Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Imperial County No. EHC01164, Jeffrey B. Jones, Judge.
AARON, J.
I.
INTRODUCTION
Domingo Uribe, Jr., Acting Warden of Centinela State Prison (Warden), appeals from an order granting Christopher Perfect's petition for writ of habeas corpus, contending that the trial court erred in vacating the disciplinary findings of the California Department of Corrections and Rehabilitation (CDCR). Perfect challenged the findings of the CDCR on the basis of a redundancy in placing the word "attempted" before the word "assault" in the document that described the conduct at issue, and the existence of a typographical error in listing the offense as a violation of California Code of Regulations, title 15, section 3005, subdivision (c), rather than subdivision (d). The trial court granted the petition on the ground that Perfect was denied due process because he had not received sufficient notice of the charge against him.
The parties agree that the Rules Violation Report (RVR) erroneously listed Perfect's offense as a violation of California Code of Regulations, title 15, section 3005, subdivision (c) (which relates to the failure to accept assigned housing). It appears, however, that the CDCR intended to cite subdivision (d) of that section (which relates to force or violence, including attempt to use force or violence upon another person). This provision of the regulations apparently had been amended approximately five months prior to the date of this incident—an amendment that moved the language that had formerly been in subdivision (c) into subdivision (d) (see Jameson v. Yates (E. D. Cal. Nov. 15, 2008, No. 1:07-cv-01344 LJO DLB (HC) [2008 U.S. Dist. LEXIS 95972, *13], affd. (9th Cir. 2010) 397 Fed.Appx. 406 [2010 U.S. App. LEXIS 20135] [noting that effective Dec. 28, 2007, Cal. Code Regs., tit. 15, § 3005, subd. (c) had been amended to become subd. (d)]).
The Warden asserts that the court based its decision on an issue that Perfect did not raise at the administrative level, and argues that Perfect thus failed to exhaust his administrative remedies. The Warden also contends that even if the trial court did not err in considering Perfect's claim, the court erred in granting the petition because Perfect received sufficient notice of the charge against him, and any error in the RVR was harmless, since the evidence shows that Perfect committed an assault or attempted battery—a serious rule violation for which the loss of 150 days' credit is a valid punishment. Finally, the Warden contends that because there is some evidence to support the CDCR's finding, we cannot uphold the trial court's order on the ground that there is insufficient evidence in the record to support the finding.
Perfect contends that there is no punishable offense of "attempted assault, " and that he therefore cannot be punished by a loss of 150 days of credit. He also asserts that even if the trial court erred in determining that Perfect did not receive sufficient notice of the violation, the trial court's order granting Perfect's petition for writ of habeas corpus should nevertheless be affirmed on the ground that the CDCR's disciplinary finding violates due process because there is insufficient evidence in the record to support it.
We conclude that the trial court erred in its determination that Perfect did not receive constitutionally adequate notice of the disciplinary charges against him. We further conclude that there is some evidence in the record to support the CDCR's disciplinary finding. Thus, Perfect was not denied his right to due process in the disciplinary proceedings. Having found no basis to support the trial court's order granting Perfect's habeas corpus petition, we reverse the order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On June 6, 2008, Perfect and another inmate, Graham Finochio, were involved in an incident with Officer A. Centeno. Officer Centeno saw Perfect and Finochio waiting for a friend in front of a prison program office and ordered them to continue walking to their housing units. Perfect and Finochio refused to move. Finochio stated, "What the fuck Centeno, why are you fucking with us?" Centeno repeated his command to continue moving. Perfect began to walk back and forth mimicking Centeno's accent and stated, "Fuck you, you little Mexican bitch mother fucker, white power." Centeno ordered both men to stand against the wall but they refused to comply with his orders. Centeno called for assistance. Perfect then approached Centeno with his fists clenched, yelling racial epithets.
Centeno pulled out his oleoresin capsicum (OC) spray and ordered both men to lie down on the ground. The two men ignored the command, and Perfect continued walking toward Centeno. Centeno sprayed Perfect in the face. Finochio began to walk in Centeno's direction, also shouting racial epithets, and Centeno sprayed him, as well. At this point, other officers arrived to assist Centeno. Both Perfect and Finochio continued to resist until officers beat them with batons.
A month later, Perfect appeared at a disciplinary hearing. The RVR incorrectly indicates that the rule Perfect had violated was "§ 3005(c), " i.e., California Code of Regulations, title 15, section 3005, subdivision (c) (which pertains to an inmate's refusal to accept assigned housing). However, in the box where the report is to identify the "SPECIFIC ACTS" that are the subject of the report, the RVR states, "ATTEMPTED ASSAULT ON A PEACE OFFICER—HATE MOTIVATED." In another box, the RVR indicates the date of the incident, and the next box indicates the time of the incident. The RVR further indicates, in a separate box, that the rule violation charge was classified as a "serious" rule violation, and that the "OFFENSE DIVISION" was "B, " with the additional indication that the potential loss of credit was 121 to 150 days.
The hearing officer found Perfect guilty of a "Division 'B' " rules violation offense, specifically, "ATTEMPTED ASSAULT OF A PEACE OFFICER—HATE MOTIVATED, " and assessed him a 150-day credit loss.
Perfect was assessed this credit forfeiture pursuant to California Code of Regulations, title 15, section 3323, which sets forth the disciplinary credit forfeiture schedule. The relevant portion of that regulation, as it read at the time of the offense and disciplinary hearing, provided:
Perfect appealed to the second level of review at the prison. The warden denied the appeal. Perfect then appealed to the director's level of review, and the director affirmed the decision.
Perfect filed a petition for writ of habeas corpus in the superior court of Imperial County, challenging the CDCR's decision. In his petition, Perfect claimed that his right to due process had been violated in the disciplinary proceedings because "attempted assault" is not a punishable disciplinary offense. In the alternative, assuming that the offense was correctly charged as an assault, Perfect claimed that he had been denied due process because there was insufficient evidence to support CDCR's finding.
The trial court ultimately granted Perfect's petition on the ground that Perfect had not received notice of the charge sufficient to satisfy the requirements of due process. The trial court's order states, in relevant part:
"Petitioner alleges due process violations regarding the imposition of administrative discipline. Inter alia, petitioner alleges that he was found guilty of an offense that does not exist under California law (attempted assault on a Correctional Officer—hate related).
"The charging documents allege [a] violation of 15 CCR 3005, refusal to accept assigned housing. Petitioner was found guilty of 'Attempted Assault on a Correctional Officer—Hate Related.' At the administrative hearing the petitioner requested a definition of Attempted Assault per the D.O.M., thus preserving the issue for administrative appeal.
"Respondent does not assert that petitioner was found guilty of the offense charged (15 CCR 3005), nor does respondent claim that the charge petitioner was found guilty of exists. Instead, Respondent claims that Petitioner was clearly guilty of other, uncharged[] offenses, and therefore any error was harmless.
"There are no disputed issues of material fact requiring a hearing.
"The court finds that petitioner did not receive constitutionally adequate notice of the charge. In re James M. (1973) 9 Cal.3d 517."
The Warden filed a timely notice of appeal of the trial court's order.
III.
DISCUSSION
A. Perfect received adequate notice of the disciplinary charge against him
The Warden argues that the petition for habeas corpus should have been denied on the ground that Perfect failed to exhaust his administrative remedies by failing to raise with the CDCR whether an "attempted assault" was a punishable rules violation. Although Perfect never specifically raised this issue with the CDCR during the underlying administrative process, the trial court correctly observed that Perfect had completed the administrative process with the CDCR by seeking review through the director's level, and that he did raise the question of the meaning of "attempted assault" during the administrative hearing process, thereby flagging the issue in the underlying proceeding. Further, the administrative record is sufficient for us to adequately review the issue. We therefore conclude that we may address on its merits the question whether Perfect was disciplined for a punishable rules violation.
"[An] inmate has a strong interest in assuring that the loss of good time credits is not imposed arbitrarily. [Citation.]" (Superintendent v. Hill (1985) 472 U.S. 445, 454 (Superintendent).) "This interest, however, must be accommodated in the distinctive setting of a prison, where disciplinary proceedings 'take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so.' [Citation.]" (Ibid.) "Consequently, in identifying the safeguards required by due process, the [United States Supreme] Court has recognized the legitimate institutional needs of assuring the safety of inmates and prisoners, avoiding burdensome administrative requirements that might be susceptible to manipulation, and preserving the disciplinary process as a means of rehabilitation. [Citations.]" (Id. at pp. 454-455.)
"Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. (Wolff v. McDonnell (1974) 418 U.S. 539, 556 (Wolff).) "[T]here must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application." (Ibid.)
"Where a prison disciplinary proceeding may result in the loss of good time credits, [due process requires] that the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action." (Superintendent, supra, 472 U.S. at p. 454, citing Wolff, supra, 418 U.S. at pp. 563-567.) "[W]ritten notice of the charges must be given to the disciplinary-action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense." (Wolff, supra, at p. 564.)
In this situation, the trial court determined that Perfect had not received sufficient advance notice of the charge against him, on the ground that the RVR listed the rule that Perfect was alleged to have violated as California Code of Regulations section 3005, title 15, subdivision (c), rather than subdivision (d), and the fact that the RVR stated that the act constituting the rule violation was "attempted assault, " which the trial court concluded is an offense that does not exist. We conclude that neither of these grounds provides a valid basis for concluding that Perfect was not given constitutionally-adequate notice of the charge against him.
First, we reject the conclusion that the CDCR's typographical error in listing the rule that Perfect was alleged to have violated as subdivision (c) of the relevant regulation, rather than subdivision (d), violated Perfect's right to due process. In determining whether Perfect was given sufficient notice of the charge against him, it is not reasonable to consider only the typed number of the rule that the inmate is alleged to have violated. Rather, the RVR should be examined in its entirety in order to determine whether it provides an inmate with sufficient notice of the violation with which he is being charged.
Here, the box indicating the rule that Perfect was being charged with violating referred Perfect to the correct regulation section (i.e., Cal. Code Regs., tit. 15, § 3005), but mistakenly identified a subdivision related to a rule regarding housing, not assault or battery. However, the RVR also included a written statement by Officer Centeno setting forth the circumstances of the alleged conduct—a statement that made it clear that Perfect was being charged with committing a battery or attempted battery against another. It was clear from this description what the allegations against Perfect were, and, thus, what Perfect had to defend against. Thus, Perfect was provided sufficient notice to be able to prepare his defense in response. The RVR's reference to subdivision (c) of section 3005 did not preclude Perfect from ascertaining the nature of the disciplinary charges against him, or from mounting a defense.
Further, the record demonstrates that Perfect was, in fact, aware of the charge against him and was in no way surprised by the allegations. Perfect cannot demonstrate that he suffered any prejudice from the CDCR's typographical error in citing the subdivision of the rule that he was charged with violating. In the testimony that Perfect provided in response to the RVR, Perfect clearly refers to his aggressive conduct toward Officer Centeno, and not to any conduct related to having refused housing. Perfect testified that when Centeno called him back and ordered him to face the wall, he and Finochio "turned around to walk over to the wall as instructed." Perfect further claims that although he "did make some rude comments, " they were "not to the extent Centeno claims." Perfect stated, "My tone may have been argumentative b[u]t I made no aggressive movements." In addition, on his appeal form, Perfect states that he "never at any time attempt[ed] to assault or make any aggressive advances towards any staff." He requested a rehearing "and/or reduction in disciplinary charge of 'conduct that could lead to violence, ' or a lesser charge." Perfect was obviously aware of the charge against him, and he defended against it by claiming that the story told by the officer about Perfect's aggressive conduct was incorrect. Thus, the RVR's reference to a rule pertaining to an inmate's refusing to accept assigned housing did not mislead Perfect about the nature of the charge against him.
The fact that the RVR describes the specific conduct for which Perfect was being charged as "attempted assault" on an officer, rather than assault, does not mean that Perfect was not given sufficient notice of the charge against him, or that he was penalized for a nonexistent violation. The trial court's order suggests that Perfect was found guilty of a charge that does not exist, and on appeal, Perfect contends that he was found guilty "of a violation that does not exist." The basis for this contention is that the administrative regulations require that a disciplinary action in which an inmate can lose 150 days of credit be based on conduct that is prohibited by law, and there is no offense in the Penal Code or under California law that is identified as "attempted assault." Even if we assume that Perfect is correct in his assertion that a disciplinary action resulting in loss of 150 days of credit must be based on conduct that is prohibited by law, Perfect is incorrect in his assumption that he was charged with, and found guilty of, conduct that is not prohibited by law (i.e., a charge that does not exist). In asserting that Perfect was found guilty of a charge that does not exist, both the trial court and Perfect appear to have conflated the written description of the charge with the prohibited conduct that Perfect was found to have committed.
First, we do not accept the presumption that inheres in both the trial court's order and Perfect's argument on appeal, i.e., that one must assume that the "charge" against Perfect was "attempted assault on a peace officer—hate related" because the RVR has those words set forth in one of the descriptive box labeled "SPECIFIC ACTS." First, it is not at all clear that the words used in the box labeled "SPECIFIC ACTS" actually sets forth the charge being leveled against the inmate or that the words should be given any particular "charging" significance. Rather, the rule violation allegation appears to be set forth in the box labeled "VIOLATED RULE NO(S)." Although the description set forth in the box labeled "SPECIFIC ACTS" may include additional information that gives an inmate notice of the charge against him, the choice of words inside that box is not the sole basis for identifying the rule violation of which an inmate is being charged.
Further, even if we were to assume that the reference to "attempted assault" should be accorded some significance, in this particular case, it is clear not only that Perfect was given notice that he was being charged with a rule violation that amounted to criminal conduct, but also that he was found guilty of conduct that is prohibited by the Penal Code.
Perfect is correct in asserting that there is no crime known as "attempted assault" in California. (See In re James M. (1973) 9 Cal.3d 517, 521-522.) This is because in defining assault "as an attempt to commit a battery by one having present ability to do so, " the Legislature evinced an intent not to punish an attempt to commit a battery that is undertaken without a present ability to complete it. (Id. at p. 522.)
However, in this case, the "attempted assault" with which Perfect was charged was equivalent to an "assault" in the criminal law—meaning that the word "attempted" in the RVR is, as the Warden has argued, merely a redundancy. That is because, at least in this matter, the word "attempted" as used by the CDCR in Perfect's RVR included the concept of "present ability, " whereas the meaning of "attempt" in the criminal law does not. The response provided by the investigative employee assigned to investigate the incident to a question that Perfect submitted prior to the hearing made this clear. Perfect asked the investigative employee, "What is the D.O.M. definition of attempted assault?" The investigative employee provided Perfect with the following response:
CALJIC No. 6.00 defines an "attempt" as follows: "An attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. [¶] In determining whether this act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt. However, acts of a person who intends to commit a crime will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to commit that specific crime. These acts must be an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstance not intended in the original design."
" 'ATTEMPTED means: The offense was begun but not completed because of circumstances beyond the control of the inmate. Attempted [sic] must also include present ability. Present ability means the attempt could have succeeded.
" 'ASSAULT means: An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.' " (Italics added)
Thus, the CDCR defined "attempt" for purposes of Perfect's alleged rule violation more narrowly than "attempt" is defined in the Penal Code. The CDCR's definition of "attempt" includes the very element of an assault that would theoretically be missing from an offense of "attempted assault" under the criminal law—i.e., "a present ability" to commit the intended offense. As a result, a rule violation identified as an "attempted assault" under the CDCR's provisions has the same elements as does an "assault" in the criminal law, and is thus coextensive with an "assault." The addition of the word "attempted" in this context does not eliminate any element that is necessary to commit an assault; rather, it is redundant. Attempting to commit a violent injury on someone else while having the present ability to do so is the very definition of criminal assault, which is a felony. Thus, Perfect was given adequate notice that he was being charged with conduct that could be prosecuted as a felony, particularly in light of the investigative employee's response to Perfect's question regarding the meaning of "attempted assault, " and he was found guilty of having committed an act that could have been prosecuted as a felony."
Although we reject the trial court's analysis in this regard, the administrative officers at the CDCR would be well advised to be more accurate in their completion of RVRs in the future—both in terms of making efforts to minimize typographical errors in setting forth the rule violation with which an inmate is being charged, and in the language used as "shorthand" to describe the nature of the charge. At least with respect to the box on the RVR in which the CDCR is to provide the "SPECIFIC ACTS" of the inmate that support the rule violation allegation, the CDCR could avoid the problem that occurred in this case either by using the precise language of the rule at issue (i.e., quoting from the relevant text of Cal. Code Regs.), or by avoiding any regulatory language or language with a specialized legal meaning altogether, and instead providing a summary description of the actual conduct giving rise to the charge (e.g., "walked toward officer with clenched fists, ignoring orders to get on the ground" in a case such as Perfect's).
B. There is "some evidence" to support the CDCR's finding of guilt
According to Perfect, the "trial court's order rested on two grounds: (1) that respondent did not receive[] constitutionally sufficient notice of the charge, and (2) that 'attempted assault' does not exist in California." Perfect contends that the "issue before this court is whether the trial court's order was legally correct on the grounds stated, and not whether there was sufficient evidence to establish 'attempted assault' by a preponderance of the evidence, or any other standard, adduced at the disciplinary hearing." Perfect thus contends that this court should not even address the People's argument that there is "some evidence" to support the administrative decision. However, he proceeds to make the argument that "insufficient evidence of an 'attempted assault' was adduced at the hearing."
Perfect resorts to making the same legal argument about the "attempted assault" that he previously made, arguing that "[n]o amount of evidence can establish an offense that does not exist."
Because the lack of sufficient evidence to support the CDCR's finding would be another basis on which to uphold the trial court's granting of Perfect's petition for habeas corpus, we address this issue.
"[T]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits." (Superintendent, supra, 472 U.S. at p. 455.) "This standard is met if 'there was some evidence from which the conclusion of the administrative tribunal could be deduced....' [Citation.]" (Ibid.)
Determining whether the "some evidence" standard has been met "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. [Citations.]" (Superintendent, supra, 472 U.S. at pp. 455-456.). The United States Supreme Court "decline[d] to adopt a more stringent evidentiary standard as a constitutional requirement" because "[p]rison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances." (Id. at p. 456.)
The record demonstrates that there is some evidence on which the CDCR could have relied to find Perfect guilty of assault or attempted battery. Officer Centeno's report indicates that Perfect and Finochio failed to comply with Centeno's repeated orders that they move on to their housing unit, and that in response to his commands and request for assistance, the two men made derogatory comments to Centeno and shouted "white power." During this time, Perfect approached Centeno with his fists clenched. Despite Centeno's order that the men get down into a prone position, Perfect continued to walk toward Centeno. Centeno finally had to use his OC spray on Perfect, and even then, Perfect refused to comply with Centeno's orders. Ultimately, multiple officers had to subdue both inmates by using batons on them. Two other officers prepared reports that support the allegations against Perfect. There was thus no due process violation because there is some evidence to support the disciplinary board's finding.
Because Perfect was given adequate notice of the disciplinary charge against him, and because there is some evidence to support the determination of the disciplinary board, the requirements of due process were met. The order of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.
IV.
DISPOSITION
The order of the trial court is reversed. The case is remanded for further proceedings consistent with this opinion.
WE CONCUR: McDONALD, Acting P. J., McINTYRE, J.
"Upon a finding of guilt of a serious rule violation, a credit forfeiture against any determinate term of imprisonment... shall be assessed within the ranges specified in (b) through (h) below:
"[¶]... [¶]
"(d) Division 'B' Offenses; credit forfeiture of 121-150 days.
"[¶]... [¶
"(9) Any felony not involving violence or the use of a weapon not listed in this schedule."
Thus, in charging Perfect with a Division "B" violation, the CDCR contended that Perfect's conduct amounted to a felony, albeit one not listed in the schedule.