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Filed 6/8/21 In re Valdez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered 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 Prison,

filed a petition for habeas corpus alleging the prison withheld issues of Artists

Magazine from him in violation of his statutory and constitutional rights. He 

further alleges the prison arbitrarily bans inmates from possessing 

educational and artistic publications that contain nudity in violation of prison 

regulation. Among other things, Valdez seeks a court order that the prison 

deliver to him the September 2015 issue of Artists Magazine, along with 

seven other issues of the magazine alleged to have been improperly withheld. 

Valdez has now received all eight issues of Artists Magazine identified 

in his petition, and the Warden of San Quentin (respondent) argues the 

petition is therefore moot. Valdez counters that his petition is not moot and, 

in any event, the court should resolve 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 on 
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a case-by-case basis, and he does not challenge the validity of the regulation. 

We deny 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 the 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 has 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 has received over 100 issues 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 material 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.
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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, drawing, magazines, or other pictorial 

format allowed.” 

On July 7, 2015, Valdez submitted a first level appeal of the 

disapproval requesting “that his magazine be issued, and that San Quentin 

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.

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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 (regarding 

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 prison 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 appeal, finding that Valdez “failed 

to support his appeal issue with sufficient evidence or fact to warrant a 

modification of” the second level response. 
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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, October 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 issued an order to show 

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

Respondent asserted the petition was moot because the prison agreed to give

Valdez the June 2015 issue of Artists Magazine and, as to the other withheld 

issues of the magazine, Valdez did not exhaust administrative remedies. 

Valdez argued that his petition was not moot, pointing out he was 

challenging the prison’s policy and practice of withholding artistic material 

containing nudity. He also claimed that filing additional administrative 

appeals would have been futile. 

On October 30, 2018, the superior court (Hon. Sheila Lichtblau) denied 

the petition. The court accepted respondent’s position that the petition was 

moot as to the June 2015 issue of the magazine and that Valdez failed to 

exhaust his administrative remedies as to the other magazines. 

Current Habeas Petition

On February 25, 2019, Valdez filed a habeas petition in this court. He 

alleges the Warden and the California Department of Corrections and 
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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 

permitted.” Valdez asks 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 seeks an order “directing respondents to allow all 

individuals in CDCR custody to possess 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 issues of Artists Magazine withheld from 

Valdez and (2) the claim that San Quentin is not properly applying section 

3006(c)(17)(B)(2). Respondent filed a return arguing the petition is moot. He

admits 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 risks. He further admits that eight 

issues of Artists Magazine were withheld from Valdez between September 

2015 and March 2018, but he alleges Valdez has 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 Charles 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, documented that Valdez received the eight magazine issues

identified in his petition. 
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Respondent also alleges 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 May 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 

approval and “any withheld publication must also be approved by CDCR 

officials at headquarters.” 

In addition, respondent alleges that, after Valdez filed his petition, 

“CDCR officials at headquarters issued a memorandum to all prisons 

statewide 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 “Clarification 

Regarding Exemptions for Sexually Explicit Material.” The memo stated in 

part, “Publications may only be denied when necessary 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 

in artistic, scientific, medical, or educational publications. 

“Specifically, the California Code of Regulations, Title 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 reference material depicting historical, modern, and/or post modern 
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era art, purchased or possessed by Inmates as being approved on a case-bycase basis.” 

Respondent alleges Valdez is not per se entitled to all future issues of 

Artists Magazine, noting that the case-by-case review of material allowed to 

inmates is “aimed at preserving prison safety and order.”4 Finally, 

respondent alleges 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

argues the petition is not moot because “Respondents retain the authority to 

resume this practice [of arbitrarily withholding magazines subject to 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 alleges 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 an 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 staff to the degree 

necessary to eliminate the threat.” 
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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.4th 383, 390–393 [section 3006(c)(17) 

does not violate inmates’ 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 

educational publications under section 3006(c)(17)(B)(2). And he implicitly 

acknowledges that respondent is not currently violating section 

3006(c)(17)(B)(2) when he argues respondent could “resume th[e] practice” of 

arbitrarily withholding magazines subject to the regulatory exemption. 

(Italics added.) 
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Finally, Valdez admits that he is not entitled to an order that prevents 

the CDCR from conducting case-by-case review of sexually explicit material 

or that requires delivery of all future issues of Artists Magazine without a 

case-by-case review. 

Under these circumstances, there 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 habeas 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 relies on In re J.G. 

(2008) 159 Cal.App.4th 1056 (J.G.), in which it was noted that “an appellate 

court may resolve controversies that are technically moot if the issues are of 

substantial and continuing public interest” and that courts “hesitate to 

consider a case moot where a party voluntarily ceases an allegedly illegal 

practice 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 

CDCR 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 pp. 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 pp. 1061, 

1063.) At the same time, however, the respondent maintained that the 
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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.) The 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 pp. 1065-1068.) 

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 presents 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 also 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 which the court observed, 

“Although courts generally avoid issuing advisory opinions on abstract 

propositions of law, they ‘should not avoid the resolution of important and 

well litigated controversies arising from situations which are “capable of 

repetition, yet evading review.” ’ ” (159 Cal.App.4th at p. 1062.) But there is 

no important and well litigated controversy in this case for the court to 

5 Similarly, Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 

Cal.3d 920, also cited by Valdez, presented legal questions of first impression 

(whether the rules of a board of realtors violated antitrust 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.)
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resolve. The parties agree on the law. Nor has Valdez raised a controversy

capable of repetition, yet evading review. 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 if 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 us 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.
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_________________________

Miller, J.

WE CONCUR:

_________________________

Kline, P.J.

_________________________

Stewart, J.

A156545, In re Richard Valdez