In re Cabrera

Filed 10/29/12

IN THE SUPREME COURT OF CALIFORNIA

In re ELVIN CABRERA, )
) S197283
on Habeas Corpus. )
____________________________________) Ct.App. 5 F059511

Prison regulations promulgated by the California 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” (Cal. Code Regs., tit. 15, § 3023, subd. (b)), validation of an inmate as a
gang member or associate can result in the inmate‟s placement in a security
housing unit (SHU).
The current dispute arose when the CDCR validated petitioner Elvin
Cabrera as a gang associate—i.e., “an inmate . . . who is involved periodically or
regularly with members or associates of a gang.” (Cal. Code Regs., tit. 15, § 3378,
subd. (c)(4) (hereafter section 3378)). Under section 3378, validation of an inmate
as an “associate” requires at least three “independent source items of
documentation indicative of association” with persons who have been classified as
gang members or associates. (Ibid.) At least one of the source items must be a
“direct link” to a current or former gang member or associate. (Ibid.)
The question presented for our review, which involves the meaning of this
prison regulation, is very narrow. In essence, the CDCR contends that the Court

1
of Appeal erred by independently interpreting the scope of the regulation‟s
requirement of a “direct link” between the inmate and a gang member or associate
with respect to one category of source items—a category called “Association”
(§ 3378, subd. (c)(8)(G))—instead of deferring to the CDCR‟s interpretation of its
own regulation.1 For the reasons that follow, we agree the Court of Appeal failed
to accord due deference to the CDCR‟s interpretation of its own regulations, and
therefore reverse the judgment awarding habeas corpus relief and remand the
matter to the Court of Appeal for further proceedings.
BACKGROUND
In 2003, Cabrera was convicted of robbery, burglary, receiving stolen
property, and possession of drug paraphernalia. He was sentenced to prison for 62
years to life. He is incarcerated at the California Correctional Institution at
Tehachapi.
On May 13, 2008, Cabrera was officially identified—or “validated,” in the
words of the CDCR regulation (§ 3378, subd. (c)(4))—as an associate of the
Mexican Mafia prison gang. The validation was based on the discovery in his
prison cell of several photocopied drawings containing symbols distinctive to the
gang. Two of the drawings were signed by validated affiliates2 of the Mexican
Mafia.

1 Section 3378 uses the term “association” in two different contexts: first in
subdivision (c)(4) to explain that “identification” as an “associate” requires at least
three independent source items of documentation “indicative of association,” and
later in subdivision (c)(8)(G) as the label (“Association”) for one category of
source items. In this opinion, we address the term‟s meaning only in the latter
context.
2 Like the parties, we use the term “affiliate” to refer collectively to gang
members and associates.

2
 Cabrera challenged his validation through the CDCR administrative appeal
process, but his appeal was denied. Cabrera then filed a petition for writ of habeas
corpus in Kern County Superior Court. The superior court denied the petition,
finding that his validation as a gang associate was supported by three source items
of gang validation with two direct links to gang affiliates.
Cabrera filed an original petition in the Court of Appeal, which issued an
order to show cause and then granted relief in a published opinion. The Court of
Appeal‟s decision to grant relief rested on a disagreement with the CDCR over the
interpretation of the CDCR‟s own regulation. In the view of the Court of Appeal,
the regulation providing that at least one source item indicative of association with
validated gang affiliates be a “direct link” to a current or former validated gang
affiliate (§ 3378, subd. (c)(4)) required in these circumstances a “reciprocal (i.e.,
mutual or two-way) interaction between the two individuals forming the
relationship.” Having found insufficient evidence of such a reciprocal
relationship, the Court of Appeal granted the writ and ordered the CDCR to
expunge Cabrera‟s validation as an associate of the Mexican Mafia gang and to
cease housing Cabrera in the SHU to the extent the assignment had been based on
the gang validation. In light of its disposition, the Court of Appeal found it
unnecessary to consider Cabrera‟s other challenges to the validation order.
We granted review to resolve a question of law concerning the deference
owed to the CDCR in interpreting its own regulations governing the identification
of inmates as prison-gang affiliates.
DISCUSSION
It is a “ „black letter‟ proposition” that there are two categories of
administrative rules—quasi-legislative rules and interpretive rules—and that the
distinction between them derives from their different legal foundations and
ultimately from the constitutional doctrine of the separation of powers. (Yamaha

3
Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 10 (Yamaha).)
Quasi-legislative rules are those that the agency promulgates as part of the
lawmaking power the Legislature has delegated to it, and are subject to “very
limited” review. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1012.) “ „The
courts exercise limited review of legislative acts by administrative bodies out of
deference to the separation of powers between the Legislature and the judiciary, to
the legislative delegation of administrative authority to the agency, and to the
presumed expertise of the agency within its scope of authority.‟ ” (San Francisco
Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Cal.4th
653, 667.) Rules that interpret a statute, on the other hand, receive less judicial
deference. (Sara M., supra, 36 Cal.4th at p. 1012.)
The Legislature has “provided no specific guidance regarding how
prisoners should be classified” (In re Jenkins (2010) 50 Cal.4th 1167, 1173), but
has instead delegated lawmaking power to the CDCR to “prescribe and amend
rules and regulations for the administration of the prisons.” (Pen. Code, § 5058;
see also id., § 5068.) “By enacting these statutes, „[t]he Legislature has given the
[secretary] 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 discipline.‟” (In re
Jenkins, supra, 50 Cal.4th at p. 1173.)
Section 3378 (the regulation at issue here) is a quasi-legislative rule
promulgated by the CDCR to identify and manage inmates with a prison-gang
affiliation. Because the CDCR, like any agency granted this sort of substantive
lawmaking power, is “truly „making law,‟ [its] quasi-legislative rules have the
dignity of statutes. When a court assesses the validity of such rules, the scope of
its review is narrow. If satisfied that the rule in question lay within the lawmaking
authority delegated by the Legislature, and that it is reasonably necessary to

4
implement the purpose of the statute, judicial review is at an end.” (Yamaha,
supra, 19 Cal.4th at pp. 10-11.) “The substitution of the judgment of a court for
that of the administrator in quasi-legislative matters would effectuate neither the
legislative mandate nor sound social policy.” (Pitts v. Perluss (1962) 58 Cal.2d
824, 835.)
No party disputes that section 3378 is within the scope of the authority
conferred by the Legislature on the CDCR. Rather, the question here is how to
interpret one of the provisions in section 3378 governing validation of an associate
of a prison gang. The Court of Appeal and the CDCR have differing views as to
the interpretation of this provision of section 3378. But resolution of their dispute
must acknowledge one simple observation: “we defer to an agency‟s
interpretation of its own regulations, particularly when the interpretation
implicates areas of the agency‟s expertise.” (Environmental Protection
Information Center v. California Dept. of Forestry & Fire Protection (2008) 44
Cal.4th 459, 505.)
The text of section 3378, subdivision (c)(4) provides: “An associate is an
inmate/parolee or any person who is involved periodically or regularly with
members or associates of a gang. This identification requires at least three (3)
independent source items of documentation indicative of association with
validated gang members or associates. Validation of an inmate/parolee or any
person as an associate of a prison gang shall require at least one (1) source item be
a direct link to a current or former validated member or associate of the gang, or to
an inmate/parolee or any person who is validated by the department within six (6)
months of the established or estimated date of activity identified in the evidence
considered.” Section 3378 lists 13 different categories of source items indicative
of association with validated gang affiliates, including an inmate‟s admission of
involvement with the gang, tattoos and symbols distinctive to the gang, written

5
material or communications evidencing gang activity, the inmate‟s association
with validated gang affiliates, and offenses reflecting gang affiliation. (§ 3378,
subd. (c)(8).)
In this case, the source items underlying the CDCR‟s validation of Cabrera
as a gang associate consisted of several photocopied drawings containing symbols
assertedly distinctive to the Mexican Mafia. Two drawings depict armed women
(one with a spear, one with a revolver) and contain a “Matlactomei” symbol (the
Mayan symbol for 13), which consists of two vertical lines and a vertical column
of three dots. The number 13 refers to “M,” the 13th letter in the alphabet, and is
used as a designation for the Mexican Mafia gang. (See People v. Gonzalez
(2005) 126 Cal.App.4th 1539, 1544.) One of these drawings is signed by a
validated associate of the Mexican Mafia. Another drawing depicts a female
Mesoamerican warrior armed with a sword and shield as well as a bow and quiver
of arrows. An “eternal war shield,” which demonstrates loyalty to the Mexican
Mafia, is on her chest. A fourth drawing, which features Mesoamerican and
imprisonment themes, is signed by a validated member of the Mexican Mafia.
The prison‟s institutional classification committee concluded that the drawings
depicting the gang symbols qualified as source items under the “Tattoos and
symbols” category of the regulation (§ 3378, subd. (c)(8)(B))3 and that the signed
drawings qualified as source items under the “Association” category (id., subd.

3 “Tattoos and symbols. Body markings, hand signs, distinctive clothing,
graffiti, etc., which have been identified by gang investigators as being used by
and distinctive to specific gangs. Staff shall describe the tattoo or symbol and
articulate why it is believed that the tattoo or symbol is used by and distinctive of
gang association or membership. Staff shall document and disclose this
information to the inmate/parolee in a written form that would not jeopardize the
safety of any person or the security of the institution.” (§ 3378, subd. (c)(8)(B).)

6
(c)(8)(G)).4 The committee further found that Cabrera‟s possession of two
drawings signed by validated Mexican Mafia affiliates directly linked him to those
gang affiliates.
The Court of Appeal accepted the CDCR‟s definition of “direct link”
(§ 3378, subd. (c)(4)) as encompassing a connection that is “ „without interruption
or diversion‟ and „without any intervening agency or step.‟ ” The Court of Appeal
also accepted the CDCR‟s definition of “association with validated gang affiliates”
(§ 3378, subd. (c)(8)) to mean “a „loose relationship as a partner, . . . colleague,
friend, companion, or ally‟ with a validated gang affiliate.” This connection could
be established, according to the Court of Appeal, by “information related to the
inmate‟s loose relationship with a gang affiliate.”
But the Court of Appeal departed from the CDCR‟s construction of the
regulation when the court purported to “combine the definitions and reach a
conclusion as to what is meant by „direct link‟ when the source item used is the
inmate‟s „association with validated gang affiliates‟ ”: “The relationship, whether
characterized as one of partners, colleagues, friends, companions, or allies, must
involve reciprocal (i.e., mutual or two-way) interaction between the two
individuals forming the relationship. In other words, the requisite relationship
cannot be created solely by one party‟s action; there must be some assent or
mutuality from the other party.” The Court of Appeal then relied on the lack of
evidence of “a mutual relationship, even a loose one,” to conclude that the CDCR

4 “Association. Information related to the inmate/parolee‟s association with
validated gang affiliates. Information including addresses, names, identities and
reasons why such information is indicative of association with a prison gang or
disruptive group. Staff shall document and disclose this information to the
inmate/parolee in a written form that would not jeopardize the safety of any person
or the security of the institution.” (§ 3378, subd. (c)(8)(G).)

7
had failed to establish a direct link between Cabrera and any validated gang
affiliate and, on that basis, granted relief.
In announcing its interpretation of the CDCR regulation, the Court of
Appeal acknowledged that the CDCR had construed the regulation to have a
broader scope. In the CDCR‟s view, the regulation‟s requirement of a direct link
does not require evidence of a reciprocal or two-way interaction between the
inmate and the validated gang affiliate in these circumstances. Yet, in rejecting
the CDCR‟s interpretation, the Court of Appeal offered neither deference to the
agency‟s view nor acknowledgement of the agency‟s expertise in prison
management. This was error.
“As a general matter, courts will be deferential to government agency
interpretations of their own regulations, particularly when the interpretation
involves matters within the agency‟s expertise and does not plainly conflict with a
statutory mandate.” (Environmental Protection Information Center v. California
Dept. of Forestry & Fire Protection, supra, 44 Cal.4th at p. 490.) 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.” (Ibid.)
The Court of Appeal never contended that the CDCR‟s interpretation of
section 3378 was clearly unreasonable. It instead chided the CDCR for appearing
to rely “on an overly broad interpretation of our opinion in In re Furnace [(2010)
185 Cal.App.4th 649],” which, the Court of Appeal contended, did not address
“whether mutuality or reciprocity was inherent in the concept of „association.‟ ”
Because that issue had not been decided in Furnace, the Court of Appeal
concluded that “the Furnace decision does not prevent us from interpreting
„association‟ to mean a mutual relationship” when a direct link is sought to be
established through the source item category of “association.”

8
 The issue before the Court of Appeal, though, was not whether a prior
judicial decision had compelled the CDCR‟s interpretation of the regulation, but
(rather) whether the construction offered by the CDCR, the agency that had
promulgated the regulation and was charged with enforcing it, was clearly
unreasonable.
Cabrera, by contrast, does argue that the CDCR‟s proffered interpretation is
clearly unreasonable. He relies on In re Andrade (2006) 141 Cal.App.4th 807, but
the case is clearly distinguishable. In that case, the Court of Appeal relied on the
“plain language” of the regulation to determine that the interpretation proffered by
the Board of Prison Terms (now the Board of Parole Hearings) was “clearly
erroneous.” (Andrade, supra, 141 Cal.App.4th at pp. 815, 817.) The regulation at
issue directed the Board to consider “whether „[t]he prisoner has made realistic
plans for release or has developed marketable skills that can be put to use upon
release.‟ ” (Id. at p. 815, quoting Cal. Code Regs., tit. 15, § 2402, subd. (d)(8).)
The Board had required the prisoner (Andrade) to prepare California parole plans,
even though Andrade conceded he had entered the country illegally, planned to
return to his native country, and there was a “great probability” he would be
expeditiously deported once released. (Andrade, at p. 816.) After consulting
dictionary definitions of “realistic,” the Court of Appeal concluded that the
contingency of Andrade‟s remaining in the United States could not reasonably be
deemed realistic, given that he could not remain here legally and no employer
could legally employ him. (Id. at pp. 816-817.) In short, the Court of Appeal
found it could not be realistic to “require the prisoner to plan for the contingency
that the government might fail to do its job of deporting him. . . . It is self-evident
that the government may not require as a condition of parole that someone arrange
to violate the law.” (Id. at p. 817.)

9
 Here, by contrast, nothing in the plain language of section 3378 requires
proof the inmate formed a reciprocal or mutual relationship with a validated gang
affiliate in order to establish a direct link, via the source item category of
association, with that gang affiliate. The Court of Appeal appears to suggest that
such a requirement would nonetheless be necessary as a matter of policy, for
“[o]therwise, a validated gang affiliate could create such a relationship with an
inmate unilaterally, without any assent or mutuality on the part of the inmate.”
But the CDCR has not claimed the requisite connection could be formed by
unilateral conduct by the validated gang affiliate. Rather, as the Court of Appeal
acknowledges in the very next sentence of its opinion, the connection
contemplated by the CDCR is “unilateral action by an inmate.”
Moreover, the CDCR‟s policy of relying on unilateral inmate conduct to
satisfy the direct link to a validated gang affiliate is not clearly unreasonable.
Gangs “present a serious threat to the safety and security of California prisons.”
(Cal. Code Regs., tit. 15, § 3023, subd. (b).) “ „Prison gangs are criminal
organizations that must communicate with their affiliates to conduct gang
business, ensure group solidarity, and recruit and train new affiliates. Indeed, one
of the primary duties of a gang affiliate is to establish a line of communication
between himself and other gang affiliates.‟ ” (In re Furnace, supra, 185
Cal.App.4th at p. 660.) Even though prison officials “restrict correspondence
between inmates, and are especially restrictive of the correspondence of validated
gang affiliates housed in a security housing unit” (ibid.), the declaration of Everett
W. Fischer, an expert in the Mexican Mafia prison gang, explained that gang
affiliates attempt to evade detection by using coded and hidden messages in
drawings and photos. Moreover, a gang affiliate may collect or keep a copy of
such artwork to demonstrate his association with that validated gang member or
associate. “As a result,” the expert declared, “something seemingly innocuous as

10
a drawing can promote gang activity among inmates, which undermines the order
and security of the institution.” A requirement that prison officials demonstrate
reciprocal interaction to establish a direct link between the inmate and a validated
gang affiliate thus could seriously impair efforts to detect and prevent gang
activity in prisons.
Because the Court of Appeal‟s grant of habeas relief rested on the
erroneous assumption that a direct link in this context required proof Cabrera had
a mutual relationship with a validated gang affiliate, we reverse the judgment.
Whether the evidence is sufficient, under the regulation as properly construed, to
uphold the validation of Cabrera as a gang associate, and whether the validation
and placement in the SHU otherwise violates any of Cabrera‟s rights, is for the
Court of Appeal to decide on remand in the first instance.

DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is
remanded for further proceedings consistent with this opinion.
BAXTER, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.

11
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Cabrera
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 198 Cal.App.4th 1548
Rehearing Granted

__________________________________________________________________________________

Opinion No. S197283
Date Filed: October 29, 2012
__________________________________________________________________________________

Court:
County:
Judge:

__________________________________________________________________________________

Counsel:

Elvin Cabrera, in pro. per.; Michael Satris, under appointment by the Supreme Court, and Melanie K.
Dorian, under appointment by the Court of Appeal, for Petitioner Elvin Cabrera.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Donald E. DeNicola, Deputy State Solicitor General, Julie L. Garland and Jennifer A.
Neill, Assistant Attorneys General, Anya M. Binsacca, Amy Daniel, Jessica N. Blonien and Henry J. Valle,
Deputy Attorneys General, for Respondent Warden Kim Holland.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael Satris
Post Office Box 337
Bolinas, CA 94924
(415) 868-9209

Amy Daniel
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 322-6105