In re Bertram

Filed 6/17/19 In re Bertram CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re TIMOTHY BERTRAM,
on Habeas Corpus.
B293475
(Los Angeles County
Super. Ct. No. BH011750)
ORIGINAL PROCEEDINGS; petition for writ of habeas
corpus. William C. Ryan, Judge. Petition granted.
Michael Satris, under appointment by the Court of Appeal,
for Petitioner.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Phillip J. Lindsay, Senior Assistant
Attorney General, Amanda J. Murray, Supervising Deputy
Attorney General, Charles Chung, Deputy Attorney General, for
Respondent.

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In In re Gadlin (2019) 31 Cal.App.5th 784, review granted
May 15, 2019, S254599 (Gadlin), we held Department of
Corrections and Rehabilitation (CDCR) regulations are invalid
insofar as they bar early parole consideration for an inmate who
is subject to registration under Penal Code section 290 (Section
290) for a prior crime for which the inmate has already fully
served his or her sentence (as opposed to inmates who are now
incarcerated as a result of a conviction for a crime specified in
Section 290). (Id. at pp. 789-790.) As we shall briefly explain, we
adhere to our decision in Gadlin pending final word from our
Supreme Court, and under our decision in Gadlin, petitioner
Timothy Bertram (Bertram)—who is in all material respects
similarly situated to Gregory Gadlin—is entitled to early parole
consideration.
In 1998, Bertram pled guilty to annoying or molesting a
child (former Pen. Code, § 647a), which is a registrable offense
under Section 290, subdivision (c). In 2016, well after being
released from custody on his former Penal Code section 647a
conviction, Bertram pled guilty to multiple counts of burglary (in
four separate cases) and received a 12-year prison sentence (plus
other sentences ordered to run concurrently).
While serving his burglary sentence, Bertram filed a
habeas corpus petition challenging the validity of CDCR
regulations that bar him from seeking early parole consideration
under provisions added to our state constitution by Proposition
57, the Public Safety and Rehabilitation Act of 2016. (Cal. Const.
art. I, § 32, subd. (a)(1); see also Cal. Code Regs., tit. 15,
§ 3491, subd. (b)(3) [“[A]n inmate is not eligible for parole
consideration by the Board of Parole Hearings . . . if . . . [¶] . . . [¶]
[t]he inmate is convicted of a sexual offense that currently

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requires or will require registration as a sex offender under the
Sex Offender Registration Act, codified in sections 290 through
290.024 of the Penal Code”].) We issued an order to show cause
why relief requested in the petition should not be granted, and
CDCR filed a return opposing habeas corpus relief.
The legal issue presented in this case is identical in all
material respects to the issue presented in Gadlin. Bertram is
entitled to a writ of habeas corpus because, for the same reasons
stated in Gadlin, the regulatory provision that makes him
ineligible for early parole consideration—California Code of
Regulations, title 15, section 3491, subdivision (b)(3)—is
inconsistent with article I, section 32, subdivision (a)(1) of the
California Constitution and therefore void. (Henning v. Division
of Occupational Saf. & Health (1990) 219 Cal.App.3d 747, 757-
758.)
Our disposition of this proceeding is accordingly as follows:
The petition for habeas corpus is granted. The California
Department of Corrections and Rehabilitation is directed to
evaluate Bertram for early parole consideration within 60 days of
the issuance of our remittitur.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J. MOOR, J.

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