APPEAL from the Superior Court of Riverside County. Helios J. Hernandez, Judge. Reversed. Super.Ct.No. RIC479852
The opinion of the court was delivered by: Hollenhorst Acting P. J.
CERTIFIED FOR PUBLICATION
Richard Schwartzberg, under appointment by the Court of Appeal, for Jesse Espinoza.
Jesse Espinoza (Defendant), an inmate in state prison, petitioned the trial court for a writ of habeas corpus, seeking reversal of a decision of California Department of Corrections and Rehabilitation (CDCR) denying family visitation privileges on the grounds that Defendant had been found guilty of narcotics distribution while incarcerated in state prison. The trial court granted the petition and ordered CDCR to reconsider Defendant's request based only upon consideration of his conduct during his current term of incarceration and without consideration of his past prison disciplinary violations for institutional narcotics trafficking. CDCR appeals, contending (1) Defendant's challenge to CDCR's decision is untimely, and (2) the trial court erred in interpreting California Code of Regulations, title 15, section 3177.*fn1 We reverse.
I. PROCEDURAL BACKGROUND AND FACTS
In both 1980 and 1987, Defendant was incarcerated in state prison and was found guilty, in separate institutional administrative disciplinary actions, of the charge of attempting to introduce contraband into his institution. Subsequently, he completed his sentence and was released from prison.
On June 19, 2003, Defendant was convicted of voluntary manslaughter and was sentenced to 11 years in state prison. After beginning his term, he requested permission for an extended overnight visit with his wife at the institution, which CDCR denied pursuant to section 3177 of the regulations. Defendant filed an administrative appeal of the decision, which was denied at the highest administrative level of CDCR on February 9, 2005.
On August 26, 2007, two and one-half years later, Defendant filed a petition for writ of habeas corpus (Petition) in the Riverside County Superior Court challenging CDCR's decision. On January 28, 2010, the trial court issued a summary order granting the Petition. CDCR was now required to allow Defendant to have family visitation privileges. CDCR filed a motion for reconsideration. On February 22, 2010, the court issued an order denying the motion for reconsideration because it had considered CDCR's points and authorities. However, the court clarified the basis of its prior order and modified the remedy from requiring CDCR to allow family visitation privileges to requiring CDCR to reconsider Defendant's request based on the record of his current incarceration term without regard to his disciplinary actions in the 1980's for institutional narcotics trafficking. On March 16, 2010, CDCR filed a notice of appeal.
II. DEFENDANT'S CLAIM IS TIMELY
Relying on the cases of In re Sanders (1999) 21 Cal.4th 697, pages 703 and 705 [ten-year delay in filing collateral challenge to final criminal judgment and sentence of death], In re Robbins (1998) 18 Cal.4th 770, pages 779 through780 [seven-year delay in filing collateral challenge to final criminal judgment and sentence of death], and In re Clark (1993) 5 Cal.4th 750, pages 759, 760 and 761 [several-year delay and second collateral challenge to final criminal judgment and sentence of death], CDCR argues Defendant's Petition is untimely. It is undisputed that Defendant waited more than two years to file the Petition, but as we explain, the family visitation issue is properly before us.
"The writ of habeas corpus enjoys an extremely important place in the history of this state and this nation. Often termed the 'Great Writ,' it 'has been justifiably lauded as "'the safe-guard and the palladium of our liberties'"' [citation] and was considered by the founders of this country as the 'highest safeguard of liberty' [citation]. As befits its elevated position in the universe of American law, the availability of the writ of habeas corpus to inquire into an allegedly improper detention is granted express protection in both the United States and California Constitutions. [Citation.] In this state, availability of the writ of habeas corpus is implemented by Penal Code section 1473, subdivision (a), which 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.' (Italics added.)" (People v. Villa (2009) 45 Cal.4th 1063, 1068.)
Notwithstanding the above, litigants mounting collateral challenges to final criminal judgments must do so in a timely fashion. (In re Robbins, supra, 18 Cal.4th at p. 778.) "[T]o avoid the bar of untimeliness with respect to [petitions filed after close of briefing on direct appeal], the petitioner has the burden of establishing (i) absence of substantial delay, (ii) good cause for the delay, or (iii) that the claim falls within an exception to the bar of untimeliness. [¶] Substantial delay is measured from the time the petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim. [¶] . . . [¶] A claim that is substantially delayed without good cause, and hence is untimely, will nevertheless be entertained on the merits if the petitioner demonstrates . . . that the petitioner was convicted . . . under an invalid statute." (Id. at pp. 780-781.)
Because CDCR bases its untimeliness argument on the claim that Defendant waited more than two years to file the Petition, we reject it out of hand. To begin with, we note all of the cases CDCR relies upon are capital cases where the petitions were filed to challenge the final judgment or sentence of death. Here, the issue on habeas corpus is not Defendant's guilt, innocence, or the appropriate punishment, but whether the CDCR and the trial court properly interpreted section 3177 of the regulations, an issue we review de novo. (In re Johnson (1998) 18 Cal.4th 447, 461; In re Collins (2001) 86 Cal.App.4th 1176, 1181 ["basic principles of appellate review apply to an appeal from an order granting a petition for habeas corpus"].) More importantly, because our review is confined to interpreting section 3177, this is not a case where Defendant's delay will prejudice CDCR or the People by unjustifiably delaying implementation of the law or setting aside the final judgment of conviction when retrial would be difficult or impossible. (In re Clark, supra, 5 Cal.4th at p. 764.) Rather, as Defendant points out, if there is any prejudice, it has been to him, because his delay has "prevented [him] from having family visits during the majority of his present incarceration. And given the likely mootness of the underlying, ...