Filed 7/24/19; Certified for publication 8/19/19 (order attached)




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIFTH APPELLATE DISTRICT


                                                                            F075680

In re CHRISTOPHER RIGSBY                                      (Fresno Super. Ct. No. 16CRWR683290)

         On Habeas Corpus.                                                OPINION


         APPEAL from an order granting writ of habeas corpus. W. Kent Hamlin, Judge.

         Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General,
Jessica N. Blonien and Maria G. Chan, Deputy Attorneys General, for Appellant the
People.
         Susan L. Jordan, under appointment by the Court of Appeal, for Respondent
Christopher Rigsby.
                                                      -ooOoo-
         Respondent Christopher Rigsby is presently serving a life sentence for murder. In
2015, prison officials found him guilty of possessing contraband, which resulted in a 30-
day loss of inmate privileges and early release credits. Rigsby challenged the disciplinary
action by petitioning the Fresno Superior Court for a writ of habeas corpus. The superior
court granted the petition, concluding there was insufficient evidence to support the
finding of constructive possession. The warden of Pleasant Valley State Prison (PVSP)
appeals the superior court’s ruling.
       The warden’s appeal is well taken. As we explain, the superior court’s decision
cannot be reconciled with the standard of review for prison disciplinary proceedings.
Therefore, the order granting respondent’s petition must be reversed.
                 FACTUAL AND PROCEDURAL BACKGROUND
       In May 2015, prison officials at PVSP accused Rigsby of possessing a precursor
ingredient for inmate-manufactured alcohol (i.e., “pruno”). In prison slang, the
contraband is known as a “kicker.” According to the record, a kicker is a concoction of
bread, fruit, and sugar. Adding water and heat to the mixture “creates a fermenting
process” eventually resulting in a crude alcoholic beverage. After the liquid is separated
from the solid ingredients, those remnants (i.e., the kicker) may be reused “to create
another batch of alcohol.”
       The factual allegations were documented in a California Department of
Corrections and Rehabilitation form 115 (CDC-115) rules violation report. The
correctional officer who had found the contraband wrote, “I discovered in cell 132 on the
bottom shelf, a 16 ounce Folgers coffee jar[.] [A]s I opened the jar a strong odor of
alcohol emanated from the jar. The contents of the coffee jar contained a yellow/orange
pulpy substance similar to that of Inmate Manufactured ‘Kicker’ …. The cell is occupied
by inmates Diblasio … and Rigsby.” In a supplemental “Alcohol Verification Report,” a
correctional sergeant claimed to have verified the substance “was in fact inmate
manufactured ‘kicker.’”
       Rigsby denied the charge and stated, “The kicker did not belong to me, I had no
knowledge of it.” He was afforded a hearing and the opportunity to examine witnesses.
According to the CDC-115 report, Rigsby briefly questioned his cellmate and the officer
who discovered the contraband. He asked the officer, “Was the kicker found in my living
area amongst my possessions?” The answer was no. He asked his cellmate, “Did I have
knowledge of the kicker in the cell?” and the cellmate replied, “No.”




                                             2.
       The hearing officer, Lieutenant Daniel Burns, found Rigsby guilty as charged. His
portion of the CDC-115 report states, “Although the kicker was not found in Rigsby’s
property or his shelf he still maintains constructive possession over all items in his cell in
that he has knowledge of the item and the ability to control it.” Rigsby unsuccessfully
pursued administrative remedies before filing his petition for a writ of habeas corpus.
       The habeas petition alleged six grounds for relief. Five of the claims variously
challenged the sufficiency of the evidence. Most concerned the element of actual or
constructive possession, but Rigsby also argued there was no evidence the kicker
contained alcohol. The sixth claim disputed the existence of any rules or regulations
against possessing a kicker.1
       The superior court requested an informal response and later issued an order to
show cause. As relevant here, the warden’s return to the order to show cause provided
evidence Rigsby was serving time for convictions of second degree murder, committing
vehicular manslaughter while intoxicated, and driving under the influence of alcohol.
Rigsby’s disciplinary record included a separate rules violation for possession of inmate-
manufactured alcohol, and in that instance he had admitted guilt.
       The return also contained a supporting declaration by Lieutenant Burns. The
declaration states, in pertinent part:

       “A kicker is often preferred by inmates because it is easier to conceal from
       staff and quickly utilized to make Pruno. While the odor may be less
       strong than during the fermentation process, there is still a pungent odor


       1This   contention was impliedly (and appropriately) rejected by the superior court.
Rigsby was charged with violating California Code of Regulations, title 15, section 3016, former
subdivision (a). During the relevant time period, the provision read, “Inmates shall not inhale,
ingest, inject, or otherwise introduce into their body; use, possess, manufacture, or have under
their control any controlled substance, medication, or alcohol, except as specifically authorized
by the institution’s/facility’s health care staff.” The superior court found sufficient evidence that
the kicker contained alcohol (see further discussion, post), which is a finding Rigsby does not
contest on appeal. We note section 3016 was recently revised, and the prohibition against
alcohol possession now appears in subdivision (b). (Cal. Code Regs., tit. 15, § 3016, Register
2018, No. 15, Apr. 9, 2018, operative July 1, 2018.)

                                                 3.
       associated with making Pruno which is impossible to keep from a
       cellmate.… [¶] … [¶] I found inmate Rigsby had constructive possession
       because based on my knowledge and experience as an employee of the
       CDCR, it is near impossible for two inmates who live in a 6' by 11' cell to
       conceal a substance such as a kicker. And, while the kicker was not found
       among inmate Rigsby’s property, it was on a shelf where he would have
       seen it and had access to it. The fact that the kicker was found in a open
       area accessible to anyone in the cell lends to Rigsby’s knowledge of the
       substance.”
       Upon consideration of the written submissions, the trial court ordered an
evidentiary hearing. The order identified three “disputed factual issues necessary to the
resolution of the present petition …: (1) whether the inmate manufactured ‘kicker’
would have necessarily been apparent to [Rigsby] based on the area of the cell in which it
was located; (2) whether the inmate manufactured ‘kicker’ actually contained alcohol …;
and (3) whether [Rigsby] actually lost any custody credits as the result of his CDC 115
serious rule violation.” Only the first and second issues are germane to this appeal.2
       The warden called three witnesses at the evidentiary hearing, one of whom gave
testimony regarding Rigsby’s inability to accrue credits. The other two witnesses were
Rigsby and Lieutenant Burns. Rigsby did not present a case-in-chief.
       Rigsby testified he and his cellmate had been residing together for approximately
six months at the time of the incident. He was not in his cell when the search occurred
and thus had no personal knowledge of the circumstances surrounding the discovery of
the contraband. Rigsby believed it was a “known fact” that the item was found “on the
lower shelf, which was occupied by [his cellmate].”
       The testimony of Lieutenant Burns was consistent with his written declaration and
the CDC-115 report. He took a more definitive stance on the mens rea issue, testifying


       2The warden    disputed the availability of habeas review, arguing Rigsby’s murder
conviction precluded him from accruing credits and, since he had no credits to lose, the
disciplinary action did not implicate his constitutional due process rights. (See Pen. Code,
§ 2933.2; In re Johnson (2009) 176 Cal.App.4th 290, 297–298.) However, the warden has
expressly abandoned this argument in light of unspecified “changes in the credit earning
scheme.” Therefore, we express no opinion on the issue and do not further address it.

                                                4.
the smell of a kicker is “so pungent” that it would have been impossible for Rigsby not to
have known of its presence in the cell. On cross-examination, Lieutenant Burns was
asked, “[C]an a kicker be made without ever being turned into alcohol?” He answered,
“No.”
        The superior court found sufficient evidence that the kicker contained alcohol.
However, Lieutenant Burns’ contentions regarding the detectability of the odor were
rejected. The judge said, “[T]here is no evidence that there was any odor in the cell, and
I’m quite confident your officer would have written in his report or testified at the
hearing, I walked into the cell and I smelled an odor of alcohol that suggested to me I
should search further and look for an item. He didn’t. He didn’t say that. In fact, he
didn’t say he smelled it at all until he opened the can. So we have no idea how long the
item’s been in the cell. We have no idea that there’s any odor emitting from the can.”
        The superior court also noted the lack of evidence regarding whether the coffee jar
was in “plain view.” The circumstances of proximity and accessibility were deemed
insufficient:

        “It’s just a classic standard procedure of PVSP to presume that two inmates
        in a cell must necessarily own and control every item in the cell.
        [However,] there’s no evidence here that Mr. Rigsby knew that item was
        there or had any ability to control or possess it. None. Not some evidence;
        none. … I’m sure there’s lots of activities in cells that are worthy of
        discipline, but somebody happening to occupy a cell with someone else
        who has an item, no evidence of which emits any odor or is visible to
        anyone, and just assuming that because he’s in the same cell he must
        necessarily know it’s there and have a right to control and possess it is a
        mere assumption not supported by facts.”
        On March 23, 2017, the superior court issued a minute order granting Rigsby’s
petition. The California Department of Corrections and Rehabilitation was instructed to
“restore the custody credits that were forfeited and to set aside the violation of CDC 115
from [Rigsby]’s file.” A timely notice of appeal followed.




                                             5.
                                       DISCUSSION
       Prisoners are entitled to minimal due process safeguards in disciplinary matters
involving the possible loss of early release credits. (Wolff v. McDonnell (1974) 418 U.S.
539, 558.) The judicial remedy for a denial of those protections is a writ of habeas
corpus. In Superintendent v. Hill (1985) 472 U.S. 445 (Hill), the United States Supreme
Court held “due process in this context requires only that there be some evidence to
support the findings made in the disciplinary hearing.” (Id. at p. 457.)
       Under the Hill decision, “prison disciplinary action will not be disturbed so long as
‘some evidence’ supports the action taken. [Citation.] ‘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.’” (In re Zepeda (2006) 141 Cal.App.4th
1493, 1498 (Zepeda), quoting Hill, supra, 472 U.S. at pp. 455–456.)
       “Implicit in the ‘some evidence’ standard of review is the recognition that due
process requirements … do not authorize courts to reverse prison disciplinary actions
simply because, 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.) “‘Revocation of good time credits is not comparable to a
criminal conviction,’ and ‘neither the amount of evidence necessary to support such a
conviction’ nor ‘any other standard greater than some evidence applies ….’ (Hill, supra,
472 U.S. at p. 456.) Thus, to withstand court scrutiny for federal due process purposes,
there is simply no requirement that the evidence ‘logically precludes any conclusion but
the one reached by the disciplinary [official].’ (Id. at p. 456.) Rather, all that is required
is ‘“some evidence from which the conclusion of the [official] could be deduced.”’
[Citations].” (Zepeda, at p. 1499.)




                                              6.
       Against the backdrop of these guidelines, the parties dispute whether the superior
court erred by ordering an evidentiary hearing. We need not resolve this issue because
the answer does not affect the outcome of the appeal. “Our standard of review is de novo
with respect to questions of law and the application of the law to the facts. We accept as
final the superior court’s resolution of pure questions of fact if they are supported by
substantial evidence. [Citation.] Here, the superior court made very few specific
findings of fact regarding the evidence, and none that is significant to the main part of our
analysis.”3 (In re Richards, supra, 55 Cal.4th at p. 960.)
       Our task is to evaluate the sufficiency of the evidence. The controlling authorities
are Hill and Zepeda. What matters most is the location and accessibility of the
contraband, and those facts, along with other undisputed circumstances, satisfy the
“extraordinarily deferential standard of review set forth in Hill.” (Zepeda, supra, 141
Cal.App.4th at p. 1498.)
       In Hill, two inmates were held responsible for assaulting another prisoner and
were punished with a loss of time credits. (Hill, supra, 472 U.S. at pp. 447–448.) The
disciplinary board had “received evidence in the form of testimony from [a] prison guard
and copies of his written report.” (Id. at p. 456.) The guard attested to having
encountered the injured victim and seeing three inmates “jogging away together down the
walkway” in an area enclosed by a chain link fence. The area was otherwise vacant, but
the victim denied the accused parties had caused his injuries. (Id. at pp. 447–448.) The
Supreme Court acknowledged the evidence “might be characterized as meager, and there
was no direct evidence identifying any one of three inmates as the assailant,” but it



       3Rigsby implies    the superior court made a finding of fact regarding his “knowledge of the
kicker,” but that is not accurate. Rigsby’s professed lack of knowledge was neither credited nor
rejected. The superior court ruled there was “no evidence” from which a determination could be
made regarding whether he “knew that item was there or had any ability to control or possess it.”
Again, the application of law to undisputed facts is a legal issue that we review de novo. (In re
Richards (2012) 55 Cal.4th 948, 960; In re Martinez (2012) 210 Cal.App.4th 800, 815.)

                                                7.
concluded the record was “not so devoid of evidence that the findings of the disciplinary
board were without support or otherwise arbitrary.” (Id. at p. 457.)
       The Hill opinion illustrates the significance of proximity to the locus of the
infraction. This principle is underscored in the Zepeda case, which involved the search of
a prison cell jointly occupied by Richard Zepeda and another inmate. “During the search,
[a guard] found three razor blades, which had been removed from their plastic casing,
inside a paper cup covered with a lid on top of a cement shelf. The shelf was in a
common area of the cell, accessible to both inmates. The ‘plastic cases of the razors’
were also located in the cell, although the record [did] not indicate exactly where in the
cell they were found.” (Zepeda, supra, 141 Cal.App.4th at p. 1495.) The cellmate
immediately claimed ownership of the contraband. When Zepeda was questioned about
the razor blades, he “denied having any knowledge of them.” (Ibid.)
       Prison officials found Zepeda guilty of possessing a weapon in violation of
California Code of Regulations, title 15, section 3006, subdivision (a). (Zepeda, supra,
141 Cal.App.4th at pp. 1495–1496.) He filed a petition for a writ of habeas corpus, and
the Superior Court of Imperial County overturned the disciplinary action. The court’s
stated rationale was remarkably similar to the explanation given by the judge in this case:
“‘While [the Warden] argues there is some evidence of constructive possession of a
weapon by [Zepeda], this evidence is nothing more than that [Zepeda] shares his cell with
a cellmate and is allegedly responsible for any contraband [in the] common area. Still,
there must be some evidence of either exclusive possession or control. The evidence
shows [Zepeda] has no control over what contraband may be in the possession of his
cellmate and no evidence was presented that [Zepeda] possessed any knowledge of the
weapon in question.’”4 (Zepeda, at p. 1496.)


       4“Constructive Possession     exists where a person has knowledge of an object and control
of the object or the right to control the object, even if the person has no physical contact with it.”
(Cal. Code Regs., tit. 15, § 3000.)

                                                  8.
       The order granting Zepeda’s habeas petition was reversed on appeal. The
appellate court found the evidence was sufficient under the Hill standard, emphasizing
“the location of the razor blades … in ‘an area easily accessible to both inmates’” and the
fact “Zepeda was one of only two inmates who shared the cell.” (Zepeda, supra, 141
Cal.App.4th at p. 1499.) “In addition, the plastic casings for the razor blades were found
in the cell, indicating that alteration of the razor blades occurred there.” (Ibid.)
       Here, the superior court attempted to distinguish Zepeda by claiming “the razor
blades had been in the cell for days,” whereas there was no evidence of how long the
kicker had been in Rigsby’s cell. This reflects a misreading of the cited opinion. The
relevant text is as follows: “Zepeda was one of only two inmates who shared the cell,
and ‘had been in the cell for several days prior to the discovery of the razor blades.’”
(Zepeda, supra, 141 Cal.App.4th at p. 1499.) In other words, the inmate had been in the
cell for several days, not the contraband. (Ibid.) Thus, Zepeda could not argue he had
just moved into the cell and was necessarily ignorant of the contents therein. Rigsby
confirmed he and his cellmate had been living together for about six months when the
kicker was found in their cell. Instead of differentiating Zepeda, the superior court
inadvertently alluded to a factual similarity.
       In further reference to Zepeda, the superior court said, “Plastic cases were found
there indicating some activity with the razor blades was conducted in the cell. We have
none of that evidence here.” (See Zepeda, supra, 141 Cal.App.4th at pp. 1495, 1499.)
Rigsby’s briefing also highlights this distinction, but we fail to see the materiality.
Although the Zepeda court believed the plastic casings had probative value, the location
and accessibility of the razor blades were the dispositive circumstances. This is apparent
from citations in the opinion to other factually analogous cases, e.g., “Hamilton v.
O’Leary (7th Cir. 1992) 976 F.2d 341, 346 [‘some evidence’ standard satisfied where ‘six
homemade weapons were found in [a cell] which was occupied by and under the control
of Hamilton and his three cellmates,’ and thus ‘there was a 25% probability that


                                                 9.
Hamilton was the owner of the weapons’]; In re Anderson (1989) 112 Wn.2d 546 [‘The
fact that there was a knife found in the cell is some evidence that any one of the four
cellmates, or all four of the cellmates, either possessed the knife, placed the knife in the
cell or at least knew of its presence in the cell’].” (Zepeda, at p. 1499.)
       The superior court’s inability to determine whether the coffee jar was in “plain
view” does not render the evidence insufficient, nor does it matter that the item was
located on a shelf used by Rigsby’s cellmate. Such details are not discussed in Zepeda.
The opinion merely indicates the contraband was found inside of a container “on top of a
cement shelf” located “in a common area of the cell, accessible to both inmates.”
(Zepeda, supra, 141 Cal.App.4th at p. 1495.)
       In this case, the investigating officer said the coffee jar was discovered “on the
bottom shelf.” (Italics added.) Rigsby’s testimony similarly referenced “the lower shelf”
(italics added), which indicates there was only one area of shelving. Rigsby described the
lower shelf as being “occupied” by his cellmate, and the record shows Rigsby kept his
own belongings on a different shelf. He made these statements at the evidentiary
hearing: “[T]here’s two of us living in a small cell, and we do have very meager
possessions, but they are our possessions, and we should have some, you know, basic
expectation of privacy with our couple little things, and a shelf is one of them.” Since
Rigsby’s shelf must have been located above “the lower shelf,” the contraband was
undeniably found “in a common area of the cell, accessible to both inmates.” (Zepeda,
supra, 141 Cal.App.4th at p. 1495.)
       Rigsby cites cases that hold proximity and accessibility are not alone sufficient to
prove unlawful possession. (E.g., People v. Land (1994) 30 Cal.App.4th 220, 224;
People v. Zyduck (1969) 270 Cal.App.2d 334, 336.) The Zepeda opinion says this
argument “misses the point” because prison disciplinary action is “‘not comparable to a
criminal conviction.’” (Zepeda, supra, 141 Cal.App.4th at p. 1499, quoting Hill, supra,
472 U.S. at p. 456.) Unlike in a criminal appeal, “the narrow role assigned to the


                                             10.
reviewing court is solely to determine whether there is ‘any evidence in the record that
could support the conclusion reached by the disciplinary board.’” (Zepeda, at p. 1500,
quoting Hill, at pp. 455–456.)
       To summarize, Rigsby and another inmate jointly occupied a prison cell that was
six feet by eleven feet in size. Rigsby himself noted the two of them had “very meager
possessions.” During a search of the cell, prison officials discovered a prohibited item
located in a common area accessible to both men. These facts are not materially
distinguishable from those in Zepeda and thus permit an inference, i.e., constitute “some
evidence,” that Rigsby was in possession of the contraband. The superior court’s
analysis conflicts with the case law. We are not persuaded to depart from precedent that
is directly on point.
                                     DISPOSITION
       The order granting respondent’s petition for a writ of habeas corpus is reversed.


                                                        ___________________________
                                                                            PEÑA, J.
WE CONCUR:


 ___________________________
FRANSON, Acting P.J.


 ___________________________
DESANTOS, J.




                                            11.
Filed 8/19/19




                          CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT


                                                                F075680

In re CHRISTOPHER RIGSBY                       (Fresno Super. Ct. No. 16CRWR683290)

        On Habeas Corpus.                         ORDER GRANTING REQUEST FOR
                                                         PUBLICATION


      As the nonpublished opinion filed on July 24, 2019, in the above entitled matter
hereby meets the standards for publication specified in the California Rules of Court, rule
8.1105(c), it is ordered that the opinion be certified for publication in the Official
Reports.


                                                                                 PEÑA, J.
WE CONCUR:



FRANSON, Acting P.J.



DESANTOS, J.
