Opinion
D073570
12-06-2018
In re JOSE LUIS VALDEZ on Habeas Corpus.
Aaron Joseph Schechter, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Amanda J. Murray and Gregory J. Marcot, Deputy Attorneys General, for Respondent California Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. ORIGINAL PROCEEDINGS on a petition for writ of habeas corpus seeking relief other than a release from custody. Respondent's motion to dismiss denied; petition granted. Aaron Joseph Schechter, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Amanda J. Murray and Gregory J. Marcot, Deputy Attorneys General, for Respondent California Department of Corrections and Rehabilitation.
Jose Luis Valdez is currently serving a state prison sentence for life without the possibility of parole. He wishes to visit his minor children, including 15-year-old C. and 9-year-old J. Valdez filed a petition for writ of habeas corpus to challenge restrictions on minor visitation imposed by the California Department of Corrections and Rehabilitation (CDCR). He argues he was not arrested, convicted of, or sentenced on an enumerated offense against a "minor" or "child" when he choked his pregnant girlfriend in 2009. Consequently, he claims the restrictions are invalid under section 3173.1 of title 15 of the California Code of Regulations (regulation 3173.1). We agree with Valdez and grant the requested relief. Contrary to respondent CDCR's claim, the petition is not moot or invalidated by a failure to exhaust administrative remedies.
FACTUAL AND PROCEDURAL BACKGROUND
While released on parole in March 2009, Valdez choked his girlfriend and threw her to the ground. At the time, Valdez's girlfriend was pregnant with his child. The police report noted that although the girlfriend had a minor child from a prior relationship who lived with her, that child was not present during the domestic violence incident.
A week later, the parole administrator recommended a parole hold, noting Valdez would be charged with battery of a spouse, criminal threats, and cruelty to a child. During the April 2009 parole revocation hearing, the Board of Parole Hearings (BPH) found probable cause to charge him with all three offenses, revoked parole, and sentenced him to a 12-month prison term. BPH indicated, contrary to the police report, that the "above violent incident occurred in front of a minor."
Valdez was ultimately charged with five offenses stemming from the incident: corporal injury of a spouse or roommate (Pen. Code, § 273.5, subd. (a), count 1), making criminal threats (§ 422, subd. (a), count 2), and three counts of false imprisonment by violence (§§ 236, 237, subd. (a), counts 3-5). He pled guilty to a single count of false imprisonment by violence (§§ 236, 237, subd. (a), count 3) and admitted a strike (§§ 667, subds. (b)-(i), 668, 1170.12) and to serving a prior prison term (§ 667.5, subd. (b)). At his sentencing in August 2009, the court imposed a four-year prison term and awarded custody and conduct credits.
Further statutory references are to the Penal Code unless otherwise indicated.
In a previous opinion, we reversed certain orders made at sentencing but otherwise affirmed the judgment. (People v. Valdez (May 25, 2010, D055970) [nonpub. opn.].)
Valdez was delivered to Chuckawalla Valley State Prison and had three contact visits with J., the child who was a fetus at the time of the 2009 incident. Due to rules violations while in custody, Valdez was brought before the unit classification committee to determine whether he would be found a "program failure." (Cal. Code Regs., tit. 15, § 3000; see generally In re Jenkins (2010) 50 Cal.4th 1167, 1173-1174 (In re Jenkins) [describing prisoner classification review process].) During that February 2010 hearing, Valdez requested an overnight family visit. (Cal. Code Regs., tit. 15, § 3177.) The classification committee took the opportunity to review minor visitation restrictions.
Relevant to the classification committee's analysis and to our review is the scope of regulation 3173.1, titled "Visiting Restrictions with Minors." The committee recognized there was "no report for injuries sustained to the fetus" from the 2009 incident. It nevertheless limited all of Valdez's visits with minors to "non-contact status" under regulation 3173.1 because the BPH had found probable cause to charge Valdez with child cruelty. On the same day as the classification committee's hearing, a correctional officer acting as a "recorder" entered a CDCR Form 128B chrono that further barred Valdez from visiting J., the child who was a fetus during the 2009 incident.
We quote regulation 3173.1 in full in the discussion.
Valdez filed an inmate administrative appeal in July 2010 to challenge the minor visitation restrictions. He pointed out that he had never been convicted of child cruelty in relation to the 2009 incident and had pled guilty to a single count of false imprisonment. Valdez's appeal was denied in October 2010 at the second level of review. The examiner determined that although Valdez had not been convicted of child cruelty, he could be denied contact visits pursuant to subdivision (e) of regulation 3173.1 because he had been arrested for that offense. Because the BPH had found probable cause of child cruelty, the examiner concluded the committee had appropriately found that Valdez "would pose a threat of harm to minor visitors." Valdez did not seek third-level review at that time. (Cal. Code Regs., tit. 15, § 3084.1, subd. (b) [administrative appeals are exhausted at the third level of review].) He was released on parole in May 2012.
In July 2015, Valdez was convicted by jury of two murders committed in 2002 and 2005 and sentenced to life without parole. He was delivered to Calipatria State Prison in December 2015 and appeared before the classification committee for an initial review in January of the following year. The committee found that Valdez had been arrested previously for willful child cruelty, but pled guilty to false imprisonment.
Valdez submitted an inmate administrative appeal in October 2016 challenging prison officials' refusal to restore visitation with his children. He reiterated that he did not fit the criteria for complete denial of visitation with J. or denial of contact visits with all of his children under any subdivision of regulation 3173.1. The appeal was cancelled as duplicative of the 2010 appeal. Valdez challenged the cancellation to the second level of review, which rejected his appeal in December 2016. A third level of review examiner affirmed the cancellation in March 2017.
In November 2017, Valdez filed a petition for writ of habeas corpus in the superior court. (Super. Ct. Imperial County, 2017, No. EHC000103.) The trial court concluded that Valdez "exhausted his administrative remedies at the Third Level of Review on March 21, 2017." Nevertheless, it denied the petition as untimely given the eight-month filing delay and failure to use required judicial council forms.
CDCR does not challenge the timeliness of the habeas petition in this proceeding. Valdez is correct that the bar does not apply when a habeas petition involves the interpretation of a prison regulation and any delay in filing would not prejudice CDCR or the People. (In re Espinoza (2011) 192 Cal.App.4th 97, 103-104 [interpreting regulation on family visitation].)
Valdez filed an original petition for writ of habeas corpus before this court in February 2018. He seeks relief invalidating the visitation restrictions imposed under section 1202.05 and regulation 3173.1, arguing he has not been arrested, convicted of, or sentenced on a relevant crime involving a minor. We issued an order to show cause why relief should not be granted, appointed counsel to represent Valdez, and requested supplemental briefing. Appointed counsel filed a supplemental petition.
While the petition was pending, the classification committee held a hearing in June 2018. The committee noted that Valdez's petition for habeas relief was under review. It reiterated that one basis for his 2009 arrest was "Willful Cruelty to [a] child" and that the BPH had found "good cause" for that charge. But it conceded "there was no evidence to suggest there was any harm to the unborn child or nothing to suggest there were any medical complications [from the incident] once the child was born." The committee further observed that Valdez had "displayed signs of change and self-restraint" in avoiding disciplinary action. Because "visiting is a custodial supervised activity," the committee lifted the visitation restrictions finding Valdez "does not pose a continued risk if allowed to visit with his minor children." Pursuant to that decision, a correctional counselor lifted the restriction on visiting J. and allowed contact visits with all minor children.
CDCR moved to dismiss Valdez's habeas petition as moot, claiming that all the requested relief had been obtained. Valdez opposed the motion, arguing that CDCR (1) continued to assert the restrictions could validly be imposed, and (2) could reimpose them at any time. CDCR replied that since June, Valdez had made contact visits with all of his children, rendering the petition moot. We directed CDCR to file a return and agreed to consider the motion concurrently with the petition on the merits.
DISCUSSION
"[A] writ of habeas corpus may be used to attack the conditions of confinement that occur after a conviction, even if one is not challenging the validity of the conviction itself." (Robin J. v. Superior Court (2004) 124 Cal.App.4th 414, 427 (Robin J.).) Valdez's petition seeks to challenge restrictions imposed on minor visitation. He argues these restrictions may not validly be applied to him based on the 2009 incident.
Valdez's petition and CDCR's motion to dismiss present three questions for review. First, was the petition mooted by the classification committee's June 2018 decision restoring contact visits with Valdez's children? Second, is habeas relief barred by Valdez's failure to exhaust administrative remedies during an earlier period of incarceration? And finally, if these hurdles are overcome, is Valdez entitled to the requested habeas relief? Addressing these questions in turn, we conclude the petition is not moot or invalid for failure to exhaust, and we grant Valdez the relief he requests. 1. The Petition Is Not Moot.
CDCR argues that Valdez's petition is "irrefutably moot" due to the classification committee's June 2018 decision to restore contact visits with all of Valdez's minor children. In response, Valdez argues that an issue is not moot where a party voluntarily ceases an illegal practice but could resume it at any time. Valdez points out that the classification committee continues to suggest the minor visitation restrictions were valid, even if it chooses not to currently enforce them. He notes that the committee's decision to restore minor visitation "still relies on the flagrantly inaccurate statement that petitioner 'was arrested for . . . Willful Cruelty to child." Moreover, he suggests CDCR is not enforcing the restrictions because we issued an order to show cause, to avoid possible invalidation of the restrictions imposed. Valdez has the better argument.
" 'It is well settled that the duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it [citation].' " (In re J.G. (2008) 159 Cal.App.4th 1056, 1062 (J.G.).) "Although courts generally avoid issuing advisory opinions on abstract propositions of law, they 'should not avoid the resolution of important and well litigated controversies arising from situations which are 'capable of repetition, yet evading review.' " (Ibid.) One such situation is "where a party voluntarily ceases an allegedly illegal practice but is free to resume it at any time." (Id. at p. 1063 [citing Cook v. Craig (1973) 55 Cal.App.3d 773, 780 for the proposition that a unilateral change " 'is also unilaterally rescindable' "]; see Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 929 (Marin) [" 'the voluntary discontinuance of alleged illegal practices does not remove the pending charges of illegality from the sphere of judicial power or relieve the court of the duty of determining the validity of such charges where by the mere volition of a party the challenged practices may be resumed' "].)
In J.G., supra, 159 Cal.App.4th 1056, a defendant incarcerated outside California as part of the Federal Witness Protection Program challenged CDCR's denial of his request to appear in person rather than telephonically at parole hearings. (Id. at p. 1061.) After the order to show cause issued, CDCR agreed to allow in-person appearances and sought to dismiss the habeas petition as moot. (Ibid.) The court denied the motion. (Id. at p. 1063.) CDCR's "vaguely worded assurance" that it would arrange a physical appearance at his next parole hearing, and the BPH's clarification that it would continue to facilitate physical appearances going forward did not render the challenge moot. "In spite of respondent's carefully worded assurances," the court concluded the issues raised were " ' "capable of repetition, yet evading review" ' by him or others who are similarly situated." (Ibid.)
A little further removed is Marin, which involved cross-complaints for declaratory relief addressing the validity of a county board's bylaws. (Marin, supra, 16 Cal.3d at p. 924.) The challenged bylaw denied nonmembers access to a real estate multiple listing service. (Ibid.) While the appeal was pending, the board deleted the bylaw and argued the case was rendered moot. (Id. at p. 928.) The Supreme Court disagreed, noting there was "no assurance that the board will not reenact [the rule] in the future." (Id. at p. 929.)
We follow J.G.'s approach. In successive hearings the classification committee repeated the claim that Valdez was arrested for child cruelty. Although the committee agreed after we issued an order to show cause to allow contact visits with all of his minor children, it reached that result based on Valdez's good behavior. Valdez asked for relief to invalidate the minor visitation restrictions imposed by CDCR pursuant to regulation 3173.1. CDCR allowed visits for unrelated reasons while continuing to assert that Valdez was previously arrested for child cruelty. On these facts, the committee did not deliver "what [Valdez] asked for in his petition."
We disagree with CDCR that the petition rests on "unsupported speculation about what might or might not happen in the future." The question is whether CDCR is correct that it can restrict Valdez from visiting his minor children, even if it chooses not to do so currently. (See J.G., supra, 159 Cal.App.4th at p. 1063; Marin, supra, 16 Cal.3d at p. 924.) Under these circumstances, the petition is not moot. 2. Valdez's Petition Is Not Barred By The Exhaustion Doctrine.
For the same reason, CDCR's authorities are distinguishable. Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158 addressed the doctrine of ripeness, concluding a "general challenge on statutory and constitutional grounds" to coastal access policies did not present a sufficiently concrete factual context to allow judicial resolution. (Id. at pp. 169-170.) In re Drake (1951) 38 Cal.2d 195, 197 found a habeas petition "premature" where it sought relief from uninitiated extradition proceedings to Mississippi and the petitioner was still serving a California sentence. As the court explained, "[h]abeas corpus does not lie to challenge the validity of an anticipated future action nor to secure declaratory relief in advance thereof." (Id. at p. 198.)
CDCR next argues that the petition fails because Valdez failed to exhaust his administrative remedies. On the record before us, we disagree.
It is a well settled rule of California jurisprudence that a party must exhaust administrative remedies before resorting to the courts. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321; Coachella Valley Mosquito & Vector Control Dist. v. Cal. Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080.) "Under this rule, an administrative remedy is exhausted only upon 'termination of all available, nonduplicative administrative review procedures." (Coachella, at p. 1080.) This exhaustion requirement " 'applies to grievances lodged by prisoners.' " (In re Dexter (1979) 25 Cal.3d 921, 925.) The failure to exhaust administrative remedies is a jurisdictional bar to a petition for habeas corpus. (Wright v. State (2004) 122 Cal.App.4th 659, 665-666 (Wright); In re Muszalski (1975) 52 Cal.App.3d 500, 508.)
Valdez challenges minor visitation restrictions imposed under regulation 3173.1. Subdivision (g) of that regulation directs inmates wishing to challenge the restrictions imposed to use the appeal process described in sections 3084 through 3084.9 of title 15 of the California Code of Regulations. Those provisions, in turn, establish three levels of formal review; an inmate exhausts his or her administrative remedies at the third level. (Cal. Code Regs., tit. 15, § 3084.1, subd. (b); Wright, supra, 122 Cal.App.4th at p. 667 [malpractice claims failed because inmate did not complete third level of review].)
Citing Wright, CDCR argues that Valdez failed to exhaust administrative remedies because he did not challenge the second level ruling in 2010 by pursuing a third level of review. Valdez responds that he completed the third level of review in 2017, when the examiner affirmed the cancellation of his appeal and stated he had exhausted administrative remedies. Alternatively, he argues that the classification committee's 2016 decision to restrict visitation was a new decision resting on grounds not stated in the 2010 decision. As such, CDCR's decision to cancel the 2016 appeal was arbitrary and capricious because it did not duplicate the previous appeal.
The first contention fails. The second and third level reviews in 2017 centered on the cancellation of Valdez's 2016 appeal. The regulations explain that "a cancellation or rejection decision does not exhaust administrative remedies." (Cal. Code Regs., tit. 15, § 3084.1, subd. (b).
Instead we accept Valdez's second argument. Although "jurisdictional" in nature (Wright, supra, 122 Cal.App.4th at p. 664), the exhaustion doctrine " 'has not hardened into inflexible dogma' " and "contains its own exceptions." (In re Hudson (2006) 143 Cal.App.4th 1, 7.) The parties do not cite, nor have we found, any instance where an inmate's failure to challenge certain restrictions during an earlier period of incarceration forecloses review of similar restrictions imposed during a later custodial period. Were we to adopt CDCR's view, Valdez, who is now serving a life-without-parole sentence, would be forever barred from challenging in court any restrictions on minor visitation imposed due to his failure to exhaust administrative remedies in 2010 while serving an unrelated sentence. We find that untenable on our record.
The 2010 restrictions applied to Valdez when he was an "inmate." (Cal. Code Regs., tit. 15, §§ 3170, subd. (a) [general policies for "inmate visitation"], 3173.1 [restricting minor visitation for certain "inmates"].) An inmate remains in the custody of CDCR during the period of parole following incarceration. (Id., § 3000.) "But discharge from parole is, plainly, discharge from that custody, whereupon respondent's jurisdiction ends." (In re Lusero (1992) 4 Cal.App.4th 572, 576 (Lusero).) Thus, once an inmate's sentence and parole are complete, "all obligations are extinguished as a matter of law." (Ibid. [CDCR could not assign inmate to the Security Housing Unit based on an assignment made during an earlier period of incarceration; that assignment had expired following inmate's successful completion of parole].) Valdez was released on parole in May 2012 and convicted of murder in July 2015. To the extent he successfully completed his parole, the earlier classification decision was "extinguished as a matter of law" (ibid.) and would be irrelevant to the exhaustion analysis. (See Pen. Code, § 3000, subd. (b)(1)) [three-year parole term].)
Even if Valdez did not successfully complete parole, we would not find his petition barred under the exhaustion doctrine. The classification committee's decision to restrict visitation carried an entirely different meaning in 2016 than in 2010. The 2010 visitation restriction applied for just two years. Upon his release in 2012, the record shows Valdez had unrestricted contact (at minimum) with J. pursuant to a parenting agreement. The 2016 restrictions applied in the context of a life-without-parole sentence, vastly changing the incentive to seek and impetus for seeking administrative review. On this record, we agree with Valdez that the 2016 restrictions reflected a new decision, distinct and separately appealable from the restrictions imposed in 2010. Because his 2016 appeal was not "duplicative," CDCR abused its discretion in cancelling his 2016 administrative appeal. (See Cal. Code Regs., tit. 15, § 3084.6, subd. (c)(2) [CDCR may cancel an administrative appeal if it "duplicates an inmate or parolee's previous appeal upon which a decision has been rendered or is pending"]; Menefield v. Foreman (2014) 231 Cal.App.4th 211, 217 (Menefield) [CDCR appeals coordinator exercises "discretion . . . in determining whether to cancel the appeal"].)
This case differs from Menefield, supra, 231 Cal.App.4th 211, a case CDCR cites. There, a Muslim inmate submitted an individual appeal challenging prison staff's denial of chapel access for Islamic prayer. (Id. at p. 215.) He later filed a group appeal naming other inmates that focused on religious services during Ramadan. Despite some differences between the petitions, the court found that CDCR reasonably cancelled the group appeal as duplicative because it had "significant overlap" with the earlier individual appeal. (Id. at pp. 214, 216.) This is not a case involving two contemporaneous administrative appeals. Although there is overlap in the restrictions imposed, they were made during two unrelated periods of incarceration.
The facts likewise differ from Wright, supra, 122 Cal.App.4th 659. There, an inmate filed his malpractice complaint against CDCR and the State while his third level administrative appeal remained pending. (Id. at pp. 663-664.) When the inmate filed his complaint, "an administrative remedy was still available," rendering his complaint jurisdictionally barred. (Id. at p. 671.) Here, CDCR cut off Valdez's administrative remedies when it cancelled his 2016 appeal.
Because the appeals were not "duplicative," CDCR abused its discretion in cancelling the 2016 appeal. Consequently, Valdez's failure to seek review at the third level in 2010 does not foreclose his petition.
Our conclusion comports with policy rationales of administrative exhaustion. The exhaustion requirement aims to "mitigate damages," "take advantage of the [CDCR]'s expertise to make findings of fact, apply the law to the facts, and provide a record for the courts to review" (Wright, supra, 122 Cal.App.4th at p. 669), and "ensure[] the orderly administration of the judicial system . . . [by] filter[ing] out frivolous lawsuits." (Id. at p. 670; see generally Los Globos Corp. v. City of Los Angeles (2017) 17 Cal.App.5th 627, 632-633.) None of these salutary reasons would be served here. This is not a case where administrative review could have developed the factual record. The parties largely agree on what happened in 2009, the resulting charges, and the basis for Valdez's 2009 conviction and sentence. They disagree whether these uncontested facts provide a basis for minor visitation restrictions under regulation 3173.1. We thus reach the merits of Valdez's habeas petition. 3. Valdez Is Entitled To Habeas Relief.
a. Overview of Regulation 3173.1
The Legislature has given CDCR's secretary "broad authority for the discipline and classification of persons confined in state prisons." (Lusero, supra, 4 Cal.App.4th at p. 575; Cal. Code Regs., tit. 15, § 5050.) "This authority includes the mandate to promulgate regulations governing administration, classification and discipline." (Lusero, at p. 575.) As relevant here, CDCR "has the authority to enact reasonable rules and regulations regarding visits between inmates and their families." (Robin J., supra, 124 Cal.App.4th at p. 423.) Despite their confinement, "[i]nmates retain the right of reasonable visitation with their children." (Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 640.)
In exercising its authority, CDCR's secretary has issued regulations governing family visitation at state prisons. (Cal. Code Regs., tit. 15, §§ 3170-3179.) These regulations recognize "the value of inmate visitation as a means of increasing safety in prisons, maintaining family and community connections, and preparing inmates for successful release and rehabilitation." (Id., § 3170, subd. (a).) They broadly aim "to establish a visiting process in the institutions/facilities of the department that is conducted in as accommodating a manner as possible, subject to the need to maintain order, the safety of persons, the security of the institution/facility, and required prison activities and operations." (Ibid.)
At the heart of Valdez's petition is regulation 3173.1, which addresses "Visiting Restrictions with Minors." Subdivision (a) of the regulation parallels Penal Code section 1202.05, which prohibits defendants sentenced to state prison for certain sexual offenses from visiting the child victim. Other subdivisions expand the list of offenses that warrant restricting visitation with the child victim or other minor children. (Regulation 3173.1, subds. (c)-(f).)
Penal Code section 1202.05 provides: "Whenever a person is sentenced to the state prison on or after January 1, 1993, for violating Section 261, 264.1, 266c, 285, 286, 288, 288a, 288.5, or 289, and the victim of one or more of those offenses is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim. . . ." (§ 1202.05, subd. (a).) Section 5054.2 requires the Secretary of the CDCR to implement section 1202.05 through regulations.
Both sections 1202.05 and 5054.2 will be amended without substantive change effective January 1, 2019, due to the renumbering of section 288a to section 287. (Stats. 2018, ch. 423 (Senate Bill No. 1494), §§ 49, 88, 110.)
Because several sections of regulation 3173.1 are relevant to Valdez's petition, we quote it in full:
"(a) For inmates convicted of Penal Code (PC) Section(s) 261, 264.1, 266c, 269, 285, 286, 288, 288a, 288.5, or 289 when the victim is a minor, visitation with the minor victim shall be prohibited, except as authorized by an order of the juvenile court pursuant to Welfare and Institutions Code Section 362.6. Visitation pursuant to such an order shall be limited to non-contact status.
"(b) For inmates convicted of PC Section(s) 261, 264.1, 266c, 285, 286, 288, 288a, 288.5, or 289 when the victim is a minor, visitation with any minor who is not the victim of the crime shall be limited to non-contact status except as authorized by the Institution Classification Committee.
"(c) For inmates convicted of PC Section(s) 273a, or 273d, visitation with the minor victim shall be limited to non-contact status.
"(d) For inmates convicted of violating PC Section(s) 187, 269, 273a, 273ab, or 273d, when the victim is a minor, visitation with any other minor shall be limited to non-contact status except as authorized by the Institution Classification Committee.
"(e) When an inmate has been arrested, but not convicted, of any crime involving a minor victim included in this Section, a classification committee shall determine whether all visitation with a minor(s) is to be limited to non-contact status.
"Unless otherwise prohibited, the inmate's visiting status shall be unrestricted until a classification committee has done the following:
"(1) Made a case-by-case determination whether the inmate poses a threat of harm to minor visitors in contact visitation.
"(2) Considered the circumstances of the misconduct involving a minor victim in determining whether the inmate poses a threat of harm to minor visitors in contact visitation. In making its determination, the classification committee shall consider, but is not limited to, arrest reports, probation officer reports, court transcripts, parole revocation transcripts.
"(f) If a classification committee, when making a decision regarding the visiting status of an inmate described in (e) above, determines that the inmate will pose a threat of harm to minor visitors in contact visitation, it will order all the inmate's visitation with minors be restricted to non-contact visiting status.
"(g) If an inmate disagrees with the decision of a classification committee, the inmate may file an inmate grievance via the CDCR Form 602 appeal process as outlined in [title 15 of the California Code of Regulations,] sections 3084 through 3084.9."
As we will explain, the merits of Valdez's petition hinge on whether he was: (1) convicted of an enumerated sexual offense against a minor victim pursuant to subdivision (a) of regulation 3173.1, and/or (2) arrested for a specified "crime involving a minor victim" pursuant to subdivision (e) of regulation 3173.1. If the answer to both questions is "no," we must address whether CDCR may reasonably rely on its general vested authority to ensure prison safety and security to restrict Valdez's minor visitation to noncontact status.
b. Overview of CDCR's Findings
CDCR has over the years relied on different subdivisions of regulation 3173.1 and different alleged facts to justify its imposition of minor visitation restrictions on Valdez. We briefly summarize the record:
• March 19, 2009: Shortly after the domestic violence incident, the parole revocation report stated Valdez was "being charged with" violating section 273ab, which proscribes assault resulting in death, comatose status, or paralysis of a child under eight.
• April 29, 2009: The BPH found probable cause of "cruelty to a child" based on the finding that the "above violent incident occurred in front of a minor." That finding appears to conflict with the police report, which mentioned a child living with Valdez and his girlfriend but stated that child "was not present during the incident."
• February 23, 2010: The classification commission indicated the BPH had found probable cause of child cruelty under section 273d, which proscribes inflicting corporal punishment resulting in a traumatic condition to a child. It limited all of Valdez's visits with minors to "non-contact status" pursuant to regulation 3173.1, subdivision (c). In the CDCR Form 128B chrono filed that day, it also prohibited future visitation with J. pursuant to regulation 3173.1, subdivision (a).
• October 20, 2010: After Valdez filed an administrative appeal, the second level examiner noted that the BPH had found probable cause for a charge under section 273d. It substantiated the noncontact restriction under subdivision (e) of regulation 3173.1, finding he had been arrested, but not convicted, of a relevant offense involving a minor victim.
• January 5, 2016: Upon his reincarceration, the classification committee stated Valdez had previously been arrested for "Willful Cruelty to Child," without identifying any particular Penal Code provision.
• October 27, 2016: In canceling his appeal, the second level examiner stated the BPH had found probable cause to substantiate a charge under section "273," we believe in reference to section 273d. It found noncontact restrictions proper under regulation 3173.1, subdivisions (d) and (e).
• June 28, 2018: The classification committee stated Valdez had been convicted of violating section 273ab, which made the restrictions proper under regulation 3173.1, subdivision (d). It acknowledged that the fetus did not suffer any lasting injury as required for that offense. It then referenced the general provision in section 3170, subdivision (a) of title 15 of the California Code of Regulations to conclude visitation restrictions were no longer required in the supervised context of prison visitation given Valdez's good behavior and progress toward rehabilitation.
• August 9, 2018: In its return to the order to show cause, CDCR implies Valdez could have been arrested for "willful harm or injury to a child" under section 273a, which proscribes willful harm or injury to a child likely to produce great bodily harm or death. CDCR argues noncontact visits with minors would be supported under regulation 3173.1, subdivisions (e) and (f) and under its general authority to ensure "institutional safety and security."
c. Analysis
Valdez challenges two restrictions. In 2010, CDCR prohibited him from having any visitation with J., the child who was a fetus in the 2009 incident. It also prohibited Valdez from contact visits with his other minor children. These restrictions were reimposed in 2016 upon his reincarceration. We address these separately and conclude as to both that Valdez is entitled to relief.
"Judicial review of a CDC[R] custody determination is limited to determining whether the classification decision is arbitrary, capricious, irrational, or an abuse of the discretion granted those given the responsibility for operating prisons." (In re Farley (2003) 109 Cal.App.4th 1356, 1361.) This case does not present disputed facts. Instead, we must interpret regulation 3173.1 to determine whether CDCR could reasonably restrict Valdez's visitation with minors under any of its provisions. Pursuant to In re Cabrera (2012) 55 Cal.4th 683, 690, we defer to CDCR's interpretation of regulation 3173.1 unless it is clearly unreasonable. Although we "afford great deference to an administrative agency's expertise," we "should not hesitate to reject" an interpretation of a regulation that "is clearly arbitrary or capricious or has no reasonable basis." (In re Lusero, supra, 4 Cal.App.4th at p. 575.)
" 'Rules governing the interpretation of statutes also apply to interpretation of regulations.' " (In re Villa (2013) 214 Cal.App.4th 954, 964 (In re Villa).) Our goal is "to ascertain the intent of the agency issuing the regulation by giving effect to the usual meaning of the language used so as to effectuate the purpose of the law, and by avoiding an interpretation which renders any language mere surplusage." (Ibid., internal quotation marks omitted.) Where the text of a regulation could carry two alternative meanings, we defer to a reasonable construction adopted by CDCR. (See Menefield, supra, 231 Cal.App.4th at p. 219, citing In re Cabrera, supra, 55 Cal.4th at p. 690.)
In 2010 CDCR issued a Form 128B chrono that stated, "[Valdez] is prohibited from visiting with [J.], his minor victim(s) per [regulation] 3173.1[, subdivision] (a) and section 1202.05 . . . ." We agree with Valdez that prohibiting visitation with J. on this basis was an abuse of discretion.
Subdivision (a) of regulation 3173.1 and section 1202.05 of the Penal Code prevent a person convicted of or sentenced for certain enumerated sex offenses involving a minor victim from visiting that minor victim. Pursuant to his plea, Valdez was convicted of a single felony count of false imprisonment (§§ 236, 237, subd. (a)), and he admitted a strike (§§ 667, subds. (b)-(i), 668, 1170.12) and a prior prison term (§ 667.5, subd. (b)). He was not convicted of an offense listed in regulation 3173.1, subdivision (a) or sentenced on an offense listed in section 1202.05. The plain language of the proffered statute and regulation reveal that CDCR's decision to prohibit visitation with J. was an abuse of discretion.
Section 1202.05 applies to persons sentenced for violating sections 261, 264.1, 266c, 285, 286, 288, former 288a, 288.5, or 289 against a minor victim. Regulation 3173.1, subdivision (a) adds section 269 to the list and applies to inmates convicted of those offenses.
CDCR makes no argument to the contrary. The return does not cite section 1202.05 or subdivision (a) of regulation 3173.1. It focuses instead on subdivision (e) of regulation 3173.1, which permits (but does not require) CDCR to limit minor visits to "non-contact status" for a defendant "arrested, but not convicted, of any crime involving a minor victim included in [regulation 3173.1]." We therefore shift our focus to Valdez's second argument that CDCR could not restrict minor visitation to noncontact status pursuant to that provision.
As our earlier summary indicates, CDCR has offered shifting explanations as to what offense Valdez is alleged to have committed against a minor child and even which minor child was involved. At various points, CDCR suggested that Valdez had been arrested and/or convicted of offenses to a minor under sections 273a, 273ab, and 273d. The BPH's probable cause finding rested on the allegation that the incident occurred in front of a minor, presumably his girlfriend's minor child. The classification committee would later allege Valdez assaulted a fetus. CDCR's return to the order to show cause advances the latter theory, arguing Valdez was arrested in 2009 for choking his pregnant girlfriend. The question becomes whether CDCR could reasonably deny Valdez contact visits with his minor children under subdivision (e) of regulation 3173.1 on the basis that he had been arrested of a crime involving a "fetus." We conclude it could not.
CDCR's ever-shifting rationales arguably provide another basis to reject its argument that Valdez failed to exhaust administrative remedies. --------
In People v. Ward (1998) 62 Cal.App.4th 122, the court considered whether a defendant could be convicted of corporal injury to the "mother . . . of [his] child" under [Penal Code] section 273.5 for assaulting his pregnant girlfriend. The statute did not define the word "child," but case law interpreting the related offense under section 273d found "child" to be synonymous with "minor." (Id. at pp. 126-127.) In addition, the Family Code calculated the age of minority from the date of birth. (Ibid., citing Fam. Code, § 6500.) On this basis, the court concluded that "[a] fetus, therefore, is not a 'minor.' " (Ward, at p. 127.) Similarly, in Reyes v. Superior Court (1977) 75 Cal.App.3d 214, 219, the court rejected the contention that a mother's heroin use during pregnancy constituted willful injury to a "child" under section 273a. The statutory "exclusion of fetuses [from the terms 'child' or 'minor'] is consistent with the general rule regarding the scope of 'child' in California Law." (Ward, at p. 127.) "In the absence of such qualifying language, the term 'impliedly but plainly excludes unborn children.' " (Id. at pp. 127-128, citing Reyes, at p. 219.)
CDCR does not attempt to distinguish these authorities. It instead contends that its decision to restrict visitation to noncontact status could rest on its general vested authority to ensure institutional safety and security. Essentially CDCR argues that even if regulation 3173.1 does not apply, it had discretion to restrict Valdez's visitation to noncontact status because he was a violent person who presented a security risk. But that argument ignores a basic maxim of statutory construction—"the more specific provision . . . takes precedence over the more general one." (Salazar v. Eastin (1995) 9 Cal.4th 836, 857; In re Villa, supra, 214 Cal.App.4th at p. 964 [rules of statutory interpretation apply to regulations].)
Subdivision (e) of regulation 3173.1 provides a clear framework for restricting minor visitation for inmates arrested, but not convicted, of a crime involving a minor. If "an inmate has been arrested, but not convicted" of an enumerated crime "involving a minor victim," the classification committee must determine whether to limit visitation with minors to noncontact status based on "case-by-case determination" of the threat of harm posed to the minor by contact visitation. (Regulation 3173.1, subd. (e)(1)-(2).) The more general regulation cited by CDCR does not mention minor visitation at all:
"These regulations are made in recognition and consideration of the value of inmate visitation as a means of increasing safety in prisons, maintaining family and community connections, and preparing inmates for successful release and rehabilitation. It is the intent of these regulations to establish a visiting process in the institutions/facilities of the department that is conducted in as accommodating a manner as possible, subject to the need to maintain order, the safety of persons, the security of the institution/facility, and required prison activities and operations." (Cal. Code Regs., tit. 15, § 3170, subd. (a).)Certainly, " 'central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.' " (In re Jenkins, supra, 50 Cal.4th at p. 1175.) But the more specific provision "takes precedence" (Salazar v. Eastin, supra, 9 Cal.4th at p. 857), and CDCR cannot rely on its general vested authority to restrict minor visitation in a manner inconsistent with regulation 3173.1.
CDCR relies on nothing in the 2009 incident to suggest that Valdez posed a danger to a "minor" or a "child" other than the fact that the assault victim was pregnant. Although we defer to an agency's reasonable interpretations of a regulation, there was no reasonable basis for CDCR to determine that Valdez was "arrested, but not convicted" of a relevant offense against a "minor" or "child" based on that event.
Moreover, even if Valdez did fit that definition, the classification committee would then have to make a case-specific determination whether to limit minor visitation. (Regulation 3173.1, subd. (e)(1)-(2).) Engaging in that process, it would have reached the same conclusion as it did in June 2018—that Valdez posed no danger to his children in the context of supervised prison visitation. In short, regulation 3173.1, subdivision (e) does not reasonably support restricting Valdez to noncontact visits with his minor children.
DISPOSITION
Let a writ of habeas corpus issue directing the Department of Corrections and Rehabilitation to invalidate and cancel (1) any restriction on visiting J. imposed pursuant to regulation 3173.1, subdivision (a) and section 1202.05; and (2) any limitation on contact visits with other minor children pursuant to regulation 3173.1, subdivisions (c), (d), (e), and/or (f). The order to show cause is discharged.
DATO, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.