In re Soliz

Filed 8/31/07 In re Soliz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for habeas corpus. Graham Anderson Cribbs, Judge. Petition granted.

Richard Schwartzberg, under appointment by the Court of Appeal, for Petitioner.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill, Supervising Deputy Attorney General, and J. Conrad Schroeder, Deputy Attorney General, for Respondent.

This matter, a petition for writ of habeas corpus by inmate James Jaime Soliz, protests the deduction of 30 days of work/behavior credits as a disciplinary matter. Having reviewed petitioners initial petition to this court, we issued an order to show cause returnable before the superior court. That court conducted proceedings and eventually denied the petition.^[1]

Petitioner then again sought habeas corpus relief from this court, arguing that the superior court had erroneously denied the petition in part due to the ineffectiveness of appointed counsel.^[2] We denied the petition, but our Supreme Court granted review and returned the case to this court with directions that we issue an order to show cause directing respondent the Director of Corrections and Rehabilitation to demonstrate that there was some evidence to support the finding that petitioner committed a serious rules violation on May 28, 2003. We have done so. Having again examined the record in detail, we find that the evidence was insufficient to satisfy the legal standard and that the findings and actions of respondent must be overturned.^[3]

BRIEF STATEMENT OF FACTS

Petitioner is serving a term of 27 years to life imposed in 1987. Petitioners problems began in May 2003. According to the petition, Identifiable Disruptive Inmate Groups organized a work stoppage at Chuckawalla Valley State Prison apparently intended as a protest against reduced access to shower facilities. The instigators allegedly coerced other inmates into joining the stoppage with threats of violence. Petitioner was eventually written up for violating California Code of Regulations, title 15, section 3041, subdivision (b)failure to report for work.^[4] However, although he spends some time complaining about respondents failure to ensure his safety, his actual defense has been that his dorm was on lockdown at the time he was supposed to report. At the disciplinary hearing, petitioner testified to that effect: No, we were put on our bunks.

The original rules violation report signed by Officer Rasmussen recited that at 0700 hours on May 28, 2003, an announcement was made in housing unit C7 instructing all inmates to report to assigned work areas. All inmates refused at this point. However, respondent in fact did not proceed on this report, and the reporting officer prepared a second report in which he alleged merely that at approximately 0630 hours . . . Inmate Soliz . . . did not report to his job assignment . . . .

The only other testimony came from the officer who signed the violation report, Officer Rasmussen. When asked whether inmates serving as porterspetitioners jobwere asked to report at a certain time, he replied, The way we normally do it is when they get back from chow I get the tools out. He was then asked whether he had the tools ready for the porters on May 28, and replied, I didnt have a chance to get them. Asked if he had called the porters to report for work, he testified, No.^[5]

DISCUSSION

As all parties agree, prison authorities have substantial leeway in resolving disputed factual issues in disciplinary cases. A decision will be upheld if it is supported by some evidence. (Superintendent v. Hill (1985) 472 U.S. 445, 454.) Indeed, judicial review has been described as extraordinarily deferential. (In re Zepeda (2006) 141 Cal.App.4th 1493, 1495 (Zepeda).) We do not necessarily examine the entire record and we certainly do not reweigh the evidence; we are simply looking for any evidence in the record that could support the conclusion reached by the disciplinary board. (Superintendent v. Hill, supra, 472 U.S. at pp. 455-456, quoted in Zepeda, supra, 141 Cal.App.4th at p. 1498.)

We have asked the respondent Attorney General to point to evidence supporting the finding of deliberate disobedience to an order that petitioner had the power to obey. Instead, respondent devotes virtually all of its return to the petition to dealing

with issues not comprised within the Supreme Courts order to this court or our order to respondent.^[6] With respect to the issue of some evidence, respondent merely notes that petitioner admitted that he did not go to work.

However, this piece of evidence is not probative when taken in context. Petitioner never disputed that he did not go to work. The question is whether he was ordered to do so at a time when he had the ability to comply. The contradictory and confusing nature of the record makes petitioners admission of no value in deciding this question.

Officer Rasmussen clearly testified that he did not call the parties to work in the usual fashion or at the usual time. The rules violation report on which petitioner was prosecuted contains the officers statement that petitioner failed to report at approximately 0630 hours . . . . But had there been any order for him to do so? Significantly, Officer Rasmussens first violation report contained the statement that the inmates were called to work at approximately 0700 hours.

Obviously petitioner could not have disobeyed an order at 6:30 a.m., which would not be given until half an hour later. Further, any such order would appear to have run afoul of the order that the inmates stay on their bunks, which was apparently issued at

6:40 a.m.^[7] The evidence at the hearingthe rules violation report and Officer Rasmussens testimonydoes not describe any actual order. While this may have been simply inadvertence based on the number of violation reports being processed, nevertheless petitioner could not be found guilty of failing to report to work when there is simply no evidence in the record that he was ever ordered to do so.

DISPOSITION

Accordingly the requested relief will be granted. Having served its purpose, the order to show cause is discharged; respondent is directed to remove the 115 from petitioners file and to restore the 30 days of lost credit.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Richli

J.

We concur:

/s/ Ramirez

P.J.

/s/ Hollenhorst

J.

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^[1]This petition and its resolution are not relevant to this proceeding, which is original to this court.

^[2]In an attachment to this petition, petitioner requested the appointment of qualified counsel. We have appointed counsel through Appellate Defenders, Inc.

^[3]Insofar as respondents decision assessed a loss of credits, it is moot at this time as petitioner has qualified for his minimum eligibility parole date despite the loss. Insofar as the disciplinary report may arguably affect his chances for parole, no due process right attaches to such a consequence, which is merely speculative. (Sandin v. Conner (1995) 515 U.S. 472, 487-488.)

^[4]The regulation currently provides that [i]nmates must report to their place of assignment at the time designated by the institutions schedule of activities and as instructed by their assignment supervisor. Inmates may not leave an assignment without permission to do so. (Cal. Code Regs., tit. 15, 3041, subd. (b).) The import in May 2003 was identical.

^[5]Other documents now presented by petitionerbut apparently not presented at the hearingsuggest that the inmates may have been called to breakfast at about 0630 hours; and when no one reported, the unit was placed on modified program with the inmates required to strip to their shorts and remain in their bunks. Other reports generated state that all inmates refused a call to breakfast at 0630 hours and then refused to report to work and were placed on modified program by 0635 hours. The latter version is somewhat unclear about the manner in which a call to work was made after the inmates did not appear for breakfast

^[6]Petitioners other complaints included, inter alia, that the Department had exhibited deliberate indifference to his safety during the work stoppage and that he did not receive due process because he was not provided with a staff assistant. We have consistently found these issues to be without merit and, given the limited nature of the directive from the Supreme Court, do not consider them further.

^[7]It is not clear whether this was a lockdown or a less restrictive modified program.