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In Re Elvin Cabrera

September 8, 2011


The opinion of the court was delivered by: Dawson, Acting P.J.



ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.

Elvin Cabrera filed a petition for writ of habeas corpus to challenge his validation as an associate of the Mexican Mafia prison gang (EME) and his placement in the security housing unit (SHU) at the California Correctional Institution at Tehachapi (CCI). Cabrera argues that his possession of photocopies of drawings signed by either a gang member or gang associate was insufficient to establish a "direct link to a current or former validated member or associate of the gang" as required by California Code of Regulations, title 15, section 3378, subdivision (c)(4).*fn1

We agree. The required direct link between Cabrera and a gang member or associate was not established by the artist's name on the photocopied artwork. Consequently, Cabrera's petition for writ of habeas corpus will be granted.


There are two threshold issues that will affect our description of the facts in this proceeding. Consequently, we will address those issues before setting forth the facts and procedural history of this case.

Broadly stated, the first issue concerns which facts are material to deciding the merits of this habeas corpus proceeding. The term "material fact" is used here to mean a fact that affects the decisionmaking of this court. In other words, a material fact is a fact of consequence to our reasoning and resolution of this matter. (See generally Cal. Const., art. VI, § 14 [appellate decisions "shall be in writing with reasons stated"].)

The second issue involves identifying which facts have been established for purposes of the habeas corpus proceeding and which facts are in dispute. (See fn. 4, post.) The answer to this question is obtained by applying the pleading rules for habeas corpus proceedings set forth by the California Supreme Court in People v. Duvall (1995) 9 Cal.4th 464.

I. Facts Material to a Gang Validation Under Section 3378

The process of validating an inmate as a member or associate of a prison gang is governed by section 3378. A validation requires at least three independent source items, one of which must constitute a direct link. (§ 3378, subd. (c)(3) & (4).) Recognized source items include, but are not limited to, an inmate's admission, tattoos, symbols, written materials, the inmate's association with gang affiliates, and communications between inmates. (§ 3378, subd. (c)(8).)

When the California Department of Corrections and Rehabilitation (CDCR) relies on these and other types of source items during the validation process, subdivision (c)(8) of section 3378 imposes the following requirement: "Staff shall document and disclose this information to the inmate/parolee in a written form that would not jeopardize the safety of any person or the security of the institution." (Italics added.) The first question that arises, in reference to this requirement to document and disclose, is whether it precludes CDCR from relying on information not included in the written form to justify its validation decision. Not surprisingly, the parties do not agree on the answer.

Cabrera argues that the use of the word "shall" creates a mandatory duty to disclose all information indicative of gang association and that the consequence for not complying with this duty should be invalidation of the government action and the granting of his petition.

CDCR counters that all of the information relied upon need not be included because concerns for safety and security can justify leaving information out of the forms. With regard to the consequences of failing to include required information in the forms, CDCR argues that if a court overrules the validation, then it may be redone after the inmate is provided with proper disclosure. CDCR has not argued that inadequacies in complying with the document-and-disclose requirement can be cured during the habeas corpus proceeding by supplying additional information to the court.

We conclude that the mandatory language about documentation and disclosure in subdivision (c)(8) of section 3378 means that a reviewing court may consider only two categories of information when deciding whether a gang validation had sufficient evidentiary support. The first category is the information documented and disclosed to the inmate in a written form. The second category is the information withheld from the written disclosure because of safety or security concerns. Information excluded from the forms provided to the inmate for reasons other than safety or security may not be considered by a reviewing court to uphold the validation. Under this interpretation, the document-and-disclose requirement in subdivision (c)(8) of section 3378 effectively defines which facts are material to a court's review of a gang validation. The information that CDCR may rely upon in court to justify its validation decision is limited to (1) information contained in the forms and (2) information withheld from the forms due to concern for safety and security. We recognize, nonetheless, that situations might arise where CDCR should be allowed to present the reviewing court with background information to help explain the meaning of the information disclosed in the forms, so long as the explanatory background information is not used as additional grounds for justifying the validation.

The material facts in this case consist of the contents of the written forms provided to Cabrera during the validation process. Those forms are three general chronos*fn2 and the form used to notify Cabrera of the validation decision. The material facts of this case do not include information withheld from the written disclosure for safety or security reasons because CDCR does not contend it withheld information on this ground.

The possibility that this court should consider information from outside the validation forms is raised by CDCR's attachment of a declaration of Everett W. Fischer to its return. We, however, have not relied on that declaration because of our conclusion that the material facts justifying validation must be disclosed in the forms and because the disclosures made in the forms provided to Cabrera are straightforward. Consequently, an expert's insight into the prison environment is not needed to understand the disclosures and, as a result, Fischer's declaration is not needed to provide explanatory background information.*fn3

II. Material Facts Established by the Pleadings

The next question is whether any material facts are disputed by the parties.*fn4 Whether material facts are regarded as admitted or disputed in a habeas corpus proceeding is determined by applying the pleading rules set out in People v. Duvall, supra, 9 Cal.4th 464. In a habeas corpus proceeding, the pleadings consist of (1) the inmate's petition, (2) CDCR's return, and (3) the inmate's traverse. We will not provide a detailed explanation of the rules applied to these pleadings because this case is relatively simple. As a general principle, a party's failure to dispute factual allegations made by the other party, in the manner described in People v. Duvall, is deemed an admission of the truth of those factual allegations.*fn5 (Duvall, at pp. 478, 480.) For example, a return is required to "allege facts that respond to the factual allegations in the habeas corpus petition." (Id. at p. 479, italics added.)

The pleadings filed here by both parties contain copies of the written forms that were delivered to Cabrera in connection with the gang validation. Those copies do not conflict with one another. Therefore, the parties are in agreement as to the contents of the written forms. Because the contents of those forms constitute the material facts in this case, we conclude the material facts are undisputed and, thus, there is no need for an evidentiary hearing.


The context for the material facts--the contents of the written forms--includes the following background information about Cabrera and the investigation into his possible association with EME.


In February 2003, Cabrera was convicted of robbery, burglary, receiving stolen property, and possession of drug paraphernalia. In April 2003, he was sentenced to a prison term of 62 years to life. Since 2003, Cabrera has been an inmate at CCI. Since 2005, he has been assigned to yard 4-A.

Cabrera has no gang tattoos and has never been charged with violating section 3023, which prohibits an inmate from knowingly promoting, furthering, or assisting a prison gang.

On April 3, 2008, some Hispanic inmates in yard 4-A were involved in an assault on prison staff. Cabrera was in his cell at the time of the assault and did not participate. On April 8, 2008, prison officials conducted an operation named "Swift Response" that targeted all Hispanic inmates in yard 4-A in an effort to identify and neutralize active gang members. During the course of this operation, Institutional Gang Investigator (IGI) E. Sanchez examined Cabrera's personal property and discovered photocopies of drawings. IGI Sanchez believed that four of the drawings were evidence of Cabrera's association with EME.

Three days later, Cabrera and approximately 30 other inmates were removed from the general population and placed in administrative segregation pending validation as members or associates of EME.

Contents of the Written Forms

IGI Sanchez prepared three general chronos dated April 8, 2008, to document the evidence and the reasons why the evidence indicated Cabrera was associating with members or associates of EME. Two of the general chronos prepared by IGI Sanchez concern drawings that CDCR concluded establish a direct link between Cabrera and affiliates of EME.*fn7 Because the existence of a direct link is the primary question in this proceeding, these two general chronos and their subject drawings are central to this case.

Drawing by Associate Garcia--Direct Link

One of the general chronos concerns a drawing allegedly made by Fermin Garcia, a validated associate of EME. The drawing contains a female Mesoamerican warrior holding the shaft of a spear in her left hand. A standard is mounted at the top of the shaft. The standard is circular and slightly larger than the head and headdress of the warrior. "Matlactlomei" symbols appear at the three o'clock and nine o'clock positions on the standard. The Matlactlomei consists of two vertical lines and a vertical column of three dots and is the Mayan symbol for the number 13. Each line has a numerical value of five and each dot has a numerical value of one. Thus, the sum of the two lines and three dots is 13. Matlactlomei is translated to mean 13 within the Nahuatl language. The number 13 is used as a designation for EME because the 13th letter in the alphabet is "M." (See People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1544 [13 used to designate EME].)

The lower right hand corner of the drawing contains "FERMIN 00" printed in block letters.*fn8 The CDC Form 128-B states that IGI Sanchez "identified the person who drew the picture, as inmate Fermin Garcia, D-88896, aka Fox, a validated associate of [EME], (date of validation 7-15-2003)."

Immediately following the first paragraph of the form, near the left-hand margin, is a two-inch by two-and-a-half-inch copy of the drawing. To the right of the drawing are two text boxes. A line extends from the upper box to the Matlactlomei symbol in the drawing. A line extends from the lower box to "FERMIN 00." The text inside each box reads: "Direct link identified as Fermin Garcia D-88896."

Below the drawing and the text boxes, a paragraph explains how the Matlactlomei represents 13 and, in turn, how 13 is used to designate EME. The last paragraph of the form states: "This chrono (Direct link) should be used as one (1) source towards validating ...

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