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CA: Appellate Court Upholds Challenge to Prop. 57 Regulations

An appellate court in California today upheld ACSOL’s challenge to regulations issued by the CA Department of Corrections and Rehabilitation (CDCR) that prohibit anyone convicted of a sex offense from receiving early parole consideration. This type of consideration was granted by Prop. 57 to all persons convicted of a non-violent offense.

In its decision, the Third Appellate District Court noted that CDCR has made “repeated attempts to exclude categories of inmates undisputedly classified as ‘nonviolent’ from early parole consideration.” The court rejected CDCR’s argument that the exclusions were necessary due to “public safety.” In fact, the decision specifically states that the appellate court rejects “the Department’s claim that the goal of public safety entitles it to contradict the unambiguous language of the Amendment (Prop. 57).”

“This decision is a significant victory for every person in custody who has been convicted of a sex offense,” stated ACSOL Executive Director Janice Bellucci. “CDCR can longer refuse to grant those individuals early consideration for parole.”

Today’s unanimous decision by three appellate court justices affirmed the decision of a single judge in Sacramento Superior Court made in March 2018. In that Superior Court case, Judge Sumner ruled that CDCR’s regulations were inconsistent with the language of Prop. 57 as well as the intent of the voters who approved that proposition. In addition, the judge determined that CDCR’s regulations “must be set aside.”

Consistent with the lower court’s decision, the appellate court determined that the plain language of Prop. 57 is unequivocal and does allow CDCR to “promulgate regulations directly contradicting the text of the proposition.” The appellate court dismissed CDCR’s argument that those convicted of a sex offense pose a current danger to society “based on their likelihood of recidivism.” Although the appellate court did not address the issue of recidivism, it ruled instead that public safety is a “policy consideration” that does not trump the plain language of Prop. 57.

Today’s decision could be reviewed by the CA Supreme Court, if it agrees to grant review, and CDCR has stated it will seek review by that court. A similar Prop. 57 case, involving a registrant who was previously convicted of a sex offense but is currently in custody for a different type of offense, is currently pending before that court. The name of that case is Gadlin and its case number is S254599.

The basic difference between Gadlin and the case decided today is that the case decided today includes all inmates convicted of a sex offense regardless of whether that offense is the reason there are currently in custody.

Decision – Appeal – Feb 2020

Order – Final – March 2018


California appeals court says nonviolent sex offenders eligible for early parole  (SF Chronicle)

Join the discussion

  1. SR

    I don’t understand the “public safety” argument? The person is going to get out eventually anyway, and keeping them behind bars for an extra few months isn’t going to rehab them any better. It’s not like the sentence time is based off of how much time it takes to rehab the person.

    • Lynne

      The laws are written in effect to never let a registrant forget what he/she did. At some point we as a society have to weed out people who are not a menace to society. Not all people on the registry are. They are human beings who made a mistake at what point should they be forgiven after they have done their time?

    • Maestro

      I’m sick of everyone thinking that a criminal act which involved sex equals “violent crime”. A consensual sexual relationship with someone who may fall under a state’s age of consent statute having a rendezvous with an older person is NOT “violent”. Teenagers exchanging nude photos of each other (sexting) is NOT violent. But once you get labeled “sex offender”, the whole world fears you. But someone who committed armed robbery can get early release and early chance at parole. Unbelievable.

      • Notorious D.I.K.ennerly

        Many states and the federal government have redefined the word “violent” to include any sexually-motivated actions taken with a kid under an arbitrary age; in California, it’s fourteen.
        The simple meaning of words is thus distorted to serve the criminalizing and penalizing agenda of the state.

        Coalinga State Hospital is filled with men accused of “violence” who have never committed an act of actual violence.

      • Dph

        Murder too in some cases Maestro.
        Happy early V-Day for some incarcerated,
        hope they get the news inside and will be
        given those good time credits and considered for early release for the non problem inmates
        and following the rules that they do more than gang members and lifers. CDC-R Seems to forget nicely.
        Thanks CAL App Courts!
        Thanks to our fearless Leader and also Oberstien esq.
        Hope this will strengthen fight for Tiered Reg. that occurred further last Tues!

  2. Elliot

    What is the case name?

    • Janice Bellucci

      The name of the case is Alliance for Constitutional Sex Offense Laws et al. v. Department of Corrections an Rehabilitation et al. The case number is C087284. We will add a copy of the decision to the website shortly

      • pgm111

        Nice work Janice, et al.

      • Matt

        Well done ACSOL!!!!!! It is so nice to know that there are decent people fighting for all of us. I don’t always agree with your tactics. Perhaps that’s because I’m not up to speed on what actually works. I don’t know. But I do know that I’m thankful for you all. I believe that using the courts to beat back the law makers (Professional liars) is the only way to go. This seems like an example that proves my point. Either way, this is great news. Thank you for all you do, from the bottom of my heart.

    • NotReal

      This is a cite within the case order, and it is why section 647.6 (old 647a) “annoying and molesting” is unconstitutional. When the statute was passed, annoy meant to bother, and the synonym “molest” meant the same thing. Subsequently, “molest” took on the meaning it has today, and that historical evolution is recounted in “Moral Panic: Changing Concepts of the Child Molester in Modern America” by Philip Jenkins.

      So this cite below is good law and the word “molest” should be stricken from the statute, because it is surplusage and has a different meaning today, especially since molest implies physical contact when none is needed for a conviction under the statute.

      (See People v. Woodhead (1987) 43 Cal.3d 1002, 1010 [“It is a settled axiom of statutory construction that significance should be attributed to every word and phrase of a statute, and a construction making some words surplusage should be avoided”].)

      This seemed like a relevant time to cite this given that the case law is right there.

  3. New Person

    Congrats! Huge victory for ACSOL! Thank you Janice, et al!

    Quoting this article:
    The court rejected CDCR’s argument that the exclusions were necessary due to “public safety.”

    I am at a loss here. Prop 57 is akin to 1203.4. 1203.4 identifies crimes that are low level to where it does not affect the convicted harshly by removing them from the community if they can successfully complete probation, which shows rehabilitation.

    1203.4 criteria: There are crimes that do not qualify for 1203.4. Similarly, there are sex crimes that do not qualify for 1203.4

    1203.4 immunity:
    … 1) court shall set aside the case
    … 2) court shall dismiss the information/accusation against the defendant
    … 3) shall be removed from all penalties and disabilities resulting from the conviction

    Since the registry is punishment, immunity 3 cannot be used. But immunity 2 is re-obtaining privacy, which is protected by California Constitution, and succinctly identifies “information/accusation against the defendant” is what will be dismissed.

    Thus the “public safety” argument must also fail here with 1203.4 b/c how do you exclude those who qualify for 1203.4 to not partake in the benefits/immunities. PC 290.5 and PC 290.007 were simply ran through without contest. PC 290.007 just simply disregards earning the immunities under 1203.4.

    California Constitution, Art. 1, Sec. 1: All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

    Before 2007, 1203.4 removed one from the registry because in-person reporting was considered punishment, but also only the PD had your information and wasn’t shared. The registry takes away privacy in its present implementation as it shares it with everybody, including the federal level with the IML and passports. 1203.4 is a legal pathway (pursue) to regain (obtain) privacy. PC 290.5 and PC 290.007 moved the goal post from probationary period (3-5 years) to a minimum of 10 year wait for Certificate of Rehabilitation, CoR. Thus, proving your rehabilitativeness twice under the court of law, once with 1203.4 and a second time a petitioning for the CoR.

    Only those with sex crimes must have the 1203.4 before applying the CoR. It is written on the CoR application as evidence of inequality amongst convicts where the presumed “public safety” was the reason for the inequity.

    With this win, is it possible to review bad law, or unconstitutional law, being passed by the California legislation by removing the pathway to regain privacy again via 1203.4, supported by the California Constitution?

    • TP @ New Person

      Where does it state as the result of a criminal conviction you are therefore deprived your right to privacy?

      I’ve never seen that anywhere, so the lack of privacy doesnt hinge on 1203.4 in any way. You are entitled to it in the state of California regardless as stated in the state constitution.

      • New Person

        When the registry was attached to the crime.

        If you’re a registrant in California, then you’re automatically ineligible for HUD help. If you’re a registrant , then you’re automatically declined from entering any US military base on domestic soil. If you’re a registrant, then a college can deny you a student worker job because you’re on the registry.

        1203.4 specifically states “the court shall dismiss the information or accusation against the defendant.” That, in itself is restoring one’s privacy. The registry states that you are currently holding that accusation and information, which is contrary to earning the 1203.4 where your case and accusation/information are dismissed.

        If no privacy was taken away, then why can some get off the registry via the CoR after the 2007 update to the California registry? If no privacy was taken away, then why even create a tiered registry so people can get off the registry?

        As for privacy rights, it isn’t identified in the US Constitution. Privacy is a right under the CA Constitution.

        Losing your privacy as we see it today was created in 2007’s PC 290 update because your privacy wasn’t shared with anyone but the PD before the 2007 update. There wasn’t ACSOL to contest it like it is doing for it now for Prop 57.

        People got off the registry if they earned the 1203.4 b/c in-person reporting was quasi-criminal. But the 2003 Smith v Doe SCOTUS decision stated the registry was statutory and that gave states a blank check. In California, the new registry law occurred in 2007 with PC 290.5 and PC 290.007. Because in-person reporting was considered statutory, then it negated the pathway off the registry. Yet there is a problem because “courts shall dismiss the information/accusation against the defendant” isn’t part of the release from penalties or disabilities, it’s a separate immunity. This is a privacy immunity to which the 2007 PC 290 update allows its information to be shared to many institutions, including international ones for passports.

        1203.4 = states you are no longer a threat to public safety
        PC 290.5 and 290.007 = states you are a current threat to public safety

        These two cannot co-exist. 1203.4 has been around far longer than the PC 290.5 and PC 290.007 updates. Nowhere within 1203.4 does it state it doesn’t absolve you from the registry b/c the intent of the law was to give leniency for low level crimes.

        Now, here’s the kicker, there are some sex crimes that are not eligible for 1203.4, which implies a higher threat to public safety. The logic is lost when 1203.4 already excludes some sex crimes as 1203.4 also exclude other crimes from other categories, but registrants cannot benefit from all that 1203.4 states the “court shall” give? This is akin to the Prop 57 arguments.

        The registry is about information, private information. One updates this private information at least once a year. That private information is being disseminated to many institutions. So, yes, your privacy is being infringed upon and being disseminated.

        Yet, 1203.4 specifically identifies that your information/accusation against you is dismissed. How can your dismissed information be utilized by the registry that identifies you as someone who currently is still a convicted person? I’d say that’s libel on behalf of the state of California.

        Although PC 290.007 negates 1203.4 benefits because of one word, “regardless”, the California Constitution, Art 1, section 9 identifies the following: “A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.”

        PC 290.007 impairs the obligation of 1203.4 contract; thus PC 290.007 may not be passed. It’s because no one cared about the civil rights of registrants back then to fight bad, impairing law. This is why I stated if Prop 57 can be upheld, then why can’t 1203.4 be upheld similarly? Remember, the registry is only about private information being disseminated.

        • michael w

          @New Person
          I am a little leery in correcting you on your statement,
          “If you’re a registrant , then you’re automatically declined from entering any US military base on domestic soil.”
          but I can tell you that it is not exactly true. The policy is that the base commander has the final decision on a case by case basis and those that do live on base that must register have to do it with both the county where your address is in and the military police and the MP don’t have a public list. If someone wants to see if a person is on the list on base they need to be making a complaint along with that request.
          My case is 20yrs old and so far regularly go on base mainly for medical treatment and the base pharmacy.
          If you have a legitimate reason to go on a military base and have been denied you need to appeal to the commander with your reason.

  4. G4Change

    Once again, thank you, Janice and all at ACSOL for helping to establish and preserve the rights of registered citizens. May God continue to bless and empower you in this mission!

  5. Jeff

    Simply put the CDCR is CORUPT and a EVIL Entity and it should be abolished and done away with and replaced by a neutral 3rd party. Im sure the CDCR and its EMPLOYEE THUGS have committed a LOT of CRIMES they have never been prosecuted for !!!!

  6. Chuck

    I think that this post has a typo in the fifth paragraph where it incorrectly says:
    ‘does allow CDCR to “promulgate regulations directly contradicting the text of the proposition.” ‘
    But it should say:
    ‘does not allow CDCR to “promulgate regulations directly contradicting the text of the proposition.” ‘

  7. w

    Had I not already lost everything due to a family member’s conviction and losing my job I’d have sold it all to help you guys out. If I had it to give it would’ve been given and more.

    Since finding this site and others I recognize how other people have gone through the same. The tide is continuously against you all but the effort is not in vain.

    • dph

      Thank you W. Hope you won’t suffer anymore
      you are the Family member not the convictee.

    • John Coffey

      Thanks W. I too suffer from a convictee Fam Mbr
      and dragged down for it but understand the probs here
      and will help what I can do.

  8. Neil

    Congratulations, Janice and team! There are a lot of challenges to Prop. 57 in the courts, but ACSOL’s is the only case brought on behalf of all registrants, including those presently incarcerated for a sex offense. And with this decision, ACSOL helped make new law!

  9. Famnola

    Congratulations, this is a great victory for all including the incarcerated. I have a family member currently in CDCR. When will this take effect for inmates currently in custody? Great job I will continue to give my support.

  10. HidingInPlainSight

    Great job! I was lucky enough to receive the Educational Milestone when Prop 57 first came into effect before it was challenged for sex offenders. I think everyone in the prison system should have the opportunity to gain good time credits.

  11. Love My Inmate

    Congratulations Janice. One question. Does this decision mean an inmate that is already being held past his time under prop 57 for a non violent crime and committed an offence (exposure) as a juvenile (13) that is non register required use this victory for request for imitate release form CDCR?

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