Super. Ct. No. HCPB 10-5015) Trial Court: The Superior Court of Del Norte County Trial Judge: Honorable Robert W. Weir
The opinion of the court was delivered by: Pollak, J.
CERTIFIED FOR PUBLICATION
The warden of Pelican Bay State Prison (Pelican Bay) appeals from an order granting a writ of habeas corpus, reiterating an order entered some 10 years ago and affirmed by another division of this court in an unpublished decision. (Escalera v. Terhune (Feb. 10, 2004, A101614 [nonpub. opn.] (Escalera).) Both Escalera and the order now before us prohibit preferential treatment of inmates on the basis of ethnicity. The warden defends the prison's race-based practices as responding "to long-standing and constant hostilities between rival Hispanic prison-gangs and their disruptive-group affiliates, whose repeated efforts to attack each other at every opportunity threatened the safety and security of all the inmates housed there and the staff responsible for them." He characterizes the challenged order as "prohibiting Pelican Bay . . . from responding to ongoing violence between rival Hispanic prison gangs and their disruptive-group affiliates." We do not question the magnitude of the problems confronted by prison authorities in dealing with racially motivated violence of prison gangs. But the warden mischaracterizes the terms and effect of the challenged order and provides no justification for disregarding the prior court order and for practices that are not narrowly tailored to further prison security.
Pelican Bay racially segregates prisoners and, during extended periods of perceived threatened violence, denies family visits, work assignments, yard exercise, religious services and other privileges to prisoners of one race while granting those same privileges to prisoners of other races. This habeas proceeding was brought by a Hispanic prisoner alleging that the prison's policy of disparate treatment based on race and ethnicity denies him equal protection of the laws. (U.S. Const., 14th Amend.) The United States Supreme Court, in a prior challenge to California prison segregation, held that government officials are not permitted "to use race as a proxy for gang membership and violence without demonstrating a compelling government interest and proving that their means are narrowly tailored" to advance that interest. (Johnson v. California (2005) 543 U.S. 499, 511 (Johnson).) The trial court here applied Johnson and found that "there are more narrowly tailored means of controlling violence than to restrict entire ethnic groups." The court ordered the prison "to refrain from affording preferential treatment to inmates on the basis of ethnicity" but the order permits prison officials to "separate inmates on the basis of ethnicity, if prison security requires it, so long as it is not done preferentially" and is done "[o]n a short-term emergency basis."*fn1 We shall affirm the order.
The basic security classification and assignment system within California prisons
The California Department of Corrections and Rehabilitation (CDCR) operates 33 prisons with approximately 170,000 inmates. (CDCR Annual Report 2010 [as of Jan. 23, 2013].) Under the applicable regulations, "All persons entering the [CDCR] penal system are given a classification score which determines an inmate's security level. Based on this score, an inmate will be given a designation ranging from Level I - reserved for the lowest security risk prisoner - to Level IV - reserved for the highest security risk prisoner. The score is arrived at by tabulating points that are based on an array of objective factors which include, among other things, length of sentence, nature of the crime committed, criminal history, employment history, military service, marital status, age, prior escape attempts, and prior incarceration behavior." (Madrid v. Gomez (N.D.Cal. 1995) 889 F.Supp. 1146, 1239; see Cal. Code Regs., tit. 15, §§ 3375, 3375.3.) Gang activity is also considered in determining an inmate's security level classification. (Cal. Code Regs., tit. 15, § 3375.3, subd. (a)(4).) An inmate is assigned to a prison commensurate with the inmate's security level classification, as each of California's prisons has a designated security level based on its physical construction, type of housing (dormitories or cells), and the extent of armed coverage.(Cal. Code Regs., tit. 15, § 3377.)
Once assigned to a prison, prison officials use classification committees to determine an inmate's program and cell assignments at the institution. (Cal. Code Regs., tit. 15, § 3376.) In 2008, the CDCR began implementing regulations requiring racial integration at its institutions with the avowed intention that "[a]n inmate's race will not be used as a primary determining factor in housing an institution's inmate population." (Cal. Code Regs., tit. 15, § 3269.1.) The regulations were adopted upon settlement of the case that challenged California's policy of racially segregating prisoners in reception centers before they entered a new correctional facility. (Johnson, supra, 543 U.S. at p. 502.) The United States Supreme Court held that the practice must be subjected to strict scrutiny and remanded the case for the CDCR to demonstrate a compelling governmental interest supporting the race-based practice and that the practice is narrowly tailored to address that interest. (Id. at p. 514.) The case settled on remand with CDCR's adoption of the integrated housing policy. However, the integrated housing policy has not been implemented at Level IV maximum security prisons like Pelican Bay, and a prison official testified that he "sincerely doubt[ed]" that it would ever be implemented at these prisons.
Prison gangs*fn2 arose in California around 1956, when Hispanic inmates from Southern California banded together to form the Mexican Mafia. (CDCR, Operations Manual (2009) Historical Perspective, § 52070.4, p. 366 (Manual).) "Other prison gangs were subsequently formed along racial lines: The Black Family in 1966, changing its name to Black Guerrilla Family in 1971; the Nuestra Familia (Northern California Hispanics) in 1966-67; and, the Aryan Brotherhood (white) in 1968." (Ibid.) Today, there are seven designated "prison gangs"--i.e., gangs originating in prison--all formed along racial lines. (Manual, § 52070.17.2.) There are also hundreds of "disruptive groups," which are criminal street gangs that did not originate in prison but operate there.(Cal. Code Regs., tit. 15, § 3000.)
The CDCR has determined that "prison gangs and disruptive groups, through their illegal activities, are a threat to the security of all institutions." (Manual, § 52070.5.) The record contains substantial evidence supporting this determination, especially as it applies to Pelican Bay. CDCR has adopted a strategy to manage and suppress gangs. (Manual, § 52070.6.) The declared strategy is "to identify gang affiliated inmates/parolees, track them, monitor their conduct, take interdiction action, and apply sanctions when they are found to be involved in illicit or unlawful gang activity." (Manual, § 52070.6.)
State regulations establish a "validation" process for identifying an inmate as a member or associate of a gang. (Cal. Code Regs., tit. 15, § 3378; In re Cabrera (2012) 55 Cal.4th 683; see In re Furnace (2010) 185 Cal.App.4th 649, 656-666 [applying regulations].) The regulations require three independent "source items" to prove gang membership or association, and provide the inmate with an opportunity to rebut the evidence. (Cal. Code Regs., tit. 15, § 3378, subds. (c)(2), (c)(6)(A).) Source items include gang offenses, self-admission, association with validated gang affiliates, and other evidence connecting the inmate with a gang. (Cal. Code Regs., tit. 15, § 3378, subd. (g)(8).) An inmate validated as a prison gang member "is deemed to be a severe threat to the safety of others or the security of the institution" and is committed for an indeterminate term to the security housing unit, commonly referred to as the SHU. (Cal. Code Regs., tit. 15, § 3341.5, subd. (c)(2)(A)(2).)
Pelican Bay has over 3,000 inmates, most of whom are housed in two primary units: a maximum security prison and the SHU. (CDCR, Pelican Bay State Prison, Mission Statement [as of Jan. 23, 2013].) The maximum security prison houses about 1,700 inmates in a "general population setting." (See Madrid v. Gomez, supra, 889 F.Supp. at p. 1155 [describing Pelican Bay operations]; CDCR, Pelican Bay State Prison, Institution Statistics [as of Jan. 23, 2013].) The general population unit is subdivided into Facility A and Facility B, with Facility B having the more "difficult to manage inmates." Facility B has roughly 600 inmates, one of whom was petitioner Jose Morales. "The daily routine for these inmates is comparable to that in other maximum security prisons in California." (Madrid, supra, at p. 1155.) General population inmates are assigned to double cells and are eligible for work and educational programs.
The second facility is the SHU. "Located in a completely separate complex inside the security perimeter, the SHU has gained a well-deserved reputation as a place which, by design, imposes conditions far harsher than those anywhere else in the California prison system." (Madrid v. Gomez, supra, 889 F.Supp. at p. 1155) The roughly 1,200 inmates confined in the SHU "remain isolated in windowless cells for 22 and 1/2 hours each day, and are denied access to prison work programs and group exercise yards. . . . SHU cells are reserved for those inmates in the California prison system who become affiliated with a prison gang or commit serious disciplinary infractions once in prison." (Ibid.) At the time relevant here, the "vast majority" of the SHU inmates were prison gang members.
Despite the sequestration of prison gang members in the SHU, gang violence within the prison's general population persists. The power and influence of prison gangs extend to the streets and prison gangs often form symbiotic relationships with street gangs. The incarceration of a street gang member in Pelican Bay's general population provides a conduit from the prison gang member housed in the SHU to the street gang member living in the general population. Prison gang members in the SHU contact street gang members in the prison's general population through inmate notes, messages relayed through visitors, and mail routed through third parties. In this manner, prison gang members can direct criminal acts through affiliated street gang members in the general population.
Pelican Bay officials believe that most of the prison's general population inmates are affiliated with prison gangs but the inmates are not put through the regulatory validation process to prove gang membership or association. The regulatory validation process was established for both prison and street gangs (Cal. Code Regs., tit. 15, § 3378) but Pelican Bay uses the validation process only for prison gang members targeted for SHU sequestration. In prior litigation, inmates classified as prison gang members and committed to a SHU term challenged the commitments as a deprivation of due process. (See Garcia v. Stewart (N.D.Cal. March 16, 2009, No. C 06-6735 MMC) 2009 U.S. Dist. Lexis 20886 at p. *8.) The regulatory gang validation process was adopted in settlement of that litigation. (Ibid.) A Pelican Bay official testified that the validation process is used exclusively for prison gang members because they are entitled to the process before being committed to the SHU. The regulatory validation process is not used for suspected street gang, or disruptive group members because, according to prison officials, the validation process "is a very lengthy investigative process" and there are not enough hours "in the day to conduct investigations to validate members of disruptive groups."
To minimize and control gang violence among the general population of inmates, Pelican Bay utilizes a race-based classification system distinct from the security level classification applied to all California prisoners described above. As the trial court found, based on substantial evidence, Pelican Bay has an unwritten policy of using race as the primary factor determining housing assignments, activity levels, and restrictions among the general population of inmates.*fn3 A Pelican Bay classification committee assigns every general population inmate to one of five racial or ethnic groups: White, Black, Northern Hispanic, Southern Hispanic, or Other. Prison officials testified that, in placing an inmate in one of the five groups, the prison considers the inmate's race, the race of the ...