Opinion
F077204
12-03-2019
In re BRAD LEE CATLETT On Habeas Corpus.
Brad Lee Catlett, in pro. per.; Heather MacKay, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Jessica N. Blonien and Heather M. Heckler, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRW54157)
OPINION
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Donald I. Segerstrom, Jr., Judge. Brad Lee Catlett, in pro. per.; Heather MacKay, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Jessica N. Blonien and Heather M. Heckler, Deputy Attorneys General, for Respondent.
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Brad Lee Catlett is an inmate at Sierra Conservation Center. He filed this habeas corpus petition, raising various claims, to challenge his inmate classification as a sex offender. We deny the petition.
BACKGROUND
While released from prison on parole in 2010, Catlett was contacted by law enforcement after a startled woman found him sleeping in her apartment one morning. Catlett exited the apartment and, in view of a neighbor, began urinating on a tree. He was cited, released, and later charged with and convicted of misdemeanor trespassing.
During the same time period, Catlett's parole was revoked for the identical conduct, but the revocation documents included an additional allegation—indecent exposure (for urinating in sight of the neighbor). Catlett admitted each allegation to settle his parole violation.
In a subsequent case in 2013, Catlett was convicted of assault with force likely to cause great bodily injury. He was sentenced to serve 10 years in prison, calculated as four years for the assault, doubled to eight years for having a prior strike conviction, and an additional two years for having served two prior prison terms. (Pen. Code, §§ 245, subd. (a)(4), 667, subds. (b)-(i), 1170.12 subds. (a)-(j), 667.5, subd. (b).)
All statutory references are to the Penal Code.
Upon his recommitment to prison in 2013, Catlett was classified as a sex offender pursuant to the prison's classification regulations. The regulations require sex offender classification for inmates whose parole was previously revoked for conduct equivalent to an offense listed in section 290. (Cal. Code Regs., tit. 15, § 3377.1, subd. (b)(1)(B).) Section 290 lists all crimes requiring mandatory sex offender registration. Catlett's classification was based on his 2010 parole revocation admission to indecent exposure, an offense listed in section 290.
After exhausting his administrative remedies to challenge his classification in prison, Catlett filed a habeas corpus petition in the Tuolumne Superior Court. That petition was denied on January 11, 2018. Catlett filed this habeas corpus petition in March 2018. We issued an order to show cause why Catlett should not prevail. The People filed a return on behalf of the prison, to which Catlett's appointed counsel filed a traverse. We now proceed to the petition's merits.
The reasons for the trial court's denial were set forth in a very comprehensive order.
DISCUSSION
The prison "has the statutory duty to classify every person committed to state prison ...." (In re Wilson (1988) 202 Cal.App.3d 661, 665 (Wilson); § 5068.) Neither party disputes that Catlett's parole was revoked for "indecent exposure." It is also undisputed that prison officials are required to classify inmates as sex offenders if their parole was previously revoked for conduct equivalent to an offense requiring sex offender registration under section 290. (Cal. Code Regs., tit. 15, § 3377.1, subd. (b)(1)(B).) It is also undisputed that Catlett's parole was revoked for "indecent exposure."
In his petition, Catlett alleges prison officials violated his due process rights by misapplying the regulations to his inmate classification. More specifically, he alleges his parole was not revoked for conduct equivalent to an offense requiring sex offender registration, that he was not properly advised regarding classification consequences at his parole revocation hearing, and that prison officials failed to solicit the district attorney's comments at his classification evaluation.
The People, on behalf of the prison, counter Catlett's arguments. They contend he has no liberty interest in his inmate classification, that he was not denied due process in his classification, and that the classification complies with the regulations. In addition, parolees are not entitled to know "of potential classification actions" the prison might enforce in the future, and that prison officials are not required to consider the district attorney's comments when an inmate's parole was previously revoked for conduct equivalent to an offense listed in section 290.
We find Catlett may properly challenge his inmate classification, the classification is correct under the prison's regulations, and that potential classification actions are collateral consequences not requiring advisement. We also conclude the regulations do not require prison officials to consider the district attorney's comments when an inmate's parole was previously revoked for conduct equivalent to an offense listed in section 290—which is the circumstance applicable to Catlett. I. Catlett May Properly Petition This Court to Challenge His Inmate Classification
The People contend Catlett has no "protected liberty interest" in his inmate classification and cannot raise a due process claim to challenge it. Catlett argues that his liberty interest exists in his eligibility for programs "that would result in his earlier release from prison." We agree with Catlett.
Catlett also argues his liberty interest in freedom from the "significantly greater danger of physical assault" he faces as a sex-classified inmate. This claim is entirely devoid of evidence. Notably, Catlett has not alleged a single incident in which he was victimized in prison. Whatever truth the claim may have in the abstract, we need not address it because we otherwise find Catlett may properly challenge his sex classification.
"The United States Supreme Court has held that the denial of good time credits which can reduce the period of incarceration 'does not comport with "the minimum requirements of procedural due process," [citation], unless the findings of the prison disciplinary board are supported by some evidence in the record.' (Superintendent v. Hill (1985) 472 U.S. 445, 454, italics added.) Although the high court has also held that prison inmates have no federal due process right to any particular prison classification (Moody v. Daggett (1976) 429 U.S. 78, 88, fn. 9; Meachum v. Fano (1976) 427 U.S. 215, 224-225), California courts have applied the 'some evidence' test to adverse classification actions." (In re Jenkins (2010) 50 Cal.4th 1167, 1176 (Jenkins).)
Accordingly, we find Catlett may appropriately petition this court to challenge his inmate classification. We likewise apply the "some evidence" standard to Catlett's classification. II. Some Evidence Supports the Prison's Classification Decision
A. Additional Background
In 2010, Catlett, while released from prison on parole, was cited and released for trespassing at a woman's apartment. The incident report did not indicate anyone interviewed the woman's neighbor who saw Catlett urinating on a tree. About a week later, the district attorney charged Catlett solely with trespassing. He settled his case as charged less than six weeks later.
During this same time period, Catlett's parole was violated for the same conduct. In the parole violation, Catlett's parole agent spoke by phone to the neighbor. The agent then filled out a "charge report," which included an additional allegation for indecent exposure.
A few days later, Catlett's parole agent completed a full parole violation report. This report included a handwritten letter from the neighbor. According to the letter, Catlett "walked out of [an apartment] and exposed his penis and starded [sic] urinating on the front porch ...." "It was definitly [sic] not just a man urinating this man stared at me the whole time very wierdly [sic] ...."
Several days after that, Catlett admitted to each parole violation allegation, including indecent exposure. He was eventually released from custody but in 2013, Catlett was again sentenced to prison on new charges. This time in prison, citing his intervening parole revocation admission for indecent exposure which triggers mandatory sex classification, Catlett was classified as a sex offender. (Cal. Code Regs., tit. 15, § 3377.1, subd. (b)(1)(B).)
Catlett now argues his parole was not revoked for conduct equivalent to an offense listed in section 290. His essential argument is that "urinating on a tree" is not indecent exposure as defined in sections 290 and 314. Catlett's argument is misfocused and ignores the record.
B. Analysis
"Judicial review of a [prison's classification decision] is limited to determining whether the classification decision is arbitrary, capricious, irrational, or an abuse of the discretion granted those given the responsibility for operating prisons. (Wilson, supra, 202 Cal.App.3d at p. 667.) 'While we must uphold respondent's classification action if it is supported by " 'some evidence' " (In re Wilson, [supra,] 202 Cal.App.3d 661, 666-667; Superintendent v. Hill [, supra,] 472 U.S. 445, 454-456), and we must afford great deference to an administrative agency's expertise (In re Carter (1988) 199 Cal.App.3d 271, 276) "where the agency's interpretation of the regulation is clearly arbitrary or capricious or has no reasonable basis, courts should not hesitate to reject it" ' (id., at p. 277)." (In re Farley (2003) 109 Cal.App.4th 1356, 1361-1362.)
"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 [prison]." (Superintendent v. Hill, supra, 472 U.S. at pp. 455-456.) We find the standard satisfied in this case.
"The Legislature has provided no specific guidance regarding how prisoners should be classified" (Jenkins, supra, 50 Cal.4th at p. 1173), but has instead delegated lawmaking power to the [prison] to " 'prescribe and amend rules and regulations for the administration of the prisons ....' " (§§ 5058, 5068.) " 'By enacting these statutes, "[t]he Legislature has given the [prison] broad authority for the discipline and classification of persons confined in state prisons. [Citations.] This authority includes the mandate to promulgate regulations governing administration, classification, and discipline." ' " (In re Cabrera (2012) 55 Cal.4th 683, 688.)
California Code of Regulations, title 15, section 3377.1 states, in relevant part:
"(b) An 'R' suffix shall be affixed to an inmate's custody designation to ensure the safety of inmates, correctional
personnel, and the general public by identifying inmates who have a history of specific sex offenses as outlined in Penal Code (PC) Section 290.
In applying the "some evidence" standard to these regulations, the correct question then is not whether Catlett's conduct was "equivalent to an offense listed in PC Section 290" but rather the slightly different question of whether his parole was revoked for conduct "equivalent to an offense listed in PC Section 290." The answer to that question is clearly yes."(1) The 'R' suffix shall be affixed during reception center processing if one of the following four criteria applies:
...
"(B) The inmate's parole was revoked by the Board of Parole Hearings (BPH) formerly known as the Board of Prison Terms/Parole Hearing Division, Good Cause/Probable Cause Finding of an offense that is equivalent to an offense listed in PC Section 290."
Catlett's parole was revoked for "indecent exposure." Indecent exposure is the title for the crime described in section 314, and section 314 is listed in section 290. Consequently, there is some evidence to support the prison's determination that Catlett's parole was revoked for conduct "equivalent to an offense listed in PC Section 290." Even were we to address Catlett's misguided argument, it would still fail.
Catlett mistakenly focuses on the offense report and the district attorney's charging decision. He ignores the parole agent's investigation which revealed "some evidence" that Catlett "exposed his penis" and was not simply urinating. This investigation revealed further evidence upon which the prison could reasonably rely. We do not interfere with the prison's decisions when they are supported by some evidence. Finding some evidence here to support Catlett's sex classification, we will not second guess the prison's wisdom in classifying him as a sex offender. III. Potential Classification Actions Are Collateral Consequences Not Requiring Advisement
Catlett next argues his parole revocation admissions were involuntary because neither the parole board nor his attorney informed him that admitting to the indecent exposure allegation could result in his later inmate classification as a sex offender. His claim turns on whether a potential classification action is a direct or collateral consequence to his admission.
We will focus on the allegation relating to his attorney because attorneys have "far greater duties toward" their clients than has "the court taking a plea." (In re Resendiz (2001) 25 Cal.4th 230, 246, abrogated on other grounds by Padilla v. Kentucky (2010) 559 U.S. 356, 370.) By analogy to cases involving challenges to failures to advise inmates regarding actual incarceration time, we will explain why Catlett is incorrect.
A voluntary plea requires full awareness of its direct consequences. (Brady v. United States (1970) 397 U.S. 742, 755; People v. Reed (1998) 62 Cal.App.4th 593, 597-598 (Reed).) " 'A collateral consequence is one which does not "inexorably follow" from ... the plea.' " (People v. Arnold (2004) 33 Cal.4th 294, 309.)
"[T]he United States Supreme Court has stated that a defendant's parole eligibility date is not a direct consequence of which a defendant must be apprised before pleading guilty. (Hill v. Lockhart (1985) 474 U.S. 52, 55-56.) The credit limitation contained within the Three Strikes law serves a role functionally equivalent to a parole eligibility date, and ... neither the federal or the state Constitution, nor California's judicially declared rules of criminal procedure" require the court to advise a defendant, "prior to his guilty plea, that he would be ineligible for release from prison until he had served four-fifths of his sentence." (People v. Barella (1999) 20 Cal.4th 261, 263.) In other words, a court is not required to inform a person about credit earning limitations to their actual incarceration time.
Requiring advisement regarding actual incarceration time "would make the trial court responsible 'for advising defendants of a myriad of contingencies related to eligibility for good-time or work-time credits—an unduly burdensome task and one unnecessary to ensure the voluntariness of a guilty plea. [¶] Numerous factors inform the decision to release an inmate into law-abiding society, and courts need not inform the defendant of all the contingencies and possibilities that may ensue from a plea of guilty. Nor does the fair and efficient administration of justice require that the trial court inform the defendant of the theoretical minimum portion of a sentence that will have to be served in custody (taking into account potential in-prison conduct or work credits) when he or she pleads guilty to a term whose potential length may be greater; such knowledge, although important to the defendant who pleads guilty, is not required to facilitate a knowing and intelligent decision to plead.' " (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1486, quoting Barella, supra, 20 Cal.4th at pp. 271-272.)
Similarly, in Reed, supra, the defendant was convicted and sentenced to prison for a violent felony. Prior to his sentencing, the defendant moved to withdraw his plea because his attorney did not advise him the prison sentence was subject to a credit limitation. (Reed, supra, 62 Cal.App.4th at pp. 595-596.) The court denied his motion and sentenced him to prison. (Id. at p. 596.) "It [was] undisputed that, before the plea was entered, Reed did not know and was not told by the trial court or by trial counsel about the" credit limitation applicable to violent felonies. (Ibid.; see § 2933.1.) This court held that defense counsel's failure to advise a client regarding an inherent credit limitation in an impending prison sentence was not "constitutionally inadequate representation." (Reed, supra, at p. 601.)
Reed did not involve "affirmative misrepresentation in response to a specific inquiry from the defendant," nor did it involve a scenario where even absent a specific inquiry, an attorney misrepresents a credit limitation. (Reed, supra, 62 Cal.App.4th at p. 601.) Catlett makes neither claim and our decision should not be read to cover these closely related claims.
In Reed, supra, the defendant's credit limitation was immediate—there was no delay or subsequent intervening event before the limit took effect. Still, the credit limitation was considered collateral and unnecessary for advisement—not an inexorable direct consequence requiring advisement. (Reed, supra, 62 Cal.App.4th at pp. 600-601.) In contrast to Reed, supra, Catlett's now complained of credit limitation, which is the primary injury he seeks relief from, was attenuated. The credit limitation at issue here did not immediately take effect. In fact, it would not have taken effect had he remained free from imprisonment.
Catlett controlled his own destiny. To require counsel to inform him of the consequence that, should Catlett receive a prison sentence for a future offense, he would be subject to an inmate sex offender classification, and depending on what regulations are in place at the time of his future prison commitment, would require counsel to advise him "of a myriad of contingencies related to eligibility for good-time or work-time credits—an unduly burdensome task and one unnecessary to ensure the voluntariness of a guilty plea." (Barella, supra, 20 Cal.4th at p. 271.)
Because Catlett's primary concern is that his actual incarceration time increased by virtue of his inmate classification, his concern is akin to the "parole eligibility date" claim in Hill v. Lockhart (1985) 474 U.S. 52, and the "credit limitation" issues in Barella, supra, 20 Cal.4th 261 and Reed, supra, 62 Cal.App.4th 593. We find Catlett's attorney was not constitutionally required to advise him of the potential credit limitations in a future prison commitment resulting from a future inmate classification as a sex offender. Catlett's ignorance regarding a potential future sex offender classification in prison did not render his parole allegation admissions involuntary. IV. The Regulations Do Not Require The Prison to Solicit the District Attorney's Comments Prior to Classifying Catlett as a Sex Offender
It is important to emphasize that Catlett is not a convicted sex offender pursuant to section 290. He is not required to register as a sex offender upon his release from prison. Catlett's parole violation admission only triggered mandatory sex classification while in prison—because registration requires a criminal conviction, the parole revocation admission did not, and could not, trigger actual sex offender registration.
Catlett further argues his inmate classification cannot stand because the prison did not follow its own guidelines in classifying him as a sex offender. Specifically, he cites California Code of Regulations, title 15, section 3377.1, subdivision (b)(5) as authority that the "classification committee shall consider the arrest report(s) and district attorney's comments." Because the prison did not consider the district attorney's comments, he argues his classification is invalid. We disagree.
As relevant to this petition, California Code of Regulations, title 15, section 3377.1, subdivision (b)(1)-(5) state:
"(b) An 'R' suffix shall be affixed to an inmate's custody designation to ensure the safety of inmates, correctional personnel, and the general public by identifying inmates who have a history of specific sex offenses as outlined in Penal Code (PC) Section 290. [¶] (1) The 'R' suffix shall be affixed during reception center processing if one of the following four criteria applies: [¶] (A) The inmate is required to register per PC Section 290. [¶] (B) The inmate's parole was revoked by the Board of Parole Hearings (BPH) formerly known as the Board of Prison Terms/Parole Hearing Division, Good Cause/Probable Cause Finding of an offense that is equivalent to an offense listed in PC Section 290. [¶] (C) The inmate had a BPH formerly known as California Youth Authority/Youth Offender Parole Board sustained adjudication of an offense that is equivalent to an offense listed in PC Section 290. [¶] (D) The inmate had a valid 'R' suffix evaluation as defined in this section, resulting in the 'R' suffix being affixed. [¶] (2) Inmates with a prior 'R' suffix evaluation inconsistent with Section 3377.1(b)(5) shall not have an 'R' suffix applied. An 'R' suffix evaluation must be completed at the receiving institution. [¶] (3) Within six months of reception or at any time during an incarceration, inmates with records of arrest, detention, or charge of any offenses listed in PC Section 290, shall appear before a classification committee to determine the need to affix an 'R' suffix to the inmate's custody designation. The committee shall consider the arrest reports and district attorney's comments related to each arrest. [¶] (A) An inmate found guilty in a disciplinary hearing of a Division A-1, A-2, or B offense that is equivalent to an offense listed in PC Section 290 shall have an 'R' suffix evaluation completed by a classification committee. [¶] (4) The receiving institution's initial classification committee shall affix the 'R' suffix designation to an inmate's custody during initial classification committee review when it is determined the 'R' suffix was not applied at the reception center and the inmate meets one of the criteria listed in Subsection 3377.1(b)(1). [¶] (5) When completing an 'R' suffix evaluation, the classification committee shall consider the arrest report(s) and district attorney's comments. However, a classification committee may affix an 'R' suffix if the arrest report(s) are available and the district attorney's comments are unavailable. The classification committee shall document in a CDC Form 128-G the attempts/steps taken to obtain the required documentation. [¶] (A) An 'R' suffix shall not be affixed when the required documentation is not available for review, unless approved by Departmental Review Board (DRB) decision. If the arrest report is unavailable, the district attorney's comments or any other court or official documents shall be considered if available. (B) DRB approval is required to affix an 'R' suffix to an inmate's degree of custody if the required relevant documents are not available to complete an 'R' suffix evaluation."
Section 5058 provides the prison authority to enact regulations governing inmate classification. We afford great deference to the prison's expertise in promulgating its regulations. (In re Player (2007) 146 Cal.App.4th 813, 824.)
The regulation Catlett cites, California Code of Regulations, title 15, section 3377.1, subdivision (b)(5), is a mandatory provision requiring a prison "classification committee" to "consider" the "district attorney's comments." (Cal. Code Regs., tit. 15, § 3001, subd. (c) [shall means mandatory].) But the specific regulation requiring a classification committee to consider the district attorney's comments only applies to classification "evaluation[s]." (Cal. Code Regs., tit. 15, § 3377.1, subd. (b)(5).) An "evaluation" is a specific process that occurs when an individual has "records of arrest, detention, or charge of any offenses listed in PC Section 290," or upon a guilty finding at an in-prison disciplinary hearing for equivalent conduct. (Cal. Code Regs., tit. 15, §§ 3377.1, subd. (b)(3) and (b)(3)(A).) The prison considers the district attorney's comments for guidance in these circumstances because there is no preceding criminal conviction or parole revocation finding triggering mandatory sex offender classification.
By contrast, the prison "shall" classify an inmate as a sex offender if he is a registered sex offender, or his adult or juvenile parole was previously revoked for conduct equivalent to an offense requiring sex offender registration. (Cal. Code Regs., tit. 15, § 3377.1, subd. (b)(1)(B).) These inmates are not classified through an "evaluation." Catlett's belief that he was classified as a sex offender through an "evaluation" is mistaken. He was instead classified as a sex offender because his parole was previously revoked for conduct equivalent to an offense requiring sex registration.
While these regulations are not perfectly clear, this is the only reasonable interpretation that gives full force to each section. (See Smith v. Superior Court (2006) 39 Cal.4th 77, 83 [statutory construction begins with statute's language, construed in context with entire statute and scheme, giving effect to each " ' "word, phrase, sentence, and part" ' " to realize harmony and retain purpose and intent rather than to defeat the language by construing an "absurd" result].) For example, because the prison "shall" classify an inmate as a sex offender if his parole was previously revoked for conduct equivalent to an offense in section 290, soliciting the district attorney's comments is meaningless. No matter what those comments are, the comments cannot change the fact parole was revoked, which is what triggers mandatory sex offender classification. Accordingly, Catlett's argument to the contrary fails.
Catlett and his attorney each claim his inmate classification violates the Constitution's ex post facto clause. Their claims are entirely devoid of argument and authority, and we will not address the point. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [unsupported arguments are forfeited].)
Catlett's attorney also challenges a "classification administrative determinant for "SEX."" These administrative determinants are used to assist the prison in placing inmates in certain facilities. (Cal. Code Regs., tit. 15, § 3375.2, subd. (b).) The SEX administrative determinant applies to any inmate with a prior "lewd or lascivious act." (Cal. Code Regs., tit. 15, § 3375.2, subd. (b)(23).) Applying the same standards and analysis above leads us to the same conclusion: The administrative determinant is supported by some evidence, specifically the parole agent's investigation revealing evidence Catlett "exposed his penis" and was not simply urinating.
DISPOSITION
The order to show cause is discharged. The petition is denied.
We asked for supplemental briefing on the impact, if any, of Senate Bill No. 136 to Catlett's sentence, which constricts the application of section 667.5, subdivision (b) enhancements. (2019-2020 Reg. Sess.; SB 136.) Catlett's attorney concedes this petition is not the proper vehicle to challenge his sentence. We accept the concession.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
PEÑA, J.