Opinion
F064046
01-24-2017
GERMAN COREAS, Plaintiff and Appellant, v. SUBSTANCE ABUSE & TREATMENT FACILITY & STATE PRISON, Defendant and Respondent.
German Coreas, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11C0242)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kings County. Steven D. Barnes, Judge. German Coreas, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
Before Gomes, Acting P.J., Franson, J. and Smith, J. --------
-ooOoo-
Appellant German Coreas, an inmate proceeding in propria persona, appeals the denial of his self-titled petition for a writ of administrative mandate, which alleged a due process violation due to a lack of evidence supporting his administrative punishment for possessing escape paraphernalia, in the form of a wig, in his cell. Because the denial of appellant's petition was not an appealable order, we dismiss this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On June 30, 2010, Correctional Officer R. Cantu conducted a search of appellant's cell. During that search, Officer Cantu discovered a brown paper bag under one of the bunks which contained "what appeared to be a wig made out of human hair." Appellant admitted the hair belong to him, but claimed he was saving the hair both out of religious conviction and so that it could be donated to Locks of Love or another cancer association. Appellant later argued the hair was loose, not in the form of a wig, and incapable of being used as a disguise given it was appellant's own hair and he already wore his hair long. As a result of the search, appellant was found to have violated California Code of Regulations, title 15, section 3006(d), which precludes inmates from possessing anything "which is not contraband but will, if retained in possession of the inmate, present a serious threat to facility security or the safety of inmates and staff." Appellant's administrative appeals were denied.
On June 29, 2011, appellant filed what was titled a petition for writ of administrative mandate in the Kings County Superior Court. The identified real party in interest was the "Substance Abuse Treatment Facility & State Prison." No proof of service accompanied the writ petition. Apparently treating the writ petition as one for habeas corpus, the trial court denied appellant's petition without input from any respondent and without discussing whether proper service had occurred. The trial court found the discovery of human hair in appellant's cell, described by the reporting employee as constituting a wig, coupled with appellant's admission to possessing the hair, satisfied the "some evidence" standard of review utilized in habeas corpus proceedings regardless of any reasons proffered by appellant for possessing the hair.
This appeal followed. Appellant served his initial brief on this court, the California Supreme Court, and the Kings County Superior Court. On the ground no respondent was served in the lower court, no respondent's brief was filed by the Attorney General. And no named party filed a respondent's brief. After an opportunity to further brief the case, appellant failed to serve his briefing on any respondent, serving only this court, and further failed to explain why only the trial court had been served previously.
DISCUSSION
The denial of a writ of habeas corpus by the trial court is a non-appealable order. (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7.) Appellant drafted his petition as one for a writ of administrative mandate. But such a writ "is available to compel public agencies to perform acts required by law" (i.e., ministerial duties) and thus is inapplicable here. (People v. Picklesimer (2010) 48 Cal.4th 330, 339-340.) Rather, a writ of habeas corpus is the proper mechanism to contest administrative rules decisions resulting in changes to one's incarceration. (See In re Zepeda (2006) 141 Cal.App.4th 1493, 1494.)
By applying the habeas corpus standard of review and denying appellant's petition, the trial court implicitly deemed appellant's petition as one for habeas corpus. As such, the mechanism for review is not an appeal to this court but a separate habeas petition. Appellant has not filed such a petition. This court is therefore without jurisdiction to hear this appeal and the appeal must be dismissed. (People v. Ryan (1953) 118 Cal.App.2d 144, 149.)
DISPOSITION
The appeal is dismissed.