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In re Cabrera

California Court of Appeals, Fifth District

June 11, 2013

In re ELVIN CABRERA, On Habeas Corpus.

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.

Elvin Cabrera, in pro. per.; and Michael Satris, under appointment by the Court of Appeal, for Petitioner.

Kamala D. Harris, Attorney General, Jennifer A. Neill, Senior Assistant Attorney General, Jessica N. Blonien and Amy Daniel, Deputy Attorneys General, for Respondent.


Franson, J.


In 2008, the California Department of Corrections and Rehabilitation (CDCR) determined that inmate Elvin Cabrera was an associate of the Mexican Mafia prison gang (EME) based on his possession of photocopies of four drawings, two of which included part of the names of EME affiliates as the artists.[1] Cabrera challenged his gang validation[2] in a petition for writ of habeas corpus.

This court granted Cabrera’s petition in a September 2011 opinion, but the California Supreme Court reversed, concluding our decision was based on an improper interpretation of the CDCR’s regulation. (In re Cabrera (2012) 55 Cal.4th 683.) The Supreme Court remanded for further proceedings and directed us to resolve two issues, the first being: “Whether the evidence is sufficient, under the regulation as properly construed, to uphold the validation of Cabrera as a gang associate.…” (Id. at p. 692.)

Applying the deferential “some evidence” standard of judicial review, we conclude that two of the photocopied drawings, containing part of the names of EME affiliates as the artists, do not support a finding that Cabrera had an “association” (i.e., a loose relationship) with a gang-affiliate artist that constituted a “direct link” (i.e., a connection without interruption) as required by section 3378, subdivision (c)(4).

Cabrera therefore is entitled to the issuance of a writ of habeas corpus on that ground.[3]


In February 2003, Cabrera was convicted of robbery, burglary, receiving stolen property and possession of drug paraphernalia. In April 2003, he was sentenced to a prison term of 62 years to life. Since 2003, Cabrera has been an inmate at the California Correctional Institution at Tehachapi (CCI). While at CCI, Cabrera was enrolled in a hobby craft program for nearly three years and possessed a large quantity of drawings from a variety of artists. Cabrera acknowledges that his artwork collection included the photocopies of drawings that CDCR relied upon to validate him as a gang associate.

On April 3, 2008, Hispanic inmates in yard 4 A were involved in an assault on prison staff. Cabrera was assigned to yard 4-A, but was in his cell at the time of the assault and was not involved in the incident.

Five days after the assault, prison officials conducted an operation named “Swift Response” that scrutinized every Hispanic inmate assigned to yard 4-A. Pursuant to the operation, Institutional Gang Investigator (IGI) E. Sanchez inspected the personal property of Cabrera, including Cabrera’s collection of artwork. IGI Sanchez believed that four of the drawings were evidence of Cabrera’s association with EME. He prepared three general chronos[4] dated April 8, 2008, to document the four drawings and the reasons he believed the drawings evidenced that Cabrera was associating with affiliates of EME.

Generally, CDCR regulations specify the evidence that can be used to identify or validate a California prisoner as a member or associate of a prison gang. Cabrera was validated as a gang associate, not a member. The regulatory foundation for validation as an associate is section 3378, subdivision (c)(4), which provides:

“An associate is an inmate... who is involved... with members or associates of a gang. This identification requires at least three (3) independent source items of documentation indicative of association with validated gang members or associates. Validation of an inmate... as an associate of a prison gang shall require at least one (1) source item be a direct link to a current or former validated member or associate of the gang....” (Italics added.)

“[S]ource items” are defined in subdivision (c)(8) of section 3378, which lists various categories of “source items” that support a gang identification. In this case, only two types of source items were used—symbols and an inmate’s association with validated gang affiliates.

Two of the general chronos prepared by IGI Sanchez concern drawings containing part of the names of EME affiliates Fermin Garcia and Fernando Bermudez, which CDCR determined established a “direct link” between Cabrera and these two affiliates of EME. The other two drawings were referenced in the third general chrono and were treated as a single source item of symbols indicative of Cabrera’s affiliation with EME.

Drawing by Associate Fermin Garcia

The first drawing at issue was presumably made by Fermin Garcia, a prisoner validated as an associate of EME in 2003. The drawing contains a female Mesoamerican warrior holding the shaft of a spear in her left hand. A circular standard is mounted at the top of the shaft. “Matlactlomei” symbols appear at the three o’clock and nine o’clock positions on the standard. The matlactlomei consists of two vertical lines and a vertical column of three dots, which is the Mayan symbol for the number 13. Each line has a numerical value of five and each dot has a numerical value of one. Thus, the sum of the two lines and three dots is 13. Matlactlomei is translated to mean 13 within the Nahuatl language. The number 13 is used as a designation for EME because the 13th letter in the alphabet is “M.” (See People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1544 [13 used to designate EME].)

The lower right hand corner of the drawing contains “FERMIN 00” printed in block letters. The double zeros mean that the drawing was completed in the year 2000. The general chrono relating to this drawing, prepared by IGI Sanchez, states that he “identified the person who drew the picture, as inmate Fermin Garcia, D 88896, aka Fox, a validated associate of … [EME], (date of validation 7-15-2003).”[5]

Immediately following the first paragraph of text in the general chrono, near the left-hand margin, is a two-inch by two-and-a-half-inch copy of the drawing. To the right of the drawing are two boxes for text. A line extends from the upper box to a matlactlomei symbol in the drawing. Another line extends from the lower box to “FERMIN 00.” The text inside each box reads: “Direct link identified as Fermin Garcia D 88896.”

The general chrono also contains a paragraph that explains how the matlactlomei represents 13 and, in turn, how 13 is used to designate EME. The third and final paragraph of the general chrono states: “This chrono (Direct link) should be used as one (1) source towards validating Cabrera as an associate of the prison gang known as the Mexican Mafia.”

Drawing by Member Fernando Bermudez

The second drawing at issue contained the abbreviated name of Fernando Bermudez, a prisoner validated as a member of EME. The drawing assembles diverse elements or fragments, including a dragon, a jaguar’s face, the face of a man in which the left half is a skeleton, a woman on a veranda with her head framed by a full moon, a chain, prison bars, and other components. None of the elements of the drawing were identified as being connected with or indicative of EME. At the bottom center of the drawing, the following letters are written: “F.BERMÚDEZ, ” with the “F” in a stylized form and “BERMÚDEZ” in block letters. The general chrono relating to this drawing, prepared by IGI Sanchez, states that he “identified the person who drew the picture, as inmate Fernando Bermudez B 53002, aka Angon Fidel, a validated member of … [EME], (date of validation 8-11-1995).” It concludes: “This chrono (Direct link) should be used as one (1) source towards validating Cabrera as an associate of the prison gang known as the EME.”

Drawings with Symbols

The third general chrono prepared by IGI Sanchez concerns photocopies of two drawings that contain gang-related symbols. The first drawing shows a young woman wearing a sombrero and holding a revolver in her right hand. Parts of an eagle and serpent appear from behind the sombrero. Symbols are written on the brim of her sombrero with a matlactlomei representing the number 13 appearing near the center. The second drawing contains a female Mesoamerican warrior armed with a sword in her right hand, a shield on her left, and a bow and quiver of arrows slung over her back. Cabrera photocopied the drawing directly from a Low Rider magazine, one of many publications that are allowed to enter CCI by mail. The artist was Mary Trujillo, a participant in the magazine’s monthly art contest.

The third general chrono states that the “Eternal War Shield is located in the center of the female Aztec warrior chest area.… The Eternal War Shield is known through gang intelligence, to demonstrate loyalty to the Mexican Mafia as many of the members and associates identify themselves as being warriors of the EME.” In addition, it asserts that the matlactlomei and eternal war shield are used by members and associates of EME to show their loyalty and that “[b]oth these symbols are recognized by the department as being symbolic to membership/association with the Mexican Mafia.”

Validation and Cabrera’s Administrative Appeals

On May 13, 2008, CDCR validated Cabrera as an associate of EME based on the three general chrono’s prepared by IGI Sanchez. CDCR prepared a CDC Form 128 B 2 to document the validation and notify Cabrera of its decision.

Cabrera pursued administrative appeals to challenge his validation. His appeals were denied at each of the three levels of CDCR’s administrative review, with ...

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