1

Filed 6/8/21 In re Valdez CA 1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re RICHARD VALDEZ, on Habeas Corpus. A156545
(Marin County Super. Ct. No. SC204509A)

Petitioner Richard Valdez , an inmate at San Quentin State Priso n, filed a petition for habeas corpus alleging the prison withheld issues of Artist s Magazine from him in violation of his statutory and constitutional rights

. He further allege s the prison arbitrarily bans inmates from possessing
educational and artistic publications that contain nudity in violation of prison regulation

. Among other things, Valdez s eeks a court order that t he prison deliver to him the September 2015 issue of Artists Magazine , along with

seven other issues of th e magazine alleged to have been improperly withheld

. Valdez has now received all eight issues of Artists Magazine identified in his petition , and t he Warden of San Quentin ( r espondent ) argue s the petition is therefore moot

. Valdez counters that his petition is not moot and, in any event, the court should reso lve the petition because the controversy is likely to recur

. However, he recognizes that prison regulation requires approval of educational and artistic material that contains frontal nudity on2

a case
- by

- case basis, and he does not challenge the validity of the regulation.
We de n y the petition as moot

. BACKGROUND Regulation Prohibiting Frontal Nudity and Exception for Artistic, Scientific
, and Educational Materials California Code of Regulations, title 15, section 3006(c) (17) prohibits inmates from possessing “[s]exually explicit images that depict frontal nudity in the form of personal photographs, drawings, magazines, or other pictorial format

. ” 1 The regulation provides an exception for artistic, scientific, medical, or education materials , which includes “ Educational, medical/ scientific, or artistic materials, including, but not limited to, anatomy medical reference books, general practitioner reference books and/or guides, National Geographic, or artistic reference material depicting historical, modern, and/or post modern era art

. . . approved by th e institution head or their designee on

a case
- by

- case basis.” (§ 3006(c)(17)(B) (2) .) Withholding of Valdez’s Magazines and Administrative Appeals Valdez ha s been incarcerated under a judgment of death for over 21

years. He began a subscription to Artists Magazine , which he describes as “a publication exploring technical, creative, and business aspects of the art
world ,” more than 10 years ago and ha s receive d over 100 issue s in prison

. June 2015 Issue On June 15, 2015, Valdez received a “ Notification of Disapproval

– Mail/Packages/Publications ” from the San Quentin mailroom notifying him

1 Sexually explicit mat erial is defined as “material that shows the frontal nudity of either gender, including the fully exposed female breast(s) and/or the genitalia of either gender.” (Cal. Code Regs. tit. 15, § 3006(c)(17)(A).) Further references to section 3006 are to this section of title 15 of the California Code of Regulations.3

that the June 2015 issue of Artists Magazine was not allowed : “Per title 15, sec. 3007 [ sic ]

– 17A

– No sexually e[x]plicit images that depict frontal nudity in the form of personal photographs, draw i ng, magazines, or other pictorial fo r mat allowed.” On July 7, 2015, Valdez submitted a first leve l appeal of the disapproval request ing “that his magazine be issued, and that San Q uentin mail room staff stop misapplying the Title 15 in regards to publications that do not meet the criteria for being disallowed.” His administrative appeal was
denied at each level , and he exhausted this administrative remedy when an appeals examiner denied his third level appeal on March 2, 2016

. 2 September 2015 Issue On August 20, 2015, Valdez was notified that he would not receive the September 2015 issue of Artists Magazine because it contained female frontal nudity. On September 20, 2015 , he submitted a first level appeal requesting the September 2015 issue of the magazine. This appeal was “ cancelled ” by the prison on the ground it duplicated Valdez’s previous appeal ( re garding
the June 2015 issue )

. By a memo dated September 28, 2015, Valdez was advised he could not appeal the rejected appeal directly but “a separate

2 We note that p rison staff did not acknowledge the artistic/educational material exception of section 3006(c)(17)(B)(2) in responses to Valdez’s appeal. Denying the first level appeal, a mail room office assistant wrote , “after looking at the magazine myself there are two (2) pages which show frontal nudity of women’s breast and nipple area and as a result [Valdez] w[ill] not receive his magazine.” Denying the second level appeal, the Warden wrote , “As explained in the first level response, content of appellant’s magazine violates Title 15 section 3006. The magazine contains pictures displaying frontal nudity; women’s breast and nipple area.” An appeals examiner denied the third and final level ap peal, finding that Valdez “failed to support his appeal issue with sufficient evidence or fact to warrant a modification of” the second level response.4

appeal can be filed on the cancellation decision.” Valdez did not appeal the cancellation of his first level appeal regarding the September 2015 issue
because he understood that his then

- pending second level appeal regarding the June 15 issue “ would address the related issues raised in both appeals.” Subsequent Issues Withheld The San Quentin mailroom withheld seven additional issues of Artists Magazine from October 2015, November 2015, March 2016, July/August 2017, Octob e r 2017, January /February 2018, and March 2018. Habeas Petition in Superior Court On April 11, 2018 , Valdez filed a petition for writ of habeas corpus in Marin County Superior Court ( Case No. SC204509A) raising the issues stated in his administrative appeals. The trial court is sued an order to show

cause on June 1 , and the Warden filed a return on August 31 , 2018

. Respondent a s s ert ed the petition was moot because t he prison agreed to give Valdez the June 2015 issue of Artists Magazine and , as to the other withheld issues of the mag azine, Valdez did not exhaust administrative remedies

. Valdez argued that his petition was not moot, pointing out he wa s challenging the prison’s policy and practice of withholding artistic material containing nudity . He also cl aimed that filing additional administrative appeals would have been futile. On October 30, 2018 , the superior court (Hon. Sheila Lichtblau) denied the petition. The court a ccepted respondent ’ s position that the petition was
moot as to the June 2015 iss ue of the magazine and that Valdez failed to exhaust his administrative remedies as to the other magazines. Current Habeas Petition On Feb ruary 25, 2019, Valdez filed a habeas petition in this court. He allege s the Warden and the California Department of Corrections and5

Rehabilitation ( CDCR ) have a “policy and practice of erratically and arbitrarily prohibiting educational and artistic material containing nudity, even though CDCR’s own rules and other laws require that such material be permit ted.” Valdez ask s for a court order directing the Warden and the Secretary of the CDCR to deliver all withheld issues of Artists Magazine that
are not obscene. He also s eeks an order “ directing respondents to allow all individuals in CDCR custody to poss ess sexually explicit material that meets the educational, scientific/medical, or artistic exception, unless there is a specific risk that the material would incite violence.”
We issued an order to the Warden only to show cause why relief should
not be granted as to (1) the eight issue s of Artists Magazine withheld from
Valdez and (2) the claim that San Quentin is not properly ap plying section 3006(c)(17)(B)(2). Respondent filed a return arguing the petition is moot

. He
admit s that section 3006(c)(17)(B)(2) generally exempts educational , medical/scientific, and artistic publications from the general ban on sexually explicit material in prison , with the proviso that case

- by

- case review is

necessary to avoid safety and security risk s

. He further admit s that eight issues of Artists Magazine were withheld from Valdez between September 2015 and March 2018, but he allege s Valdez ha s since received all the magazines under section 3006(c)(17)(B)(2)’s artistic material exemption. 3

3 Among the exhibits attached to respondent’s return was a memorandum from CDCR Deputy Director Charle s W. Callahan dated August 20, 2020 . It stated the Division of Adult Institutions conducted further review and determined that Valdez should be allowed to receive the eight withheld issues of Artists Magazine

. Another memorandum dated August 25, 2020, do cument ed that Valdez received the eight magazine issues identified in his petition.6

Respon dent also allege s that San Quentin mailroom staff recently have
been trained on how to apply section 3006(c)(17)(B)(2). In a supporting declaration, San Quentin employee Alex Lile stated he was assigned to supervise the mailroom in Ma y 2020, and he had trained his staff on section 3006(c)(17)(B)(2)’s exemption several times. Lile further declared that he instructed his staff that no publication could be withheld without his

approv al and “any withheld publication must also be approved by CDCR officials at headquarters.” In addition, respondent allege s that, after Valdez filed his petition,

“ CDCR officials at headquarters issued a memorandum to all prisons

state wide directing them to properly apply section 3006, subdivision (c)(17)(B) (2) .” Respondent submitted a memorandum dated August 14, 2019, addressed to wardens and mailroom staff with the subject “ C larification
R egarding E xemptions for S exually E xplicit M aterial.” The memo stated in part , “ Publications may only be denied when ne cessary to satisfy the Department ’ s penological interests, and discretion must be applied when determining which publications meet the criteria for submittal. Allowable publications may include, but should not be limited to, books and magazines containing photographs or depictions of classic statues, paintings, or anatomical illustrations of the human body, including frontal nudity depicted
i n artistic, scientific, medical, or educational publications.

“ Specifically, the California Code of Regulations, T itle 15, Subsection 3006(c)(17)(B)(2) classifies educational, medical/scientific, or artistic materials, including, but not limited to, anatomy medical reference books, general practitioner reference books and/or guides, National Geographic, or
artistic re ference material depicting historical, modern, and/or post modern7

era art, purchased or possessed by Inmates as being approved on a case

- by

case basis.” Respondent allege s Valdez is not per se entitled to all future issues of
Artist s Magazine , noting that the case
- by

- case review of material allowed to inmates is “aimed at preserving prison safety and order.” 4 Finally, respondent allege s San Quentin does not have a blanket ban on inmates possessing images of frontal nudity, noting Valdez admitted he received hundreds of issues of Artists Magazine , some of which contained depictions of frontal nudity. Valdez filed a denial and exception to respondent’s return. He admits
he received all of the magazines that are the subject of his petition , but

argue s the petition is not moot because “ Respondents retain the authority to resume this practice [of arbitrarily withholding magazines subject t o the artistic materials exemption] at any time. ” He further argues that even if the petition is considered moot, the court should resolve this controversy because the issue is of substantial and continuing public interest and is capable of repetition yet evades review.

4 Respondent further allege s that case

- by

- case review (provided for in section 3006(c)(17)(B)(2)) “ is necessary because an image of frontal nudity, even if contained in a n art or educational publication, may depict sexual violence or may nevertheless be so sexually provocative that inmates could use it to harass correctional staff or cause other disturbance within the prisons. ” He cites section 3006(d), which provides, “ Anything in the possession of an inmate which is not contraband but will, if retained in possession of the inmate, present a serious threat to facility security or the safety of inmates and staff, shall be controlled by st aff to the degree necessary to eliminate the threat .”8 DISCUSSION A case is moot when “there may have been an actual or ripe controversy at the outset, but due to intervening events, the case has lost that essential character and, thus, no longer presents a viable context in which the court can grant effectual relief to resolve the matter.” ( Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1222.) “This court is bound to ‘ “decide actual controversies by a judgment
which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” ’ ” ( In re Arroyo (2019) 37 Cal.App.5th 727, 732.) Here, Valdez has received all of the magazines he alleges were improperly withheld, and respondent has agreed to apply the educational and artistic exemption of section 3006(c)(17)(B)(2). Whether future issues of Artists Magazine (or any publication) will qualify for the regulatory exemption will have to be decided on a case

- by

- case basis. Valdez does not challenge the validity of section 3006(c)(17)(B)(2),
which requires approval of exempted material on a case

- by

- case basis. (See Snow v. Woodford (2005) 128 Cal.App.4t h 383, 390

– 393 [ section 3006(c)(17)
does not violate inmate s’ First Amendment rights ] .) Valdez admits the CDCR issued a memo in August 2019 to wardens and prison mailroom staff reminding them of the exemption for artistic, scientific, medical, and
educati onal publications under section 3006(c)(17)(B)(2)

. And he implicitly acknowledge s th at respondent is not currently violating section 3006(c)(17)(B)(2) when he argues respondent could “ resume th[e] practice” of
arb itrarily withholding magazines subject to the regulatory exemption. (Italics added.)9

Finally, Valdez admits t hat he is not entitled to a n order that prevents the CDCR from conducting case

- by

- case review of sexually explicit material

or that requir es de livery of a ll future issues of Artists Magazine without a

case
- by

- case review. Under these circumstances, t here is no justiciable issue left for us to
decide , and the petition is moot . (See In re Arroyo , supra , 37 Cal.App.5th at pp. 732

- 733 [denying ha beas petition as moot where the petitioner already received everything he requested in his petition ; “ There are no justiciable issues left for us to decide ”].) Valdez argues the petition is not moot because he “has no assurance that Respondents will refrain from arbitrarily withholding his magazines or the magazines of others in custody in the future. ” He re lies on In re J.G

. (2008) 159 Cal.App.4th 1056 ( J.G .) , in which it was no ted that “ an appellate court may resolve controversies that are technically moot if the issues are of substantial and continuing public interest ” and that c ourts “ hesitate to consider a case moot where a party voluntarily ceases an allegedly illegal practi ce but is free to resume it at any time. ” ( Id . at pp. 1062 , 1063 .) J.G. is distinguishable. There, the petitioner was in the custody of the CD CR but was serving his sentence outside California as a participant in the Federal Witness Protection Program. He filed a habeas petition challenging the denial of his request to appear in person at his parole hearing , arguing a prison regulation (which provided out

- of

- state prisoners the right to only a telephone hearing) violated his statutory right to appear in person

. ( J.G ., supra , 159 Cal.App.4th at p p. 1061 , 1066 .) The respondent CDCR indicated
that it would arrange for the petitioner to be physically present at his next parole hearing and argued the petition was therefore moot. ( Id . at p p

. 1061, 1063.) At the same time, however, the respondent maintained that the10

statutory right to “ ‘ personal appearance ’ ” did not entitle inmates to be physically present at parole hearings and took the position that the prison regulation allowing only telephonic appearance was valid. ( Id . at pp. 1065

- 1066.) T he Court of Appeal concluded the petition raised “issues of continuing interest to the public, the federal government, and the state government at a time when some California prisoners serve their sentences outside state boundaries .” ( Id . at p. 1063.) The court went on to reject both the respondent’s statutory interpretation and its defense of the regulation , and declared the regulation void

. ( Id . at p p . 1065

- 106 8 .) Thus, J.G. presented legal questions of statutory interpretation and the validity of a regulation , and the answers to those questions were of ongoing interest to the public. 5 Valdez’s petition present s no such legal issues. He and respondent agree that section 3006(c)(17)(B)(2) is valid and provides for

case
- by

- case review of publications that contain frontal nudity.
Valdez a lso argues that even if the petition is considered moot, this court should resolve the controversy because the issue is capable of repetition yet evades review. Again, he relies on J.G ., in wh ich the court observed,

“ Although courts generally avoid issuing advisory opinions on abstract propositions of law, they ‘ should not avoid the resolution of impor tant and well litigated controversies arising from situations which are “ capable of repetition, yet evading review. ” ’ ” ( 159 Cal.App.4th at p. 1062 .) But there is no important and well litigated controversy in this case for th e court to

5 Similarly, Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, also cit e d by Valdez, presented legal question s of first impression ( whether the rules of a board o f realtors violated antit rust law) that were of “substantial interest not only to real estate boards and home

- buyers but also to all trade associations and their members, and to consumers in general. ” ( Id . at pp. 923

- 924, 930.)11

resolve. T he pa rties agree on the law. Nor has Valdez raised a controversy capable of repetition , yet evading r eview. He suspects the prison will “resume” its alleged practice of arbitrarily withholding magazines that should be exempt under section 3006(c)(17)(B)(2) from the ban on sexually explicit material

. But i f the prison were to adopt such a “practice , ” nothing
will prevent Valdez from bringing a habeas petition to challenge it

. In short, the petition is moot, and Valdez has not persuaded u s that there is a controversy we should decide despite mootness. DISPOSITION The order to show cause is discharged, and the petition for writ of habeas corpus is denied as moot.12 _________________________ Miller, J.

WE CONCUR:

_________________________ Kline, P.J.

_________________________ Stewart, J.

A156545, In re Richard Valdez