The opinion
Filed 10/19/21 (unmodified opinion and 9/29/21 pub. order attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Amador)
C093153
In re ALEX MARTI on Habeas Corpus.
(Super. Ct. No. 19HC2112)
ORDER MODIFYING
OPINION AND DENYING
REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on September 3, 2021, and ordered filed
for publication on September 29, 2021, be modified as follows:
On page 5, under part I of the Discussion, second paragraph, delete the sentence
that begins “Respondent recognizes that petitioner’s claim” and replace the it with the
following sentence: Respondent argues that even if petitioner’s claim that it has acted
inconsistently with prison regulations is cognizable, it is nevertheless moot.
There is no change in the judgment. The petition for rehearing is denied.
BY THE COURT:
/s/
Robie, Acting P. J.
/s/
Hoch, J.
/s/
Krause J.
1
Filed 9/3/21; Certified for Publication 9/29/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Amador)
----
C093153
In re ALEX MARTI on Habeas Corpus.
(Super. Ct. No. 19HC2112)
Prison inmate Alex Marti filed this petition for writ of habeas corpus challenging
respondent’s (the warden of Mule Creek State Prison) decision adjudicating him guilty of
a prison disciplinary violation for possession of excess property on May 5, 2019. This
was adjudged to be an administrative violation rather than a serious rules violation.
Among other claims, petitioner asserts that his rights under prison regulations were
violated because the officer who adjudicated the violation had prior knowledge and
involvement in a related matter that was considered as evidence at petitioner’s
disciplinary hearing.
Respondent argues this case is moot because petitioner has suffered the punitive
consequences of the decision and any future impact on him is speculative. We conclude
the matter is not moot as this court can afford petitioner meaningful relief. If this court
1
did not intervene, the violation would remain in petitioner’s file and may be considered
by prison officials in making decisions relating to petitioner. Prison regulations
specifically provide for its consideration in imposing subsequent discipline. The
violation may also factor into other prison decisions based simply on the fact that it
remains an adjudicated violation. We further find petitioner’s argument is well taken that
the hearing officer should have been recused from acting in that capacity. Petitioner is
entitled to have the officer’s disciplinary finding vacated.
BACKGROUND
I
January 14, 2019, Rules Violation Report
A little less than four months before the violation at issue here, on January 14,
2019, Correctional Officer J. Brown discovered an electric grill while conducting a
search that included petitioner’s property. Petitioner was issued a notice of a rules
violation for possession of the grill. In connection with this same search, Brown
documented other items of “confiscated contraband” including items such as “excess”
tennis shoes and Tupperware as well as sheets and pillow cases in excess of the state-
issued quantity. As we shall explain, Brown claims to have also verbally instructed
petitioner to bring himself into compliance with respondent’s property limits.
Sergeant M. Rhode, Brown’s reviewing supervisor, signed the rules violation
report prepared by Brown. The matter proceeded to a disciplinary hearing solely on the
issue of the electric grill, however, and petitioner was found guilty of the rules violation.
For reasons not relevant here, that decision was subsequently vacated, and a rules
violation report was reissued. Although Rhode did not sign the reissued report, it
specifically referenced and incorporated the original January 14, 2019, report. The
matter proceeded to a second disciplinary hearing, in which petitioner was again found
guilty of the violation. In adjudicating the matter, the hearing officer referred to the
original January 14, 2019, report as supporting the disciplinary finding.
2
II
May 5, 2019, Rules Violation Report
On May 5, 2019, Officer Brown conducted another search and prepared a report
indicating petitioner was in possession of excess property. It was this search that resulted
in the notice of rules violation that led to the disciplinary adjudication directly at issue
here. Sergeant Rhode did not participate in this search, and a different officer (A. Ford)
signed Brown’s report as supervising officer. But Brown’s rules violation report
specifically referenced the January 14, 2019, search. After noting he had discovered
excessive property, Brown added: “Additionally, on Monday January 14, 2019, I
conducted a Dorm search in E21-D-206 and at the conclusion of my search I gave
[petitioner] a verbal counseling about having excessive amounts of personal property and
ordered him to bring himself into compliance with Property Limits outlined in
Departmental policy.”
Before the matter proceeded to the disciplinary hearing, petitioner filed a CDCR
Form 22 inmate request for interview regarding the property seized on May 5, 2019.
Dissatisfied with the response, petitioner requested supervisor review and the matter was
forwarded to Rhode. Petitioner met with Rhode in person on May 30, 2019. According
to petitioner, the discussion resulted in return of glasses that were seized. Rhode has
prepared a declaration attached to the return acknowledging he spoke with petitioner but
explaining he does not recall the specifics of the conversation. He emphasizes the
purposes of the Form 22 procedure is to allow inmates a means of requesting interviews
and services that are not part of the disciplinary process. Petitioner indicates in response,
by declaration attached to the traverse, that Rhode discussed the matter extensively,
Rhode demonstrated extensive familiarity with the underlying facts, and that their
discussion included the January search as well.
The matter proceeded to a disciplinary hearing on June 8, 2019, in which Sergeant
Rhode served as the hearing officer. Petitioner appeared and participated in the hearing.
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He also provided a statement claiming the rules violation was improper stacking of
discipline and that the January violation was vague, poorly written and ambiguous with
respect to what constituted excess property. Petitioner denied being told by Brown to
dispose of any property.
Sergeant Rhode found petitioner guilty of the violation as charged. In his decision
at the time, Rhode explained that it was based on the cell search receipts documenting
excess property taken on January 14, 2019, the fact that reporting Officer Brown stated
he advised petitioner by receipt and verbally about the excess property at that time, and
the evidence concerning the May 5, 2019, search. Rhode imposed a 30-day revocation of
yard recreation privileges as a penalty and advised petitioner of his right to administrative
appeal.
Related to petitioner’s claim that Sergeant Rhode should not have served as the
hearing officer based on his earlier involvement in reviewing the January 14, 2019,
search, petitioner also asserts Rhode spoke to Officer Brown about the matter before the
hearing. By declaration, Rhode responds that he does not recall any conversation on or
shortly before the hearing but explains that, if he did so, “it would have been as his
supervisor and in regards to our regular duties.” Brown has also prepared a declaration,
which explains: “While I did not speak with Sergeant Rhode about [petitioner’s]
disciplinary hearing or the pending charges, I often spoke to Sergeant Rhode because I
was the security patrol officer every Saturday working in ‘E’ Facility program office and
Sergeant Rhode was my direct supervisor.”
III
Subsequent Procedural History
Petitioner pursued an administrative appeal of the June 8, 2019, disciplinary
finding, and he exhausted the administrative remedies. He filed a petition for writ of
habeas corpus in the superior court, which was denied. He then sought relief in this court
by petition for writ of habeas corpus, and this court issued an order to show cause
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returnable in the superior court. The superior court again denied relief, finding the
petition was moot and that the issues presented did not implicate petitioner’s
constitutional due process rights. Petitioner promptly filed the current petition for writ of
habeas corpus in this court on December 9, 2020.
After soliciting informal opposition to the petition, we issued an order to show
cause returnable in this court. The return was filed on March 30, 2021. Petitioner’s
counsel requested three extensions of time and, after the court indicated no more
extensions would be granted, filed the traverse on August 2, 2021. Having reviewed the
pleadings and exhibits on file with this court, the court finds no evidentiary hearing is
necessary to resolve this petition. (See Cal. Rules of Court, rule 8.386(f).) Considering
those facts that are not in dispute, petitioner is entitled to relief.
DISCUSSION
I
Cognizability Of Claim And Mootness
Respondent claims that petitioner cannot state a claim for violation of his
constitutional due process rights because of the lack of impact on credits impacting
petitioner’s eligibility for release from prison and because the prison decision does not
constitute an atypical and significant hardship. There is some support for respondent’s
position, but that does not end the inquiry.
Habeas corpus may be used to broadly vindicate rights in confinement, including
“not only statutory or constitutional violations, but also violations of administrative
regulations.” (Gomez v. Superior Court (2012) 54 Cal.4th 293, 309, fn. 10.) Respondent
recognizes that petitioner’s claim that it has acted inconsistently with prison regulations is
cognizable, but nevertheless claims it is moot. We disagree.1
1 Considering our conclusion, we need only resolve the question of whether
respondent has violated petitioner’s rights under the applicable prison regulations and not
whether petitioner retains any constitutional due process claim. To the extent In re
5
Respondent argues the matter is moot because the disciplinary decision does not
currently impact petitioner. “A case is moot when the reviewing court cannot provide the
parties with practical, effectual relief.” (City of San Jose v. International Assn. of
Firefighters, Local 230 (2009) 178 Cal.App.4th 408, 417.) The underlying policy behind
the mootness doctrine is that courts decide justiciable controversies and do not normally
render merely advisory opinions. (Ebensteiner Co., Inc. v. Chadmar Group (2006)
143 Cal.App.4th 1174, 1178-1179.) Mootness may be considered alongside the purposes
of habeas corpus and the courts’ concomitant “broad remedial powers” to afford relief.
(See People v. Aragon (1992) 11 Cal.App.4th 749, 760.) The court may dispose of a
habeas petition in the manner justice requires, with the flexibility to correct miscarriages
of justice. (In re Brindle (1979) 91 Cal.App.3d 660, 669-670.) Accordingly, habeas
corpus may even be used to secure a declaration of a petitioner’s rights. (Ibid.)
Respondent points out that the prison regulations do not allow administrative
violations, such as this one, to be used in calculating a defendant’s score for classification
purposes. (See Cal. Code Regs.,2 tit. 15, § 3375.4, subd. (b)(1)(A).) Respondent
otherwise concedes the adjudication remains in his file and may be considered in the
future, for example for purposes of classifying another violation as serious or
administrative. (Tit. 15, §§ 3315, subd. (a)(2)(M), 3326.) But respondent argues the
possibility it will be used to do so is speculative. Respondent uses a progressive
Johnson (2009) 176 Cal.App.4th 290, might be read as indicating an inmate who lacks a
constitutional due process claim cannot otherwise challenge a prison decision as
inconsistent with prison regulations, we reject it. The state Supreme Court is quite clear
that an inmate may assert statutory rights and rights under prison regulations, and its
decision is consistent with longstanding authority. (See Gomez v. Superior Court, supra,
54 Cal.4th at p. 309, fn. 10, and cases cited therein.)
2 Further undesignated regulation references are to title 15 of the California Code of
Regulations (title 15).
6
disciplinary system, in which misconduct that is minor may result in verbal counseling
achieving corrective action. (Tit. 15, § 3312, subd. (a)(1).) Other minor misconduct may
be subject to a written counseling chrono that does not subject the inmate to discipline.
(Tit. 15, § 3312, subd. (a)(2).) Under the circumstances presented, imposition of formal
discipline will inform future decisions relating to whether and to what extent to impose
discipline on petitioner. And petitioner reasonably points out that as an inmate with a life
sentence, he will continue to accumulate property and could face additional consequences
going forward from the disciplinary adjudication.
Moreover, respondent does not acknowledge the full scope of potential prison
decisions in which documented misconduct may come into play. Parole consideration
would be an obvious decision that might typically be impacted if not for the fact the
petitioner is serving a sentence of life without the possibility of parole. It is unclear to
what extent work or programming decisions might also be impacted. Petitioner points
out that an administrative violation may be referred to a classification committee for
consideration if an inmate is determined to be a “program failure.” (Tit. 15, § 3314,
subd. (i).) That was not apparently done at this stage, however. But that is not to say it
might not factor into future decisions or otherwise be considered by a classification
committee in making decisions relating to petitioner. (See tit. 15, § 3044, subd. (c).)
Whatever the full scope of prison decisions that may be affected by adjudication
of an administrative rules violation, it is clear this court can afford petitioner meaningful
relief by vacating Rhode’s June 8, 2019, adjudication of the administrative rules
violation. Vacating the disciplinary finding would ensure a disciplinary determination by
a hearing officer who should not have served in that capacity does not factor into any
future prison decision, including further prison disciplinary hearings. To accept
respondent’s position that the matter is moot would also allow respondent to ignore its
own regulations with respect to inmates such as petitioner because court review would
7
rarely occur before the immediate consequences of the decision have ended. This is
inconsistent with the broad remedial powers afforded a court in habeas corpus.
II
Merits
Petitioner complains that Sergeant Rhode should not have been allowed to serve as
the hearing officer. He also raises various claims concerning violations of his rights at
the hearing. We find it unnecessary to address all of these claims given our conclusion
that petitioner’s rights under prison regulations were violated based on Sergeant Rhode
acting as the hearing officer and adjudicating the disciplinary violation at issue. We turn
to the substance of this claim, which concerns prison regulations barring officers from
acting as the hearing officer.
Sergeant Rhode had no direct involvement with the May 2019 search or report.
However, the disciplinary report for that May search contained the statement of the
reporting officer specifically referencing the January 14, 2019, report that Rhode
reviewed. Moreover, Rhode actually cited the January search and Brown’s claim that he
warned petitioner about excess property as evidence in his decision. Section 3320,
subdivision (h) of title 15 provides: “Staff who observed, reported, classified, supplied
supplemental reports to, or investigated the alleged rule violation; who assisted the
inmate in preparing for the hearing; or for any other reason have a predetermined belief
of the inmate’s guilt or innocence shall not hear the charges or be present during
deliberations to determine guilt or innocence and disposition of the charges.” Penal Code
section 2932, subdivision (c)(1)(A) provides some context for the regulation at issue.
Although the statute specifically refers to “serious disciplinary infractions” rather than
administrative violations, as here, the provision that a hearing officer be “an individual
who shall be independent of the case” helps inform a reasonable construction of the
regulation at issue.
8
Respondent responds that Sergeant Rhode’s role in connection with the January
search did not include observing or investigating petitioner’s conduct at issue in the May
search. Respondent argues that, even assuming it was “somehow related,” “the first rules
violation report that Sergeant Rhode reviewed was vacated and the new disciplinary
report was reviewed and classified by other officers.” Respondent points to the evidence
that even though petitioner was ultimately adjudicated guilty of the violation, it was only
after a second hearing. As noted above, the initial finding was vacated and the matter
was ordered reheard.
But the fact remains that the original report that was prepared following the search
in January was immediately reviewed by Sergeant Rhode. If Rhode had any issue or
concern relating to the search, he would presumably have raised it with Brown at that
time. Rehearing the matter does not change the fact that it was the January search and
report prepared by Brown, which Rhode reviewed, that initially followed that search.
The January report continued to be referenced at rehearing of the matter, and the
underlying search was likewise referenced at the time petitioner was later adjudicated of
the violation at issue here.
In fact, the January search and claim by Brown that he warned petitioner about
excessive property informed how the current violation was treated, resulting in petitioner
being charged with and adjudicated for an administrative rules violation. This is
consistent with prison regulations, which give the hearing officer the authority to
determine the seriousness of the misconduct, including his or her discretion to dismiss a
formal rules violation and report alleged misconduct as a custodial counseling chrono.
(See tit. 15, § 3314, subds. (f)-(h).) Accordingly, the earlier warning by Brown remained
relevant to what Sergeant Rhode was considering at the hearing at issue. It was key
evidence at the hearing and Rhode credited it, in the process, rejecting petitioner’s claims
challenging what Brown had reported. The fact that Rhode also discussed the case with
petitioner himself in advance of the disciplinary adjudication, in response to his Form 22
9
request, is likewise problematic under the particular circumstances of this case, taking
into account his other involvement.
Finally, while we do not directly reach petitioner’s claim that Rhode and Brown
improperly spoke about the matter at issue before the hearing, their relationship and the
communications between these officers cannot be ignored. They acknowledge regularly
speaking given that Rhode has served as Brown’s supervisor. These conversations
continued subsequent to the January search. The relationship between the officers would
appear insufficient, in itself, to bar Rhode from serving as a hearing officer. But it does
tend to bolster petitioner’s claim that Rhode should not have been permitted to serve as
the hearing officer given his involvement in reviewing Brown’s January report and
search.
In short, there is some evidence that Rhode “investigated” evidence directly
relevant to adjudication of the violation at issue here. This reasonably falls within the
provision of title 15, section 3320, subdivision (h), referring to: “Staff who observed,
reported, classified, supplied supplemental reports to, or investigated the alleged rule
violation . . . .” But even assuming for the sake of argument that Rhode’s conduct did not
meet this specific criterion, it unequivocally meets the catchall provision in the same
regulation. Rhode’s involvement in reviewing the January report that was central to
adjudication of the violation at issue coupled with the other facts is such that “for any
other reason,” one can reasonably conclude he had “a predetermined belief of the
inmate’s guilt or innocence” of an administrative rules violation. (Ibid.) Given Rhode’s
involvement, it appears a reasonable person in his position would likely have credited
Officer Brown’s account of the January search before hearing the disciplinary violation at
issue here. Likewise, the reasonable consequence of this was that Rhode would have
been disinclined to consider the evidence petitioner presented and exercise his discretion
to dismiss the violation and report it as a counseling chrono. Although respondent
suggests we defer to its own interpretation of the regulation as within its special
10
expertise, we find nothing that would cause us to depart from the reasonable
interpretation we afford the plain language of the regulation as applied in the current
matter. (Cf. Capen v. Shewry (2007) 155 Cal.App.4th 378, 390-393.)
DISPOSITION
The disciplinary adjudication of June 8, 2019, by hearing officer M. Rhode is
reversed and respondent is directed to remove the record of this adjudication from
petitioner’s file.
/s/
Robie, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Krause J.
11
Filed 9/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Amador)
C093153
In re ALEX MARTI on Habeas Corpus.
(Super. Ct. No. 19HC2112)
ORDER CERTIFYING
OPINION FOR PUBLICATION
THE COURT:
The opinion of this court filed September 3, 2021, was not certified for publication
in the Official Reports. For good cause it now appears the opinion should be published in
its entirety in the Official Reports and it is so ordered.
BY THE COURT:
/s/
Robie, Acting P. J.
/s/
Hoch, J.
/s/
Krause J.
1
EDITORIAL
Petition for writ of habeas corpus challenging a disciplinary adjudication by the
Department of Corrections and Rehabilitation. Disciplinary adjudication reversed with
directions.
Susan Jordan, under appointment by the Court of Appeal, for Petitioner..
Xavier Becerra, Attorney General and Heather M. Heckler, Deputy Attorney General, for
Respondent.
2