order to show cause (OSC).

The superior court agreed with Ernst that section 32's phrase" 'parole consideration'" meant an in-person hearing before the Board, and CDCR's regulations were inconsistent with the intent of section 32. "Proposition 57 contemplated that eligible inmates would have parole suitability determined by the parole board, not by a preliminary screening process…."

The superior court found CDCR's regulations to implement parole consideration under section 32 were inconsistent with existing regulations contained in title 15, division 2, article 3 of the regulations that existed before Proposition 57 was enacted, that provided for in-person hearings where inmates have the right to address the Board, raise issues and answer questions, the right to an impartial panel, request disqualification of a panel member, and receive reasonable assistance if there are language or communication problems. "These are just a few of the rights which should be given to a prisoner who is eligible for parole consideration. It is not apparent from the new regulations that a paper review on the merits by the deputy commissioner affords the inmate all of these rights."⁹(Italics added.)

9 As mentioned above, the regulations in sections 2245 through 2255 of title 15, division 2, article 3, that existed before Proposition 57 was enacted, generally address parole hearings for indeterminately sentenced prisoners. (In re Jackson, supra, 39 Cal.3d at p. 468; Kavanaugh, supra, 61 Cal.App.5th at p. 347.)

The court held "the meaning of the term 'parole consideration' requires the consideration of Commissioners appointed by the Governor to the Board of Parole. The review by a Deputy Commissioner who is a civil servant does not qualify as a 'parole consideration' as was proposed in Proposition 57."

The superior court thus concluded that Ernst met his burden to show a prima facie case for habeas corpus relief, and issued an OSC "as to why the newest regulations are constitutional and not in conflict with the California Constitution as amended by Proposition 57 given that the newest regulations allow for [Ernst] to be denied parole after merely a review by a Deputy Commissioner and not the Board of Parole and without a hearing complying with the rights provided to an inmate as enumerated" in the regulations adopted by CDCR after the enactment of Proposition 57.

The court ordered the Secretary of CDCR and the Attorney General to file a return, and appointed counsel to represent Ernst.

The People's Return

On April 21, 2020, the People filed the return with the superior court, supported by documentary exhibits of the procedural history of the case as summarized above.

The People argued Proposition 57 did not create a constitutional or statutory right to an in-person parole hearing as part of the nonviolent parole review process, it authorized CDCR to promulgate regulations for that process, and inmates like Ernst received the requisite constitutional safeguards of having the opportunity to be heard by submitting a written statement in support of his parole, and the ability to seek administrative review to challenge the initial decision. The People argued these procedures were not unconstitutional, and Ernst did not have a due process right to an in-person parole hearing under Proposition 57.

The People further argued that when CDCR enacted the regulations pursuant to section 32, the statement of reasons in support of the regulations considered" 'the court-ordered nonviolent second-striker process already in effect, '" referring to the NVSS, enacted as a result of federal litigation to address overcrowding. These procedures, enacted in 2014, similarly provided a "paper" review for parole consideration and not an in-person hearing, and were constitutionally valid.

Finally, the People argued Ernst's equal protection rights were not violated because a prisoner serving a determinate term was not similarly situated to offenders serving indeterminate life sentences. There was a rational basis for treating indeterminately sentenced offenders differently based on public safety concerns since they were more serious offenders.

Ernst's Traverse

On May 11, 2020, Ernst, represented by counsel, filed the traverse, reasserted the issues raised in his petition, and argued the plain meaning of section 32's phrase" 'parole consideration'" meant an in-person hearing attended by the inmate based on statutory rules of construction, the initiative's intent, and existing regulations, and the regulations were inconsistent with section 32 and unconstitutional.

THE SUPERIOR COURT'S ORDER GRANTING THE PETITION

On May 13, 2020, the superior court granted Ernst's petition for relief and held the regulations adopted under section 32 for "parole consideration" were inconsistent with the rights granted to prisoners in the regulations that existed prior to the enactment of Proposition 57, contained in title 15 of the Regulations, sections 2245 through 2255, and that due process required that a live, in-person parole review by the Board. The" 'paper review' by a single Deputy Commissioner is not consistent" with Proposition 57, and did not constitute the "parole consideration" required by section 32, because that meant "a live parole review by the Board of Parole."

The court ordered Ernst to be "afforded a parole consideration by the Board of Parole which comports with the rights provided to an inmate as enumerated in 15 CCR [sections] 2245 through 2255 and other regulations."¹⁰

10 In making this ruling, the superior court, as did Ernst, relied on regulations adopted pursuant to the Penal Code for parole consideration of prisoners sentenced to indeterminate life terms. (In re Jackson, supra, 39 Cal.3d at p. 468; Kavanaugh, supra, 61 Cal.App.5th at p. 347.)

The superior court resolved Ernst's constitutional challenge based on due process and did not reach the equal protection arguments raised in his petition.

Motion to Stay

On July 2, 2020, the superior court denied the People's request for a stay order pending appeal. The court acknowledged two similar cases were pending in the Third and Fourth Appellate Districts but found the trial courts in those cases had granted relief to the inmates and held "that a 'paper review' by a single Deputy Commissioner does not constitute parole consideration…. In other words, the AG has already lost regarding the same arguments at least twice." "In the opinion of this Court, and at least two other Superior Courts in the State of California, [Ernst] will still not have received the parole consideration, which was directed to be provided in Proposition 57."

Appellate Orders

On July 8, 2020, the warden of Mule Creek State Prison, represented by the People, filed a timely notice of appeal of the court's order that granted Ernst's petition.

On July 23, 2020, this court denied the People's petition for a temporary stay of the superior court's order pending the instant appeal.

On September 10, 2020, this court denied Ernst's motion to set time for CDCR to comply with the superior court's order for an in-person parole hearing, without prejudice to seeking relief in the superior court. There is no indication that Ernst sought similar relief in superior court.

APPELLATE CONTENTIONS

On appeal, the People argue CDCR's regulations are not inconsistent with section 32, and do not violate the federal and state Constitutions, because due process only requires an inmate to receive notice and an opportunity to be heard when considered for parole release.

Ernst asserts the superior court correctly found that section 32's provision for "parole consideration" meant an in-person hearing before the Board, as provided for indeterminately sentenced felons, and the "paper" review conducted by a single hearing officer violated his constitutional rights to both due process and equal protection.

We are thus called upon to determine whether CDCR's regulations for determinately sentenced, nonviolent offenders are consistent with section 32's mandate for "parole consideration," and even if they are, if the regulations violate constitutional principles of due process and equal protection.

DISCUSSION

I. Challenges and Revisions to CDCR's Regulations

As authorized by section 32, subdivision (b), CDCR proposed emergency regulations in 2017 to implement Proposition 57. The emergency regulations were replaced by final regulations in 2018, and the regulations have been "subsequently amended in response to various appellate opinions." (In re Mohammad, supra, 12 Cal.5th at p. 528; Gadlin, supra, 10 Cal.5th at pp. 923-924.)

Several courts have addressed the validity of certain regulations and held they were inconsistent with the intent of Proposition 57 and section 32. While these cases "do not squarely address the issue presented here, they nonetheless illustrate [CDCR's] repeated attempts to exclude categories of inmates undisputedly classified as 'nonviolent' from early parole consideration despite this classification and under the guise of 'public safety.' In each case, the appellate court determined that [CDCR] was required to adhere to the voters' intent in passing the Amendment rather than authorizing [CDCR] to exclude groups of nonviolent inmates solely based on its view of public safety," in contradiction of section 32's unambiguous language. (Alliance for Constitutional Sex Offense Laws v. Department of Corrections & Rehabilitation (2020) 45 Cal.App.5th 225, 237-238 [petition for review dismissed], italics added.)

The parties rely on the following cases in support of their arguments as to what constitutes "parole consideration" under section 32, even though they address different regulations. We briefly review these cases before turning to the disputed issues in this case, since the rulings resulted in further changes to CDCR's regulations.

A. Edwards

CDCR's initial regulations "excluded from early parole consideration nonviolent felony offenders sentenced to indeterminate sentences under California's Three Strikes Law." (Jones v. Allison, supra, 9 F.4th at p. 1138, italics added, fn. omitted.)

In In re Edwards (2018) 26 Cal.App.5th 1181 (Edwards), the prisoner was serving a third strike term of 53 years to life for a nonviolent felony and was advised he was not eligible for parole consideration under section 32 based on the regulations that excluded indeterminately sentenced felons. The prisoner filed a habeas petition to challenge the validity of the exclusionary regulations. (Edwards, at pp. 1184-1185.)

Edwards held CDCR's regulations were inconsistent with section 32, and that a prisoner sentenced to a third strike indeterminate term for a nonviolent felony was entitled to receive early parole consideration. Edwards explained that in determining an inmate's parole eligibility date under Proposition 57, section 32, subdivision (a)(1) excluded "any alternative sentence from consideration," and the parties agreed the Three Strikes law was an "alternative sentencing scheme." (Edwards, supra, 26 Cal.App.5th at p. 1192, italics added.)

Based on that definition, Edwards held a third strike indeterminate sentence was" 'put aside for purposes of determining the full term for his primary offense, '" and CDCR's regulations "impermissibly circumscribe eligibility for Proposition 57 parole by barring relief for [petitioner] and other similarly situated inmates serving Three Strikes sentences for nonviolent offenses. The offending provisions of the adopted regulations are inconsistent with California Constitution, article I, section 32 and therefore void." (Edwards, supra, 26 Cal.App.5th at p. 1192.)

B. Regulatory Amendments After Edwards

In response to Edwards, CDCR amended its regulations in 2019 to state that prisoners serving indeterminate sentences for nonviolent third-strike offenses were eligible for parole consideration under section 32. (Jones v. Allison, supra, 9 F.4th at p. 1138; Gadlin, supra, 10 Cal.5th at p. 925 & fn. 10; In re Arroyo (2019) 37 Cal.App.5th 727, 730.) These procedures are stated in title 15, division 2, article 15 of the Regulations. They are somewhat similar to the parole procedures that already existed for indeterminately sentenced felons prior to Proposition 57 and are different from those enacted for determinately sentenced nonviolent offenders under section 32. (Kavanaugh, supra, 61 Cal.App.5th at p. 336, fn. 3; Regs., tit. 15, §§ 2449.30-2449.34, §§ 3492- 3497.)

As relevant for purposes of the instant discussion, an" 'indeterminately sentenced nonviolent offender'" is defined as an inmate convicted of a nonviolent felony and sentenced to an indeterminate term. (Regs., tit. 15, § 2449.30, subds. (a), (b), (c); § 3495, subds. (a), (b), (c).) The definition does not include an inmate sentenced to death, life without the possibility of parole, or life with the possibility of parole for a violent felony, along with other definitions for inmates serving concurrent or consecutively imposed determinate and indeterminate terms. (Regs., tit. 15, § 2449.30, subds. (a), (c).)

If an inmate who was convicted of a nonviolent felony and sentenced to an indeterminate term is eligible for parole consideration under section 32, "the [B]oard shall schedule the inmate for a parole consideration hearing…." (Regs., tit. 15, § 2449.31, subds. (a), (d), § 2449.32, subd. (a)); § 3496, subd. (d), § 3497, italics added.)

"An 'indeterminately sentenced nonviolent offender' … shall be eligible for a parole consideration hearing" under the newly enacted regulations. (Regs., tit. 15, § 3496, subd. (a), italics added, § 3497.) "Hearing panels shall conduct parole consideration hearings for indeterminately sentenced[, ] nonviolent offenders in compliance with the requirements for initial and subsequent parole consideration hearings described in this Division, Penal Code sections 3040, et seq., and applicable case law." (Regs., tit. 15, § 2449.32, subd. (d), italics added.)

The regulations for indeterminately sentenced, nonviolent offenders thus provide for in-person hearings before the Board, and not for paper hearings conducted by a single hearing officer as provided for determinately sentenced nonviolent offenders.

C. McGhee and the Two-tiered Parole Process

CDCR's regulations enacted for parole consideration under section 32 were again addressed in In re McGhee, supra, 34 Cal.App.5th 902, that addressed the validity of CDCR's regulations that "eligible inmates will first be screened by [CDCR] and referred to the [B]oard 'for parole consideration …' only if the inmates satisfy eight criteria, all of which require the absence of serious or multiple disciplinary violations while in prison." (Id. at pp. 906-907, italics added.)

The prisoner in McGee was a nonviolent offender and sentenced to a determinate term. Based on this regulation, the prisoner was advised that he was eligible for parole consideration under section 32, but he would not be referred to the Board because CDCR determined he did not satisfy two of the criteria in their regulations because he committed prison rule violations. (McGhee, supra, 34 Cal.App.5th at p. 907.) The prisoner filed a writ petition and challenged regulations where CDCR gave itself the authority to initially determine whether a prisoner was suitable for parole. (Id. at p. 908.)

McGhee held regulations that allowed CDCR to conduct its own determination of "parole consideration," and "screen[] out otherwise eligible inmates from parole consideration by the board, cannot be upheld." (McGhee, supra, 34 Cal.App.5th at p. 909.) "The permissibility of the 'two-tiered' process is based on the premise that the 'parole consideration' mandated by … section 32, subdivision (a)(1), need not necessarily be conducted by the board, and that the department itself may determine that an inmate is unsuitable for parole. This premise is unsupportable." (Ibid., italics added.)

"The reference to parole consideration in the constitutional amendment can only be understood to mean parole consideration by the board. The board is 'the administrative agency within the executive branch that generally is authorized to grant parole and set release dates.' [Citation.] In every statute and regulation concerning the subject of parole, 'parole consideration' refers to consideration for parole by the board. Within title 7 of part 3 of the Penal Code, governing administration of the state correctional system, chapter 3, commencing at section 5075, creates the board and specifies its authority. The board is empowered to, among other duties, '[c]onduct parole consideration hearings' for adults under the department's jurisdiction. [Citation.] Within title 15 of the California Code of Regulations, division 2 addresses the role and procedures of the board. Title 15, section 2000, subdivision (b)(10) of the regulations defines the board as '[t]he administrative board responsible for setting parole dates, establishing parole length and conditions, … granting, rescinding, suspending, postponing or revoking paroles .…' The board's regulations are replete with references to 'parole consideration,' referring always to consideration by the board alone. [Citations.] Under these regulations, the board conducts a 'parole consideration hearing' for inmates at which it reviews '[a]ll relevant, reliable information available' and first determines whether the inmate will pose an unreasonable risk of danger to society if released from prison. [Citations.] 'Title 15, section 2281 of the California Code of Regulations sets forth the factors to be considered by the Board in carrying out the mandate of the statute. The regulation is designed to guide the Board's assessment of whether the inmate poses "an unreasonable risk of danger to society if released from prison."' [Citation.]

"This statutory and regulatory scheme, referring to parole consideration by the board, was in place when Proposition 57 went before the voters. We presume that voters were aware of the state's parole process at the time they passed the proposition." (Id. at pp. 909-910, first italics added, fn. omitted.)

McGhee held Proposition 57's voter information guide "confirmed that parole consideration referred to consideration for parole by the Board. [Citation.] The background section of the guide contains a section titled 'Parole Consideration Hearings' (boldface omitted) that explains how the Board conducts parole consideration hearings to determine whether inmates are 'ready to be released from prison.' [Citation.] The guide then indicates that Proposition 57 would provide the same type of hearing to individuals convicted of nonviolent felonies; the guide explains that inmates convicted of nonviolent felonies are 'eligible for parole consideration' after serving the full term of their primary offense, and that the Board 'would decide whether to release these individuals.' [Citation.] The guide indicates that the screening of inmates to determine their suitability for parole will be conducted by the board: 'The Board of Parole Hearings - made up mostly of law enforcement officials - determines who is eligible for release.'" (McGhee, supra, 34 Cal.App.5th at pp. 910-911, first italics in original, second italics added.)

McGhee concluded the "ultimate determination" of parole consideration for a prisoner "is to be made by the Board, not the department," and CDCR did not have discretion to promulgate regulations that were inconsistent with the governing statute. (McGee, supra, 34 Cal.App.5th at p. 910.) "While Proposition 57 delegated rulemaking authority to the department to 'fill up the details,' as the Attorney General argues, the exclusion of otherwise eligible inmates from board consideration is hardly a detail." (Ibid.)¹¹

11 The prisoner in McGhee did not challenge the validity of the regulations for the parole consideration for a nonviolent offender sentenced to a determinate term, and McGhee did not address the regulations at issue in this case.

In response to McGhee, the regulations that allowed CDCR to initially screen out inmates under the two-step jurisdictional review were repealed, and the process no longer exists. (Gadlin, supra, 10 Cal.5th at p. 925 & fn. 10; Kavanaugh, supra, 61 Cal.App.5th at p. 339, fn. 5.)

D. Gadlin

In re Gadlin, supra, 10 Cal.5th 915, held invalid CDCR's regulations that excluded a nonviolent offender from 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 Penal Code section 290 et seq. (Id. at pp. 919, 920.) Gadlin held this "categorical exclusion conflicts with the constitutional directive that inmates 'convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration, '" and CDCR could not "entirely exclude from parole consideration an entire class of inmates when those inmates have been convicted of nonviolent felony offenses." (Id. at p. 920.) There was nothing in section 32 to indicate "any intent to consider prior convictions in determining nonviolent offender parole eligibility." (Id. at p. 932, italics added.)

Gadlin rejected CDCR's arguments that the regulations were valid because similar exclusions for registrants existed for second strike offenders under the NVSS parole process. (Gadlin, supra, 10 Cal.5th at p. 941.) The court acknowledged that the ballot materials referred to the federal court order to reduce overcrowding, but there was no indication the voters would have understood that parole consideration for nonviolent offenders under section 32 excluded prisoners with sex offense convictions. (Gadlin, at p. 941.) Gadlin noted that section 32 does not mandate the release of any inmate, and "[w]hether an inmate is suitable for parole depends in part on that individual's prior criminal history and the nature of his or her current offense." (Id. at pp. 942-943.) The Board "may consider an inmate's prior or current sex offense convictions when evaluating the inmate's suitability for parole," but CDCR's regulations that denied "even the mere possibility of parole to an entire category of 'person[s] convicted of a nonviolent felony offense'" was inconsistent with section 32. (Id. at p. 943.)

After Gadlin, CDCR's regulations were again amended to eliminate the exclusionary provisions for nonviolent offenders who were ordered to register as sex offenders. (Regs., tit. 15, § 2449.32, subd. I; § 3492, subd. (f); § 3497, subd. I.)

As demonstrated by these decisions, CDCR's initial regulations have been ordered amended to conform to the mandate of section 32 for parole consideration of nonviolent offenders, and address "parole eligibility dates, not 'parole hearing' dates, suitability determinations, or release dates." (In re Arroyo, supra, 37 Cal.App.5th at p. 731, italics added.)

II. Kavanaugh's Review of Parole Consideration Regulations

In the instant case, the superior court granted Ernst's petition and held that he was entitled to an in-person parole hearing before the Board based on both the mandate of section 32 and due process concerns. The court denied the People's request for a stay of its order for a hearing, because two other superior courts had reached identical conclusions in other cases and granted the prisoners' writ petitions. However, the court acknowledged both rulings were pending on appeal.

While this appeal was pending, both of these cases were resolved, reversed the rulings by the superior courts, and rejected challenges to the validity of CDCR's regulations for parole consideration of determinately sentenced, nonviolent offenders under section 32.

One of these cases was published and addressed the specific issues raised in this case. In Kavanaugh, supra, 61 Cal.App.5th 320, as in Ernst's situation, three inmates were serving determinate terms for nonviolent offenses, and were denied parole after a single hearing officer conducted a "paper" review, as required by the regulations adopted by CDCR under section 32 for determinately sentenced nonviolent offenders. The inmates filed separate petitions for writs of habeas corpus in the superior courts and argued CDCR's regulations were inconsistent with Proposition 57 and violated their due process rights because the regulations only provided for "paper" parole review and did not give them in-person parole hearings before the Board. (Kavanaugh, at pp. 338-339.)

The superior courts granted the inmates' petitions for habeas relief and held "the parole regulations are unconstitutional because they do not guarantee the assistance of legal counsel for potential parolees, permit in-person parole hearings, or mandate that parole decisions be made by multimember parole panels. The courts found these alleged deficiencies failed to ensure parole consideration under section 32 and violated prisoners' procedural due process rights under the California Constitution. Based on these findings, the courts ordered new parole proceedings for the petitioners and ordered CDCR to repeal and amend the parole regulations." (Kavanaugh, supra, 61 Cal.App.5th at p. 339, fn. omitted.)

On appeal, the three cases were consolidated, and People argued the courts' rulings were erroneous because there was no conflict between section 32's guarantee of parole consideration and CDCR's regulations, and section 32 did not impose express procedural requirements applicable to the parole consideration process. (Kavanaugh, supra, 61 Cal.App.5th at p. 344.)¹²

12 The three inmates in Kavanaugh also argued the denials of parole in their cases were not supported by the evidence. (Kavanaugh, supra, 61 Cal.App.5th at pp. 338- 339.) Kavanaugh noted that all three inmates were released from prison while the appeal was pending for reasons unrelated to their writ petitions, but held the appeal was not moot as to the aspect of the courts' orders that also invalidated CDCR's parole regulations. (Id. at p. 340 & fn. 8.)

Kavanaugh reversed the superior courts' orders and held that section 32 "broadly ensures parole consideration for eligible felons, but it does not specify the procedures governing the parole consideration process. Rather, it vests CDCR with authority to adopt regulations in furtherance of its guarantee of parole consideration. CDCR acted within its mandate by enacting the parole regulations. Further, the parole regulations do not impinge on the procedural due process rights of prisoners seeking parole. They require annual parole eligibility reviews, set forth sufficiently definite criteria governing parole release decisions, mandate a written statement of reasons for each parole release decision, and grant prisoners notice of the parole proceeding, an opportunity to submit a written statement to the Board of Parole Hearings (the Board), and the right to seek review of an adverse decision. These features adequately safeguard against arbitrary and capricious parole release decisions." (Kavanaugh, supra, 61 Cal.App.5th at p. 335.)

A. Section 32

First, Kavanaugh held CDCR's regulations did not conflict with the language and intent of section 32 for "parole consideration." Kavanaugh found the initiative did not define or specify the procedural requirements for "the parole consideration to which nonviolent felons are entitled." (Kavanaugh, supra, 61 Cal.App.5th at p. 347.) Instead, section 32 charged CDCR to issue regulations "implementing its guarantee of parole consideration" and gave CDCR" 'ample room to protect public safety by crafting the specific processes under which parole suitability is determined on a case-by-case basis.'" (Kavanaugh, at p. 347.)

Kavanaugh found there were no statutory or constitutional definitions of "parole consideration," and the "common and ordinary meaning" of the words meant "the giving of careful thought and deliberation to a person's parole suitability." (Kavanaugh, supra, 61 Cal.App.5th at p. 346.) Based on that meaning, CDCR's regulations "are in harmony with section 32" since they "require the referral of each eligible prisoner to the Board for a parole assessment whereby a hearing officer reviews all relevant information and applies criteria to determine whether the prisoner poses a risk of violence or significant criminal activity. [Citations.] Depending on the outcome of the assessment, the hearing officer then approves or denies parole release. [Citations.] In short, the Board affords parole consideration to the prisoner when the hearing officer reviews the prisoner's record and weighs various factors bearing on the prisoner's parole suitability in order to reach a reasoned parole release decision." (Id. at p. 346.)

Kavanaugh thus concluded there was "no tension" between section 32's "broad promise of parole consideration and the parole regulations CDCR has adopted." (Kavanaugh, supra, 61 Cal.App.5th at pp. 346, 347.)

B. Parole Provisions for Indeterminately Sentenced Prisoners

Next, Kavanaugh explained that while the superior courts found "a conflict between section 32's guarantee of parole consideration and the parole regulations," the courts "relied on statutes and regulations governing the parole consideration process for indeterminately sentenced persons. Those statutes and regulations require the appointment of legal counsel for potential parolees (e.g., Pen. Code, § 3041.7), in-person parole hearings (e.g., id., §§ 3041, subd. (a)(2); 3041.5, subd. (a)(2); Regs., tit. 15, §§ 2280, 2304), and multimember parole panels (e.g., id., §§ 3041, subds. (a)(2), (d); Regs., tit. 15, §§ 2281, subds. (a)-(b), 2315). The courts reasoned the voters who passed Proposition 57 'were aware of the state's parole process' and - by approving 'parole consideration' for eligible nonviolent felons - they impliedly adopted all the same procedural requirements that apply when indeterminately sentenced prisoners undergo parole consideration." (Kavanaugh, supra, 61 Cal.App.5th at p. 347.)

Kavanaugh acknowledged there was a presumption" 'that voters are aware of existing laws at the time a voter initiative is adopted, '" but found that presumption was not conclusive. (Kavanaugh, supra, 61 Cal.App.5th at p. 347.) The presumption was also undermined by the fact that when Proposition 57 was passed, the NVSS parole procedures for second strike offenders were also in existence, that used the same "paper" review process by a single hearing officer for parole consideration of certain determinately sentenced prisoners. (Ibid.)

"[T]he parole consideration process for indeterminately sentenced persons was not, as the trial courts apparently assumed, the only parole consideration process in existence at the time the voters enacted Proposition 57. Indeed, in 2009, a three-member federal court found that overcrowding in the prison system caused the state to deliver constitutionally inadequate medical and mental health care to inmates. [Citation.] In connection with this finding, the federal court ordered the state to reduce the population of its adult prisons to 137.5 percent of their total design capacity [citation], and issued a remedial order intended to achieve this goal [citation]. The order mandated' "a new parole determination process through which nonviolent second-strikers [would] be eligible for parole consideration by the Board … once they have served 50% of their sentence."' [Citation.]

"In response to this remedial order, CDCR 'created a [parole] process entitled "Non-Violent, Non-Sex-Registrant, Second-Strike (NVSS) Review," which was implemented on January 1, 2015.' [Citation.] Under the NVSS parole consideration process, prisoners were screened for parole eligibility and referred to the Board for potential release. [Citation.] Once referred to the Board, the prisoners were permitted to submit a written statement and a single deputy commissioner - not a parole panel - would consider the documentary record and determine whether to grant parole. [Citation.] A written parole decision was required, but no in-person parole hearing was held. [Citation.] Under the NVSS parole consideration process, a single associate chief deputy commissioner - not a parole panel - could review the parole decision and issue a decision upholding or vacating the original parole decision. [Citation.] As this brief description

demonstrates, the parole regulations establish a parole consideration process that in many respects resembles the NVSS parole consideration process.

"Returning to the presumption of voter awareness, it is untenable for us to conclude the voters were somehow aware of the parole consideration process available to indeterminately sentenced felons, yet inexplicably unaware of the NVSS parole consideration process. It is equally untenable for us to conclude the voters intended to replicate the former process, as opposed to the latter process - or to adopt a new process altogether - given that the language of Proposition 57 evinces no such intention. In light of this textual omission, we decline to infer through sheer speculation that the voters who passed Proposition 57 intended to adopt the broad and complex swathe of procedural requirements governing parole consideration for indeterminately sentenced felons." (Id. at pp. 348-349, fns. omitted.)

Kavanaugh found support for this conclusion in the ballot materials for Proposition 57, which did not suggest "the voters intended a wholesale adoption of the procedures by which indeterminately sentenced persons are considered for parole." (Kavanaugh, supra, 61 Cal.App.5th at p. 349, fn. omitted.) "The Legislative Analyst's analysis obliquely references the parole consideration hearings that are provided to indeterminately sentenced persons and the NVSS parole consideration process. [Citation.] However, neither the analysis nor any other portion of the ballot materials states that the parole consideration guaranteed by Proposition 57 would resemble either of these processes, nor that it would resemble one of the processes to the exclusion of the other." (Ibid.)

Kavanaugh further explained that neither Legislative Analyst nor the proponents' arguments mentioned "any of the procedures that might apply when an eligible felon undergoes parole consideration. [Citations.] They say nothing about the appointment of legal counsel for prospective parolees, in-person parole hearings, or multi-member parole panels. The ballot materials' silence on these topics strongly suggests the voters did not contemplate them." (Kavanaugh, supra, 61 Cal.App.5th at pp. 349-350.)

Kavanaugh held this conclusion was not contrary to McGhee, which invalidated the regulation that allowed CDCR to prescreen otherwise eligible inmates before referring them to the Board for parole consideration. (Kavanaugh, supra, 61 Cal.App.5th at p. 349, fn. 12.)

"The McGhee court - applying the presumption that voters were aware of existing parole statutes and regulations - concluded the regulation was inconsistent with Proposition 57's guarantee of parole consideration, which could 'only be understood to mean parole consideration by the [B]oard,' as opposed to parole consideration by CDCR. [Citation.] The application of the presumption of voter awareness can be explained by the fact that, for purposes of the appeal, there were no material differences between the two parole consideration processes governing indeterminately sentenced persons and determinately sentenced second-strike offenders; under both processes, parole consideration was undertaken by the Board, not CDCR. [Citation.] Here, there are material differences between the two parole consideration processes." (Id. at p. 349, fn. 12, italics added.)

Kavanaugh thus concluded that section 32 did not mandate "any specific parole consideration procedures," but vested CDCR with authority "to craft the specific processes under which parole suitability is determined. [Citation.] CDCR properly exercised this authority in its enactment and implementation of the parole regulations" for determinately sentenced, nonviolent offenders. (Kavanaugh, supra, 61 Cal.App.5th at pp. 350-351, fn. omitted.)

C. Constitutional Issues

Kavanaugh also rejected the superior courts' conclusions that CDCR's parole regulations were unconstitutional and deprived prospective parolees of their rights to procedural due process for failing to provide appointment of counsel, in-person hearings, and multimember parole panels. Kavanaugh noted it was previously well established that prisoners did not have a due process right to the assistance of legal counsel in parole proceedings, and there was nothing in section 32 to undermine these holdings. (Kavanaugh, supra, 61 Cal.App.5th at pp. 353-354, citing In re Schoengarth (1967) 66 Cal.2d 295, 304; In re Minnis (1972) 7 Cal.3d 639, 650.)

Next, Kavanaugh addressed whether determinately sentenced nonviolent prisoners had due process rights "to in-person parole hearings and/or parole panels consisting of at least two or more panelists." (Kavanaugh, supra, 61 Cal.App.5th at p. 354.) Kavanaugh relied on the four-part balancing test in People v. Ramirez (1979) 25 Cal.3d 260, based on the following factors:" '(1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'" (Kavanaugh, supra, 61 Cal.App.5th at pp. 352-353, fn. omitted, citing People v. Ramirez, supra, 25 Cal.3d at p. 269; People v. Otto (2001) 26 Cal.4th 200, 210.)

Under the first factor about the private interest, Kavanaugh noted that an inmate"' "is constructively a prisoner in the legal custody of state prison authorities until officially discharged from parole."' [Citation.] Thus, a parole revocation decision 'deprives an individual[] not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.' [Citation.] [¶] … Therefore, in a parole consideration proceeding, the private interest at stake is not a prisoner's interest in his or her conditional liberty; rather, it is the mere expectancy of his or her conditional liberty - a 'limited liberty interest.'" (Kavanaugh, supra, 61 Cal.App.5th at pp. 354-355.)

The second factor required an assessment of the extent to which the parole regulations protect against the erroneous and arbitrary deprivation of a prisoner's expectancy of conditional freedom, and the probable value, if any, of additional procedural safeguards. (Kavanaugh, supra, 61 Cal.App.5th at p. 355.) Kavanaugh held CDCR's regulations provided for an eligible prisoner to receive notice of the referral for parole consideration, information about the process, the opportunity to submit a written statement which must be considered, a written decision must be issued, the prisoner can file a challenge to that decision, and a different hearing officer will review an adverse decision. (Ibid.)

"Collectively, these procedural requirements ensure that a prisoner eligible for parole has a reasonable opportunity to inform the Board of any considerations weighing in favor of his or her parole suitability. For example, the prisoner can discuss any existing mitigating factors pertaining to his or her current conviction(s) or prior criminal behavior (Regs., tit. 15, § 2449.5, subds. I, I), or attempt to explain away or blunt the impact of any aggravating factors (id., subds. (b), (d), (f)). The prisoner can also highlight his or her rehabilitation in prison, including whether he or she has followed institutional rules, successfully participated in vocational, educational, or work assignments, or taken advantage of rehabilitative or self-help programming. (Id., subd. (g).) By providing the prisoner notice and an opportunity to submit a written statement concerning parole suitability, the parole regulations reduce the risk that the Board will base its parole decisions on incomplete, incorrect, or otherwise flawed information." (Id. at p. 356.)

The regulations also required the hearing officer to issue a written parole decision supported by a statement of reasons, the prisoner can request review of an adverse parole decision, and the review is conducted by a different hearing officer. These requirements reduced the likelihood that "a hearing officer will render an arbitrary and unsupported parole denial," so that the prisoner is advised of the reasons for the denial of parole in order to decide whether to challenge the decision, and there is "an adequate basis upon which to decide whether the parole decision" is supported by the evidence. (Kavanaugh, supra, 61 Cal.App.5th at p. 356.)

Kavanaugh rejected the prisoners' argument that a parole hearing conducted by additional panelists would reduce the likelihood of an arbitrary parole release decision. "A parole release decision is, after all, 'an attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts .…' [Citations.] Such an evaluation 'is not so readily adapted to procedural due process safeguards as are decisions that turn on specific factual questions .…'" (Kavanaugh, supra, 61 Cal.App.5th at p. 357.) While the addition of more hearing officers "might aid some prisoners in some cases," it was equally possible "that the addition of more hearing officers to the equation would cause some prisoners to be denied parole release when they might otherwise have been granted parole release if the decision had been left to one hearing officer. In short, we have little reason to believe that more panelists necessarily mean more (and more sound) parole release decisions." (Ibid.)

Kavanaugh acknowledged that the prisoner's attendance at an in-person parole hearing" 'may be useful in resolving conflicting information and in the introduction of subjective factors into the decision making process that might otherwise not be considered; it thereby may often tend to enhance the accuracy and reliability of the exclusion decision.'" (Kavanaugh, supra, 61 Cal.App.5th at pp. 357-358.) Under the due process factor addressing the governmental interest, however, Kavanaugh held "these potential benefits cannot be considered in isolation without accounting for the weighty fiscal and administrative burdens that in-person parole hearings would impose on the government," based on a declaration in the record from the Board's executive officer, that there were approximately 4, 000 nonviolent, determinately sentenced inmates who were eligible for early parole consideration, and about 2, 700 more inmates who would become eligible within the next year. (Id. at p. 358.)

"These in-person parole hearings would be exceptionally costly for the government. Based on the costs associated with in-person parole hearings for indeterminately sentenced prisoners, the People estimate it would cost the Board tens of millions of dollars annually to conduct in-person parole hearings for all eligible determinately sentenced nonviolent prisoners. Furthermore, we can reasonably infer in-person parole hearings would consume substantially more time than a documentary review of a prisoner's parole suitability - both to prepare for the in-person hearing and to conduct the in-person hearing. Therefore, it is apparent in-person parole hearings for determinately sentenced nonviolent felons would place painful fiscal and administrative strain on the government." (Ibid., fn. omitted.)

As to dignitary interest involved, CDCR's regulations "permit prisoners to make their case for parole release in ways other than in-person parole hearings. As noted, they allow prisoners to file a written statement before an initial parole decision and, if necessary, in a second written statement explaining why the initial parole decision is incorrect. [Citations.] Prisoners receive these opportunities annually, assuming they remain incarcerated and eligible for parole consideration. [Citations.] These opportunities promote the dignitary values of the persons seeking parole release." (Kavanaugh, supra, 61 Cal.App.5th at p. 359.)¹³

13 In a footnote, Kavanaugh found "persuasive" that numerous lower federal court decisions found CDCR's parole regulations implemented under section 32 did not violate prisoners' due process rights under the federal Constitution. In doing so, however, Kavanaugh cited to a string of unpublished federal court rulings. (Kavanaugh, supra, 61 Cal.App.5th at p. 359, fn. 19.)

Kavanaugh thus concluded that balancing these factors, CDCR's regulations for parole review for determinately sentenced, nonviolent offenders did not violate the due process rights of prisoners:

"We acknowledge in-person parole hearings might increase the accuracy of some parole release decisions and promote the dignity interests of prisoners. However, in our view, those potential benefits simply do not prevail over all the other factors weighing against a new constitutionally based right to annual, in-person parole hearings. We are particularly cognizant of the fact that prisoners have limited liberty interests in parole release proceedings, as well as the obvious and considerable fiscal and administrative burdens flowing from in-person parole hearings. And while the parole regulations may not assure error-free parole decisions in all cases, they contain numerous features that reduce the risk of arbitrary parole decisions. Many of those same features promote prisoners' dignitary interests. Considering all these factors, we conclude the parole regulations afford prisoners reasonable notice and a reasonable opportunity to be heard. That is all due process requires." (Kavanaugh, supra, 61 Cal.App.5th at p. 359, fn. omitted.)¹⁴

14 Kavanaugh acknowledged that after Edwards, CDCR issued new and separate regulations for parole consideration of nonviolent offenders who were sentenced to indeterminate terms, but stated those regulations were not at issue in the case. (Kavanaugh, supra, 61 Cal.App.5th at p. 336, fn. 3.)

D. Vagueness

Finally, Kavanaugh rejected the prisoners' arguments that their due process rights were further violated because CDCR's regulations were void for vagueness since they failed to identify the specific amount or type of rehabilitative programming the prisoner must engaged in to ensure he will be found suitable for parole. (Kavanaugh, supra, 61 Cal.App.5th at p. 360.) The regulations were sufficiently definite and afforded "reasonable and sufficient notice" to prisoners. "A parole release decision 'may be made "for a variety of reasons and often involve[s] no more than informed predictions as to what would best serve [correctional purposes] or the safety and welfare of the inmate."' [Citation.] '[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [parole authority] .…' [Citations.] The parole criteria regulation specifies the factors that the Board, in its discretion, may weigh and balance during each individual prisoner's parole consideration proceeding. Therefore, the parole criteria regulation is not unconstitutionally vague." (Id. at p. 361.)¹⁵

15 In re Flores (2022) 2022 Cal.App.Unpub. LEXIS 908 [petition for review pending, Mar. 25, 2022, S273785] was the second case involving the identical issues referred to by the court. In Flores, the superior court granted the prisoner's writ and held that "parole consideration" under section 32 meant an in-person hearing before the Board. Flores was pending before the Third District when the superior court granted Ernst's petition in this case. After Kavanaugh was decided, the Third District filed the nonpublished opinion in Flores and followed Kavanaugh as to the validity of CDCR's regulations and the due process issues; it did not address equal protection. As discussed by the parties at oral argument, a different panel of the Third District in In re Bailey (2022) 76 Cal.App.5th 837 addressed the same parole procedures at issue in this case, where the superior court had granted the petitioner's writ for an in-person parole hearing. Bailey reversed the order, approved Kavanaugh, and held the procedures did not violate section 32 or the petitioner's constitutional rights to due process and equal protection.

III. The Validity of CDCR's Regulations

The People, as the appellant in this case, argue this court should follow Kavanaugh and find the superior court improperly found CDCR's regulations did not provide the "parole consideration" required by section 32 for determinately sentenced, nonviolent offenders because they only received a paper review conducted by a hearing officer.

Ernst replies that the superior court properly found that section 32's mandate for parole consideration meant in-person parole hearings before the Board, that decision was supported by McGhee and Gadlin, and Kavanaugh was wrongly decided.

A. Regulatory Review

As explained by the California Supreme Court, in evaluating the validity regulations adopted by CDCR pursuant to Proposition 57 and section 32, "we first ask whether the regulation is' "consistent and not in conflict with"' the provision that authorizes it. [Citation.] We then inquire whether the regulation is reasonably necessary to effectuate the purpose of the authorizing law. [Citations.] Our task as a reviewing court '" 'is to decide whether the [agency] reasonably interpreted [its] mandate.'"' [Citations.] We presume the validity of a regulation promulgated by a state agency. [Citation.] The burden lies with the party challenging the regulation to show its invalidity. [Citation.] 'Such a limited scope of review constitutes no judicial interference with the administrative discretion in that aspect of the rulemaking function which requires a high degree of technical skill and expertise.'" (Gadlin, supra, 10 Cal.5th at p. 926, italics added.)

"' "Our function is to inquire into the legality of the regulations, not their wisdom."' [Citations.] Still, '" 'final responsibility for the interpretation of the law rests with the courts.' [Citations.] Administrative regulations that alter or amend the statute or enlarge or impair its scope are void and courts not only may, but it is their obligation to[, ] strike down such regulations." '" (Gadlin, supra, 10 Cal.5th at p. 926.)

"To determine whether the regulation here is consistent with the constitutional provisions enacted by Proposition 57, we must interpret the constitutional provisions themselves. Our 'primary concern' in construing a constitutional provision enacted through voter initiative is 'giving effect to the intended purpose of the provisions at issue.' [Citation.] And, '[i]n interpreting a voter initiative …, we apply the same principles that govern statutory construction.' [Citations.] In doing so, we look to the text of the constitutional provision at issue and, as appropriate, extrinsic sources such as an initiative's ballot materials." (Gadlin, supra, 10 Cal.5th at pp. 926-927; In re Mohammad, supra, 12 Cal.5th at pp. 529-530.)

B. Analysis

We find the analysis in Kavanaugh is persuasive and agree with its conclusion that CDCR's regulations for determinately sentenced, nonviolent offenders, to receive a paper review conducted by a hearing officer, are consistent with section 32's mandate for parole consideration. We agree with Kavanaugh's conclusion that section 32 did not define parole consideration but instead delegated the authority to CDCR to adopt appropriate regulations for those parole procedures as long as those regulations did not run afoul of section 32's directive for all eligible nonviolent offenders to receive parole consideration. We also agree that it was reasonable for CDCR to adopt regulations consistent with those previously used in the NVSS procedures for nonviolent, determinately sentenced, second strike offenders, for paper review hearings conducted by a single hearing officer.

The superior court reached the contrary conclusions for several reasons, most of which have been undermined by Kavanaugh. First, the superior court found that Proposition 57 "contemplated that eligible inmates would have parole suitability determined by the parole board, not by a preliminary screening process," citing to McGhee. (Italics added.) McGhee, however, found an irreconcilable conflict between the express language of Proposition 57 and section 32, that provided for parole consideration of nonviolent offenders, with CDCR's regulations that invested itself with the ability to exclude otherwise eligible prisoners from even being considered for parole if they failed to satisfy CDCR's own screening and referral process. (McGhee, supra, 34 Cal.App.5th at p. 905.) McGhee held that despite CDCR's claims of valid policy considerations, the regulations that created the two-step process were invalid because section 32 "mandates that these prisoners receive parole consideration if they have been convicted of a nonviolent felony and have served the full term of their primary offense." (McGhee, at p. 905.)

Both the superior court, and Ernst in this appeal, assert that McGhee's holding meant that determinately sentenced, nonviolent offenders must receive a parole hearing before more than one member of the Board, and not a paper hearing conducted by a single hearing officer. To the contrary, McGhee held that CDCR could not make itself the arbiter of whether nonviolent felons would even be considered for parole under section 32 in the place of the procedures conducted by the Board and explained that section 32's reference "to parole consideration … can only be understood to mean parole consideration by the Board" and not by CDCR. (McGhee, supra, 34 Cal.App.5th at p. 909, italics added.) As explained above, the regulations adopted under section 32 for determinately sentenced, nonviolent offenders define a hearing officer as "a commissioner, deputy commissioner, associate chief deputy commissioner, or chief hearing officer" with the Board, and are thus consistent with section 32's intent. (Regs., tit. 15, § 2449.1, subd. (g).)

Next, the superior court found Ernst was entitled to the parole consideration that existed in the regulations prior to the enactment of Proposition 57, contained in title 15 of the Regulations, division 2, article 3, sections 2245 through 2255, that provide for in-person hearings where inmates have the right to address the Board, raise issues and answer questions, the right to an impartial panel, and request disqualification of a panel member.

As previously explained, these regulations generally address parole hearings for indeterminately sentenced prisoners, enacted pursuant to Penal Code sections 3040 and 3041.5. (In re Jackson, supra, 39 Cal.3d at p. 468; Kavanaugh, supra, 61 Cal.App.5th at p. 347.) Penal Code section 3040 et seq. applies" 'to all inmates not serving a determinate sentence.' [Citation.] Thus, in the case of an indeterminate sentence, the Board's parole authority is governed by a body of statutes and regulations as mandated by the Legislature - most notably [Penal Code] section 3041 and Regulations section 2402." (Ilasa, supra, 3 Cal.App.5th at p. 499.) "Under specified standards set forth in section 3041, subdivision (b),' "the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction."' [Citations.] As a result, indeterminately sentenced inmates have a 'due process liberty interest in parole.' [Citations.] This liberty interest is based on' "an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation." '" (Id. at pp. 499-500.) In contrast, "where the inmate has been sentenced to a determinate term, there is no statute (like § 3041, subd. (b)) or regulation (like Regs., § 2402) that creates an inmate's expectation of parole." (Id. at p. 500.)

Ernst takes issue with Kavanaugh's conclusion that the voters did not intend to define "parole consideration" for purposes of section 32, by reference to the regulations that already existed for indeterminately sentenced offenders. We agree with the analysis in Kavanaugh, that the parole consideration procedures for indeterminately sentenced prisoners were not the only procedures in existence when Proposition 57 was approved. Indeed, the only parole procedures that existed for determinately sentenced prisoners were stated in the NVSS policies that went into effect in 2014 and 2015 for nonviolent offenders sentenced to second-strike terms, that provided for paper reviews conducted by a single hearing officer. "[I]t is untenable for us to conclude the voters were somehow aware of the parole consideration process available to indeterminately sentenced felons, yet inexplicably unaware of the NVSS parole consideration process [for determinately sentenced felons]. It is equally untenable for us to conclude the voters intended to replicate the former process, as opposed to the latter process - or to adopt a new process altogether - given that the language of Proposition 57 evinces no such intention. In light of this textual omission, we decline to infer through sheer speculation that the voters who passed Proposition 57 intended to adopt the broad and complex swathe of procedural requirements governing parole consideration for indeterminately sentenced felons." (Kavanaugh, supra, 61 Cal.App.5th at pp. 348-349, fn. omitted.)¹⁶

16 Ernst asserts that the regulations for the parole procedures for indeterminately sentenced felons should be applied for prisoners eligible for parole consideration under section 32. As previously explained, these regulations are based on Penal Code section 3041.5, that provides for in-person parole hearings for indeterminately sentenced felons, but they are also more restrictive - if parole is denied, the Board is required to set the next hearing anywhere from three to 15 years later, depending on the specific facts and circumstances of the case. (Pen. Code, § 3041.5, subd. (b)(3).) In contrast, CDCR's regulations for determinately sentenced, nonviolent offenders under section 32, that were applied in Ernst's case, state that eligible prisoners shall receive the opportunity for parole consideration annually, assuming they remain eligible for parole consideration. (Kavanaugh, supra, 61 Cal.App.5th at p. 351, citing Regs., tit. 15, § 2449.4, subd. (h), § 3492, subd. (b).)

Ernst argues that Gadlin rejected reliance on the NVSS process as the basis for the regulations adopted by CDCR under section 32. Gadlin held CDCR's regulations that categorically excluded prisoners from parole consideration, who were convicted of nonviolent offenses but ordered to registered as sex offenders, violated section 32. (Gadlin, supra, 10 Cal.5th at p. 920.) CDCR argued section 32 was ambiguous as to which nonviolent offenses should receive parole consideration, and it properly exercised its discretion to draft regulations subject to public safety considerations. (Gadlin, at pp. 927, 928.) Gadlin rejected CDCR's justification and held that while section 32 contained "some terms that might be ambiguous in other respects, is not ambiguous concerning its scope regarding offenders who were previously convicted of a registerable sex offense or who are currently convicted of a registerable sex offense that [CDCR] has itself defined as nonviolent. Under those regulations, these offenders have been convicted of a nonviolent felony offense and article I, section 32(a)(1) directs that they 'shall be eligible for parole consideration.'" (Gadlin, at p. 932.)

Ernst further asserts his argument finds support in Gadlin's discussion of the ballot pamphlet arguments in support of Proposition 57, "that because the then-existing nonviolent second strike offender parole process excluded inmates with a prior or current sex offense requiring registration, the voters would have understood that Proposition 57 would exclude those offenders as well. But there is no indication the voters would have understood that to be the case. As the Department acknowledges, the federal court order referenced in the ballot materials did not exclude inmates with sex offenses from parole consideration. Rather, it was the Department's implementation of the nonviolent second strike offender parole process that carved out that exception." (Gadlin, supra, 10 Cal.5th at p. 941.)

Gadlin further held, however, that "[a]n assumption that voters understood the nuances of an administrative program the ballot materials referenced only vaguely and did not actually present would stretch beyond the breaking point our axiom that voters are generally aware of existing law. [Citation.] '[A] possible inference based on the ballot argument is an insufficient basis on which to ignore the unrestricted and unambiguous language of the measure itself. It would be a strained approach to constitutional analysis if we were to give more weight to a possible inference in an extrinsic source (a ballot argument) than to a clear statement in the Constitution itself.'" (Gadlin, supra, 10 Cal.5th at pp. 941-942.)

We reject the argument that Gadlin foreclosed any possible reliance on the existing NVSS parole procedures when the voters enacted Proposition 57. Gadlin held the eligibility details in the NVSS paroles procedures could not undermine the express intent of Proposition 57 and section 32, that nonviolent felons shall receive parole consideration. As explained in Kavanaugh, however, section 32 was silent as to the meaning of that parole consideration.

We thus conclude that CDCR's regulations are not inconsistent with section 32's mandate for parole consideration of nonviolent offenders by the Board.

IV. Constitutional Issues

Next, the People assert that the superior court erroneously found CDCR's regulations for the paper review by a hearing officer violated Ernst's due process rights.

Ernst argues the superior court's due process ruling was correct, and Kavanaugh's analysis failed to address relevant authorities from the United States Supreme Court. Ernst also reasserts an issue he raised in his petition but was not addressed by the superior court - that CDCR's regulations also violated equal protection rights because indeterminately sentenced felons are entitled to in-person parole hearings before the Board.

A. Due Process

"The right to due process protects individuals from the arbitrary action of government. [Citation.] 'Due process is a flexible concept that calls for" 'such procedural protections as the particular situation demands.'"' [Citation.] Procedural due process questions require a two-step analysis: (1) is there a liberty or property interest of which the defendant has been deprived, and (2) if so, were the procedures followed by the state constitutionally sufficient? [Citations.] The second step of the inquiry requires we answer the question: what process is due?" (People v. Pillsbury (2021) 69 Cal.App.5th 776, 789.)

" 'Once it is determined that due process applies, the question remains what process is due.' [Citation.] We have identified four relevant factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official." (People v. Otto, supra, 26 Cal.4th at p. 210; Morrissey v. Brewer (1972) 408 U.S. 471, 481; People v. Allen (2008) 44 Cal.4th 843, 862-863.)

"This is the test under the California Constitution. Except for the last factor addressing the dignitary interest implicated, the test under the federal constitution is the same. (See Mathews v. Eldridge (1976) 424 U.S. 319 .…) Our high court 'adopted the Mathews balancing test as the default framework for analyzing challenges to the sufficiency of proceedings under our own due process clause,' but with the 'minor modification' of adding to it consideration of the dignitary interest factor when the rights of natural persons are at stake. [Citation.] Thus, our conclusions applying the multifactor test are the same whether analyzed under the California Constitution or the federal Constitution." (People v. Pillsbury, supra, 69 Cal.App.5th at p. 790, fn. 5.)

"In assessing a due process claim, we conduct a 'case by case determination of whether a particular incident of due process is required for parole decisions .…'" (Kavanaugh, supra, 61 Cal.App.5th at p. 352.)

B. Analysis

In this case, the superior court held the paper review conducted by a single hearing officer violated Ernst's due process rights, and that he was entitled to the same in-person parole hearings as provided to prisoners sentenced to indeterminate terms.

On appeal, the People again rely on Kavanaugh in support of its argument that CDCR's regulations for parole consideration of a determinately sentenced, nonviolent offender do not violate federal and/or state due process standards.

As with the review of the statutory regulations, we agree with the analysis in Kavanaugh that the paper review conducted by a hearing officer satisfies the due process test required in this case. While Kavanaugh primarily cited to state authorities in its due process analysis, "procedural due process under the California Constitution is 'much more inclusive' and protects a broader range of interests than under the federal Constitution [citations]." (Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1069.)

Ernst argues Kavanaugh's due process analysis is flawed because it failed to address two cases from the United States Supreme Court that purportedly mandate an in-person parole hearing before the Board to satisfy federal standards of due process: Swarthout v. Cooke (2011) 562 U.S. 216 (Swarthout) and Greenholtz v. Inmates of Nebraska Penal and Correctional Complex (1979) 442 U.S. 1 (Greenholtz). Ernst argues that Greenholtz "involved a parole procedure where inmates could appear in person and speak to the Parole Board," and Swarthout "stated that 'the minimum procedures adequate for due process protection' are 'those set forth in Greenholtz," so that the "live hearing provided in Greenholtz is the minimum procedural protection necessary to comply with due process in the parole context."

These cases do not support Ernst's arguments. In Swarthout, supra, 562 U.S. 216, the court recognized that when a state creates a liberty interest in receiving parole when state standards are met, as California has done, "the Due Process Clause requires fair procedures for its vindication," and the due process procedures required for parole determinations "are minimal," and include only "an opportunity to be heard" and "a statement of the reasons why parole was denied," as previously explained in Greenholtz. (Swarthout, supra, 562 U.S. at pp. 220-221; In re Stevenson (2013) 213 Cal.App.4th 841, 866-867, fn. 8.)

In Greenholtz, supra, 442 U.S. 1, the court held that a prisoner in Nebraska, who was subject to a parole statute similar to California's provisions for indeterminately sentenced prisoners, received adequate process when he was allowed an opportunity to be heard and provided a statement of reasons why parole was denied, because "[t]he Constitution does not require more." (Id. at p. 16.) The Nebraska statute permitted the prisoner "to appear before the Board and present letters and statements on his own behalf. He is thereby provided with an effective opportunity first, to insure that the records before the Board are in fact the records relating to his case; and second, to present any special considerations demonstrating why he is an appropriate candidate for parole. Since the decision is one that must be made largely on the basis of the inmate's files, this procedure adequately safeguards against serious risks of error and thus satisfies due process." (Id. at p. 15, fn. omitted.) Greenholtz cautioned that "[m]erely because a statutory expectation [of parole] exists cannot mean that in addition to the full panoply of due process required to convict and confine there must also be repeated, adversary hearings in order to continue the confinement." (Id. at p. 14.) "[T]he function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error." (Id. at p. 13.)

Neither Swarthout nor Greenholtz categorically held that due process required an in-person, contested hearing for the prisoner to make an oral presentation before multiple members of the Board. Instead, the cases held that due process required an opportunity to be heard and a statement of reasons for the denial of parole. Both of these procedures are provided in CDCR's regulations for parole consideration of determinately sentenced, nonviolent offenders.

Ernst also complains that Kavanaugh's due process analysis failed to address the holding in Wolff v. McDonnell (1974) 418 U.S. 539 (Wolff). However, Wolff is inapposite because it did not discuss due process standards for parole hearings, but instead addressed prisoner disciplinary proceedings that could result in increasing the length of the prisoner's term by eliminating conduct credits and possibly imposing a period of solitary confinement. (Id. at pp. 546-548.) In such circumstances, Wolff held the prisoner had a due process right to advance written notice of the claimed violation, a written record of the proceedings, including a statement by the factfinders as to the evidence relied on and the reasons for the disciplinary action taken, and the right "to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." (Id. at pp. 563-566.)

In reaching this holding, Wolff recognized "the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. [Citations.] Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. [Citation.] In sum, there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application." (Wolff, supra, 418 U.S. at p. 556.)

Greenholtz expressly held that "[p]rocedures designed to elicit specific facts," such as those addressed in Wolff, "are not necessarily appropriate" to a parole determination. (Greenholtz, supra, 442 U.S. at p. 14.)

C. Equal Protection

In his petition, Ernst argued that his equal protection rights were violated by two different parole proceedings for nonviolent felons sentenced to determinate and indeterminate sentences. The superior court did not address equal protection since it granted relief based on due process.

Ernst has renewed his equal protection arguments in response to the People's appeal in this case. Ernst argues prisoners sentenced to determinate and indeterminate terms are similarly situated for purposes of equal protection, indeterminately sentenced prisoners are entitled to in-person parole hearings, and the failure of CDCR's regulations to provide determinately sentenced prisoners with an in-person hearing under section 32 violated his equal protection rights.

Both the Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution guarantee to all persons the equal protection of the laws. The right to equal protection of the laws is violated when "the government … treat[s] a [similarly situated] group of people unequally without some justification." (People v. Chatman (2018) 4 Cal.5th 277, 288 (Chatman); Manduley v. Superior Court (2002) 27 Cal.4th 537, 568.) "The California equal protection clause offers substantially similar protection to the federal equal protection clause." (People v. Laird (2018) 27 Cal.App.5th 458, 469.)

"The concept of equal treatment under the laws means that persons similarly situated regarding the legitimate purpose of the law should receive like treatment. [Citation.]' "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." [Citations.] 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." '" (People v. Morales (2016) 63 Cal.4th 399, 408.)

"At core, the requirement of equal protection ensures that the government does not treat a group of people unequally without some justification. [Citation.] The extent of justification required to survive equal protection scrutiny in a specific context depends on the nature or effect of the classification at issue. Unequal treatment based on a suspect classification such as race is subject to' "the most exacting scrutiny."' [Citation.] So is treatment affecting a fundamental right." (Chatman, supra, 4 Cal.5th at p. 288.)

"[W]here the law challenged neither draws a suspect classification nor burdens fundamental rights, the question we ask is different. We find a denial of equal protection only if there is no rational relationship between a disparity in treatment and some legitimate government purpose. [Citation.] This core feature of equal protection sets a high bar before a law is deemed to lack even the minimal rationality necessary for it to survive constitutional scrutiny." (Chatman, supra, 4 Cal.5th at pp. 288-289.)

"A classification in a statute is presumed rational until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable. [Citations.] The underlying rationale for a statutory classification need not have been' "ever actually articulated"' by lawmakers, and it does not need to' "be empirically substantiated."' [Citation.] Nor does the logic behind a potential justification need to be persuasive or sensible - rather than simply rational." (Chatman, supra, 4 Cal.5th at p. 289.) "Coupled with a rebuttable presumption that legislation is constitutional, this high bar helps ensure that democratically enacted laws are not invalidated merely based on a court's cursory conclusion that a statute's tradeoffs seem unwise or unfair." (Id. at p. 289.)

D. Analysis

Contrary to Ernst's arguments, prisoners sentenced to determinate terms are not similarly situated to those sentenced to indeterminate terms. (People v. Valencia (2017) 3 Cal.5th 347, 376; People v. Cooper (1996) 43 Cal.App.4th 815, 828; see also People v. Applin (1995) 40 Cal.App.4th 404, 407-412.) In addition, second strike offenders sentenced to determinate terms are not similarly situated to third strike offenders sentenced to indeterminate terms, because of the state's legitimate interest in dealing with recidivist offenders. (See, e.g., Ewing v. California (2003) 538 U.S. 11, 28-30; U.S. v. Stokes (9th Cir. 2002) 292 F.3d 964, 969; McQueary v. Blodgett (9th Cir. 1991) 924 F.2d 829, 834-835; Rummel v. Estelle (1980) 445 U.S. 263, 284-285.)

Ernst cites Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 (Cooley) in support of his equal protection argument. Cooley, however, addressed the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.), that allows for the involuntary commitment of certain convicted sex offenders, whose diagnosed mental disorders make them likely to reoffend if released at the end of their prison terms, and the provision of the SVPA that requires the superior court to hold a "probable cause hearing" as the initial step in the judicial process required to civilly commit a potential sexually violent predator. (Cooley, at p. 237.) Cooley reviewed the general principles of equal protection, as set forth above, and rejected an equal protection challenge to the burden of proof in such hearings, in comparison to hearings held pursuant to the Lanterman-Petris-Short (LPS) Act. Cooley did not address whether prisoners sentenced to determinate and indeterminate terms are similarly situated. (Cooley, at pp. 252-253.)

"[P]arole consideration is not a fundamental right requiring a higher level of scrutiny. Nor does the statute burden any 'suspect' or 'quasi-suspect' class. Therefore, application of the strict scrutiny test or the intermediate scrutiny test is not required." (Mayner v. Callahan (9th Cir. 1989) 873 F.2d 1300, 1302; Glauner v. Miller (9th Cir. 1999) 184 F.3d 1053, 1054.) The question is thus whether there is a rational relationship between a disparity in treatment and some legitimate government purpose, the "core feature of equal protection [that] sets a high bar before a law is deemed to lack even the minimal rationality necessary for it to survive constitutional scrutiny." (Chatman, supra, 4 Cal.5th at p. 289.)

As explained above, the parole regulations that existed prior to the enactment of Proposition 57, that provided for in-person hearings before more than one member of the Board, were based on Penal Code provisions for indeterminately sentenced prisoners. CDCR's initial regulations adopted under section 32 completely excluded parole consideration procedures for nonviolent offenders sentenced to indeterminate terms. After Edwards held such an exclusion violated section 32, CDCR adopted regulations that were expressly limited to indeterminately sentenced, nonviolent offenders, and were similar to those that already existed for indeterminately sentenced felons prior to the enactment of Proposition 57, providing for in-person hearings before the Board.

While indeterminately sentenced prisoners may be afforded additional procedures for parole consideration, those procedures are consistent with the fact that such prisoners, unlike those sentenced to determinate terms, have no established right to parole in the first place unless found eligible by the Board.

Ernst's equal protection argument fails both on the question of being similarly situated and the existence of a rational basis for the regulations.

DISPOSITION

The superior court's order of May 13, 2020, granting Ernst's petition, is reversed.

WE CONCUR: FRANSON, J., DE SANTOS, J.