Trial Court: Santa Clara County Superior Court Superior Court No. 75071 Trial Judge: Hon. Jerome E. Brock (Santa Clara County Super. Ct. No. 75071)
The opinion of the court was delivered by: Premo, Acting P.J.
CERTIFIED FOR PUBLICATION
The Board of Parole Hearings (Board) found inmate Brice Glasgow suitable for parole, but Governor Arnold Schwarzenegger reversed the Board's decision based, in part, on confidential information in Glasgow's prison file from inmate informants. Glasgow then filed a petition for a writ of habeas corpus in the superior court challenging the Governor's decision and naming prison warden Tim Ochoa (Warden) as respondent. In the proceeding, the superior court ordered the Warden to choose between producing unredacted copies of the confidential information to Glasgow or opposing Glasgow's petition without relying on the confidential information. The Warden has filed a petition for a writ of mandate seeking immediate relief from this order. We issued a temporary stay of the superior court proceedings, requested opposition and reply, granted the Warden's request to file the confidential information here under seal, and issued a Palma notice (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180), advising the parties that this court was considering issuing a peremptory writ of mandate in the first instance. We received Glasgow's opposition and the Warden's reply. We will grant the petition and issue a peremptory writ in the first instance.
Although pretrial writ relief is sparingly granted, where the trial court's ruling may properly be evaluated as to its correctness or erroneousness as a matter of law, and where leaving it in place may substantially prejudice the petitioner's case, appellate courts may entertain a writ petition. (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1274-1275.) If the petitioner lacks an adequate means for seeking timely relief, such as a direct appeal, or where the petitioner may incur prejudice that is not correctable on appeal due to the challenged ruling, the appellate courts may decide to intervene. (Id. at p. 1274.) The criteria for allowing writ relief will be applied depending upon the facts and circumstances of the particular case. (Ibid.)
Here, we deem it appropriate for this court to review the Warden's challenge to the superior court's pretrial order. There is no direct appeal from the order and leaving the order in place possibly presents the Warden with the untenable choice of disclosing the identity of confidential informants or defending against a habeas corpus petition without relevant, and potentially pivotal, evidence.
In 1980, Glasgow shot and killed his niece's boyfriend and shot his niece in the back. A jury convicted him of first degree murder and assault with a deadly weapon. The trial court sentenced him to 30 years to life.
In April 2010, the Board found Glasgow suitable for parole. At the hearing, the Board acknowledged having confidential material indicating that Glasgow was suspected of "selling [his prescribed cancer pain reliever] or doing something inappropriate with it" in 2008. But it indicated that it would not be using the information in making its decision after Glasgow affirmed that there was no investigation pending against such a charge and explained that he was given his prescription once a day by a prison authority and required to consume it in the authority's presence.
In September 2010, the Governor reversed the Board's decision. He summarized his reasons at the end of a seven-page explanation as follows: "The gravity of the crime supports my decision, but I am particularly troubled by the evidence that Glasgow has not gained a sufficient understanding of the circumstances of his life offense, has not fully accepted responsibility for his actions, and has not demonstrated genuine remorse for the murder. I am also concerned by his recent elevated risk assessments, his negative conduct in prison, and his substantial criminal history." Earlier in the letter, the Governor had noted that Glasgow's "confidential file also contained information, deemed reliable, that indicated he was trafficking prescription drugs as recently as 2008."
In October 2010, Glasgow filed the underlying habeas corpus petition. The petition does not challenge the Governor's use of the confidential file, but the superior court noted and commented in its order to show cause that "the Governor states that there is reliable information that [Glasgow] was dealing prescription medication as recently as 2008" and "There is no indication whether [Glasgow] was provided with this information prior to his parole suitability hearing; no such allegations were noted by the Board."
The Warden filed a return that mentioned nothing about the confidential information. A few weeks later, he filed a motion for an in camera review of the confidential records in Glasgow's file, accompanied by a notice of lodging the records conditionally under seal and a request to file the confidential records under seal. The motion explained the following: "The confidential records at issue here identify by name and factual circumstances inmates who informed correctional officers that [Glasgow] has sold them illegal drugs. The most recent of which was in 2008. [¶] The records themselves indicate that the safety and security of the confidential informants and CDCR's institutions will be prejudiced if the confidential records are publicly disclosed. The authors of the documents note that the information is confidential pursuant to [California Code of Regulations, title 15, section] 3321 and indicate why he/she believes that the information is reliable (e.g. the confidential source provided self-incriminating information and/or the information was corroborated by another source). The authors, specifically state that dissemination of the confidential information would jeopardize the safety and security of the informants and the institution. The clear, demonstrated interest in the safety and security of inmates and correctional staff should override the public's general interest in reviewing these documents. [¶] Furthermore, the proposed sealing is narrowly tailored and there are no less restrictive means available. [The Warden] is requesting that only the confidential records reviewed by the Governor be sealed. Any method less restrictive than sealing the records will not suffice to protect CDCR's interest in safety and security of its institutions and inmates as disclosing any portion of these records could reveal the identity of the confidential informant(s) (e.g. by disclosing the factual circumstances that only a few inmates know about)."
Glasgow responded by filing his own motion to unseal and disclose the confidential information. He claimed that he was "entitled to the factual information provided by the confidential informant in order to execute his right to due process under both the California and United States Constitutions." He argued: "Because it has been requested that the confidential information be sealed and Mr. Glasgow was denied any information regarding the nature or content of the information he is unable to challenge the veracity of the allegations stated therein, unable to present a defense to the allegations, and unable to challenge whether 'some evidence' existed to support the Governor's reversal of the Board's finding of suitability." He asserted that "the Governor failed to follow the regulatory protections that mandate that Mr. Glasgow be provided with as much information as possible without jeopardizing the identity of the source and also provide Mr. Glasgow with proof of reliability." He "submitted that portions of the confidential information can be redacted and submitted to Mr. Glasgow's counsel so that an appropriate defense can be prepared" and asked "that he be provided as much of the confidential information, without jeopardizing any individuals, so that he can present a defense."
On March 29, 2011, the superior court issued an order in which the court acknowledged that it had reviewed the confidential documents relied upon by the Governor: "Having reviewed these documents under seal, this Court finds that the information cited by the Governor is facially relevant and cannot be summarily rejected as unreliable. [The Warden] argues that the material should remain under seal; [Glasgow] claims that to deny him liberty based upon confidential information would deprive him of due process." It concluded as follows: "Here, [the Warden] seeks to have this Court seal not just the identity of anyone involved in the reports, but the reports in their entirety and then, presumably, cite those records as a basis for upholding the Governor's decision. Thus, essentially, [the Warden] wants this Court to sanction the continued deprivation of [Glasgow's] liberty without giving him a meaningful opportunity to refute the charges against him. Such a procedure is untenable. If [Glasgow] is to be condemned by the charge, [Glasgow] must be provided with enough information about the allegation to mount a meaningful defense, if one is to be made. While this Court is mindful of the danger posed by the release of any names associated with the charge, [Glasgow] would be no better off than he is now with a disclosure that gives slightly more flesh to ...