Filed 11/18/15
                            CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION TWO


In re MANUEL MARTINEZ,                             A142502
        on Habeas Corpus.
                                                   (Del Norte County
                                                   Super. Ct. No. HCPB13-5073)



        In April 2013, Manuel Martinez, an inmate at Pelican Bay State Prison, filed a
habeas corpus petition in Del Norte County Superior Court. Martinez challenged the
December 2011 decision by California Department of Corrections and Rehabilitation
(CDCR) officials at Pelican Bay to “validate” him as a gang associate of the Mexican
Mafia pursuant to former section 3378 of Title 15 of the California Code of Regulations,1
which validation led to his transfer to Pelican Bay’s Security Housing Unit (SHU) for an
indeterminate term. In May 2014, the trial court granted Martinez’s petition, ordering his
gang validation expunged and his residency in the SHU based on that validation
terminated. Clark E. Ducart, the Warden of Pelican Bay State Prison (warden), filed a
notice of appeal. The warden asks that we overturn the trial court’s order and deny
Martinez’s petition.



        1
          All section citations herein are to Title 15 of the California Code of Regulations.
For clarity’s sake, our references herein to “section 3378” are to the regulation in place at
the time of Martinez’s validation. Revisions to section 3378 became operative after
Martinez’s validation in December 2011. (Cal. Code Regs., tit. 15, § 3378, Register
2014, No. 42 (Oct. 17, 2014) p. 188.66.) The parties’ briefs do not discuss these
revisions and at oral argument counsel for the state stated that the new regulations are not
applicable to this petition. We therefore do not discuss them.


                                              1
       To validate Martinez as a Mexican Mafia2 gang associate, Pelican Bay officials
were required to establish by some evidence a “direct link” between Martinez and a
Mexican Mafia “validated member or associate,” also known as an “affiliate,” which
must be a specific person. (§ 3378, subd. (c)(4), (c)(8)(D) & (G); In re Villa, (2013)
214 Cal.App.4th 954, 970 (Villa).) The CDCR, with our Supreme Court’s approval, has
interpreted this “direct link” “as encompassing a connection that is “ ‘without interruption
or diversion’ and ‘without any intervening agency or step.’ ” (§ 3378, subd. (c)(8); In re
Cabrera (2012) 55 Cal.4th 683, 690–692 (Cabrera I).) The warden asserts that
Martinez’s participation in a prison “disturbance” (Martinez prefers prison “protest”) of
Southern Hispanics ordered by a person who was later validated as a Mexican Mafia
associate (the Mexican Mafia affiliate) establishes this direct link.
       We disagree. The warden’s evidence shows that Martinez participated in a prison
disturbance along with almost 200 Southern Hispanics and Sureños in Facility B that was
ordered by the Mexican Mafia affiliate. It does not establish that Martinez participated
knowing the disturbance was ordered by the Mexican Mafia gang affiliate (as opposed,
for example, to participating at the insistence of another person). In other words, the
warden’s evidence shows Martinez acted consistent with the order of the Mexican Mafia
affiliate, but not that he did so in order to comply with an order from that specific person.
The warden does not provide any evidence connecting Martinez to the Mexican Mafia
gang affiliate—the only person relied on by Pelican Bay officials to establish the
requisite “direct link”—without an intervening step or interruption. Thus, there is no
evidence of this “direct link” between the two. Martinez should not have been validated
as a Mexican Mafia gang associate. We affirm the trial court’s grant of Martinez’s
petition on this ground. We also decline the warden’s implied invitation to expand the
CDCR’s definition of “direct link” to require nothing more than some evidence of a
“straight-forward connection,” no matter how attenuated, with a gang member or


       2
          The Mexican Mafia is sometimes referred to in the record as “EME.” For
clarity’s sake, we refer to it as the Mexican Mafia throughout this opinion.


                                              2
associate, just as the Fifth District declined to do in In re Cabrera (2013) 216
Cal.App.4th 1522, 1535–1540 (Cabrera II), upon the remand ordered in Cabrera I.
                                      BACKGROUND
                                             I.
               Martinez’s Validation as a Mexican Mafia Gang Associate
       In December 2011, Pelican Bay officials validated Martinez as a Mexican Mafia
“associate.” An “associate” is “an inmate . . . who is involved periodically or regularly
with members or associates of a gang.” (§ 3378, subd. (c)(4).)
       In order to validate Martinez, Pelican Bay officials were required to produce at
least three “source items,” one of which had to be a “direct link” to a validated gang
member or associate, including those validated by the CDCR within six months of the
established or estimated date of the activity identified.3 (§ 3378, subd. (c)(4).) Pelican
Bay officials validated Martinez as a Mexican Mafia associate based on four source
items. The first three were a drawing found in Martinez’s possession that prominently
depicted a symbol that Mexican Mafia members commonly used to display their gang
loyalty; a tattoo on Martinez’s back of a symbol Mexican Mafia members similarly used
to show their gang loyalty; and a 2008 rules violation report stating that Martinez and
three other Southern Hispanic inmates assaulted two Northern Hispanic inmates.
Martinez does not contest the validity of these three as “source items,” and we shall not
discuss them further in any detail.
       The fourth source item, which Pelican Bay officials relied on to establish the
“direct link” requirement, was a July 2006 rules violation report by Lieutenant A.
Navarro. Navarro stated that on June 26, 2006, Martinez and his cellmate participated
“in a disturbance which threatened the Institutional Security by covering or barricading
their cell front. This act was a continuing effort of the Facility B Southern Hispanic
Inmate population in a show of solidarity to protest the moving of any Southern Hispanic


       3
         The record indicates that the Mexican Mafia affiliate was timely validated after
the June 26, 2006 disturbance in which Martinez participated.


                                             3
Inmate.” According to Navarro, every Southern Hispanic inmate on B Facility had
refused to move from their assigned cell in a disturbance that began on June 24, 2006, but
he did not indicate Martinez had participated in the disturbance before June 26. “These
Inmates acted in an organized and structured manner, clearly demonstrating that these
actions were planned, organized and consistent with Southern Hispanic group gang
activity.” Navarro further reported that Martinez and his cellmate were ordered, but
refused, to remove their cell covering and submit to handcuffs, refused orders to exit their
cell and were then subdued.
                                             II.
                               The Declaration of J. Beeson
       Agent J. Beeson, the Pelican Bay CDCR official who validated Martinez as a gang
associate, submitted two declarations to the trial court, one filed in the court’s public
records and one filed under seal.4 Beeson stated that he had worked on gang issues for
the past 15 years as a correctional officer, sergeant and then supervising lieutenant at the
Institutional Gang Investigations Unit at Pelican Bay until 2009, when he became a
special agent in the Office of Correctional Safety of the CDCR. As a result of his
experience, which included “countless education courses focusing on gangs, and
especially prison gangs,” he was “very familiar with the dynamics of prison gangs and
their affiliates.” He had taught courses on prison gangs for the CDCR and other law


       4
         The trial court asked for and considered in camera confidential material filed
under seal by the warden that was not provided to Martinez, and the warden submits this
material to this court under seal as well. Martinez objects to our consideration of these
materials as a violation of his Sixth Amendment rights, while the warden argues such
rights do not apply to prison disciplinary actions and that the warden has waived this
argument by failing to object below. We do not decide this question in light of our
conclusion that none of the warden’s evidence establishes a “direct link.” For the
purposes of this appeal only, we assume the validity and accuracy of the materials filed
under seal.
       Also, we have previously ordered that the warden’s motion to file an unredacted
version of his opening brief be held in abeyance. We hereby grant that motion and have
considered this unredacted version as well.


                                              4
enforcement agencies and had qualified to testify as an expert witness on prison gangs
approximately ten times.
       Beeson stated that the CDCR was “committed to identifying which inmates are
involved in prison gangs in order to suppress gang activity because gangs pose such an
incredibly invidious and serious threat . . . to safety and security within our prisons . . . .
The Mexican Mafia . . . prison gang is one of seven prison gangs currently recognized by
the CDCR.” “Validation is a quality control mechanism used by CDCR to assure that an
inmate who is suspected of gang involvement is correctly identified as a member or
associate of his gang so he can be classified and housed appropriately. . . . [¶] . . . By
validating inmates as prison gang members or associates, we can then remove them from
the general population, and thereby make our prisons safer while also giving other
inmates the opportunity to program without being influenced or controlled by the gangs
and their subordinates.”
       Beeson further stated that he was familiar with Martinez and had reviewed and
accepted his validation packet in December 2011. Beeson identified as
“source item four” Navarro’s June 2006 rules violation report, which documented
Martinez’s participation in the June 26, 2006 disturbance. Beeson further stated that,
“[i]n finding Martinez guilty of the disciplinary offense, the senior hearing officer relied
on three confidential memoranda demonstrating that the disturbance was an organized
effort by Southern Hispanic inmates protesting their programming.” Beeson stated that
193 inmates—all Southern Hispanic, like Martinez—participated in the disturbance.
       Beeson summarized the three confidential memoranda in his publicly filed
declaration. These memoranda documented conversations, first on June 22, then June 23,
24 and 25, 2006, just prior to the June 26, 2006 disturbance, between a correctional
officer and an inmate residing in Facility B who “associate[d] himself as a Southern
Hispanic and was a participant in the disturbance.” The correctional officer was told
about the “consensus” among inmates “associating themselves as Southern Hispanics”
regarding “recent program changes” in Facility B; “information regarding the extent of
Southern Hispanic inmates’ involvement in any classification committee or moves


                                                5
associated with the new program”; statements that “impl[ied] the identification of the
inmate responsible for orchestrating the disturbance, its duration, and who [would] be the
participants”; and that “the disturbance was an organized protest against the
administration at Pelican Bay.”
       Beeson also stated that the disturbance was conducted by Southern Hispanic
inmates in Martinez’s facility at the instigation of the Mexican Mafia gang affiliate, who
was a “Mesa” member who wielded the power of the gang and was “ ‘in control’ and a
‘representative’ of the [Mexican Mafia] on . . . Facility B, yard.” According to Beeson,
Martinez’s actions “were synchronized with those of all the inmates on the . . . Facility B
who identified themselves as ‘Surenos,’ ” whom Beeson defined as “Southern Hispanic
inmates loyal to the [Mexican Mafia] prison gang.” More than 400 inmates of “other
races and gang affiliations” in the same facility did not take part.
       Beeson summarized the evidence as indicating that Martinez participated in the
disturbance “on the direct orders of the [Mexican Mafia] associate. While the [Mexican
Mafia] associate likely did not appear at Martinez’s cell door and deliver the order
personally, our gang intelligence confirms that the order was in fact given by the
[Mexican Mafia] associate, and it was followed by all who are loyal to the gang. This is
how gangs operate; gang leaders or those with authority give orders which trickle down
to the gang affiliates who in turn demonstrate their allegiance to the gang by doing as
they are told.” “By participating in the disturbance,” Beeson concluded, “Martinez
demonstrated his support for and allegiance to the [Mexican Mafia].”
       Beeson continued, “The important fact here is that Martinez, like all other
‘Surenos’ on Facility B, followed the direct order from the validated [Mexican Mafia]
associate who was a member of the ‘Mesa.’ . . . [¶] In reviewing all of the information
available, based on my knowledge, training, and experience as a gang investigator, I
concluded there was sufficient evidence that Martinez’s participation in the disturbance
was as a result of him receiving, verifying, and acting upon the orders of the [Mexican
Mafia] prison gang, constituting a direct link to the validated [Mexican Mafia] associate
who gave the order.”


                                              6
       Beeson’s confidential declaration and the other confidential materials do not add
anything consequential to our analysis. None of them establish that Martinez knew the
June 26, 2006 disturbance was ordered by, or that Martinez had any connection
specifically to, the Mexican Mafia affiliate, although that affiliate is the only person with
whom Pelican Bay officials claimed Martinez was directly linked.5
       In this appeal, CDCR relies on this fourth source item, along with the support of
Beeson’s declarations and the confidential materials submitted under seal to the superior
court, for its contention that the evidence showed a direct link between Martinez and the
Mexican Mafia gang affiliate who organized the June 26, 2006 disturbance.
                                             III.
           The Administrative Appeals Process and Martinez’s Habeas Petition
       Martinez appealed his validation to the warden. The warden denied this appeal,
concluding that Martinez’s gang validation had comported with all relevant regulatory
and due process requirements.
       Martinez then petitioned to the CDCR Office of Appeals. It denied his petition
because it found “no evidence of a violation of existing policy or regulation by the
institution based upon the arguments and evidence presented.”
       Martinez then filed his habeas petition in Del Norte County Superior Court. The
court granted Martinez’s petition on the ground that the warden had not produced any
evidence of a “direct link” and did not accept the warden’s characterization of a “direct
link” as requiring nothing more than a “straightforward connection.” The court found
that the warden had submitted reliable, confidential evidence that a Mexican Mafia gang
affiliate ordered that inmates protest certain prison policies. However, this evidence did
not show a direct link between Martinez and that gang affiliate, given Beeson’s
concession that the affiliate likely did not appear at Martinez’s cell door to give him the

       5
         In his validation proceedings, Martinez said the disturbance “was a protest to
prison conditions, not a gang activity. . . . The 1030s do not show that I was privy to the
planning nor [sic] execution of said protest, just that I participated.” He made a similar
contention in his habeas petition below.


                                              7
order personally. The court concluded that the warden’s position “significantly expands
on the [CDCR’s] position discussed in recent appellate decisions whereby the CDCR
interpreted a ‘direct link’ as ‘encompassing connection that is without interruption or
diversion’ and ‘without intervening agency or step.’ ([Cabrera I, supra,] 55 Cal.4th [at
p.] 690, [Villa, supra,] 214 Cal.App.4th [at p. 964].) In this case it is manifest there was
an unknown, but intervening agency or step between [Martinez] and the gang affiliate.”
       The court noted that the warden “apparently concede[d] that there is no evidence
that the soon to be validated gang affiliate ever had any direct contact with [Martinez].
Instead, [the warden] assume[s] that the inmate gave directions that must have passed
through an unknown number of individuals, apparently orally, and [Martinez] acted on
those orders. But here there is no showing that [Martinez] knew there were ‘orders’ let
alone where any such orders came from or that they came from anyone affiliated with the
gang.” The court concluded that the warden did not put forward “some evidence” of a
direct link. It ordered, among other things, that Martinez’s validation was void and
expunged, that Martinez cease to be housed in the SHU based on that validation and that
its ruling be stayed pending the outcome of the CDCR’s anticipated appeal. The warden
then filed a timely notice of appeal.
                                        DISCUSSION
                                              I.
                                    Standard of Review
       We independently review the record and consider issues of law de novo as to
whether the warden submitted evidence to the trial court that establishes the requisite
“direct link” between Martinez and the Mexican Mafia affiliate “[b]ecause the trial
court’s findings were based solely upon documentary evidence.” (In re Rosenkrantz
(2002) 29 Cal.4th 616, 677 [reviewing a trial court’s grant of a habeas petition regarding
a petitioner’s suitability for parole].) We uphold the warden’s validation if it is supported
by at least “some evidence.” (Cabrera II, supra, 216 Cal.App.4th at pp. 1531–1532; see
In re Shaputis, (2011) 53 Cal.4th 192, 210 [indicating in a parole case that the “some
evidence” standard requires “ ‘only a modicum of evidence’ ”].) It is not for us to


                                              8
reweigh the evidence, and the some evidence standard does not allow us to reject the
CDCR’s reasonable evaluation of the evidence in favor of our own judgment. (Shaputis,
at p. 210.)
       On the other hand, the warden must establish a “rational nexus” between the
evidence and his conclusion that it establishes a direct link. (See In re Lawrence (2008)
44 Cal.4th 1181, 1226–1227 [parole case applying the “some evidence” standard]). As
this court has stated in the parole context, “a determination . . . cannot be predicated
merely upon ‘a hunch or intuition.’ (Lawrence, supra, 44 Cal.4th at p. 1213.) Or
‘guesswork.’ (In re Young [(2012)] 204 Cal.App.4th [288,] 308.) A determination for
which there is no evidentiary support . . . is arbitrary and capricious. It is not rational.”
(In re Morganti (2012) 204 Cal.App.4th 904, 926.)
                                              II.
                               The Meaning of “Direct Link”
       As we have discussed, to validate Martinez as a gang associate, Pelican Bay
officials had to produce at least “three (3) independent source items of documentation
indicative of association with validated gang members or associates.” (§ 3378,
subd. (c)(4).) At least one source item had to “be a direct link to a current or former
validated member or associate of the gang,” which could be a person “validated by the
department within six (6) months of the established or estimated date of activity
identified in the evidence considered.” (§ 3378, subd. (c)(4), italics added.)
       We defer to the CDCR’s interpretation of the quasi-legislative rules it
promulgates, such as section 3378, if the interpretation is not “clearly unreasonable,”
“ ‘particularly when the interpretation implicates areas of the agency’s expertise.’ ”
(Cabrera I, supra, 55 Cal.4th 683, 688, 690–691.) In Cabrera I, our Supreme Court
reversed an appellate court’s holding that “direct link,” as used in section 3378, required
“ ‘reciprocal (i.e., mutual or two-way) interaction between the two individuals forming
the relationship.’ ” (Id. at p. 690.) Instead, the Cabrera I court, concluding that it must
defer to the CDCR’s proffered interpretation of section 3378 because it was not clearly
unreasonable, accepted its definition of “direct link” as one “that is ‘ “without


                                               9
interruption or diversion” and “without any intervening agency or step,” ’ ” and which
could be established by one person, unilaterally, as well as 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.’ ” (Id. at p. 690.) The court ruled that the CDCR’s interpretation of a direct link
as requiring only a unilateral connection was not clearly unreasonable, as “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.” (Id. at
pp. 691–692.) The court remanded the case to the appellate court to determine if a direct
link had been established under this definition (id. at pp. 692–693), leading to Cabrera II.
       Since the Supreme Court decided Cabrera I, our colleagues in other appellate
districts have had occasion to apply the “direct link” requirement. In In re Fernandez
(2013) 212 Cal.App.4th 1199, the Third Appellate District found a “direct link” based on
a confidential debriefing report by a validated gang member who specifically identified
Fernandez as a member of the gang functioning as the “section channel” at a prison
facility. (Id. at pp. 1209–1210.)6
       Our sister appellate courts have rejected the CDCR’s “direct link” contentions
when the evidence merely indicated general gang affiliation, rather than a direct
connection to a person. In Villa, supra, 214 Cal.App.4th 954, the CDCR contended it
established a “direct link” via the confidential identification by an informant—who was
not a validated gang member—that Villa had “a position on the ‘Mesa’ ” of the Mexican
Mafia. (Id. at p. 968.) The Fourth Appellate District held that it was not a “direct link”
because the plain language of section 3378, subdivision (c)(4) “indicate[d] that the ‘direct
link’ must be to a person,” as opposed to a gang in general. (Id. at p. 970; § 3378,
subd. (c)(4) [“[v]alidation . . . shall require at least one (1) source item be a direct link to

       6
         At the same time, the court found that a confidential report regarding another
inmate did not show that inmate had engaged in gang activity and, therefore, was
inadequate to support validation. (In re Fernandez, supra, 212 Cal.App.4th at pp. 1212–
1214.)


                                               10
a . . . person who is validated by the [CDCR] within six (6) months of the established or
estimated date of activity identified,” italics added].) The court explained that the “direct
link” requirement “prevents the validation process from becoming a tautological exercise.
No inmate can be validated simply by the suggestion that he is involved in a prison
gang.” (Villa, at p. 970.)
       In Cabrera II, supra, 216 Cal.App.4th 1522, the CDCR argued, just as the warden
does here, “that ‘direct link is ‘a broad, flexible term that does not require anything more
than a straight-forward connection.’ ” (Cabrera II, supra, 216 Cal.App.4th at pp. 1536–
1537.) Implicitly rejecting this argument, the Fifth Appellate District applied the
definitions for “direct link” and “association with validated gang affiliate” that had been
offered by the CDCR and approved by the California Supreme Court in Cabrera I,
55 Cal.4th at pages 690–691, which we have already summarized. (Cabrera II, at
pp. 1534–1535.) The Cabrera II court ruled that Cabrera’s mere possession of
photocopies of signed drawings—the artists being validated gang affiliates—did not
reasonably constitute a direct link between the affiliated artists and Cabrera because there
was no “rational nexus” between Cabrera’s mere possession of them and the existence of
a “direct link” to the artists. (Id. at p. 1540.) Otherwise, the court reasoned, any
photocopied drawing might be used to establish a direct link, no matter how many
intervening owners the photocopy might have had. (Id. at p. 1539.)
       The court continued: “At oral argument, the following hypothetical was presented
to counsel for CDCR. Suppose an inmate author or artist gives an item to inmate B, who
gives it to inmate C, who gives it to inmate D, who gives it to inmate E, who crumples it
up and throws it in the prison yard. Suppose further that Cabrera comes by and says
‘what’s this’ and then picks it up and takes it to his cell. Counsel for CDCR asserted that,
so long as the item was a source item, Cabrera’s possession of the item is direct and is
sufficient to establish a direct link to the artist. [¶] We conclude that Cabrera’s
possession of part of a gang affiliate’s name on a drawing created by that gang affiliate is
not some evidence that Cabrera had a loose relationship with the artist that formed a
connection between Cabrera and the artist that was without interruption or any


                                             11
intervening agency or step. [¶] To satisfy the some evidence test, there must be ‘a
rational nexus’ between the evidence presented and the findings of fact. (In re Lawrence,
supra, 44 Cal.4th at p. 1227.) The gap between the evidence and the findings cannot be
bridged ‘merely by a hunch or intuition.’ (Id. at p. 1213.)” (Cabrera II, supra,
216 Cal.App.4th at p. 1539.)
                                              III.
                                           Analysis
       The warden’s argument that we should reverse the superior court is unpersuasive
in light of the evidence it has put forward. We agree with much of the warden’s
discussion of the law. That said, much as the CDCR did in Cabrera II, the warden has
attempted here to fill a critical evidentiary gap—that between Martinez’s participation in
the disturbance and the order given by the validated Mexican Mafia affiliate gap—with
impermissible hunch and intuition.
       Not all of the warden’s characterizations of the law are entirely accurate. The
warden, while not renouncing the definitions for “direct link” that the CDCR advocated
and the Supreme Court approved in Cabrera I, attempts to expand those definitions. He
contends, as the CDCR did in Cabrera II, that a “straight-forward connection” is all that
is required and cites Cabrera II as authority for this proposition. However, the
Cabrera II court merely recited the CDCR’s “straight-forward connection” argument,
and neither adopted it as an alternative definition of “direct link” nor applied it in that
case. (Cabrera II, supra, 216 Cal.App.4th at pp. 1536-1537.) Instead, it acknowledged
the definitions of “direct link” offered by the warden’s own agency—the CDCR—and
adopted by our high court, and applied those definitions, i.e., “ ‘ “ ‘without interruption or
diversion’ ” ’ ” and “ ‘ “ ‘without intervening agency or step,’ ” ’ ” to the facts before it.
(Id. at pp. 1534–1535; Cabrera I, supra, 55 Cal.4th at p. 690.)
       The warden also attempts to disassociate the CDCR from the “direct link”
definitions the CDCR itself fought for in Cabrera I, contending that the appellate courts
have followed these definitions based on a mere “dictionary definition” of “direct.” This
is misleading, to say the least. Again, our Supreme Court approved these definitions for


                                              12
“direct link” in Cabrera I as proffered by the CDCR. (Cabrera I, supra, 55 Cal.4th at
p. 690 [referring to 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,” ’ ” italics added]. ) The warden neither renounces these
definitions nor gives us reason to deviate from them. To the extent the warden intends to
imply by his reference to “straight-forward connection” that we should expand the
boundaries of “direct link” beyond those his own agency advocated and our highest court
endorsed in Cabrera I, we decline to do so, just as the Fifth Appellate District declined to
do in Cabrera II.
       Indeed, such an expansive “interpretation” of direct link would render that distinct
requirement of the CDCR regulations meaningless, since almost any source item could be
characterized as having a “straight-forward connection” with a gang member or associate.
Gang symbols, such as tattoos, for example, arguably would communicate one’s gang
affiliation to, among others, gang members and associates. (See Cabrera I, supra,
55 Cal.4th at 692 [noting gang expert’s statement that “a gang affiliate may collect or
keep a copy of [drawings or photos containing coded and hidden messages] to
demonstrate his association with [a] validated gang member or associate”].) The direct
link element requires more.
       Also, the CDCR’s court-approved interpretation of “direct link” advances the
agency’s stated goal of ensuring that an inmate meets the definition of an associate, i.e.,
“an inmate/parolee or any person who is involved periodically or regularly with members
or associates of a gang.” (§ 3378, subd. (c)(4), italics added.) Requiring a “direct link”
between the inmate and a particular gang member or associate ensures this involvement
must be established before an inmate is subjected to the adverse consequences that flow
from validation as a gang associate, such as segregated housing and loss of good time
credits. It ensures that an “association with validated gang affiliates” as defined by the
CDCR (§ 3378, subd. (c)(8))—i.e., “ ‘ “a ‘loose relationship as a partner, . . . colleague,
friend, companion, or ally’ with a validated gang affiliate” ’ ” (Cabrera II, supra,
216 Cal.App.4th at p. 1535)—in fact exists.


                                              13
       Instead, we apply the definitions of “direct link” as advanced by the CDCR and
accepted by our high court in Cabrera I. Upon doing so, we conclude that the warden’s
evidence does not establish a direct link between Martinez and the Mexican Mafia
affiliate. It arguably establishes at most7 that Martinez participated in a June 26, 2006
disturbance that, as Agent Beeson characterized it, “was as a result of him receiving,
verifying, and acting upon the orders of the [Mexican Mafia] prison gang.” (Italics
added.) As Beeson stated, such orders “trickle down” to persons like Martinez. Thus,
this characterization of the evidence by Beeson, who validated Martinez, demonstrates
that there is no evidence of any direct link between Martinez and the Mexican Mafia
affiliate. Similar to Cabrera in Cabrera II, the Mexican Mafia affiliate could have given
his order to inmate B, who in turn could have given it to inmate C, who could have given
it to inmate D, who could have told Martinez there was a Mexican Mafia gang order—
otherwise unidentified—that all Southern Hispanics were to participate in the
disturbance. This is insufficient to show a direct link between Martinez and the validated
Mexican Mafia affiliate identified by Pelican Bay officials, which is necessary to validate
Martinez as a Mexican Mafia associate. Instead, it indicates the possibility—and even
the probability—that any order obtained by Martinez that originated with the Mexican
Mafia affiliate involved an intervening agency or step.
       Rather than acknowledge this evidentiary gap, the warden mischaracterizes
Beeson’s characterization of the evidence and his conclusion, stating that “Beeson

       7
          We review the record for some evidence in support of the decision to validate
Martinez as a Mexican Mafia gang associate, which by definition must be evidence that
existed at the time of his validation in December 2011. Although Beeson is the person
who validated Martinez, it is questionable whether some of the statements in Beeson’s
declaration constitute such evidence. Beeson executed his declaration three years after
Martinez was validated, in opposition to Martinez’s habeas petition in superior court.
Thus, the declaration itself was not evidence relied on to validate Martinez. Also, many
of Beeson’s statements characterize the evidence, but are not evidence themselves. In
any event, even if we treated Beeson’s entire declaration as evidence of the facts upon
which the decision to validate Martinez was made, the declaration fails to establish a
direct link. Thus, we need not further address the extent to which the declaration is
competent evidence.


                                             14
concluded, based on his training, knowledge, and experience, that given these facts,
Martinez participated in the mass disturbance as a result of his receiving, verifying, and
acting upon a validated associate’s order.” (Italics added.) This was not Beeson’s
conclusion, nor what was shown by the evidence. Again, Beeson concluded, based on his
training, knowledge and experience, that the evidence before him indicated that Martinez
participated in June 26, 2006 disturbance “as a result of him receiving, verifying, and
acting upon the orders of the [Mexican Mafia] prison gang.” (Italics added.) Beeson
viewed this evidence as “constituting a direct link to the validated [Mexican Mafia
affiliate] who gave the order.” This, however, is a legal question that we answer de novo.
As indicated by the discussion and holding of Cabrera II and Villa, supra,
214 Cal.App.4th 954, the evidence does not constitute such a direct link.
                                      DISPOSITION
       The trial court’s grant of Martinez’s petition for a writ of habeas corpus is
affirmed.




                                                  STEWART, J.

We concur.



RICHMAN, Acting P.J.


MILLER, J.




                                             15
Trial Court: Del Norte County Superior Court

Trial Judge: Hon. William H. Follett

Counsel:

Kamala D. Harris, Attorney General, Jennifer A. Neill, Senior Assistant Attorney
General, Jessica N. Blonien, Supervising Deputy Attorney General, Maria G. Chan,
Deputy Attorney General, for Respondent.

L. Richard Braucher, under appointment by the Court of Appeal, for Petitioner.




                                           16
