Filed 8/11/20 Becerra v. Superior Court CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

XAVIER BECERRA, AS ATTORNEY GENERAL, ETC.,

Petitioner,

v.

THE SUPERIOR COURT OF SACRAMENTO COUNTY,

Respondent;

NINA SALARNO BESSELMAN et al.,

Real Parties in Interest.

C092405

(Super. Ct. No. 34-2020-80003441)

The Attorney General of the State of California seeks a peremptory writ of mandate directing respondent superior court to vacate its order and judgment entered on August 7, 2010, insofar as it compels revision of the ballot title and summary and ballot label for Proposition 20 prepared by the Attorney General. Or, in the alternative the Attorney General seeks an order of this court directing respondent court to vacate and modify its order and judgment with a further revision of the ballot title and summary and ballot label.

Respondent Court ruled these ballot materials were misleading because the language, “RESTRICTS PAROLE FOR NON-VIOLENT OFFENDERS,” suggests passage of Proposition 20 would mean that a subset of non-violent offenders would no longer be eligible for parole even though still considered non-violent rather than conveying that certain offenses newly would be considered violent, rendering those who committed those offenses ineligible for parole. Accordingly, the court directed that the language be altered in both the ballot title and summary and the ballot label to read, “RESTRICTS PAROLE FOR CERTAIN OFFENSES PREVIOUSLY CONSIDERED TO BE NON-VIOLENT.”

The writ petition was filed in this court on Monday, August 10, 2020, which is the same date the Secretary of State has indicated is the deadline for transmitting copy for the voter information guide to the State Printer. Thus, to preserve our jurisdiction, we stayed submission of the ballot materials to the State Printer or any printing of the ballot materials by the State Printer pending further order of this court. We also informed the parties that we were considering issuing a peremptory writ in the first instance, and that any opposition must be filed by 12:00 p.m. on August 11, 2020. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)

Real Party in Interest Nina Salaro Besselman timely filed an opposition, in which she argues respondent court did not err in ordering the ballot title and summary and ballot label to be amended because they were false and misleading, even when read together. Besselman further argues respondent court’s correction was appropriate and cured the obvious defects in the ballot materials, and that we should not order any further amendment, but if we do, we should completely rewrite the challenged portions of the ballot title and summary and ballot label.

Having reviewed the petition, the opposition, and the amicus brief submitted in support of the petition by former Governor Edmund G. Brown, Jr. , we shall issue the requested peremptory writ of mandate. As we will explain, the respondent court did not err in concluding that the language drafted by the Attorney General was clearly misleading. However, the language adopted by the respondent court is also misleading. Accordingly, as requested by the Attorney General, we will direct that the ballot language will be neither that drafted by the Attorney General nor that ordered by the respondent court, but instead shall be that ordered by this court as described below.

To preserve this court’s jurisdiction pending finality of this decision, we shall issue a mandatory stay that effectively grants petitioner the relief to which we conclude he is entitled. (See Yes on 25, Citizens for an On-Time Budget v. Superior Court (2010) 189 Cal.App.4th 1445, 1449.)

BACKGROUND

In 2016, the voters enacted Proposition 57, which added to the California Constitution, article I, section 32, which provides in pertinent part: “(a) The following provisions are hereby enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding anything in this article or any other provision of law: (1) Parole Consideration: 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.” [¶] “(b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety.”

In the ensuing years, the Department enacted regulations defining the term “nonviolent felony offense,” which was not otherwise defined in statute or in Proposition 57 itself. (See, e.g., Alliance for Constitutional Sex Offense Laws v. Dept. of Corrections &Rehabilitation (2020) 45 Cal.App.5th 225, 229-231, review granted May 27, 2020, S261362 [noting multiple versions of regulations]; In re Gadlin (2019) 31 Cal.App.5th 784, 789-790, review granted May 15, 2019, S254599; In re Mohammad (2019) 42 Cal.App.5th 719, 726-727, review granted Feb 19, 2020, S259999 [invalidating structure based on “nonviolent offender” versus “nonviolent felony offense”].) Ultimately, the Department, in 2019, adopted regulations which provide, as relevant, that an inmate is eligible for early parole consideration if he or she is not serving a term for a “violent felony,” which is further defined as “a crime or enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code.” (15 Cal. Code Regs., § 3490, subd. (a)(4)-(6), (c).)

Proposition 20, as relevant, would add a new Penal Code statute (Pen. Code, § 3040.1), which provides that for purposes of early parole consideration under section 32 of Article I of the Constitution, “violent felony offenses,” would be defined to include all the crimes listed in subdivision (c) of section 667.5 of the Penal Code, but would also include 28 other enumerated offenses. As pertinent, the stated purpose of the measure is to “[r]eform the parole system so violent felons are not released early from prison. . . .” In that regard, the measure finds and declares that “[r]ecent changes to parole laws allowed the early release of dangerous criminals by the law’s failure to define certain crimes as ‘violent.’ These changes allowed individuals convicted of sex trafficking of children, rape of an unconscious person, felony assault with a deadly weapon, battery on a police officer or firefighter, and felony domestic violence to be considered ‘non-violent offenders.’ ” Thus, the measure declares, “[t]his measure reforms the law to define such crimes as ‘violent felonies’ for purposes of early release.”

As required by law, the Secretary of State placed the official voter information guide for the November 2020 election on public display. (Elec. Code, § 9092.) The voter information guide includes the official ballot title and summary and the official ballot label prepared by the Attorney General for each initiative measure. (Elec. Code, §§ 9050-9051.) The ballot materials for Proposition 20 submitted by the Attorney General read, in pertinent part:

“BALLOT TITLE AND SUMMARY

“RESTRICTS PAROLE FOR NON-VIOLENT OFFENDERS. AUTHORIZES FELONY SENTENCES FOR CERTAIN OFFENSES CURRENTLY TREATED ONLY AS MISDEMEANORS. INITIATIVE STATUTE.

“Limits access to parole program established for non-violent offenders who have completed the full term of their primary offense by eliminating eligibility for certain offenses. . . .”

“BALLOT LABEL

“RESTRICTS PAROLE FOR NON-VIOLENT OFFENDERS. AUTHORIZES FELONY SENTENCES FOR CERTAIN OFFENSES CURRENTLY TREATED ONLY AS MISDEMEANORS. INITIATIVE STATUTE. Limits access to parole program established for non-violent offenders who have completed the full term of their primary offense by eliminating eligibility for certain offenses. . . .”

Real party in interest Nina Salarno Besselman filed a petition for writ of mandate arguing that the ballot label and ballot title and summary were misleading, partial, and false because they suggest parole is being restricted for non-violent offenders, when in actuality the initiative would restrict parole for those who commit violent offenses, as revised by the measure. Real party further argued that the ballot label and ballot title and summary would convey to a voter that a person convicted of one of the enumerated offenses, such as felony assault with a deadly weapon, is a “non-violent offender,” which would conflict with the voters’ common understanding of the word “violent.”

In opposition, the Attorney General argued the ballot title and summary and ballot label were neither misleading nor biased, and that respondent court’s authority was limited by statutory printing and distribution guidelines. He further argued that the Department of Corrections and Rehabilitation had issued regulations defining the term non-violent offender and that using that definition, the ballot title and summary and ballot label accurately reflect that certain non-violent offenders, as currently defined, would no longer be eligible for parole under Proposition 20. Thus, the Attorney General argued, based on the considerable deference he is afforded under the scheme in drafting ballot titles and summaries and ballot labels, that respondent court should not grant the relief sought in the petition for writ of mandate.

Following a hearing on August 7, 2020, respondent court found: “When read together, the all-caps title and the plain-text summary indicate that certain offenses providing eligibility for a non-violent offender parole program will no longer provide eligibility. But nothing in the text indicates that the subject offenses will no longer provide eligibility because they will be designated violent rather than non-violent. As a result, the current text may be understood to indicate that Proposition 20 would restrict the parole program to a subset of non-violent offenders. That does not accurately reflect what the measure would do.” The court also noted that in his opposition, the Attorney General concedes Prop. 20 “would make individuals convicted of crimes previously considered ‘non-violent’ ineligible for the early parole program.” Thus, the court ordered the language “RESTRICTS PAROLE FOR NON-VIOLENT OFFENDERS” to be modified to read “RESTRICTS PAROLE FOR CERTAIN OFFENSES PREVIOUSLY CONSIDERED TO BE NON-VIOLENT” in both the ballot title and summary and the ballot label, and entered judgment accordingly.

The next court day, the Attorney General filed a petition for writ of mandate in this court seeking to overturn, or at a minimum further modify, respondent court’s order altering the language as quoted above.

DISCUSSION

For every measure that will appear on the ballot, the Attorney General is obliged by statute to prepare a ballot title and summary in not more than 100 words that “give[s] a true and impartial statement of the purpose of the measure in such language that the ballot title and summary shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.” (Elec. Code, §§ 9050, 9051.) The Attorney General must also draft a ballot label containing no more than 75 words, which is to be a condensed version of the ballot title and summary. (Elec. Code, § 9051, subd. (b).) “In preparing the ballot title and summary and the ballot label, the Attorney General is afforded considerable latitude.” (Yes on 25, Citizens for an On-Time Budget v. Superior Court, supra, 189 Cal.App.4th at p. 1452.) Moreover, “‘all legitimate presumptions should be indulged in favor of the propriety of the attorney-general’s actions.’ ” (Id. at p. 1453.) And, “ ‘only in a clear case should a title [and summary] so prepared be held insufficient.’ ” (Ibid; see also Elec. Code, § 9092.)

“However, a ballot [title and] summary cannot be misleading. [Citation.] It must reasonably inform the voter of the character and real purpose of the proposed measure. [Citation.]” (Tinsley v. Superior Court (1983) 150 Cal.App.3d 90, 108.) “ ‘The main purpose of these requirements [to draft a ballot title and summary and ballot label] is to avoid misleading the public with inaccurate information.’ ” (Id. at p. 1452, citing Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243.) Neither can we permit ballot materials to be presented to the voters where they leave the voters “as much in the dark regarding the real purpose of the proposed measure after reading the [ballot title and summary and ballot label] as [they were] before [they] had read it.” (Boyd v. Jordan (1934) 1 Cal.2d 468, 472.)

Here, respondent court found “non-violent offenders” to be misleading. The Attorney General argues it is not because “there is an existing ‘parole program’ for ‘non-violent offenders,’ and Proposition 20 would ‘restrict’ and ‘limit[] access’ to that program by: (1) ‘eliminating eligibility for certain offenses’ and (2) ‘[c]hang[ing] standards and requirements governing parole decisions under this program.” Thus, the ballot title and summary and ballot label, he contends, accurately inform voters Proposition 20 would limit or restrict the existing parole program for non-violent offenders approved by voters in 2016. He claims that when read together, the ballot title and summary sufficiently convey the chief point and purpose of the measure, i.e, that some offenders would no longer have access to the existing, voter-approved parole program for non-violent offenders because their offenses would no longer be eligible.

The Attorney General’s argument relies heavily on the presumption “that voters are aware of existing laws at the time a voter initiative is adopted.” (Santos v. Brown (2015) 238 Cal.App.4th 398, 410.) However, that presumption is not conclusive. (Ibid.) Indeed, “[a]lthough not deciding the validity of the legislative presumption as it applies to voter initiatives, the Supreme Court has acknowledged there exists qualitative and quantitative differences between the state of knowledge of informed voters and that of elected members of the Legislature.” (McLaughlin v. State Bd. of Education (1999) 75 Cal.App.4th 196, 214, citing People v. Davenport (1985) 41 Cal.3d 247, 263, fn. 6.)

As described above, nothing in Proposition 57 as approved by the voters in 2016 defined the term non-violent offender. Indeed, that term appears nowhere in the Proposition itself; rather, Proposition 57 referred to persons convicted of non-violent offenses. (See Cal. Const., art. I, § 32.) And even the Department of Corrections and Rehabilitation, which was charged with implementing regulations to effectuate Proposition 57, has struggled to define that term. (See, e.g., Alliance for Constitutional Sex Offense Laws v. Dept. of Corrections & Rehabilitation, supra, 45 Cal.App.5th at pp. 229-231, review granted May 27, 2020, S261362; In re Gadlin, supra, 31 Cal.App.5th at pp. 789-790, review granted May 15, 2019, S254599; In re Mohammad, supra, 42 Cal.App.5th at pp. 726-727, review granted Feb 19, 2020, S259999.) Indeed, as the Attorney General argued at the hearing on the petition for writ of mandate in the trial court, “there could be potentially understood different definitions of what ‘violent’ means. Because ‘violent’ has a specific meaning in the statute under the Penal Code, whereas violent maybe . . . under what the lay person may understand is different. And so there’s some tension and confusion that could mislead voters, depending on the context and how it’s being used.”

Thus, the trial court did not err in concluding that voters would be misled by reference to “non-violent offenders” in the ballot title and in the ballot label. We reach the same conclusion considering the lack of any language in the remainder of the ballot title and summary to convey that the parole restriction would be based on a reclassification of offenses as violent or referring in any way to the list of violent felonies codified in Penal Code section 667.5, subdivision (c). The ballot title and summary and ballot label as drafted by the Attorney General suggest that some portion of a group of undefined non-violent offenders who are serving sentences for certain undefined offenses would no longer be eligible for parole. This description does not accurately reflect the “chief purpose and points” of the initiative measure. (Tinsley v. Superior Court, supra, 150 Cal.App.3d at p. 108.) Accordingly, we conclude respondent court did not err in finding the ballot title and summary and ballot label to be misleading, and to order that the phrase “RESTRICTS PAROLE FOR NON-VIOLENT OFFENDERS” be amended.

Our inquiry does not end there, however. The Attorney General further argues that the language ordered by respondent court is also misleading. In particular, the Attorney General argues that placing the phrase in future tense, “previously considered” rather than “currently considered” will be confusing, especially when juxtaposed with another portion stating that it “authorizes felony sentences for certain offenses currently treated only as misdemeanors.” We agree.

As revised by respondent court, the first two sentences of the ballot title and ballot label would read, “RESTRICTS PAROLE FOR CERTAIN OFFENSES PREVIOUSLY CONSIDERED TO BE NON-VIOLENT. AUTHORIZES FELONY SENTENCES FOR CERTAIN OFFENSES CURRENTLY TREATED ONLY AS MISDEMEANORS.” Without delving into the metaphysical properties of time and space, these two consecutive sentences place the reader simultaneously in a future in which the initiative has passed and a present in which the initiative is still pending, respectively. Or, if we construe both as being set in a present in which the initiative is still pending, it reads as if the offenses for which parole will be restricted were considered non-violent at some time in the past but that they are not presently considered non-violent. That is not an accurate statement of law or fact. Accordingly, to avoid misleading the voters, we will direct, as requested by the Attorney General, that the word “previously” in the first sentence of the ballot title and summary and ballot label be replaced with “currently.”

DISPOSITION

Petitioners have sought the issuance of a peremptory writ in the first instance, and real parties in interest have filed opposition thereto. The procedural requirements delineated in Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d 171 have been satisfied, and we are authorized to issue the requested relief.

Let a peremptory writ of mandate issue vacating the superior court’s August 7, 2020, judgment and peremptory writ of mandate and requiring the superior court to enter a new and different decision as described herein. The superior court’s decision shall require the ballot title and summary and ballot label for Proposition 20 be revised to strike from the title and label “RESTRICT PAROLE FOR NON-VIOLENT OFFENDERS” and to replace it with “RESTRICT PAROLE FOR CERTAIN OFFENSES CURRRENTLY CONSIDERED TO BE NON-VIOLENT.” The revised versions of the ballot title and summary and ballot label to be delivered by the Secretary of State to the State Printer for inclusion on the November ballot are attached as appendix A to this opinion. This decision is final forthwith as to this court. (See Cal. Rules of Court, rule 8.490(b)(2).)

The temporary stay order issued by this court on August 10, 2020, is vacated, and the following stay order shall remain in effect until this decision is final for purposes of review: The Secretary of State shall not cause to be submitted to the State Printer (nor shall the State Printer use) any language for ballot title and summary or the ballot label for Proposition 20 except for the language included in Appendix A to this opinion.

The parties shall bear their own costs in this original proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(B).)

HULL, Acting P.J.

We concur:

DUARTE, J.

HOCH, J.

APPENDIX A

BALLOT TITLE AND SUMMARY

RESTRICTS PAROLE FOR CERTAIN OFFENSES CURRENTLY CONSIDERED TO BE NON-VIOLENT. AUTHORIZES FELONY SENTENCES FOR CERTAIN OFFENSES CURRENTLY TREATED ONLY AS MISDEMEANORS. INITIATIVE STATUTE.

• Limits access to parole program established for non-violent offenders who have completed the full term of their primary offense by eliminating eligibility for certain offenses.
•

• Changes standards and requirements governing parole decisions under this program.
•

• Authorizes felony charges for specific theft crimes currently chargeable only as misdemeanors, including some theft crimes where the value is between $250 and $950.
•

• Requires persons convicted of specified misdemeanors to submit to collection of DNA samples for state database.
•

Summary of Legislative Analyst’s Estimate of Net State and Local Government Fiscal Impact:

• Increased state and local correctional costs likely in the tens of millions of dollars annually, primarily due to increases in county jail populations and levels of community supervision.
•

• Increased state and local court-related costs that could be more than several million dollars annually.
•

• Increased state and local law enforcement costs not likely to be more than few million dollars annually related to collecting and processing DNA samples.
•
BALLOT LABEL

RESTRICTS PAROLE FOR CERTAIN OFFENSES CURRENTLY CONSIDERED TO BE NON-VIOLENT. AUTHORIZES FELONY SENTENCES FOR CERTAIN OFFENSES CURRENTLY TREATED ONLY AS MISDEMEANORS. INITIATIVE STATUTE. Limits access to parole program established for non-violent offenders who have completed the full term of their primary offense by eliminating eligibility for certain offenses. Fiscal Impact: Increase in state and local correctional, court, and law enforcement costs likely in the tens of millions of dollars annually, depending on implementation.