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California

CA: Sacramento Judge Rules Some of CDCR’s Prop. 57 Regulations Are Void

CA Proposition 57 tentative Ruling – 8 Feb 2018 (PDF)

[ACSOL]

A Superior Court Judge in Sacramento has ruled that provisions in emergency regulations issued by the California Department of Corrections and Rehabilitation (CDCR) regarding registrants are void and therefore cannot be enforced. The regulation provisions at issue deny anyone convicted of a sex offense eligibility for parole consideration under Proposition 57.

The judge’s preliminary decision was issued in a tentative ruling dated February 8, 2018, and was the subject of a hearing conducted in Sacramento Superior Court this morning.

During today’s hearing, CDCR’s legal representative argued that Prop. 57 gives the agency discretion to determine who is and who is not eligible for parole consideration. She also argued that CDCR’s discretion extends to individuals who are currently incarcerated for a non-sex offense, but who were previously incarcerated for a sex offense. The tentative ruling does not support CDCR’s position, but does allow the agency to revise its regulations in order to be consistent with the language of Prop. 57.

“We will closely review any Prop. 57 regulations issued by CDCR in the future,” stated ACSOL Executive Director Janice Bellucci. “If we believe the new regulations are inconsistent with Prop. 57, we will file a new lawsuit.”

The focus of the pending lawsuit is how the term “non-violent felony” is to be defined. Although Prop. 57 does not include a definition of “non-violent felony”, petitioners argued that current state law which defines “violent felony” should be used in CDCR’s regulations. If CDCR used that law (Penal Code Section 667.5), only 9 out of more than 100 sex offenses would be excluded from early parole consideration. The judge did not agree with this argument because he said there is insufficient evidence to identify the voters’ intent regarding use of that current law.

At the conclusion of today’s hearing, the judge stated that he will finalize his tentative ruling soon. After the final ruling is issued, the next step in the process is to draft a writ for the judge’s consideration. The draft writ could be challenged by CDCR in the future.

Related:

Added 2/13

https://www.nbclosangeles.com/news/california/San-Jose-Police-Chief-In-Shock-473849443.html

——-

[SanFrancisco.CBSlocal.com] Judge: California Must Eye Earlier Parole For Sex Offenders

[LATimes.com] California must consider earlier parole for sex offenders, judge rules

 

 

 

Join the discussion

  1. AlexO

    Awesome! I’m glad to hear another judge is seeing the blatant hate for everything us. There was no logic in excluding sex offenses if they otherwise meet the criteria.

    One of the guys in our rehab started the program voluntarily while going through the court process. In fact, he turned himself in on his own without any prior investigation against him (how many of us can say we even remotely considered doing that?). For a while it looked like an agreement was reached for him to get probation but at the last minute the judge pulled out the rug from under him and gave him 3 years in prison (and by doing so, he totally screwed his family as he was fully supporting his fiance and 3 kids. There was literally no reason to change the sentence so drastically other than a political move). Him not being eligible for early release under Prop 57 is a terrible injustice. Hopefully this’ll continue in the positive direction and he can get out earlier.

    • CR

      You can not conclude that “… another judge is seeing the blatant hate for everything us” based on the scant information in this post.

      The reason why the judge “… ruled that provisions in emergency regulations issued by the California Department of Corrections and Rehabilitation (CDCR) regarding registrants are void and therefore cannot be enforced” is not provided.

      We do know that the judge did not agree with the argument of petitioners “… that current state law which defines “violent felony” should be used in CDCR’s regulations.”

      That’s all we know from this post. We are in the dark as to why the judge voided the emergency regulations.

      • Janice Bellucci

        @CR – Please read Tentative Ruling to answer your questions. There is link to the ruling above the article.

        • CR

          Thank you, Janice. I apologize to you and to AlexO for my hasty comments. Somehow I managed to overlook that link when I first read this article.

          It turns out that this is a solid win for ACSOL, and all registrants who are currently or who may in the future be affected by the rules implementing Prop 57.

  2. Jack

    Con. sti. tu. tion.

  3. C

    John and Ken are whining about this on KFI right now.

  4. MatthewLL

    Unfortunately the judge left it to the department to go back and define what is a violent felony, giving discretion to the department. It will certainly be better after this, but I fear still too many will be exempted from early release by what the department does. The process is still far from over.

  5. David Kennerly, Bull-Splatter Analyst

    Considering how California defines “sexual violence,” I’m not expecting those with simple AOC violations to be given any relief.

  6. mike r

    Remember Janice attempted CA P.C. 288(a) is a non-violent offense. People need to be clear on that because CDCR tried to give me 85% time instead of 1/2 time. They stated that attempted 288(a) was a violent offense. It is not and I won on appeal and thru the 602 process which both concluded it is not a violent offense according to CA law. Got my half time which knocked almost two years of of my sentence. I think there are many people sitting in prison past their actual time (85% instead of 1/2 time) because they are not challenging CDCR.

  7. Lake County

    So now there is a petition in CA to add to the definition of “violent offender”. It would specifically classify any offense resulting in lifetime sex offender registration pursuant to Sections 290 as a violent offense.

    https://keepcalsafe.org/assets/keep-ca-safe_petition_d-revised.pdf

    If they get the signatures to get this on the ballot, I’m sure it will be approved by the voters.

    So Janice’s great efforts could be for nothing. One step forward, two steps back.

    • Janice Bellucci

      @Lake County – There have been many attempts in recent years to add more sex offenses to the list of violent offenses. So far, all but one have failed. The one that succeeded was the result of the Brock Turner trial.

      • Lake County

        Depending on how this is promoted, I don’t trust the voters will reject this if it’s on the ballot. All the supporters need to do is promote the tough on sex offenders part of it and the voters might not bother to read the full law with all the other people this will effect. Sadly, I believe the majority of voters don’t bother to read any of the Propositions until the ballot is in front of them.

    • Tim Moore

      Let’s see, all it takes is another high profile sex crime .

  8. Not Really

    Down with Big Brother and his underground regulations!

  9. Denise Paul-Elliott

    My brother was convicted of a non-violent offence that requires registration per PC 290 and he was sentenced to 5 years. He was told at classification that his offense was violent. After he proved to classification that his offense was indeed not listed in PC 667.5, the classification went on to tell him that PC 290 was worse than violent and that he would never be classified as minimum custody. he is currently a day for day 50% offender who other than his 290 requirement would easily qualify for minimum custody 2 for 1 credits. Does the judges ruling now qualify him to be treated the same as all other non-violent offenders in that they can receive 2 for 1 credits? It appears to me that this ruling would make him similarly situated as other non violent offenders.

    • AlexO

      I don’t think so right now. The ruling was that what they’re currently doing isn’t right but the judge gave no specifics as to what should be “violent”. He directed CDCR to revise their definition and come back with something else. So right now 290’s are in limbo.

  10. Lisa R

    “If CDCR used that law (Penal Code Section 667.5), only 9 out of more than 100 sex offenses would be excluded from early parole consideration. The judge did not agree with this argument because he said there is insufficient evidence to identify the voters’ intent regarding use of that current law.”

    The CDCR contradicts itself on using 667.5 for parole eligibility. Section 2449.5. Factors to Consider During a Review on the Merits, they themselves specifically refer to physical violence, NOT psychological “violence”

    288 (a) Lewd and Lascivious does not come with physical violence. Legislature deemed it “psychological harm” which in that case, all victims could claim psychological harm. 667.5 is a sentencing factor, right? People V Hetherington That concern leads to the second indicator of legislative intent. Section 667.5, subdivision (c) states: “The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’s [154 Cal. App. 3d 1140] condemnation for such extraordinary crimes of violence against the person.” (Italics added.) We consider it significant that the statute refers simply to “violence” rather than to “physical violence,” “physical injury” or “bodily harm.” The statute’s unadorned language indicates the Legislature intended to impose increased punishment via section 667.5, subdivision (c) not only for certain felonies which are “violent” in a physical sense but also for other selected felonies which cause extraordinary psychological or emotional harm. (Cf. People v. Caudillo (1978) 21 Cal. 3d 562, 582 [146 Cal. Rptr. 859, 580 P.2d 274] [reference to “physical injury” in § 12022.7 does not include psychological or emotional distress].) By adding subdivision (c) to section 288 in 1981 (see fn. 5, ante), the Legislature recognized both subdivisions (a) and (b) violations often cause irreparable psychological and emotional damage to child victims. Therefore, “to display society’s condemnation for such extraordinary crimes of violence against the person,” the Legislature included both subdivisions (a) and (b) within section 667.5, subdivision (c)(6). The Legislature acted within its discretion, based on its proper concern for the welfare of children, to include subdivision (a) offenses (but not to include other physically “nonviolent” sex offenses) within the scope of section 667.5, subdivision (c).”
    (a) When conducting a review on the merits under section 2449.4, the hearing officer shall weigh the
    factors in subsections (b) through (h) and, based on the totality of the circumstances, determine if the
    inmate poses a current, unreasonable risk of violence or a current, unreasonable risk of significant
    criminal activity. The inmate shall be approved for release if factors aggravating the inmate’s risk do not
    exist or if they are outweighed by factors mitigating the inmate’s risk. When weighing the factors
    aggravating and mitigating the inmate’s risk, the hearing officer shall take into account the relevance of
    the information based on the passage of time, the inmate’s age, and the inmate’s physical and cognitive
    limitations.

    Highlight “PHYSICAL” not mental injury.
    Mitigating: (2) No victims suffered physical injury or threat of physical injury.

  11. Patsy

    Is download of Child Porn, one count…FEDERAL OFFENSE….considered violent. How would that crime fit in this question. Also, My son’s PO, a Federal PO, and his group, all Federal felons with Fed employers leading the group,a Federal Counselor….say…that offense is not a cat 3 in the tiers….so no matter what Janice has sent me…they say the Federal supervised release and rules are different. My argument is that the 3 tier applies to ALL CA REGs no matter Fed Felon or State Felon. PO says REG requirements will be up to Fed. PLEASE does anyone know a real answer to all this.

    • Jack

      Patsy, there is no chance, that your felony would be considered violent. And if for some asinine reason the CDCR decides that it is, Janice will sue.

  12. kind of living

    What if there was no assault ?, and no intent ?, just a prosecutor , what if the victim made no mension of an assault in prelim , just the prosecutor asking the so called victim what she thought was going to happen , what she Thinks ? could have been guilty of what was ment to be trespassing , because of a sign that said for rent , and everything else was a surprise , prosecutors use intent and assault how ever they want , if no sex crime happened and there was no reason to think there would be a sex crime other than a person was there , so what gives , and another thing many of the people that can make prole early are thugs when they are doing time and I bet there be no mention of their crimes on the inside , just that they went to school , or raked the dirt on the yard , still involved in crime while locked down dose not show they are turning over a new leaf , but CO’s got their back

  13. wb

    my question is I was pled no contest to a 288[a] lewd n lascivious in 1989 is that a violent crime per legislators etc I was 18 victim 13 any one out there kno the answer ??

  14. wb

    is a 288a a violent crime lewd n luscious ?

    • David Kennerly, A Risk To Whom?

      “lewd n luscious?” That’s pretty good 🙂 It may have been inadvertent but it’s pretty funny.

    • NPS

      Lewd and lascivious is 288(a) (big difference from a 288a charge). According to the CDCR, 288(a) is classified as a violent felony.

      • Skip

        “Lewd and lascivious is 288(a) (big difference from a 288a charge).”

        Is the above the same as saying “Bright red fire trucks were only built in 1959 (big difference from a 1959 bright red fire truck)

        Umm, explain as it looks like a moot sentence.

  15. Another CA Prop 57 article

    California’s Prop 57 Sex Offender Release Regs Are Void, Court Rules

    https://www.forensicmag.com/news/2018/02/californias-prop-57-sex-offender-release-regs-are-void-court-rules

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