California Court of Appeal, First District, Second Division
Del Norte County Super. Ct. No. HCPB11-5224, Hon. William H. Follett, Judge
Attorney for Petitioner: Matthew Zwerling and L. Richard Braucher, under appointments by the Court of Appeal
Attorneys for Respondent: Kamala D. Harris, Attorney General, Jennifer A. Neill, Senior Assistant Attorney General, Anya M. Binsacca, Supervising Deputy Attorney General, Stacey D. Schesser, Amanda Lloyd, Deputy Attorneys General
Petitioner Andres Martinez, a prison inmate, ordered by mail a copy of The Silver Crown, a book by Mathilde Madden. The book was confiscated by prison authorities before it was delivered to petitioner on grounds that it was contraband, specifically “erotica.” Through a series of administrative appeals the prison has clarified that it deems the book “obscene” and tending to incite violence, and therefore subject to rules governing contraband in prison.
We conclude first that the prison failed to abide by governing statutes and regulations in judging the book to be obscene. And we go on to find that the book is not obscene applying the correct definition, and further that it is not likely to incite violence. We therefore grant the writ and order the Warden to give the book to petitioner.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner’s criminal history
In 1990 to 1992, petitioner was convicted of multiple crimes, including firearm assault, attempted second degree robbery, and attempted murder. (Pen. Code, §§ 187, 211, 245, subd. (a)(2), 664.) He is currently an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) and is housed at Pelican Bay State Prison (Pelican Bay) in the Security Housing Unit (SHU), where the most dangerous prisoners are housed. He has been assigned to the SHU in part for violence in prison, including battery on an inmate, possession of a deadly weapon, and battery on a peace officer. He is also considered a “validated associate” of the Mexican Mafia prison gang.
Confiscation of the book
More than two years ago, petitioner ordered a copy of The Silver Crown, a paperback book written by Mathilde Madden and published by Black Lace books. On January 10, 2011, before the book was delivered to petitioner, prison authorities notified him the book was being withheld, citing California Code of Regulations, title 15, section 3006, subdivision (c)(1),  and labeling the book “erotica.” On January 12, 2011, a second notice (CDCR form 1819) recited that the book was being withheld because “it contains descriptions of explicit sexual conduct, ” this time citing subdivision “(c)(15)(A) (B)(C)(1).”
The Silver Crown is the second book in a trilogy and is described on the back cover this way: “Every full moon, Iris kills werewolves. It’s what she’s good at; it’s what she’s trained for. She’s never imagined doing anything else... until she falls in love with one. And being a professional werewolf hunter and dating a werewolf poses a serious conflict of interest. To add to her problems, a group of witches decides she is the chosen one—destined to save humanity from the wolves at the door—while her boss, Blake, who just happens to be her ex-husband, is hell-bent on sabotaging her new relationship. All Iris wants is to snuggle up with her alpha wolf and be left alone. He might turn into a monster once a month, but in a lot of ways, Iris does, too.”
We have reviewed the book. As will be described more fully below, the plot involves werewolves, witches, a ghost, and magic spells. It is 262 pages long with 44 chapters. There is a fair amount of violence in it, but that is not dwelt upon and is not shocking or gory.
There are also a great number of graphic sexual encounters, one per chapter through most of the book, including detailed descriptions of intercourse, sodomy, oral genital contact, oral-anal contact, voyeurism, exhibitionism, and ménage à trois. Semen is mentioned. Crude slang is used to describe various body parts and the sex act itself. The sex is sometimes rough but always consensual. Women are portrayed as frequently aggressive, always willing, and seemingly insatiable. Men are portrayed as frequently demanding, always ready, and seemingly inexhaustible. The sex occurs between humans and werewolves, as well as intra-species.
On the other hand, the sex appears to be between consenting adults. No minors are involved. No bestiality is portrayed (unless werewolves count). And there is no sadomasochism.
Petitioner filed an administrative appeal on January 11, 2011. (§ 3084.1.) He argued section 3006 “does not ban descriptions of sexually explicit conduct, as long as those descriptions are not obscene....” Petitioner claimed the decision to withhold the book was “arbitrary and irrational” and violated his rights under Penal Code section 2601 and the First Amendment. He also argued the book would not incite violence as prohibited under subdivision (c)(1).
Prison authorities responded that the book “contain[s] very detailed descriptions of penetration of the vagina, mouth and genitals, as well as excretory functions” and that it “advocates violence because it describes ripping at a decapitated mans [sic] head and other violent killings.” The reviewer also noted that “the back cover of the book list [sic] the book as Erotic Romance.” The denial underscored the language of subdivision (c)(15)(C)(1) in explaining why the book had been confiscated and also cited Pelican Bay Operational Procedure No. 806, Personal Property Plan, Section VI F 7.
Petitioner filed a second level appeal on February 21, 2011, claiming the “first level reviewer failed to properly apply all (3) three prongs of the obscene material test articulated in” subdivision (c)(15)(A), including whether the book “taken as a whole appeals to prurient interest and whether the book taken as a whole lacks serious literary, artistic, political or scientific value.” He also argued again that the book would not incite violence.
On March 9, 2011 the second level appeal was denied by the Warden, again citing and underlining subdivision (c)(15)(C)(1). The warden also cited Pelican Bay’s Operational Procedure No. 806, quoting that provision, in part, as stating, “Inmates will not be allowed to possess publications, pictorials, or drawings consistent with CCR Title 15, Section 3006(c)(15). Except as authorized by institutional head, inmates shall not possess or have under their control matter which contains any of the following: Obscene material. Obscene material includes but is not limited to material that depicts, displays or describes penetration of the vagina.” The denial also stated “sexually explicit erotica is present in this publication, and [it] is therefore contraband.”
Petitioner then filed a Director’s Level Review, which resulted in a letter from CDCR dated July 29, 2011, again denying petitioner’s appeal. The Director’s Level Review concluded “appellant has not supported his appeal issue with sufficient evidence or facts to warrant a modification” of the second level review. “This decision exhausts the administrative remedy available to the appellant within CDCR.”
Habeas petition in superior court
On September 22, 2011, petitioner filed a petition for writ of habeas corpus in Del Norte County Superior Court (Docket No. HCPB11-5224) raising the same issues raised in the administrative appeals.
On November 3, 2011, Superior Court Judge William H. Follett issued a four-page opinion denying the petition. The court concluded “prison officials acted within their authority to ban the book due to its sexually explicit descriptions, ” and therefore did not address whether the book might “also have been disallowed due to its depiction of violence. [¶]... [¶] While it could be argued that section 3006 requires application of broader ‘statewide’ standards, and not special standards for prisons, recent case law does not appear to agree.” The court also concluded that petitioner’s argument that his rights under Penal Code section 2601, subdivision (c)(1), had been violated had “previously been considered by the appellate courts and has been rejected.”
The gist of the court’s decision is reflected in the following excerpt:
“A cursory review of the book in question, The Silver Crown, reveals that explicit language is used to describe various sex acts from which prison authorities could determine the book falls within the definition of ‘obscene’ under prison regulations. The excerpt from the book on the front end paper describes in explicit terms a woman having sex with a werewolf.... Thumbing through the book reveals many descriptions of several sex acts listed in subdivision (c)(15) of section 3006.
“Case law has determined that the ban on sexually explicit materials under section 3006 of Title 15 of the California Code of Regulations does not violate the state and federal constitutions nor Penal Code section 2601. See, Snow v. Woodford (2005) 128 Cal.App.4th 383 (Snow). The Snow court made a four-prong Turner v. Safley (1987) 482 U.S. 78 analysis, which will not be repeated here, to determine that prison authorities had a legitimate penological interest in prohibiting inmates from possessing sexually explicit materials. The court quoted the department’s written reasons for the provision published during the rule-making process.
“ ‘Rules governing possession of contraband in prison are complex and not easily evaluated outside prison walls.’ In re Johnson (2009) 176 Cal.App.4th 290, 301. ‘Prison officials have a strong interest in excluding material that appeals to the prurient interest of inmates.’ Id. at 302. In Johnson, prison officials had disciplined an inmate for possessing a copy of an article from Men’s Health magazine, which the Court of Appeal sustained. That Court noted that such a magazine is not one that would normally be characterized as an obscene publication in that it contained useful and socially acceptable articles suited for adults in America. Nevertheless, the Court agreed that such material may not be suitable for prison inmates. In reviewing a challenge to the administrative decision of prison officials, a court must determine whether there is ‘some evidence’ to support the prison officials’ determination that the material falls ‘within the expanded definition of obscenity found in section 3006 subdivision (c)(15)(A)...’ Id. at 301. As noted by the Johnson court, subdivision (c)(15)(C) ...