Opinion
A143368
07-10-2018
In re GERARDO MENCHACA on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. HCPB10-5100)
In 2008, while an inmate at San Quentin State Prison, petitioner Gerardo Menchaca was validated by prison authorities as an affiliate of the Northern Structure prison gang, in part based on an intercepted letter written to him by his former cellmate who had subsequently been validated as a Northern Structure associate. Menchaca filed a petition for writ of habeas corpus with the trial court challenging his gang validation, which the trial court denied. In 2014, Menchaca filed a new petition for writ of habeas corpus before this court, again challenging his gang validation. While that petition was pending, Menchaca was found guilty by prison authorities of participating in a riot involving approximately 200 inmates. Menchaca ultimately filed a supplemental petition, continuing to challenge his 2008 gang validation and arguing in addition that the 2015 finding that he was guilty of participating in a riot was not supported by the evidence. We will grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992, Menchaca was found guilty by a jury of second degree murder and sentenced to a prison term of sixteen years to life with the possibility of parole. Menchaca arrived at Calipatria State Prison in 1992, and was transferred to San Quentin State Prison in 2002.
A. May 12, 2008 Gang Validation
On September 11, 2007, prison officials intercepted a letter intended for Menchaca written by his former cellmate, Sonny Mitchell, with whom he had shared a cell until March 22, 2006. After he was removed from Menchaca's cell, Mitchell had been validated as an associate of the Northern Structure prison gang. Mitchell had attempted to circumvent prison rules preventing him from sending a letter directly to Menchaca by addressing the letter to a fictitious address and then providing Menchaca's name and inmate number as the return address. The letter stated as follows: "Heady— [¶] First and always, my love and respectos. Now what going on homie, you know me, nothing much just chillin, I hope your doing better than me? Tell Hector I said hello, as well as grandpa, Paya, and they put him up to go also. Now check this out theres a lot of catz that never got the stuff so there trippin on that, the homie George Moya 'Flaco' asked if you can see if you can locate it through someone, his girl's flix and stuff are in there. If you can, you can send it Noemi [in] . . . Gilroy, CA 95020. His # V 53369, he said don't trip, he'll have his sister send you some money, he's a solid homie so there shouldn't be any problems. I should bounce in November at the end, trust and believe, I'll look out for you and Hector, he needs to send me his # to that address I gave you. Well bro, I want to drop this in the mail I hope all is well, send my love and respects to all - gracias [¶] Respectfully [¶] Chato." Because prison officials intercepted it, Menchaca never received the letter.
On September 11, 2007, prison officials conducted a search of Menchaca's cell, and confiscated a coffee cup with a drawing of a bird inside as well as a piece of red cloth depicting an image of a "huelga" bird.
Menchaca alleges that the bird depicted inside the coffee cup is an American bald eagle, whereas prison officials described it as a huelga bird. The huelga bird is part of the United Farm Workers logo, and is also a symbol used by the Northern Structure prison gang.
On September 19, 2007, prison officials submitted a gang validation package seeking to validate Menchaca as a member or associate of the Northern Structure prison gang on the basis of five source items: (1) an August 11, 2005 confidential memorandum indicating that a reliable "confidential source" had identified Menchaca as a " 'look out' " for the Northern Structure gang during an inmate fight; (2) a drawing found in Mitchell's property on March 22, 2006 of a "woman wearing a huelga bird around her neck, with a huelga bird on a flag behind her" and "Menchaca" written on the top; (3) the September 11, 2007 intercepted letter from Mitchell to Menchaca; (4) the piece of red cloth depicting a huelga bird found in Menchaca's cell on September 11, 2007; and (5) the drawing inside a coffee cup found in Menchaca's cell on September 11, 2007, which allegedly depicted a huelga bird.
On July 2, 2010, prison officials issued a correction to the original gang validation package which rejected reliance on the drawing of the bird inside the coffee cup.
On May 12, 2008, the California Department of Corrections and Rehabilitation (CDCR) validated Menchaca as an associate of the Northern Structure prison gang. As a consequence of his gang validation, Menchaca was removed from the general population at San Quentin and placed in the security housing unit (SHU) at Pelican Bay State Prison beginning June 24, 2008. Menchaca pursued an unsuccessful administrative appeal of the CDCR's decision, which was denied on February 26, 2009.
B. Superior Court Habeas Petition
On January 8, 2010, Menchaca filed a petition for a writ of habeas corpus challenging his gang validation in Marin County Superior Court, which petition was then transferred to Del Norte County Superior Court. An evidentiary hearing regarding the petition was held on July 31, 2013, at which Menchaca and Institutional Gang Investigator Lieutenant Jeremy Frisk testified. At the conclusion of the hearing, the trial court denied the petition.
C. The Instant Petition
On October 24, 2014, Menchaca filed a new petition for a writ of habeas corpus in propria persona with this court, challenging the May 12, 2008 gang validation and his resulting transfer to the SHU at Pelican Bay. The government filed an informal response and Menchaca filed a reply. On April 21, 2015, we issued an order indicating that we had secured the record from the Del Norte Superior Court action on our own motion and inviting the parties to file supplemental briefs, which the government filed on May 1 and Menchaca filed on May 20, 2015.
D. Release from SHU
On August 17, 2015, prison officials conducted a case by case review of Menchaca's gang validation, pursuant to newly adopted regulations. The Departmental Review Board (DRB) noted that Menchaca had been free of gang behavior for the past four years, removed his gang validation, and endorsed his transfer to Solano State Prison in a Level III facility. The DRB noted that Menchaca was being placed in a Level III facility despite his Level II classification score, and directed staff "to evaluate him for transfer to an appropriate institution which is commensurate with his placement score and case factors" following a 12-month period of observation. Menchaca transferred from the SHU at Pelican Bay to Solano on September 25, 2015.
E. October 30, 2015 Riot
On October 30, 2015, Menchaca was on the "Facility A" yard at Solano when a riot broke out involving approximately 200 inmates. Menchaca was issued a rules violation report that charged him with participating in the riot, and a disciplinary hearing was held on December 6, 2015. Menchaca pled not guilty and testified at the hearing that he was not involved in the riot, that during the riot he had complied with orders to get down on the ground, and that he scraped his knee while crawling backward on his knees, while wearing shorts, at the direction of prison staff. He also offered the stipulated statement of another inmate, who stated that Menchaca had not been involved in the riot and had complied with orders to get down on the ground. Officer Hilton, who had issued the rules violation report, testified that he had not seen Menchaca in a physical confrontation with anyone and did not witness him refuse any orders to get down during the riot, but that he observed "all inmates in the areas between Buildings 4, 5, and 6 either fight, in a physical altercation and or not complying with orders to get down."
At the conclusion of the hearing, the senior hearing officer found Menchaca guilty, based on the following evidence: (1) the rules violation report; (2) Menchaca's admission that he was in the area where the riot occurred; (3) video footage showing multiple inmates rioting "between building 4 and 6"; (4) a yard schematic created by prison staff showing Menchaca's location on the yard; (5) a medical report indicating Menchaca had sustained an abrasion or scratch to his left knee during the riot; and (6) Officer Hilton's testimony. Menchaca was assessed a 90-day loss of behavioral credits for the offense.
F. Order to Show Cause
On August 31, 2016, we denied Menchaca's claim that he should be released from the SHU at Pelican Bay as moot, ordered counsel for Menchaca appointed, and directed Menchaca to file a supplemental petition addressing "any further claims relating to the 2015 review that resulted in the removal of [his] gang label, his subsequent transfer to California State Prison, Solano, and his most recent parole hearings."
Menchaca filed the requested supplemental petition on February 2, 2017. He continues to claim that his 2008 gang validation was not supported by some evidence, and that despite his release from the SHU and the removal of his gang label, the 2008 validation continues to adversely impact his eligibility for parole. Menchaca's supplemental petition also challenged the 2015 finding that he was guilty of participating in a riot, arguing that it was not supported by some evidence and that it likewise is adversely impacting his eligibility for parole. After the People filed an informal response and Menchaca a reply, we issued an order to show cause "why petitioner's May 12, 2008, validation as an associate of the Northern Structure prison gang or security threat group (STG) should not be vacated" and "why the CDCR's December 2015 finding that petitioner was guilty of a rules violation for participation in a riot should not be vacated for lack of supporting evidence." The People filed a return, Menchaca a traverse, and we held oral argument. And we now grant the petition.
On May 31, 2017, Menchaca was transferred to the California Men's Colony in San Luis Obispo, and is now housed in a Level II facility consistent with his classification score. However, Menchaca alleges that at his parole hearings on February 12, 2014 and July 14, 2015, his gang validation and the resulting transfer to the SHU factored prominently in the decision to deny him parole. He further alleges that on July 21, 2016, the Board of Parole Hearings sua sponte reviewed the possibility of advancing his next suitability hearing, but declined to do so partly because of the rule violation.
On June 9, 2017, on Menchaca's motion, we ordered the People to produce the video of the riot as well as the rules violation reports for all inmates charged with participation in the riot, which were ultimately filed as exhibits M, N, and O to Menchaca's traverse.
On September 22, 2017, the People filed a proposed protective order and a supporting declaration from Correctional Lieutenant M. Lujan. Lieutenant Lujan opined that the rules violations reports for other inmates can contain their confidential and private information, including medical information, as well as statements by the inmates as witnesses, which could be construed as "snitching" and thus lead to retaliation if made public or otherwise disseminated. He also opined that the video of the October 30, 2015 riot reflects the manner in which correctional staff respond to riots and reveals whether particular inmates participated in the riot, which information could likewise pose a safety risk if made public or revealed to current inmates.
On December 29, 2017, after Menchaca filed his traverse, the People filed, and Menchaca opposed, a request that we enter the proposed protective order and require Menchaca to resubmit exhibits M, N, and O to his traverse under seal. For the reasons given in the Lujan declaration, the request to enter the September 22, 2017 proposed protective order is granted, and Menchaca's counsel is directed to refile exhibits M, N, and O to Menchaca's traverse under seal with this court.
DISCUSSION
I. Standard of Review
" 'Where, as here, the superior court has denied habeas corpus relief after an evidentiary hearing . . . and a new petition for habeas corpus is thereafter presented to an appellate court based upon the transcript of the evidentiary proceedings conducted in the superior court, "the appellate court is not bound by the factual determinations [made below] but, rather, independently evaluates the evidence and makes its own factual determinations." [Citation.]' [Citations.] We independently review the superior court's resolution of legal issues and mixed questions of law and fact." (In re Sodersten (2007) 146 Cal.App.4th 1163, 1223.) Where any " ' "difference of opinion with the lower court . . . is not based on the credibility of live testimony," ' " deference to the lower court's findings is " ' "inappropriate." ' " (Ibid.)
The parties agree that the deferential "some evidence" standard of review applies to both the CDCR's gang validation decision and to the finding of guilt for participation in a riot. (See In re Fernandez (2013) 212 Cal.App.4th 1199, 1207 ["The 'some evidence' standard is the constitutional test that applies to court review of certain prison administrative decisions, including the gang validation decisions at issue here as well as other decisions such as parole or prison discipline affecting an inmate's credits"].) Under that standard, " 'the relevant question is whether there is any evidence in the record that could support the conclusion reached by the [prison officials].' " (In re Furnace (2010) 185 Cal.App.4th 649, 659 (quoting Superintendent v. Hill (1985) 472 U.S. 445, 455-456).) " 'Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence.' " (In re Furnace, supra, at p. 659 (quoting Superintendent v. Hill, supra, at pp. 455-456).) Nevertheless, the decision must be supported by some evidence, not " 'merely upon "a hunch or intuition," ' " and there must be a " 'rational nexus' " between the evidence and the conclusion reached. (In re Martinez (2015) 242 Cal.App.4th 299, 308 (quoting In re Lawrence (2008) 44 Cal.4th 1181, 1226-1227); In re Fernandez, supra, at p. 1207.) II. Menchaca's Gang Validation Is Not Supported by Some Evidence
"Prison regulations . . . set forth the procedures and substantive requirements for validating an inmate as a member or associate of a prison gang." (In re Cabrera (2012) 55 Cal.4th 683, 685 (Cabrera I).) Those regulations, as they existed at the time of Menchaca's validation, provided: "An associate is an inmate/parolee who is involved periodically or regularly 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/parolee 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." (former Cal. Code Regs., tit. 15, § 3378, subd. (c)(4) .) The CDCR, with our Supreme Court's approval, has interpreted this "direct link" "as encompassing a connection that is ' "without interruption or diversion" and "without any intervening agency or step." ' " (Cabrera I, supra, at pp. 690-692.) The CDCR has also interpreted " 'association with validated gang affiliates' " to mean " 'a "loose relationship as a partner, . . . colleague, friend, companion, or ally" with a validated gang affiliate.' " (Cabrera I, supra, at p. 690.) As relevant here, the documentary source items may include "mail, . . . or other communication, including coded messages evidencing gang activity," and the regulations require that "[s]taff shall articulate why, based on either the explicit or coded content, the communication is reliable evidence of association or membership with the gang" and that "[s]taff shall document and disclose this information to the inmate/parole in a written form." (former § 3378, subd. (c)(8)(L).)
The version of the regulations in effect at the time of Menchaca's validation is exhibit 21 to the People's return.
Subsequent references are to this former version of section 3378.
A new section 3378.2 has since been enacted, effective October 17, 2014, which provides: "A direct link, as defined in Section 3000, may be established by unilateral action by either party or by the subject's possession of any item connecting the subject to a validated STG affiliate; or for purposes of establishing a direct link, it shall not be necessary for CDCR to demonstrate that the subject had knowledge, actual or implied, of the validated STG affiliate's STG involvement." (Cal. Code Regs., tit. 15, § 3378.2.)
The parties' disagreement here centers on the intercepted letter from Mitchell to Menchaca, and whether it can satisfy the "direct link" requirement. Menchaca argues that there is nothing gang related about the attempted communication, and that at best the letter is evidence of Menchaca's personal relationship with Mitchell as cellmates, which relationship preceded Mitchell's gang validation. The People argue that the letter supports Menchaca's validation because Mitchell and Menchaca had a relationship as "companions" because they were cellmates, and that using a false return address is a common way for Northern Structure gang members and associates to communicate. We agree with Menchaca that the letter does not support his gang validation.
We reject the People's very brief and unexplained argument that Menchaca did not exhaust his administrative remedies with respect to his gang validation.
The plain language of former § 3378, subd. (c)(8)(L) requires that there be something in the content of the communication that evidences gang membership or association, that prison staff "articulate" how it does so, and that that information be documented and disclosed in written form to the inmate. (former § 3378, subd. (c)(8)(L).) In the CDC-128B form regarding the letter submitted in support of Menchaca's validation, Officer De La Rosa stated only that "associates of the Northern Structure prison gang will often keep in contact with Northern Structure members though written correspondence using a false address" and that "[t]his is done so that NS associates can discuss NS gang activity occurring at the institution they are housed. Additionally NS associates will assist each other in NS gang activity by providing return to sender communication." The form did not assert that the intercepted letter actually discussed gang activity, either explicitly or in code, or otherwise offer any explanation how the content of the letter was "reliable evidence" of Menchaca's alleged gang association.
The People note that at the evidentiary hearing held on Menchaca's January 2010 habeas petition before the Del Norte County Superior Court, Lieutenant Jeremy Frisk, who did not participate in Menchaca's validation, testified that the content of the letter demonstrated gang affiliation because it asked Menchaca to "pass on 'hellos' to two other inmates," provided a third party through whom Mitchell and Menchaca could communicate and send money, and told Menchaca that "Moya was going to send money and that's he's a solid homie." Obviously, this evidence was not before the CDCR, postdates the 2008 validation decision, and cannot satisfy the regulation's requirement that prison staff articulate why the content of the communication evidences gang association and disclose that information in written form to the inmate as part of the validation process. (See former § 3378, subd. (c)(8)(L); Superintendent v. Hill, supra, 472 U.S. at pp. 455-456.)
Menchaca's prior cellmate relationship with Mitchell alone cannot support his validation—prison officials must explain why that relationship is indicative of affiliation with the gang itself. (See former § 3378, subd. (c)(8)(G) [source item based on "association" with gang affiliate requires explanation "why such information is indicative of association with a prison gang or disruptive group"]; subd. (c)(8)(L) [source item based on communication between inmates requires explanation why "communication is reliable evidence of association or membership with the gang"]; Castro v. Terhune (9th Cir. 2013) 712 F.3d 1304, 1312 ["[P]rison officials, without more, cannot validate inmates based on a mere 'social connection to an individual gang member.' [Citation.] Any connection must evidence affiliation or association with a gang to be used as a source item supporting validation"].) We conclude that some evidence does not support the CDCR's use of the intercepted letter as a source item in validating Menchaca as a gang affiliate under former § 3378, subd. (c)(8)(L). And because this is the only source item that could satisfy the "direct link" requirement, some evidence does not support Menchaca's gang validation. III. Menchaca's Guilty Finding for Participation in a Riot Is Not Supported by Some Evidence
We also reject the People's brief argument, based on In re Furnace, supra, 185 Cal.App.4th at p. 662, that the "interplay" of the other source items provides some evidence of gang activity. There, the "direct link" was the address and contact information for a validated gang member, and the other source items included a newspaper article regarding the gang and mentioning that particular member, thus making it "apparent that [the inmate] knew [the member] was a member of the [gang]." (Id. at p. 661.) Here, none of the other source items established that Menchaca knew that Mitchell was a gang affiliate, nor did they relate to or explain the letter's content, and their previous relationship as cellmates provides an explanation for why the letter was sent.
Because we conclude that some evidence does not support the CDCR's use of the letter as a source item, we need not reach the parties' arguments whether unilateral action by a gang affiliate, as opposed to an inmate, can satisfy the "direct link" requirement under the former version of § 3378, subd. (c)(4).
A. The Charged Offense
In connection with the October 30, 2015 riot, Menchaca was charged with violating California Code of Regulations (CCR), Title 15, section 3005(d)(2), which provides that "Inmates shall not, with the intent to cause a riot, willfully engage in conduct that urges a riot, or urges others to commit acts of force or violence at a time or place under circumstances that produce a clear and present and immediate danger of acts of force and violence."
The rules violation report states that Menchaca was charged with a violation of CCR section 3005(d)(3), but the text quoted by the report is actually CCR section 3005(d)(2).
The rules violation report contains the following elaboration regarding the offense: "Riot means two or more inmates assemble and either commit or threaten actions best described as violent, boisterous, disruptive or disturbing the public peace. (PC 404). The difference between this offense and offenses such as battery or fighting is that the number of inmates has reached the point that the inmates are seen as a group or crowd with a common goal of violence against property or other persons and this group has challenged institutional security by refusing to comply with orders to stop. Participation means there is witness testimony identifying the inmate as either participating or attempting to participate as an active member of such a group. If this offense involves one group attacking another group, this charge applies to the victims of attack if those victims refused to comply with orders or, by their actions, promoted continued violence. The subject is not being charged with a violation that requires evidence that he struck someone. This offense only requires evidence that the subject contributed to the disorder and violence of the riot with some sort of voluntary action. Therefore, it is not necessary to actually engage in a fight as participation in a riot, but conduct that urges others to riot is considered participation."
At the hearing, Menchaca testified that he " 'wasn't involved' " in the riot, that he was sitting by the dip bars near building 6 when the riot occurred, and that he injured his left knee during the riot when he was " 'crawling on the ground after the C/O's ordered me to do so.' " Menchaca also offered a stipulated statement from another inmate present at the riot "indicating [Menchaca] was not rioting and got down on the ground when ordered to by staff." A telephonic interview was conducted with Officer Hilton, who testified in response to questions from Menchaca as follows: "Q1. Did you literally witness me involved in a physical confrontation with anybody? If so with who? [¶] A1. 'No, not that I recall.' [¶] Q2. Did you witness me refuse a direct order in regards to getting down or proning out? If so, what did you see me do? [¶] A2. 'No, not specifically.' [¶] Q3. Did you see some people get down when ordered to do so? [¶] A3. 'Once I got over to Building 4, some inmates got down near the side of Building 4.' " Hilton was then asked a single question by the hearing officer: "Q1. Did you observe all inmates in the areas between Buildings 4, 5, and 6 either fight, in a physical altercation and or not complying with orders to get down? [¶] A1. 'Yes.' "
As mentioned above, the hearing officer found Menchaca guilty, based on seven items of evidence: (1) The "CDC-115 Rules Violation Report (RVR) authored by Officer J. Hilton dated 10/30/2015 issued on 11/12/2015"; (2) "837 Crime/Incident Report SOL-SFA-15-10-0257 issued on 11/25/2015"; (3) Menchaca's "partial admission of guilt where he stated that he was in the area of where the riot occurred, specifically between building 4, 5, and 6"; (4.) "Video surveillance of the incident where it shows multiple inmates rioting between building 4 and 6"; (5) A yard schematic identifying Menchaca "on the workout area between buildings 5 and 6"; (6) A medical report reflecting that Menchaca "sustained an abrasion/Scratch to his left knee"; and (7) Officer Hilton's testimony that "inmates in the areas between Buildings 4, 5, and 6 [were] either fight[ing], in a physical altercation and or not complying with orders to get down." The hearing officer concluded that "the disruption was a riot and the subject's behavior contributed to the disorder and violence of the riot."
B. Analysis
Menchaca argues that none of the evidence relied upon by the hearing officer supports the conclusion that he participated in the riot. The People argue that the fact that Menchaca was present at the site of the riot and sustained injuries consistent with fighting is sufficient to satisfy the some evidence standard. We agree with Menchaca.
The first two items relied upon by the hearing officer are Officer Hilton's rules violation report and a lengthy prison report on the riot incident more generally. In support of the charges, the rules violation report contains a brief paragraph referring to some of the other evidence relied on by the hearing officer, including the video of the incident and the yard schematic. The more general report on the incident contains rules violations reports for the scores of inmates alleged to have been involved, as well as reports on the incident from various members of the prison staff. Other than the yard schematic, contained in the report and discussed further below, the People have not identified (nor have we located) anything in the more general report that provides some evidence in support of the alleged violation.
Menchaca's "partial admission of guilt," i.e., his admission that he was in the area where the riot occurred, obviously does not provide any evidence in support of the conclusion that Menchaca participated in the riot. It was undisputed that Menchaca was in the area at the time the riot occurred, and he so testified. But without more, Menchaca's mere presence where the riot took place does nothing to establish that he "contributed to the disorder and violence of the riot with some sort of voluntary action."
We turn next to the video surveillance footage of the riot, which the hearing officer found "shows multiple inmates rioting between building 4 and 6." The hearing officer did not find that the video depicts Menchaca, nor do the People so contend. We have reviewed the video, which depicts multiple inmates running or fighting, and others either sitting or lying on the ground, presumably in response to orders from prison officials. Because the video does not depict Menchaca specifically, it does not provide "some evidence" in support of the conclusion that he participated in the riot.
The yard schematic depicts an "area B" between buildings 4, 5, and 6, and the staff report to which the yard schematic was attached states: "On 10/30/2015 at approximately 1438 hours, while performing my duties as an Inmate day labor Officer, I responded to a Code 3 Riot on Facility A Between buildings 4, 5, and 6. Upon arrival I observed several inmates laying in a prone position. Using a schematic of Facility A Yard I scribed the names and CDC numbers of several inmates around the affected area . . . areas B and E between 4, 5, and 6. These are the list of inmates in area B . . . Menchaca D87412 . . . ." At best, the schematic and report indicate that Menchaca was in the area in which the riot took place, which as discussed above is not in dispute and does not support the conclusion that he participated in the riot. In fact, the report suggests that Menchaca was obeying commands and was "laying in a prone position" as the riot unfolded.
The evidence showing that Menchaca sustained an abrasion or scratch to his left knee during the riot does not support the conclusion that he participated in it. The best explanation for this abrasion is that Menchaca sustained it while crawling backward while wearing shorts as ordered by officers, which is consistent with his testimony, the report accompanying the schematic discussed above, and the stipulated testimony of another inmate offered by Menchaca. Even standing alone, at most the abrasion supports an inference that Menchaca was struck and injured by another inmate during the riot. But the offense requires evidence that Menchaca took some "voluntary action" that contributed to the disorder and violence of the riot, or that if he was a victim of an attack, that he "refused to comply with orders or, by [his] actions, promoted continued violence." Menchaca's injury provides no evidence in support of these requirements.
The medical report itself is not in the record, but the parties do not dispute its contents.
This brings us to Officer Hilton's testimony that he saw "all inmates in the areas between Buildings 4, 5, and 6 either fight, in a physical altercation and or not complying with orders to get down." We cannot agree that there is any "rational nexus" between this testimony and the conclusion that Menchaca participated in the riot. The inference the People would have us draw is that because Menchaca was near building 6 when the riot began, and because Officer Hilton saw "all" inmates "in the areas between Buildings 4, 5, and 6" either fighting or disobeying orders, Menchaca himself must have been either fighting or disobeying orders. But as Menchaca notes, the riot involved "approximately 200 inmates." Several of those charged with participation were ultimately found not guilty. When questioned regarding Menchaca specifically, Officer Hilton admitted that he did not see Menchaca engaged in a physical confrontation with anyone and that he did not see Menchaca refuse any orders to get down. He further testified—contradicting the testimony upon which the People rely—that he saw "some inmates" near building 4 get down on the ground when ordered to do so. Under these circumstances, the inference the People would have us draw based on Officer Hilton's testimony is unreasonable, and there is no " 'rational nexus' " between the evidence and the conclusion that Menchaca participated in the riot. (See In re Martinez, supra, 242 Cal.App.4th at pp. 307-308; In re Gomez (2016) 246 Cal.App.4th 1082, 1095-1096.)
DISPOSITION
Menchaca's petition for writ of habeas corpus is granted. The CDCR is ordered to vacate Menchaca's 2008 gang validation decision, to expunge all references to that decision from his central file, and to report that expungement to all gang-related law enforcement databases and clearinghouses to which the original validation was reported previously, including the Board of Parole Hearings. The CDCR is further ordered to reverse the disciplinary ruling that Menchaca participated in the October 30, 2015 riot, thereby committing a serious rules violation, restore Menchaca's 90 days of conduct credits, expunge all references to his disciplinary charge from his central file, and to report that expungement to all gang-related law enforcement databases and clearinghouses to which the original violation was reported previously, including the Board of Parole Hearings.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.