In re Bean

• Decision Date: 08 August 2013
• Docket Number: C072465
• Parties: In re ANTHONY BEAN on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

In re ANTHONY BEAN on Habeas Corpus.

C072465

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Filed: August 8, 2013

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 11F07120)

This 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 items") . (Cal. Code Regs., tit. 15, § 3378, subd. (c)(3).)¹ Although CDCR relied on four source items, 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 section 3378, subdivision (c)(8)(M). Another source item, a book orderform found 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 section 3378, subdivision (c)(8)(C). Accordingly, we shall direct CDCR to vacate petitioner's gang validation decision and to cease housing him based on that validation.

PROCEDURAL BACKGROUND

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.²

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 08/16/10") was considered to be a support document to the first source item (a "Confidential CDCR 128b dated 08/23/10"). 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 dated08/16/10"). 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.³ As relevant, we will summarize the evidence 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.

DISCUSSION

I. 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.' (§ 3378, 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 [In re] Efstathiou [(2011)] 200 Cal.App.4th [725,] 730; see also §§ 3378, subd. (c)(2), (3), (4), (8), 3321.)" (In re Fernandez (2013) 212 Cal.App.4th 1199, 1205, fn. omitted.)

"Section 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. (§ 3378, subd. (c)(8).)" (In re Cabrera, supra, 55 Cal.4th at p. 689.) In this case, respondent asserts petitioner's validation is based onjust two of the 13 source item categories, i.e., "debriefing reports" pursuant to subdivision (c)(8)(M) of section 3378 and "written material" pursuant 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)] 185 Cal.App.4th [649,] 659; see Superintendent v. Hill (1985) 472 U.S. 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. [In re] Furnace, supra, at pp. 659-663 [reviewing gang validation decision]; see [In re] Efstathiou, supra, at p. 730; In re Sampson (2011) 197 Cal.App.4th 1234, 1242-1243 .)" (In re Fernandez, supra, 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] Furnace, supra, 185 Cal.App.4th at p. 663.) 'The issue is simply whether theevidence in question permits a court to conclude that the administrator had reasons for his or her decision.' (Id. 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.' (In re Lawrence (2008) 44 Cal.4th 1181, 1213 [82 Cal.Rptr.3d 169, 190 P.3d 535].)" (In re Fernandez, supra, 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, thefunction 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.' (In re Jordan (1972) 7 Cal.3d 930, 932 [103 Cal.Rptr. 849, 500 P.2d 873]; see, e.g., In re Davis (1979) 25 Cal.3d 384, 387 [158 Cal.Rptr. 384, 599 P.2d 690] [challenging lengthy administrative and disciplinary segregation pending rules violation hearing]; In re Harrell (1970) 2 Cal.3d 675, 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].) Those rights include not only statutory or constitutional violations, but also violations of administrative regulations. (See, e.g., In re 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]; In re Van Geldern (1971) 5 Cal.3d 832 [97 Cal.Rptr. 698, 489 P.2d 578] ...