Filed 12/10/13 In re Alvarez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re MANUEL ALVAREZ

On Habeas Corpus.

F063995

OPINION

ORIGINAL PROCEEDING; petition for writ of habeas corpus.

Michael Satris, under appointment by the Court of Appeal, for Petitioner.

Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney 

General, Julie A. Malone and Pamela B. Hooley, Deputy Attorneys General, for 

Respondent.

-ooOooINTRODUCTION

“Prison regulations promulgated by California’s 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’ [citation], validation of an 

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

housing unit (SHU).” (In re Cabrera (2012) 55 Cal.4th 683, 685-686 (Cabrera).)

Petitioner Manuel Alvarez, an inmate serving a determinate term in CDCR, was 

validated as an associate of the Northern Structure prison gang, and housed in the SHU. 
2.

As we will explain, an associate of a prison gang is “an inmate ... who is involved 

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

15, § 3378, subd. (c)(4).)1 Validation of an inmate as an associate requires at least three 

“independent source items of documentation indicative of association” with validated 

gang members or associates, and at least one source item must be a “direct link” to a 

current or formerly validated member or associate. (Ibid.) With one exception not 

applicable to this case, the regulatory definitions of the requisite “source items” do not 

include any restrictions on the date of the materials used as source items. (§ 3378, subds. 

(c)(8)(A)-(c)(8)(M).)

The regulatory provisions separately define a currently active member or associate 

based on whether there is evidence of “any documented gang activity within the past six 

(6) years ....” (§ 3378, subd. (c)(1); § 3341.5, subd. (c)(6), italics added.) An active 

member or associate who has been placed in the SHU may be transferred to a less 

restrictive housing unit if the inmate is determined to be inactive—defined as whether the 

inmate “has not been involved in gang activity for a minimum of six (6) years....” 

(§ 3341.5, subd. (c)(5); § 3378, subd. (e), italics added.)

In addition to these definitional provisions, the regulations further provide that 

“the identification of an inmate/parolee as a currently active gang member or associate 

[must be] supported by at least three independent source items ...” (§ 3378, subd. (c)(2)), 

and “a validated prison gang member or associate ... will be placed in a SHU for an 

indeterminate term” (§ 3341.5, subd. (c)(2)(A)(2)).

Order to show cause

In the instant case, we issued an order to show cause (OSC) to address petitioner’s 

argument that CDCR violated these regulatory provisions when it validated him as a 

 

1 All further citations are to the provisions of title 15 of the California Code of 

Regulations, unless otherwise indicated.
3.

currently active associate of a prison gang, and placed him in the SHU, because one of 

the three source items was more than six years older than his validation date. Petitioner 

argues all three source items must be based on gang involvement which occurs within six 

years of his validation date. Respondent, the Attorney General, argues there is no date or 

time restrictions on the source items used to validate an inmate as a member or associate, 

and only one source item must demonstrate gang activity within six years to classify an 

inmate as a currently active associate who must be housed in SHU.

We will conclude that the regulatory structure provides for validation of an inmate 

as a prison gang member or associate based on three independent source items, without 

any time restrictions on those source items except for photographs. We will also 

conclude that a validated member or associate is only subject to housing in the SHU for 

an indeterminate term if that gang affiliate is currently active, and that current activity is 

demonstrated if only one of the three source items shows documented gang activity 

within the past six years. (§ 3378, subd. (c)(1).) As applied to this case, two of the three 

source items used to validate and classify petitioner as a current active associate showed 

his gang activity within the past six years. We will therefore deny petitioner’s petition 

for writ of habeas corpus.

FACTS

In October 2008, petitioner pleaded no contest in the Superior Court of Santa 

Clara County to possession for sale of methamphetamine (Health & Saf. Code, § 11378); 

transportation, sale, and distribution of methamphetamine (Health & Saf. Code, § 11379, 

subd. (a)); false personation (Pen. Code, § 529); misdemeanor possession of narcotics 

paraphernalia (Health & Saf. Code, § 11364); and misdemeanor resisting an officer (Pen. 

Code, § 148, subd. (a)(1)). He admitted one prior strike conviction (Pen. Code, § 667, 

subds. (b)-(i); three prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) and 

one prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (c)). Petitioner was 

sentenced to seven years four months.
4.

Validation as a prison gang associate

As of 2009, petitioner was incarcerated at CDCR, Sierra Conservation Center 

(SCC) in Jamestown, Tuolumne County.

On April 5, 2010, petitioner was advised by CDCR’s Office of Correctional Safety 

that he had been validated as an associate of the NS prison gang, based on three source 

items: confidential memos dated October 1, 2003; January 8, 2010; and January 11, 

2010. Petitioner was advised that an “active/inactive review” of his status would be held 

on January 11, 2016.

Redacted summary of the three source items

As is customary in the validation setting, petitioner was not given full access to the 

confidential source items used to validate him as an associate. Instead, he was given 

redacted summaries of the information used.

The first source item was a confidential memorandum, dated October 1, 2003, 

which identified petitioner as an associate of the NS. According to the redacted 

summary, petitioner’s name, CDC identification number, moniker, and home town were 

discovered on a roster of inmates in good standing with the Northern Structure at the 

prison. The inmates were identified as individuals upholding and abiding by all the rules 

and regulations imposed and enforced by the members and associates of the Northern 

Structure.

2

The second source item was a confidential memorandum, dated January 8, 2010, 

which identified petitioner as an associate of the Northern Structure. According to the 

redacted summary, the gang investigative staff obtained written materials which were 

 

2 As we will explain, the instant writ petition solely addresses petitioner’s 

objections to the October 1, 2003, source item because it is more than six years from his 

validation date of April 5, 2010. The question of whether petitioner’s validation is 

supported by “some evidence,” based on the entirety of the three source items, is not 

before this court. (See, e.g., In re Fernandez (2013) 212 Cal.App.4th 1199, 1207.)
5.

discovered secreted in the body of a suspected Northern Structure member. The written 

materials contained a detailed list of inmates considered associates of the gang in good 

standing, one of whom was already a validated associate; a status report of the prison;

and instructions on how incoming inmates, affiliated with Northern Structure, should 

report to administrative segregation after committing an assault. Petitioner’s name and 

identification information appeared on this list of associates.

The third source item was a confidential memorandum, dated January 11, 2010, 

which identified petitioner as a member of the Northern Structure. A self-admitted 

member of the Northern Structure identified petitioner as an associate who upheld the 

gang’s rules and/or policies.

During the validation process, petitioner was interviewed regarding the three 

source items, based on the redacted summaries. He objected to the information which 

was disclosed, and denied he was an associate of the Northern Structure.

Placement in SHU

On May 13, 2010, the Institutional Classification Committee advised petitioner he 

was presumed a threat to security and would be transferred to the SHU, based on his 

validation as an associate of the Northern Structure. As a result, CDCR denied petitioner 

time credits pursuant to Penal Code section 2933.6.3

 

3 Effective January 25, 2010, Penal Code section 2933.6, subdivision (a) was 

amended to read: “Notwithstanding any other law, a person who is placed in a Security 

Housing Unit ... upon validation as a prison gang member or associate is ineligible to 

earn [sentence reduction conduct] credits pursuant to Section 2933 or 2933.05 during the 

time he or she is in the Security Housing Unit,...” (See In re Sampson (2011) 197 

Cal.App.4th 1234, 1240 [prospective application of amendment does not violate 

prohibition against ex post facto laws]; In re Efstathiou (2011) 200 Cal.App.4th 725, 731-

734 [prospective application of amendment does not violate procedural due process].)
6.

Administrative appeals

Petitioner challenged his validation and SHU placement through the CDCR 

administrative appeal process. At the first and second levels of review, petitioner argued 

he was improperly validated as an active associate because the regulations define

currently active as any documented gang activity within the last six years, but the 

October 1, 2003, source item was more than six years older than his validation date of 

April 5, 2010. Both appeals were denied because petitioner improperly relied on 

regulatory provisions which addressed inactive or debriefed gang members.

At the director’s level, petitioner again asserted he was inappropriately validated 

as an active associate of the Northern Structure because one of the source items was more 

than six years older than his validation date. His appeal was again denied and his sixyear argument was rejected.

Petition for writ relief in Superior Court

On July 8, 2011, petitioner filed a petition for writ of habeas corpus with the 

Superior Court of Tuolumne County. He raised several challenges to his validation, 

including the argument that the October 1, 2003, confidential memo was improperly used 

as a source item because it was more than six years old. On August 25, 2011, the 

superior court denied the petition but did not address the six-year issue.

WRIT PROCEEDINGS IN THIS COURT

On January 5, 2012, petitioner filed a petition for writ of habeas corpus with this 

court (F063995), which is the subject of this matter. Petitioner raised several issues, 

including the argument that the confidential memo of October 1, 2003, could not be used 

as one of the source items used to validate him as an active member of the Northern 

Structure because it was more than six years old when he was validated on April 5, 2010.

On February 23, 2012, respondent filed an informal response, and argued the “age 

of an item is irrelevant to whether it is a proper source demonstrating that an inmate is a 
7.

gang affiliate; the age is only relevant when considering whether that inmate is active 

with his gang and, therefore, should be housed in a Security Housing Unit.”

On April 26, 2012, petitioner filed a reply and challenged all aspects of the three 

source items used to validate him as an associate of the Northern Structure, including 

arguments that he had not raised or exhausted in his administrative appeals.

This court’s order to show cause and briefing order

On August 15, 2012, this court issued an order to show cause (OSC), returnable 

before this court, on why the relief requested should not be granted. In doing so, we 

directed the parties to respond to a series of questions limited to the validation of an 

inmate as a prison gang member or associate, classification as currently active or 

inactive, and whether all or some of the source items must demonstrate the inmate’s gang 

involvement within six years of his validation. The parties filed appropriate briefing and 

responded to this court’s questions. We will address their arguments in the course of our 

analysis.

Declaration from J. Beeson

As an exhibit to respondent’s return, the Attorney General submitted a declaration 

from J. Beeson, a special agent in CDCR’s Office of Correctional Safety. Beeson 

declared that his duties included the determination of whether an inmate should be 

validated as a prison gang member or an associate, and whether that inmate was active or 

inactive. Beeson declared that based on the regulatory criteria, there were no date 

restrictions on the three source items used to validate an inmate as either a member or an 

associate, with the exception of photographs, which must be no more than six years old.

Beeson further declared that the classification of an inmate as either active or 

inactive was “only relevant for purposes of his housing” in either SHU or a less 

restrictive confinement. According to Beeson, an inmate was active with his gang if 

there was any evidence of gang activity within the last six years. Beeson declared that 

when an inmate is initially validated, he will be classified as active and housed in the 
8.

SHU “if any one of the requisite three source items reflects gang affiliation within the 

past six years.” If all of the source items are more than six years old, then the inmate 

would be validated as either a member or associate, but classified as inactive and not 

subject to SHU placement.

As for the instant case, Beeson declared petitioner was properly validated as an 

associate based on the three source items. Since two of the source items showed he was 

active in 2010, he was classified as an active associate and subject to SHU placement.4

DISCUSSION

We issued the OSC to ascertain whether there are date restrictions on the source 

items required to validate an inmate as a currently active prison gang member or 

associate. Issuance of an order to show cause implies a preliminary determination the 

petitioner has made a sufficient prima facie showing of specific facts that, if established, 

entitle him or her to relief. (In re Large (2007) 41 Cal.4th 538, 549.) Accordingly, 

petitioner now “bears the burden of proving, by a preponderance of the evidence, the 

facts on which his claim depends. [Citation.]” (Ibid.) Where the resolution of the 

petition does not depend on disputed issues of fact, a court may grant or deny the relief 

sought without ordering an evidentiary hearing. (In re Zepeda (2006) 141 Cal.App.4th 

1493, 1497.)

A. Review of Validation Determination

The deferential “some evidence” test applies to judicial review of the CDCR’s 

validation of an inmate as a member or an associate of a prison gang. (In re Furnace

(2010) 185 Cal.App.4th 649, 659.) The requirements of due process “are satisfied if 

some evidence supports the decision of the prison disciplinary board....” (Superintendent 

v. Hill (1985) 472 U.S. 445, 455.)

 

4 As a result of Beeson’s declaration, petitioner filed a motion for leave to depose 

Beeson to dispute and challenge his interpretation of the gang regulations. Respondent 

filed opposition. We will deny the petitioner’s motion.
9.

In this case, however, we are not reviewing the sufficiency of the three source 

items to determine if the validation decision is supported by “some evidence.” (Cf. In re 

Furnace, supra, 185 Cal.App.4th at pp. 659-660; In re Villa (2013) 214 Cal.App.4th 954, 

961-962.) While petitioner raised several issues in his petition before this court, we 

issued the OSC and ordered briefing limited to whether the provisions of title 15 of the 

California Code of Regulations require that all three source items used to validate an 

inmate as a currently active gang member or associate must be based on evidence of “any 

documented gang activity within the past six (6) years ....” (§ 3378, subd. (c)(1).)5

This determination requires review of the pertinent regulatory provisions. “ ‘The 

Legislature has given the Director of the [CDCR] 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.’ [Citation.] One such classification is that of prison gang member or 

associate of a prison gang. Inmates are prohibited from knowingly promoting or assisting 

gangs because the CDCR has decreed that gangs ‘present a serious threat to the safety 

and security of California prisons.’ [Citations.]” (In re Villa, supra, 214 Cal.App.4th at 

p. 961; accord, Cabrera, supra, 55 Cal.4th at p. 688.)

“ ‘ “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 

 

5 Petitioner exhausted his administrative appeals solely on the claim that the 

October 1, 2003, confidential memorandum could not be used as one of the source items 

for validation because it was more than six years old. Petitioner later tried to file 

administrative appeals that challenged the sufficiency and validity of the other two source 

items, and CDCR’s decision to deny him time credits under Penal Code section 2933.6. 

Both appeals were rejected as untimely, and he did not exhaust his administrative 

remedies as to those issues.
10.

expertise of the agency within its scope of authority.” ’ [Citation.]” (Cabrera, supra, 55 

Cal.4th at pp. 687-688.)

The California Supreme Court has explained that in interpreting the prison gang 

validation regulations, “ ‘[a]s 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.’ [Citation.] 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.’ [Citation.]” (Cabrera, supra, 55 

Cal.4th at p. 690.)

Petitioner contends that all three source items required to validate an inmate as a 

currently active prison gang member or associate must demonstrate the inmate’s gang 

activity within six years of the validation, and the October 1, 2003, confidential memo 

could not be used as one of those source items since it was not based on gang activity 

within six years.

Respondent asserts that petitioner was properly validated as an associate based on 

all three source items, there are no date restrictions on source items used for validation, 

and he was properly classified as a currently active associate since the regulations only 

require one of the three source items demonstrate any gang activity within six years of his 

validation. In support of this argument, respondent cites to Mr. Beeson’s declaration as 

to CDCR’s interpretation of the relevant regulatory provisions, and argues that Cabrera

requires this court to defer to CDCR’s interpretation.

In resolving this question, we acknowledge the California Supreme Court’s 

direction to accord deference to CDCR’s interpretation of the governing regulations in 

matters that fall within its expertise, particularly the identification of gang affiliates. 

(Cabrera, supra, 55 Cal.4th at p. 688.) However, we are still compelled to independently 

review the “plain language” of the regulations to determine whether CDCR’s 
11.

construction of the regulatory structure was “clearly unreasonable” in order to resolve the 

question before this court. (Id. at pp. 690-691.)

While this case was pending, we requested supplemental briefing from the parties 

regarding several of the disputed regulatory provisions. In its response, respondent 

addressed the particular issues raised in our briefing letter, but chided this court for 

focusing on “leaves in the forest,” and added that we “should not interfere” with the 

difficult task of validating prison gang members, “which has been entrusted to CDCR’s 

expertise.” Respondent’s dismissive comment appears based upon the supposition that 

the judicial branch must be a rubber stamp for CDCR’s operational decisions, a view that 

is not shared by the California Supreme Court. Cabrera held the reviewing court must 

“accord due deference to the CDCR’s interpretation of its own regulations,...” (Cabrera, 

supra, 55 Cal.4th at p. 686.) However, it also held the agency’s construction of its 

regulations must not be “clearly unreasonable,” and the reviewing court must still 

determine whether the validation determination is supported by “sufficient” evidence, 

and whether the validation and placement of the inmate in the SHU “otherwise violates 

any of [the inmate’s] rights.” (Id. at pp. 691, 692; see In re Cabrera (2013) 216 

Cal.App.4th 1522, 1525-1526.)

We thus turn to the provisions of sections 3378 and 3341.5 to resolve the disputed 

questions before this court.6

B. Verification Categories

We begin with section 3378, which is “a quasi-legislative rule promulgated by the 

CDCR to identify and manage inmates with a prison-gang affiliation.” (Cabrera, supra, 

 

6 “Sections 3341.5 and 3378 were amended by CDCR pursuant to the terms of a 

class action settlement agreement in Castillo v. Alameida (N.D.Cal., 2004, No. C 94-

2847 MJJ)....” (In re Cabrera, supra, 216 Cal.App.4th at p. 1534, fn. 10.) This 

settlement agreement, however, does not further define the terms and phrases at issue in 

this case.
12.

55 Cal.4th at p. 688.) It first states that “[a]ny information regarding an inmate/parolee 

which is or may be critical to the safety of persons inside or outside an institution shall be 

documented as required” on the appropriate version of CDC Form 812, including CDC 

Form 812-A, “Notice of Critical Information—Prison Gangs Identification,” and CDC 

Form 812-B, “Notice of Critical Information—Disruptive Group Identification.” 

(§ 3378, subd. (a).)7

Section 3378 further provides that gang involvement allegations shall be 

investigated by a gang coordinator/investigator or appropriate designee. (§ 3378, subd. 

(c).) During such an investigation, CDC Forms 812-A or 812-B “shall be completed” if 

the following information is discovered:

“[I]f an inmate/parolee has been verified as a currently active 

member/associate, inactive member/associate or dropout of a gang (prison 

gang or disruptive group) ....” (§ 3378, subd. (c)(1), italics added.)

Section 3378, subdivision (c)(1) thus defines five possible prison gang 

verifications for an inmate/parolee: (1) currently active member, (2) currently active 

associate, (3) inactive member, (4) inactive associate, or (5) dropout.

C. Prison Gang Members and Associates

We next turn to section 3378’s provisions on how an inmate is validated either as 

a prison gang “member” or “associate.” A gang “member” is “an inmate/parolee or any 

person who has been accepted into membership by a gang....” (§ 3378, subd. (c)(3).) A 

gang “associate” is defined as “an inmate/parolee or any person who is involved 

periodically or regularly with members or associates of a gang....” (§ 3378, subd. (c)(4).)

The type of proof required to validate an inmate as a member or an associate is 

virtually identical. It requires “at least three (3) independent source items of 

 

7 CDC Form 128-B is also known as a “General Chrono,” which is “an 

institutional documentation of information about inmates and inmate behavior. 

[Citation.]” (In re Stoneroad (2013) 215 Cal.App.4th 596, 606, fn. 4; § 3000.)
13.

documentation” indicative of “actual membership,” or “association with validated gang 

members or associates,” and at least one of the source items must 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 months of the established or 

estimated date of activity identified in the evidence considered. (§ 3378, subds. (c)(3), 

(c)(4), italics added.)

D. Source Items

Section 3378, subdivision (c)(8) defines thirteen specific source items which may 

be used to satisfy the requirement for three independent source items. The list of possible 

source items includes, but is not limited to, “an inmate’s admission of involvement with 

the gang, tattoos and symbols distinctive to the gang, written material or communications 

evidencing gang activity, the inmate’s association with validated gang affiliates, and 

offenses reflecting gang affiliation. [Citation.]” (Cabrera, supra, 55 Cal.4th at p. 689.)

Section 3378, subdivision (c)(8)’s definition of source items does not contain any 

time or date restrictions for the source items used in the validation process, with the 

exception of “[i]ndividual or group photographs with gang connotations such as those 

which include insignia, symbols, or validated gang affiliates....” (§ 3378, 

subd. (c)(8)(D).)

“The date of a photograph shall be reasonably ascertained prior to any 

photo being relied upon for inclusion as a source item. No photograph 

shall be considered for validation purposes that is estimated to be older 

than six (6) years....” (§ 3378, subd. (c)(8)(D), italics added.)

This provision is the only regulatory definition which contains a specific six-year 

restriction for the type of source items used to validate an inmate as a member or an 

associate.

E. Current Activity and Inactive

As we have explained, section 3378 contemplates verifying an inmate as a 

currently active member or associate, an inactive member or associate, or a dropout. We 
14.

have already reviewed the regulatory provisions to validate an inmate as a member or 

associate. We next turn to the regulatory definitions of the terms current activity and 

inactive. As we will explain, these definitions are linked to specific six-year date

restrictions.

Section 3341.5 defines the assignment criteria to house particular inmates in the 

SHU, including prison gang members or associates:

“Except as provided at section 3335(a), section 3378(d) and subsection

(c)(5), a validated prison gang member or associate is deemed to be a 

severe threat to the safety of others or the security of the institution and will 

be placed in a SHU for an indeterminate term.” (§ 3341.5, 

subd. (c)(2)(A)(2), italics added.)8

This provision thus provides for a validated member or associate of a prison gang 

to be placed in the SHU, without reference to whether that member or associate is

currently active or inactive. Indeed, as noted by the Supreme Court, “[b]ecause gangs 

‘present a serious threat to the safety and security of California prisons’ [citation], 

validation of an inmate as a gang member or associate can result in the inmate’s 

placement in a security housing unit (SHU).” (Cabrera, supra, 55 Cal.4th at p. 685; see 

also In re Sampson, supra, 197 Cal.App.4th at pp. 1242-1243.)9

However, sections 3341.5 and 3378 require an additional step before a validated 

gang member or associate may be placed in a SHU, based on the following analysis. 

 

8 The excepted provisions consist of section 3335, subdivision (a), which provides 

for the removal of an inmate from general population to administrative segregation. 

Section 3378, subdivision (d) addresses the determination of whether a validated gang 

member or associate in general population is inactive. Section 3378, subdivision (c)(5) 

defines a gang “dropout.” As we will explain, inactive members or associates, and 

dropouts, may be transferred from the SHU to a less restrictive placement.

9 “For purposes of placement in a SHU, active gang membership or affiliation is 

considered ‘conduct [that] endangers the safety of others or the security of the institution’

and ‘a validated prison gang member or associate is deemed to be a severe threat to the 

safety of others or the security of the institution’ warranting an indeterminate SHU term. 

[Citations.]” (In re Sampson, supra, 197 Cal.App.4th at pp. 1242-1243.)
15.

Section 3378, subdivision (c)(1) contains two clauses. The first clause, which we have 

already discussed, requires the completion of the appropriate CDC Form 812 upon an 

inmate’s verification as a currently active member or associate, an inactive member or 

associate, or a dropout. The second clause defines “current activity.”

“Current activity is defined as any documented gang activity within the 

past six (6) years consistent with section 3341.5(c)(5).” (§ 3378, subd. 

(c)(1), italics added.)

Turning to section 3341.5, subdivision (c)(5), it does not address validation of an 

inmate as a member or associate, or the type of source items required for such validation. 

Instead, section 3341.5, subdivision (c)(5) defines inactive status:

“As provided in section 3378(e), the Departmental Review Board 

(DRB) may authorize SHU release for prison gang members or associates

categorized as inactive. The term inactive means that the inmate has not 

been involved in gang activity for a minimum of six (6) years....” 

(§ 3341.5, subd. (c)(5), italics added.)

These definitions lead to section 3378, subdivision (e), another regulation about 

SHU placement:

“An inmate housed in a security housing unit (SHU) as a gang 

member or associate may be considered for review of inactive status by the 

Department Review Board when the inmate has not been identified as 

having been involved in gang activity for a minimum of six (6) years....” 

(§ 3378, subd. (e), italics added.)

These provisions are consistent with the interpretation that only a validated prison 

gang affiliate who is currently active may be housed in the SHU. We will return to these 

issues in our analysis.

F. Dropouts and Inactive Members/Associates

There is one more validation category for an inmate: a dropout. An inmate who is 

a “dropout,” or an inactive member or associate, may not be subject to SHU housing.

“Once ‘validated,’ an inmate’s active membership or affiliation in 

the gang and placement in a SHU continues until one of three things 

happens: (1) the periodic, 180-day review of the inmate’s status by the 
16.

classification committee results in his or her release to the general inmate 

population [citation]; or (2) he or she becomes eligible ‘for review of 

inactive [gang] status’ after six years of noninvolvement in gang activity 

[citation]; or (3) he or she initiates and completes the ‘debriefing process,’

thereby demonstrating that he or she has dropped out of the gang. 

[citation].” (In re Sampson, supra, 197 Cal.App.4th at p. 1243, italics 

added.)

G. Returning an Inactive Member or Associate to SHU

Finally, there are regulatory provisions which address how a validated member or 

associate who has been removed from SHU for being inactive, and returned to less 

restrictive housing, may be reclassified and returned to SHU as an active member or 

associate.

Section 3378, subdivision (f) states that a gang member or associate, who has been 

classified as “inactive” or validated as a dropout, and who has been released from a SHU, 

“may be removed from the general population or any other placement based upon one 

reliable source item identifying the inmate as an active gang member or associate of the 

prison gang with which the inmate was previously validated....” (§ 3378, subd. (f), 

italics added.) The source item must be based on information developed after the 

inmate’s release from SHU. (Ibid.)

Section 3341.5, subdivision (c)(6) is a related provision and states:

“As provided at section 3378(f), an inmate categorized or validated 

as a dropout of a prison gang and placed in the general population may be 

returned to segregation based upon one reliable source item identifying the 

inmate as a currently active gang member or associate of the prison gang 

with which the inmate was previously validated....” (Italics added.)

Section 3341.5, subdivision (c)(6) further provides:

“Current activity is defined as, any documented gang activity within the 

past six (6) years....” (Italics added.)

Taken together, these regulations require one reliable source item to identify a 

previously validated member or associate as currently active, and return him to SHU. It 

is noteworthy that these provisions specify that only one source item is required to 
17.

reclassify the inmate from inactive to active, and current activity is again defined as any

documented gang activity within the past six years.

H. Analysis

Petitioner asserts that all three source items required to validate an inmate as a 

prison gang affiliate must satisfy the definition of current activity, and he was improperly 

validated and housed in the SHU since one of the three source items was more than six 

years old. Respondent takes the opposite position, and argues that in order to validate an 

inmate as a gang member or associate, there are no date restrictions on the three requisite 

source items (except for the specific limitation on the date of a photograph); and an 

inmate may be further classified as a currently active member or associate for purposes of 

SHU housing if just one of the three source items shows gang activity in the past six 

years, since the regulations define current activity as any gang activity in the past six 

years.

We find respondent’s interpretation of the relevant regulatory provisions is 

supported by the “plain language” of sections 3378 and 3341.5, and is not “clearly 

unreasonable.” (Cabrera, supra, 55 Cal.4th at pp. 601-602.) An inmate may be verified 

as a currently active prison gang member or associate, or an inactive member or 

associate. (§ 3378, subd. (c)(1).) An inmate may be validated as a member or an 

associate based upon three independent source items, one of which must be a “direct 

link.” (§ 3378, subds. (c)(3) & (c)(4).) The regulatory definitions of the possible source 

items to validate an inmate do not include any type of date restrictions, except for the sixyear limitation on photographs. (§ 3378, subd. (c)(8).)

However, the regulations also contemplate a further step in the process: the 

determination of whether a member or an associate is currently active or inactive, which 

is the key decision for housing the affiliate in the SHU. (§ 3378, subd. (c)(1).) The 

specific regulations on these points demonstrate that CDCR’s decision to house a gang 

member or associate in the SHU is dependent on whether the member or associate is 
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currently active or inactive. (Ibid.; § 3341.5, subd. (c)(5).) The regulations clearly 

provide that an inmate who may have been validated as a prison gang affiliate, but who is 

inactive based on the date limitations for current activity and inactivity, may not be 

housed in the SHU.

We also find that only one of the three source items must satisfy the definition of 

current activity, based on the plain language defining the phrase as any documented gang 

activity within the past six years. (§ 3378, subd. (c)(1).) Since three source items are 

required to validate an inmate as a member or an associate, and any documented gang 

activity in the past six years classifies that inmate as currently active, then only one of the 

three source items has to satisfy the definition of “current activity” in order to classify an 

inmate as a currently active member or associate – “any” refers to the quantity of source 

items, and means that only one source item must show the inmate’s gang activity within 

the past six years. (Ibid.)

This interpretation is further supported by the regulatory provisions that a gang 

affiliate who has been housed in the SHU may be transferred to less restrictive housing if 

classified as inactive, i.e., “the inmate has not been involved in gang activity for a 

minimum of six (6) years....” (§ 3341.5, subd. (c)(5); § 3378, subd. (e).)

The six-year requirement is thus clearly linked to CDCR’s ability to classify a 

validated member or associate as currently active and house him in the SHU, and the 

definition of current activity – any gang activity within the past six years – is consistent 

with the interpretation that only one of the three source items must show the inmate’s 

gang activity in the past six years.

Petitioner’s Arguments

Petitioner contends the same regulations require that all three source items satisfy 

the definition of current activity, and that he was improperly validated as a currently 

active associate since one of the three source items was more than six years old. 
19.

Petitioner argues respondent’s position is inconsistent with section 3341.5, subdivision 

(c)(2)(A)(2), which states:

“[A] validated prison gang member or associate is deemed to be a severe 

threat to the safety of others or the security of the institution and will be 

placed in a SHU for an indeterminate term.” (Ibid., italics added.)

This provision gives CDCR authority to house an inmate in SHU based on his 

validation as a member or associate; it is silent on whether the inmate is a currently 

active member or associate. However, section 3345.1, subdivision (c)(2)(A)(2) cannot be 

read in isolation. The entirety of the regulations further state that a validated member or 

associate can be transferred from the SHU if he is inactive, i.e., he has not been involved 

in gang activity for a minimum of six years. (§ 3341.5, subd. (c)(5).) Thus, the 

regulatory scheme contemplates that a validated member or associate will be placed in 

the SHU for an indeterminate term if the inmate is a currently active affiliate – i.e., there 

is evidence of any gang activity within the past six years. (Ibid.; § 3378, subds. (c)(1), 

(e).) A validated affiliate who satisfies the regulatory definition for being inactive cannot 

be placed in the SHU under the plain language of these provisions.

Petitioner points to another regulatory provision in support of his position. 

Section 3378, subdivision (c)(2) states:

“Information entered onto the CDC Form 812-A or B shall be 

reviewed and verified by a gang investigator to ensure that the 

identification of an inmate/parolee as a currently active gang member or 

associate is supported by at least three independent source items in the 

inmate/parolee’s central file....” (Italics added.)

It would seem that this regulation could be interpreted to require that all three 

source items must satisfy the definition of current activity, i.e., “any documented gang 

activity within the past six (6) years ....” (§ 3378, subd. (c)(1), italics added.) Such an 

interpretation, however, clashes with the specific provisions regarding the three 

independent source items, which do not carry any time limitations except for 
20.

photographs, and the specific definition of current activity as any gang activity within the 

past six years.

As a principle of construction, it is well-established that if two provisions cannot

be reconciled, then a specific provision prevails over a general one relating to the same 

subject. (County of Santa Clara v. Deputy Sheriffs’ Assn. (1992) 3 Cal.4th 873, 883; 

Garcia v. McCutchen (1997) 16 Cal.4th 469, 477-478; Department of Alcoholic Beverage 

Control v. Alcoholic Beverage Control Appeals Bd. (1999) 71 Cal.App.4th 1518, 1524.) 

The above-quoted portion of section 3378, subdivision (c)(2) is a general provision 

regarding filing and documentation, and does not trump the specific regulations which 

define the independent source items and the phrase “current activity.” Such a conclusion 

is further supported by section 3378, subdivision (a), which defines the type of 

information to be entered on the various versions of CDC Form 812, providing: “Entries 

on these forms shall not be a substitute for detailed documentation required elsewhere in 

the central file.” (Ibid.)

I. Conclusion

The regulatory structure for validating an inmate as a prison gang member or 

associate does not contain any time restrictions for the three requisite source items, with 

the exception of photographs. However, the regulatory provisions clearly contemplate 

that only currently active gang affiliates are subject to placement in SHU for an 

indeterminate term. In addition, current activity is clearly defined as any documented 

gang activity within the past six years, denoting that the quantum of proof required to 

classify a validated affiliate as currently active is one source item. (§ 3378, subd. (c)(1).) 

If an inmate is validated as a member or associate, but none of the three source items 

satisfy the definition of “current activity,” the regulations contemplate classifying that 

inmate as “inactive” and thus ineligible for placement in the SHU.

In the course of briefing in this case, both petitioner and respondent have generally 

referred to certain practices and procedures employed by CDCR during the validation and 
21.

classification process. Most of these references have not been supported by any 

documentary exhibits. While CDCR may deviate or vary on how it carries out these 

regulations, we have interpreted the regulatory structure as it currently exists in title 15 of 

the California Code of Regulations.

DISPOSITION

The petition for writ of habeas corpus is denied. Petitioner’s motion to depose J. 

Beeson is denied. Petitioner’s motion to strike respondent’s letter brief of September 27, 

2013, is denied.

______________________

Poochigian, J.

WE CONCUR:

_____________________

Gomes, Acting P.J.

_____________________

Detjen, J.