Filed 12/10/13 In re A lvarez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 Atto rneys General, for Respondent.

- ooOoo

INTRODUCTION

“ 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 o f an inmate as an associate requires at least three “independent source items o f 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).)
T he regulatory provisions separately define a currently active member or assoc iate based on whether there is evidence of “ any documented gang activity within the past six (6) year s

.... ” ( § 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

— d efined 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 th ese 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 vali dated 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 the se 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 item s w as more than six years old er 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 restriction s 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 a s 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 o r 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 it ems 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); mis demeanor 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 enhance ments (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 set ting, petitioner was not given full access to the confidential source items used to validate him as an associate. Instead, he was given
redacted summar ies of the information used.
T he first source item was a confidential memorandum, dated October 1, 2003 , which identified petitioner as an associate of the N S

. According to the redacted
summary, p etitioner’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 pri son. 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, 2 010, which identified petitioner as an associate of the Northern Structure

. According to the redacted summary, t he 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, 200 3 , source it em 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. Th e 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 St ructure , should report to administrative segregation after committing an assault. Petitioner’s name and identification information appeared on this list of associ ates. The third source item was a confidential memorandum, dated January 11, 201 0 , which ide ntified 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 poli cies. During the validation process, petitioner was interviewed regard ing the three
source items , based on the redacted summaries. He objected to th e information which
was disclosed , and denied he was an as sociate of the Northern Structure

. P lacement in SHU On May 13, 2010, the Institutional Classification Committe e 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 gan g 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, 124 0 [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

.

Administrativ e 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 activ e as any documented gang activity within the last six years, but the October 1, 2003, source item was more than six years old er than his validation date of April 5, 2010 . Both appeals were denied because petitioner improperly relied on
reg ulatory provisions which addressed inact ive or debriefed gang members.
At the d irector’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 y ears old er than his validation date

. His appeal was again denied and his six

year 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 w as more than six years old. On August 25, 2011, the superior court denied the pet ition 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,
inclu ding 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 a n active member of the N orthern
Structure because it was more than six years old when he was validate d 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 a7

.

gang affiliate; the age is only relevant when considering whether that inmate is a ctive 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 valida te him as an associate of the Northern Structure , including

ar guments that he had not raised or exhausted in his administrative appeals

. This court’s order to show cause and b riefing order On August 15, 2012, this court issued an order to show cause (OSC) , returnable
before this court , on why the relief requested sho uld not be granted . In doing so, we directed the parties to respond to a series of questions limited to the validation of a n 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. B eeson 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
val idated 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 the8

.

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 acti ve 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 sho w 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 bu rden 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 ga ng. ( 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 r eviewing 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.4 th at p p . 659

- 660 ; In re Villa (2013) 214 Cal.App.4 th 954,
961

- 962.) While petit ioner 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 cu rrently 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 ha s 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 discipl ine. ’ [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.4 th 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 se paration 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 t he 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.4 th 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 t he 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 me mber 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

r equire one of the three source items demonstrate any gang activity withi n 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 it s 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 regulat ions to determine whether CDCR’s11

.

construction of the regul atory structure was “clearly unreasonable” in order to resolve the question before this court. ( Id. at p p

. 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 add ed that we “should not interfere” with the difficult task of validating prison gang members, “w hich has been entrusted to CDCR’s expertise. ” Respondent’s dismissive comment appears based up on 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. C abrera 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 unreasonabl e , ” 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 p p

. 6 91, 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 question s before this court. 6
B. V erification C ategories We begin with s ection 3378 , which is “a quasi

- legis lative rule promulgated by the CDCR to identify and man age inmates with a prison

- gang affiliation.” ( Cabrera , supra ,

6 “Sections 3341.5 and 3378 were amended by CDC R 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 term s 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 p ersons 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

— P rison Gangs Identification ,” and CDC
Form 812

- B , “ Notice of Critical Information

— D isruptive Group Identification .” ( § 3378, subd. (a).) 7 Section 3378 further provides that g ang involvement allegations shall be investigated by a gang coordinator / investigator or appropriate designee . (§ 3378, subd. (c).) During such an investigation, CDC Form s 812

- A or 812

- B “shall be completed” if
the f ollowing 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, subdivisi on (c)(1) thus defines five possible prison gang verifications for an inmate/parolee : (1) currently active member, (2) currently active associate, (3) in active member, (4) inactive associate , or (5) dropout.
C. Prison Gang Member s and Associate s We next turn to s ection 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 m embership by a gang

.... ” (§ 3378, subd. (c)(3).) A gang “as sociate ” 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 vali date an inmate as a member or an associate is virtually identical . It requires “ at l east 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 o f the source item s must be a direct link to a current or former validated member or associate of the gang, or to an i nmate/parolee or any person who is validated by the department within six months of the established or estimated date of activity identifie d in the evidence considered. ( § 3378, subd s

. (c)(3), (c)(4) , italics added .)
D. Source Items
S ection 3378, subdivision (c)(8) defines thirteen specific source items which may be used to satisfy th e requirement for three independent source items. The list o f 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 asc ertained 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 on ly 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 A ctivity and I nactive 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. We14

.

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 a ctivity and inactive. As we will explain, t hese definitions are linked to specific six

- year date
restrictions. Section 3341.5 defines the assignment criteria to house particular inmate s in the
SHU , including prison gang members or associates: “Except as p rovided at section 3335(a), section 3378(d) and sub section (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 fo llowing analysis.

8 The excepted provisions consist of s ection 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 “ F or 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 th e 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

.

S ection 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, a n inactive member or associate, or a dropout. The second c l ause 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 a dded .) 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 r eview 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), i talics added.) These provisions are consistent with the interpr etation 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 I nactive M embers/ A ssociates
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 the16

.

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 noninvolv ement 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. [ c itation]

. ” ( In re Sampson , supra , 1 97 Cal.App.4th at p. 1243 , italics added.)
G. Return ing an I nactive M ember or A ssociate 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 retur ned to SHU as an active member or

a ssociate

. 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 popu lation 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),
i talics added.) The source item must b e 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 plac ed 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.)
Se ction 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 to17

.

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 house d in the SHU since one of the three source items was more than six years old. Respondent takes the opposit e position, and argues that in order to validate an
inmate a s a gang member or associate, there are no date restrictions on the three requisite

sourc e 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 si x 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 “clear ly unreasonable.” ( Cabrera , supra , 55 Cal.4th at pp. 601

- 602.) A n 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

ass ociate based upon three independent source items, one of which must be a “ direct
link. ” (§ 3378, subds. (c)(3) & (c)(4).) The regulat ory definitions of the possible source
items to validate an inmate do not include any type of date restrictions, except f or the six

year limitation on photographs. (§ 3378, subd

. (c)(8).)
H owever, 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 is18

.

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 on ly one of the
three source items has to satisfy the definition of “curren t activ ity” 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 interpre tation 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 o f six (6) years

.... ” ( § 3341.5, subd. (c)(5); § 3378, subd. (e).)
T he six

- year requirement is thus clearly link ed 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 acti v ity

– 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 A rguments 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 i s 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 indeter minate term .” ( Ibid. , italics added.)
Th is 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, s ubdivision (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 activi ty 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 reg ulatory provision in support of his position.
S ection 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 curr ently 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 sat isfy 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 so urce items, which do not carry any time limitations except for20

.

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

- quoted portion of s ection 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 se ction 3378, subdivision (a) , which defines the type of
information to be entered on the various versions of CDC Form 812, provid ing : “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 rest rictions 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, cu rrent 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 val idated 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 and21

.

classification process. Most of these references have not been supported by any documentary exhibits. While C DCR may deviate or vary on how it carries out these regulations, we have interpreted the regulatory structure as it currently exists in t itle 15 of the California Code of Regulations.
DISPOSITION The petition for writ of habeas corpus is denied. Petition er’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.

_____________________ De tjen, J.