I. Facts Material to a Gang Validation Under Section 3378






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títuloI. Facts Material to a Gang Validation Under Section 3378
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Filed 9/8/11


CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT





In re ELVIN CABRERA,
On Habeas Corpus.



F059511
OPINION


ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.

Elvin Cabrera, in pro. per.; and Melanie K. Dorian, under appointment by the Court of Appeal, for Petitioner Elvin Cabrera.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Julie L. Garland, Assistant Attorney General, Jessica N. Blonien and Henry J. Valle, Deputy Attorneys General, for Respondent State of California.
Elvin Cabrera filed a petition for writ of habeas corpus to challenge his validation as an associate of the Mexican Mafia prison gang (EME) and his placement in the security housing unit (SHU) at the California Correctional Institution at Tehachapi (CCI). Cabrera argues that his possession of photocopies of drawings signed by either a gang member or gang associate was insufficient to establish a “direct link to a current or former validated member or associate of the gang” as required by California Code of Regulations, title 15, section 3378, subdivision (c)(4).1

We agree. The required direct link between Cabrera and a gang member or associate was not established by the artist’s name on the photocopied artwork. Consequently, Cabrera’s petition for writ of habeas corpus will be granted.

THRESHOLD ISSUES

There are two threshold issues that will affect our description of the facts in this proceeding. Consequently, we will address those issues before setting forth the facts and procedural history of this case.

Broadly stated, the first issue concerns which facts are material to deciding the merits of this habeas corpus proceeding. The term “material fact” is used here to mean a fact that affects the decisionmaking of this court. In other words, a material fact is a fact of consequence to our reasoning and resolution of this matter. (See generally Cal. Const., art. VI, § 14 [appellate decisions “shall be in writing with reasons stated”].)

The second issue involves identifying which facts have been established for purposes of the habeas corpus proceeding and which facts are in dispute. (See fn. Error: Reference source not found, post.) The answer to this question is obtained by applying the pleading rules for habeas corpus proceedings set forth by the California Supreme Court in People v. Duvall (1995) 9 Cal.4th 464.

I. Facts Material to a Gang Validation Under Section 3378


The process of validating an inmate as a member or associate of a prison gang is governed by section 3378. A validation requires at least three independent source items, one of which must constitute a direct link. (§ 3378, subd. (c)(3) & (4).) Recognized source items include, but are not limited to, an inmate’s admission, tattoos, symbols, written materials, the inmate’s association with gang affiliates, and communications between inmates. (§ 3378, subd. (c)(8).)

When the California Department of Corrections and Rehabilitation (CDCR) relies on these and other types of source items during the validation process, subdivision (c)(8) of section 3378 imposes the following requirement: “Staff shall document and disclose this information to the inmate/parolee in a written form that would not jeopardize the safety of any person or the security of the institution.” (Italics added.) The first question that arises, in reference to this requirement to document and disclose, is whether it precludes CDCR from relying on information not included in the written form to justify its validation decision. Not surprisingly, the parties do not agree on the answer.

Cabrera argues that the use of the word “shall” creates a mandatory duty to disclose all information indicative of gang association and that the consequence for not complying with this duty should be invalidation of the government action and the granting of his petition.

CDCR counters that all of the information relied upon need not be included because concerns for safety and security can justify leaving information out of the forms. With regard to the consequences of failing to include required information in the forms, CDCR argues that if a court overrules the validation, then it may be redone after the inmate is provided with proper disclosure. CDCR has not argued that inadequacies in complying with the document-and-disclose requirement can be cured during the habeas corpus proceeding by supplying additional information to the court.

We conclude that the mandatory language about documentation and disclosure in subdivision (c)(8) of section 3378 means that a reviewing court may consider only two categories of information when deciding whether a gang validation had sufficient evidentiary support. The first category is the information documented and disclosed to the inmate in a written form. The second category is the information withheld from the written disclosure because of safety or security concerns. Information excluded from the forms provided to the inmate for reasons other than safety or security may not be considered by a reviewing court to uphold the validation. Under this interpretation, the document-and-disclose requirement in subdivision (c)(8) of section 3378 effectively defines which facts are material to a court’s review of a gang validation. The information that CDCR may rely upon in court to justify its validation decision is limited to (1) information contained in the forms and (2) information withheld from the forms due to concern for safety and security. We recognize, nonetheless, that situations might arise where CDCR should be allowed to present the reviewing court with background information to help explain the meaning of the information disclosed in the forms, so long as the explanatory background information is not used as additional grounds for justifying the validation.

The material facts in this case consist of the contents of the written forms provided to Cabrera during the validation process. Those forms are three general chronos2 and the form used to notify Cabrera of the validation decision. The material facts of this case do not include information withheld from the written disclosure for safety or security reasons because CDCR does not contend it withheld information on this ground.

The possibility that this court should consider information from outside the validation forms is raised by CDCR’s attachment of a declaration of Everett W. Fischer to its return. We, however, have not relied on that declaration because of our conclusion that the material facts justifying validation must be disclosed in the forms and because the disclosures made in the forms provided to Cabrera are straightforward. Consequently, an expert’s insight into the prison environment is not needed to understand the disclosures and, as a result, Fischer’s declaration is not needed to provide explanatory background information.3
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