Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo Super. Ct. No. HC4163 Jac Crawford, Judge
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Heather Bushman, Gregory J. Marcot, Deputy Attorneys General, for Appellant J. Marshall, Warden.
David Karcher, in pro. per., for Respondent.
PERREN, J.
John Marshall, Warden of California Men's Colony (the warden), appeals from the order granting inmate David Karcher's petition for a writ of habeas corpus. The warden contends the superior court erred in ordering him to reduce a 150-day good time credit loss to 30 days pursuant to Penal Code section 2932, subdivision (a)(4), because the misconduct giving rise to the disciplinary action—possession of a controlled medication, in violation of California Code of Regulations, title 15, section 3016, subdivision (a)—is punishable as a felony under section 4573.8. The warden raised this contention for the first time in a motion for reconsideration, but the court was divested of jurisdiction to rule on that motion when the warden filed his notice of appeal.
Unless otherwise noted, all further statutory references are to the Penal Code.
All further references to title 15 are to the California Code of Regulations.
Because Karcher alleged in his petition that his misconduct could not have been prosecuted criminally, and the court ordered the warden to show cause why that allegation was untrue, the warden effectively admitted its truth by failing to dispute it in his return. (Cal. Rules of Court, rule 4.551(d); People v. Duvall (1995) 9 Cal.4th 464, 477.) Accordingly, we affirm.
All further rule references are to the California Rules of Court.
BACKGROUND
A correctional officer observed Karcher receiving his daily dose of the antidepressant prescription drug Wellbutrin (two 75 mg. tablets) from the prison pharmacy. After Karcher placed both tablets in his mouth, the officer saw him remove them and place them in his pocket. The officer subsequently prepared a Rules Violation Report-CDC-115 (RVR) charging Karcher with possessing controlled medication in violation of title 15, section 3016, subdivision (a).
Title 15, section 3016, subdivision (a) provides in pertinent part that "[i]nmates may not . . . possess . . . or have under their control any controlled substance, controlled medication, or alcohol, except as specifically authorized by the institution's/ facility's health care staff."
At a subsequent disciplinary hearing, Karcher admitted the violation. A hearing officer thereafter found Karcher guilty of the violation, which was classified as a Division "B" offense, and assessed a credit loss of 150 days. In assessing the maximum credit loss, the hearing officer relied on the fact that Karcher had multiple prior drug-related regulatory violations. The hearing officer's report made no mention of the allegation that Karcher's offense could not have been prosecuted as a misdemeanor or a felony.
Karcher stated: "I plead guilty with explanation. I was going to take the medication. I had been to the Doctor at CMC-East clinic a couple of weeks earlier and she said she would reduce my Wellbutrin. I was told I could pick it up at any med line through out the day. I was just going to take it later in the day."
Title 15, section 3323, subdivision (d)(6) provides that Division "B" offenses are subject to a credit forfeiture of 121 to 150 days and include the "[u]nauthorized possession or control of . . . controlled medication in an institution/facility or contract health facility."
In denying Karcher's appeal at the second level of review, the warden noted that Karcher had submitted a copy of In re Dikes (2004) 121 Cal.App.4th 825, in support of his claim that his credit loss was limited to 30 days under section 2932, subdivision (a)(4). The warden responded that Dikes was irrelevant "because it involved a positive urinalysis test not the actual possession of the controlled item." Karcher's subsequent appeal at the director's level was also denied, without any reference to the allegation that Karcher's conduct was not subject to criminal prosecution.
Having exhausted his administrative remedies, Karcher filed a petition for a writ of habeas corpus in the superior court. The petition alleged, among other things, that Karcher's credit loss was limited to 30 days under section 2932, subdivision (a)(4), because his act of misconduct (possession of a controlled medication in violation of section 3016, subdivision (a) of title 15) could not have been prosecuted as either a felony or a misdemeanor.
The superior court issued an order to show cause why the relief requested in the petition should not be granted. The order stated: "In his petition, petitioner challenges the fairness of the hearing and the severity of the discipline imposed. CMC assessed 150 days of credit forfeitures, based on the upper end of a Division B offense under 15 C.C.R. section 3323. However, Penal Code section 2932 addresses credit forfeiture and limits the number of days that may be forfeited based on the offense. Addressing misconduct that cannot be prosecuted as a felony or misdemeanor, section 2932(a)(4) provides in part: 'Not more than 30 days of credit may be denied or lost for a single act of misconduct defined by regulation as a serious disciplinary offense by the Department of Corrections [CDC].' CDC does not appear to contend that petitioner's act of possessing medication prescribed to him could be prosecuted as either a felony or misdemeanor. [¶] Respondent is ordered to show cause why the relief requested in the petition for writ of habeas corpus should not be granted. . . . The return shall address any procedural issues raised by the petition, as well as the merits of the petitioner's claim." (Italics added.)
In addressing Karcher's claim that his credit loss was limited to 30 days under section 2932, subdivision (a)(4), the warden did not dispute the superior court's statement that "CDC does not appear to contend that petitioner's act of possessing medication prescribed to him could be prosecuted as either a felony or misdemeanor." Indeed, he submitted a report indicating that Karcher's violation "[d]oes not meet criteria for DA referral" and that the Kings County District Attorney had declined a referral. Nevertheless, the warden asserted that Karcher's credit loss was not governed by subdivision (a)(4) of section 2932, because that statute refers to credit "lost for a single act of misconduct," while Karcher's loss of credits was based "on petitioner's repeated violations of related drug possession violations in the past." In his traverse, Karcher noted that he had no prior charges for possessing a controlled medication in violation of section 3016, subdivision (a) of title 15, and that the warden had failed to present evidence of any prior administrative rule violations.
Although Karcher has represented himself throughout these proceedings, he was entitled to appointed counsel after the order to show cause was issued. (Rule 4.551(c)(2).) There is no indication in the record that Karcher was ever advised of this right. In light of the result, the error in failing to appoint counsel is harmless.
The superior court subsequently issued its order granting the petition for writ of habeas corpus in part. The court stated: "The issue raised by the Order to Show Cause was whether the Respondent/Department exceeded its authority in imposing a forfeiture (of accumulated good behavior and/or participation time credits) of more than thirty (30) days, in light of In re Dikes [supra, 121 Cal.App.4th 825]. In that case, the Department conceded and the court held that where an inmate's single act of misconduct cannot be criminally prosecuted as either a felony or misdemeanor, the maximum number of days of credit that may be denied or forfeited as punishment, is limited by Penal Code § 2932 to thirty (30) days. Id., at 833-834. The Respondent's Return failed to persuade the court that the case at bar is not controlled by the Department's concession and the court's holding in that case." The court accordingly ordered Karcher's credit loss reduced from 150 days to 30 days.
On March 12, 2007, the warden filed a motion for reconsideration or, in the alternative, a motion to stay enforcement of the court's order. In that motion, the warden argued for the first time that Karcher's loss of credits was not limited to 30 days by section 2932, subdivision (a)(4) because his misconduct could have been prosecuted as a felony under section 4573.8. The warden filed his notice of appeal from the order granting the petition on April 13, 2007, thereby depriving the superior court of jurisdiction to rule on the reconsideration motion. The court did, however, stay enforcement of the order pending the appeal.
Section 4573.8 provides in pertinent part: "Any person who knowingly has in his or her possession in any state prison . . . drugs in any manner, shape, form, dispenser, or container, . . . without being authorized to possess the same by rules of the Department of Corrections . . . is guilty of a felony."
DISCUSSION
The warden contends the court erred in ordering him to reduce Karcher's credit loss to 30 days pursuant to section 2932, subdivision (a)(4) because the act of misconduct upon which the disciplinary action was based—possession of a controlled medication, in violation of title 15, section 3016, subdivision (a)—could have been prosecuted as a felony under section 4573.8. We disagree because the warden effectively conceded in his return that Karcher's conduct could not have been criminally prosecuted.
The warden does not dispute that Karcher's habeas petition alleged a prima facie basis for relief. Because Karcher made the necessary showing, the court issued an order to show cause and the burden shifted to the warden "to allege '". . . facts tending to establish the legality of the challenged detention."' [Citations.]" (Rose v. Superior Court (2000) 81 Cal.App.4th 564, 573.) The allegations in the return had to "respond to the allegations of the petition that form the basis of the petitioner's claim . . . ." (People v. Duvall, supra, 9 Cal.4th at p. 476.) The California Rules of Court explicitly provide that "[a]ny material allegation of the petition not controverted by the return is deemed admitted for purposes of the proceeding." (Rule 4.551(d).) Moreover, "'[w]hen the return effectively acknowledges or "admits" allegations in the petition and traverse which, if true, justify the relief sought, such relief may be granted without a hearing on the other factual issues joined by the pleadings.' [Citation.]" (Duvall, at pp. 476-477.)
Karcher’s petition alleged that his credit loss was limited to 30 days under section 2932, subdivision (a)(4), because his act of misconduct could not have been prosecuted as a misdemeanor or a felony, and the order to show cause directed the warden to respond to that allegation. After quoting the CDC's concession in Dikes that the inmate's possession of drugs in violation of title 15, section 3016, subdivision (a) could not be prosecuted as a crime, the court stated that "CDC does not appear to contend that [Karcher's] act of possessing medication prescribed to him could be prosecuted as either a felony or misdemeanor." The order also made it clear that the warden's return "shall address any procedural issues raised by the petition, as well as the merits of the petitioner's claim."
The warden's return, however, did not challenge the allegation that Karcher's possession of medication prescribed to him could not have been prosecuted criminally. On the contrary, an exhibit to the return demonstrates the CDC's conclusion that Karcher's conduct "[d]oes not meet [the] criteria" for a referral to the district attorney, and that the district attorney had declined a referral. Accordingly, the allegation was effectively admitted for purposes of the proceeding and the court could grant habeas relief on that basis without holding an evidentiary hearing. (Rule 4.551(d); People v. Duvall, supra, 9 Cal.4th at pp. 476-477.) Although the warden subsequently attempted to revive the issue in a motion for reconsideration, the warden filed his notice of appeal before the court had the opportunity to rule on it. Even assuming that the motion was procedurally proper, it is well settled that we generally do not address issues that were not considered below. (Bhatt v. State Dept. of Health Services (2005) 133 Cal.App.4th 923, 933.) The warden fails to offer any legitimate reason for us to diverge from that rule here.
The warden did purport to distinguish Dikes and section 2932, subdivision (a)(4), on the ground that the statute restricts credit loss "for a single act of misconduct," while "the punishment petitioner received was not based on just his most current offense, but rather on petitioner's repeated violations of related drug possession . . . ." The superior court implicitly rejected this contention, however, and the warden has abandoned it on appeal.
The order granting Karcher's petition for a writ of habeas corpus is affirmed. The stay issued pursuant to section 1507 is dissolved.
We concur: GILBERT, P.J., YEGAN, J.