The opinion of the court was delivered by: Huffman, Acting P. J.
Filed 3/20/13 (on transfer from Supreme Ct.)
CERTIFIED FOR PUBLICATION
Original proceeding on a petition for writ of habeas corpus. Relief granted.
Robert Villa filed a petition for writ of habeas corpus to challenge his validation as an associate of the Mexican Mafia prison gang and his placement in the administrative segregation union (ASU) at Centinela State Prison and later, California Correctional Institution in Tehachapi. Villa argues that his possession of a validated Mexican Mafia associate's chronos was permitted by California Code of Regulations, title 15, section 3163*fn1 and could not serve as a source item to validate him as an associate of the Mexican Mafia under section 3378. In addition, he contends a confidential memorandum, which does not connect him with a specific validated gang member or associate, is insufficient to establish a "direct link to a current or former validated member or associate of the gang" as required by section 3378, subdivision (c)(4).
In a published opinion filed September 27, 2012, we agreed with both of Villa's contentions and granted relief. On its own motion, the Supreme Court ordered review*fn2 and transferred the matter to this court with directions to vacate our decision and reconsider the case in light of In re Cabrera (2012) 55 Cal.4th 683 (Cabrera).) We have complied with the Supreme Court's direction and now grant the requested relief.
FACTUAL AND PROCEDURAL HISTORY
Villa has been incarcerated with the California Department of Corrections and Rehabilitation (CDCR) since 2005. In February 2009, Villa was moved to Centinela's ASU pending an investigation into his involvement with the Mexican Mafia prison gang.
On March 30, 2010, the Institution Gang Investigations Unit (IGI) concluded its investigation of Villa's gang status. Per section 3378, the IGI found there was sufficient evidence to validate Villa as an associate of the Mexican Mafia prison gang. The IGI validated Villa's gang association with four source items.
The first source item is a greeting card with a drawing made by another validated gang member that was found in Villa's possession. "The front of the greeting card display[s] a drawing of Aztec art work and on the bottom right corner of the drawing was signed by 'GARCIA'. The back of the greeting [card] displays another drawing which is signed, 'FERMIN' on the bottom right corner. Under the drawing are the words, (Arte By: Fermin Garcia ©)." Fermin Garcia has been validated as an associate of the Mexican Mafia and is currently housed in Pelican Bay State Prison. In reviewing the first source, the investigator noted that Villa's possession of the "greeting card in his personal property is indicative to Villa's association with the [Mexican Mafia]."
The second source item is a sketch that was found in Villa's possession bearing the Matlactlomei symbol, which is a symbol commonly used to indicate a person's allegiance with and/or loyalty to the Mexican Mafia. In reviewing the second source item, the investigator stated: "It is not reasonable to believe that Villa would maintain these symbols in his personal property without knowing the meaning and significance of these symbols. Possession of this sketch indicates that he associates with the symbol, and those individuals who associate with it."
The third source item consists of three CDCR 128-B*fn3 validation chronos belonging to inmate Alton Encalade. Encalade previously was validated as an active associate of the Mexican Mafia. The investigator commented, "It is not reasonable to believe Villa would be in possession of material belonging to a Validated Associate of the [Mexican Mafia] gang and not be active with the [Mexican Mafia] gang. Villa's actions of maintaining this information about this inmate shows a close personal tie with Encalade who is a validated associate of the [Mexican Mafia] prison gang."
The fourth source item is a confidential memorandum. The memorandum explains that an inmate identified Villa as having a position on the "Mesa" of the Mexican Mafia. "Mesa" is Spanish for "table," which means, in the context of a prison gang, a governing body of influential inmates who have volunteered and agreed to enforce and direct gang activities within the prison for the benefit of the Mexican Mafia.
Villa was provided with all information used as sources in the validation process, except for the confidential memorandum. Instead, he was disclosed the confidential information via a CDCR Form 1030, a confidential information disclosure form. The confidential information disclosure form did not identify the inmate who provided the information. It did inform Villa that he had been identified as "associating with the Mexican Mafia" and being on the "Mesa." It also indicated that the information was considered to be reliable under section 3321, subdivisions (c)(2), (3) and (4).
After Villa was provided with the information, an IGI gang investigator interviewed him regarding the sources used to validate his association with the Mexican Mafia. Villa offered a written explanation about each of the source items. He stated the first source item is merely a greeting card, and he does not know Fermin Garcia and has not corresponded with him. Villa also noted that the second source item was drawn by someone else who wrote to him, and he has no control over what someone else draws or writes.
In regard to the third source item, Villa explained that he was in possession of Encalade's chronos because he was helping Encalade with his appeal of his gang validation. Villa said, "I help these guys out with 602's, in regards to their validation, because most of these guys can't write, so what [am] I suppose to say no."*fn4 Villa also stated that the law library officer gave Villa the chronos with Encalade's permission.
In response to the fourth source item, Villa argued the confidential memorandum was based on hearsay and was unreliable.
The IGI investigator was not persuaded by Villa's explanations, and concluded there was sufficient evidence to validate Villa as an associate of the Mexican Mafia prison gang. The IGI investigator then forwarded the source items to the office of correctional safety (OCS) for review and acceptance of Villa's prison gang validation. The OCS ultimately accepted the validation and assigned Villa to the ASU pending transfer or annual review.
Villa appealed the decision directly within the prison system to no avail. He then filed a writ of habeas corpus with the superior court of Kern County. The superior court denied the petition.
Villa subsequently filed a writ of habeas corpus with the Fifth District Court of Appeal. However, that court advised Villa that he needed to file his petition in this court, because the conduct at issue occurred while Villa was housed in Centinela, which is located within the Fourth Appellate District, Division One. We asked the Attorney General for an informal response to Villa's petition. After receipt and consideration of the informal response, we issued an order to show cause why relief should not be granted and appointed an attorney.
Villa filed a supplemental petition in which he argues his gang validation is not based on adequate evidence. The Attorney General filed a return, denying that Villa's due process rights were violated and contending the validation was supported by "some evidence."