People v. Payne CA1/4

Filed 8/27/20 P. v. Payne CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Appellant, A158497 v. THOMAS PAYNE, (Marin County Super. Ct. No. SC206090) Defendant and Respondent.

Thomas Payne filed a petition for writ of habeas corpus alleging that the Department of Corrections and Rehabilitation (the Department) is unlawfully excluding him from consideration for early parole under Proposition 57. The Attorney General disputed Payne’s claim, contending that the Department has authority to exclude inmates from early parole consideration when they, like Payne, have a prior conviction for a registerable sex offense. The superior court granted Payne’s petition, finding that the challenged regulation is void for reasons set forth in In re Gadlin (2019) 31 Cal.App.5th 784 (Gadlin), review granted May 15, 2019, S254599. The Department filed the present appeal. We reject Payne’s contention that this appeal is not authorized by statute. However we find that the Department does not have authority to deny an inmate consideration for

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parole under Proposition 57 because of a prior conviction for a registerable sex offense. Accordingly, we affirm the order granting Payne’s petition. BACKGROUND In 1996, Payne was convicted of forcible oral copulation and sodomy by force. He was sentenced to a 10-year prison term and required to register as a sex offender under Penal Code section 290. In 2006, Payne was convicted of possession of a firearm by a person previously convicted of a violent felony (Pen. Code, former § 12021.1, subd. (a)) and possession of ammunition by a person previously convicted of a felony (id. at § 12316, subd. (b)(1)). He was sentenced to prison for 25 years to life under the Three Strikes Law (Pen. Code, § 1170.12) plus an additional year for a prior prison term (id. at § 667.5, subd. (b)), for an aggregate term of 26 years to life in state prison. In 2016, California voters passed Proposition 57, the Public Safety and Rehabilitation Act of 2016. “[T]he (uncodified) text of Proposition 57 declares the voters’ purposes in approving the measure 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.’ ” (In re Edwards (2018) 26 Cal.App.5th 1181, 1185.) Proposition 57 added section 32 to Article I of the California Constitution (section 32). Section 32, subdivision (a), 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. [¶] . . . For purposes of this section only, the full term for the primary offense means the longest term of imprisonment imposed by