In re Dohner

• Decision Date: 03 June 2022
• Docket Number: E072797, E074872
• Citation: 79 Cal.App.5th 590,295 Cal.Rptr.3d 53
• Parties: IN RE Alan Reed DOHNER on Habeas Corpus. In re William Reno Gerber on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

79 Cal.App.5th 590

295 Cal.Rptr.3d 53

IN RE Alan Reed DOHNER on Habeas Corpus. In re William Reno Gerber on Habeas Corpus.

E072797, E074872

Court of Appeal, Fourth District, Division 2, California.

Filed June 3, 2022

Alan Reed Dohner, in pro per., for Petitioner, Alan Reed Dohner.

William Reno Gerber, in pro per., for Petitioner, William Reno Gerber.

Rob Bonta, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Amanda J. Murray and Linnea D. Piazza, Deputy Attorneys General, for Respondent.

OPINION

RAPHAEL, J.

The briefing in this appeal raises an array of legal issues, but the fundamental dispute underlying them is straightforward. Plaintiffs and appellants Alan Reed Dohner and William Reno Gerber were, when their lawsuits were filed, general population inmates living in dormitory housing at Chuckawalla Valley State Prison (CVSP). They assert that they have the right to possess a personal television in their cells, rather than being limited to shared televisions located in common areas. They raise various claims flowing from the enforcement of the regulations that prohibited them from doing so.¹ The trial court rejected all the claims, denying their request for a writ of habeas corpus without issuing an order to show cause and sustaining respondents' demurrer to their claims for a writ of mandate and declaratory relief. We find no fault in the trial court's rulings.

I. BACKGROUND

Inmates in California prisons "may possess only the personal property ... as permitted" by regulation. ( Cal. Code Regs., tit. 15, § 3006.) A list of "[s]pecific items of personal and religious property" that an inmate is permitted to possess, depending on classification and privilege level, has been "established by a consensus of individual facilities" and described in an "Authorized Personal Property Schedule" (APPS) that is incorporated by reference into the relevant regulation. ( Cal. Code Regs., tit. 15, § 3190.) Individual facilities, however, may request and obtain from the California Department of Corrections and Rehabilitation (CDCR) exemptions from that standardized list. ( Cal. Code Regs., tit. 15, § 3190, subd. (b) [contemplating "[l]ocal facility exemptions to the property lists," to be identified in the APPS].)

Under the APPS applicable to general population prisoners like Dohner and Gerber, inmates often may possess a television.² That is not true, however, at CVSP. CDCR granted CVSP's request for a local exemption that excludes televisions (among other things) from the property permitted to inmates in dormitory housing at that facility.³ According to CVSP's exemption request, made and granted in 2005, there is "little or no reception" for television signals due to the prison's location, and though CVSP "uses a satellite for general TV broadcasting," the dormitory housing units "are not equipped for cable." Moreover, at the time, the prison was struggling with an electrical system that was already overloaded, so additional electrical appliances would risk "major power black outs" that, due to extreme weather conditions in summer months, could be dangerous to the health of staff and inmates. The electrical system has since been improved, but the reception for television signals has not. Inmates who possess a television when they are transferred to CVSP from a facility that permits them are given the option of mailing it home at their own expense or disposing of it.

Dohner brought this suit against CDCR, as well as the individuals serving as CDCR Secretary and CVSP Warden, in April 2017.⁴ Dohner's petition sought, in the alternative, a writ of habeas corpus or writ of mandate, and requested declaratory relief. In June 2017, Dohner, Gerber, and six other CVSP inmates filed a joint first amended petition.

After informal briefing and argument from the parties, the trial court denied the request for a writ of habeas corpus without issuing an order to show cause. Subsequently, the trial court sustained respondents' demurrer to the remaining claims of the first amended petition with leave to amend. Dohner filed a second amended petition naming the same parties, but he was the only petitioner who verified it.⁵ The trial court sustained respondents' demurrer to the second amended petition without leave to amend as to Dohner, but granted Gerber and the other six petitioners leave to amend. Nevertheless, neither Gerber, nor any other petitioner filed an amended petition, so the court dismissed their claims with prejudice.

Dohner and Gerber appealed separately.⁶ Both filed motions requesting that we consolidate their appeals, which we granted.

II. DISCUSSION

"[I]n noncapital cases, if the superior court denies a petition for a writ of habeas corpus, the petitioner has no statutory right to appeal. Instead, the petitioner must file a new, original petition, generally in the Court of Appeal." ( Robinson v. Lewis (2020) 9 Cal.5th 883, 895, 266 Cal.Rptr.3d 13, 469 P.3d 414.) Respondents argue on this basis that we should not consider the merits of Dohner and Gerber's constitutional claims, which were pleaded as a petition for writ of habeas corpus. We have discretion, however, to deem an appeal from the denial of a petition for writ of habeas corpus to be an original habeas petition filed in this court. (See People v. Gallardo (2000) 77 Cal.App.4th 971, 986, 92 Cal.Rptr.2d 161 ; People v. Garrett (1998) 67 Cal.App.4th 1419, 1423, 79 Cal.Rptr.2d 803.) In this case, unlike many, the interest of judicial economy weighs in favor of deciding the merits now, and there is no need to further develop the record, so we choose to exercise that discretion.

Dohner and Gerber's contentions in habeas that various constitutional rights are violated by CVSP's prohibition on possessing a personal television fail on the merits. They have not cited any case that holds there is a constitutionally protected right to watch television at all while incarcerated or detained, let alone the right to possess a personal television so programs can be watched privately, rather than on a shared television. On the contrary, to our knowledge, courts have universally rejected such arguments.⁷ (See, e.g., Rahman X v. Morgan (8th Cir. 2002) 300 F.3d 970, 973-974 [no denial of due process or cruel and unusual punishment from inmate's lack of access to television in his cell]; Murphy v. Walker (7th Cir. 1995) 51 F.3d 714, 718, fn. 8 [denial of television not a constitutional violation]; More v. Farrier (8th Cir. 1993) 984 F.2d 269, 271 ["Despite television's importance in modern society, appellees have no fundamental right to in-cell cable television"]; James v. Milwaukee County (7th Cir. 1992) 956 F.2d 696, 699 [denial of television does not constitute a cognizable civil rights claim]; Montana v. Commissioners Court (5th Cir. 1981) 659 F.2d 19, 23 [claims relating to usage of radio and television did not pertain to federal constitutional rights and were properly dismissed as frivolous]; Kesling v. Tewalt (D. Idaho 2020) 476 F.Supp.3d 1077, 1086 ["[T]here is no constitutional right to watch television in prison"]; Rawls v. Sundquist (M.D. Tenn. 1996) 929 F.Supp. 284, 288 ["There is no constitutional right to television while incarcerated"].)

As Dohner and Gerber note, the United States Supreme Court has, in a variety of contexts, found the First Amendment to guarantee " ‘not only the right to speak and publish but also the right to hear, to learn, to know.’ " ( Presidents Council, Dist. 25 v. Community School Board No. 25 (1972) 409 U.S. 998, 999, 93 S.Ct. 308, 34 L.Ed.2d 260 (Douglas, J., dissenting from denial of certiorari) [case involving school board resolution banning a particular book from circulation in school libraries]; see, e.g., Stanley v. Georgia (1969) 394 U.S. 557, 568, 89 S.Ct. 1243, 22 L.Ed.2d 542 [holding that the "First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime"]; Martin v. City of Struthers (1943) 319 U.S. 141, 142-144, 149, 63 S.Ct. 862, 87 L.Ed. 1313 [finding ordinance prohibiting door-to-door distribution of leaflets or other advertisements to be unconstitutional].) Such authority does not apply here, however, at least in the manner Dohner and Gerber have proposed, to guarantee inmates access to any particular source of information from the relative privacy of their own cells. (See, e.g., Hudson v. Palmer (1984) 468 U.S. 517, 527-528, 104 S.Ct. 3194, 82 L.Ed.2d 393 [a prison " ‘shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room,’ " and "We believe that it is accepted by our society that ‘[l]oss of freedom of choice and privacy are inherent incidents of confinement’ "]; Jones v. North Carolina Prisoners' Labor Union, Inc. (1977) 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d 629 ["this Court has long recognized that ‘[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights’ [...] including those derived from the First Amendment"].)

Relatedly, although inmates retain some property rights while in prison, those rights do not extend to possessing any particular item of personal property, including a television. (See In re Alcala (1990) 222 Cal.App.3d 345, 371, 271 Cal.Rptr. 674 [ Pen. Code section 2601 sets out "specific rights of prisoners ‘[t]o inherit, own, sell, or convey real or personal property,’ " but "[does] not include the right to wear, keep, and use his or her own personal possessions in prison. This legislative omission is significant"].) There is no authority in support of the proposition that requiring inmates transferred to CVSP to mail home or dispose of property they are not permitted to possess at CVSP amounts to an "unconstitutional taking," as Dohner and Gerber would have it.

Reframing the issue as one of access to a particular television channel (CDCR's educational channel), rather than to television broadcasts generally or the television itself as a physical possession, is no more...