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In Re Angel Julian Fernandez

January 16, 2013

IN RE ANGEL JULIAN FERNANDEZ, ON HABEAS CORPUS; IN RE HUGO ENRIQUE SALDANA ON HABEAS CORPUS.


ORIGINAL PROCEEDINGS: Petitions for Writ of Habeas Corpus. F. Donald Sokol, Judge. Petition denied in case No. C070016. Petition Granted in case No. C070075. (Super. Ct. No. CHW 2876) (Super. Ct. No. CHW 2890)

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

CERTIFIED FOR PUBLICATION

These two petitions for writ of habeas corpus challenge separate gang validation decisions by the California Department of Corrections and Rehabilitation (CDCR) in which prison staff determined that petitioners, prison inmates Angel Fernandez and Hugo Saldana, were active associates of the Northern Structure (NS) prison gang. Both decisions are premised on three sources of information used to establish petitioners' involvement with the gang, the minimum required under the applicable regulations. The deferential " 'some evidence' " standard governs our review of the evidence and whether it supports the validation decisions pursuant to the applicable regulations. (In re Efstathiou (2011) 200 Cal.App.4th 725, 733 (Efstathiou); In re Furnace (2010) 185 Cal.App.4th 649, 659 (Furnace).)

Petitioners claim the evidence is inadequate. Some of the sources of information include rosters listing various inmates and additional personal information. The rosters were discovered along with other gang-related documents in the possession of inmates other than petitioners. Other evidence includes debriefing reports by inmates who had been involved in the NS, as well as (in Fernandez's case) a disciplinary log, maintained by the NS to document infractions of NS rules, that was found in another inmate's possession.

Fernandez claims that the memorandum describing the roster of prison inmates did not adequately articulate why it could be inferred that it listed inmates who were involved in the NS. (See Cal. Code Regs., tit. 15, § 3378, subd. (c)(8)(C).)*fn1 However, our review of two other sources reveals that the roster does in fact include the names of other inmates who are involved with the NS. Further, our review indicates the other two sources are valid, independent evidentiary sources. We shall conclude that three adequate sources (including the roster) support the validation of Fernandez as a gang associate.

Saldana was validated based on two rosters, similar to the roster used in Fernandez's case, as well as a single additional source, the debriefing report of another inmate. Applying the deferential "some evidence" standard of judicial review, we shall reverse the decision in Saldana's case because the debriefing report does not support the decision. As we shall explain, the report does not satisfy the evidentiary requirement specified in the regulations that requires that a debriefing report refer to specific gang-related conduct. (See § 3378, subd. (c)(8)(M); see also § 3378, subd. (c)(8)(H).) Nor is there other evidence indicating how Saldana was actually involved with the NS.

Petitioners also raise related issues concerning the validation process and the use of confidential source material in the validation process.

We shall conclude that the validation process employed by CDCR complies with due process requirements and find no prejudicial error with respect to the limited disclosure of confidential source material.

PROCEDURAL BACKGROUND

Both petitioners were validated as associates of the NS by CDCR in 2009. The evidence supporting the validation decisions will be summarized in the discussion portion of this opinion. The validation process included: (1) notice of the source items that prison staff offered against them; (2) an interview and an opportunity to file a written response, which both petitioners did; and (3) notice of the subsequent gang validation decision explaining the basis for that decision. Petitioners challenged the respective validation decisions by administrative appeal. They were denied relief at each level of review and exhausted their administrative remedies.

Petitioners then sought relief by filing separate petitions for writ of habeas corpus in the superior court. The superior court initially denied both petitions without reviewing the confidential information that prison staff had relied upon in making the validation decisions. Each petitioner then filed his first petition for writ of habeas corpus in this court. In both cases, we obtained the confidential source information before issuing orders to show cause returnable in the superior court. (In re Fernandez (Mar. 24, 2011, C067013) [order to show cause issued]; In re Saldana (Apr. 7, 2011, C066975) [order to show cause issued].)

After the appointment of counsel and briefing, the superior court entered new decisions denying the petitions. In both cases, the superior court briefly stated it had reviewed the source information and concluded it satisfied the "some evidence" standard. The superior court also rejected related constitutional and procedural claims raised by the petitioners.

Petitioners then filed the current habeas corpus petitions in pro. per. in this court. We obtained informal opposition from respondent in both cases. We then consolidated the two matters, directed issuance of an order to show cause returnable before this court, and appointed counsel to represent petitioners. Respondent subsequently filed a return, and petitioners' counsel filed a traverse.

DISCUSSION

I. Legal Background

A. The Validation Decision Requirements

A gang "associate" is described in the administrative regulations as "an inmate/parolee or any person who is involved periodically or regularly with members or associates of a gang." (§ 3378, subd. (c)(4).) A gang "member" is described as "an inmate/parolee or any person who has been accepted into membership by a gang." (§ 3378, subd. (c)(3).) The validation of either a gang member or associate requires the recognition of three reliable source items indicative of active association with the gang, and at least one of those sources must constitute a direct link to a current or former validated gang member or associate.*fn2 (See Efstathiou, supra, 200 Cal.App.4th at p. 730; see also §§ 3378, subd. (c)(2), (3), (4), (8), 3321.) We accord deference to CDCR's interpretation of the governing regulations in matters that fall within its expertise. (In re Cabrera (2012) 55 Cal.4th 683 (Cabrera).) The current cases involve two different types of source items: (1) written material discovered by prison staff and (2) reports from debriefing inmates.

Written material may include "[a]ny material or documents evidencing gang activity such as the membership or enemy lists, constitutions, organizational structures, codes, training material, etc., of specific gangs." (§ 3378, subd. (c)(8)(C).) When such material is used as a source of gang validation evidence, "[s]taff shall articulate why, based on either the explicit or coded content, the written material is reliable evidence of association or membership with the gang." (Ibid.)

The next type of evidence comes from debriefing inmates who were involved with the prison gang. The regulation provides: "Only information referencing specific gang related acts or conduct shall be considered as a source item. Multiple sources of information relative to a single gang related offense or activity shall be considered a single source of validation." (§ 3378, subd. (c)(8)(M).)

A somewhat similar regulation applies when the source of information is an "informant," as opposed to (more specifically) a debriefing inmate. The regulation provides: "Staff shall articulate how the information specifically relates to the inmate's involvement with the gang as a member or associate. The information may be used as a source of validation if the informant provides specific knowledge of how he/she knew the inmate to be involved with the gang as a member or associate. Multiple confidential sources providing information regarding a single gang related incident or behavior shall constitute one (1) source item. Exclusive reliance on hearsay information provided by informants will not be used for validation purposes." (§ 3378, subd. (c)(8)(H).)

With respect to either written material or information provided by debriefing inmates and informants, the regulations anticipate the use of confidential information. All of the relevant regulations provide: "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." (ยง 3378, subd. (c)(8)(C), (H), (M).) A ...


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