Opinion
H036217
01-25-2012
In re BYRON HIBBERT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County
Super. Ct. No. HC 7073)
Petitioner Byron Hibbert is an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR). In prison disciplinary proceedings, petitioner was found guilty of possession of a cellular telephone, a rule violation that was classified in the Rules Violation Report (RVR) as "serious" (Cal. Code Regs., tit. 15, § 3315), rather than "administrative" (Cal. Code Regs., tit. 15, § 3314). Administrative rule violations do not result in credit forfeiture. (See Regs., § 3314, subd. (e).) Only serious rule violations are subject to credit forfeiture. (See Regs., §§ 3315, subd. (e); 3323.) The disposition following a guilty finding included an assessment of a 30-day credit forfeiture.
All further references to "Regs." are to the California Code of Regulations, title 15.
Petitioner filed an original petition for writ of habeas corpus, prepared in propria persona, in this court. The petition challenged the disciplinary proceedings on due process grounds, claiming: (1) classification of the rule violation as "serious" rather than "administrative" violated petitioner's constitutional rights to due process under federal and state law and (2) there was no evidence that petitioner possessed a cellular telephone or Bluetooth. We issued an order to show cause and appointed counsel to represent petitioner.
I
Background
A. Facts
The pleadings establish the following facts. (See People v. Duvall (1995) 9 Cal.4th 464, 477 ["Facts set forth in the return that are not disputed in the traverse are deemed true"].) Petitioner Hibbert is in the lawful custody of the California Department of Corrections and Rehabilitation (CDCR) following his 1993 conviction of attempted first degree murder with a firearm enhancement (Pen. Code, §§ 187, subd. (a), 664; former Pen. Code, § 12022.5). He is serving an indeterminate life sentence.
Penal Code section 3046 provides: "(a) No prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of the following: [¶] (1) A term of at least seven calendar years. [¶] (2) A term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole."
On November 7, 2009, correctional officers searched the prison cell shared by inmates Hibbert and Capell. The lower bunk of the cell's bunk bed belonged to Hibbert. A correctional officer located a cellular telephone under Hibbert's mattress, a telephone charger under Capell's pillow, and a Bluetooth device hanging from a lower-bunk wall. A RVR was issued; it charged petitioner Hibbert with possession of a cellular telephone/Bluetooth in violation of California Code of Regulations, title 15, section 3006, subdivision (c)(19), and classified the rule violation as serious. Petitioner pleaded not guilty to the disciplinary charge and a prison disciplinary hearing was held. The correctional officer who discovered the cellular telephone and Bluetooth was questioned by the senior hearing officer (SHO) and the officer indicated where he had found the contraband.
Petitioner was found guilty of possession of a cellular telephone. The disposition included an assessment of a forfeiture of 30 days of credit "consistent with a Division 'F' Offense, CCR § 3323(h)(10)" and placement in privilege group "C" for 90 days and the temporary loss of certain custodial privileges. Petitioner Hibbert exhausted his administrative remedies. His appeals were denied through Director's Level of review.
Prison officials restored all of petitioner Hibbert's lost credits after he successfully refrained from committing additional disciplinary violations during a three-month time frame and all of his custodial privileges were reinstated. B. Regulatory Background
"An inmate may apply for restoration of 100 percent of any credit forfeited for a Division 'F' offense, not identified in section 3327, after remaining disciplinary free for 90 days." (Regs., § 3328, subd. (c).) "Upon completion of a disciplinary-free period for Division D, E, and F offenses as provided in section 3328, an eligible inmate may apply to their caseworker for credit restoration by submitting a CDC Form 958 (Rev. 8/87), Application for Inmate's Restoration of Credits." (Regs., § 3327, subd. (b).)
By statute, the Secretary of the CDCR has the authority to "prescribe and amend rules and regulations for the administration of the prisons . . . ." (Pen. Code, §§ 5050, 5058, subd. (a).) Under the regulations, inmates have a limited right to possess personal property items. "Inmates may possess only the personal property . . . , up to the maximum amount, received or obtained from authorized sources, as permitted in [the] regulations. Possession of contraband as defined in section 3000 may result in disciplinary action and confiscation of the contraband." (Regs., § 3006.) "Contraband" is defined by regulation as "anything which is not permitted, in excess of the maximum quantity permitted, or received or obtained from an unauthorized source." (Regs., § 3000.) Under the regulations in effect at the time of the alleged rule violation, prison inmates were prohibited from having possession or control of a "[c]ellular telephone or other electronic communications device" without authorization. (Former Regs., § 3006, subd. (c)(19).)
The Office of Administrative Law has approved the CDCR's emergency regulations concerning cellular phones. Under one of these regulations, in a provision that concerns "dangerous property" contraband, inmates are presently prohibited from possessing "cellular telephones or wireless communication devices or any component thereof including, but not limited to, a subscriber identity module (SIM card) or memory storage devices and cellular telephone chargers" or having those items under their control or constructive possession. (Regs., § 3006, subd. (a).)
"When [inmate] misconduct is believed to be a violation of law or is not minor in nature, it shall be reported on a CDC Form 115 (Rev. 7/88), Rules Violation Report." (Regs., § 3312, subd. (a)(3).) Reports are required to "be classified as administrative or serious pursuant to sections 3314 and 3315." (Regs., § 3313.) Some rule violations categorically constitute serious rule violations or administrative rule violations under the regulations. (See Regs., §§ 3314, subd. (a)(3), 3315, subds. (a)(1) and (a)(3).) Other rule violations are classified as serious based upon circumstances beyond the basic elements of an otherwise administrative rule violation.
A regulatory credit forfeiture schedule applies where an inmate is found guilty of a serious rule violation. (See Regs., § 3323.) "Upon a finding of guilt of a serious rule violation, a credit forfeiture against any determinate term of imprisonment or any minimum eligible parole date for an inmate sentenced to an indeterminate sentence, as defined in section 3000 Indeterminate Sentence Law (ISL), shall be assessed within the ranges specified" by section 3323. (Regs., § 3323, italics added.) Subdivision (h) of section 3323 (Division "F" offenses) of the California Code of Regulations, title 15, provides for the lowest range of credit forfeiture of zero to 30 days.
A rule violation may be classified as "serious" if it involves possession of "dangerous contraband." (Regs., § 3315, subd. (a)(2)(D); see Regs., § 3314, subds. (a)(2)(E) [an "administrative" rule violation does not involve "[p]ossession of dangerous contraband"], (a)(3)(A) ["administrative" rule violations include "possession of contraband other than controlled substances or dangerous contraband"].) Under the previously existing rules, a rule violation of possession of "dangerous contraband" was subject to credit forfeiture as a "Division F" offense under the regulatory credit forfeiture schedule. (Former Regs., § 3323, subd. (h)(7) ["Possession of dangerous contraband as identified in section 3000"].)
The Legislature recently enacted a new law requiring "[a]ny inmate who is found to be in possession of a wireless communication device [to] be subject to time credit denial or loss of up to 90 days." (Pen. Code, § 4576, subd. (c), eff. Oct. 6, 2011 [Stats. 2011, ch. 500, §§ 1, 4, pp. 4946-4947].) An approved emergency regulation amending section 3323 of the California Code of Regulations, title 15, is presently in effect. It made "[p]ossession and/or constructive possession of a cellular telephone or wireless communication device or any component thereof including but limited to, a subscriber identity module (SIM card), memory storage devices or cellular telephone chargers" subject to credit forfeiture of 61 to 90 days as a Division "D" offense. (Regs., § 3323, subd. (f)(15).) It added language to subdivision (h)(7) of section 3323 of the Code of Regulations, title 15, expressly excluding "cell phones or wireless communication devices or any component or accessory thereof" from its coverage.
Under the prison regulations, "dangerous contraband" has specific meaning. At the time of the charged rule violation, "dangerous contraband" was defined as follows: "Dangerous contraband means materials or substances altered from their original manufactured state or purpose and which could be fashioned into a weapon. Examples would include, but not be limited to, metal, plastic, wood, or wire. Also included are: sharpened objects such as scissors or other tools not authorized to be in the inmate's possession, as well as poison, caustic substances, or flame producing devices i.e. matches or lighters." (Former Regs., § 3000.)
An emergency regulation has amended the definition of "dangerous contraband." The present regulatory definition of "dangerous contraband" additionally encompasses "materials or substances that could be used to facilitate a crime or could be used to aid an escape" and "cellular telephones or wireless communication devices or any components thereof, including, but not limited to, a subscriber identity module (SIM card), memory storage device, cellular phone charger." (Regs., § 3000.)
In addition, a rule violation may be classified as "serious" if it involves "hazard to facility security." (Regs., § 3315, subd. (a)(2)(B); see Regs., § 3314, subd. (a)(2)(B) [an "administrative" rule violation does not involve "[a] breach of or hazard to facility security"].) A serious rule violation not otherwise specified in the disciplinary credit forfeiture schedule is subject to credit forfeiture under the catchall provision of Code of Regulations, title 15, section 3323, subdivision (h)(10), which includes "[a]ny other serious rule violation meeting the criteria listed in section 3315, not a crime, and not identified as administrative in section 3314."
At the time of the charged rule violation, possession of a cellular telephone was not classified as a per se "serious" rule violation by the regulations. (Cf. Regs., § 3315, subd. (a)(3)(G) ["serious" rule violations include "[p]ossession of five dollars or more without authorization"].) While an offense punishable as a misdemeanor or felony is a serious rule violation under the regulations whether or not the offense is prosecuted (see Regs., § 3315, subd. (a)(1)), California does not yet have a law criminalizing a state prison inmate's possession of a cellular telephone.
One of the emergency regulations has changed that situation. "Possession and/or constructive possession of a cell phone or wireless communication device or any component thereof including, but not limited to, a subscriber identity module (SIM card), memory storage devices or cellular telephone chargers" is now categorically a serious rule violation. (Regs., § 3315, subd. (a)(3)(X).)
Penal Code section 4575 makes it a misdemeanor for "[a]ny person in a local correctional facility" to have unauthorized possession of "a wireless communication device, including, but not limited to, a cellular telephone, pager, or wireless Internet device . . . ." (Italics added.)
II
Procedural Issues
A. Right to Review on Habeas Corpus
Respondent argues that this court lacks habeas jurisdiction and petitioner Hibbert's due process claims are not cognizable because the disciplinary decision did not (1) extend the length of Hibbert's sentence in that the conduct credits were restored after he avoided any disciplinary violations for a three-month period or (2) impose an atypical and significant hardship. Respondent cites In re Johnson (2009) 176 Cal.App.4th 290 (Johnson) and Sandin v. Conner (1995) 515 U.S. 472 (Sandin).
1. Habeas Jurisdiction
Generally speaking, we see no bar to our exercise of habeas jurisdiction. This court has "original jurisdiction in habeas corpus proceedings" (Cal. Const. art. VI, § 10.) Under California law, "[i]t is a well established rule that habeas corpus may be sought by one lawfully in custody for the purpose of vindicating rights to which he is entitled in confinement. (In re Harrell, 2 Cal.3d 675, 682 . . . ; In re Allison, 66 Cal.2d 282, 285 . . . ; In re Riddle, 57 Cal.2d 848, 851 . . . .)" (In re Jordan (1972) 7 Cal.3d 930, 932.)
Originally, a writ of habeas corpus served the "limited purpose of releasing a person imprisoned or restrained as a result of a void proceeding or jurisdictional defect in the imprisoning authority [citations] . . . ." (In re Jackson (1964) 61 Cal.2d 500, 503.) "[T]he function of the writ has been hugely expanded" and its scope has been enlarged to include "the protection of the rights of prisoners while incarcerated. (In re Riddle (1962) 57 Cal.2d 848, 851 . . . ; In re Ferguson (1961) 55 Cal.2d 663, 669 . . . .)" (Ibid.)
On petitions for writ of habeas corpus, the California Supreme Court has reviewed a number of decisions by prison authorities adversely affecting inmates' credits. (See e.g. In re Young (2004) 32 Cal.4th 900, 904-905 [an inmate, who had already received maximum credit allowed under Three Strikes law, obtained habeas corpus relief where CDC denied his request for a further sentence reduction pursuant to Penal Code section 2935 after he saved his prison work supervisor from choking to death]; In re Cervera (2001) 24 Cal.4th 1073, 1077 [on habeas corpus, court addressed question whether Three Strikes law "allows a defendant with three strikes to be awarded article 2.5 prison conduct credits against his mandatory indeterminate term of life imprisonment"]; In re Ramirez (1985) 39 Cal.3d 931, 932-934 [inmate challenged disciplinary loss of credits assessed under new law on ex post facto grounds].) The Supreme Court has also reviewed habeas petitioners' due process claims related to prison discipline. (See e.g. In re Jackson (1987) 43 Cal.3d 501, 503-504 [neither federal nor state due process law requires "state prison hearing officers to interview confidential informants in camera" before finding inmate guilty of rule violation based on confidential information]; In re Davis (1979) 25 Cal.3d 384, 386 [court considered habeas petitioners' "complain[t] that their due process rights [were] violated by lengthy segregation pending disciplinary proceedings at San Quentin Prison"].) California appellate courts have also entertained habeas petitions where an inmate has claimed that a prison disciplinary decision resulting in credit forfeiture violated the evidentiary due process standard of "some evidence" (see In re Rothwell (2008) 164 Cal.App.4th 160, 163, 171-172; In re Zepeda (2006) 141 Cal.App.4th 1493, 1494-1496; In re Scott (2003) 113 Cal.App.4th 38, 46-47) or that prison disciplinary proceedings violated due process in other ways (see e.g. In re Estrada (1996) 47 Cal.App.4th 1688, 1691, 1694 [where inmate found guilty of rule violation based only on confidential information, court addressed issue of "how much confidential information, if any, should have been disclosed to satisfy the Due Process requirement of adequate notice"].)
2. Sandin and Johnson
Respondent maintains that Sandin and Johnson establish that this court has no habeas jurisdiction to review petitioner's claims that he was denied due process in the disciplinary proceedings because the disciplinary decision did not extend the length of his prison confinement or impose an atypical and significant hardship. Both cases considered whether an inmate had a liberty interest protected by federal procedural due process in the particular disciplinary proceedings at issue.
Prior to those two decisions, the U.S. Supreme Court established that minimum requirements of federal procedural due process apply to prison disciplinary proceedings that deprive an inmate of a protected liberty interest in credit. (See Wolff v. McDonnell (1974) 418 U.S. 539, 557 (Wolff); Superintendent v. Hill (1985) 472 U.S. 445, 453-455 (Hill).) "[T]he State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment 'liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated." (Wolff, supra, 418 U.S. at p. 557.)
If a prison disciplinary proceeding results in the loss of credits in which an inmate has a liberty interest, due process requires that the inmate receive: "(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. [Wolff, supra,] 418 U.S., at 563-567, 94 S.Ct., at 2978-2980." (Hill, supra, 472 U.S. at p. 454.) In addition, a disciplinary decision to revoke credits must also be supported by "some evidence" to satisfy due process. (Id. at p. 455.)
In Sandin, a civil rights action (42 U.S.C., § 1983), a state inmate claimed that he had been deprived of procedural due process in disciplinary proceedings that resulted in 30 days of disciplinary segregation. (Sandin, supra, 515 U.S. at pp. 475-476.) The U.S. Supreme Court in Sandin described its holding in Wolff as follows: "We held that the Due Process Clause itself does not create a liberty interest in credit for good behavior, but that the statutory provision created a liberty interest in a 'shortened prison sentence' which resulted from good time credits, credits which were revocable only if the prisoner was guilty of serious misconduct. [Citation.]" (Id. at pp. 477-478.) The court concluded that the procedural due process protections, conferred in Wolff, do not generally apply to prison disciplinary proceedings. (Sandin, supra, 515 U.S. at pp. 484-486.) It determined that "[d]iscipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law" (id. at p. 485) and the disciplinary segregation "was within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life." (Id. at p. 487, fn. omitted.) The court in Sandin stated that the state-created liberty interests protected by due process "will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, see, e.g., Vitek, 445 U.S., at 493, 100 S.Ct., at 1263-1264 (transfer to mental hospital), and Washington, 494 U.S., at 221-222, 110 S.Ct., at 1036-1037 (involuntary administration of psychotropic drugs), nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." (Id. at p. 484.)
The U.S. Supreme Court in Sandin found that no liberty interest, protected by procedural due process, arose from the state prison regulation requiring a disciplinary finding of guilt where the charge of misconduct was supported by substantial evidence. (Id. at pp. 476-477, 487.) It also concluded that, since the state's disciplinary action did not "inevitably affect the duration of his sentence," no liberty interest, protected by due process, was implicated. (Id. at p. 487.) The court explained: "Nothing in Hawaii's code requires the parole board to deny parole in the face of a misconduct record or to grant parole in its absence [citation], even though misconduct is by regulation a relevant consideration [citation]. The decision to release a prisoner rests on a myriad of considerations. And, the prisoner is afforded procedural protection at his parole hearing in order to explain the circumstances behind his misconduct record. [Citations.] The chance that a finding of misconduct will alter the balance is simply too attenuated to invoke the procedural guarantees of the Due Process Clause." (Ibid.) It noted: "Prisoners . . . , of course, retain other protection from arbitrary state action even within the expected conditions of confinement. They may invoke the First and Eighth Amendments and the Equal Protection Clause of the Fourteenth Amendment where appropriate, and may draw upon internal prison grievance procedures and state judicial review where available." (Id. at p. 487, fn. 11.)
The Johnson case relied on Sandin. (Johnson, supra, 176 Cal.App.4th at pp. 297-298.) In Johnson, the inmate was serving a prison term of 15 years to life. (Id. at pp. 293-294.) As a result of two disciplinary findings of misconduct, inmate Johnson was removed from his job at the prison chapel but he did not lose any credits. (Id.at pp. 293-294, 296.) Johnson argued that "any prison discipline, which has the potential to impact negatively a parole decision, implicates due process." (Id. at p. 293.) The appellate court held that "[t]he fact that Johnson is unhappy with the discipline imposed or that it might adversely impact his release on parole is not enough to invoke due process guarantees requiring judicial review of routine disciplinary decisions implemented by prison officials." (Id. at p. 299.) It concluded there was "no authority to support Johnson's claim that the disciplinary actions are reviewable by way of habeas corpus." (Ibid.)
Nothing in Johnson, supra, 176 Cal.App.4th 290 and Sandin, supra, 515 U.S. 472 prevents this court from reviewing a disciplinary proceeding for compliance with procedural due process on habeas corpus. Sandin did not involve habeas review. Neither Sandin nor Johnson involved a disciplinary assessment of credit forfeiture, which occurred here. We have jurisdiction to review petitioner Hibbert's due process challenges on habeas corpus. B. Mootness
Respondent argues that petitioner's claims became "moot over a year ago when the three-month period of [disciplinary] restrictions lapsed, and prison officials restored all of Hibbert's custodial privileges." In addition, there is no dispute that prison officials have restored all lost credits and, in any event, petitioner has already reached his minimum eligible parole date. Appellant contends that the petition is properly before this court because the finding that he was guilty of a serious rule violation affects determinations regarding his suitability for parole and the amount of postconviction credit he will be granted if he is found suitable for parole. (See Regs., §§ 2402, 2410-2411.)
The fact that the rule violation can be considered in making parole decisions concerning petitioner does not convince us that this case is not moot. Institutional behavior involving "serious misconduct in prison or jail" is only one of many relevant circumstances considered in determining whether petitioner is suitable for parole. (See Regs., § 2402, subds. (c) and (d).) The circumstances tending to show unsuitability or suitability "are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." (Ibid.) "All relevant, reliable information available to the panel shall be considered in determining suitability for parole." (Regs., § 2402, subd. (b); see In re Lawrence (2008) 44 Cal.4th 1181, 1219 ["both the Board and the Governor must consider all relevant statutory factors"].) In determining parole suitability, the issue is whether "prisoner will pose an unreasonable risk of danger if released from prison" (Regs., § 2402, subd. (a); see Pen. Code, § 3041, subd. (b)) and "the paramount consideration" is "whether the inmate currently poses a threat to public safety," not whether a statutory unsuitability factor exists. (In re Shaputis (2008) 44 Cal.4th 1241, 1254.) A parole suitability decision "must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious." (In re Rosenkrantz (2002) 29 Cal.4th 616, 677.)
Similarly, while the regulations generally suggest the amount of annual postconviction credit to be granted to indeterminate life prisoners like petitioner, the regulation governing postconviction credit states that the "board shall consider each case individually in determining the amount of credit" and "provides guidelines for granting credit but a panel may grant more or less as appropriate." (Regs., § 2410, subd. (a).) In addition, although the regulations generally require the denial of annual postconviction credit if a prisoner "commits serious (as defined in 15 CCR Section 3315) or numerous (more than three) infractions of departmental regulations," evidence in mitigation may be considered in deciding whether annual postconviction credit will actually be denied. (Regs., § 2410, subd. (d).)
At hearings for the purpose of reviewing a prisoner's parole suitability, or the setting, postponing, or rescinding of a parole date, the prisoner must be permitted to review his file that will be examined by the Board of Parole Hearings and must have "the opportunity to enter a written response to any material contained in the file." (Pen. Code, § 3041.5, subd. (a)(1).) In addition, the prisoner must be "permitted to be present, to ask and answer questions, and to speak on his or her own behalf." (Pen. Code, § 3041.5, subd. (a)(2).)
In view of the above, it is apparent that the prison authorities' finding that petitioner was guilty of a rule violation or its classification as "serious" does not dictate the outcome of parole decisions. Petitioner can explain the underlying circumstances to the board, which can take them into account. The connection between the challenged rule violation and those parole decisions is too attenuated to conclude that petitioner's claims are not moot.
Of course, we have discretion to decide moot cases that present important issues likely to recur. "Where questions of general public concern are involved, particularly in the area of the supervision of the administration of criminal justice, we may reject mootness as a bar to a decision on the merits. [Citations.]" (In re Walters (1975) 15 Cal.3d 738, 744; see In re William M. (1970) 3 Cal.3d 16, 23 ["if a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot"].) Courts "should not avoid the resolution of important and well litigated controversies arising from situations which are 'capable of repetition, yet evading review.' [Citations.]" (Id. at p. 24, fn. 14.) But we conclude that this exception to the bar of mootness does not apply.
Penal Code 4576 was enacted as urgency legislation. (See Stats. 2011, ch. 500, §§ 1, 4, pp. 4946-4947, eff. Oct. 6, 2011.) Subdivision (c) of Penal Code 4576 provides: "Any inmate who is found to be in possession of a wireless communication device shall be subject to time credit denial or loss of up to 90 days." Executive Order B-11-11, which Governor Brown issued, recognizes the danger posed by prison inmates' access to contraband cellular telephones and other cellular devices, including the risk to security, and the occurrence of "hundreds of incidents across the country . . . in which inmates have uses these devices to conduct criminal or gang activities or to victimize law-abiding people." (Executive Order B-11-11 signed by Governor Brown at [http://gov.ca.gov/news.php?id=17258] [as of October 10, 2011].) It directs the CDCR "to increase penalties for inmates in possession of contraband devices and anyone who illegally provides contraband devices to inmates." (Ibid.) As indicated by footnotes (ante, fns. 4-7), implementing regulatory changes now specify that an inmate's possession of a cellular telephone is a serious rule violation subject to credit forfeiture of up to 90 days. (Regs., §§ 3000, 3006, subd. (a), 3315, subd. (a)(3)(X), 3323, subd. (f)(15).) In light of these developments, the classification question with regard to rule violations involving possession of cellular telephones is not likely to recur and cannot be deemed a continuing issue of public importance. We discern no issue of public importance with regarding to the sufficiency of the evidence establishing possession of a cellular telephone.
III
Procedural Due Process Claims
In any case, even assuming that petitioner's disciplinary loss of credits implicated procedural due process and his procedural due process claims are not moot, the claims are without merit. A. Serious Classification of Rule Violation
We find it unnecessary to resolve whether the reasoning of Sandin v. Conner, supra, 515 U.S. 472 and In re Johnson, supra, 176 Cal.App.4th 290, indicating that a prison inmate is not entitled to federal procedural due process protections in disciplinary proceedings not resulting in the loss of a liberty interest in conduct credit, should be extended to the circumstances of this case because the disciplinary assessment of credit forfeiture did not necessarily extend the duration of petitioner Hibbert's sentence.
1. Cellular Telephones Not "Dangerous Contraband" as Defined by Regulation
We first reject respondent's contention that that "cellular telephones constitute dangerous contraband because they pose significant dangers to the security of an institution and the safety of inmates, correctional guards, and the public." Respondent asserts that "within a prison setting, a cellular telephone is 'able or apt to do harm' to the security of the institution and the safety of the public. (American Heritage Dict. (4th ed. 2000) p.334 [defining 'dangerous'].)"
A two and a half page declaration of a "Special Agent in Charge" with the CDCR's Office of Correctional Safety accompanied the return. The declaration outlines the nefarious uses of cellular telephones by prison inmates.
As already stated, the phrase "dangerous contraband" has a specific regulatory definition. In construing the regulatory definition, we keep in mind that "[g]enerally, the same rules of construction and interpretation which apply to statutes govern the construction and interpretation of rules and regulations of administrative agencies. Miller v. United States, 294 U.S. 435, 55 S.Ct. 440, 79 L.Ed. 977." (California Drive-In Restaurant Ass'n v. Clark (1943) 22 Cal.2d 287, 292.) " 'The interpretation of a regulation, like the interpretation of a statute, is, of course, a question of law [citations], and while an administrative agency's interpretation of its own regulation obviously deserves great weight [citations], the ultimate resolution of such legal questions rests with the courts. [Citations.]' [Citations.]" (Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Cal.3d 86, 93, fn. omitted.)
At the time of the charged rule violation, the regulatory definition of "dangerous contraband" focused on weapons and had two independent parts. The first part of the definition provided: "Dangerous contraband means materials or substances altered from their original manufactured state or purpose and which could be fashioned into a weapon. Examples would include, but are not limited to, metal, plastic, wood, or wire." (Former Regs., § 3000, italics added.) The examples impliedly referred to the type of the materials or substances. The fact that an item "could be fashioned into a weapon" was not sufficient to bring "contraband" under the prior regulatory definition of "dangerous contraband," which was stated in the conjunctive. The item was also required to have been altered from its "original manufactured state or purpose." (Ibid.) There was no evidence whatsoever that the confiscated cellular telephone had been altered in any way.
The prior regulatory definition of "dangerous contraband" further stated: "Also included are: sharpened objects such as scissors or other tools not authorized to be in the inmate's possession, as well as poison, caustic substances, or flame producing devices, i.e. matches or lighters." The cellular telephone is not a sharpened object or any of the specifically named items; it is not an intrinsic weapon.
The prior regulatory definition of "dangerous contraband" did not encompass "contraband" that was merely "dangerous" within the ordinary dictionary meaning. A cellular telephone was not "dangerous contraband" under that governing definition. Therefore, at the time of the charged rule violation, possession of a cellular telephone could not have been deemed a serious rule violation on the ground that it was "dangerous contraband." (Former Regs., § 3000; Regs., § 3315, subd. (a)(2)(D); see Regs., § 3314, subds. (a)(2)(E), (a)(3)(A).) Respondent conceded as much at oral argument. The recent emergency regulation changes confirm our analysis. (See ante, fns. 4, 6, and 7.)
Prison regulations prohibit restoration of credit where an inmate was found "guilty of unauthorized possession of dangerous contraband as defined in section 3000." (Regs., § 3327, subd. (a)(4)(D); see Regs., § 3328, subd. (c).) Petitioner Hibbert's disciplinary loss of credit was restored.
2. Possession of a Cellular Telephone is an Inherent "Hazard to Facility Security"
The use of telephones by prison inmates are restricted by regulation. The general institutional regulations regarding security contain the following prohibition: "An inmate shall not: . . . [¶] (2) Use a telephone capable of direct-dial connection with a public telephone system, except as authorized by staff." (Regs., § 3282, subd. (c)(2).) Inmates are prohibited from using "an intrafacility telephone except as specifically required or authorized by staff" and from placing "a call to an inmate at any other facility" and placing "calls to victims, peace officers, or other persons who have made an official written request not to receive telephone calls." (Regs., § 3282, subds. (c)(1), (c)(7), and (c)(8).) Also, the law existing at the time of the rule violation, and still in effect, made it a misdemeanor to engage in unauthorized communication with prison inmates. (Pen. Code, § 4570.)
Recent urgency legislation now provides that a person who, without authorization, "possesses with the intent to deliver, or delivers, to an inmate or ward in the custody of the department any cellular telephone or other wireless communication device or any component thereof, including, but not limited to, a subscriber identity module (SIM card) or memory storage device, is guilty of a misdemeanor . . . ." (§ 4576, subd. (a).) An emergency regulation presently prohibits "[p]ossession and/or use of a cell phone, wireless communication device or their components thereof" "within the secure perimeter of the institution without authorization" as part of the "General Visiting Guidelines." (Regs., § 3170.1, subd. (h).)
The regulations require correctional facilities to "provide inmate telephones for use by general population inmates." (Regs., § 3282, subd. (b).) "Inmates may place collect telephone calls to persons outside the facility at designated times and on designated telephones, as set forth in local procedures. Limitations may be placed on the frequency and length of such calls based on the inmate's privilege group . . . ." (Ibid.) "All inmate calls placed on intrafacility and inmate telephones may be subject to monitoring and recording at any time by institution staff." (Regs., § 3282, subd. (e).)
"All calls made on inmate telephones shall have an announcement before and at random intervals during the calls stating that the call is from an inmate at a California state correctional facility and is being recorded." (Regs., § 3282, subd. (i).) The regulations further provide: "A conspicuous notice in English and Spanish shall be posted at each inmate telephone capable of recording and monitoring stating in both languages: [']All numbers dialed and conversations on this telephone may be recorded and may be monitored without any further notice. By using this telephone, you agree to the monitoring and recording. . . .' Staff who authorize an inmate to use an unposted telephone for a nonconfidential call shall inform that inmate before the call is made regarding the notice of monitoring/recording requirement." (Regs., § 3282, subd. (f).)
The possession of cellular telephones by inmates is an inherent threat to prison security because such possession allows inmates to contact or threaten others with impunity outside the strictures of institutional oversight and control. Cellular telephones could be used to orchestrate prison disruptions, crimes within a facility, or escapes without detection by prison authorities. A rule violation involving a "breach of or hazard to facility security" constitutes a serious rule violation. (Regs., § 3315, subd. (a)(2)(B); see Regs., tit. 15, § 3314, subd. (a)(2)(B) [an "administrative" rule violation does not involve "[a] breach of or hazard to facility security"].) Because of the inherent threat posed by an inmate's possession of a cellular telephone to institutional security, evidence establishing possession of a cellular telephone satisfied the due process standard of "some evidence" of a rule violation involving a "hazard to facility security." (See Hill, supra, 472 U.S. at pp. 455-457.) B. "Some Evidence" of Possession
Such a rule violation was subject to up to 30 days credit forfeiture under the catchall provision of section 3323, subdivision (h)(10), which includes "[a]ny other serious rule violation meeting the criteria listed in section 3315, not a crime, and not identified as administrative in section 3314."
Petitioner asserts that he did not possess the cellular telephone, his cellmate took full responsibility for owning and possessing the cellular telephone, and the CDCR was aware of inmate Capell's disciplinary record that included repeated rule violations of possession of a cellular telephone. He also states that the CDCR failed to properly consider inmate Capell's disciplinary record, inmate's Capell's admission of possession of the cellular telephone, and petitioner's lack of control over his cell assignment.
Petitioner also complains about failures of prison authorities to comply with regulatory procedure, his inability to review Capell's disciplinary record, the senior hearing officer's telephonic examination of cellmate Capell, who apparently was requested by petitioner as a witness at the disciplinary hearing, and the denial of an opportunity for him to question the reporting officer. Mandatory procedural language contained in prison regulations does not in and of itself create a liberty interest protected by federal procedural due process (see Sandin, supra, 515 U.S. at pp. 483-484) and state law does not dictate the procedural safeguards that are due under the federal Constitution (see Swarthout v. Cooke, supra, 131 S.Ct. 859, 863). Any procedural due process right of an inmate to call witnesses and present documentary evidence in a prison disciplinary proceeding is not absolute and is subject to the reasonable discretion of prison authorities. (Wolff, supra, 418 U.S. at pp. 566-567.) No federal procedural due process right to discovery of documentary evidence in the possession or control of prison authorities has been recognized in the context of prison disciplinary proceedings. (See Wolff, supra, 418 U.S. 539; see also Wolff, supra, 418 U.S. at p. 556 ["Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply"]; Weatherford v. Bursey (1977) 429 U.S. 545, 559 ["There is no general constitutional right to discovery in a criminal case"]; Wardius v. Oregon (1973) 412 U.S. 470, 474 ["the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded"].) Inmates have no federal due process right to cross-examine adverse witnesses in prison disciplinary proceedings. (Wolff, supra, 418 U.S. at pp. 567-569.)
As to evidentiary sufficiency, due process requires only that there be "some evidence" in the record of the disciplinary hearing to support the finding that petitioner was guilty of possession of a cellular telephone. (Hill, supra, 472 U.S. at p. 455.) Resolution of this issue does not require an evidentiary hearing. (See In re Lawler (1979) 23 Cal.3d 190, 194.) "Ascertaining whether [the "some evidence"] standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." (Hill, supra, 472 U.S. at pp. 455-456; see In re Rothwell, supra, 164 Cal.App.4th at p. 166.)
The "due process requirements imposed by the federal Constitution do not authorize courts to reverse prison disciplinary actions simply because, in the reviewing court's view, there is a realistic possibility the prisoner being disciplined is not guilty of the charged infraction." (In re Zepeda, supra, 141 Cal.App.4th at p. 1498.) Only "a modicum of evidence" is necessary to support the disciplinary decision. (Hill, supra, 472 U.S. at p. 455.) "Prison 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. See Wolff, 418 U.S., at 562-563, 567-569, 94 S.Ct., at 2977-2978, 2980-2981. 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." (Id. at p. 456.) "This standard, which takes into account the unique circumstances of the prison environment, is intended to be extremely deferential, and . . . 'is not comparable to a criminal conviction.' (Hill, at p. 456 . . . .)" (In re Rothwell, supra, 164 Cal.App.4th at p. 165.) "The Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board." (Hill, supra, 472 U.S. at p. 457.)
In Hill, two Massachusetts inmates were found guilty of violating prison regulations based on an assault. (Id. pp. 447-448.) The U.S. Supreme Court concluded that the "some evidence" standard of review was satisfied by the evidence indicating that, after hearing some commotion, a guard "discovered an inmate who evidently had just been assaulted" and "saw three other inmates fleeing together down an enclosed walkway" where no other inmates were present. (Id. at p. 456.) The court declared: "Although the evidence in this case might be characterized as meager, and there was no direct evidence identifying any one of three inmates as the assailant, the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary." (Id. at p. 457.)
"Possession may be physical or constructive, and more than one person may possess the same contraband. [Citation.] Possession may be imputed when the contraband is found in a place which is immediately accessible to the joint dominion and control of the accused and another. [Citation.]" (People v. Miranda (2011) 192 Cal.App.4th 398, 410.) The discovery of the cellular telephone under petitioner Hibbert's mattress in his cell was sufficient to satisfy the "some evidence" due process standard with respect to the disciplinary finding that he was guilty of possession of a cellular telephone. (See Hill, supra, 472 U.S. at p. 457; see also In re Zepeda, supra, 141 Cal.App.4th at pp. 1499-1500 [discovery of razor blades in an area of a cell easily accessible to both cellmates constituted "some evidence" against inmate claiming innocence even though his cellmate acknowledged ownership].)
DISPOSITION
The order to show cause is discharged. The petition for writ of habeas corpus is denied.
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ELIA, J.
WE CONCUR:
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PREMO, Acting P.J.
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Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.