Order Filed 1/8/14
ORIGINAL PROCEEDING; petition for writ of habeas corpus.
Michael Satris, under appointment by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney General, Julie A. Malone and Pamela B. Hooley, Deputy Attorneys General, for Respondent.
“Prison regulations promulgated by California’s Department of Corrections and Rehabilitation (CDCR) set forth the procedures and substantive requirements for validating an inmate as a member or associate of a prison gang. Because gangs ‘present a serious threat to the safety and security of California prisons’ [citation], validation of an inmate as a gang member or associate can result in the inmate’s placement in a security housing unit (SHU).” (In re Cabrera (2012) 55 Cal.4th 683, 685-686 (Cabrera).)
Petitioner Manuel Alvarez, an inmate serving a determinate term in CDCR, was validated as an associate of the Northern Structure prison gang, and housed in the SHU. As we will explain, an associate of a prison gang is “an inmate... who is involved periodically or regularly with members or associates of a gang….” (Cal. Code Regs., tit. 15, § 3378, subd. (c)(4).) Validation of an inmate as an associate requires at least three “independent source items of documentation indicative of association” with validated gang members or associates, and at least one source item must be a “direct link” to a current or formerly validated member or associate. (Ibid.) With one exception not applicable to this case, the regulatory definitions of the requisite “source items” do not include any restrictions on the date of the materials used as source items. (§ 3378, subds. (c)(8)(A)-(c)(8)(M).)
The regulatory provisions separately define a currently active member or associate based on whether there is evidence of “any documented gang activity within the past six (6) years ….” (§ 3378, subd. (c)(1); § 3341.5, subd. (c)(6), italics added.) An active member or associate who has been placed in the SHU may be transferred to a less restrictive housing unit if the inmate is determined to be inactive—defined as whether the inmate “has not been involved in gang activity for a minimum of six (6) years….” (§ 3341.5, subd. (c)(5); § 3378, subd. (e), italics added.)
In addition to these definitional provisions, the regulations further provide that “the identification of an inmate/parolee as a currently active gang member or associate [must be] supported by at least three independent source items …” (§ 3378, subd. (c)(2)), and “a validated prison gang member or associate … will be placed in a SHU for an indeterminate term” (§ 3341.5, subd. (c)(2)(A)(2)).
Order to show cause
In the instant case, we issued an order to show cause (OSC) to address petitioner’s argument that CDCR violated these regulatory provisions when it validated him as a currently active associate of a prison gang, and placed him in the SHU, because one of the three source items was more than six years older than his validation date. Petitioner argues all three source items must be based on gang involvement which occurs within six years of his validation date. Respondent, the Attorney General, argues there is no date or time restrictions on the source items used to validate an inmate as a member or associate, and only one source item must demonstrate gang activity within six years to classify an inmate as a currently active associate who must be housed in SHU.
We will conclude that the regulatory structure provides for validation of an inmate as a prison gang member or associate based on three independent source items, without any time restrictions on those source items except for photographs. We will also conclude that a validated member or associate is only subject to housing in the SHU for an indeterminate term if that gang affiliate is currently active, and that current activity is demonstrated if only one of the three source items shows documented gang activity within the past six years. (§ 3378, subd. (c)(1).) As applied to this case, two of the three source items used to validate and classify petitioner as a current active associate showed his gang activity within the past six years. We will therefore deny petitioner’s petition for writ of habeas corpus.
In October 2008, petitioner pleaded no contest in the Superior Court of Santa Clara County to possession for sale of methamphetamine (Health & Saf. Code, § 11378); transportation, sale, and distribution of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); false personation (Pen. Code, § 529); misdemeanor possession of narcotics paraphernalia (Health & Saf. Code, § 11364); and misdemeanor resisting an officer (Pen. Code, § 148, subd. (a)(1)). He admitted one prior strike conviction (Pen. Code, § 667, subds. (b)-(i); three prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) and one prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (c)). Petitioner was sentenced to seven years four months.
Validation as a prison gang associate
As of 2009, petitioner was incarcerated at CDCR, Sierra Conservation Center (SCC) in Jamestown, Tuolumne County.
On April 5, 2010, petitioner was advised by CDCR’s Office of Correctional Safety that he had been validated as an associate of the NS prison gang, based on three source items: confidential memos dated October 1, 2003; January 8, 2010; and January 11, 2010. Petitioner was advised that an “active/inactive review” of his status would be held on January 11, 2016.
Redacted summary of the three source items
As is customary in the validation setting, petitioner was not given full access to the confidential source items used to validate him as an associate. Instead, he was given redacted summaries of the information used.
The first source item was a confidential memorandum, dated October 1, 2003, which identified petitioner as an associate of the NS. According to the redacted summary, petitioner’s name, CDC identification number, moniker, and home town were discovered on a roster of inmates in good standing with the Northern Structure at the prison. The inmates were identified as individuals upholding and abiding by all the rules and regulations imposed and enforced by the members and associates of the Northern Structure.
The second source item was a confidential memorandum, dated January 8, 2010, which identified petitioner as an associate of the Northern Structure. According to the redacted summary, the gang investigative staff obtained written materials which were discovered secreted in the body of a suspected Northern Structure member. The written materials contained a detailed list of inmates considered associates of the gang in good standing, one of whom was already a validated associate; a status report of the prison; and instructions on how incoming inmates, affiliated with Northern Structure, should report to administrative segregation after committing an assault. Petitioner’s name and identification information appeared on this list of associates.
The third source item was a confidential memorandum, dated January 11, 2010, which identified petitioner as a member of the Northern Structure. A self-admitted member of the Northern Structure identified petitioner as an associate who upheld the gang’s rules and/or policies.
During the validation process, petitioner was interviewed regarding the three source items, based on the redacted summaries. He objected to the information which was disclosed, and denied he was an associate of the Northern Structure.
Placement in SHU
On May 13, 2010, the Institutional Classification Committee advised petitioner he was presumed a threat to security and would be transferred to the SHU, based on his validation as an associate of the Northern Structure. As a result, CDCR denied petitioner time credits pursuant to Penal Code section 2933.6.
Petitioner challenged his validation and SHU placement through the CDCR administrative appeal process. At the first and second levels of review, petitioner argued he was improperly validated as an active associate because the regulations define currently active as any documented gang activity within the last six years, but the October 1, 2003, source item was more than six years older than his validation date of April 5, 2010. Both appeals were denied because petitioner improperly relied on regulatory provisions which addressed inactive or debriefed gang members.
At the director’s level, petitioner again asserted he was inappropriately validated as an active associate of the Northern Structure because one of the source items was more than six years older than his validation date. His appeal was again denied and his six-year argument was rejected.
Petition for writ relief in Superior Court
On July 8, 2011, petitioner filed a petition for writ of habeas corpus with the Superior Court of Tuolumne County. He raised several challenges to his validation, including the argument that the October 1, 2003, confidential memo was improperly used as a source item because it was more than six years old. On August 25, 2011, the superior court denied the petition but did not address the six-year issue.
WRIT PROCEEDINGS IN THIS COURT
On January 5, 2012, petitioner filed a petition for writ of habeas corpus with this court (F063995), which is the subject of this matter. Petitioner raised several issues, including the argument that the confidential memo of October 1, 2003, could not be used as one of the source items used to validate him as an active member of the Northern Structure because it was more than six years old when he was validated on April 5, 2010.
On February 23, 2012, respondent filed an informal response, and argued the “age of an item is irrelevant to whether it is a proper source demonstrating that an inmate is a gang affiliate; the age is only relevant when considering whether that inmate is active with his gang and, therefore, should be housed in a Security Housing Unit.”
On April 26, 2012, petitioner filed a reply and challenged all aspects of the three source items used to validate him as an associate of the Northern Structure, including arguments that he had ...