In re O'Keefe

Filed 5/22/20 In re O’Keefe CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re TIMOTHY O'KEEFE on Habeas
Corpus.
D075462
(Super. Ct. Nos. HC16835,
SCD157233)
APPEAL from an order of the Superior Court of San Diego County granting
petition for writ of habeas corpus. Howard H. Shore, Judge. Affirmed as modified.
Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General,
Amanda J. Murray, Linnea D. Piazza and Charles Chung, Deputy Attorneys General, for
Appellant.
Angela Bartosik, Chief Public Defender, Robert L. Ford and Euketa Oliver, Public
Defenders, for Respondent.
INTRODUCTION
In 2016, voters approved Proposition 57, an initiative designed to reduce prison
overcrowding by extending early parole consideration to state offenders convicted of

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nonviolent felony offenses. (Cal. Const., art. I, § 32.) Petitioner Timothy O'Keefe, a
third-strike offender serving an indeterminate sentence, with several prior convictions
that required registration as a sex offender, contends the regulations adopted by the
California Department of Corrections and Rehabilitation (CDCR) invalidly exclude him
from consideration for parole under Proposition 57. We agree and affirm the court's
order granting him relief. We will modify the order to invalidate only California Code of
Regulations, title 15, section 3491, subdivision (b)(3)1 to the extent it is applied to
inmates who are required to register as sex offenders solely due to prior convictions.
BACKGROUND AND PROCEDURAL HISTORY
In 2001, O'Keefe pleaded guilty to assault with a deadly weapon on a police
officer (Pen. Code,2 § 245, subd. (c)) and admitted to allegations of personal use of a
dangerous or deadly weapon, a knife, (§ 12022, subd.(b)(1)) and four strike priors
(§§ 667, subds. (b)-(i), 668, & 1170.12). O'Keefe was sentenced to 25 years to life under
the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12). Before the 2001 conviction,
1 Further citations to regulations are to title 15 of the California Code of
Regulations, unless otherwise noted.
2 Further undesignated statutory references are to the Penal Code.

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O'Keefe had misdemeanor convictions in 1983 and 1984 for indecent exposure
(§ 314.1).3 O'Keefe is registered as a sex offender (§ 290).
On December 12, 2017, O'Keefe filed a petition for writ of habeas corpus in
Monterey County Superior Court challenging regulations that excluded his consideration
for parole by CDCR due to his indeterminate sentence and status as a sex offender
registrant. The matter was transferred to San Diego County Superior Court, which issued
an order to show cause.
On December 24, 2018, the superior court granted O'Keefe's petition in its
entirety. The court ordered CDCR to treat as void and repeal regulation section 3491,
subdivision (b)(1), addressing indeterminate sentences. It also directed CDCR to treat as
void and repeal regulation section 3491, subdivision (b)(3), addressing early parole
eligibility for sex offender registrants. Finally, it directed the Board of Parole Hearings to
determine O'Keefe's parole eligibility for early release under article I, section 32,
subdivision (a) to the California Constitution within 30 days of the order and to conduct a
parole hearing within 60 days of the order if O'Keefe was eligible for the hearing.
On December 26, 2018, new emergency regulations that modified regulation
section 3491, subdivision (b)(1) by making third-strike offenders eligible for early parole
3 The parties dispute whether some of the prior convictions for indecent exposure
are felonies. Although the probation report states that O'Keefe's "prior felony convictions
have resulted in his becoming a [Penal Code section] 290 Sexual Offender registrant,"
the entry for the convictions reads: "PG-M-LIO-PB PC314.1; 7-18-84 COP." O'Keefe
represents this is shorthand for pleading guilty to a misdemeanor lesser included offense
of Penal Code section 314.1 on July 18, 1984 through a change of plea. The parties agree
O'Keefe was required to register as a sex offender.

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consideration were approved. The emergency regulations were scheduled to become
effective January 1, 2019. These were to expire June 11, 2019, absent a Certificate of
Compliance.
On February 13, 2019, CDCR requested reconsideration of the court's order,
arguing it should be modified to avoid conflicting with the new, emergency regulations.
CDCR also asked the court to narrow the repeal of the exclusionary language in
regulation section 3491, subdivision (b)(3) so it would apply only to inmates who were
registered sex offenders due to a past offense.
On February 22, 2019, CDCR timely filed its appeal.
On February 25, 2019, the superior court issued an order modifying the timeline of
O'Keefe's parole eligibility consideration, directing CDCR to conduct an early parole
hearing within 180 days of the eligibility decision made, pursuant to then-emergency
regulations. In a footnote, the trial court expressly declined to conclude regulation
section 3491, subdivision (b)(3) was unconstitutional only as applied to inmates with
prior registrable offenses.
CDCR filed a request with the superior court to stay enforcement of its order
pending appeal, which the superior court denied. On March 15, 2019, we granted a stay
of the court's December 24, 2018 order.

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DISCUSSION
I.
PAROLE CONSIDERATION FOR INMATES WITH INDETERMINATE
SENTENCES
O'Keefe's challenge to his ineligibility for parole consideration due to his
indeterminate sentence as a third-striker was addressed by subsequently-adopted
regulations that eliminate this concern. (Regulation § 3491, subd. (b)(1), Register 2019,
No. 43 (October 21, 2019).) The amended regulations moot O'Keefe's argument that he
is ineligible for early parole consideration based on his status as a Three Strikes offender.
Thus, we consider the merits of the second argument only, that O'Keefe's prior
convictions for registrable sex offenses render him ineligible for early parole
consideration.
II.
PAROLE CONSIDERATION FOR INMATES REQUIRED TO REGISTER AS SEX
OFFENDERS
A. Legal Background
In November 2016, California voters passed Proposition 57, the Public Safety and
Rehabilitation Act of 2016, which added article I, section 32 to the California
Constitution. The purposes of the proposition were to: "1. Protect and enhance public
safety. [¶] 2. Save money by reducing wasteful spending on prisons. [¶] 3. Prevent
federal courts from indiscriminately releasing prisoners. [¶] 4. Stop the revolving door
of crime by emphasizing rehabilitation, especially for juveniles." (Voter Information
Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 2, p. 141.)

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Article I, section 32, subdivision (a)(1) of the California Constitution provides that
"[a]ny 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." Subdivision (b) of the same section directs CDCR to "adopt regulations in
furtherance of these provisions," and to have the Secretary of CDCR "certify that these
regulations protect and enhance public safety." (Id. at § 32, subd. (b).)
The regulations adopted by the Secretary exclude from early parole consideration
any inmate who "is convicted of a sexual offense that currently 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." (Regulation § 3491, subd. (b)(3).)
O'Keefe argues his exclusion from early parole eligibility as a result of his prior
sex offenses violates the plain language of article I, section 32, subdivision (a)(1) of the
California Constitution because his current sentence is for a nonviolent felony offense,
making him eligible for early release consideration. CDCR argues the discretion
afforded it in subdivision (b) together with subdivision (a)(1) gives it authority to exclude
from early parole consideration inmates with any past or current registrable sex offense.
CDCR also justifies the exclusion of inmates with prior sex offense convictions by
explaining public safety requires their exclusion and contending that voters intended to
exclude from eligibility all sex offenders required to register under Penal Code section
290. (See Cal. Dept. of Corrections, Credit Earning and Parole Consideration Final
Statement of Reasons, April 30, 2018, pp. 20-21.) Although we recognize the
proposition granted CDCR authority to develop regulations to further the intent of the

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law, as we explain, regulation section 3491, subdivision (b)(3) as applied to O'Keefe and
other similarly-situated inmates exceeds the scope of the CDCR's authority under
article I, section 32 of the California Constitution.
B. Standard of Review
When "a state agency has authority to adopt regulations . . . no regulation adopted
is valid or effective unless consistent [with] and not in conflict with the statute and
reasonably necessary to effectuate the purpose of the statute." (Gov. Code, § 11342.2;
Ontario Community Foundations, Inc. v. State Bd. of Equalization (1984) 35 Cal.3d 811,
816; Physicians & Surgeons Laboratories, Inc. v. Department of Health Services (1992)
6 Cal.App.4th 968, 982.) " 'The task of the reviewing court in such a case " 'is to decide
whether the [agency] reasonably interpreted the legislative mandate.' [Citation.]"
[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. [Citation.] Correspondingly, there is no agency
discretion to promulgate a regulation which is inconsistent with the governing statute.
. . . Administrative regulations that violate acts of the Legislature are void and no
protestations that they are merely an exercise of administrative discretion can sanctify
them." . . . Administrative regulations that alter or amend the statute or enlarge or impair
its scope are void . . . ." [Citation.]' " (Ontario Community, at pp. 816-817, italics omitted;
see In re Edwards (2018) 26 Cal.App.5th 1181, 1189 (Edwards).)
"[W]hen construing constitutional provisions and statutes, including those enacted
through voter initiative[] [citation,] [o]ur primary concern is giving effect to the intended

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purpose of the provisions at issue. [Citation.] In doing so, we first analyze provisions'
text in their relevant context, which is typically the best and most reliable indicator of
purpose. [Citations.] We start by ascribing to words their ordinary meaning, while
taking account of related provisions and the structure of the relevant statutory and
constitutional scheme. [Citations.] If the provisions' intended purpose nonetheless
remains opaque, we may consider extrinsic sources, such as an initiative's ballot
materials. [Citation.] Moreover, when construing initiatives, we generally presume
electors are aware of existing law. [Citation.] Finally, we apply independent judgment
when construing constitutional and statutory provisions. [Citation.]" (California
Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 933-934 (California
Cannabis Coalition).)
C. Analysis
We begin with the text, ascribing to words their ordinary meanings. (See
California Cannabis Coalition, supra, 3 Cal.5th at pp. 933-934.) Article I, section 32,
subdivision (a)(1) of the California Constitution provides, "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." The law also
directs CDCR to "adopt regulations in furtherance of these provisions" and to have its
Secretary "certify that these regulations protect and enhance public safety." (Id., § 32,
subd. (b).) Regulation section 3491, subdivision (b)(3) excludes from early parole
consideration any inmate who "is convicted of a sexual offense that currently requires or
will require registration as a sex offender under the Sex Offender Registration Act,

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codified in sections 290 through 290.024 of the Penal Code." (Regulation § 3491,
subd. (b)(3).)
At least two other cases have addressed this regulation as it applies to inmates with
prior convictions for registrable sex offenses: In re Gadlin (2019) 31 Cal.App.5th 784
(Gadlin), review granted May 15, 2019, S254599, a Second Appellate District, Division
Five case, and In re Schuster (2019) 42 Cal.App.5th 943 (Schuster), review granted
February 19, 2020 , S260024, a Third Appellate District case. Although these cases have
been granted review, we find their reasoning persuasive and follow it here.
In Gadlin, the inmate had two prior serious felony convictions that required
registration, one for forcible rape (§ 261, former subd. (2)) and the other for forcible child
molestation (§ 288, subd. (b)). (Gadlin, supra, 31 Cal.App.5th at p. 786, rev. granted.)
The inmate in Schuster had a prior conviction for pimping (§ 266h, subd. (b)(2)), which
required him to register as a sex offender (§ 290). (Schuster, supra, 42 Cal.App.5th at
p. 947, rev. granted.) In both cases, the appellate courts concluded that parole eligibility
must be based on the current offense. (Gadlin, at p. 789; Schuster, at p. 954.)
The Gadlin court based its reasoning on the scope of the enabling law, article I,
section 32 of the California Constitution, noting an agency lacks discretion to promulgate
a regulation inconsistent with the governing statute. (Gadlin, supra, 31 Cal.App.5th at
p. 789, rev. granted.) It explained: "The reference [in article I, section 32 of the
California Constitution] to 'convicted' and 'sentenced,' in conjunction with present
eligibility for parole once a full term is completed, make clear that early parole eligibility
must be assessed based on the conviction for which an inmate is now serving a state

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prison sentence (the current offense), rather than prior criminal history. This
interpretation is supported by [the California Constitution, article I,] section 32,
subdivision (a)(1)'s use of the singular form in 'felony offense,' 'primary offense,' and
'term.' " (Gadlin, at p. 789.) Because it concluded that the application of the regulation
to those with only prior registrable offenses violated article I, section 32,
subdivision (a)(1) of the California Constitution, the Gadlin court held the regulation was
void as applied to those with prior registrable offenses. (Gadlin, at p. 790.) The
appellate court in Schuster likewise concluded that regulation section 3491,
subdivision (b)(3) conflicts with the constitutional amendment to the extent it is applied
to exclude inmates with prior sex offenses.4 (Schuster, supra, 42 Cal.App.5th at p. 955,
rev. granted.) Like the courts in Gadlin and Schuster, we conclude the language of the
California Constitution, article I, section 32, subdivision (a)(1)'s reference to a "felony
offense," the "primary offense" and "term" authorize CDCR to develop regulations based
on an inmate's current convictions.
CDCR asks us not to adopt the reasoning of Gadlin, arguing that court improperly
narrowly focused "on subdivision (a)'s language in isolation and without regard to other
provisions that limit its scope, the overall purpose, and voter intent." In essence, CDCR
argues it had authority to promulgate any regulation that protects and enhances public
4 The Schuster court also noted that the regulation's use of the phrase " 'is
convicted' " could be read as referring only to the current conviction, but the parties there
did not read it that way, and regulations use the word " 'currently' " in other provisions to
denote current sentences. (Schuster, supra, 42 Cal.App.5th at p. 954, fn. 4, rev. granted.)

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safety, and regulation section 3491, subdivision (b)(3) is therefore valid. However,
reading together article I, section 32, subdivision (a)(1) of the California Constitution,
that all offenders convicted of a nonviolent felony are eligible, and subdivision (b) that
the regulations must be "in furtherance of these [aforementioned] provisions," does not
force the conclusion that CDCR has unlimited discretion in developing regulations.
Instead, subdivision (a)(1) limits the scope of offenses for which the Secretary must
certify that the regulations protect public safety. Administrative agencies lack discretion
to promulgate a regulation that is not consistent with the governing law (Henning v.
Division of Occupational Saf. & Health (1990) 219 Cal.App.3d 747, 757-758; Edwards,
supra, 26 Cal. App. 5th at pp. 1192-1193), and as drafted, the regulations excluding
inmates with prior registrable sex offense convictions exceed CDCR's scope of authority
under the governing law.
Our interpretation is also consistent with the appellate court's conclusion in
Edwards. (Edwards, supra, 26 Cal.App.5th at p. 1189.) In Edwards, the petitioner
argued he could not be excluded from early parole eligibility as a result of his
indeterminate sentence under the Three Strikes law. (Edwards, at p. 1189.) The court
evaluated the language in article I, section 32, subdivision (a)(1)(A), of the California
Constitution interpreting the meaning of the " 'full term,' " which the statute defined as
" 'the longest term of imprisonment imposed by the court for any offense, excluding the
imposition of an enhancement, consecutive sentence, or alternative sentence.' "
(Edwards, at pp. 1189-1190, italics omitted.) It concluded the imposition of an
indeterminate sentence could not disqualify an inmate for early parole eligibility because

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the statute expressly excluded alternative sentences from the calculation of a full term,
third-strikers are eligible for early parole consideration. (Id. at pp. 1189-1190, 1192.)
The court explained the "plain language analysis [was] . . . straightforward": "There is no
question that the voters who approved Proposition 57 intended Edwards and others
serving Three Strikes indeterminate sentences to be eligible for early parole
consideration; the express exclusion of alternative sentences when determining the full
term is dispositive. [Citation.]" (Id. at p. 1190.) Enhancements and alternative sentences
are applied to increase punishment based on an offender's prior criminal behavior.
(People v. Sasser (2015) 61 Cal.4th 1, 10-11; People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 504 [purpose of Three Strikes law to punish recidivists].) Thus, the
proposition's explicit exclusion of alternative sentences and enhancements from early
parole consideration is an indication that voters intended early release eligibility to focus
on current offenses, not past behavior. Accordingly, we conclude regulations limiting
eligibility for consideration based on past sex offenses falls outside the scope of article I,
section 32 of the California Constitution.5
The case before us is similar to Gadlin and Schuster. O'Keefe is currently serving
time for assault with a deadly weapon on a police officer (§ 245, subd. (c)), a nonviolent
felony offense (see § 667.5, subd. (c)) which does not require registration as a sex
5 There are three pending requests for judicial notice. We deny Respondent's
Motion for Judicial Notice and Appellant's Second Motion for Judicial Notice because
the matters contained therein are unnecessary to our resolution of the issue before us.

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offender under section 290. Thus, O'Keefe was improperly excluded from early parole
consideration.
Because we do not believe the language of California Constitution article I,
section 32 to be opaque, we do not find it necessary to consider the initiative's ballot
materials for purposes of interpreting the statute.6 (See California Cannabis Coalition,
supra, 3 Cal.5th at pp. 933-934.)
We note our decision does not guarantee to any inmate early parole or mean any
particular class of inmate is suitable for early release. Our decision merely clarifies that
6 We note that the ballot materials would provide limited information regarding
voter intent. Opponents argued Proposition 57 deemed some sex offenses and other
crimes nonviolent, making those offenders eligible for early release. (Voter Information
Guide, Gen. Elec. (Nov. 8, 2016) Argument Against Proposition 57, p. 53.) Proponents
responded that the proposition excluded inmates convicted of crimes listed as violent in
Penal Code section 667.5, subdivision (c) and said it would "not change the federal court
order that exclude[d] sex offenders, as defined in Penal Code 290." (Voter Information
Guide, Gen. Elec. (Nov. 8, 2016) Rebuttal to Argument Against Proposition 57, p. 53)
Even were we to take this information into consideration, it does not advise us adequately
of voter intent with respect to prior sex offenses because it is not clear whether voters
believed the representations of proponents or supported the proposition despite
opponents' representations.
We grant Appellant's unopposed first Motion for Judicial Notice, records of the
United States District Court for the Eastern District of California. (Evid. Code, § 452,
subd. (d)). We note the "federal court order" referenced in the voter materials referred to
a series of orders in consolidated cases Coleman v. Brown (E.D.Cal., No. 2:90-cv-00520)
and Plata v. Brown (N.D.Cal., No. C01-1351) which resulted in the state's
implementation of a parole determination process that made nonviolent second-strike
offenders eligible for parole and excluded inmates with a current or prior registrable
conviction. That parole determination process was ultimately replaced by the regulations
outlining early parole consideration under Proposition 57. The current early parole
consideration scheme is different from the process used under the federal court order
because current regulations make third-strikers eligible for early release. (See Regulation
§ 3491, subd. (b)(1).)

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inmates whose current offenses are nonviolent felonies are not ineligible for early parole
consideration based solely on a prior sex offense convictions. Our conclusion here in no
way limits the Board of Parole Hearing's ability to consider an inmate's full criminal
history, including prior sex offenses, in deciding whether to grant parole. (See Pen.
Code, § 3041 et seq.; Regulation § 2449.32, subd.(c).)
We express no opinion on whether CDCR's application of the regulations excludes
inmates whose current offenses require registration as sex offenders. However, CDCR's
application of regulation section 3491, subdivision (b)(3) to exclude O'Keefe and
similarly-situated inmates serving terms for nonviolent, nonregistrable offenses from
early parole consideration is inconsistent with article I, section 32(a)(1) of the California
Constitution. Accordingly, O'Keefe is entitled to early parole consideration.
DISPOSITION
The stay issued on March 15, 2019 is vacated.
We modify the superior court's order to invalidate regulation section 3491,
subdivision (b)(3) to the extent that section is applied to exclude Penal Code section 290
registrants from early parole consideration under article I, section 32 of the California
Constitution due solely to a prior conviction.

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Notwithstanding other regulations, the California Department of Corrections and
Rehabilitation is directed to consider O'Keefe for early parole consideration within 30
days of remittitur issuance. If determined to be eligible, the Board of Parole Hearings
shall conduct a parole hearing within 180 days of the eligibility decision. In all other
respects, the order is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
GUERRERO, J.

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