CABRERA (ELVIN) ON H.C.

Petitioner's Answer to Petition for Review

Cal.October 31, 2011

LIU,J. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re ) ) No. 8197283 ELVIN CABRERA, ) ) Petitioner,) 5 Crim. F059511 ) On Habeas Corpus ) ) OCT 31 201 ANSWER TO PETITION FOR REVIEW MELANIE K. DORIAN California State Bar No. 197955 P. O. Box 5006 Glendale, California 91221-5006 Telephone: (818) 937-0434 Attorney for Petitioner ELVIN CABRERA TABLE OF CONTENTS TABLE OF CONTENTS.....sscssccssssesscsssssessessssesssssssessssesisesssusesssssseosssssuscessusssessauesenseueteceee i TABLE OF AUTHORITIES........... sesesssssessusesssecessneessneesseechsssessesssssecsssteessseesssecsseecesaeee Hd ANSWERTO PETITION FOR REVIEW ooecsssssscsssescssssssessucsssssusecsucssssssecesseecrsneesssueeessan es 1 STATEMENT OF CASE AND FACTS..cccctseseessssseee sessnnesnneeesasseenasennnesenstn cesses 2 ARGUMENT.....cccssssssssssssssesssssccssssssccssssssssssessssscssssscesssuseesnsvestsnsessaueesieneceeracessansecesnasssssseess 2 I. REVIEW SHOULD BE DENIED, BECAUSE THE COURT OF APPEAL APPLIED THE CORRECT STANDARDOF REVIEW IN INTERPRETING SECTION 3378, AND DID NOT IMPROPERLY ORERRONEOUSLY EXPAND THE OBLIGATIONS OF THE PRISON OFFICIALS UNDER THE REGULATIONS......csssssssssssssssssssssssssssssssesssesssessssssessssssssessssssenssnnvesseseeeces 2 CONCLUSION cescssscssssssccssssssssssessessesssssessessususssssssesssessuuesssssssssssestiseeessissssttssseseseeseese 9 CERTIFICATE OF WORD COUNT | PROOF OF SERVICE TABLE OF AUTHORITIES Cases Coalition ofConcerned Communities, Inc. v. City ofLos Angeles (2004) 34 Cal.4" 733.7 DaFonte v. Up-Right, Inc. (1992) 2 Cal.4" 593 ...sssesssssssscessseeesneeessnesesssnsecsssenesesssntesssnanes 7 Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4" 1036 ....eeeeeeeeeees 8 Gov. Bd. ofCa. Teachers Assn. v. Rialto Unified School Dist. (1997) 14 Cal.4" 627....... 7 In re Carter (1988) 199 Cal.App.3d 271 oo... eeceescceseectecssccessessssecbessseesssseaeseessecareenesensons 6 Inre Furnace (2010) 185 Cal.App.4 649 .....ccscscssssscenssessateeeeeeseeerseaceeeeenseeeesvestaseesseees 5,6 In re Lusero(1992) 4 Cal.App4® 572 cscssssssssssstsssssiasisssustissessnnnesieteeccssseeuesssssee 6 Lennane v. Franchise Tax Board (1994) 9 Cal.4™ 263 v.sscssssssssssesssssessscsssseessssssessecsecnseesess 7 | Constitution U.S. Const., amend I...... sesceneesceesccessecceesacesaceessceecesesaceseeneesesccseeenessseesesensseneeeasdeseceeeeeeeesees 8 Statutes California Code ofRegulations,tit. 15, §3335 oo.eeeccessscsseesesesssecesseesseessnenetenseseeseees 3 California Code ofRegulations,tit. 15, §334 1.5 oeeeeecssssacsetesseceseseeneseeereneeresenestenes 3 California Code of Regulations, tit. 15, §3378 oo...eesssceseecesessesesseeensesessseneeeess 2-4,8 California Penal Code, §2600 ............cccscccssssececseseecessccessrssacersasaneecessseseesssscessesssesnseesecseass 8 California Penal Code, §2601 o.........ccccsscccssnsseccesseceesscetsnseccesescceceasoesaesesessseneonsessnsceenesaeas 8 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re yoo. ) No. $197283 ELVIN CABRERA, ) ) Petitioner,) 5 Crim. F059511 ) On Habeas Corpus ) ) ANSWER TO PETITIONFORREVIEW TO THE HONORABLE TANI CANTIL-SAKAUYE,CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA:| Petitioner below, Elvin Cabrera (hereafter “petitioner’”), respectfully submits this answerto the petition for review filed by respondent in the above-entitled matter following the filing ofthe September 8, 2011 published opinion and the October 6, 2011 modified opinion by the Court ofAppeal ofthe State of California, Fifth Appellate District, granting the petition. STATEMENT OF CASE AND FACTS Petitioner incorporates the facts as presented by the Court ofAppeal in its original opinion, and has added additional facts as neededin the Argument section. (Slip Opn., pp. 6-10.) ARGUMENT 1. REVIEW SHOULD BE DENIED, BECAUSE THE COURT OF APPEAL APPLIED THE CORRECT STANDARD OF REVIEW IN INTERPRETING SECTION 3378, AND DID NOT IMPROPERLY OR ERRONEOUSLY EXPAND THE OBLIGATIONS OF THE PRISON OFFICIALS UNDER THE REGULATIONS Respondent is seeking reviewon the sole groundthat the court’s interpretation of section 3378, as involving some type of a reciprocaland mutual relationship, will essentially hinder the ability ofthe California Department of Corrections and Rehabilitation (“CDCR”)to ensure institutional safety. (PFR, pp. 5-8.) In doing so, respondent mischaracterizes the Court ofAppeal’s findings, and offers no facts or legal authority to support its argument. For the following reasons, review must be denied. A. California Regulations UnderCalifornia regulations, prison officials may place an inmate in a security housing unit (“SHUT”), whose presencein the general population “presents an immediate threat to the safety ofthe inmate or others” or “endangers institution security.” (Cal. CodeRegs., tit. 15, §3335, subd. (a).) Validated gang members or associates are considered to pose safety concerns and are, therefore, placed in the SHU for an indeterminate term. (Cal. Code Regs., tit. 15, §3341.5,; subd. (c)(2)(A).) Prior to the submission ofa validation packet to the Office of Correctional Security (“OCS”),the institutional gang investigator (“IGI’’) shall interview the inmate and provide him with an opportunity to be heard regarding the information and/or items used for the validation. (Cal. Code. Regs., tit. 15, §3378, subd. (c)(6).) The OCSis to identify “at least three (3) - independentsourceitemsindicative of actual membership”or “association with validated gang membersor associates.” (Cal. Code. Regs., tit. 15, §3378, subd. (c)(2)-(4).) These sources items “must contain factual information,” andat least one must constitute “a direct link to a current or former validated member or associate of a gang.” (Cal. Code. Regs., tit. 15, §3378, subd. (c)(2)(4).) These include self-admission, tattoos and symbols, written material, photographs, staff information, information from other sources, and. association with gang affiliates. (Cal. Code. Regs., tit. 15, §3378, subd. (c)(8)(A)-(H).) Association means “[i]nformation related to the inmate/parolee’s association with validated gang affiliates,” which may include “addresses, names, identities and reasons why such informationis indicative of association with a prison gang ordisruptive group.” (Cal. Code. Regs., tit. 15, §3378, subd. (c)(8)(G).) B. Court of Appeal’s Interpretation The court defined the term “link” to mean a “connection.” (Slip Opn., pp. 15-16.) The court rejected petitioner’s view that “association” requires involvementthat is morethan passive, and instead, adopted respondent’s position in defining the term as a “loose relationship.” (/d. at 16-18.) Finally, the court decided that this “direct link” to:a current or former validated gang memberor associate must necessarily entail some “assent or mutuality from the other party.” (/d. at pp. 18-19.) It is the latter that is the subject ofthis petition for review. Contrary to respondent’s contention, the court did not improperly combinethe terms “association” and“‘direct link.” (PFR, p. 6.) Nor did it ~ add the mutuality requirement, which respondent describes as “novel and ill-advised.” (Jbid.) Rather, the court defined and interpreted the terms “direct link” and “association,”first, separately, then, in conjunction with each other, in order to explain the kind of showing required undersection 3378, subdivision (c). (Slip. Opn., pp. 15-19.) Respondent’s disagreement with these interpretations does not invalidate the Court ofAppeal’s findings. The Court ofAppeal’s conclusions were well-reasoned, because as the court explained, absent such reciprocal interaction, “... a validated gang affiliate could create such a relationship with an inmate unilaterally, without any assent or mutuality on the part ofthe inmate.” (Slip Opn., p. 19.) This, of course, would lead to absurd results, where inmates not intending or willing to associate with such validated gang members or affiliates wouldstill be subject to gang validations and indefinite confinementin theSHU. Inaddition, as the court clarified, this interpretation did not in any way limit the evidence that could be used to prove a bilateral or reciprocal relationship. (bid.) As the court observed, “Theoretically, it is possible that the mutualrelationship establishing a direct link through association can be inferred from evidence of unilateral action by one ofthe personsin that relationship. In practice, whether such an inference can be drawn in a particular situation will depend uponthe facts and circumstances ofthat case.” (Ibid.) As an example, the court cited In re Furnace (2010) 185 Cal.App.4” 649, 654-655, where the petitioner possessed the contact information for a validated gang memberin anotherinstitution, and whose identity was knownto the petitioner based on all the written materials, including newspaperarticles, foundin his cell. (Slip Opn., pp. 22-23.) The court noted that, there, the evidence, taken together, provided “some evidence” for the inference of such a mutualrelationship between the petitioner and the validated gang member. (/d. at 23-24.) Focusing on the facts of this case, the Court ofAppeal then distinguished Furnace, and properly foundthat, here, the mere possession ofthe photocopied drawings, without more, did not provide some evidence of “a connection, without interruption or any intervening agencyor step in the form ofa loose relationship [], between Cabrera andtheartist.”(Jd. at 20-24.) Respondent doesnot offer any facts or legal authority to establish that the court’s interpretation of the terms and the application ofthese definitions in this particular situation were illogical, improper or unlawful. Respondentclaimsthatthe. Court ofAppeal oversteppedits boundaries and has interfered with the deference duethe prison officials. (PFR, pp. 6-7.) What respondentignoresis that while great deferenceis given to administrative agencies’ expertise, where the decisionis “clearly arbitrary or capricious or has no reasonable basis,” courts are free to reject it. In re Lusero (1992) 4 Cal.App.4" 572,575, quoting Jn re Carter (1988) 199 Cal.App.3d 271, 276-277.) To that point, respondent cites the “CDCR’s expertise,” claiming that, in light ofthis decision, the CDCR “will rarely be able to secure evidenceofreciprocal interaction between an inmate being considered for validation and a prison-gangaffiliate,” because these gangs “operate in secrecy and are adept at concealing their activities.” (PFR, p. 6.) However, respondent does not point to any such expertise offered by any expert on this subject matter, or one that was accepted and/or considered by the court. Regardless, the Court ofAppeal did not create a new requirement in order for an inmate to be properly validated as a gang member, in accordance with due process. The court simply looked at he big picture, examined the regulations in their entirety and extracted something that was evident from the plainlanguage ofthe law. This is a novelidea. In interpreting a statute, courts generally look to the actual words, giving them their usual, ordinary and commonsense meaning. (Governing Bad. ofCalifornia Teachers Assn. v. Rialto Unified School Dist. (1997) 14 Cal.4® 627, 632; DaFonte v. Up-Right, Inc. (1992) 2 Cal.4® 593, 601.) In doing so, courts do not examine thelanguage in isolation, “but in the context-of the statutory framework as a whole in order to determineits scope and purpose and to harmonize the various parts of the enactment.” (Coalition ofConcerned Communities, Inc. v. City.ofLos Angeles (2004) 34 Cal.4" 733, 737.). Where there is no ambiguity, courts will adopt the clear language of the statute “in favor of an ambiguity that does not exist.” (Lennanev. Franchise Tax Board (1994) 9 Cal.4™ 263, 268.) If, however, the language ofthe statute is susceptible to more than onereasonable interpretation, courts will look to legislative history to ascertain thelegislative intent. (DiamondMultimedia Systems, Inc. v. Superior Court (1999).19 Cal.4" . 1036, 1055.) This is precisely whatthe Court ofAppeal did here, and respondent cannot point to any error. C. Other Issues Should this Court grant review, petitioner would requestthat this Court also consider the issues the Court ofAppeal did not decide. (Slip Opn, pp. 3-5, 24-25). These include (1) whether the drawings found in petitioner’s possession constituted three independent source items; (2) whetherpetitioner’s gang validationand placementin the SHU violated his First Amendmentrights under the federal constitution, as well ashis statutory rights under Penal Code sections 2600 and 2601; and (3) whether respondent should be allowedto introduce Fischer’s expert declaration, which was not submitted to petitioner prior to his validation, in violation of section 3378, and which included improper opinion regarding petitioner’s knowledgeandstate ofmind. CONCLUSION For the foregoing reasons, petitioner requests that this Court deny respondent’s petition for review. Should this Court grant review, petitioner would request consideration of the additional issues not decided by the Court ofAppeal. Dated: October 28, 2011 Respectfully submitted, ae aoopae ae Po ae a a Melanie K. Dorian _, Attorney for Petitionér ELVIN CABRERA | CERTIFICATE OF WORD COUNT In re Elvin Cabrera No. 8197283 5 Crim. F059511 Pursuantto rule 8.504(d) ofthe California Rules of Court, I, Melanie K. Dorian, appointed counsel for Elvin Cabrera, hereby certify that I prepared the foregoing Answerto Petition for Review on behalf ofmy client, and that the word countforthis brief is 1,617, excluding tables. This brieftherefore complies withthe rule which limits a computer- generated briefto 8,400 words.I certify that I prepared this documentin Word, andthat this is the word count Word generated for thisdocument. we ae a! s Melanie K. Dorian Attorney for Petitioner ELVIN CABRERA PROOF OF SERVICE Re: In re Cabrera Case No. §197283 I, Melanie K. Dorian, declare that I am over 18 years old; my business addressis P.O. Box 5006, Glendale, California 91221-5006. On October 28, 2011, I served a true copy ofthe ANSWER TO PETITION FOR REVIEW,byfirst class mail, on the following parties: California Court ofAppeal Elvin Cabrera T-88483 Fifth Appellate District California Correctional Institution 2424 Ventura Street P.O. Box 1902 (CCI) Fresno, California 93721 Unit 4A-5C-211 Tehachapi, California 93581 Amy Daniel Deanna Lamb Attorney General’s Office CCAP P.O. Box 944255 2407 J. Street, Suite 301 Sacramento, California 94244-2550 Sacramento, California 95816 Kern County Superior Court 1215 Truxtun Avenue Bakersfield, California 93301 FOR DELIVERY TO: Hon. Michael E. Dellostritto, Judge I declare under penalty ofperjury that the foregoing is true and correct. | Executed on October 28, 2011, at Glendale, Californie? aeof _-MELANIE K. DORIAN f s i f /