In re Mello CA5

Filed 9/21/22 In re Mello 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 WILLIAM MELLO, F082667
On Habeas Corpus. (Kern Super. Ct. No. HC016544A)
OPINION
THE COURT*
APPEAL from an order granting writ of habeas corpus. David R. Zulfa, Judge.
Rob Bonta, Attorney General, Phillip J. Lindsay, Assistant Attorney General,
Maria G. Chan and Colby Mills, Deputy Attorneys General, for Appellant Christian
Pfeiffer, Warden of Kern Valley State Prison.
Scott Concklin, under appointment by the Court of Appeal, for Respondent
William Mello.
-ooOoo-
* Before Levy, Acting P. J., Franson, J. and Peña, J.
INTRODUCTION
William Mello (respondent) is currently serving a sentence of life without the
possibility of parole for murder. In 2019, a prison official found him guilty of possessing
contraband based on the discovery of a sewing needle secreted inside of a pen on his
bunk. As a sanction for the violation, the prison assessed a 30-day loss of credits and
other inmate privileges.
Respondent challenged the disciplinary finding in a petition for writ of habeas
corpus, arguing he was authorized to possess the needle for religious purposes. The
superior court granted the petition, ruling the prison failed to produce “some evidence”
respondent was not authorized to possess the needle.
The prison (appellant) appeals from the superior court’s ruling. We conclude the
superior court’s ruling does not comport with the applicable standard of review for prison
disciplinary proceedings, and that the prison’s guilty finding was supported by “some
evidence.” We reverse.
BACKGROUND
In May 2019, during a random search of respondent’s cell, a correctional officer
discovered two sewing needles “inside some writing pens on [respondent’s] assigned
[b]unk.” Respondent admitted the needles belonged to him and told the correctional
officer he had possessed them for a long time and had forgotten about them. The
correctional officer examined the sewing needles and concluded they are the same type of
needles used in Prison Industry Authority (PIA). Based on the discovery of the needles,
the correctional officer authored a “Rules Violation Report” for “Possession of
[D]angerous [C]ontraband.” (Cal. Code Regs., tit. 15, § 3006, subd. (a).)1
1 All further regulatory references are to title 15 of the California Code of
Regulations.
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Respondent pled not guilty at his disciplinary hearing. He elected to give a
statement and told the hearing officer he was “using the needles” for his “[N]ative
[A]merican stuff,” and that one needle is for “beading,” and one is for “leather work.”
Respondent presented no other evidence and called no witnesses. At the conclusion of
the hearing, the hearing officer found respondent guilty and assessed a 30-day loss of
credits and other inmate privileges. The hearing officer based his finding on the report of
the correctional officer who discovered the needles, and “photographic evidence which
depicts … 2 needles 1 used for sewing and 1 from a sewing machine used in PIA.”
Respondent exhausted his administrative remedies through the prison and filed a
habeas petition in the superior court. In the petition, respondent alleged there was
insufficient evidence to support his disciplinary finding because, as a Native American
inmate, he was authorized to possess two sewing needles. Respondent cited to the
prison’s “Religious Personal Property Matrix,” which allows eligible inmates to possess
“Beading Materials,” including “Needles, limited to 2 per inmate, size 10 and/or 12.”
(§ 3190, subd. (b).)
The superior court issued an order directing appellant to submit an informal
response, stating it had insufficient information to adjudicate the writ petition. At the
superior court’s direction, appellant provided a photograph of the two needles found in
respondent’s cell, a photograph of a needle from a sewing machine used by the PIA, and
a photograph of needles approved for possession by “Native American Indigenous
inmate[s].” The photograph of approved needles includes exemplars of “SHARPS”
needles, sizes 10 and 12. In the informal response, appellant stated it does not dispute
that respondent is classified as a “Native American Indigenous inmate,” and as such,
“may possess up to two needles, of size 10 or size 12.”
After receiving informal briefing from both parties, the superior court issued an
order to show cause, stating:
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“Upon a review of these photographs it does appear that the needles found
in [respondent’s] cell resemble those approved for a Native American
Indigenous inmate to possess and do not resemble the type of needles used
by PIA in the sewing machines. Specifically, a sewing machine needle
such as used by the PIA has an eyelet near the sharp end of the needle
whereas beading and leather/boot needles both have the eyelet opposite the
sharp end of the needle.”
Appellant filed a return to the order to show cause and submitted a declaration
from the hearing officer who conducted respondent’s disciplinary hearing. In the
declaration, the hearing officer further explained his reasons for finding respondent
guilty:
“I specifically recall that while presiding over [respondent’s] May
29, 2019 disciplinary hearing, I compared a picture of the needles found in
[respondent’s] bunk with an actual needle used in a [PIA] sewing machine.
I found that one needle, the heavier, thicker needle, was from a PIA sewing
machine. PIA sewing needles are not authorized for possession by Native
American Indigenous Inmates. I found that the other needle was a hand
sewing needle, not from a PIA sewing machine.”
The superior court granted respondent’s habeas petition without ordering an
evidentiary hearing, stating:
“This Court finds, based on the photographs of the needles in question and
examples of needles used for beading and leather work - size 10 or 12 and
PIA needles provided by [respondent] and [appellant], the needles found in
[respondent’s] cell resemble those approved for possession by a Native
American Indigenous inmate and do not resemble needles used by
PIA in the sewing machines.
“The Court finds [appellant] failed to produce ‘some evidence’ in support
of the [rules violation report] that the needles found in [respondent’s] cell
were contraband for a Native American Indigenous inmate to possess.”
DISCUSSION
Appellant contends the hearing officer’s finding that respondent was guilty of
possessing contraband was supported by sufficient evidence, and that the superior court’s
4.
order granting the habeas petition cannot be reconciled with the highly deferential “some
evidence” standard of review. We agree.
I. Standard of Review.
A. We review the superior court’s ruling de novo.
“In a habeas corpus proceeding, once the issues have been properly joined, the
court may grant (or deny) the relief sought without ordering an evidentiary hearing as
long as resolution of the petition does not depend on any disputed issue of fact.
[Citation.] When this procedure is employed … to review the evidentiary basis for prison
disciplinary action, the trial court’s task is simply to evaluate whether, given the
documentary record summarizing the facts accepted by the parties, there is sufficient
evidence to support the action taken. In such circumstances, the usual deference that
would apply to the review of a trial court’s ruling based on its superior ability to resolve
factual questions (e.g., the credibility of witnesses appearing before it) is unwarranted.
The facts being undisputed, the question presented on appeal is a question of law, and we
review such questions de novo.” (In re Zepeda (2006) 141 Cal.App.4th 1493, 1497
(Zepeda).)
Here, the superior court’s ruling was based on a set of undisputed facts, as it relied
on information that was before the hearing officer. The superior court reviewed the
photograph of the needles from respondent’s cell and found they look more like the
needles he is authorized to possess than the PIA sewing machine needles he is not
authorized to possess. Although additional evidence, such as the declaration of the
hearing officer, was added after the superior court issued an order to show cause, it did
not create a conflict in the evidence and merely served to clarify the evidence at the
disciplinary hearing, which was not contemporaneously recorded. Therefore, we apply a
de novo standard of review, and afford no deference to the superior court’s ruling.
(Zepeda, supra, 141 Cal.App.4th at p. 1497; In re DeLuna (2005) 126 Cal.App.4th 585,
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591 [“When, as here, the trial court rules on a habeas corpus petition without conducting
an evidentiary hearing, we independently review the documentary evidence on appeal.”].)
B. We review the hearing officer’s disciplinary finding for “some
evidence.”
“Prisoners are entitled to minimal due process safeguards in disciplinary matters
involving the possible loss of early release credits.” (In re Rigsby (2019) 38 Cal.App.5th
1011, 1016–1017, citing Wolff v. McDonnell (1974) 418 U.S. 539, 558.) “[D]ue process
in this context requires only that there be some evidence to support the findings made in
the disciplinary hearing.” (Superintendent v. Hill (1985) 472 U.S. 445, 457 (Hill).)
Thus, “to insure that the prisoner is not arbitrarily deprived of good conduct credits, the
findings of the prison authorities must be supported by ‘some evidence.’ ” (In re
Rothwell (2008) 164 Cal.App.4th 160, 165 (Rothwell).)
The “some evidence” standard of review is “extraordinarily deferential.” (Zepeda,
supra, 141 Cal.App.4th at p. 1498.) “Ascertaining whether this standard is satisfied does
not require examination of the entire record, independent assessment of the credibility of
witnesses, or weighing of the evidence. Instead, the relevant question is whether there is
any evidence in the record that could support the conclusion reached by the disciplinary
board.” (Hill, supra, 472 U.S. at pp. 455–456.) Reversal is not appropriate even if “in
the reviewing court’s view, there is a realistic possibility the prisoner being disciplined is
not guilty of the charged infraction.” (Zepeda, supra, 141 Cal.App.4th at p. 1498.)
Respondent contends that a more stringent standard of review is appropriate
because Penal Code section 2932, subdivision (c)(5), which states that prison rule
violations must be found by a preponderance of the evidence, created a higher standard of
proof than what is mandated by federal due process. (See Hill, supra, 472 U.S. at
p. 456.) We disagree. Application of the “some evidence” standard to the review of
prison disciplinary findings in California prisons is well established. (See Zepeda, supra,
141 Cal.App.4th at p. 1498; Rothwell, supra, 164 Cal.App.4th at pp. 165–166; In re
6.
Rigsby, supra, 38 Cal.App.5th at p. 1017; In re Johnson (2009) 176 Cal.App.4th 290,
299–300.) In Rothwell, the court held that Penal Code section 2932, subdivision (c)(5),
has no bearing on the standard of review, because “appellate review of factual findings is
‘governed by the degree to which it is appropriate to presume correctness of such
determinations.’ ” (Rothwell, at p. 166.) The court explained that a deferential standard
of review is warranted in this context given that inmates facing disciplinary action by a
prison are not entitled to the “ ‘full panoply of rights’ ” afforded to criminal defendants,
and because prison administrators face the unique and difficult challenge of maintaining
order and ensuring the safety of guards and inmates. (Id. at pp. 166–167.)
Respondent argues Rothwell’s reasoning has been undermined by Conservatorship
of O.B. (2020) 9 Cal.5th 989, which held that, when reviewing a finding made by clear
and convincing evidence, “an appellate court must attune its review for substantial
evidence to the heightened degree of certainty required by this standard.”
(Conservatorship of O.B., supra, 9 Cal.5th at p. 997.) Respondent contends we should
apply similar logic to his disciplinary finding based on the heightened evidentiary
standard required by Penal Code section 2932, subdivision (c)(5). We decline to do so.
Conservatorship of O.B. addresses the applicable standard of review of an order
appointing a limited conservatorship in a probate matter. (Conservatorship of O.B., at
p. 995.) It has nothing to do with prison discipline. While the high court’s holding
applies broadly to review of all findings by clear and convincing evidence, the opinion
makes no mention of the “some evidence” standard. Accordingly, we decline to deviate
from Rothwell.
II. The hearing officer’s ruling was supported by “some evidence.”
The hearing officer’s ruling was based on two findings. First, the hearing officer
found the needles constituted “dangerous property” within the meaning of applicable
prison regulations. (§ 3006, subd. (a).) Second, the hearing officer found one of the two
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needles did not meet the exception for personal religious property. Upon review of the
record, we conclude both findings were supported by “some evidence.”
A. Respondent possessed “dangerous property.”
Respondent was found guilty of possessing “dangerous property” in violation of
section 3006, subdivision (a). This subdivision states, in pertinent part: “Inmates shall
not possess or have under their control or constructive possession any weapons ….”
Respondent does not dispute that he possessed the needles. The remaining
question is whether his needles constituted weapons. We conclude they do. We agree
with the hearing officer’s statement that needles “present a threat to the safety of staff and
inmates, and security of the institution,” and that they can be “used to create weapons,
which may then be used against other inmates or staff.” Needles are sharp objects
designed to puncture. Even in their unaltered state, respondent’s needles could have been
used to inflict significant injury on an inmate or staff member. When combined with
other materials, such as a handle, their potential danger becomes even greater.
Accordingly, we conclude the hearing officer’s conclusion the needles were “dangerous
property” was supported by “some evidence.”
B. One of respondent’s needles did not meet the exemption for religious
personal property.
The remaining issue is whether respondent was nonetheless authorized to possess
the needles as religious personal property. We conclude “some evidence” supports the
hearing officer’s conclusion that one of the two needles did not meet the applicable
exemption.
Appellant does not dispute that respondent was entitled to possess two needles as
described in the “Beading Materials” section of the Religious Personal Property Matrix.
Section 3190, subdivision (b) authorizes eligible inmates to possess specific “religious
personal property” items as set forth in the Religious Personal Property Matrix, which is
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incorporated into the regulation by reference.2 The matrix sets forth various categories of
qualifying religious personal property items, such as “altar cloth” and “prayer oil.”
Respondent relies on a category titled “Beading Materials,” which states:
“Beads may be wood, plastic, or natural material (i.e. stone, bone, seed,
etc.) no larger than 1/4” in diameter. Total quantity limited to 12 hanks.
Finished items shall be multi colored. Sinew or String in rolls no greater
than 50 feet in length. Needles, limited to 2 per inmate, size 10 and/or 12.
Any misuse of beading materials may result in loss of this privilege.”
(Italics added.)
We have reviewed the photographs of respondent’s needles, the photograph of an
exemplar sewing machine needle from the PIA, and the photograph submitted by
appellant of needles approved for possession by “Native American Indigenous
inmate[s].” These photographs support the hearing officer’s finding. One of
respondent’s needles is significantly thicker than the other. This thicker needle, when
compared to the two exemplars, looks more like the PIA sewing machine needle. The
thinner needle, on the other hand, looks more like the approved size 10 or size 12 sewing
needles. We, therefore, agree with the hearing officer’s assessment of the evidence. The
thicker of the two needles was too thick to be an authorized needle.
We also find the manner in which respondent stored the needles constituted
consciousness of guilt. Respondent did not possess the needles openly. We are not
persuaded, as was the superior court, by respondent’s claim he placed the needles inside
of his pens as a means of safe storage. The more reasonable conclusion is that
respondent hid the needles in the pens because he knew he was not allowed to possess
one of them.
2 The updated Religious Personal Property Matrix can be accessed at the public
website for the California Department of Corrections and Rehabilitation:

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Following the superior court’s reasoning, respondent contends the thicker needle
could not have been a PIA sewing machine needle because of the position of its eye. He
asserts it is “common knowledge” that a hand sewing needle has the eye at the blunt end,
whereas a sewing machine needle has the eye closer the sharp end. We disagree. The
identification of different types of sewing needles requires specialized knowledge related
to a trade and hobby that is not universally practiced. Even if we were to accept
respondent’s general premise that many, or even most, sewing machine needles have an
eye closer to the sharp end, we certainly could not conclude, on this record, that all
sewing machine needles are so configured. Sewing is an expansive trade that involves
many different tools for many different tasks. Because there is nothing in the record
describing the type of equipment used in the PIA, we do not presume to know what type
of sewing machine needles are used. Instead, we rely on the hearing officer’s
institutional knowledge. In the absence of evidence to the contrary, we accept the
hearing officer’s conclusion that the thicker of respondent’s needles was a PIA sewing
machine needle.
Respondent also argues that even if the thicker needle was a PIA sewing machine
needle, he is authorized to possess it because it is still a “needle” within the meaning of
the Religious Personal Property Matrix. This argument ignores that the section
authorizing possession of two needles specifies that the needles are “beading materials.”
(See People v. Rodriguez (2012) 55 Cal.4th 1125, 1131 [“ ‘[W]henever possible,
significance must be given to every word [in a statute] in pursuing the legislative
purpose, and the court should avoid a construction that makes some words
surplusage.’ ”].) Interpreting this category of the Religious Personal Property Matrix as
allowing possession of a sewing machine needle would not comport with all applicable
regulatory language. Moreover, the acquisition of property by inmates, including
religious personal property, is limited to authorized vendors. (§ 3190, subd. (k)(4)
[“Special purchases of religious items will be from departmentally-approved vendors of
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religious items only”], § 3190, subd. (g) [Inmates may only receive packages ordered
from “a departmentally-approved inmate package vendor”].) No regulation authorizes
the requisition of religious personal property from the PIA. Thus, a PIA sewing machine
needle is not exempted by the Religious Personal Property Matrix and constitutes
contraband.
The highly deferential “some evidence” standard requires only a “modicum of
evidence.” (Hill, supra, 472 U.S. at p. 450.) Based on our de novo review, we conclude
the superior court did not afford the hearing officer the appropriate level of deference.
The hearing officer found, based on his experience and institutional knowledge, that one
of respondent’s needles was a PIA sewing machine needle, and not of the type approved
for possession by inmates as religious property. This was sufficient to support the
disciplinary finding. Accordingly, we conclude the superior court erred by failing to find
the hearing officer’s ruling was supported by “some evidence.”3
DISPOSITION
The superior court’s order granting respondent’s petition for writ of habeas corpus
is reversed.
3 Appellant also contends the superior court lacked habeas jurisdiction, arguing his
loss of credits did not implicate due process because he is serving a sentence of life
without the possibility of parole. Because we reject respondent’s habeas claim on the
merits, we need not address this contention.
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