In re Bean
Filed 9/4/13 In re Bean 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NOT
TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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)
In re ANTHONY BEAN
on
Habeas Corpus.
C072465
(Super.
Ct. No. 11F07120)
ORDER
MODIFYING OPINION AND DENYING REHEARING
[CHANGE
IN JUDGMENT]
THE
COURT:
It
is ordered that the opinion filed herein on August
8, 2013,
be modified as follows:
On page 21, the phrase “remove all
documents related to the validation from petitioner’s prison file†is deleted
from the “Disposition†so the disposition now reads:
The Department of
Corrections and Rehabilitation is directed to vacate petitioner’s 2010 gang
validation decision, which validated petitioner as a member of the Black
Guerrilla Family (BGF) prison gang, and is further directed to (1) report the
expungement of petitioner’s 2010 validation to all gang-related enforcement
databases and clearinghouses to which the original validation was reported
previously and (2) cease housing petitioner based on the 2010 gang validation.
This
modification changes the judgment.
Respondent’s
petition for rehearing is denied.
BY
THE COURT:
BLEASE ,
Acting P. J.
BUTZ ,
J.
MURRAY ,
J.
Filed 8/8/13 (unmodified version)
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)
In re ANTHONY BEAN
on Habeas Corpus.
C072465
(Super. Ct. No. 11F07120)
petition challenges a decision of California’s
Department of Corrections and Rehabilitation (CDCR) validating petitioner,
prison inmate Anthony Bean, as an active member of the Black Guerrilla Family
(BGF) prison gang. Prison regulations
provide that a gang validation must be premised on three independent sources of
information (“source itemsâ€) . (
(c)(3).)
two of the source items fail to meet the requirements of CDCR’s
regulations. Specifically, one source
item, a report from the “debriefing†of a prison gang member, fails to refer to
“specific gang related acts or conduct†by petitioner, as required by
in petitioner’s possession, is not supported by prison staff’s articulation of
why, “based on either the explicit or coded content,†the written material is
reliable evidence of association or membership with the gang, as required by
petitioner’s gang validation decision and to cease housing him based on that
validation.
CDCR validated petitioner as a
member of the BGF in 2010. As a
consequence of that validation, petitioner has been transferred from California
State Prison, Sacramento,
to the security housing unit (SHU) at Pelican Bay State Prison.
Prison gang investigators
recommended that petitioner be validated as a BGF prison gang member based on
five source items. Although CDCR’s gang
validation reviewer concluded that all five items “meet validation
requirements,†the reviewer indicated that one of the items (a “Confidential
128b dated 08/16/10â€) was considered to be a support document to the first
source item (a “Confidential CDCR 128b dated 08/23/10â€). Accordingly, respondent, in the informal
opposition and in the return filed in this court, has taken the position that
petitioner’s gang validation is supported by four source items (i.e., the four
source items other than the “Confidential 128b dated 08/16/10â€). We accept respondent’s concession that
petitioner’s validation is based on only four source items, which do not
include the “Confidential 128b dated 08/16/10†as an independent source item.
supporting the validation decision in the discussion portion of this opinion.
Petitioner unsuccessfully challenged
his gang validation by filing an administrative appeal. Petitioner then sought relief by filing a
petition for writ of habeas corpus in the superior court. The superior court denied the petition on the
ground that petitioner’s claims are not cognizable on habeas corpus.
Petitioner then filed a petition for
writ of habeas corpus in this court. We
obtained the confidential source item documents before issuing an order to show
cause returnable before this court and appointing counsel to represent
petitioner. We are now in receipt of
respondent’s return and petitioner’s traverse.
Legal Background
A. Validation Decision Requirements
“Prison
regulations promulgated by [CDCR] set forth the procedures and substantive
requirements for validating an inmate as a member or associate of a prison
gang. Because gangs ‘present a serious
threat to the safety and security of California
prisons’ (Cal. Code Regs., tit. 15, § 3023, subd.
(b)), validation of an inmate as a gang member or associate can result
in the inmate’s placement in a security housing unit (SHU).†(In re Cabrera (2012)
55 Cal.4th 683, 685.)
“A gang ‘member’ is described as ‘an inmate/parolee or
any person who has been accepted into membership by a gang.’ (§
subd. (c)(3).) The validation of
either a gang member or associate requires the recognition of three reliable
source items indicative of active association with the gang, and at least one
of those sources must constitute a direct link to a current or former validated
gang member or associate. (See [
[725,] 730; see also §§ 3378, subd. (c)(2), (3), (4), (8), 3321.)†(In re Fernandez (2013)
212 Cal.App.4th 1199, 1205, fn. omitted.)
“S
3378 lists 13 different categories of source items indicative of
association with validated gang affiliates, including an inmate’s admission of
involvement with the gang, tattoos and symbols distinctive to the gang, written
material or communications evidencing gang activity, the inmate’s association with
validated gang affiliates, and offenses reflecting gang affiliation. (§
subd. (c)(8).)†(
Cabrera, supra, 55 Cal.4th at p. 689.) In this case, respondent asserts petitioner’s
validation is based on just two of the 13 source item categories, i.e.,
“debriefing reports†pursuant to subdivision (c)(8)(M) of s
to subdivision (c)(8)(C) of section 3378.
B. Standard of Review
“The ‘some evidence’ standard is the constitutional test
that applies to court review of certain prison administrative decisions,
including the gang validation decisions at issue here as well as other
decisions such as parole or prison discipline affecting an inmate’s
credits. ([In re] Furnace [(2010)]
445, 454 [86 L.Ed.2d 356, 364, 105 S.Ct. 2768]; [In re] Efstathiou, supra,
200 Cal.App.4th at p. 733.) In applying that standard in the gang
validation context, the court must still consider whether the requisite
findings have been established consistent with the administrative
regulations. There must be three
independent sources of evidence supporting the gang validation decision, at
least one of which provides direct evidence of gang activity. (Cf. [
pp. 659–663 [reviewing gang validation decision]; see
supra, at p. 730; In re Sampson (2011)
197 Cal.App.4th 1234, 1242–1243 [130 Cal.Rptr.3d 39].)†(I
212 Cal.App.4th at p. 1207.)
“Court review of a gang validation decision, like review
of other administrative decisions by prison staff, is nevertheless
deferential. ‘The existence of a
nonincriminating explanation for a source item . . . is irrelevant to
this court’s “some evidence†review. Neither
is it appropriate for this court to weigh conflicting evidence.’ ([In re]
supra, 185 Cal.App.4th at p. 663.) ‘The issue is simply whether the evidence in
question permits a court to conclude that the administrator had reasons for his
or her decision.’ (
at p. 659.) Nevertheless,
the state Supreme Court has cautioned in applying the some evidence standard in
the related administrative context of parole decisions that the decision ‘must
be supported by some evidence, not
merely by a hunch or intuition.’ (
1181, 1213 [82 Cal.Rptr.3d 169, 190 P.3d 535].)†(I
212 Cal.App.4th at p. 1207.)
II. Petitioner’s Contentions are
Cognizable on Habeas Corpus
We must first address respondent’s contention
that habeas corpus does not provide a remedy for petitioner’s claims that CDCR
failed to comply with its own regulation regarding validation of gang members
and that CDCR’s gang validation decision violated petitioner’s right to due
process.
A. Habeas Corpus Lies to Remedy CDCR’s Violation
of its Gang Validation Regulation
As we understand the contention,
respondent asserts habeas corpus does not lie as a remedy for respondent’s
failure to comply with its own prison gang regulation because gang validation
is part of the prison classification process, which lies within CDCR’s
responsibility, so that subjecting that process to judicial review would expand
“the judiciary’s traditional role beyond that of protecting prisoners from
decisions that violate the prisoner’s constitutional or statutory rights.†Respondent cites no apposite authority in
support of this novel contention, and ignores apposite authority to the
contrary.
In California state courts, habeas
corpus lies to vindicate not only statutory or constitutional rights, but also
violations of administrative regulations.
“Historically, the function of the writ of habeas corpus was to
‘releas[e] a person imprisoned or restrained as a result of a void proceeding
or jurisdictional defect in the imprisoning authority.’ [Citations.]
The writ has been expanded to address wrongful imprisonment even in
situations in which jurisdiction is not lacking. [Citation.]
[¶] Additionally, ‘habeas corpus
may be sought by one lawfully in custody for the purpose of vindicating rights
to which he is entitled in confinement.’
(I
932 [103 Cal.Rptr. 849, 500 P.2d 873]; see, e.g.,
387 [158 Cal.Rptr. 384, 599 P.2d 690] [challenging lengthy administrative
and disciplinary segregation pending rules violation hearing];
682 [87 Cal.Rptr. 504, 470 P.2d 640] [addressing access to courts
and conditions of confinement]; In re Riddle (1962)
57 Cal.2d 848, 851 [22 Cal.Rptr. 472, 372 P.2d 304] [alleging
cruelty by prison guards].)
constitutional violations, but also violations of administrative regulations. (See, e.g.,
Dannenberg (2005) 34 Cal.4th 1061 [3 Cal.Rptr.3d 417, 104 P.3d
783] [challenging Board of Prison Terms’s failure to apply its own
‘matrix’ regulations to parole-eligible inmates];
Van Geldern (1971) 5 Cal.3d 832 [97 Cal.Rptr. 698, 489 P.2d 578]
[challenging regulation requiring inmate-authors to relinquish 25 percent of
royalties from published writings].)†(
54 Cal.4th 293, 309, fn. 10, italics added.)
“P
Code section 1473, subdivision (a), provides: ‘Every person unlawfully
imprisoned or restrained of his liberty, under any pretense whatever, may
prosecute a writ of habeas corpus, to inquire into the cause of such
imprisonment or restraint.’
reads: ‘Nothing in this section shall be construed as limiting the grounds for
which a writ of habeas corpus may be prosecuted or as precluding the use of any
other remedies.’ The function of habeas
corpus ‘has evolved from the traditional remedy for release of a prisoner to
include a declaration of rights of a prisoner not entitled to outright
release. [Citations.] The writ of habeas corpus may be used to
secure fundamental rights of a person lawfully in custody.’ (In re Brindle (1979)
91 Cal.App.3d 660, 669 [154 Cal.Rptr. 563]; see
[at p.] 851 [22 Cal.Rptr.
472, 372 P.2d 304] [writ of habeas corpus can be used to protect
‘fundamental basic rights’ of prisoners].)
More recent cases have dropped the limitation to ‘fundamental’ rights,
stating that the writ of habeas corpus can be used by inmates to address a
deprivation of their ‘rights’ while in confinement. (See
Arias (1986) 42 Cal.3d 667, 678 [230 Cal.Rptr. 505, 725 P.2d 664],
abrogated by statute on another point as recognized in
v. Department of Corrections (2001) 25 Cal.4th 117, 130
[105 Cal.Rptr.2d 46, 18 P.3d 1198];
Davis[, supra,]
384, 599 P.2d 690].)†(
892, 901-902 [habeas corpus lies as to inmate’s claim of violation of statutory
rights under the Religious Land Use and Institutionalized Persons Act of 2000
(42 U.S.C. § 2000cc et seq.)].)
Respondent’s contention ignores the
nearly century-long recognition that, in California state courts, habeas corpus
lies to compel custodial officials’ compliance with state law implicating
conditions of confinement as well as to correct deprivations of constitutional
rights. As the Court of Appeal stated in
1920: “We think that a person may be
said to be unlawfully ‘restrained of his liberty,’ so as to be entitled to the
writ of habeas corpus, when, though unlawfully in custody, he is deprived of
some right to which, even in his confinement, he is lawfully entitled under the
constitution or laws of this state or the United States, the deprivation
whereof serves to make his imprisonment more onerous than the law allows, or
curtails, to a greater extent than the law permits even in his confinement, his
freedom to go when and where he likes.â€
(I
801, italics omitted; see also
Ferguson (1961) 55 Cal.2d 663, 669 [quoting
with approval, and adding: “It thus
appears that a writ of habeas corpus may be sought to inquire into alleged
illegal restraints upon a prisoner’s activities which are not related to the
validity of the judgment or judgments of incarceration, but which relate
‘solely to a matter of prison administration.’ â€].)
Accordingly, the courts have
regularly examined, via habeas corpus, California prison inmates’ claims of
violation of statutory or regulatory law pertaining to conditions of prison
confinement. (See, e.g.,
Cabrera, supra, 55 Cal.4th 683 [evaluating inmate’s claim that CDCR
misapplied and misinterpreted section
3378, the prison gang validation regulation];
Jenkins (2010) 50 Cal.4th 1167, 1182 [evaluating inmate’s claim
that CDCR violated prison regulation in making a classification decision];
[evaluating inmate’s claim of statutory entitlement to credit for performing a
heroic act in prison]; In re Van Geldern, supra,
5 Cal.3d 832 [evaluating inmate’s claim that a CDCR rule regarding
royalty profits from published writings was inconsistent with state law];
Cal.App.4th 1141 [evaluating inmate’s claim that prison rule regarding obscenity
was inconsistent with CDCR regulation regarding obscenity];
Fernandez, supra, 212 Cal.App.4th 1199 [evaluating inmates’ claim that
CDCR violated section 3378 by validating
them as gang members without evidence of three source items];
185 Cal.App.4th 649 [same];
Bode (1999) 74 Cal.App.4th 1002 [evaluating inmate’s claim of
entitlement to parole hearing transcript under state law];
1004 [declaring inmate’s statutory right to file habeas corpus petition
without complying with vexatious litigant statute];
Hamilton (1996) 41 Cal.App.4th 926 [evaluating inmate’s claim
that CDCR violated state law regarding surcharges charged inmates on their
purchases of handicraft materials].)
Moreover, the distinction that
respondent would have us draw between statutory and regulatory rights makes no
logical sense. As the Supreme Court
explained in the context of CDCR’s gang validation regulation: “Section
3378 (the regulation at issue here) is a quasi-legislative rule promulgated by
the CDCR to identify and manage inmates with a prison gang affiliation. Because the CDCR, like any agency granted
this sort of substantive lawmaking power, is ‘truly “making law,†[its]
quasi-legislative rules have the dignity of statutes.’ †(I
p. 688.)
Finally, we reject respondent’s
reliance on I
290 (Johnson). There, the court denied an inmate’s claim
that his disciplinary removal from his position as a prison chaplain clerk
violated his right to due process. (
at pp. 293-297.) Because the
inmate’s contention was premised on a due process violation, and the court
rejected that contention, the court properly denied the habeas corpus
petition. However, to the extent that
dicta in J
may not challenge the prison’s violation of an administrative regulation via
habeas corpus, we disagree for the reasons stated above.
The effect of s
validating petitioner as a prison gang member unless there is evidence of three
source items indicating petitioner’s gang membership. Petitioner’s claim that evidence of three
source items is lacking, i.e., that respondent has violated s
writ of habeas corpus.
B. Habeas Corpus Lies to Remedy a Due Process
Violation Resulting from Gang
Validation Lacking Evidence
Respondent alternatively contends
that gang validation does not result in a due process violation because a
validated prison gang member will not necessarily be housed in the SHU, and
even if the inmate is assigned to the SHU due process requires only notice and
an opportunity to be heard and does not require judicial review. Respondent’s contention was recently rejected
in In
re Cabrera (2013) 216 Cal.App.4th 1522.
Moreover, respondent’s contention
runs afoul of authority holding that an unsupported CDCR gang validation
decision violates an inmate’s right to due process and is accordingly subject
to judicial review under the “some evidence†standard of review. (See, e.g., In re Cabrera, supra,
55 Cal.4th at p. 692 [“[w]hether the evidence is sufficient, under
the regulation as properly construed, to uphold the validation of Cabrera as a
gang associate, and whether the validation and placement in the SHU otherwise
violates any of Cabrera’s rights, is for the Court of Appeal to decide on
remand in the first instanceâ€]; In re Villa (2013)
214 Cal.App.4th 954, 962 [due process is satisfied if a prison gang
validation decision is supported by some evidence]; In re Fernandez, supra,
212 Cal.App.4th at p. 1207 [CDCR did not dispute that due process
compels court review of a gang validation decision pursuant to the “some
evidence†standard]; I
185 Cal.App.4th at p. 659 [due process satisfied if gang
validation decision is not “arbitrary, capricious, irrational, or an abuse of
. . . discretion,†i.e., if it is supported by “some evidenceâ€]; see
also C
F.3d 1304, 1314 [“Due Process guarantees [an inmate] that the evidence
used to validate him [as a prison gang member] meet the ‘some evidence’
evidentiary standardâ€].)
In any event, we reject the premises
of respondent’s argument. First,
although a gang validation decision does not necessarily result in the inmate’s
transfer to the SHU (see § 3378, subd. (d)), there
is no dispute that in this case petitioner has been assigned to the Pelican Bay
State Prison SHU, based on his validation as a BGF prison gang member.
Second, respondent’s contention that
due process requires only notice and a written decision in the context of gang
validation decisions, and precludes judicial review via habeas corpus, is
premised on respondent’s misunderstanding of
v. Austin (2005) 545 U.S. 209 (Wilkinson). There, the United States Supreme Court held
that an inmate’s placement in O
“Supermax†prison imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life, and consequently
gives rise to a liberty interest protected by the D
Process Clause of the F
Amendment. (Wilkinson, supra, at pp. 213, 221-224.) This is so because Supermax confinement
involves solitary confinement for 23 hours per day, is indefinite with only
annual review, and disqualifies an otherwise eligible inmate for parole
consideration. (
at pp. 223-224.)
gave rise to a liberty interest, the United States Supreme Court considered
only the question of what procedural due process is required
an inmate placed in the Supermax prison.
(Id.
at pp. 224-229.) The Court did not
directly address the question whether due process compels judicial review of
Supermax confinement decisions. But, the
Court necessarily assumed that judicial review of such confinement is required,
in stating: “If an inmate were to
demonstrate that the New Policy [i.e., the decisionmaking procedures] did not
in practice operate in this fashion, resulting in a cognizable injury, that
could be the subject of an appropriate future challenge. On remand, the Court of Appeals, or the
District Court, may consider in the first instance what, if any, prospective
relief is still a necessary and appropriate remedy for due process violations
under Ohio’s previous [decisionmaking] policies.†(Id. at p. 230.)
Most significantly, the Supreme
Court in W
alone question or distinguish, its prior decision in
v. Hill, supra, 472 U.S. 445,
that due process compels that a prison decision implicating an inmate’s liberty
interest be subject to judicial review to determine whether the decision is
supported by “some evidenceâ€: “In a
variety of contexts, the Court has recognized that a governmental decision
resulting in the loss of an important liberty interest violates due process if
the decision is not supported by any evidence.
[Citations.] Because the written
statement mandated by Wolff [
board to explain the evidence relied upon, recognizing that due process
requires some evidentiary basis for a decision to revoke good time credits will
not impose significant new burdens on proceedings within the prison. Nor does it imply that a disciplinary board’s
factual findings or decisions with respect to appropriate punishment are
subject to second-guessing upon review.â€
(Id. at p. 455.)
Petitioner’s Gang Validation is Not Supported by “Some Evidenceâ€
As we have indicated, CDCR
regulations provide that the validation of a prison gang member must be
supported by at least three independent source items. (§ 3378, subd.
(c)(3).) As we shall explain, two of
the four source items relied on by CDCR in validating petitioner as a prison
gang member are not supported by any evidence.
It is therefore unnecessary for us to consider the remaining two source
items.
A. Debriefing Report, October 31, 2007 Memo
One of the four source items used in
the validation decision is a debriefing report by a validated BGF member. In validating a gang member, CDCR may rely on
evidence that “comes from ‘debriefing’ inmates who were involved with the
prison gang. The regulation provides:
‘Only information referencing specific gang related acts or conduct shall be
considered as a source item. Multiple
sources of information relative to a single gang related offense or activity
shall be considered a single source of validation.’ (§
subd. (c)(8)(M).)†(
Fernandez, supra, 212 Cal.App.4th at p. 1206.)
In In re Fernandez, this court
concluded that no evidence supported CDCR’s reliance on a debriefing report to
validate an inmate named Saldana as a prison gang member. The debriefing report indicated that a
validated gang member identified Saldana as an associate of the Northern
Structure (NS) prison gang, but did not show that Saldana participated in any
identified gang activity. We explained: “We have reviewed the confidential source
material itself and concluded that it is inadequate. As previously noted, use of a debriefing
report is limited by the clear and unequivocal evidentiary requirement that
‘[o]nly information referencing specific gang related acts or conduct shall be
considered as a source item.’ (§
the nature of Saldana’s involvement with the gang, other than simply describing
him as an ‘associate.’ Not only are no
specific acts or incidents involving Saldana mentioned, but there is likewise
no mention of him serving a particular role or job for the gang (as there is in
Fernandez’s case). Further, the
confidential material does not otherwise describe how Saldana interacted with
NS members or was otherwise involved with the NS. Consequently, even assuming the required
showing may be made by inference, there is no way to make the required
inference. ‘Some evidence’ does not
support the decision.†(
Fernandez, supra, 212 Cal.App.4th at pp. 1212-1213, fns. omitted.)
Here, during the gang validation
proceedings, respondent issued to petitioner a confidential information
disclosure form, which summarized a confidential memorandum dated October 31,
2007. According to the confidential
information disclosure form, as relevant:
“BEAN was identified by a validated BGF member undergoing the debrief
process as a BGF member. BEAN was
identified as physically assaulting a BGF member while housed at San Quentin
State Prison. BEAN is directly linked to
the BGF member being debriefed.†We have
reviewed the October 31, 2007, confidential memorandum, which adds only, as
relevant, the name of the debriefed BGF member, the name of the BGF member
assaulted by petitioner at San Quentin, petitioner’s “aka,†and the approximate
date of the incident.
The confidential memorandum fails to
refer to “specific gang related acts or conduct†committed by petitioner. That is, the memorandum fails to indicate how
the information specifically relates to petitioner’s involvement with the gang,
such as, for example, by asserting that the assault on the BGF member was
ordered by, or conducted on behalf of, the BGF.
The fact that petitioner assaulted a BGF member has no tendency in
itself to show that petitioner was a BGF member or that the assault was a gang
related act. Thus, this source item
consists of nothing more than a debriefed BGF member’s identification of
petitioner as a BGF member. “Some
evidence†does not support respondent’s reliance on the October 31, 2007,
confidential memorandum as a source item for petitioner’s validation as a
prison gang member.
B. Written Material, August 20, 2010 Memo
In validating petitioner as a BGF
member, respondent also relied on a book order form found in petitioner’s
possession. In its return, respondent
justifies its reliance on this book order form on the ground that it
constitutes a “written material†source item.
A “written material†source item is
defined in the gang validation regulation as:
“Any material or documents evidencing gang activity such as the
membership or enemy lists, constitutions, organizational structures, codes,
training material, etc., of specific gangs.
Staff shall articulate why, based
on either the explicit or coded content, the written material is reliable
evidence of association or membership with the gang.†(§
subd. (c)(8)(C), italics added.)
Central to the plain language of
this definition is the requirement that there be something in the
evidences gang membership or association.
The definition is thus directly analogous to a related source item,
“communications,†defined as:
“Documentation of telephone conversations, conversations between
inmates, mail, notes, greeting cards, or other communication, including coded
messages evidencing gang activity. Staff
shall articulate why, based on either the
explicit or coded content, the communication is reliable evidence of
association or membership with the gang.â€
(§ 3378, subd. (c)(8)(L), italics
added.) Neither definition provides that
the mere fact of a communication between an inmate and gang member, or the fact
that a gang member has given written material to another inmate, is in itself
indicative of gang membership or association.
Rather, the plain language of the regulation requires respondent to
point to something in the content of the written material or communication that
evidences gang membership or association.
During the gang validation
proceedings, respondent issued to petitioner a confidential information
disclosure form, which summarized a confidential memorandum dated August 20,
2010. According to the confidential
information disclosure form, as relevant:
“[O]n August 4, 2010, a search of the personal paperwork belonging to
BEAN was conducted. During the course of
this search a book order form was discovered.
The order form was for a book titled ‘Finding Freedom: Writings From
Death Row.’ The author of this book is
identified as MASTERS, Jarvis aka ‘Lefthand’ a validated BGF member. At the top of the order form the following
handwritten entry was discovered.
‘Hey! Lefthand asked me to
forward this. ♥ Donna.’ This document reveals BEAN’s continued
communication via third party contact with a validated BGF member.†We have reviewed the confidential memorandum
dated August 20, 2010, which attaches a copy of the book order form.
Respondent supports its return with
the declaration of Special Agent Beeson of CDCR’s Office of Correctional
Safety, a prison gang expert. As
relevant to the book order form, Agent Beeson asserts, “Bean’s possession of
the book order form demonstrates Bean’s continued contact and communication,
via a third party, with a validated BGF member.†In a similar vein, the confidential memorandum
asserts that prison gang members use third party community contacts to maintain
contact with inmates housed in separate prison facilities or institutions.
However, the plain language of
subdivision (c)(8)(C) of section 3378
requires that something in the content of the written material, either explicit
or coded, must evidence gang association or membership. Respondent does not contend that the book
that is the subject of the book order form evidences gang involvement, or that
the description of the book on the book order form evidences gang
involvement. (Compare
handwritten on the book order form are themselves evidence of gang involvement,
other than that those words show a communication. But an interpretation of section 3378,
subdivision (c)(8)(C) as including a written material that shows a
communication from a prison gang member, whether directly or through a third
party contact, would do violence to subdivision (c)(8)(L) which on its face permits
such a communication absent evidence that the explicit or coded content of the
communication evidences gang association or membership. Further, this is not analogous to an inmate’s
possession of the address, name or identity information of a gang member, which
is expressly prohibited by the “association†source item of subdivision
(c)(8)(G) of section 3378. (
pp. 660-661.)
A plain language reading of
subdivision (c)(8)(C) of section 3378
avoids both overbroad and absurd applications of the regulatory scheme. The regulation cannot be interpreted to
penalize all third party communications from a prison gang member to another
inmate, precluding a gang member’s friends or family members from passing along
social greetings or communications. (See
C
p. 1312 [“prison officials, without more, cannot validate inmates
based on a mere ‘social connection to an individual gang member.’ [Citation.]
Any connection must evidence affiliation or association with a gang to
be used as a source item supporting validationâ€]; §
subds. (e) & (f) [inmates in the SHU are permitted to send and
receive personal mail, and to have non-physical contact visits].) And the regulation would be subject to an
absurd reading if a validated gang member could create false evidence of gang
validation simply by mailing documents to an inmate or having a third person
mail documents to the inmate. (See
Fernandez, supra, 212 Cal.App.4th at p. 1212 [“The ‘independence’
of the source items in such a context would be in question, and there would be
a real danger of facilitating an attempt by the gang to leak false information
to target its enemiesâ€].)
Because the record contains no
evidence to support two of the four source items relied on by respondent in
validating petitioner as a prison gang member, we must grant petitioner relief
via habeas corpus.
The Department of Corrections and
Rehabilitation is directed to vacate petitioner’s 2010 gang validation decision,
which validated petitioner as a member of the Black Guerrilla Family (BGF)
prison gang, and is further directed to (1) report the expungement of
petitioner’s 2010 validation to all gang-related enforcement databases and
clearinghouses to which the original validation was reported previously, (2)
remove all documents related to the validation from petitioner’s prison file,
and (3) cease housing petitioner based on the 2010 gang validation.
BLEASE , Acting
P. J.
We concur:
BUTZ ,
J.
MURRAY ,
J.
name="_ftn1" title="">[1] Further undesignated section references are
to title 15 of the California Code of Regulations.
name="_ftn2" title="">[2] On January 12, 2011, an Administrative
Segregation Unit Institutional Classification Committee at California State
Prison, Sacramento, retained petitioner in administrative segregation, due to
the imposition of an indeterminate SHU term based on his validation as a BGF
member, pending his transfer to the SHU at Pelican Bay State Prison. Correspondence received by this court from
petitioner shows that he has now been transferred to Pelican Bay State Prison.
