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In Re Jason Michael Lopez

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Lassen)


December 19, 2011

IN RE JASON MICHAEL LOPEZ ON HABEAS CORPUS.

(Super. Ct. No. CHW-2883)

The opinion of the court was delivered by: Butz ,j.

In re Lopez

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

An amendment to Penal Code section 2933.6, 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. (Pen. Code, § 2933.6, subd. (a); hereafter, section 2933.6(a) or the section 2933.6(a) amendment.)*fn1

In a petition for writ of habeas corpus, petitioner Jason Michael Lopez claims that applying the section 2933.6(a) amendment to him violates the constitutional precepts of due process and ex post facto, and is based on insufficient evidence. We disagree and shall deny the habeas petition.

FACTUAL AND PROCEDURAL BACKGROUND

On August 4, 2009, the Department of Corrections and Rehabilitation (the Department) placed petitioner in an administrative segregation unit (ASU), based on sufficient information to investigate him as an associate/member of the Northern Structure (NS) prison gang.

On January 22, 2010, petitioner was informed that his ASU placement was now based on his December 1, 2009 validation as an NS member. In a review of this matter on January 28, 2010, the Department's ASU classification committee approved the ASU placement, describing petitioner as an "active validated 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 . . . 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 Administrative Segregation Unit for that misconduct." (§ 2933.6(a), as amended by 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--and whose imprisonment was based on a violent felony conviction--to earn conduct credits up to 15 percent of their sentences. (See § 2933.1, subd. (a); see also In re Sampson (2011) 197 Cal.App.4th 1234, 1237-1238.)

The trial court denied petitioner's request for writ of habeas corpus.

Petitioner then filed a petition for writ of habeas corpus with us, contending that applying the section 2933.6(a) amendment to him violated procedural due process and ex post facto principles, and that his gang validation was based on insufficient evidence.

On February 10, 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 the Attorney General and from petitioner.

DISCUSSION

I. Standard of Review

We review the two constitutional issues--procedural due process and ex post facto--de novo, i.e., independent of the trial court. (See People v. Cromer (2001) 24 Cal.4th 889, 893-894.) We review the sufficiency of the evidence regarding petitioner's gang validation to see if that determination is supported by "some evidence" in the record. (In re Furnace (2010) 185 Cal.App.4th 649, 659; Superintendent v. Hill (1985) 472 U.S. 445, 454-456 [86 L.Ed.2d 356, 364-365].)

II. Petitioner Was Not Denied Procedural Due Process

Petitioner contends the Department deprived him of his state and federal procedural due process rights when it validated him as a prison gang member and consequently placed him in segregated housing, thereby making him ineligible, under the section 2933.6(a) amendment, to earn sentence reduction conduct credits.

Specifically, petitioner claims the Department, in validating him, employed the procedural protections that have been held adequate, under Wilkinson v. Austin (2005) 545 U.S. 209 [162 L.Ed.2d 174] (Wilkinson), for placement in segregated housing (i.e., adequate notice and opportunity to be heard), rather than the more extensive procedural protections that must be employed, under Wolff v. McDonnell (1974) 418 U.S. 539 [41 L.Ed.2d 935] (Wolff), where a prisoner's previously earned good conduct credits are revoked as punishment for specific, serious misbehavior in prison. Petitioner asserts "[h]e should have been provided the [following] two additional procedural protections required by Wolff and provided by the [California] regulations governing the loss of [conduct] credits for [prison] misconduct--an opportunity to call witnesses and present evidence[,] and assistance from another inmate or prison staff."

The problem for petitioner is that, assuming for the sake of argument that these two Wolff protections apply here, the Department essentially provided these two protections to him.

Preliminarily, we must clarify the nature of these two additional procedural protections afforded by Wolff. As for the opportunity to call witnesses and present evidence, Wolff provides that protection only if doing so would not be unduly hazardous to institutional safety or correctional goals. (Wolff, supra, 418 U.S. at p. 566 [41 L.Ed.2d at p. 956].) And regarding assistance from another inmate or prison staff, Wolff provides that protection only if the inmate is illiterate or the complexity of the issue makes it difficult to collect and present the evidence necessary to adequately comprehend the case. (Ibid.) We turn now to how these two procedural protections played out here.

We first consider the protection of presenting evidence and calling witnesses. Under the applicable California regulation governing prison gang member validation, the inmate being investigated for validation is interviewed by Department personnel and given an opportunity to be heard concerning the source items*fn2 used in the validation process. (Cal. Code Regs., tit. 15, § 3378, subd. (c)(6)(A).) Under this regulation, the source items shall be disclosed to the inmate, and the interview shall be documented and include a record of the inmate's opinion on each of the source items used in the validation. (Id. at subd. (c)(6)(C), (D).) In this fashion, the inmate being considered for gang validation may present evidence.

Admittedly, the validation process does not encompass calling witnesses. But, as we have seen, Wolff provides this protection only if institutional safety and correctional goals are not unduly jeopardized. Here, the context is prison gangs and institutional safety. Wilkinson described this context: "Prison security, imperiled by the brutal reality of prison gangs, provides the backdrop of the State's interest [in the level of due process to afford]. Clandestine, organized, fueled by race-based hostility, and committed to fear and violence as a means of disciplining their own members and their rivals, gangs seek nothing less than to control prison life and to extend their power outside prison walls." (Wilkinson, supra, 545 U.S. at p. 227 [162 L.Ed.2d at pp. 192-193.) In this context, the calling of witnesses, at a minimum, is problematic. (See Wolff, supra, 418 U.S. at p. 566 [41 L.Ed.2d at pp. 956-957].) Indeed, here, the ASU classification committee's decision to retain petitioner in ASU as a validated prison gang member was upheld on administrative review with the finding: "[Petitioner] has proven to be a threat to the security of the institution by his association with a prison gang engaged in a criminal conspiracy against the safety of others." As Wilkinson also recognized, procedural protections less demanding than those required by Wolff may be employed "[w]here the [proceeding at issue] draws more on the experience of prison administrators, and where the State's [due process] interest implicates the safety of other inmates and prison personnel . . . ." (Wilkinson, supra, 545 U.S. at pp. 228-229 [162 L.Ed.2d at p. 193].)

That brings us to Wolff's procedural protection of assistance from another inmate or prison staff. As noted, Wolff requires this protection only if the inmate is illiterate or the complexity of the issue makes it difficult to present the necessary evidence. Neither condition is present here. California's validation regulation provides that the "inmate's mental health status and/or need for staff assistance shall be evaluated prior to [his validation] interview. . . ." (Cal. Code Regs., tit. 15, § 3378, subd. (c)(6)(F).) The record shows that petitioner could communicate effectively and did not require mental health services, and the issue was not complex; consequently, no staff assistant was assigned.

We conclude that petitioner was not deprived of procedural due process regarding his prison gang validation and consequent placement in ASU.

III. Sufficiency of the Evidence Regarding Validation-- the "Some Evidence" Standard Is Met

Petitioner contends the evidence was insufficient to validate him as an NS prison gang member. We disagree.

As we have quoted from the Sampson decision, "The 'validation' of a gang member involves no more and no less than the [Department's] recognition of at least three reliable, documented bases ('independent source items'), for concluding that an inmate's background, person, and/or belongings indicate his or her active association with other validated gang members or associates, and at least one of those bases constitutes a direct link to a current or former validated gang member or associate." (In re Sampson, supra, 197 Cal.App.4th at p. 1242; see also In re Furnace, supra, 185 Cal.App.4th at p. 657; Cal. Code Regs., tit. 15, § 3378, subd. (c)(3).)

We review the validation decision under the deferential some evidence standard, which is met if "'there was some evidence from which the conclusion of the administrative tribunal could be deduced . . . .'" (Superintendent v. Hill, supra, 472 U.S. at p. 455 [86 L.Ed.2d at p. 365], as quoted in In re Furnace, supra, 185 Cal.App.4th at p. 659.) The some evidence standard is met here.

The Department based petitioner's prison gang validation on four source items, two of which were confidential.

The first source item involved two tattoos on petitioner's left hand--a huelga bird and the roman numeral "XIV"--both of which are symbols the NS has adopted.

The next two source items were confidential.*fn3 The first confidential item was a September 2009 confidential memorandum that documented a gang debriefing session of a formerly validated NS associate. This former NS associate, based on personal knowledge and self-incriminating information, identified petitioner as a "Northern Teacher" of NS (in Building 8 of High Desert State Prison), a position of authority within the NS chain of command. This former NS associate was a direct link to petitioner.

The second of the two confidential source items was an October 2008 confidential memorandum detailing the discovery of an NS prison gang roster in the personal property of another inmate who later was validated as an NS member. Petitioner's name and monikers, along with a bevy of other information identifying him, appeared on the roster. This source item also directly linked petitioner with the NS.

The fourth and final source item was written material discovered in petitioner's personal property in June 2005. The written material comprised three handwritten notes composed in the NS "mini-writing" style. The first note included a drawing of a huelga bird, with a birthday greeting directed petitioner's way; the second note was a copy of the NS constitution and rules; and the third note included an NS training exercise.

Petitioner challenges the reliability of the four source items, but, as described above, viewed individually and collectively, they contain indicia of reliability. (See In re Furnace, supra, 185 Cal.App.4th at p. 662 ["Although [the validation regulation] requires three 'independent' source items [to validate], it is nonetheless appropriate to consider the interplay of the source items in determining whether there is some evidence of gang activity."].)

We conclude that some evidence supported the Department's validation of petitioner as an NS prison gang member.*fn4

IV. The Section 2933.6(a) Amendment Does Not Violate Ex Post Facto

As noted, the section 2933.6(a) amendment, effective January 25, 2010, makes prison gang members who are placed in an ASU upon validation, like petitioner, ineligible to earn sentence reduction conduct credits during such placement.

Petitioner claims, as relevant here, that since the application of the section 2933.6(a) amendment to him is based entirely on gang validation events occurring before the amendment's effective date of January 25, 2010, the amendment is retrospective and therefore it violates the constitutional prohibition against ex post facto laws. Assuming for the sake of argument that petitioner has preserved this issue, we disagree on the merits.

We recently considered this issue in In re Efstathiou (2011) 200 Cal.App.4th 725. We said there:

"For a criminal law to be ex post facto, (1) it must be retrospective, that is, it must apply to events occurring before its enactment, and (2) it must disadvantage the offender affected by it; that is, it must alter the definition of criminal conduct or increase the punishment for a crime. (Weaver v. Graham (1981) 450 U.S. 24, 29 [67 L.Ed.2d 17, 23] (Weaver); California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 506 & fn. 3 [131 L.Ed.2d 588, 595 & fn. 3]; Lynce v. Mathis (1997) 519 U.S. 433, 441 [137 L.Ed.2d 63, 72].) .

"'The critical question [for retrospective purposes] is whether the law changes the legal consequences of acts completed before its effective date.' (Weaver, supra, 450 U.S. at p. 31 [67 L.Ed.2d at p. 24].)

"In helping us decide that question here, we are fortunate to have two bedrock decisions that serve as opposing guideposts--one from the highest court in the land (Weaver, supra, 450 U.S. 24 [67 L.Ed.2d 17]) and the other from the highest court in our state (In re Ramirez (1985) 39 Cal.3d 931).

"In Weaver, the United States Supreme Court invalidated on ex post facto grounds a new state statute which reduced the amount of sentence reduction conduct credits a prisoner could earn, when that statute was applied to a particular inmate who committed his crime before the statute was enacted. Critically, in Weaver, the inmate's credits were reduced through no fault of his own; the statute simply reduced the credits he could earn for good behavior, starting on the date of its enactment. The Weaver court concluded the statute was retrospective because it changed the 'legal consequences' of crimes committed before its effective date and was part of the inmate's 'punitive conditions' even though not technically part of his sentence. (Weaver, supra, 450 U.S. at pp. 31-33 [67 L.Ed.2d at pp. 24-25.)

"In contrast to Weaver stands Ramirez. In Ramirez, the California Supreme Court found a statutory amendment was not retrospective and therefore did not violate the ex post facto principle. The statutory amendment at issue in Ramirez increased the number of sentence reduction credits that could be forfeited for prison misbehavior. (In re Ramirez, supra, 39 Cal.3d at pp. 932-933.) The amendment was applied to an inmate who committed his criminal offense, for which he was imprisoned, before the effective date of the amendment.

"Ramirez distinguished Weaver as follows: 'There is a critical difference between a diminution of the ordinary rewards for satisfactory performance of a prison sentence--the issue in Weaver--and an increase in sanctions for future misbehavior in prison--which is at issue here. Here, [unlike in Weaver, the] petitioner's opportunity to earn good behavior and participation credits is unchanged. All that has changed are the sanctions for prison misconduct. Unlike Weaver, [the] petitioner's effective sentence is not altered by the [statutory amendment] unless [the] petitioner, by his own action, chooses to alter his sentence.' (In re Ramirez, supra, 39 Cal.3d at p. 937.)" (In re Efstathiou, supra, 200 Cal.App.4th at pp. 729-730.)

As we said in Efstathiou, "The ex post facto issue here reduces to whether the section 2933.6(a) amendment falls on the Weaver side of the ledger or on the Ramirez side." (In re Efstathiou, supra, 200 Cal.App.4th at p. 730.) As we shall explain, we look to Ramirez as our guidepost, and conclude the section 2933.6(a) amendment is not an ex post facto law because it does not apply retrospectively to petitioner.

The evidence in petitioner Lopez's record shows: (1) petitioner was "validated" as an NS prison gang member on December 1, 2009, based on four independent source items; (2) petitioner was found, in the ASU classification committee's "subsequent review" of January 28, 2010, to be an "active validated gang member" (italics added); and (3) the ASU classification committee's January 28, 2010 decision to retain petitioner in ASU was upheld on administrative review on February 16, 2010, with the finding, "[Petitioner] has proven to be a threat to the security of the institution by his association with a prison gang engaged in a criminal conspiracy against the safety of others." As we noted in Efstathiou, "'The "validation" of a [prison] gang member involves no more and no less than [the Department's] recognition of at least three reliable, documented bases ("independent source items") for concluding that an inmate's background, person, and/or belongings indicate his or her active association with other validated gang members or associates, and at least one of those bases constitutes a direct link to a current or former validated gang member or associate.' (In re Sampson, supra, 197 Cal.App.4th at p. 1242, italics added; see In re Furnace[, supra,] 185 Cal.App.4th [at pp.] 657-658; Cal. Code Regs., tit. 15, §§ 3378, subd. (c)(2), (3), (8); 3321.)" (In re Efstathiou, supra, 200 Cal.App.4th at p. 730, quoting Sampson.)

This evidence shows that petitioner Lopez has chosen to continue to be an active member of the NS prison gang while he is incarcerated in prison--a choice that has continued after the January 25, 2010 effective date of the section 2933.6(a) amendment. Furthermore, this choice has necessitated a placement in ASU. In short, then, petitioner's choice to continue to be an active member of a prison gang, which has necessitated his placement in ASU, is the equivalent of continuing to engage in misconduct in prison. And since petitioner has chosen to engage in this conduct on and after the January 25, 2010 effective date of the section 2933.6(a) amendment, the amendment may be applied to deny him sentence reduction credits--for such misconduct from that date--without violating ex post facto principles, because the amendment is not being applied retrospectively to him. A law is retrospective if it applies to events occurring before its enactment. (Weaver, supra, 450 U.S. at p. 29 [67 L.Ed.2d at p. 23].) With respect to petitioner, the section 2933.6(a) amendment applies to events occurring after its enactment. (See In re Ramirez, supra, 39 Cal.3d at pp. 936-937.)*fn5

Thus, as we said in Efstathiou, "the section 2933.6(a) amendment is akin to the statutory increase in sentence credit forfeitures for 'future misbehavior in prison' found constitutional on ex post facto grounds in Ramirez. (In re Ramirez, supra, 39 Cal.3d at p. 937.)" (In re Efstathiou, supra, 200 Cal.App.4th at p. 731.) Ramirez's remark about the petitioner there applies equally to petitioner here: "Unlike Weaver, petitioner[] [Ramirez's] effective sentence is not altered by the [challenged statutory increase in credit forfeitures] unless petitioner [Ramirez], by his own action, chooses to alter his sentence." (In re Ramirez, at p. 937.) By choosing to continue to be an active member of the NS prison gang after the effective date of the section 2933.6(a) amendment, petitioner here has chosen to alter his sentence.

Petitioner Lopez counters that any alteration to his sentence is not based on any finding of misconduct on his part, but rather on a finding as to his mere status. Again, though, it is difficult to argue that choosing to be an active prison gang member while in prison is not prison misconduct. As for status, NS membership is not some condition or affliction over which petitioner has no control; it is a conscious choice, a volitional act. Petitioner may choose to end his active prison gang membership and placement in segregated housing through one of two formal routes: (1) he becomes an "inactive" gang member after six years of noninvolvement in gang activity; or (2) he completes the "debriefing process," demonstrating that he has dropped out of the gang. (Cal. Code Regs., tit. 15, §§ 3341.5, subd. (c)(2)(A)1, 3378, subd. (e), 3378.1, respectively; see In re Sampson, supra, 197 Cal.App.4th at p. 1243.)*fn6

In the recent decision in Sampson, the Court of Appeal, First Appellate District, Division One, rejected a habeas petitioner's claim there, similar to petitioner Lopez's claim here, that although he (petitioner Sampson) continued to be a validated prison gang member in administrative segregation, he "'did nothing'" after January 25, 2010, to bring himself within the ambit of the section 2933.6(a) amendment. (In re Sampson, supra, 197 Cal.App.4th at p. 1242.) The Sampson court disagreed with Sampson's claim that he "'did nothing,'" noting, in part, that Sampson aborted the gang debriefing process after January 25, 2010. (Sampson, at pp. 1242-1243, citing & quoting In re E.J. (2010) 47 Cal.4th 1258, 1280 [which rejected an ex post facto challenge to new residency restrictions applicable to registered sex offender parolees; "'[t]he new residency restrictions appl[ied] to events occurring after their effective date--[registrants'] acts of taking up residency in noncompliant housing upon their release from custody on parole after the statute's effective date'"]; see also Sampson, at pp. 1239, 1244.)

Admittedly, the high court in Weaver noted--in concluding that the statute there reducing earnable conduct credits operated retrospectively to a sentence imposed before the statute's effective date--"that a prisoner's eligibility for reduced imprisonment is a significant factor entering into both the defendant's decision to plea bargain and the [trial] judge's calculation of the sentence to be imposed." (Weaver, supra, 450 U.S. at p. 32 [67 L.Ed.2d at p. 25].) Petitioner Lopez claims that a "significant factor" in entering his pleas was the understanding that he would earn conduct credits against his sentence, as validated prison gang members in an ASU apparently could do prior to the section 2933.6(a) amendment. (See In re Sampson, supra, 197 Cal.App.4th at pp. 1237-1238.)

However, in light of our prior analysis, we, like the court in Ramirez, "reject the notion that the sanctions for possible future prison misconduct constitute a 'significant factor' for either the trial judge or [the petitioner]." (In re Ramirez, supra, 39 Cal.3d at p. 938, italics added.) As we explained in Efstathiou, "There is a plain incongruity between continuing by choice to be an active member of a prison gang while incarcerated in prison (necessitating segregated housing), and continuing to earn good conduct credits. All we can say is that for those active prison gang members who did so choose and earn before the section 2933.6(a) amendment became effective, they were beneficiaries of the incongruity. Let us not forget what ultimately is at issue here: a prison inmate's ability to earn sentence reduction credits for good behavior in prison." (In re Efstathiou, supra, 200 Cal.App.4th at p. 732.)

We conclude that the section 2933.6(a) amendment does not violate ex post facto principles as applied to petitioner Lopez.

DISPOSITION

The petition for writ of habeas corpus is denied.

We concur: BLEASE , Acting P. J. HULL , J.


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