In re Alve

Filed 5/17/06  In re Alve CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from an order of the Superior Court of Imperial County, Raymond A. Cota, Judge.  Affirmed in part; reversed in part.

            The record in this case discloses that petitioner was dismissed from a disciplinary hearing at which he was charged with disobeying a lawful order.  Petitioner was dismissed from the hearing after he argued that the hearing officer, against whom he had recently filed an emergency appeal, was biased against him.  Following petitioner's dismissal from the hearing, the hearing was conducted in petitioner's absence and adverse findings were made against him.

            There is nothing in the record which justified petitioner's dismissal from the disciplinary hearing.  Moreover, the record supports the conclusion that the hearing officer did not qualify as a disinterested decisionmaker.  Thus we affirm the trial court's order requiring that respondent warden set aside the adverse findings.

            However, in addition to ordering that the findings be set aside, the trial court ordered that petitioner's record be expunged of any reference to the violation and that all rights and privileges which petitioner lost as a result of the rules violation be restored.  As to this aspect of the trial court's order, we reverse.  Because the face of the record does not relieve petitioner from culpability for the alleged rules violation, the trial court should have remanded the matter to the warden with directions that an unbiased hearing officer conduct a disciplinary hearing at which petitioner is present and permitted to question witnesses under the supervision of the hearing officer.

SUMMARY

            The petitioner in this habeas corpus proceeding, Alejandro Alve, is a prisoner at Calipatria State Prison (Calipatria).^[1]  Initially, he filed an administrative complaint in which he challenged procedures used in conducting strip searches of prisoners returning from work assignments at the Prison Industries Authority (PIA).  According to Alve, immediately following his administrative complaint, he was subjected to retaliatory threats from prison guards who had conducted the strip searches.  In particular, on the day petitioner filed his administrative complaint, a guard filed a rules violation report which alleged petitioner refused to enter the strip search area and encouraged other inmates to also refuse to enter the area.

            In response to the threats of retaliation, Alve complained to correctional Lieutenant Nelson.  Lieutenant Nelson told petitioner that if he did not like the searches, Alve should get another job.  According to Alve, Lieutenant Nelson then told guards at his building to keep Alve in his cell and to not let him have recreation time.  Alve then filed an emergency administrative appeal in which he sought protection from retaliation.  The emergency appeal set forth Alve's complaint to Lieutenant Nelson, the lieutenant's response and the lieutenant's order keeping Alve in his cell.  Alve alleged that Lieutenant Nelson's conduct was part of the effort to retaliate against him for filing the initial administrative complaint.

            A disciplinary hearing on the rules violation was conducted 11 days after Alve filed his emergency appeal.  The hearing was conducted by Lieutenant Nelson who was the subject of the emergency appeal.  Alve objected to appearing before Lieutenant Nelson in light of the allegations Alve had made against him.  Lieutenant Nelson responded to petitioner's objection by dismissing Alve from the disciplinary hearing and conducting the hearing in Alve's absence.  Following the hearing, Lieutenant Nelson sustained the disciplinary allegations and imposed sanctions on Alve.  Alve filed an administrative appeal and on appeal a deputy warden upheld the disciplinary findings and sanctions.

            Alve filed a petition for a writ of habeas corpus in which he alleged that his constitutional and statutory rights had been violated.  The trial court issued an order to show cause to the warden at Calipatria.  Although the warden was given one extension of time, the warden failed to file a timely return.  The trial court found Alve's petition and exhibits established a prima facie case for relief and in light of the warden's failure to file a return, granted Alve's petition.  (See In re Serrano (1995) 10 Cal.4th 447, 455-456.)  The trial court ordered that Lieutenant Nelson's officer's findings be set aside.  In addition, the trial court ordered that any record of the findings be expunged and that any rights or privileges Alve lost be restored.

            The warden filed a timely notice of appeal.

DISCUSSION

I

            Prison disciplinary proceedings are governed by Penal Code^[2] section 2932.  Section 2932, subdivision (c)(4), states that at any prison disciplinary proceeding " [t]he prisoner has the right, under the direction of the person conducting the hearing, to question all witnesses."   In addition to the rights conferred by section 2932, prisoners facing disciplinary proceedings retain basic due process rights.  " Although a prisoner's rights are diminished, the prisoner is not wholly stripped of constitutional protections when imprisoned for crime.  [Citation.]  Prisoners retain rights under the due process clause, including the right to be heard by an impartial disciplinary committee.  [Citation.]  However, prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.  [Citation.]"   (People v. Superior Court (Hamilton) (1991) 230 Cal.App.3d 1592, 1595 (Hamilton).) 

            Here, the deputy warden's decision upholding the disciplinary findings and sanctions contains the following statement:  " You requested witnesses at the time of the hearing.  This request was granted by the SHO[Senior Hearing Officer].

            " The SHO notes that you refused to cooperate within the parameters of the hearing procedures by attempting to litigate a 602 [emergency appeal].  The SHO therefore dismissed you and continued the hearing in absentia."   (Italics added.)

            In light of this statement there can be no dispute that Alve was involuntarily removed from the hearing and prevented from exercising his rights under section 2932, subdivision (c)(4).  We can certainly accept the notion that in some circumstances an inmate's behavior may be so disruptive that the inmate has effectively waived his right to be present and examine witnesses.  Here, however, nothing in the record or in the arguments presented by the warden on appeal suggests the objection Alve made to Lieutenant Nelson's role as the hearing officer prevented Alve from nonetheless participating at the hearing and asking questions with respect to the allegation that he disobeyed an order.  In light of this violation of Alve's rights under section 2932, subdivision (c)(4), as well as fundamental precepts of due process, Alve was entitled to relief from the trial court.  (See Hamilton, supra, 230 Cal.App.3d at p. 1595.)

II

            The record here also supports Alve's contention he was entitled to relief on the grounds Lieutenant Nelson was not an impartial decisionmaker.

            The court in Hamilton set forth the authorities which protect an inmate's right to impartial disciplinary tribunals.  " Penal Code section 2932, subdivision (c)(1)(A) requires that a prison disciplinary hearing 'be conducted by an individual who shall be independent of the case . . . .'  The Department of Corrections has promulgated California Code of Regulations, title 15, section 3320, subdivision (g) to promote this requirement. That regulation provides:  [¶] 'Employees who reported the rule violation, or who supplied supplemental reports to the rule violation report, or who observed the alleged violation, or investigated the alleged misbehavior or assisted the inmate in preparing for the hearing, or for any other reason have a predetermined belief that the inmate is guilty or innocent will not sit as a fact finder in a disciplinary hearing nor be present while the fact finders are conducting deliberations to decide guilt or innocence and the appropriate disposition if the inmate is found guilty.' "   (Hamilton, supra, 230 Cal.App.3d at p. 1595.)  In addition to these statutory and regulatory requirements, due process prevents prison staff who have " ' " participated or will participate in the case as an investigating or reviewing officer, or either is a witness or has personal knowledge of material facts related to the involvement of the accused inmate in the specific alleged infraction (or is otherwise personally interested in the outcome of the disciplinary proceeding)" ' " from acting as disciplinary hearing officers.  (Id. at p. 1596.)

            In Hamilton the prisoner was initially charged by a correctional officer with battery on the officer.  A correctional lieutenant then reviewed the charge as required by applicable regulations and changed the charge to " physical assault on staff" and classified the charge as a " Serious -- Division 'B' " rule violation.  The same lieutenant then presided over the prisoner's disciplinary hearing and found the prisoner guilty of the assault charge.  The court found that the lieutenant's role in reviewing the charge prevented her from participating as a hearing officer.  " This review put [the lieutenant] in a prosecutorial role, i.e., a decisionmaking role in connection with the charging.  Also, by making corrections to the rules violation report, [the lieutenant] became involved in reporting the rule violation.  Such an active role in preparing the rules violation report must be characterized as a substantial involvement in the circumstances underlying the charge."   (Hamilton, supra, 230 Cal.App.3d at p. 1597, italics added.)

            Here, the record shows that Lieutenant Nelson had a similar involvement in circumstances underlying the charges against Alve.  In support of his petition, Alve attached the emergency appeal he filed following his conversation with Lieutenant Nelson about the retaliation he was experiencing.  In his emergency appeal, Alve stated that, after he complained to Lieutenant Nelson about the retaliation, Lieutenant Nelson told him:  " 'If you don't want to strip, quit your job and get another one.' "   According to Alve, he then asked Lieutenant Nelson if he had read the initial appeal he had filed and Lieutenant Nelson responded:  " 'I did not read it, and I don't need to.  I was a Work-Change Officer before.  I know the rules. . . .  You're not crossing to work.  You're dangerous.' "   Then, according to Alve, later the same morning, Lieutenant Nelson " phoned the Building Staff and told them to keep me in the cell and not to let me go out to the yard during Yard-Time Recreation Time."

            At the disciplinary hearing, Alve attempted to assert retaliation as a defense.  According to the report Lieutenant Nelson prepared, before Alve was removed from the disciplinary proceeding, he made the following statement:  " The [rules violation report] was issued as a Retaliation due to a group appeal submitted regarding the manner in which the body inspections were conducted by staff at B work change area.  As a consequence of having petioned (sic) staff conduct the body inspections with the door closed, Retaliation followed"

            In sum, the record here discloses Alve had previously accused Lieutenant Nelson of participating in the retaliation he was asserting as a defense to the misconduct charge.  Although the trial court did not have to accept in its entirety Alve's characterization of Nelson's motives, given Lieutenant Nelson's alleged participation in the retaliation Alve claimed he suffered and Alve's retaliation defense, Lieutenant Nelson was not an appropriate hearing officer.  (See Hamilton, supra, 230 Cal.App.3d at p. 1597.)

III

            Although the record supports the trial court's determination Alve was entitled to relief from the findings and sanctions imposed by the warden, it does not support the relief the trial court granted.  Neither Alve's removal from the hearing nor Lieutenant Nelson's role as hearing officer absolved Alve of culpability for the underlying offense.  As the warden points out, where, as here, the trial court has found a violation of a prisoner's procedural rights, the appropriate remedy is to order a rehearing.  (See In re Rosenkrantz (2002) 29 Cal.4th 616, 658; Raditch v. United States (9th Cir. 1991) 929 F.2d 478, 482; Bridge v. United States Parole Commission (3rd Cir. 1992) 981 F.2d 97, 105.)  Until the warden has had an opportunity to conduct a new hearing, that portion of the trial court's order which orders the warden expunge any record of the disciplinary findings be expunged and that any rights or privileges Alve lost be restored is premature.

DISPOSITION

            The trial court's order granting a writ is affirmed insofar as it directs the warden to set aside the department's adverse disciplinary finding; however, the order is reversed insofar as it directs that petitioner's records be expunged and sentence credits and privileges be restored and the trial court is directed to enter a new order remanding the matter to the warden for a new disciplinary hearing before an unbiased hearing officer at which petitioner is to be afforded the opportunity to appear and, under the direction of the person conducting the hearing, question all witnesses.

BENKE, Acting P. J.

WE CONCUR:

  HUFFMAN, J.

  McINTYRE, J.

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^[1]           Alve is serving an indeterminate life term for two first degree murders, escape from custody and possession of weapons by a prisoner.

^[2]           All further statutory references are to the Penal Code unless otherwise specified.