ORIGINAL PROCEEDING: Petition for Writ of Habeas Corpus. (Super. Ct. No. 11F00471)
The opinion of the court was delivered by: Butz , J.
CERTIFIED FOR PUBLICATION
This case concerns a constitutional challenge to an amendment of Penal Code section 2933.6. (Pen. Code, § 2933.6, subd. (a); hereafter, section 2933.6(a) or the section 2933.6(a) amendment.)*fn1 That amendment, effective January 25, 2010, makes prison gang members, who are placed in an administrative segregation unit upon validation, ineligible to earn sentence reduction conduct credits during such placement.
Through a petition for writ of habeas corpus, petitioner Christopher Efstathiou challenges this amendment on ex post facto and procedural due process grounds.*fn2
We shall deny the petition. As for ex post facto, the amendment does not apply retrospectively to petitioner. As for procedural due process, the determination that petitioner has chosen to remain an active prison gang member was supported by the applicable legal standard of "some evidence."
FACTUAL AND PROCEDURAL BACKGROUND
In 1999, the Department of Corrections and Rehabilitation (the Department) validated petitioner as a member of the Nazi Low Riders (NLR) prison gang. On January 5, 2006, the Department again validated petitioner as an NLR member. In 2009, petitioner was paroled but returned to prison in late 2009 after pleading guilty to a commercial burglary.
Upon his 2009 return to state prison, petitioner was initially reviewed by the Department's Institutional Classification Committee (the Department's ICC or the ICC) and placed in an Administrative Segregation Unit (ASU) on November 25, 2009, as he was "claiming to be an NLR Prison Gang Member."
Effective January 25, 2010, section 2933.6(a), regarding sentence reduction conduct credits, was amended to read (relevant amendment is italicized below): "(a) Notwithstanding any other law, a person who is placed in a Security Housing Unit, Psychiatric Services Unit, Behavioral Management Unit, or an Administrative Segregation Unit for misconduct described in subdivision (b) [subd. (b) lists various violent offenses such as murder, rape, and assault; as well as escape, hostage-taking, and riotous property destruction] or upon validation as a prison gang member or associate is ineligible to earn [sentence reduction conduct] credits pursuant to Section 2933 or 2933.05 during the time he or she is in the Security Housing Unit, Psychiatric Services Unit, Behavioral Management Unit, or the Administrative Segregation Unit for that misconduct." (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 44.)
Prior to this amendment, it was apparently possible for validated prison gang members placed in an ASU to earn conduct credits totaling one-third of their sentences. (See In re Sampson (2011) 197 Cal.App.4th 1234, 1237-1238.)
Following its November 2009 initial review placing petitioner in ASU, and after the section 2933.6(a) amendment became effective, the Department's ICC concluded on February 4, 2010, in a special review of petitioner: "Due to [petitioner] being a validated Member of the Nazi Low Riders, per 128-B-2 [validation form] dated 1/5/06, [petitioner] is ineligible to earn [conduct] credits pursuant to [Penal Code sections] 2933 or . . . 2933.5. [Petitioner] is being reviewed by [the] ICC for the sole purpose of changing the work group/privilege group in accordance with the changes in legislation. Therefore, based upon a review of the CDC-114D [the Department file], case factors, and thorough discussion with [petitioner], [the ICC] elects to: RETAIN ASU DUE TO BEING A VALIDATED MEMBER OF THE NLR . . . ."
Petitioner seeks a writ of habeas corpus, claiming that the January 25, 2010 amendment to section 2933.6(a) is unconstitutional on ex post facto and procedural due process grounds.
On May 12, 2011, we issued to the Department an order to show cause why the writ should not be granted. As a result, we received formal briefing from ...