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Filed 8/3/16 Russell v. Superior Court CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

STEVEN E. RUSSELL, SR., et al.

Petitioners,

v.

THE SUPERIOR COURT OF SAN JOAQUIN 

COUNTY,

Respondent;

STATE OF CALIFORNIA et al.,

Real Parties in Interest.

C080911

(Super. Ct. No. 39-2013-

00300469-CU-PO-STK)

Petitioners Steven E. Russell, Sr., and Sandra Reece petition this court for a writ of 

mandate ordering the superior court to issue an order compelling the California 

Department of Corrections and Rehabilitation (CDCR) to extract material witness and 

inmate, Jerome Sidney DeAvila, from his cell so petitioners can depose him. The trial 
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court denied petitioners’ request for such an order, finding there was no authority for it 

and that the risks of injury and disruption weighed against the order. Although we do not 

condone CDCR’s refusal to make DeAvila available for deposition by whatever means 

legally available to it, we conclude the trial court had discretion to decline to order 

extraction, and accordingly deny the writ.

BACKGROUND

In 2013, DeAvila raped and murdered his grandmother Racheal Russell. The 

following year, he was convicted of these crimes and sentenced to 25 years to life in 

prison. Petitioners are the son and daughter of Racheal Russell, the victim; and petitioner 

Sandra Reece is also DeAvila’s mother. After the murder, petitioners brought a wrongful 

death lawsuit against the State of California, the CDCR, and the County of San Joaquin, 

alleging negligence in the failure to warn of DeAvila’s release from state custody before 

the murder and the failure to affix an ankle bracelet GPS monitoring device before his 

release. 

The first amended complaint alleged that DeAvila had a lengthy criminal history 

of sex crimes, drugs, and violence, and was on parole at the time of the murder. One 

requirement of his parole was that he wear a GPS tracking device around his ankle. Due 

to a sex crime conviction, DeAvila was not allowed to go near a school; his 

grandmother’s house was near a school. The year before the murder, the police arrested 

DeAvila 16 times for violations of parole or other criminal activity; each time they 

released him. 

The complaint alleged that both the state parole officers and the county jail 

personnel knew, or should have known, that DeAvila often went to his grandmother’s 

house. They also knew DeAvila had threatened his grandmother. Three days before the 

murder, the police arrested DeAvila for violation of parole. He was under the influence 

of drugs or alcohol and had removed his GPS device. County officials again released 
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DeAvila, without notifying his grandmother or reaffixing the GPS device; state parole 

officials concurred in the decision. 

Petitioners gave notice that they would take DeAvila’s deposition, first scheduled 

for January 8, 2015, then for March 2, at the California Health Care Facility in Stockton 

where he was housed. On March 2, arrangements were made to take DeAvila’s 

deposition in a meeting room to accommodate the court reporter, but DeAvila refused to 

participate. He refused to come out of his cell. DeAvila had previously told prison

officials he would not permit a videotaped deposition. 

Petitioners believed DeAvila was an “important witness” and “necessary and 

material” to their case. They wanted to question him about what he had told parole and 

County officials about his relationship with his grandmother and his feelings and anger 

towards her. Pursuant to Penal Code section 2623, they obtained a court order requiring 

DeAvila to participate in the deposition and answer all questions.1 Again, De Avila 

refused to come out of his cell. CDCR declined to forcibly extract him. 

Petitioners moved to compel CDCR to forcibly extract DeAvila from his cell at 

the California Health Care Facility. The motion was supported by the declaration of 

Gerry Garcia. Garcia had worked at the California Youth Authority for over 25 years, 

retiring as Captain, Chief of Security. He understood DeAvila had a history of refusing 

to come out of his cell and Garcia believed that he had probably been extracted many 

times. In Garcia’s experience, 70 percent of the time, an inmate will voluntarily come 

out of the cell when faced with forcible extraction. He saw no reason why DeAvila could 

 

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 Penal Code section 2623 provides in part: “If in a civil action or special proceeding a 

witness be a prisoner, confined in a state prison within this state, an order for the 

prisoner's examination in the prison by deposition may be made.” This procedure is in 

lieu of the usual deposition subpoena to a non-party witness. (See Code Civ. Proc., 

§§ 2020.210, 2020.310.)
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not be extracted from his cell. Garcia stated, “Inmates are extracted all the time for 

different reasons.” 

The Warden of Mule Creek State Prison, where DeAvila was then housed, 

opposed the motion, contending there was no authority for compelling an extraction. The 

warden argued, among other things, that DeAvila was no longer at the California Health 

Care Facility; he was in the general population at Mule Creek State Prison, with minimal 

restrictions on his movement. This placement made a cell extraction more problematic. 

Further, there was no guarantee that DeAvila would answer deposition questions after the 

extraction, and any use of force or chemical agents would likely make him less 

cooperative. 

The opposition was supported by the declaration of R. Roy, a facility captain at 

Mule Creek State Prison. Roy detailed the procedure for the involuntary removal of an 

inmate from his cell. Absent an imminent threat to the inmate or staff, any cell extraction 

would be “controlled” and would require extensive tactical planning, a large amount of 

equipment, and a large number of staff. Before the extraction, staff would assess 

DeAvila’s mental health, medical history, and disciplinary history. A controlled 

extraction is time consuming and could take all day. First, there would be a cool down 

period to permit the inmate to comply with the order. This period includes clinical 

intervention by a licensed mental health practitioner and may include dialogue with 

religious leaders, correctional counselors, or other staff who have developed a rapport 

with DeAvila. Because DeAvila was in the general population rather than a segregated 

unit, the cell extraction would be more difficult. Because he was receiving mental health 

services, certain tools such as chemical agents may be prohibited. The actual 

confrontation could result in harm to DeAvila or staff. A cell extraction disrupts the 

prison environment and may lead to other violence. 
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The trial court denied the motion to compel a cell extraction. It found no authority 

for such an order and found that balancing the risk of injury and disruption weighed 

against ordering extraction. 

Petitioners petitioned this court for a writ of mandate directing the trial court to 

vacate its order and to enter a new order granting the motion to compel the cell 

extraction. We issued an order to show cause. 

DISCUSSION

I

Writ of Mandate and Standard of Review

“A writ of mandate will lie to ‘compel the performance of an act which the law 

specifically enjoins, as a duty resulting from an office, trust, or station’ (Code Civ. Proc., 

§ 1085) ‘upon the verified petition of the party beneficially interested,’ in cases ‘where 

there is not a plain, speedy, and adequate remedy, in the ordinary course of law.’ (Code 

Civ. Proc., § 1086.) The writ will issue against a county, city or other public body or 

against a public officer. [Citations.] However, the writ will not lie to control discretion 

conferred upon a public officer or agency. [Citations.] Two basic requirements are 

essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon 

the part of the respondent [citations]; and (2) a clear, present and beneficial right in the 

petitioner to the performance of that duty [citations].” (People ex rel. Younger v. County 

of El Dorado (1971) 5 Cal.3d 480, 490-491.)

Ordinarily, writ review of discovery orders is disfavored and the aggrieved party 

must raise the issue on direct appeal from a final judgment. (Sav-On Drugs, Inc. v. 

Superior Court (1975) 15 Cal.3d 1, 5.) “As a result, writ review of discovery rulings are 

limited to situations where (1) the issues presented are of first impression and of general 

importance to the trial courts and to the profession [citation], (2) the order denying 

discovery prevents a party from having a fair opportunity to litigate his or her case 
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[citations], or (3) the ruling compelling discovery would violate a privilege [citations].” 

(Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1061 (Johnson).)

Here, we review whether the trial court must compel prison authorities to forcibly 

extract DeAvila from his cell to attend a deposition in a civil case to which he is not a 

party. We issued an order to show cause and proceed to analyze whether CDCR’s refusal 

to forcibly remove DeAvila from his cell for deposition, and the trial court’s subsequent 

refusal to order CDCR to do so, constituted a violation of the trial court’s clear duty to 

enter the order. We conclude the trial court does not have a clear duty to make the order 

at issue here.

We recognize that CDCR is declining to forcibly produce a witness, over which it 

alone has physical control, for deposition in a case in which CDCR is the defendant. 

Further, CDCR stands accused of misconduct in its failure to monitor defendant, and to 

take any steps to prevent him from doing harm to his grandmother and to warn her that he 

posed a threat. Despite these compelling facts and circumstances, and CDCR’s apparent 

conflict of interest as it plays the dual roles of defendant’s custodian as well as the entity 

about whose conduct the plaintiffs seek information, the issue presented--compelling 

defendant’s custodian to force him to attend a deposition which he has refused to attend--

boils down to a civil discovery issue.

“Management of discovery lies within the sound discretion of the trial court. 

Consequently, appellate review of discovery rulings is governed by the abuse of 

discretion standard. [Citation.] Where there is a basis for the trial court’s ruling and the 

evidence supports it, a reviewing court will not substitute its opinion for that of the trial

court. [Citation.] The trial court’s determination will be set aside only when it has been 

demonstrated that there was ‘ “no legal justification” ’ for the order granting or denying 

the discovery in question. [Citations.]” (Johnson, supra, 80 Cal.App.4th at p. 1061.)
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II

No Abuse of Discretion in Denying Plaintiffs’ Motion

Petitioners contend the trial court abused its discretion in denying their motion to 

compel the cell extraction of DeAvila and force him to attend the deposition. Because a 

trial court has broad discretion in discovery matters, the issue before us is whether on 

these facts the trial court was required to order DeAvila’s extraction.

Under CDCR policy, controlled force may be used “to gain compliance with a 

lawful order.” (Cal. Code Regs., tit. 15, § 3268(a)(4).) Thus, the regulations permit a 

cell extraction for purposes of gaining compliance with a court order. These regulations, 

however, do not address who may order that use of force. 

Petitioners contend the trial judge could order extraction under Penal Code section 

2623 and Code of Civil Procedure section 128. As noted, the trial court had previously 

issued the order for DeAvila to participate in the deposition pursuant to Penal Code

section 2623. That section, however, does not provide that the court may also order that 

the inmate witness be extracted from his cell and brought to the deposition against his 

will. 

A trial court may hold a noncompliant witness in contempt for failing to attend a 

deposition. (Code Civ. Proc., § 2020.240.) The remedy is the same for noncompliance 

with a grand jury subpoena. “There can be no question that courts have inherent power 

to enforce compliance with their lawful orders through civil contempt. [Citations.] And 

it is essential that courts be able to compel the appearance and testimony of witnesses. 

[Citation.] A grand jury subpoena must command the same respect. [Citation.] Where 

contempt consists of a refusal to obey a court order to testify at any stage in judicial 

proceedings, the witness may be confined until compliance. [Citations.]” (Shillitani v. 

United States (1966) 384 U.S. 364, 370-371 [16 L.Ed.2d 622].) While contempt may 

include conditional confinement, we are aware of no authority--and petitioners provide 
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none-- that permits a court to order the recalcitrant witness be forcibly brought to the 

place of the deposition (instead of to jail to serve time for contempt). 

Petitioners contend the extraordinary remedy of compelled cell extraction is 

necessary in this case because the usual remedy of contempt is ineffectual. The trial 

court acknowledged the uselessness of contempt in this case, stating at the hearing that it 

does no good to hold in contempt a prisoner serving a 25-year-to-life sentence. 

Code of Civil Procedure section 128, subdivision (a)(4) provides that every court 

shall have the power to “compel obedience to its judgments, orders, and process.” “This 

statute has codified the principle of ‘[t]he inherent power of the trial court to exercise 

reasonable control over litigation before it, as well as the inherent and equitable power to 

achieve justice and prevent misuse of processes lawfully issued . . . .’ [Citation.]” 

(Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1021.) The court 

may exercise this power by punishing the failure to appear and participate in a deposition 

as a contempt. (Lund v. Superior Court (1964) 61 Cal.2d 698, 714; Code Civ. Proc., 

§§ 2023.010, subd. (d), 2023.030, subd. (e).) In such circumstances, “the court has no 

power to proceed in any manner other than as in a contempt.” (Lund, at p. 713.)

But assuming Code of Civil Procedure section 128, or the court’s inherent 

authority to administer judicial proceedings (see People v. Engram (2010) 50 Cal.4th 

1131, 1146), can be construed as granting the court the authority to order prison officials 

to extract DeAvila from his cell to attend the deposition, the question here is whether the 

trial court abused its discretion by not making that order. We conclude the answer is no.

Petitioners contend the order of extraction is necessary to protect their due process 

rights in the civil action. We recognize that due process rights are implicated. “One of 

the elements of a fair trial is the right to offer relevant and competent evidence on a 

material issue.” (3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 3, p. 29.) 

That due process is implicated, however, does not alone grant a trial court open-ended 

authority to order prison officials to move inmates about. For example, a court cannot 
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compel the transfer of an inmate to a civil courtroom. (See Payne v. Superior Court 

(1976) 17 Cal.3d 908, 924 [court “may attempt, through the Department of Corrections, 

to arrange the presence of the prisoner. Except in a few specified circumstances, a court 

has no statutory authority to command the Department of Corrections to transport a 

prisoner to a civil courtroom”]; Swarthout v. Superior Court (2012) 208 Cal.App.4th 701, 

706-707 [“our Supreme Court is of the opinion that trial courts lack the power to transfer 

inmates outside of the situations specifically provided for by statute”]; Pen. Code, § 2621 

[permitting removal of prisoner to court for criminal actions].) 

Further, here the trial court’s actions are not impeding petitioners’ due process 

rights. It is DeAvila who is refusing to be deposed, and the CDCR is declining to 

forcibly remove him from his cell to go to the location established for the deposition. 

The court is not denying petitioners the right to depose DeAvila or to present his 

testimony at trial. Instead, the trial court has already issued an order compelling DeAvila 

to attend and answer questions at a deposition. The record shows he refused to come out 

of his cell because he did not want to participate in the deposition; earlier, DeAvila said 

he refused to be videotaped. The court cannot compel DeAvila to speak. Due process 

requires only that a party be allowed the opportunity to be heard--not that he actually be

heard. (See 3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 3, p. 31, citing 

Goldstein v. Goldstein (1963) 220 Cal.App.2d 369 [no denial of due process to deny 

continuance where party becomes insane].)

Petitioners contend the trial court erred in relying on the risks to correctional 

officers, DeAvila, and other inmates, as set forth in Roy’s declaration. They contend 

such risks are speculative and an actual cell extraction may not be necessary once 

DeAvila is informed it will occur. Petitioners rely on Garcia’s declaration that in his 

experience 70 percent of inmates voluntarily comply when faced with the use of force. 

First, we note Garcia’s experience is only with juveniles. Further, we find no error 

in deferring to prison officials on this matter. As the United States Supreme Court has 
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stated: “Prison administrators therefore should be accorded wide-ranging deference in 

the adoption and execution of policies and practices that in their judgment are needed to 

preserve internal order and discipline and to maintain institutional security. [Citations.] 

‘Such considerations are peculiarly within the province and professional expertise of 

corrections officials, and, in the absence of substantial evidence in the record to indicate 

that the officials have exaggerated their response to these considerations, courts should 

ordinarily defer to their expert judgment in such matters.’ [Citation.] We further observe 

that, on occasion, prison administrators may be ‘experts’ only by Act of Congress or of a 

state legislature. But judicial deference is accorded not merely because the administrator 

ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain 

than the reviewing judge, but also because the operation of our correctional facilities is 

peculiarly the province of the Legislative and Executive Branches of our Government, 

not the Judicial. [Citations.]” (Bell v. Wolfish (1979) 441 U.S. 520, 547-548 [60 L.Ed.2d 

447].)

Petitioners contend the trial court neglected to address CDCR’s self-interest in 

whether DeAvila attends the deposition. CDCR is a defendant in the civil action and it is 

refusing to procure a witness for the plaintiffs. We have recognized that CDCR does

have an apparent conflict of interest. Petitioners, however, have failed to show that 

CDCR is in any manner preventing them from taking DeAvila’s deposition. In fact, 

petitioners admit “[t]here is no evidence that CDCR has interfered with Mr. DeAvila’s 

deposition.” 

The trial court did not abuse its discretion in declining to compel prison officials to 

forcibly remove DeAvila from his cell to attend the deposition. Considerations of the 

change in DeAvila’s circumstances and housing, the potential risk to his safety and the 

safety of others, and the disruption to the prison environment all support the trial court’s 

decision.
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DISPOSITION

The petition for writ of mandate is denied. Real Parties in Interest are awarded 

costs. (Cal. Rules of Court, rule 8.493(a)(1)(A).)

 /s/

Duarte, J.

We concur:

 /s/

Nicholson, Acting P. J.

 /s/

Butz, J.