Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDING; petition for writ of habeas corpus.
Michael Satris, under appointment by the Court of Appeal, and Carlos Montes, in pro. per., for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Jessica N. Blonien and Krista L. Pollard, Deputy Attorneys General, for Respondent.
OPINION
VARTABEDIAN, Acting P. J.
This court issued an alternative writ on January 17, 2008. In it, respondent California Department of Corrections and Rehabilitation was ordered to grant petitioner a reconsideration of his gang status or, in the alternative, show cause why this court should not grant relief. Respondent chose the latter course. We now deny Carlos Montes’s petition for habeas corpus.
Facts and Procedural History
Petitioner is serving a prison term of 33 years to life as a result of a 1988 conviction for first degree murder and assault with a firearm. In 2000, respondent “validated” petitioner as an associate of a prison gang commonly known as the Mexican Mafia. Petitioner’s judicial challenge to that designation by respondent failed. Petitioner was transferred to a security housing unit as a gang associate. He was again validated as a gang associate in 2004.
In 2006, petitioner requested a classification review, contending that, while he disputed he had ever been a gang associate, he was now eligible for reclassification as “inactive” in gang matters. If granted inactive status, petitioner alleges, he would be eligible to participate in educational, counseling, and rehabilitative programs necessary to permit his eventual parole.
Pursuant to respondent’s procedures, an investigator met with petitioner and disclosed to him that two confidential reports named him as a person who responded to gang “roll call,” a sign of continued allegiance to the gang. One of the reports also included information that petitioner was involved in a drug operation within the prison, but that information was later removed from the allegations against petitioner and respondent’s determination of petitioner’s continued active status was based solely on the two “roll call” reports.
Part of petitioner’s claim is that the reports do not disclose any details about the roll call in which petitioner is claimed to have participated. In general terms, the evidence shows that roll call involves a requirement by the gang that a participant respond in some manner when his name or nickname is called out by a gang leader.
Petitioner filed the current petition for writ of habeas corpus in 2007. As the issues have become refined through the progress of this case, the present question is whether there was “some evidence” in support of respondent’s determination that petitioner cannot be reclassified as an inactive gang associate.
Discussion
Petitioner makes two claims that are relevant to our disposition of his petition. First, he contends the California Code of Regulations (CCR) requires that at least three reliable pieces of information support an administrative decision to continue an active gang classification. Second, he contends that even the two reports relied upon by respondent are not reliable and, as a result, do not constitute “some evidence” sufficient to support the determination.
CCR, title 15, section 3378, subdivision (e), provides, in part, that an inmate “may be considered for review of inactive status [as a gang associate] by the Department Review Board when the inmate has not been identified as having been involved in gang activity for a minimum of six (6) years.” Subdivision (g) states that the “procedures relating to the initial validation or rejection of gang members or associates as described in this section shall be followed when reviewing the present status of an inactive gang member or associate.” Petitioner contends that this latter subdivision means that denial of inactive status can only be premised on at least three pieces of evidence, since that is the quantum of evidence required in “this section” for initial classification as a gang associate.
Further section and subdivision references are to CCR, title 15, section 3378 and its subparts.
This contention is not supported in any way by the language of section 3378. The requirement for three pieces of evidence for an initial gang classification is a substantive rule, not a “procedure.” Section 3378 sets forth procedures involving, for example, the use of certain prescribed forms, the assignment of investigation and review duties, the conduct of the interview with the inmate, and the assignment of ultimate decisionmaking authority. These are the procedures that must be followed under subdivision (g). That subdivision does not purport to adopt by reference the substantive requirements for initial classification. Further, subdivision (g) is not by its terms applicable to one seeking a change of determination to “inactive” classification. Subdivision (g) prescribes the procedures to be followed “when reviewing the present status of an inactive gang member or associate,” which is to say, when considering reinstatement of active gang status for an inmate previously determined to be inactive. Petitioner is not an “inactive” associate and his “present status [as] an inactive … associate” was not under review.
Instead, petitioner’s active status was under review--he was seeking inactive status. Subdivision (e) prescribes the substantive standard for such review: one previously classified as an active associate may be reclassified as inactive only if he has not been involved in gang activity for a minimum of six years. The only reasonable meaning of this provision is that inactive status requires no gang activity. Accordingly, one instance of gang activity suffices to defeat a claim of inactive status.
Petitioner also contends the two “roll call” reports relied upon for denying his reclassification to inactive status are not sufficiently shown to be reliable to permit them to be deemed “some evidence” of his active status. Thus, he contends, respondent’s decision based only on those documents was arbitrary and a denial of due process of law.
The “some evidence” standard of due process review of prison classification, discipline, and release decisions was initially established by the United States Supreme Court in Superintendent v. Hill (1985) 472 U.S. 445, 453-457. That case considered the quantum of evidence that was necessary to support denial of an inmate’s good-time incarceration credit. The court concluded that a complete absence of evidence supporting the administrative decision constituted arbitrary governmental action and deprived the inmate of due process: “We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if ‘there was some evidence from which the conclusion of the administrative tribunal could be deduced....’ [Citation.] Ascertaining whether this 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.” (Id. at pp. 455-456.) The question is simply whether the evidence in question permits a court to conclude that the administrator had reasons for his or her decision. (See In re Zepeda (2006) 141 Cal.App.4th 1493, 1499-1500; see also In re Lawrence (2008) 44 Cal.4th 1181, 1213 [parole decisions “must be supported by some evidence, not merely by a hunch or intuition”].)
In the present case, the evidence was provided by two confidential informants. Each report stated that the information had been corroborated by another confidential source and that at least part of the information had been corroborated through investigation.
Petitioner contends respondent must submit the underlying corroborating documents for our review and demonstrate that the administrative decisionmaker reviewed the corroborating documents and made a separate determination of reliability. The relevant standard of review neither requires nor permits us to second-guess the weight or credibility of the evidence. It is sufficient that there is evidence which, on its face, provides a reasonable basis for the administrative decision.
At oral argument, petitioner’s counsel contended that one of the “roll call” memorandums was unreliable because the drug allegations had been removed from the memorandum and that a “roll call” violation was too minimal a rules infraction for the onerous designation as an active gang associate. Both of these contentions would require us to reweigh the evidence, in the one case concerning credibility and in the other the probative value of the evidence of gang affiliation. We do not reweigh the evidence when evaluating whether there is “some evidence” to support the administrative decision below. (In Re Lawrence, supra, 44 Cal.4th at pp. 1232-1233.)
Petitioner’s motion for leave to file supplemental material in support of his petition, filed November 13, 2008, is granted.
Disposition
The alternative writ previously issued is discharged. The petition for writ of habeas corpus is denied.
WE CONCUR: LEVY, J., CORNELL, J.