Opinion
H036129
10-17-2011
In re CHARLIE R. LARA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 7051)
Petitioner Charlie R. Lara, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR), filed an original petition for a writ of habeas corpus in this court that challenged the classification of a rule violation of possession of contraband as "serious" rather than "administrative." (See Cal. Code Regs., tit. 15, §§ 3000 ["contraband" defined], 3006 [possession of contraband prohibited], 3314 ["administrative" rule violations], 3315, subd. (a) ["serious" rule violations].) The classification resulted in the assessment of a 30-day credit forfeiture after petitioner was found guilty following a prison disciplinary hearing. (Compare Cal. Code Regs., tit. 15, §§ 3315, subd. (f)(3) [disposition of "serious" rule violation], 3323 [disciplinary credit forfeiture schedule for serious rule violation] with Cal. Code Regs., tit. 15, §§ 3314, subds. (e), (f), (g), (h).) The allegations of the petition, prepared in propria persona, asserted that petitioner was denied procedural due process because there was not "some evidence" before the hearing officer that the rule violation was "serious" as defined by the California Code of Regulations. (See Superintendent, Massachusetts Correctional Institution, Walpole v. Hill (1985) 472 U.S. 445, 455-456 .) Petitioner claimed that the rules violation should have been classified as "administrative" rather than "serious." We issued an order to show cause (OSC) and appointed counsel to represent petitioner.
The return states the following uncontroverted facts. During a January 13, 2010 cell search, prison personnel found a tape player in petitioner Lara's locker that did not belong to petitioner. Prison personnel misclassified the disciplinary report as "serious." A senior hearing officer found petitioner guilty of possession of contraband and assessed a 30-day credit forfeiture. On May 9, 2011 (after our issuance of an OSC), the Chief Disciplinary Officer at the Correctional Training Facility reclassified the disciplinary report as administrative. The officer also amended the report to show no forfeiture of credits.
"Inmates may possess only the personal property . . . , up to the maximum amount, received or obtained from authorized sources, as permitted in these regulations. Possession of contraband as defined in section 3000 may result in disciplinary action and confiscation of the contraband." (Cal. Code Regs., tit. 15, § 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." (Cal. Code Regs., tit. 15, § 3000.) "Except as authorized by the institution head," prison inmates are prohibited from having possession or control of specified items, including contraband. (Cal. Code Regs., tit. 15, § 3006, subd. (c)(3).) California Code of Regulations, title 15, section 3192 provides: "An inmate's right to inherit, own, sell or convey real and/or personal property does not include the right to possess such property within the institutions/facilities of the department. An inmate may not exchange, borrow, loan, give away or convey personal property to or from other inmates. Violation(s) of this rule may result in disciplinary action, and confiscation and/or disposal of the personal property."
"When 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." (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).) The reports are required to "be classified as administrative or serious pursuant to sections 3314 and 3315." (Cal. Code Regs., tit. 15, § 3313, subd. (a).) Possession of contraband (other than controlled substances or dangerous contraband) is an "administrative" violation. (Cal. Code Regs., tit. 15, § 3314, subd. (a)(3)(A).)
An amended Rules Violation Report is an exhibit to the return. It was corrected on its face to reflect that the rule violation of possession of contraband was reduced to "administrative" "due to improper classification" and the assessment of credit forfeiture was stricken.
The return states that the habeas corpus petition is now moot. Petitioner's traverse denies that the petition is moot and states that his petition cannot be considered moot until the CDCR has expunged the rules violation report (RVR) from petitioner's central file.
The traverse further denies that there is no longer any due process concern since the 30-day credit assessment was stricken and denies that due process is not implicated by the possibility that the Board of Parole Hearings could find petitioner unsuitable for parole based on that RVR. It denies that there was "some evidence" to support a finding that petitioner was guilty of the administrative charge of possessing contraband. The traverse also states that petitioner "re-alleges all the allegations made in his Petition and other filings in this case."
Although the return states, and the traverse denies, that "some evidence" supported the finding that petitioner was guilty of possession of contraband, this issue is not before us. The petition for writ of habeas corpus stated that a cassette player, rather than a tape recorder, was found in petitioner's cell. The stated ground for habeas relief was the lack of "some evidence" supporting the classification of the rules violation as "serious." The petition stated that "the rule violation should have been classified as 'administrative' rather than 'serious.' "
The petition did not state facts showing that there was not "some evidence" supporting the finding that petitioner was guilty of possession of contraband. The RVR attached as an exhibit to the habeas petition showed that petitioner was charged with possession of contraband and the senior hearing officer found him guilty based on (1) evidence that petitioner told the correctional officer, who reported finding a large tape recorder in petitioner's locker, that the item belonged to another inmate but petitioner could not properly identify that inmate and (2) petitioner's statement at the disciplinary hearing that the item was a tape player, not a tape recorder.
Petitioner's informal reply to the Attorney General's informal response to the habeas petition, which was requested by this court, asserted that it had been established that the item was not a tape recorder and a CDCR supplemental First Level Appeal Decision, attached to petitioner's reply, stated that petitioner's request for inspection of the item had been granted and the item had been inspected and determined to be a tape player with no recording capabilities.
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Only a "modicum of evidence" is required to satisfy the federal due process "some evidence" standard of review. (Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, supra, 472 U.S. at p. 455.) The "some evidence" standard is "met if 'there was some evidence from which the conclusion of the administrative tribunal could be deduced. . . .' [Citation.]" (Ibid.)
In any event, whether or not the "some evidence" standard was met with respect to the guilty finding is not before this court in this habeas proceeding. This court cannot "consider new claims not expressly or implicitly raised in the original habeas corpus petition or supported by the factual allegations in the original habeas corpus petition." (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1238-1239.) "When an order to show cause does issue, it is limited to the claims raised in the petition and the factual bases for those claims alleged in the petition. . . . While the traverse may allege additional facts in support of the claim on which an order to show cause has issued, attempts to introduce additional claims or wholly different factual bases for those claims in a traverse do not expand the scope of the proceeding which is limited to the claims which the court initially determined stated a prima facie case for relief. [Citations.]" (In re Clark (1993) 5 Cal.4th 750, 781, fn. 16; see People v. Duvall (1995) 9 Cal.4th 464, 475.)
The principal dispute remaining between petitioner and respondent is whether any further relief must be afforded. Respondent maintains that this court "should deny the petition and discharge the order to show cause because prison personnel have properly re-classified the challenged disciplinary report as administrative, and some evidence supports the guilty finding." Petitioner insists that this court must order respondent to vacate the original disposition and expunge the RVR from petitioner's central file.
Attorney Keith Wattley, representing petitioner, asserts that the prison regulations compel the CDCR to vacate the disposition and expunge the RVR from petitioner's central file because the evidence that the contraband was a tape recorder was false. The traverse and accompanying memorandum repeatedly cite former section 3084.5, subdivision (h)(1)(A), of title 15 of the California Code of Regulations, which provided: "Disciplinary appeals. When procedural or due process requirements provided inmates in disciplinary proceedings have been violated, one of the following remedies shall be considered: [¶] (1) The original disposition shall be vacated and the charges dismissed if the reviewer determines that the findings of the disciplinary hearing were not supported by the evidence presented at the hearing and any of the following circumstances are evident: [¶] (A) The charge was based on information later determined to be false or unsubstantiated. . . ." No reviewer in the administrative review process ever determined that the evidence presented at the disciplinary hearing did not support the finding that petitioner was guilty of possession of contraband. As stated, that issue is not cognizable in these habeas proceedings, which challenged the classification of the rule violation. In any case, that former regulation was completely rewritten and the changes were operative January 28, 2011. The regulatory language relied upon no longer exists.
The "justice of the case" does not require expungement of the RVR from petitioner's central file. (See Pen. Code, § 1484; see also In re Harris (1993) 5 Cal.4th 813, 851 ["a court, faced with a meritorious petition for a writ of habeas corpus, should consider factors of justice and equity when crafting an appropriate remedy"].) The reclassification from "serious" to "administrative" does not dismiss the charge or overturn the guilty finding.
Further, the current administrative regulations suggest that the amended RVR should be added to petitioner's central file, not expunged, and the file should be updated and annotated to reflect the classification reduction. "After the disciplinary hearing, the chief disciplinary officer may reduce a serious classification to administrative if the reduced charge meets the criteria of an administrative violation as described in section 3314." (Cal. Code Regs., tit. 15, § 3313, subd. (c)(3).) "When an inmate is held responsible for the act charged, copies of all documents prepared for and used in the disciplinary proceedings shall be placed in the inmate's central file. . . ." (Cal. Code Regs., tit. 15, § 3326, subd. (a)(1).) On the other hand, "[w]hen the inmate is found not guilty of the act charged or when the charge is dismissed for any reason, the documents prepared for and used in the disciplinary process shall not be placed in any file pertaining to the inmate." (Cal. Code Regs., tit. 15, § 3326, subd. (a)(2).) "A finding of not guilty, dismissal, or reversal of a previous finding of guilt shall require an audit and updating of any documentation in the inmate's file reflecting a prehearing assumption of guilt or the original finding of guilt. Such documentation shall not be removed from the inmate's file, but shall be annotated with a cross-reference to the CDC Form 128-B documenting the most recent findings and action on the charge." (Cal. Code Regs., tit. 15, § 3326, subd. (d).)
Since the classification of the rule violation was reduced to "administrative" and the assessment of credit forfeiture was stricken, the order to show cause has served its purpose and we will discharge the order to show cause and deny the petition as moot.
DISPOSITION
The order to show cause is discharged. The petition for writ of habeas corpus is denied.
ELIA, J.
WE CONCUR:
PREMO, Acting P. J.
DUFFY, J.