CABRERA (ELVIN) ON H.C.

Department of Corrections and Rehabilitation's Petition for Review

Cal.October 19, 2011

sig7e2en i Ju the Supreme Court of the State of California In re ~ , : Pe ix ELVIN CABRERA, Hy Case No, Sey 19 9 On Habeas Corpus. PTBimi t TCR A: Onpa, Meee , Fifth Appellate District, Case No. FOS95 11 7msn. wenn Kern County Superior Court, Case No. HC011446A ERYens PETITION FOR REVIEW KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General] DONALD E. DENICOLA Vy Deputy State Solicitor General JULIE L. GARLAND Senior Assistant Attorney General ANYAM. BINSACCA Supervising Deputy Attorney General JENNIFER A. NEILL Supervising Deputy Attorney General AMYDANIEL Deputy Attorney General State Bar No. 246884 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 322-6105 . Fax: (916) 322-8288 Email: Amy.Daniel@doj.ca.gov Attorneysfor Warden Michael Stainer TABLE OF CONTENTS Page PETITION FOR REVIEW vccccsceccsccsssssesessseecesessssssecessse wee e eset sence ete eeeeeeeeeaeaeeseaenees 1 ISSUE PRESENTED ..0...cccccccsessesssssescscstaccusvsseasacsassestsevaevavaverecsecaveaceeeeeeesececec. | INTRODUCTION.0...eceeceececesssessseseescscescsesescacsavatassastaesassasavecsessesveneveveteesececee. ] STATEMENTOF THE CASE.......ccsssssssssssesesesseeseesssssessecesceresscevecsuvevsvsnearsavesseees 2 L. Validation Regulations .........ccccccccccccccsessssssessesseevecsessessseessesvess 2 2. Cabrera’s Validation 0... .eececcccccccscscscccscsescsvstsesceesevstsetscsesesessseess 3 3. Habeas Corpus Proceedings .......ccccccccsccssseseseceeceseesesesesesssceeees 4 REASONS FOR GRANTING REVIEW .o.ccscscscscsseescsesssssssvssaveseavacieevecstereaveseeseess 5 In Failing to Defer to CDCRinIts Interpretation of Its Own Regulations andin Its Expert Evaluation of The Operation of Prison Gangs, the Court of Appeal’s Holding Threatens Prison Security and Public Safety. ...0.0.00cccceescsecsesesesesseacseevsceseees 5 CONCLUSIONoeceeceeccesesscsessesssescscsssavsesuessevasarsasassesassesatsssassseseceseeceusececeseeses 9 TABLE OF AUTHORITIES Page CASES Copley Press, Inc. v. Super. Ct. (2006) 39 Cal.4th 1272 ...occcccccccccessscsscnseesesestestesevstecsevstecveseesees 7,8 In re Jenkins (2010) 50 Cal.4th 1167ccccccccecesseesscestecsvsesssssessccsssevececeeeees 7,8 In re Andrade (2000) 141 Cal.App.4th 807 oo... ccceccescescsssesecsssecaceeceecereeees 7,8 Morris v. Williams (1967) 67 Cal.2d 733 ciitsettieseeneeesseseeeeeceersenensnesetesneasensisessesseascsneseeeeteses D Pitts v. Perluss (1962) 58 Cal.2d 824 ooocicccccccccccsccscssvsccessassscetssssesescatsecssteseeeateces 7 STATUTES California Code of Regulations, title 15, § 3378 .occccccesscsssccscsseeesesees 6 California Code of Regulations, title 15, § 3378, subd. (C) voececcesceseeeees 2 California Code of Regulations,title 15, § 3378, subd. (c)(3)-(4)2,3, 4, 5 California Penal Code, § 5058, subd. (a) .o.cc cc ccccceesssseseeescsssecscecseeeeeres 7 COURT RULES California Rules of Court,rule 8.500(D)(1)oeeee eeeteeteeeeeeeee 2 California Rules of Court, rule 8.500(B)(4) o.oo. cececceesesceessessseecsevscseeee 2 il PETITION FOR REVIEW Michael Stainer, Warden of California CorrectionalInstitution, respondentin the court below,petitions this Court to grant review ofthe published decision of the California Court of Appeal, Fifth Appellate District, filed September 8, 2011, in In re Cabrera (Sept. 8, 2011, F059511),198 Cal.App.4th 1548 [slip opn.] opn. mod. (Oct. 6, 2011), _ _Cal.Rptr.3d [2011 WL 4637502] [mod. order]. This case presents an important issue concerning the deference owed to the California Department of Corrections and Rehabilitation (CDCR)in carrying outits critical responsibility to combat dangerous prison gangs. ISSUE PRESENTED Did the Court of Appeal erroneously expand the obligations on CDCR under its own regulations whenit held that, before the prison mayclassify an inmate as a gangaffiliate, there must be evidence of a "mutual relationship" between a known gangaffiliate and the inmate? INTRODUCTION Charged with the extraordinarily difficult task of safely housing the State's inmates and managing prison gangs, CDCR adopteda regulation for identifying — “validating” — inmates as prison-gangaffiliates and placing them in restrictive housing. Underthat regulation, inmates may be validated based on evidence of their own behaviorthat is indicative of prison gangaffiliation. The Court of Appeal, in its opinion below, altered CDCR’s prison-gang validation process by adding to it an unworkable standard foreign to the regulation:that to validate an inmate, there must be evidence of a “mutual relationship” between the inmate and a validated gang memberor associate. The court’s mutual-relationship requirement fails to appreciate how prison gangs operate. Requiring CDCRto find evidence of a mutualrelationship between prison-gangaffiliates will tie CDCR’s hands in managing prison gangs,and cripple CDCR’s ability to protect the safety of inmates, staff, and the public. This Court should grant review to resolve an important question of law concerning the deference owed to CDCRincreating rules for - identifying inmatesas prison-gangaffiliates. (Cal. Rules of Court, rule 8.500(b)(1).) Alternatively, this matter should be transferred to the Court of Appeal for consideration consistent with CDCR's interpretation and applicationofits regulatory schemefor prison gang validations, andin light of CDCR's expertise regarding prison-gangactivities and prisonlife. (Cal. Rules of Court, rule 8.500(b)(4).) STATEMENT OF THE CASE 1. Validation Regulations. Undera regulation promulgated by CDCR,a prison inmate may be | identified, or “validated,” as a prison-gang affiliate based on three pieces of evidence, or “source items,” indicative of gangaffiliation. (Cal. Code Regs., tit. 15, § 3378, subd. (c)(3)-(4).)' Thereare thirteen different ' California Code of Regulations,title 15, section 3378, subdivision(c), “Documentation of Critical Case Information,” providesin relevantpart: (4) An associate is an inmate/parolee or any person whois involved periodically or regularly with membersorassociates of a gang. This identification requiresat leastthree (3) independent source items of documentation indicative of association with validated gang membersor associates. Validation of an inmate/parolee or any person as an associate of a prison gang shall require at least one (1) source item be direct link to a - current or former validated memberorassociate of the gang,or to an . inmate/parolee or any person whois validated by the department within six (6) months ofthe established or estimated date ofactivity identified in the evidence considered. 3 KK (continued...) categories of source items, including “symbols” and “association.” (Jd. at § 3378, subd. (c)(8).) At least one ofthe source items must provide a “direct link” to a current or former validated gang memberorassociate. (id. at § 3378, subd. (c)(3)-(4).) In CDCR’s view,the term “direct link” carries a natural and ordinary meaning, and requires only that the source item show a straightforward connection to a validated prison-gang affiliate. The term also applies in the same way, and with the same definition, for any category of source item. 2. Cabrera’s Validation. In 2002, Elvin Cabrera was convicted of robbery, burglary, and receiving and concealing stolen property. He was sentenced to 62 years to life in prison under California's repeat-offender laws. On April 8, 2008, while Cabrera was housedat California Correctional Institution, correctional officers searched his cell and discovered several photocopied drawings containing symbols distinctive of the Mexican Mafia prison gang. One drawingbore the name of a Mexican (...continued) (8) The determination of a gang identification shall reference each independent source item in the inmate/parolee's central file. The sources shall be based on the following criteria: * KK (G) Association. Informationrelated to the inmate/parolee's association with validated gangaffiliates. Information including addresses, names, identities and reasons whysuch informationis indicative of association with a prison gang or disruptive group. Staff shall document and disclose this information to the inmate/parolee in a written form that would not jeopardize the safety of any personor the security of the institution. jeopardize the safety of any personor the security of the institution. Mafia associate. Another drawing, featuring meso-American and imprisonment themes, bore the nameofa different Mexican Mafia member, Pursuant to CDCR'svalidation process, the prison’s gang investigators researched Cabrera's potential association with the Mexican Mafia. Based on their training and experience, the gang investigators recommendedthat CDCR's Office of Correctional Safety validate Cabrera as a Mexican Mafia associate. The Office of Correctional Safety’s Special Service Unit did so. Asthe regulation specifies “names”as source items under the category of “association”(id. at § 3378, subd. (c)(8)(G)), the “direct link” for Cabrera’s validation was supplied by Cabrera’s possession ofthe drawings bearing the names of the Mexican Mafia affiliates. 3. Habeas Corpus Proceedings. Cabrera challengedhis validation through a petition for writ of habeas corpus in the Kern County Superior Court. The superior court denied the petition. Cabrera then filed an original petition with the Fifth District Court of Appeal. In a published opinion filed on September 8, 2011, the Court of Appeal granted Cabrera’s petition. The court overturned Cabrera’s validation based on its determination that the record, insofarasit was properly cognizable, did not contain a “direct link” becauseit did not establish that Cabrera and a Mexican Mafia affiliate had a “mutual relationship.” (Slip opn., pp. 1-2, 18-19, 22.) The court accepted CDCR’s position that the term “direct link” means a connection without interruption, but rejected CDCR’s position thata direct link can be established by an inmate’s own actions. (/d. at pp. 15-19.) The court held that where the direct link is drawn from an “association” source item, evidence of “mutual or two-way”interaction is required. (/d. at p. 19.) In rejecting Cabrera’s validation, the court indicated that it would not consider a CDCR expert’s declaration, submitted in the habeas corpus proceedings, explaining that prison-gangaffiliates keep copies of artwork by otheraffiliates to demonstrate their allegiance to the gang and to establish the credibility of their standing in the gang. (Slip opn., p. 4.) The court ordered CDCR to expunge Cabrera’s validation, to report the expungementto any law enforcement databases to whichit was reported, to remove all documentsrelating to the validation from Cabrera’s prisonfile, and to cease assigning him to maximum security housing based on the validation. (Ud. at p. 25.) | In a petition for rehearing, the Warden argued, amongother things, that the court had erroneously added proofof a “mutual relationship”as a prerequisite to the validation process, and that the court-ordered remedy improperly precluded CDCRfrom considering,in determining how to classify and house Cabrerain the future, the undisputed fact that Cabrera had possessed the drawings containing Mexican Mafia symbols and affiliates’ names. The court modifiedits opinion to eliminate the order directing CDCRto “removeall documents related to the validation from Cabrera’s prisonfile.” (Mod. opn.) The opinion otherwise remained unchanged: the Warden’s petition for rehearing was denied. (Ibid) REASONS FOR GRANTING REVIEW IN FAILING TO DEFER TO CDCRIN ITS INTERPRETATION OF ITS OWN REGULATIONSANDIN ITS EXPERT EVALUATION OF THE OPERATION OF PRISON GANGS, THE COURT OF APPEAL’S HOLDING THREATENS PRISON SECURITY AND PUBLIC SAFETY. Prison gangs plague California’s correctional system with murders, violent assaults, riots, drug trade, and extortion. They threaten the safety not only of CDCRinmates andstaff, but of the public at large, as gangs direct criminalactivity outside the prison walls through accomplices on the streets. The first step for CDCRin controlling prison gangsis identifying gangaffiliates among its inmate population. (Cal. Code Regs., tit. 15, § 3378.) Once identified, prison-gangaffiliates become subject to assignment to high-security housing thatrestricts their ability to conduct criminal activities. (See id. at § 3341.5, subd. (c)(2)(A)(2).) Here, the Court of Appeal exceededits authority and in effect added a novelandill- advised requirement to CDCR’s validation regulation. “Combining” two distinct terms in CDCR’s regulation — “association” and “direct link”? — the appellate court created the new requirement that CDCR must produce evidence of a “mutualrelationship” between the inmate being validated and a validated prison-gang memberor associate. (Slip opn., pp. 18-19.) In the appellate court’s view, a “direct link” through “association” evidence “cannotbe created solely by one party’s action; there must be someassent or mutuality from the otherparty.” (/d. at p. 19.) To show assentor mutuality, the court ruled, there must be evidence of a “reciprocal(i.e., mutual or two-way) interaction between the two individuals forming the relationship.” (/bid.) The court’s mutual-relationship requirement disregards CDCR’s expertise as well as the reality of prison gang operations. Prison gangsare engagedin a criminal enterprise. They operate in secrecy and are adept at concealing their activities and hiding connections and interactions between their affiliates from prison officials. They diffuse their communications through complex chains of command, and compartmentalize information to obscure their actions. CDCRwill rarely be able to secure evidence of reciprocal interaction between an inmate being considered for validation and a prison-gangaffiliate. A meaningful andrealistic gang-validation process depends on CDCR’s expertise. CDCR deals with the problemsofprison gangs on a daily basis. It employs officers and agents specifically tasked with investigating prison gangsand identifying their affiliates. CDCR prison gang experts investigate how prison gangs operate, how they circumvent authority in the restrictive prison environment, and how they manipulate prison rules to evade discovery. As the prison gangs evolve and develop new tactics, CDCR’s experts continue to investigate and update their knowledge. The Legislature has accordingly granted CDCRbroad authority to create rules and regulations for prison administration. (Pen. Code, § 5058, subd. (a).) CDCRadoptedits validation regulation in light of its experience in investigating prison gang operations. Based on that experience, CDCR has neveridentified evidence of a mutual relationship as a validation requirement. CDCR’s determinationin this regard, a judgment within its delegated authority, is entitled to deference by the courts. (Jn re Jenkins (2010) 50 Cal.4th 1167, 1176; Copley Press, Inc. v. Super. Ct. (2006) 39 Cal.4th 1272, 1299; In re Andrade (2000) 141 Cal.App.4th 807, 815: Morris v. Williams (1967) 67 Cal.2d 733, 748-749; Pitts v. Perluss (1962) 58 Cal.2d 824, 834-835.) The court below, however,failed to afford proper deference to CDCR and exceededits authority in altering CDCR’s validation regulation. Its imposition of the “mutual relationship” requirement evidencesinsufficient understandingofthe practicalrealities of the difficulties CDCR facesin attempting to control violent prison gangs. Its ruling will undermine CDCR’sefforts to manage the serioussafety and security threats posed by prison gangs. This Court should therefore grant review to addressthis important issue. Alternatively, this Court should grant review to return this matter to the Court of Appealfor reconsideration. The Court of Appeal, correctly, cited this Court’s opinion in Jenkins for the proposition that judicial review of CDCR’s regulations asks whetherthe regulation is “arbitrary, capricious, irrational, or an abuseofdiscretionary authority.” (Slip opn., p. 14 [citing In re Jenkins, supra, 50 Cal.4th at p. 1176]; see also Copley Press, Inc.v. Super. Ct., supra, 39 Cal.4th at p. 1299.) The court, however, did not utilize that standard to review the requirements of CDCR’s validation regulation. Further, although the court’s opinion discussed the definitions of several terms found in CDCR’s validation regulation, it did not cite or apply the well-established legal standards governing regulatory interpretation: that an agency’s interpretation ofits own regulation is “accorded great weight” and will not be overturned unless“clearly erroneous.” (Jn re Andrade, supra, 141 Cal.App.4th at p. 815.) At the very least, the Court of Appeal should be instructed to reconsiderits decision underthe proper standards of deference to CDCR. CONCLUSION This Court should grantreview on the merits of the Court of Appeal’s holding. In the alternative, it should grant review at least for purposes of returning the case to the Court of Appeal for reconsiderationin light of the deference owed to CDCR’s authority to create rules for prison administration and expertise in prison management. Dated: October 18, 2011 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General DONALD E. DENICOLA Deputy State Solicitor General JULIE L. GARLAND Senior Assistant Attorney General ANYA M.BINSACCA Supervising Deputy Attorney General JENNIFER A. NEILL Supervising Depyty Attorney General Deputy Attorney General Attorneysfor Warden Michael Stainer S$A2010300954 3 1360385.doc CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWusesa 13 point Times NewRomanfont and contains 1,971 words. Dated: October 18, 2011 Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General DONALDE. DENICOLA Deputy State Solicitor General JULIE L. GARLAND Senior Assistant Attorney General ANYAM.BINSACCA Supervising Deputy Attorney General JENNIFER A. NEILL Supervising Deputy Attorney General Z| Deputy Attorney General Attorneysfor Warden Michael Stainer Filed 9/8/11 | CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT F059511 In re ELVIN CABRERA, OPINION On Habeas Corpus. 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 Cabrerafiled a petition for writ of habeas corpusto challenge his validation as an associate of the Mexican Mafia prison gang (EME) andhis placementin the security housing unit (SHU) at the California Correctional Institution at Tehachapi (CCI). ‘Cabrera arguesthat his possession of photocopies of drawings signed byeither a gang memberor gang associate wasinsufficient to establish a “direct link to a current or former validated memberorassociate of the gang” as required by California Code of Regulations, title 15, section 3378, subdivision (c)(4).! We agree. The required direct link between Cabrera and a gang memberor associate wasnot established bythe artist’s name on the photocopied artwork. Consequently, Cabrera’s petition for writ of habeas corpuswill 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 proceduralhistory of this case. Broadly stated,the first issue concerns whichfacts 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 andresolution of this matter. (See generally Cal. Const., art. VI, § 14 [appellate decisions “shall be in writing with reasonsstated”].) | The second issue involves identifying which facts have been established for purposesof the habeas corpus proceeding and whichfacts are in dispute. (See fn.4, post.) The answerto this question is obtained by applying the pleading rules for habeas corpus proceedingsset 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 memberor 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 gangaffiliates, and communications betweeninmates. (§ 3378, subd.(c)(8).) 1A]l further regulatory referencesareto title 15 of the California Code of Regulations. Whenthe 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 informationto the inmate/parolee in a written form that would not jeopardize the safety of any person orthe security of the institution.” (Italics added.) Thefirst question that arises, in reference to this requirement to documentanddisclose, is whetherit precludes CDCR from relying on information not includedin the written form to justify its validation decision. Not surprisingly, the parties do not agree on the answer. Cabrera arguesthat the use of the word “shall” creates a mandatory duty to disclose all information indicative of gang association and that the consequencefor not complying with this duty should be invalidation of the government action and the granting ofhis petition. CDCRcountersthat all of the information relied upon need not be included because concernsfor safety and security can justify leaving information out of theforms. With regard to the consequencesoffailing to include required information in the forms, CDCRarguesthat if a court overrules the validation, then it may be redone after the inmate is provided with proper disclosure. CDCRhas 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. Weconclude that the mandatory language about documentation and disclosure in subdivision (c)(8) of section 3378 meansthat 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 categoryis 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. Underthis interpretation, the document-and-disclose requirementin subdivision (c)(8) of section 3378 effectively defines whichfacts are material to a court’s review of a gang validation. The information that CDCR mayrely 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 mightarise where CDCRshould be allowedto present the reviewing court with background information to help explain the meaning of the information disclosed inthe forms, so long as the explanatory backgroundinformation 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 chronos? 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 CDCRdoesnot contend it withheld information on this ground. The possibility that this court should consider information from outside the validation formsis raised by CDCR’s attachmentof a declaration of Everett W. Fischer to its return. We, however, have notrelied on that declaration because of our conclusion that the material facts justifying validation must be disclosed in the forms and because the disclosures madein the forms provided to Cabreraare straightforward. Consequently, an expert’s insight into the prison environmentis not needed to understand the disclosures and, as a result, Fischer’s declaration is not needed to provide explanatory background information.> The regulatory definition of “General Chrono”is “a CDC Form 128-B (Rev. 4-74) which is used to document information about inmates and inmate behavior. Such information mayinclude ... records of disciplinary or classification matters ....” (§ 3000.) 3Fischer’s declaration, amongother things, challenges Cabrera’s credibility. In response, in paragraph No. 13 of his traverse, Cabrera (a) alleges that Fischer’s opinion as to his lack of credibility lacks proper foundation and (b) objects to the declaration as improperexpert opinion. Also, Cabrera’s memorandum ofpoints and authorities attached to his traverse asserts that Fischer’s opinion as to Cabrera’s state of mind(i.e., his knowledge that the symbols were gang- related) lacked a sufficient basis for this court to consider. Cabrera’s objections are not ruled on I. Material Facts Established by the Pleadings The next question is whether any material facts are disputed by the parties.4 Whether material facts are regarded as admitted or disputed in a habeas corpus proceedingis determined by applying the pleading rules set out in People v. Duvall, supra, 9 Cal.4th 464. In a habeas corpus proceeding, the pleadings consist of (1) the inmate’s petition, (2) CDCR’sreturn, and (3) the inmate’s traverse. We will not provide a detailed explanation of the rules applied to these pleadings becausethis caseis relatively simple. As a generalprinciple, a party’s failure to dispute factualallegations madebythe other party, in the manner described in People v. Duvall, is deemed an admission ofthe truth of those factual allegations.5 (Duvall, at pp. 478, 480.) For example, a return is requiredto “allege facts that respondto the factualallegations in the habeas corpuspetition.” (/d. at p. 479, italics added.) in this opinion because wehavenotrelied on the Fischer declaration in deciding this habeas corpus proceeding. 4This question is significant because where materialfacts are in dispute, the reviewing court may appointa referee andorder the referee to hold an evidentiary hearing to resolve the factual disputes. (People v. Duvall, supra, 9 Cal.4th at p. 478.) In contrast, where the material facts are not disputed, the merits of the habeas corpuspetition can be decided without an evidentiary hearing. (Ibid.) 5Our Supreme Court hasset forth a proscription against general denials in a return. (People v. Duvall, supra, 9 Cal.4th at pp. 479-481.) In this case, the last paragraphof the return filed on behalf of CDCRstates: “13. Except as expressly admitted above, respondent denies, generally and specifically, each allegation of the petition, and specifically denies that Cabrera’s administrative, statutory, or constitutional rights have been violated.” Althoughthis paragraph states that it “generally and specifically” denies each allegation of the petition, such a denialin a habeascorpusproceedingis ineffective at disputing the factual allegations madein thepetition because it does notfulfill the return’s function of narrowing the facts andissues truly in dispute. (Jbid.) Instead, it operates as a general denial, whichis “an admission ofsorts.” (Jd. at p. 479.) _ Becausethe material facts are undisputed, CDCR’suse of the foregoing type of a general denialandthe return’s failure to specifically contest facts has no impact on the outcomein this case. Wenote the legal effect of CDCR’s general denial here because someofthe background facts stated in this opinion are taken from allegations made by Cabrera that were not contradicted by CDCRwith specific factual allegations of its own. The pleadings filed here by both parties contain copies of the written formsthat were delivered to Cabrera in connection with the gang validation. Those copies do not conflict with one another. Therefore, the parties are in agreementasto the contents of the written forms. Becausethe contents of those forms constitute the material facts in this case, we conclude the material facts are undisputed and,thus, there is no need for an evidentiary hearing. FACTS The context for the material facts—the contents of the written forms—includes the following background information about Cabrera and the investigationinto his possible ~ association with EME. Background® In February 2003, Cabrera wasconvicted ofrobbery, burglary, receiving stolen property, and possession of drug paraphernalia. In April 2003, he was sentenced to a prison term of 62 yearsto life. Since 2003, Cabrera has been an inmate at CCI. Since 2005, he has been assigned to yard 4-A. . Cabrera has nogangtattoos and has never been charged with violating section 3023, whichprohibits an inmate from knowingly promoting, furthering,or assisting a prison gang. On April 3, 2008, some Hispanic inmates in yard 4-A were involvedin an assault onprison staff. Cabrera wasin his cell at the time of the assault and did notparticipate. On April 8, 2008, prison officials conducted an operation named “Swift Response”that targeted all Hispanic inmates in yard 4-A in an effort to identify and neutralize active gang members. During the course of this operation,Institutional Gang Investigator (IGI) E. Sanchez examined Cabrera’s personal property and discovered photocopies of Unless stated otherwise, the facts provided underthis heading and those provided subsequently underthe heading “Additional Background Facts and Assertions” werenot disputed during the pleadingstage of this habeas corpus proceeding. drawings. IGI Sanchez believed that four of the drawings were evidence of Cabrera’s association with EME. Three days later, Cabrera and approximately 30 other inmates were removed from the general population andplaced in administrative segregation pending validation as membersor associates of EME. Contents of the Written Forms IGI Sanchez prepared three general chronos dated April 8, 2008, to document the evidenceandthe reasons why the evidence indicated Cabrera wasassociating with membersor associates of EME. Twoofthe general chronos prepared by IGI Sanchez concern drawings that CDCR concludedestablish a direct link between Cabrera and affiliates of EME.” Because the existence of a direct link is the primary question inthis proceeding, these two general chronosandtheir subject drawingsare central to this case. Drawingby Associate Garcia—Direct Link Oneof the general chronos concerns a drawing allegedly made by Fermin Garcia, a validated associate of EME. The drawing contains a female Mesoamerican warrior holding the shaft of a spearin herleft hand. A standard is mountedat the top ofthe shaft. The standard is circular and slightly larger than the head and headdressof the warrior. “Matlactlomei” symbols appear at the three o’clock and nine o’clock positions on the standard. The Matlactlomei consists of two vertical lines and a vertical columnofthree dots and is the Mayan symbolfor the number 13. Each line has a numerical value offive and each dot has a numerical value of one. Thus, the sum ofthe two lines and three dots is 13. Matlactlomeiis translated to mean 13 within the Nahuatl. language. The number 13 is used as a designation for EME because the 13th letter in the alphabet is “M.” (See People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1544 [13 usedto designate EME].) 7For purposesofthis opinion, the noun “affiliate” is used to mean a gang memberor gang associate. The lowerright hand cornerof the drawing contains “FERMIN 00” printed in block letters. The CDC Form 128-Bstates that IGI Sanchez “identified the person who drew the picture, as inmate Fermin Garcia, D-88896, aka Fox, a validated associate of [EME], (date of validation 7-15-2003).” Immediately followingthefirst paragraph of the form, nearthe left-hand margin, is a two-inch by two-and-a-half-inch copy of the drawing. To the right of the drawing are two text boxes. A line extends from the upper box to the Matlactlomei symbolin the drawing. A line extends from the lower box to “FERMIN 00.” Thetext inside each box reads: “Directlink identified as Fermin Garcia D-88896.” Below the drawing andthe text boxes, a paragraph explains how the Matlactlomei represents 13 and, in turn, how 13 is used to designate EME. Thelast paragraphofthe form states: “This chrono (Direct link) should be used as one (1) source towards validating Cabrera as an associate of the prison gang known as the Mexican Mafia.” | Drawing by Member Bermudez—Direct Link Another CDC Form 128-Bassertsthatit identifies a direct link between Cabrera and another validated member of EME. The drawing referenced in that form assembles diverse elements or fragments, including a dragon, a jaguar’s face, the face of a man in whichtheleft half is a skeleton, a woman on a veranda with her head framedbya full moon,a chain, prison bars, and other components. None of the elements ofthe drawing wasidentified as being connected withor indicative of EME. At the bottom centerof the drawing, the followingletters are written: “FBERMUDEZ,”with the “F” in a stylized form and “BERMUDEZ”in blockletters. The CDC Form 128-Bstates that IGI Sanchez “identified the person who drew thepicture, as inmate Fernando Bermudez B-53002, aka - Angon Fidel, a validated memberof [EME], (date of validation 8-11-1995).” 8Cabreraalleges, and CDCR effectively admits by not specifically disputing, that the double zeros mean the drawing was completed in the year 2000,well before the artist was validated as an EMEassociate in July 2003. Symbols The third CDC Form 128-B used to validate Cabrera as an associate of EME concerns photocopies of two drawingsthat contain gang-related symbols. Thefirst drawing shows a young woman wearing a sombrero and holding a revolverin herright hand. Parts of an eagle and serpent appear from behind the sombrero. Symbols are written on the brim of her sombrero with a Matlactlomei appearing near the center. The symbols appearing on eitherside of the Matlactlomeiare not identified andtranslated. The second drawing contains a female Mesoamerican warrior armed with a sword in herright hand,a shield onherleft, and a bow and quiverof arrows slung over her back. The CDC Form 128-B states that the “Eternal War Shieldis located in the center of the female Aztec warrior chest area .... The Eternal War Shield is known through gang intelligence, to demonstrate loyalty to the Mexican Mafia as many of the members and associates identify themselves as being warriors of the EME.” The CDC Form 128-Basserts that the Matlactlomei and Eternal War Shield are used by members and associates of EME to show theirloyalty andthat “[b]oth these symbols are recognized by the department as being symbolic to membership/association with the Mexican Mafia.” The Last Written Form CDCR’s validation of Cabrera as an associate of EME was made on May13, 2008, and documented on a CDC Form 128-B-2. CDCR notified Cabrera of its decision using this form. It discloses that the validation was based on the three CDC Form 128-B’s prepared by IGI Sanchez. Additional Background Facts and Assertions? Cabreraasserts that he isnot a gang memberorassociate and has never participated in any gangactivity. He admits possessing the four photocopies of the . °The matters set forth in the second paragraph underthis headingare not disputed by the parties and, consequently, are deemed admitted for purposesofthis habeas corpusproceeding. (See fn. 6, ante.) drawings, but he denies knowingthat the artwork contained gang symbols and asserts the “obscure symbols hold no specialsignificance to [me].” Cabrera had been enrolled in a CCI hobbycraft program for nearly three years and had possessed a large quantity of drawings encompassinga variety ofart and artists. To demonstrate this point, Cabrera attachedto his writ petition 18 pages of copies of drawingsfrom his collection (exhibit J). Cabrera obtained the copyof the drawing containing the war shield symbol by photocopyingit directly from Lowrider Magazine, a publication allowed to be received by any CCI inmate. The memorandumofpoints and authorities, as well as the declaration of Everett W. Fischer attached to CDCR’s return, disputes Cabrera’s assertion that he did not knowthe significance of the symbols in the drawings. PROCEDURAL HISTORY After unsuccessfully pursuing administrative appeals within the CDCR, Cabrera filed a petition for writ of habeas corpus in the Superior Court of Kern County. The superior court denied the petition, concluding there were three valid sources of gang validation with two directlinks to gangaffiliates. | . Thereafter, Cabrera filed a petition for writ of habeas corpus with this court and we issued an order to show cause whythe relief requested should not be granted. In accordance with the order to show cause, CDCRfiled a return with supporting memorandum of points and authorities on January 14, 2011. The return also included the declaration of Everett W. Fischer, a long-time employee of CDCRandcurrently a memberofthe California Prison Gang Task Force. In April 2011, counsel appointed to represent Cabrera filed a traverse and memorandum of points and authorities. DISCUSSION I. __ Provisions Concerning an Inmate’s GangIdentification and Validation Therules of law applied by CDCRpersonnel to validate Cabrera as a prison gang associate are found in a regulation promulgated by the Secretary of the CDCR—namely, 10. section 3378. (See generally Pen. Code, §§ 5054, 5058 & 5068 [authority to promulgate regulations and classify inmates].) Section 3378 concerns the documentation ofcritical information about inmates, which includes an inmate’s relationship with prison gangsor disruptive groups. (§ 3378, subd. (a).) To obtain this critical information, the regulation providesthatallegations of gang involvementshall be investigated by a gang coordinator, gang investigator, or a designee. (§ 3378, subd. (c).) A. Investigations into Gang Involvement A gang coordinatoror investigator looking into an inmate’s possible gang involvement must apply various definitions contained in the regulations. For instance, “member”is defined as an inmate “who has been accepted into membership by a gang.”!9 (§ 3378, subd. (c)(3).) An “associate”is defined as an inmate “whois involved periodically or regularly with membersor associates of a gang.” (/d., subd. (c)(4).) The quantity of evidencethat the investigator needsto identify an inmate as a gang memberor associate is specified in the regulation. “[AJ]t least three (3) independent source items of documentationindicative of actual membership”are requiredto identify an inmate as a gang member. (§ 3378, subd. (c)(3).) “Validation of an inmate/parolee... as a memberofa prison gang shall require at least one (1) source item be a direct link to a . current or former validated memberor associate of the gang.” (/bid.) Parallel requirements exist for establishing an inmate is a gang associate. Theidentification of an inmate as a gang associate “requiresat least three (3) independent source items of documentation indicative of association with validated gang membersor associates. Validation of an inmate/parolee ... as an associate of a prison gangshall require thatat least one (1) source item be a direct link to a current or former validated member or associate of the gang.”!! (§ 3378, subd. (c)(4).) 10The terms “gang” and “prison gang”are not defined here because the parties do not dispute that EME is a prison gang for purposesofthe regulation. 11Note that this provision requires the directlink be to a person, not the gangin general. 11. The meaningofthe term “source item”is addressed in section 3378, subdivision (c)(8), which provides: “... The sources shall be based on the followingcriteria: “(A) Self admission.... “(B) Tattoos and symbols. Body markings, hand signs, distinctive clothing, graffiti, etc., which have beenidentified by gang investigators as being used by anddistinctive to specific gangs. Staff shall describe the tattoo or symbolandarticulate whyit is believed that the tattoo is used by and distinctive of gang association or membership.... “(C) Written material. Any material or documentsevidencing gang activity such as the membership or enemylists, constitutions, organizationalstructures, codes, training material, etc., of specific gangs. Staff shall articulate why, based on either the explicit or coded content, the written materialis reliable evidence of association or membership with the gang.... [§] ... [9] “(G) Association. Informationrelated to the inmate/parolee’s association with validated gangaffiliates. Information including addresses, names, identities and reasons whysuch informationis indicative of association with a prison gangordisruptive group.... [§] ... [{] “(L) Communications. Documentation of telephone conversations, conversations between inmates, mail, notes, greeting cards, or other communication, including coded messages evidencing gangactivity. Staff shall articulate why, based on either the explicit or coded content, the communicationis reliable evidence of association or membership with the gang....” Each ofthe foregoing criteria includes the followingasits last sentence: “Staff shall documentanddisclose this information to the inmate/parolee in a written form that would not jeopardize the safety of any personorthe security ofthe institution.” (§ 3378; subd. (c)(8).) The “direct link” term used in section 3378 is not defined bystatute or regulation. Also, it does not appear that the term was discussed or definedin the settlement agreement entered in Castillo v. Alameida (N.D.Cal. No. C94-2847 MJJ). (See fn. 12, post.) 12. B. Prevalidation Procedures After an investigation into gang involvement has been completed by the gang coordinator or gang investigator andthe identification of the inmate as a gang memberor associate has beenverified, the verification of the inmate’s gangidentification “shall be validated or rejected bythe chief, office of correctional safety (OCS), or a designee.” (§ 3378, subd. (c)(6).) Specific procedures leading up to the validation or rejection decision are set forth in paragraphs (A) through (G)of subdivision (c)(6) of section 3378. These proceduresare not the source of the main controversy in this case and will not be described in detail. Briefly summarized, the procedures includea (1) prevalidation . interview,(2) 24-hour notice of that interview and the source itemsused to identify the inmate’s gangaffiliation, and (3) documentation of the interview and the inmate’s responseto the source items. !? | After the prevalidation procedures have been completed, the validation packageis submitted to the OCS. (See § 3378, subd. (c)(6)(A) & (D).) The documented interview of the inmate must be submitted to the OCS with the validation package. (§ 3378, subd. (c)(6)(D).) 12T9 provide historical context, we note that these procedures appear toberelated to the provisionsof the settlement agreemententered in Castillo v. Alameida (N.D.Cal. No. C94-2847 MJJ). A March 20, 2005, draft of that settlement agreement was included as exhibit K to Cabrera’s petition. Paragraph No. 9 of the agreement provides: “Due Process in Validations and Inactive Reviews. [CDCR] shall provide notice and opportunity to be heard to each and every prisonerat the pre-validation and inactive review stage. [CDCR] agree[s] to provide 24-hour advance notice to eachprisoner ofthe source items consideredpriorto the validation packet being sent to Law Enforcementand Investigations Unit (‘LEIU’) for approvalor rejection of an initial validation. [CDCR] also agree[s] to record the prisoner’s opinion on each ofthe source items and to forward in written form such opinions to LEIU. A copyofthe written record ofthe prisoner’s opinion shall be given to the prisoner, prior to the time the record is forwarded to LEIU.” 13. C. Validation After the prevalidation procedures have been completed and the validation package submitted, the OCS’s validation or rejection of the evidencerelied upon must be documented using CDC Form 128-B2 (Rev. 5/95). (§ 3378, subd. (c)(6)(G).) In this case, the appropriate form was used to validate Cabrera as an associate of EME. The form stated that a gang validation package wasreceived on April 18, 2008, from IGI J. Gentry at CCI and listed the three CDC Form 128-B’s dated April 8, 2008, as the items that met the validation requirements. I. Judicial Review In In re Jenkins (2010) 50 Cal.4th 1167, the California Supreme Court discussed two different legal tests that might be appliedto official action involving inmates. One test inquires into whetherthe actions byprisonofficials were arbitrary, capricious, irrational, or an abuse of discretionary authority. (/d. at p. 1176.) The California Supreme Court used this test to determine whethera regulation was valid under the due process requirements of the United States and California Constitutions. (Jn re Jenkins, at p. 1176.) | The California Supreme Court also discussed the “some evidence”test adopted by the United States Supreme Court in a case involving the denial of goodtime credits that could reduce the inmate’s timein prison. (Jn re Jenkins, supra, 50 Cal.4th at p. 1176.) In its decision, the United States Supreme Court stated: “We hold that the requirements of due processare satisfied if some evidence supports the decision by the prison disciplinary board .... This standard is metif ‘there was someevidence from which the conclusion of the administrative tribunal could be deduced ....’ [Citation.] Ascertaining whetherthis standard is satisfied does not require examinationofthe entire record, independent assessmentof the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whetherthere is any evidence in the record that could support the conclusion reached bythe disciplinary board.” (Superintendent v. Hill (1985) 472 U.S. 445, 455-456, italics added.) 14. Weapplied the “some evidence”test in Jn re Furnace (2010) 185 Cal.App.4th 649, 659. Having considered the California Supreme Court’s discussion in Jn re Jenkins, we again conclude that the “some evidence”test applies to our inquiry into the sufficiency of the evidence supporting the findings made byprisonofficials in applying section 3378, subdivision (c)(4) to an inmate. II. The Direct Link Requirement A. Definition of Terms CDCRhasattemptedto establish the requisite direct link through the association criterion in section 3378, subdivision (c)(8)(G).!3_ Consequently, our analysis begins with the meaning of the terms “direct,” “link,” and “association.” We have already determined and adopted a definition of the term “direct” as used in section 3378. (In re Furnace, supra, 185 Cal.App.4th at p. 661 [“direct” means “without interruption or diversion” and “without any intervening agencyor step”].) Nothingin this opinion is meant to alter that definition. Accordingly, we proceed to the terms “link” and “association.” 1. Association A letter requesting supplemental briefing on the definition of the regulatory terms asked the parties whether they contended“that the word ‘link’ as used in the phrase 13The relevantportionsof section 3378 are as follows. “An associate is an inmate/parolee or any person whois involved periodically or regularly with membersor associates of a gang. This identification requires at least three (3) independent source items of documentationindicative of association with validated gang membersor associates. Validation ... Shall require at least one (1) source item be a directlink to a current or formervalidated memberor associate of the gang ....” (§ 3378, subd. (c)(4).) “The determination of a gang identification shall reference each independentsource item in the inmate/parolee's centralfile. The sources shall be based onthe followingcriteria: [{] ... [f] “(G) Association. Information related to the inmate/parolee’s association with validated gang affiliates. Information including addresses, names, identities and reasons why such informationis indicative of association with a prison gang or disruptive group. Staffshall document and disclose this information to the inmate/parolee in a written form that would not Jeopardize the safety of any personor the security ofthe institution.” (§ 3378, subd. (c)(8).) 15. ‘direct link’ in the last sentence of ... section 3378, subdivision (c)(4) should be interpreted to mean ‘connection’? (See American Heritage Dict. (3d college ed. 2000)p. 789 [transitive verb ‘link’ defined as ‘[t]o connect with ....’].)” Both parties responded oe 33yes. Cabrera expandedonhis answerbyasserting that the term “link” as used in section 3378 simply meansa connectionthat is reciprocal. CDCRtook a broaderview, asserting that “link” in this context should mean “‘anything serving to connect onepart or thing to another; a bondortie.” (Random House Webster’s Unabridged Dict. (2d ed. 1998) p. 1119.)” Wealso asked the parties whether “link” should be interpreted to mean “relationship.” (See American Heritage Dict., supra, p. 789 [“link” defined as “3.a. An association: a relationship. b. A causal, parallel, or reciprocal relationship; a correlation”].) CDCR answered “no” and Cabrera answered “yes.” Weagree with the parties to the extent that their positions overlap. The term “link” used in subdivision (c)(4) of section 3378 means “connection.” This definitionis sufficient for the issues presented by this case. We need not decide the point on which the parties disagree—namely, whether “link” meansa reciprocal or two-way connection. The concept of mutuality is addressed subsequently in our definition of“association” and, therefore, it would be redundantto includeit in our definition of “link.” Our determinationthat “link” means“connection” is consistent with the way we analyzed the direct link requirement in Furnace. Wedid not adopt an explicit definition of “link”in that case, but implicitly treated it as synonymouswith “connection.” (Un re Furnace, supra, 185 Cal.App.4th at pp. 660-662.) Whether circumstanceswillarise where“link” needs a more particular definition than merely “connection”is an issue left for future cases. 2. Association CDCRasserts the appropriate definition of the word “association” changes with thecontext in whichit is used and the purposeofthe regulation. For example, according 16. to CDCR,the word “association” is used differently in the first two sentences of subdivision (c)(8)(G) of section 3378. In the first sentence, “association” means to have a “loose relationship as a partner, fellow worker, colleague, friend, companion,or ally” with gangaffiliates. (Webster’s 3d New Internat. Dict. (1986) p. 132 [definition of verb “associate”].) The second sentence, however,refers to “association” with “‘an organization of people with a commonpurpose and having a formalstructure.’ (Random House Webster’s Unabridged Dict., supra, p. 126.)” Cabrera argues the term association refers to “periodic or regular” involvement of the inmate with prison gangaffiliates. This language stems from section 3378, subdivision (c)(4), which defines “an associate.” (See fn. 13, ante.) Citing criminal street gang cases, Cabrera urges the adoption ofthe following three-prong definition of association: “[A]n inmate,(1) with knowledge ofthe unlawfulactivities of a prison gang, (2) ‘individually’ or ‘collectively’ engages in activities relating to the gang, and (3) whose involvementis more than ‘nominal’or ‘passive.’” (Jn re Jose P. (2003) 106 Cal.App.4th 458, 466[to prove “active participation”in a criminal street gang, for purposes of Pen. Code, § 186.22, subd. (a), it must be shown that defendant’s involvement was more than nominalorpassive], citing People v. Castenada (2000) 23 Cal.4th 743, 749-750; People v . Valdez (1997) 58 Cal.App.4th 494, 505.) Based on our examination of the regulatory context and purpose, as well as various dictionary definitions, we conclude that, for purposesof the first sentence of subdivision (c)(8)(G) ofsection 3378, the term “association” meansa “loose relationship as a partner, ... colleague, friend, companion,orally” with a validated gang affiliate. (Webster’s 3d New Internat. Dict., supra, p. 132.) Usingthis definition, the “association” criterion contained in subdivision (c)(8)(G) of section 3378 can be established with informationrelated to the inmate’s loose relationship with a gangaffiliate. The loose 17. relationship between the two individuals can be as partners, colleagues, friends, companionsorallies. !4 Wereject Cabrera’s argument that “association,” for purposes of subdivision (c)(8)(G) of section 3378, requires the inmate to have engagedin activities related to the gang because that argumentis not based on the ordinary meaning of the word “association”or “associate.” Instead, it is based on authorities addressing the inapposite question whether“active participation”in a criminal street gang has been shown. Furthermore, webelieve the “association” criterion of section 3378, subdivision (c)(8)(G) that concerns a “source item”is evidentiary in nature, while a finding that an inmate is an “associate”—thatis, one “whois involved periodically or regularly with membersor associates of a gang” (§ 3378, subd. (c)(4))—is a conclusion based on the provencriteria. 3. Combining the definitions Thelast step in our analysis of the meaning of the words in section 3378is to combinethe definitions and reach a conclusion as to what is meant by “direct link” when the source item usedis the inmate’s “association with validated gangaffiliates.” (§ 3378, subd. (c)(8)(G).) First, we interpret the requirement that “at least one (1) source item be direct link to a currentor former validated memberorassociate of the gang” (§ 3378, subd. (c)(4)) to meanthatthe source item must provide a connection without interruption or any intervening agency or step between the inmate and the validated gangaffiliate. Second, 14We specifically limit our definition of “association”to cases involvingthe direct link requirement. Therefore we do not decide whethera source item constituting an indirect link could be established by an “association” that meets the following definition: “5 : to submit to public identification (as with a principle or sentiment) ... ” (Webster’s 3d New Internat. Dict., supra, p. 132 [definition of the verb “associate”].) A letter requesting supplementalletter briefs asked the parties whether they thought this definition should be used and they both answered “no.” Weasked the question becausethis is a type of association that involves unilateral action and it appeared that Fischer was usingthis or a similar definition of “association” in explaining how artwork could be used by an inmate to associate himself with a gang affiliate. 18. whenthe association criterion in subdivision (c)(8)(G) of section 3378 is used to meet this direct link requirement, the resulting combination can be described as follows: At least one source item must provide a connection withoutinterruption or any intervening agencyorstep in the form ofa loose relationship betweenthe inmate and the validated gang affiliate. The relationship, whether characterizedas oneofpartners, colleagues, friends, companions,orallies, must involve reciprocal(i.e., mutual or two-way) interaction between the twoindividuals forming the relationship. In other words, the requisite relationship cannot be created solely by one party’s action; there must be some assent or mutuality from the other party. Otherwise, a validated gangaffiliate could create such a relationship with an inmate unilaterally, without any assent or mutuality on the part of the inmate. CDCRasserts that unilateral action by an inmate, such as possessing the photocopied signature of a gang affiliate, can constitute sufficient proof of association. This assertion appearsto be based on anoverly broadinterpretation of our opinion in Jn re Furnace and, perhaps, on the concern that the legal definition of “association”as a bilateral or reciprocal relationship might be applied to limit the evidence that can be used to prove such relationship existed. We intend no such evidentiaryrestriction. Theoretically, it is possible that the mutualrelationship establishing a direct link through association can be inferred from evidence ofunilateral action by oneofthe persons in that relationship. In practice, whether such an inference can be drawnin particular situation will depend uponthe facts and circumstancesof that case.!5 1SOuropinion in In re Furnace, supra, 185 Cal.App.4th 649 neither defined the term “association” nor addressed what the combination of a “direct link” through “association” meant. Neither did we address the question whether mutuality or reciprocity was inherent in the concept of “association.” Nothing in the opinion indicates that the parties ever raised theseissues. Because an opinionis not authority for an issue not considered and resolved by the court (People v. Harris (1989) 47 Cal.3d 1047, 1071), the Furnace decision does not prevent us from interpreting “association” to mean a mutual relationship. 19, B. Application of the Direct Link Requirement to an Inmate’s Associations With the foregoing definitionsof “direct link” and “association” in mind, we must now answer the question whether Cabrera’s possession ofeither the Bermudez drawing or the Garcia drawing provides some evidence of a connection, without interruption or any intervening agencyorstep in the form ofa looserelationship (i.e., partners, colleagues, friends, companions, orallies), between Cabrera and the artist. We conclude the answeris no. 1. Contentions ofCDCR In In re Furnace, supra, 185 Cal.App.4th 649,this court adopted the dictionary definition of the word “direct” (“withoutinterruption or diversion” and “without any intervening agency or step’) (id. at p. 661) and offered an example of anindirect link: “To offer an example of what would clearly constitute an indirect link: If inmate A possessed contact information for inmate B who,in turn, possessed contact information for inmate C, a gang member,the link between inmates A and C would not be direct. The significance ofthe link between inmates A and C would not be evident without the addition of somefurther step or information.” (/d. at p. 661, fn. 3.) CDCRarguesthat: “Based on the Court’s example, the link between Cabrera and the validated associate and member of the EME aredirect links. As was the case in Furnace, the information contained on the drawings connects Cabrerato the gang memberor associate without the addition of somefurther step or information; the connection is evident from the face of the document. ({Un re Furnace, supra, 185 Cal.App.4th] at p. 662.) This interpretation is consistent with the notion that these drawings are used by inmatesto establish credibility and display allegiance with the prison gang. The drawings would lack their force if the connection between the validated gang memberor associate and the inmate wasindirect or required further information.” , In makingthis argument, CDCR acknowledges that Cabrera had only photocopies of drawings; the signatures in his possession were not original. CDCRalso acknowledgesthat the forms completed by IGI Sanchez contain no information about how Cabrera cameinto possession of the photocopied drawings. But, CDCRargues, the 20. way in which Cabrera cameto possess the drawingsis irrelevant to the question whether the drawingsestablish a direct link. 2. Analysis We conclude that Cabrera’s possession of a photocopied drawing containingpart of the nameofa gang affiliate does not establish that Cabrera actually had a mutual relationship, even a loose one, with the artist. Therefore, CDCRhasfailed to show an “association” constituting a “direct link” between Cabrera and a validated gangaffiliate as required bythe provisions of section 3378, subdivision (c). Our conclusion is based on what the general chronos provided to Cabrera contain and do not contain. To avoid ambiguity in the precedent established by this opinion, we explicitly identify the facts material to our conclusion. First, the following material facts were includedin the information contained in the general chronos: (1) The documents possessed by Cabrera were photocopies, not originals, of the artists’ drawings,(2) the artists’ original signatures had not been placed on the photocopies, (3) the name “FERMIN”appearsin one drawing and he madethe drawing, (4) Fermin Garcia is a validated associate of EME,(5) the name “F, BERMUDEZ”appearsin the other drawing and he made the drawing,16 and (6) Fernando Bermudezis a validated a member of EME.!7 16The general chronos included the following statement by IGI Sanchez: “I identified the person whodrewthe picture, as inmate” Fermin Garcia or Fernando Bermudez. The general chronosdo not state how IGI Sanchez wasable to identify the artists. For purposesofthis opinion, we will assume CDCRcorrectly found that these inmates were, in fact, the artists who drew the pictures. Consequently, we do not address whether the general chronos disclosed sufficient evidence to support these findings as to the identities ofthe artists. 17We note that CDCR’sreturn asserts that both Garcia and Bermudez are housedat Pelican Bay State Prison andcites to the CDC Form 128-B’s for support. Those forms do not expressly state where Garcia and Bermudez are housed, but CDCR mayhaveinferred their location from the letter and numberassignedto each prisoner. Cabrera’s traverse did not dispute this assertion of fact and, consequently, he is deemed to have admitted it. Nonetheless, we did not considerthe location of the twoartists as a fact that would alter our analysis.ofthe direct link requirement. 21. Second, the following omissions of information are material to this case. The general chronos did not documentor disclose the basis of a relationship between Cabrera and eitherartist. The failure of the information in the general chronosto establish the requisite relationship between Cabrera and validated gang affiliate is demonstrated by the following examples. Ifa prisoner had a photocopyofa painting signed by David Hockney, a drawing or watercolor signed by Adolf Hitler (perhaps the most infamous failed artist of the 20th century), or a Doonesbury cartoon containing Garry Trudeau’s signature, that photocopy would not adequately support the inference that the prisoner had a mutual relationship with Hockney, Hitler, or Trudeau. Concluding the inmate actually had a mutualrelationship with these artists would be based merely on speculation or hunch. (See /m re Lawrence (2008) 44 Cal.4th 1181, 1213 [“some evidence”standard requires more than a hunchorintuition].)!8 Thus, as a matter of law, there is not “some evidence” to support the validation. (Cf. Jn re David M. (2005) 134 Cal.App.4th 822, 832 [stale evidence wasinsubstantial as a matter of law].) To assist CDCR,practitioners and courts that will apply the principles and definitions established in Jn re Furnace, supra, 185 Cal.App.4th 649 andin this opinion to future validation cases, we explicitly identify how this opinion has gone beyond Furnace and addressed points not raised there. This opinion explicitly addresses (1) the “documentand disclose” requirementin subdivision (c)(8) of section 3378 andits effect on limiting the evidence CDCR mayrely upon in court to justify its validation decision, (2)the definition of the term “link,” (3) the definition of the term “association,” and (4) the meaning of the combination ofa “direct link” through “association.” Also, we address the question whether a mutualrelationship is needed to establish a direct link through association, which we decide in the affirmative here. None of these points was addressed in Furnace, and nothing in Furnaceis inconsistent with our analysis here. 18Qur determination that Cabrera’s possession of the drawingsdid notestablish he had a direct link with the artists does not underminethe “some evidence”test used to determine the sufficiency of the evidence in gang validation proceedings. 22. A critical distinction between the twocases is found in the nature of the information asserted by CDCRto supply the necessary direct link. Cabrera possessed drawingsthat contained photocopied namesofvalidated gangaffiliates, while the inmate in Furnace possessed a piece of paper with the name, CDCR number,andinstitutional housing of a validated memberof the Black Guerrilla Family (BGF) prison gang housed at Pelican Bay State Prison. (Jn re Furnace, supra, 185 Cal.App.4th at p. 654.) This information about the BGF memberwascharacterized by the IGI in Furnace as contact information. (/bid.) The inmate in Furnacealso had (1) a book written by George L. Jackson, the person who provided the example andteachings used as the basis for the BGFideology, (2) an audio compactdisc aboutthe life, death, and ideology of GeorgeL. Jackson,(3) a photocopiedflyer promoting a 2005 Black August event in Oakland, California, and (4) a photocopied newspaperarticle explaining the meaning of Black August. (/d. at pp. 654-655.) The uncontested facts created an inference that Furnace knew the inmateidentified on the piece of paper was a BGF member: the inmate’s name wasincludedin the newspaper article explaining Black August, and Furnacestatedthat he had planned to contact the inmate as research for a children’s book he was writing on staying away from gangs and prison. (/n re Furnace, supra, 185 Cal.App.4th at pp. 655, 661.) There was no question that Furnace was aware the inmate whosecontact information he had was a gang memberandhada significant role in the BGF. Underall of these circumstances, the name, CDCR numberandinstitutional housing in Furnace’s possession was evidence of contact or communication between the two inmates, which in turn supportedthe inference of involvement between the two. Andit was underall these circumstancesthat we concludedthe piece of paper with the gang member’s contact informationsatisfied the requirementof a direct link between the inmate and a validated gang member. (Cd. at p. 661.) | Our opinion in Furnace stands for the proposition that some evidence ofa direct link between the inmate and a gang memberexists whenthe inmate possesses a piece of 23. paper containing an individual’s contact information, the inmate knowsthat the individual is a gang member,andthe inmate possesses a variety of materials used by the gang for indoctrinating new members. Werecognizethat this information does not provide incontrovertible proof that an actual relationship existed between Furnace and the gang member. Conclusive proofof a relationship between the two, however, wasnot required by the applicable test. Instead, the some evidencetest allowed the CDCRto infer the direct link existed based onthe information providedin the general chronos. While CDCRcould have drawnother inferences from the information provided about Furnace, we concludedthat the evidence wassufficient to support an inferencethat there was involvement between Furnace and the gang member. (Jn re Furnace, supra, 185 Cal.App.4th at p. 661.) Thus, we concludeda direct link was demonstratedin that case. ({bid.) _ Ouropinionin the present case stands for the proposition that “some evidence”of a “direct link” is not shown by an inmate’s mere possession of two photocopied drawings, with photocopied signatures of the gang-validated artist-authors of the drawings. We reject CDCR’sposition, stated by the deputy attorney generalat oral argument, that an inmate’s mere possession of a gangaffiliate’s photocopied signature is enough to showa direct link between the inmate andtheaffiliate. Cc. OtherIssues Based on our resolution of the direct link issue, we need not address whether the four drawings found in Cabrera’s possession constituted three independentsourceitems. Also, we do not reach Cabrera’s claim that his gang validation and placementin the SHU violated his First Amendmentrights under the United States Constitution as well as his statutory rights under Penal Code sections 2600 and 2601. Lastly, we recognize that our opinion in Furnace and this case leave unanswered questions about howthedirect link requirement should be appliedto situations with different facts. For example, neither case answers whether some evidenceofa direct link is established solely by an inmate’s possession of (1) a validated gang affiliate’s contact 24. information,or (2) an original drawing made andsigned bya validated gangaffiliate. Becauseof the nature of appellate review, those questions must await another day. (See Fiorentinov. City ofFresno (2007) 150 Cal.App.4th 596, 605, fn. 2 [readers cautioned that opinion did not contain implied rulings; some ofthe unresolved issues explicitly identified as issues that must await another day].) DISPOSITION Let a writ of habeas corpusissue directing the California Department of Corrections and Rehabilitation to (1) expunge Cabrera’s validation as an associate ofthe Mexican Mafia prison gang, (2) report the expungementto all gang-related law enforcementdatabases and clearinghouses to whichtheoriginal validation was reported previously, (3) removeall documentsrelated to the validation from Cabrera’s prisonfile, and (4) cease housing Cabrera in the SHU basedonthe gangvalidation. DAWSON,Acting P.J. WE CONCUR: KANE,J. POOCHIGIAN,J. 25. Filed 10/6/11 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT F0S9511 In re ELVIN CABRERA, ORDER MODIFYING OPINION AND DENYING REHEARING On Habeas Corpus. [No CHANGEIN JUDGMENT] THE COURT: It is ordered that the opinion filed herein on September 8, 2011, and reported in the Official Reports (198 Cal.App.4th 1548) be modified as follows: On page 1572, the paragraph following the heading DISPOSITIONis deleted and the following paragraph insertedin its place: Let a writ of habeas corpusissue directing the California Department of Corrections and Rehabilitation to (1) expunge Cabrera’s validation as an associate of the Mexican Mafia prison gang, (2) report the expungementto all gang-related law enforcement databases and clearinghouses to which the original validation was reported previously, and (3) cease housing Cabrera in the SHU based onthe gang validation. There is no changein the judgment. Respondent’s petition for rehearing is denied. DAWSON,Acting P.J. WE CONCUR: KANE,J. POOCHIGIAN,J. DECLARATION OF SERVICEBY U.S. MAIL Case Name: Cabrera, Elvin In re No.: F059511 I declare: I am employedin the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of ageor older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondencefor mailing with the United States Postal Service. In accordancewiththat practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On October 18, 2011, I served the attached PETITION FOR REVIEW by placing a true copy thereof enclosedin a sealed envelope in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressedas follows: Clerk of the California Supreme Court California Court of Appeal, Fifth District California Supreme Court (Orig + 13 copies) 2424 Ventura Street 350 McAllister Street Fresno, CA 93721 San Francisco, CA 94102-4797 Case No. F059511 Melanie K. Dorian, Esq. (2 copies) Kern County Superior Court P.O. Box 5006 1215 Truxtun Avenue Glendale, CA 91221-5006 Bakersfield, CA 93301-4698 Attorney for Petitioner Case No. HCO11446A I declare under penalty of perjury under the lawsof the State of California the foregoing | is true and correct and that this declaration was executed on October 18, 2011, at Sacramento, California. \ (\{\ : | Nog / Carrie Haney \ \I OOOY WSK Declarant iN Signatiire 1) $A2010300954 31366366.doc