ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. George L. Orndoff, Judge. (Super. Ct. No. 09W0098A).
The opinion of the court was delivered by: Dawson, J.
CERTIFIED FOR PUBLICATION
Petitioner Edward T. Furnace, who is serving a life term without the possibility of parole for special circumstance murder and other crimes, was validated as an associate member of a prison gang, the Black Guerrilla Family (BGF), and transferred into the security housing unit (SHU) at Corcoran State Prison. He argues that the evidence used to validate him and place him in the SHU for an indeterminate term was "false, unreliable and insufficient ...." We will deny his petition for writ of habeas corpus.
FACTS AND PROCEDURAL HISTORY
Furnace has been in the custody of the California Department of Corrections and Rehabilitation (Department) since 1992. On February 4, 2008, while Furnace was incarcerated at Salinas Valley State Prison (SVSP), the Institutional Gang Investigators (IGI) Unit searched his personal property. Thereafter, Assistant Investigator M. Valdez authored a report stating he had discovered contact information related to the BGF prison gang. The item, a piece of paper, included the name, Department number, and institutional housing of Hugo Pinell, a validated member of the BGF housed at Pelican Bay State Prison. Valdez stated his opinion, based on his training and experience, that associates of the BGF "will often keep contact information belonging to BGF members in their personal property ... so that BGF associates can establish a line of communication with which to discuss BGF gang activity occurring at their respective institutions." Thus, according to Valdez, the contact information found in Furnace's property was indicative of gang activity and established a direct link with a validated BGF member.
Also found in Furnace's personal property was a book entitled Fascism: Its Most Advanced Form Is Here In America by George L. Jackson. A brief history of the life and death of George L. Jackson appears on the inside front and back covers of the book. Inside the cover, the book is titled Revolutionary Armed Struggle, and outlines the formation and function of a guerrilla group. Also found was an audio compact disc (CD) entitled "Prisons on Fire, George Jackson, Attica & Black Liberation." The CD reviewed the life and death of George L. Jackson and outlined his ideology. It contained the titles "Soledad Brothers," "Marin County Rebellion," "August 21, 1971" (the day George L. Jackson died), "Remembering George," "George's Legacy" and "In Solidarity with George." According to Valdez, the BGF prison gang was established under the example and teachings of George L. Jackson; the gang was founded after Jackson's death; and Jackson is viewed as a martyr for the BGF ideology. The BGF constitution repeatedly references George L. Jackson and states, in part, "'Climaxing with the revolutionary socialist and equalitarian freedom fighters under the guiding example and teachings of George L. Jackson, we ultimately became the "Black Guerrilla Family."'" Valdez stated that books on George L. Jackson are kept by BGF associates while they are being indoctrinated with the ideology of the BGF. Thus, in Valdez's view, the book and CD found in Furnace's property also were indicative of BGF gang activity.
Two additional items were found in Furnace's property: a photocopied flyer promoting a 2005 Black August event in Oakland, California and a photocopied newspaper article explaining the meaning of Black August. According to Valdez, Black August was established in 1979 by the second supreme commander of the BGF after the death of the inmate who was recognized as the first supreme commander of the BGF, and it was meant to honor "the fallen BGF members as well as other individuals viewed as Freedom Fighters who were killed throughout the years during the month of August." The flyer promoting the 2005 Black August event contained pictures of a dragon and of George L. Jackson, both recognized symbols of the BGF. The article on Black August encouraged the public to attend the rally and learn how to become involved in the movement to free Hugo Pinell, the aforementioned BGF prison gang member whose name and other information was found in the possession of Furnace. Valdez opined that such documents also are used by the BGF to indoctrinate with its ideology inmates it is recruiting for membership.
On April 29, 2008, the SVSP IGI Unit submitted a validation package to the Office of Correctional Safety for review and approval in order to validate Furnace as an associate of the BGF prison gang.
On May 2, 2008, pursuant to the Department's procedures, Valdez met with Furnace regarding the evidence being used in his validation as an associate of the BGF. Furnace insisted that he was not a gang member or associate. In the interview, Furnace claimed he had the information on Pinell because he was going to contact him regarding research for a children's book he was writing on staying away from gangs and prison. When asked about the pictures of George L. Jackson, Furnace stated "'It's just a book,'" and that the book didn't make him a BGF member any more than reading Stalin made him a communist or reading the Koran made him Al Qaeda. As for the documents regarding Black August, Furnace stated he did not know anything about the BGF, but that they were "'just newspaper articles'" from a public newspaper. Valdez informed Furnace that he did not find the entire newspaper in Furnace's possession, just the articles pertaining to Black August.
On May 4, 2008, Furnace filed an inmate appeal alleging he was not a gang member or associate and that the books and CD used as evidence to validate him as a gang member/associate were "purchased at, approved by, and issued to [him] by SVSP property staff after their inspection." He also alleged that neither the Department nor SVSP had ever promulgated a list of banned books or CD's which, if found in a prisoner's possession, could be used to validate a prisoner as a gang member. Furnace further alleged that the copies of newspaper articles relied upon were taken from a public news source.
On May 21, 2008, the Office of Correctional Safety accepted the information submitted by the IGI Unit and validated Furnace as a BGF associate. Furnace's subsequent administrative appeal was denied.
On April 14, 2009, Furnace filed a petition for writ of habeas corpus in the Kings County Superior Court. That court denied the petition, and Furnace filed the petition here on July 22, 2009. We initially sought an informal response from the Attorney General on behalf of the Department, addressing the factual and legal bases for Furnace's validation as a BGF associate. After consideration of the petition and the informal response filed by the Attorney General, we issued an order to show cause why the relief requested should not be granted.
"The Legislature has given the Director of the Department of Corrections broad authority for the discipline and classification of persons confined in state prisons. (Pen. Code, §§ 5054, 5068.) This authority includes the mandate to promulgate regulations governing administration, classification and discipline." (In re Lusero (1992) 4 Cal.App.4th 572, 575.)
The California Code of Regulations, title 15, section 3000*fn1 defines a "prison gang" as any gang with its roots or origins within the Department or any other prison system. "Gangs, as defined in section 3000, present a serious threat to the safety and security of California prisons," and "[i]nmates and parolees shall not knowingly promote, further or assist any gang as defined in section 3000." (§ 3023, subds. (a), (b).)
Section 3378, subdivision (c) requires that, to validate an inmate as an associate of a prison gang, the Office of Correctional Safety identify at least three independent source items indicative of association with validated gang members or associates.*fn2 In addition, at least one of the source items must constitute a direct link to a current or former validated member or associate of the gang. (§ 3378, subd. (c)(4).) Section 3378, subdivision (c)(8) provides that the "source items" for determining gang membership/association "shall be based on the following criteria:
"(B) Tattoos and symbols. Body markings, hand signs, distinctive clothing, graffiti, etc., which have been identified by gang investigators as [being] used by and distinctive to specific gangs. Staff shall describe the tattoo or symbol and articulate why it is believed that the tattoo is used by and distinctive of gang association or membership....
"(C) Written material. Any material or documents evidencing gang activity such as the membership or enemy lists, constitutions, organizational structures, codes, training material, etc., of specific gangs....
"(D) Photographs. Individual or group photographs with gang connotations such as those which include insignia, symbols, or validated gang affiliates....
"(E) Staff information. Documentation of staff's visual or audible observations which reasonably ...