Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDING; petition for writ of habeas corpus.
Michael Satris and Michele Thompson, under appointments by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and Andrew R. Woodrow, Deputy Attorneys General, for Respondent.
OPINION
Levy, Acting P.J.
Petitioner, an inmate at Pleasant Valley State Prison, challenges a serious rule violation he received for soliciting battery on an inmate. According to the three Confidential Information Disclosure Forms served on petitioner, information was received that petitioner solicited other P.I.A. (Prison Industry Authority) workers to assault inmate Barnhart. The motive for the assault was to cause Barnhart to vacate his position in P.I.A. so that petitioner could take over the job. The confidential informants were deemed reliable by prison officials because more than one source independently provided the same information. Petitioner was not provided with any information disclosing the dates, the times or the places where the solicitations allegedly took place. A review of the confidential portion of the record (three memoranda prepared by the reporting correctional officers) does not reveal any additional information concerning the solicitations such as the times, dates or places where the conversations between petitioner and the informants occurred.
Petitioner speculates that the informants were all friends of one another and their motivation in making these reports was to get petitioner’s job. Petitioner asserts that he was absent from work for six days around the time the solicitations were reported to prison staff. Therefore, if he was provided with the times, dates and places of the alleged solicitations he might have been able to provide an alibi. Petitioner also challenges the sufficiency of the evidence. The Attorney General responds that the evidence is adequate and asserts that the dates, the times, and the places the solicitations took place was not included in the rules violation report or the confidential disclosure forms because this information could reveal the identities of the confidential informants.
DISCUSSION
Penal Code section 2932, subdivision (c)(1)(A) states:
“(c) Any procedure not provided for by this section, but necessary to carry out the purposes of this section, shall be those procedures provided for by the Department of Corrections for serious disciplinary infractions if those procedures are not in conflict with this section.
“(1)(A) The Department of Corrections shall, using reasonable diligence to investigate, provide written notice to the prisoner. The written notice shall be given within 15 days after the discovery of information leading to charges that may result in a possible denial of credit, except that if the prisoner has escaped, the notice shall be given within 15 days of the prisoner’s return to the custody of the Director of Corrections. The written notice shall include the specific charge, the date, the time, the place that the alleged misbehavior took place, the evidence relied upon, a written explanation of the procedures that will be employed at the proceedings and the prisoner’s rights at the hearing. The hearing shall be conducted by an individual who shall be independent of the case and shall take place within 30 days of the written notice.”
A disciplinary finding requires only “some” supporting evidence to satisfy due process concerns. (Superintendent v. Hill (1985) 472 U.S. 445, 455-456; In re Zepeda (2006) 141 Cal.App.4th 1493, 1498; In re Dikes (2004) 121 Cal.App.4th 825, 829.)In adopting this highly deferential review standard, the United States Supreme Court explained that “[p]rison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. [Citation.] The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. Revocation of good time credits is not comparable to a criminal conviction [citation], and neither the amount of evidence necessary to support such a conviction ... nor any other standard greater than some evidence applies in this context.” (Superintendent v. Hill, supra, 472 U.S. at. p. 456.)
The California Supreme Court has upheld the use of confidential information to support a prison disciplinary action. (In re Jackson (1987) 43 Cal.3d 501, 515-516; In re Estrada (1996) 47 Cal.App.4th 1688, 1695.) In so holding, the high court found the California administrative regulations governing confidential informants provide sufficient protection to satisfy due process concerns. (Ibid., see Cal. Code Regs., tit.15, § 3321.) Prison officials must give the accused “[a]s much of the information as can be disclosed without identifying its source including an evaluation of the source’s reliability; a brief statement of the reason for the conclusion reached; and, a statement of reason why the information or source is not disclosed.” (§ 3321, subd. (b)(3)(B).) When confidential information constitutes the sole basis for imposing disciplinary sanctions, “the regulation requires the hearing officer personally to make a reliability and truthfulness finding, and therefore ... the disciplinary record must contain information (confidential or otherwise) from which a reviewing court can conclude the hearing officer actually made a reliability and truthfulness determination, and that the determination is supported by evidence.” (In re Jackson, supra, 43 Cal.3d at p. 516.) The applicable administrative regulations provide that prison officials may not base their decision on a confidential source “unless other documentation corroborates information from the source, or unless the circumstances surrounding the event and the documented reliability of the source satisfies the decision maker(s) that the information is true.” (§ 3321, subd. (b)(1).)
All further regulation references are to the California Code of Regulations, title 15, unless otherwise indicated.
Petitioner was found guilty of the rule violation exclusively on the information contained in three confidential memoranda. The confidential information was provided by three inmates: one inmate provided the inculpatory information on October 19, 2005, at 8:30 a.m. and two inmates provided the inculpatory information on October 19, 2005, at 9:00 a.m. Neither the dates, nor the times nor the places where the alleged solicitations occurred are set forth in the confidential memorandums prepared by the reporting officers (petitioner was not provided with a copy of these confidential memoranda). The sole basis for finding the information provided by the confidential informants reliable was that “[m]ore than one source independently provided the same information.”
The Attorney General acknowledges that none of the documentation concerning the rules violation sets forth the dates, the times or the places where the solicitations alleged occurred. However, it contends that the California Department of Corrections and Rehabilitation acted properly when it omitted this information because the dates, times and places of petitioner’s interactions with the informants is confidential under California Code of Regulations, title 15, section 3321 and that disclosure would endanger the safety of the inmates and jeopardize institutional security.
The Attorney General’s position is untenable under the facts of this case. “[T]he disciplinary record must contain information (confidential or otherwise) from which a reviewing court can conclude the hearing officer actually made a reliability and truthfulness determination, and that the determination is supported by evidence.” (In re Jackson, supra, 43 Cal.3d at p. 516.) Not only has the date, the time and the place not been disclosed to petitioner, it is not contained in the confidential portions of the record. Under the facts of this case we do not see how inclusion in the confidential portions of the record of this basic information about the solicitation, which is vital to an accurate assessment of the informants’ reliability and to a just determination of petitioner’s guilt, could compromise the security of the institution. Therefore, we conclude that petitioner is entitled to a writ of habeas corpus directing respondent to dismiss the rule violation, to restore to petitioner all the benefits lost as a result thereof and to remove all references to the rule violation from petitioner’s record.
In light of this conclusion, it is unnecessary to determine whether petitioner was improperly denied witnesses at the hearing or to address the interplay between Penal Code section 2932 and California Code of Regulations, title 15, section 3321.
DISPOSITION
The petition for writ of habeas corpus is granted. The Department of Corrections is directed to dismiss the rule violation, to restore to petitioner the privileges, time credits and any other benefits lost as a result of the finding of guilt on the rule violation and to remove all references to the rule violation from petitioner’s record.
I CONCUR: Hill, J.
CONCURRING OPINION
KANE, J.
While I do not disagree with the majority that the disciplinary record fails to contain information (confidential or otherwise) from which this reviewing court can conclude the hearing officer actually made a reliability and truthfulness determination and that the determination is supported by evidence (In re Jackson (1987) 43 Cal.3d 501, 515-516), this writ must be granted, in the first instance, because respondent unabashedly refused and failed to give petitioner written notice of the date, time and place of the alleged rule violation (solicitation to commit battery) as required by Penal Code section 2932, subdivision (c)(1)(A).
It is a long-standing rule of practice that where resolution of either a constitutional or a statutory claim could entitle a litigant to relief, the court first addresses the statutory claim. (Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439, 445-446; Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230-231.) This is a settled maxim of constitutional law. (Rider v. County of San Diego (1991) 1 Cal.4th 1, 17 (conc. opn. of George, J.).) This rule of judicial self-restraint requires that a court address a potentially dispositive statutory issue before turning to a constitutional one. (Guardino, supra, at p. 230, quoting People v. Williams (1976) 16 Cal.3d 663, 667; People v. Hernandez (1998) 19 Cal.4th 835, 845-847 (diss. opn. of Werdegar, J.), disapproved on another ground in People v. Seel (2004) 34 Cal.4th 548-556 & fn.6.)
This case is expressly governed by a statute that requires (“shall”) the Department of Corrections to provide written notice to a prisoner of “the date, the time, the place that the alleged misbehavior took place, the evidence relied upon, …” when a serious disciplinary charge is made. (Pen. Code 2932(c)(1)(A).) Respondent concedes that it did not comply with the notice requirements of this statute, but argues that administrative regulations dealing with confidential informants excuse its disregard of the mandatory notice provisions of the statute (§ 2932). The argument fails for several reasons.
Subdivision (c) of section 2932 provides that the department may promulgate procedures to carry out the purposes of this section “if those procedures are not in conflict with this section.” The Department’s contention that regulations authorize it to withhold the date, time and place of the alleged misbehavior from petitioner directly conflicts with the language of the statute. Thus, not only does respondent’s position defy the mandatory language of section 2932, subdivision (c)(1)(A), regarding the information it “shall” disclose to the inmate, its reliance on the regulations violates section 2932, subdivision (c). Moreover, it is well-established law that regulations must not be given an effect which conflicts with statutory law. (Gov. Code, § 11342.2 [“Whenever by the express or implied terms of any statute a state agency has authority to adopt regulations … no regulation adopted is valid … unless consistent and not in conflict with the statute”]; Agricultural Labor Relations Board v. Superior Court (1976) 16 Cal.3d 392, 425-426; In re Johnny S. (1995) 40 Cal.App.4th 969, 978.) Respondent asks this court to give regulations precedence over statutory law when the law prescribes the opposite.
Respondent also relies on In re Estrada (1996) 47 Cal.App.4th 1688. In Estrada, a prison inmate was found guilty of a prison rules violation for conspiring to commit a battery on an inmate. The violation was based solely on information supplied by confidential informants. The inmate was not given written notice of the date, time and place of the conspiracy. The trial court granted the inmate’s petition for writ of habeas corpus. The appellate court reversed, concluding that the charging petition which set forth the date, time and place of the battery was sufficient under a due process analysis and that implementation of section 2932 was subject to legitimate administrative and security needs of the institution.
The Estrada court’s analysis is flawed. First, the fact that the charging petition set forth the date, time and place of the attack does not comply with section 2932, which requires that the written notice specify the date, time and place that the alleged misbehavior took place. In Estrada, the inmate was charged with conspiring to commit a battery. He was entitled to the date, time and place of the conspiracy. He was not given that information and yet the Estrada court indicated that giving him notice of the date, time and place of the actual battery was sufficient. Second, the cases cited by Estrada weredue process cases. In my view, the Estrada court confused considerations of due process with application of clear statutory law. Estrada also erred in according greater deference to administrative regulations than to unambiguous statutory law.
It is unnecessary to decide this matter on due process grounds. Respondent failed to comply with section 2932. The writ of habeas corpus should be granted on that ground.