Is an Inmate Serving a State Prison for a Penal Code section 288(a) Offense Eligible for Early Parole Consideration Under Proposition 57?

On November 8, 2016, the “California Parole for Non-Violent Criminals and Juvenile Court Trial Requirements Initiative,” also known as “Proposition 57,” was approved by California voters.

Relevant to adult offenders, Proposition 57 added Section 32 to Article 1 of the California Constitution and created two potential benefits to inmates serving state prison sentences: (1) early parole consideration for an inmate serving a nonviolent felony offense after the inmate has completed the full term of his primary offense (the full term of the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence); and (2) provided the California Department of Corrections and Rehabilitation “CDCR” with the authority to award credits to inmates earned for good behavior and rehabilitative or educational achievements.

According to the plain language of Section 32 of Article 1 of the California Constitution, early parole consideration under Prop 57 is limited to inmates serving a sentence for a nonviolent felony offense. A Penal Code section 288(a) offense is considered a violent offense pursuant to Penal Code section 667.5(c) and, therefore, an inmate presently serving a sentence for a Penal Code section 288(a) offense is not eligible for early parole consideration under Prop 57.

Two appellate court cases: In re Gregory Gadlin (2019) 31 Cal. App. 5th 784 and In re Schuster (2019) 42 Cal. App. 5th 943, have taken up the issue regarding early parole consideration for inmates with PRIOR Penal Code section 290 convictions and have determined that inmates with PRIOR Penal Code section 290 convictions are eligible for early parole consideration if their PRESENT offense is a nonviolent felony. Both courts did not take up the issue of whether inmates with a present offense requiring Penal Code section 290 registration are eligible for early parole consideration and have upheld the CDCR’s regulations denying these inmates early parole consideration.

While the law is always subject to change, as the law stands now, an inmate serving a sentence for Penal Code section 288(a) is not eligible for early parole consideration.

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