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In Re Jason Michael Lopez

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...


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