In re Cabrera

Filed 10/29/12

IN THE SUPREME COURT OF CALIFORNIA

In re ELVIN CABRERA, )

) S197283

on Habeas Corpus. )

____________________________________) Ct.App. 5 F059511

Prison regulations promulgated by the California Department of

Corrections and Rehabilitation (CDCR) set forth the procedures and substantive

requirements for validating an inmate as a member or associate of a prison gang.

Because gangs “present a serious threat to the safety and security of California

prisons” (Cal. Code Regs., tit. 15, § 3023, subd. (b)), validation of an inmate as a

gang member or associate can result in the inmate‟s placement in a security

housing unit (SHU).

The current dispute arose when the CDCR validated petitioner Elvin

Cabrera as a gang associate—i.e., “an inmate . . . who is involved periodically or

regularly with members or associates of a gang.” (Cal. Code Regs., tit. 15, § 3378,

subd. (c)(4) (hereafter section 3378)). Under section 3378, validation of an inmate

as an “associate” requires at least three “independent source items of

documentation indicative of association” with persons who have been classified as

gang members or associates. (Ibid.) At least one of the source items must be a

“direct link” to a current or former gang member or associate. (Ibid.)

The question presented for our review, which involves the meaning of this

prison regulation, is very narrow. In essence, the CDCR contends that the Court

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of Appeal erred by independently interpreting the scope of the regulation‟s

requirement of a “direct link” between the inmate and a gang member or associate

with respect to one category of source items—a category called “Association”

(§ 3378, subd. (c)(8)(G))—instead of deferring to the CDCR‟s interpretation of its

own regulation.1 For the reasons that follow, we agree the Court of Appeal failed

to accord due deference to the CDCR‟s interpretation of its own regulations, and

therefore reverse the judgment awarding habeas corpus relief and remand the

matter to the Court of Appeal for further proceedings.

BACKGROUND

In 2003, Cabrera was convicted of robbery, burglary, receiving stolen

property, and possession of drug paraphernalia. He was sentenced to prison for 62

years to life. He is incarcerated at the California Correctional Institution at

Tehachapi.

On May 13, 2008, Cabrera was officially identified—or “validated,” in the

words of the CDCR regulation (§ 3378, subd. (c)(4))—as an associate of the

Mexican Mafia prison gang. The validation was based on the discovery in his

prison cell of several photocopied drawings containing symbols distinctive to the

gang. Two of the drawings were signed by validated affiliates2 of the Mexican

Mafia.

1 Section 3378 uses the term “association” in two different contexts: first in

subdivision (c)(4) to explain that “identification” as an “associate” requires at least

three independent source items of documentation “indicative of association,” and

later in subdivision (c)(8)(G) as the label (“Association”) for one category of

source items. In this opinion, we address the term‟s meaning only in the latter

context.

2 Like the parties, we use the term “affiliate” to refer collectively to gang

members and associates.

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Cabrera challenged his validation through the CDCR administrative appeal

process, but his appeal was denied. Cabrera then filed a petition for writ of habeas

corpus in Kern County Superior Court. The superior court denied the petition,

finding that his validation as a gang associate was supported by three source items

of gang validation with two direct links to gang affiliates.

Cabrera filed an original petition in the Court of Appeal, which issued an

order to show cause and then granted relief in a published opinion. The Court of

Appeal‟s decision to grant relief rested on a disagreement with the CDCR over the

interpretation of the CDCR‟s own regulation. In the view of the Court of Appeal,

the regulation providing that at least one source item indicative of association with

validated gang affiliates be a “direct link” to a current or former validated gang

affiliate (§ 3378, subd. (c)(4)) required in these circumstances a “reciprocal (i.e.,

mutual or two-way) interaction between the two individuals forming the

relationship.” Having found insufficient evidence of such a reciprocal

relationship, the Court of Appeal granted the writ and ordered the CDCR to

expunge Cabrera‟s validation as an associate of the Mexican Mafia gang and to

cease housing Cabrera in the SHU to the extent the assignment had been based on

the gang validation. In light of its disposition, the Court of Appeal found it

unnecessary to consider Cabrera‟s other challenges to the validation order.

We granted review to resolve a question of law concerning the deference

owed to the CDCR in interpreting its own regulations governing the identification

of inmates as prison-gang affiliates.

DISCUSSION

It is a “ „black letter‟ proposition” that there are two categories of

administrative rules—quasi-legislative rules and interpretive rules—and that the

distinction between them derives from their different legal foundations and

ultimately from the constitutional doctrine of the separation of powers. (Yamaha

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Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 10 (Yamaha).)

Quasi-legislative rules are those that the agency promulgates as part of the

lawmaking power the Legislature has delegated to it, and are subject to “very

limited” review. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1012.) “ „The

courts exercise limited review of legislative acts by administrative bodies out of

deference to the separation of powers between the Legislature and the judiciary, to

the legislative delegation of administrative authority to the agency, and to the

presumed expertise of the agency within its scope of authority.‟ ” (San Francisco

Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Cal.4th

653, 667.) Rules that interpret a statute, on the other hand, receive less judicial

deference. (Sara M., supra, 36 Cal.4th at p. 1012.)

The Legislature has “provided no specific guidance regarding how

prisoners should be classified” (In re Jenkins (2010) 50 Cal.4th 1167, 1173), but

has instead delegated lawmaking power to the CDCR to “prescribe and amend

rules and regulations for the administration of the prisons.” (Pen. Code, § 5058;

see also id., § 5068.) “By enacting these statutes, „[t]he Legislature has given the

[secretary] broad authority for the discipline and classification of persons confined

in state prisons. [Citations.] This authority includes the mandate to promulgate

regulations governing administration, classification, and discipline.‟” (In re

Jenkins, supra, 50 Cal.4th at p. 1173.)

Section 3378 (the regulation at issue here) is a quasi-legislative rule

promulgated by the CDCR to identify and manage inmates with a prison-gang

affiliation. Because the CDCR, like any agency granted this sort of substantive

lawmaking power, is “truly „making law,‟ [its] quasi-legislative rules have the

dignity of statutes. When a court assesses the validity of such rules, the scope of

its review is narrow. If satisfied that the rule in question lay within the lawmaking

authority delegated by the Legislature, and that it is reasonably necessary to

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implement the purpose of the statute, judicial review is at an end.” (Yamaha,

supra, 19 Cal.4th at pp. 10-11.) “The substitution of the judgment of a court for

that of the administrator in quasi-legislative matters would effectuate neither the

legislative mandate nor sound social policy.” (Pitts v. Perluss (1962) 58 Cal.2d

824, 835.)

No party disputes that section 3378 is within the scope of the authority

conferred by the Legislature on the CDCR. Rather, the question here is how to

interpret one of the provisions in section 3378 governing validation of an associate

of a prison gang. The Court of Appeal and the CDCR have differing views as to

the interpretation of this provision of section 3378. But resolution of their dispute

must acknowledge one simple observation: “we defer to an agency‟s

interpretation of its own regulations, particularly when the interpretation

implicates areas of the agency‟s expertise.” (Environmental Protection

Information Center v. California Dept. of Forestry & Fire Protection (2008) 44

Cal.4th 459, 505.)

The text of section 3378, subdivision (c)(4) provides: “An associate is an

inmate/parolee or any person who is involved periodically or regularly with

members or associates of a gang. This identification requires at least three (3)

independent source items of documentation indicative of association with

validated gang members or 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

a direct link to a current or former validated member or associate of the gang, or to

an inmate/parolee or any person who is validated by the department within six (6)

months of the established or estimated date of activity identified in the evidence

considered.” Section 3378 lists 13 different categories of source items indicative

of association with validated gang affiliates, including an inmate‟s admission of

involvement with the gang, tattoos and symbols distinctive to the gang, written

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material or communications evidencing gang activity, the inmate‟s association

with validated gang affiliates, and offenses reflecting gang affiliation. (§ 3378,

subd. (c)(8).)

In this case, the source items underlying the CDCR‟s validation of Cabrera

as a gang associate consisted of several photocopied drawings containing symbols

assertedly distinctive to the Mexican Mafia. Two drawings depict armed women

(one with a spear, one with a revolver) and contain a “Matlactomei” symbol (the

Mayan symbol for 13), which consists of two vertical lines and a vertical column

of three dots. The number 13 refers to “M,” the 13th letter in the alphabet, and is

used as a designation for the Mexican Mafia gang. (See People v. Gonzalez

(2005) 126 Cal.App.4th 1539, 1544.) One of these drawings is signed by a

validated associate of the Mexican Mafia. Another drawing depicts a female

Mesoamerican warrior armed with a sword and shield as well as a bow and quiver

of arrows. An “eternal war shield,” which demonstrates loyalty to the Mexican

Mafia, is on her chest. A fourth drawing, which features Mesoamerican and

imprisonment themes, is signed by a validated member of the Mexican Mafia.

The prison‟s institutional classification committee concluded that the drawings

depicting the gang symbols qualified as source items under the “Tattoos and

symbols” category of the regulation (§ 3378, subd. (c)(8)(B))3 and that the signed

drawings qualified as source items under the “Association” category (id., subd.

3 “Tattoos and symbols. Body markings, hand signs, distinctive clothing,

graffiti, etc., which have been identified by gang investigators as being used by

and distinctive to specific gangs. Staff shall describe the tattoo or symbol and

articulate why it is believed that the tattoo or symbol is used by and distinctive of

gang association or membership. Staff shall document and disclose this

information to the inmate/parolee in a written form that would not jeopardize the

safety of any person or the security of the institution.” (§ 3378, subd. (c)(8)(B).)

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(c)(8)(G)).4 The committee further found that Cabrera‟s possession of two

drawings signed by validated Mexican Mafia affiliates directly linked him to those

gang affiliates.

The Court of Appeal accepted the CDCR‟s definition of “direct link”

(§ 3378, subd. (c)(4)) as encompassing a connection that is “ „without interruption

or diversion‟ and „without any intervening agency or step.‟ ” The Court of Appeal

also accepted the CDCR‟s definition of “association with validated gang affiliates”

(§ 3378, subd. (c)(8)) to mean “a „loose relationship as a partner, . . . colleague,

friend, companion, or ally‟ with a validated gang affiliate.” This connection could

be established, according to the Court of Appeal, by “information related to the

inmate‟s loose relationship with a gang affiliate.”

But the Court of Appeal departed from the CDCR‟s construction of the

regulation when the court purported to “combine the definitions and reach a

conclusion as to what is meant by „direct link‟ when the source item used is the

inmate‟s „association with validated gang affiliates‟ ”: “The relationship, whether

characterized as one of partners, colleagues, friends, companions, or allies, must

involve reciprocal (i.e., mutual or two-way) interaction between the two

individuals 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.” The Court of Appeal then relied on the lack of

evidence of “a mutual relationship, even a loose one,” to conclude that the CDCR

4 “Association. Information related to the inmate/parolee‟s association with

validated gang affiliates. Information including addresses, names, identities and

reasons why such information is 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 person

or the security of the institution.” (§ 3378, subd. (c)(8)(G).)

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had failed to establish a direct link between Cabrera and any validated gang

affiliate and, on that basis, granted relief.

In announcing its interpretation of the CDCR regulation, the Court of

Appeal acknowledged that the CDCR had construed the regulation to have a

broader scope. In the CDCR‟s view, the regulation‟s requirement of a direct link

does not require evidence of a reciprocal or two-way interaction between the

inmate and the validated gang affiliate in these circumstances. Yet, in rejecting

the CDCR‟s interpretation, the Court of Appeal offered neither deference to the

agency‟s view nor acknowledgement of the agency‟s expertise in prison

management. This was error.

“As a general matter, courts will be deferential to government agency

interpretations of their own regulations, particularly when the interpretation

involves matters within the agency‟s expertise and does not plainly conflict with a

statutory mandate.” (Environmental Protection Information Center v. California

Dept. of Forestry & Fire Protection, supra, 44 Cal.4th at p. 490.) The question of

how best to identify gang affiliates in the prison setting “is a judgment call, and we

will not disturb the agency‟s determination without a demonstration that it is

clearly unreasonable.” (Ibid.)

The Court of Appeal never contended that the CDCR‟s interpretation of

section 3378 was clearly unreasonable. It instead chided the CDCR for appearing

to rely “on an overly broad interpretation of our opinion in In re Furnace [(2010)

185 Cal.App.4th 649],” which, the Court of Appeal contended, did not address

“whether mutuality or reciprocity was inherent in the concept of „association.‟ ”

Because that issue had not been decided in Furnace, the Court of Appeal

concluded that “the Furnace decision does not prevent us from interpreting

„association‟ to mean a mutual relationship” when a direct link is sought to be

established through the source item category of “association.”

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The issue before the Court of Appeal, though, was not whether a prior

judicial decision had compelled the CDCR‟s interpretation of the regulation, but

(rather) whether the construction offered by the CDCR, the agency that had

promulgated the regulation and was charged with enforcing it, was clearly

unreasonable.

Cabrera, by contrast, does argue that the CDCR‟s proffered interpretation is

clearly unreasonable. He relies on In re Andrade (2006) 141 Cal.App.4th 807, but

the case is clearly distinguishable. In that case, the Court of Appeal relied on the

“plain language” of the regulation to determine that the interpretation proffered by

the Board of Prison Terms (now the Board of Parole Hearings) was “clearly

erroneous.” (Andrade, supra, 141 Cal.App.4th at pp. 815, 817.) The regulation at

issue directed the Board to consider “whether „[t]he prisoner has made realistic

plans for release or has developed marketable skills that can be put to use upon

release.‟ ” (Id. at p. 815, quoting Cal. Code Regs., tit. 15, § 2402, subd. (d)(8).)

The Board had required the prisoner (Andrade) to prepare California parole plans,

even though Andrade conceded he had entered the country illegally, planned to

return to his native country, and there was a “great probability” he would be

expeditiously deported once released. (Andrade, at p. 816.) After consulting

dictionary definitions of “realistic,” the Court of Appeal concluded that the

contingency of Andrade‟s remaining in the United States could not reasonably be

deemed realistic, given that he could not remain here legally and no employer

could legally employ him. (Id. at pp. 816-817.) In short, the Court of Appeal

found it could not be realistic to “require the prisoner to plan for the contingency

that the government might fail to do its job of deporting him. . . . It is self-evident

that the government may not require as a condition of parole that someone arrange

to violate the law.” (Id. at p. 817.)

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Here, by contrast, nothing in the plain language of section 3378 requires

proof the inmate formed a reciprocal or mutual relationship with a validated gang

affiliate in order to establish a direct link, via the source item category of

association, with that gang affiliate. The Court of Appeal appears to suggest that

such a requirement would nonetheless be necessary as a matter of policy, for

“[o]therwise, a validated gang affiliate could create such a relationship with an

inmate unilaterally, without any assent or mutuality on the part of the inmate.”

But the CDCR has not claimed the requisite connection could be formed by

unilateral conduct by the validated gang affiliate. Rather, as the Court of Appeal

acknowledges in the very next sentence of its opinion, the connection

contemplated by the CDCR is “unilateral action by an inmate.”

Moreover, the CDCR‟s policy of relying on unilateral inmate conduct to

satisfy the direct link to a validated gang affiliate is not clearly unreasonable.

Gangs “present a serious threat to the safety and security of California prisons.”

(Cal. Code Regs., tit. 15, § 3023, subd. (b).) “ „Prison gangs are criminal

organizations that must communicate with their affiliates to conduct gang

business, ensure group solidarity, and recruit and train new affiliates. Indeed, one

of the primary duties of a gang affiliate is to establish a line of communication

between himself and other gang affiliates.‟ ” (In re Furnace, supra, 185

Cal.App.4th at p. 660.) Even though prison officials “restrict correspondence

between inmates, and are especially restrictive of the correspondence of validated

gang affiliates housed in a security housing unit” (ibid.), the declaration of Everett

W. Fischer, an expert in the Mexican Mafia prison gang, explained that gang

affiliates attempt to evade detection by using coded and hidden messages in

drawings and photos. Moreover, a gang affiliate may collect or keep a copy of

such artwork to demonstrate his association with that validated gang member or

associate. “As a result,” the expert declared, “something seemingly innocuous as

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a drawing can promote gang activity among inmates, which undermines the order

and security of the institution.” A requirement that prison officials demonstrate

reciprocal interaction to establish a direct link between the inmate and a validated

gang affiliate thus could seriously impair efforts to detect and prevent gang

activity in prisons.

Because the Court of Appeal‟s grant of habeas relief rested on the

erroneous assumption that a direct link in this context required proof Cabrera had

a mutual relationship with a validated gang affiliate, we reverse the judgment.

Whether the evidence is sufficient, under the regulation as properly construed, to

uphold the validation of Cabrera as a gang associate, and whether the validation

and placement in the SHU otherwise violates any of Cabrera‟s rights, is for the

Court of Appeal to decide on remand in the first instance.

DISPOSITION

The judgment of the Court of Appeal is reversed, and the matter is

remanded for further proceedings consistent with this opinion.

BAXTER, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.

KENNARD, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Cabrera

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 198 Cal.App.4th 1548

Rehearing Granted

__________________________________________________________________________________

Opinion No. S197283

Date Filed: October 29, 2012

__________________________________________________________________________________

Court:

County:

Judge:

__________________________________________________________________________________

Counsel:

Elvin Cabrera, in pro. per.; Michael Satris, under appointment by the Supreme Court, 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, Dane R. Gillette, Chief Assistant

Attorney General, Donald E. DeNicola, Deputy State Solicitor General, Julie L. Garland and Jennifer A.

Neill, Assistant Attorneys General, Anya M. Binsacca, Amy Daniel, Jessica N. Blonien and Henry J. Valle,

Deputy Attorneys General, for Respondent Warden Kim Holland.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael Satris

Post Office Box 337

Bolinas, CA 94924

(415) 868-9209

Amy Daniel

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 322-6105