Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for habeas corpus. Graham Anderson Cribs, Judge. Petition granted, Super.Ct.No. BLC002863
Richard Schwartz berg, under appointment by the Court of Appeal, for Petitioner.
Bill Locker, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill, Supervising Deputy Attorney General, and J. Conrad Schroeder, Deputy Attorney General, for Respondent.
Richly J.
OPINION
This matter, a petition for writ of habeas corpus by inmate James Jaime Solis, protests the deduction of 30 days of “work/behavior credits” as a disciplinary matter. Having reviewed petitioner’s initial petition to this court, we issued an order to show cause returnable before the superior court. That court conducted proceedings and eventually denied the petition.
This petition and its resolution are not relevant to this proceeding, which is original to this court.
Petitioner then again sought habeas corpus relief from this court, arguing that the superior court had erroneously denied the petition in part due to the ineffectiveness of appointed counsel. We denied the petition, but our Supreme Court granted review and returned the case to this court with directions that we issue an order to show cause directing respondent the Director of Corrections and Rehabilitation to demonstrate that there was “‘some evidence’ to support the finding that petitioner committed a serious rules violation on May 28, 2003.” We have done so. Having again examined the record in detail, we find that the evidence was insufficient to satisfy the legal standard and that the findings and actions of respondent must be overturned.
In an attachment to this petition, petitioner requested the appointment of “qualified” counsel. We have appointed counsel through Appellate Defenders, Inc.
Insofar as respondent’s decision assessed a loss of credits, it is moot at this time as petitioner has qualified for his minimum eligibility parole date despite the loss. Insofar as the disciplinary report may arguably affect his chances for parole, no due process right attaches to such a consequence, which is merely speculative. (Sandi v. Conner (1995) 515 U.S. 472, 487-488.)
BRIEF STATEMENT OF FACTS
Petitioner is serving a term of 27 years to life imposed in 1987. Petitioner’s problems began in May 2003. According to the petition, “Identifiable Disruptive Inmate Groups” organized a work stoppage at Lackawanna Valley State Prison apparently intended as a protest against reduced access to shower facilities. The instigators allegedly coerced other inmates into joining the stoppage with threats of violence. Petitioner was eventually “written up” for violating California Code of Regulations, title 15, section 3041, subdivision (b)—failure to report for work. However, although he spends some time complaining about respondent’s failure to ensure his safety, his actual defense has been that his dorm was on “lock down” at the time he was supposed to report. At the disciplinary hearing, petitioner testified to that effect: “No, we were put on our bunks.”
The regulation currently provides that “[i]inmates must report to their place of assignment at the time designated by the institution’s schedule of activities and as instructed by their assignment supervisor. Inmates may not leave an assignment without permission to do so.” (Cal. Code Regs., tit. 15, § 3041, sud. (b).) The import in May 2003 was identical.
The original rules violation report signed by Officer Rasmussen recited that at “0700 hours” on May 28, 2003, an announcement was made in housing unit C7 “instructing all inmates to report to assigned work areas. All inmates refused at this point.” However, respondent in fact did not proceed on this report, and the reporting officer prepared a second report in which he alleged merely that “at approximately 0630 hours . . . Inmate Solis . . . did not report to his job assignment . . . .”
The only other testimony came from the officer who signed the violation report, Officer Rasmussen. When asked whether inmates serving as porters—petitioner’s job—were asked to report at a certain time, he replied, “The way we normally do it is when they get back from chow I get the tools out.” He was then asked whether he had the tools ready for the porters on May 28, and replied, “I didn’t have a chance to get them.” Asked if he had called the porters to report for work, he testified, “No.”
Other documents now presented by petitioner—but apparently not presented at the hearing—suggest that the inmates may have been called to breakfast at about 0630 hours; and when no one reported, the unit was placed on “modified program” with the inmates required to strip to their shorts and remain in their bunks. Other reports generated state that all inmates refused a call to breakfast at “0630 hours” and then refused to report to work and were placed on “modified program” by “0635 hours.” The latter version is somewhat unclear about the manner in which a call to work was made after the inmates did not appear for breakfast
DISCUSSION
As all parties agree, prison authorities have substantial leeway in resolving disputed factual issues in disciplinary cases. A decision will be upheld if it is supported by “some evidence.” (Superintendent v. Hill (1985) 472 U.S. 445, 454.) Indeed, judicial review has been described as “extraordinarily deferential.” (In re Bipedal (2006) 141 Cal.App.4th 1493, 1495 (Bipedal).) We do not necessarily examine the entire record and we certainly do not reweigh the evidence; we are simply looking for “any evidence in the record that could support the conclusion reached by the disciplinary board.” (Superintendent v. Hill, supra, 472 U.S. at pp. 455-456, quoted in Bipedal, supra, 141 Cal.App.4th at p. 1498.)
We have asked the respondent Attorney General to point to evidence supporting the finding of deliberate disobedience to an order that petitioner had the power to obey. Instead, respondent devotes virtually all of its return to the petition to dealing with issues not comprised within the Supreme Court’s order to this court or our order to respondent. With respect to the issue of “some evidence, ” respondent merely notes that petitioner “admitted that he did not go to work.”
Petitioner’s other complaints included, inter Talia, that the Department had exhibited “deliberate indifference” to his safety during the work stoppage and that he did not receive due process because he was not provided with a staff assistant. We have consistently found these issues to be without merit and, given the limited nature of the directive from the Supreme Court, do not consider them further.
However, this piece of evidence is not probative when taken in context. Petitioner never disputed that he did not go to work. The question is whether he was ordered to do so at a time when he had the ability to comply. The contradictory and confusing nature of the record makes petitioner’s admission of no value in deciding this question.
Officer Rasmussen clearly testified that he did not call the parties to work in the usual fashion or at the usual time. The “rules violation report” on which petitioner was prosecuted contains the officer’s statement that petitioner failed to report at “approximately 0630 hours . . . .” But had there been any order for him to do so? Significantly, Officer Rasmussen’s first violation report contained the statement that the inmates were called to work at “approximately 0700 hours.”
Obviously petitioner could not have disobeyed an order at 6:30 am., which would not be given until half an hour later. Further, any such order would appear to have run afoul of the order that the inmates stay on their bunks, which was apparently issued at 6:40 am. The evidence at the hearing—the rules violation report and Officer Rasmussen’s testimony—does not describe any actual order. While this may have been simply inadvertence based on the number of violation reports being processed, nevertheless petitioner could not be found guilty of failing to report to work when there is simply no evidence in the record that he was ever ordered to do so.
It is not clear whether this was a “lock down” or a less restrictive “modified program.”
DISPOSITION
Accordingly the requested relief will be granted. Having served its purpose, the order to show cause is discharged; respondent is directed to remove the “115” from petitioner’s file and to restore the 30 days of lost credit.
We concur: Ramirez P.J, Hollerith J.