I dissent. The record contains no substantial evidence that defendant was a member of or affiliated with a prison gang. The only “association” with a gang was that in 1974 and early 1975 at Susanville he, with 14 other inmates, shared, a prison cell (assigned by prison authorities) with Santisteban, suspected by prison authorities of being a Mexican Mafia member.1 Defendant also ate, ran track, and played handball with Santisteban from time to time as he did with other inmates. That is the entire “evidence.”
The evidence that defendant was not a member is impressive. He spent 20 days at CRC before he was excluded. During that time his conduct was exemplary. On the 20th day he was excluded because his name was on an informal list (circulated among prison authorities) of Mexican Mafia members. However, the prison official who compiled the list “in late ’74 or early ’75” testified that he “can’t truthfully say that I remember the exact reasons why he was put on the list.” Subsequent testimony helped clarify the situation. Defendant’s counselor at CRC initiated a call to an Officer Smith of San Quentin who reported that defendant had been “quiet” at San Quentin but had been an associate of Santisteban, a Mafia member, at Susanville. It was this report, apparently, which formed the basis for the exclusion order. On the other hand, stipulated testimony was received from three officials. First, a counselor at CRC testified that no gang affiliation appeared in defendant’s confidential file (other than the 1976 Smith telephone conversation). The second official was the counselor assigned defendant in Susanville. He *253testified that defendant had no gang association and that defendant would not have been paroled from Susanville, as he was, had any such association appeared in his file. Had defendant been associated with a gang a “confidential chrono” would have been placed in his file. None was. The third official was the 1975 parole officer who testified that he knew of no gang involvement.
The People attempt to buttress the reasonableness of the CRC action by pointing to letters written by the defendant after the date of the exclusion order. This is sophistry. The letters were written by defendant, who has the equivalent of a sixth grade education, appealing from the very order which excluded him for affiliation with a gang. He testified that he never “denied association with the Mafia” in the context only of his “association” with Santisteban. In his testimony he categorically denied membership or association with a gang. He always acknowledged his Susanville association with Santisteban. Thus, the majority incorrectly conclude that defendant did not deny “affiliation” with the Mexican Mafia. What he did not deny was sharing a cell and other normal prison activity with Santisteban. That is all.
In essence, we deal with this issue: What “factual basis” (see People v. Toscano (1977) 69 Cal.App.3d 140 [137 Cal.Rptr. 893]) may lawfully support the superintendent’s determination? First, the superintendent does not advise what the term “affiliation” means. Second, on this record, I suggest that when the superintendent excludes a prisoner merely on suspicion of “affiliation” (whatever the term may mean) he excludes on no basis at all. All prisoners “affiliate” with other prisoners (so do prison authorities). Guilt by association with another who also was informally adjudged guilty by association appears to be the “factual basis” we are asked to approve. I respectfully decline.
On the record I find no substantial evidence that defendant was a member of or affiliated with a prison gang. The exclusion of defendant from treatment was an abuse of discretion.
A petition for a rehearing was denied March 24, 1978. Reynoso, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied April 27, 1978.
There is no evidence in the record that Santisteban was in fact a Mexican Mafia member.