In re Bowell

Filed 3/1/19 In re Bowell CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 ONE
In re
JAMES BOWELL,
on
Habeas Corpus.
B285434
(Los Angeles County
Super. Ct. No. BA191442)
ORIGINAL PROCEEDING; petition for a writ of habeas
corpus. William C. Ryan, Judge. Petition granted.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Petitioner.
Xavier Becerra, Attorney General, Phillip J. Lindsay,
Assistant Attorney General, Julie A. Malone and Jennifer O.
Cano, Deputy Attorneys General for Respondent.
_____________________

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INTRODUCTION
Proposition 57 amended the California Constitution to add
Penal Code section 32, providing for a review for parole
consideration for inmates convicted of a nonviolent felony offense
and sentenced to state prison, after completing the full term for
their primary offense. California’s Department of Corrections
and Rehabilitation (CDCR) was authorized to adopt regulations
in furtherance of the provisions of the initiative. Among the
regulations promulgated by CDCR included an exclusion of
inmates serving indeterminate sentences and an exclusion of
inmates convicted of a sex offense requiring registration as a sex
offender.
Petitioner James Bowell is serving an indeterminate
sentence of 25 years to life as a result of a 2000 conviction for
failure to register as a sex offender (former Pen. Code, § 290,
subd. (g)(2); now codified as Pen. Code, § 290.018, subd. (b).).1 He
contends that regulations adopted by the CDCR, in furtherance
of its obligations under Proposition 57, improperly exclude him
from parole consideration pursuant to Proposition 57. We agree.
Accordingly, we grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In 1991, Bowell was convicted of assault with intent to rape
(§ 220), which is a registrable offense pursuant to the Sex
Offender Registration Act (§ 290, subd. (c)). Bowell was released
on parole in October 1997, and registered as a sex offender in
November 1997. In 1998, Bowell violated parole and was
1 All further statutory references are to the Penal Code,
unless otherwise specified.

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returned to state prison. Paroled again in 1999, Bowell fled
California. He was arrested in Nevada in April 1999. In
September 1999, Bowell was charged with one count of failure to
register as a sex offender, and on September 1, 2000, Bowell was
convicted after a jury trial. After a bench trial relating to his
prior convictions, Bowell was found to have four prior felony
convictions for which he served prison terms (§ 667.5, subd. (b)),
as well as three prior felony convictions under the Three Strikes
law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). Bowell was
sentenced to a third strike sentence of 25 years to life. We
affirmed the judgment on August 27, 2001. (People v. Bowell
(Aug. 28, 2001, B144266) [nonpub. opn.].) The sentencing
range for the offense of failure to register as a sex offender,
without consideration of the Three Strikes law, would have
been 16 months, two years, or three years. (Former § 290,
subd. (g)(2).)
Bowell filed a petition for writ of habeas corpus on
October 4, 2017, asserting that he is entitled to parole review
pursuant to the terms of the initiative language in
Proposition 57, and that emergency regulations promulgated by
CDCR improperly excluded him from consideration. We
appointed counsel and requested a supplemental petition.
Bowell, through his appointed counsel, filed a supplemental
petition on December 11, 2017. Informal opposition to the
petition was filed by the Attorney General, on behalf of CDCR,
on February 22, 2018, and Bowell filed a reply on March 9, 2018.
On April 26, 2018, we issued an order to show cause. The
Attorney General filed a written return on May 23, 2018,
and Bowell filed a traverse on June 20, 2018.

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During the briefing process, revisions to the initially-
adopted emergency regulations, discussed in more detail below,
became final on May 1, 2018. Pursuant to the revised
regulations, the Attorney General argued that Bowell was
ineligible for review for parole consideration pursuant to
Proposition 57 based on the exclusion, in the final regulations, of
(a) indeterminately sentenced inmates and (b) sex offenders from
eligibility for review for early parole consideration.
On September 7, 2018, our colleagues in Division Five
invalidated the CDCR regulation excluding from parole
consideration indeterminately sentenced inmates (In re Edwards
(2018) 26 Cal.App.5th 1181, 1192 (Edwards). The Attorney
General advised this court in a supplemental letter brief that it
did not intend to appeal the decision in Edwards, and that CDCR
would adopt emergency regulations making indeterminately
sentenced nonviolent offenders eligible for parole consideration
pursuant to Proposition 57. The revised emergency regulations
went into effect on January 1, 2019, and provide for review for
inmates serving indeterminate terms for nonviolent felonies,
effectively mooting the argument that Bowell is ineligible for
parole consideration as a result of his indeterminate sentence. In
its supplemental brief addressing the new regulations, however,
the Attorney General maintained that Bowell remains ineligible
for parole consideration pursuant to Proposition 57 as a result of
his status as a sex offender.
After we scheduled oral argument, Division Five issued its
decision in In re Gadlin (2019) 31 Cal.App.5th 784 (Gadlin). We
sought supplemental briefing from the parties. Bowell filed a
supplemental brief on February 5, 2019, arguing that the
reasoning of Gadlin, discussed below, should apply to Bowell.

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The Attorney General did not address the merits but instead filed
a letter brief arguing that because Gadlin was not yet final, and
CDCR is reviewing the decision to determine whether to seek
review, we should not apply Gadlin to Bowell.
DISCUSSION
Proposition 57, the Public Safety and Rehabilitation Act
of 2016, was approved by the California electorate on
November 8, 2016. It added section 32 to article I of the
California Constitution, which provides that an inmate 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).) CDCR was charged with adopting regulations in
furtherance of the provisions of Proposition 57, and the Secretary
of CDCR was required to “certify that [the] regulations protect
and enhance public safety.” (Cal. Const., art. I, § 32, subd. (b).)
CDCR asserts that Bowell is precluded from early parole
consideration by one of the implementing regulations adopted
by CDCR pursuant to the terms of the initiative. Title 15,
section 3491, subdivision (b)(3) excludes from eligibility any
inmate “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.” (Cal. Code Regs., tit. 15, § 3491, subd. (b)(3).) As
interpreted by CDCR, this provision would bar any inmate with a
prior conviction for an offense that requires registration as a sex
offender. Whether CDCR exceeded its authority by applying this
regulation to an inmate like Bowell, who is not currently serving
a term of incarceration for a sex offense, but has a past conviction

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for a sex offense requiring registration for which he was
previously paroled, is the issue presented by this petition.
The Attorney General argues that CDCR determined that
“ ‘[s]ex offenders pose a potentially high risk of committing
further sex offenses after release from incarceration or
commitment, and that protection of the public from reoffending
by these offenders is a paramount public interest.’ ” (Ex. 1,
Prop. 57 Regs., Final Statement of Reasons, at p. 20, citing
§ 290.03, subd. (a)(1).) As a result of this determination, the
Attorney General argues that CDCR acted within its authority in
adopting regulations that exclude from the Proposition 57 parole
review process any sex offender. Bowell argues that the plain
meaning of section 3491(b)(3) is that the commitment offense for
which the inmate is currently serving time must be a sex offense.
This issue was addressed by our colleagues in Division Five
in Gadlin: whether a petitioner serving a sentence for a
nonviolent felony with a prior conviction of a sex offense
requiring registration was ineligible for relief under the CDCR
regulations implementing Proposition 57. In Gadlin, the
defendant was serving a sentence for a nonviolent felony—
assault with a deadly weapon—but had a history of convictions
requiring registration as a sex offender pursuant to section 290.
The court rejected an interpretation of Proposition 57 that would
have permitted the regulations to make a defendant ineligible for
relief simply because of past convictions requiring registration.
The court analyzed CDCR’s rulemaking authority in the context
of the ballot initiative, giving effect to the intent of the provisions
at issue. It then considered the effect of the regulations’
exclusion of any inmate who “ ‘is convicted of a sexual offense
that currently requires or will require registration as a sex

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offender under the Sex Offender Registration Act, codified in
sections 290 through 290.024 of the Penal Code.’ [Citation.]”
(Gadlin, supra, 31 Cal.App.5th at p.788.)
The majority in Gadlin did not reach the issue of whether
inmates currently serving a sentence for a sex offense may be
categorically excluded from early parole consideration, as a
matter of public safety, and did not invalidate the regulation.
Indeed, in a concurring opinion, Presiding Justice Baker opined
that the regulatory provisions excluding inmates currently in
custody for a sex offense were within CDCR’s authority. (Gadlin,
supra, 31 Cal.App.5th at pp. 790−791, conc. opn. of Baker, J.)
The entire panel, however, concluded that CDCR’s
application of California Code of Regulations section 3491(b)(3) to
exclude an inmate in the circumstances presented here, in which
the inmate is not currently serving a sentence for an offense that
requires registration as a sex offender pursuant to section 290,
“runs afoul of California Constitution, article I, section 32,
subdivision (a)(1).” (Gadlin, supra, 31 Cal.App.5th at p.790,
conc. opn. of Baker, J.) The court acknowledged the policy and
public safety concerns described by the Attorney General but
concluded that those policy concerns “do not trump the plain text
of section 32(a)(1).” (Id. at p. 789.) We agree with the majority in
Gadlin and adopt its reasoning. To hold otherwise would be
using Bowell’s past conviction requiring registration to disqualify
him from relief under Proposition 57 even though his current
offense is for a nonviolent felony that is not a registrable sex
offense listed in section 290, subdivision (c).
In addition to the plain text of the initiative, in Bowell’s
case the ballot materials provided to voters further support the
conclusion that Proposition 57 does not bar early parole

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consideration. “[O]utside a ballot initiative’s express provisions,”
“we examine the materials that were before the voters” to
ascertain their intent. (People v. Valencia (2017) 3 Cal.5th 347,
364.) The concurring opinion in Gadlin points out that
proponents of Proposition 57 “assured voters that those required
to register as sex offenders would not benefit from the initiative,”
but distinguishes inmates serving a current sentence for such a
crime from those who have previously served a sentence for a
registrable sex offense. (Gadlin, supra, 31 Cal.App.5th at p. 796,
conc. opn. of Baker, J.) The arguments against Proposition 57
included, for example, a specific assertion that inmates in custody
for “[f]ail[ure] to register as a sex offender” would be eligible for
relief pursuant to Proposition 57. (Ballot Pamp., Gen. Elec.
(Nov. 8, 2016) argument against Prop. 57, p. 59.) This argument
highlights the difference between an inmate currently serving a
term for a sex offense and one serving a term for a nonviolent
felony that is not a sex offense, but who has an ongoing obligation
to register as a sex offender.
As with all other inmates receiving early parole
consideration pursuant to Proposition 57 and its implementing
regulations, Proposition 57 does not authorize Bowell’s release,
only early parole consideration, and the “Board of Parole
Hearings will be permitted to consider his full criminal history,
including his prior sex offense[ ], in deciding whether a grant
of parole is warranted. (Pen. Code, § 3041, subd. (b); Cal. Code
Regs., tit. 15, § 2449.32, subd. (c).)” (Gadlin, supra,
31 Cal.App.5th at p. 790, fn. 3, conc. opn. of Baker, J.)

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DISPOSITION
The petition for a writ of habeas corpus is granted. The
California Department of Corrections and Rehabilitation is
directed to conduct a parole consideration review for Bowell
within 60 days of issuance of the remittitur.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.

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