Filed 4/12/12
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re JOHN FRATUS
F058189
On Habeas Corpus.
ORIGINAL PROCEEDING; petition for writ of habeas corpus.
Susan L. Jordan, under appointment by the Court of Appeal, for Petitioner John
Fratus.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Jessica N. Blonien and Michael G. Lagrama, Deputy Attorneys General, for Respondent
State of California.
-ooOooINTRODUCTION
Petitioner John Fratus was found guilty following a disciplinary hearing for
battery of a correctional officer in 2006. He filed a petition for writ of habeas corpus in
this court in 2008, alleging he did not have a fair hearing because he had not been
allowed to call a friendly witness and had not been permitted to cross-examine the prison
officers who testified against him at the disciplinary hearing. This court issued an order
directing the Department of Corrections and Rehabilitation (the Department) to “show
cause before the Kings County Superior Court … why petitioner is not entitled to
appropriate relief.” In February 2009, the superior court denied the petition for writ of
habeas corpus. Although the superior court found that the Department had violated its
own regulation, which permitted an inmate at a disciplinary hearing to “ask questions of
all witnesses called” (Cal. Code Regs., tit. 15, § 3315, subd. (e)(5)), it found the error
harmless.
Fratus then filed the current petition for writ of habeas corpus in this court in
August 2009. Again, he contends he was denied his right to call a friendly witness and to
cross-examine witnesses at his disciplinary hearing. In addition, based on his inability to
fully present his case, he contends there was insufficient evidence to support the guilty
finding. This court again issued an order to show cause, but returnable to this court. As
we shall explain, because the Department has conceded that Fratus was permitted to ask
only one question of each of the four officer witnesses who gave evidence against him,
we agree with the superior court that the Department violated its own regulation allowing
an inmate to ask relevant questions of all witnesses called. But unlike the superior court,
we do not view the error as harmless. We also conclude the Department, in this case,
violated Fratus‟s due process right to call witnesses in his defense and the Department's
own regulation to question all witnesses. Accordingly, we grant the petition for a writ of
habeas corpus and direct the Department to either restore to Fratus the 121 days of goodtime behavior credits he lost as a consequence of the Department‟s finding that he had
committed a battery upon a correctional officer or conduct a new disciplinary hearing
consistent with this opinion.
BACKGROUND FACTS AND ADMINISTRATIVE PROCEEDINGS
At the time of the alleged incident and disciplinary hearing, Fratus was serving
time for a 2005 conviction of shooting into an inhabited dwelling (Pen. Code, § 246)1 and
assault with a firearm (§ 245, subd. (a)(2)). He was later convicted in 2008 of “gassing”
a peace officer (§ 4501.1, subd. (a)); and in 2009 of obstructing/resisting an officer
1
All further statutory references are to the Penal Code unless noted otherwise.
2.
(§ 69). For these offenses, he is serving a total prison term of 44 years and therefore is in
the lawful custody of the Department.
On July 18, 2006, prison officials issued Fratus a disciplinary rules violation report
for battery on a peace officer, which allegedly occurred on July 12, 2006. The
Department‟s account of the incident differs drastically from petitioner‟s account.
According to the Department, Correctional Officers Hamilton and Solano were
escorting Fratus from his cell to an outdoor exercise module. Fratus was very agitated,
used profanities, and was resistant toward the escorting officers, so Sergeant Robertson
counseled Fratus about his improper behavior. Fratus then head-butted Hamilton on the
left side of Hamilton‟s face. Hamilton and Solano forced Fratus to the ground to subdue
him. Officer Cortez relieved Officer Hamilton and assisted Officer Solano in escorting
Fratus back to his cell. Fratus attempted to spit on, trip, and lunge at Officer Cortez,
requiring the officers to force Fratus to the ground two more times in order to subdue
him.
Fratus asserts that the Department‟s account of the incident is false, and that the
Department fabricated the event to conceal an unprovoked beating of him by correctional
officers. He contends that the alleged beating was inflicted because he had recently been
transferred to Corcoran from another prison, and the Corcoran correctional officers were
aware that he had “write-ups for masturbating in [his] cell and indecent exposure in front
of female prison staff/officers” at the other prison. Fratus contends that shortly before the
alleged beating Officer Solano told him “welcome to Corcoran, you‟re gonna see what
we do at Corcoran, you like to jack off in front of women?”
Before his disciplinary hearing in August 2006, Fratus received the services of an
investigative employee (the investigator), whose duties were to act as a fact finder for the
Senior Hearing Officer (SHO) who would preside over the disciplinary hearing. In
compliance with Fratus‟s requests, the investigator interviewed or attempted to obtain
statements from four correctional officers involved in the incident and 17 inmates who
3.
were housed in cells in that area on July 12. Fifteen of the 17 inmates refused to give a
statement. One said “I don‟t know anything.” The remaining inmate, Herman Johnson,
gave a statement supportive of Fratus. The investigator‟s report describes Johnson‟s
statement as follows: “I saw Inmate Fratus being escorted to the yard. The next thing I
know he was being slammed to the ground and the Correctional Officer lied on Fratus
and said he tried to assault them. That was their reason for slamming him to the ground.
I saw the entire thing. Fratus did not make any moves or anything of that nature. The
C/O‟s are lying so they can justify why they beat him up. Then as they were walking him
out of the cages they threw him down to the ground again and kicked him in the face
multiple times. And again they kicked him some more.” Fratus timely received a copy
of the investigative employee‟s report before his August 23, 2006, disciplinary hearing.
The investigator‟s report also included statements taken from four officers
involved in the July 12 incident: Officer E. Hamilton (the alleged victim of the July 12
head-butting), Sergeant D. Robertson, Officer R. Cortez, and Officer R. Solano. Those
statements appear to be in accord with the Department‟s account of the incident as
described above. Hamilton‟s statement also adds that after Fratus head-butted him and
after Fratus attempted to trip Cortez and was taken to the ground a second time, an
Officer R. Ortega placed leg irons on Fratus. Hamilton‟s statement also adds that after
Fratus lunged at Cortez and was taken to the ground for the third and final time, an
Officer K. Elze relieved Officer Solano, and Elze and Solano placed Fratus into a holding
cell.
The SHO denied Fratus‟s request for the presence of inmate Johnson at the
disciplinary hearing, concluding that Johnson‟s live testimony would not provide any
additional or relevant information beyond what was contained in his earlier statement to
the investigator, quoted above. The SHO granted Fratus‟s request to have five custodial
officers testify, but Fratus later waived his right to call Officer Solano at the hearing, after
Solano was apparently unavailable to appear. He entered a plea of not guilty and stated:
4.
“I did not assault anyone. I was the one who was assaulted.” Officer Hamilton, Sergeant
Robertson, Officer Cortez and Officer Elze were questioned at the hearing.
The SHO‟s report describes the live testimony given at the hearing by these
officers, in response to questions posed by the SHO:
“The following questions were asked of Officer Hamilton:
“Q1) Were you one of the escorting officers?
“A1) Yes.
“Q2) Did this incident occur outside, or inside the exercise module?
“A2) Outside.
“Q3) Did you witness Inmate Fratus head butt Correctional Officer
Hamilton?
“A3) Yes, right at the door of the exercise module.
“The following questions were asked of Correctional Sergeant Robertson:
“QA) Were you one of the escorting officers?
“Al) No.
“Q2) Did this incident occur outside, or inside the exercise module?
“A2) When I responded to the scene, Inmate Johnson was basically inside
the module.
“Q3) Did you witness Inmate Fratus head butt Correctional Officer
Hamilton?
“A3) No.
“The following questions were asked of Officer Cortez:
“Q1) Were you one of the escorting officers?
“A1) Yes.
“Q2) Did this incident occur outside, or inside the exercise module?
“A2) In front of exercise module.
“Q3) Did you witness Inmate Fratus head butt Correctional Officer
Hamilton?
“A3) Yes.
“The following questions were asked of Officer Elze:
“Q1) Were you one of the escorting officers?
“Al) Yes.
“Q2) Did this incident occur outside, or inside the exercise module?
“A2) I did not observe where the incident occurred.
“Q3) Did you witness Inmate Fratus head butt Correctional Officer
Hamilton?
“A3) No.”
5.
In addition to this live testimony, and written reports of the incident prepared by
the investigator, the SHO considered medical reports showing injuries to Fratus and to
Officers Hamilton, Solano and Cortez. The report pertaining to Fratus documents minor
cuts, abrasions and reddened areas at various points on his body, including his head,
wrists, arms and knees. It describes him as displaying “bizarre behavior,” being a
“danger to others” and a “danger to self,” and as saying “take these cuffs off so I can kill
all you guys.” (Unnecessary capitalization omitted.) The report for Hamilton (the
alleged head-butt victim) describes a bruised and discolored area, and pain, on the left
side of his head, and a statement by Hamilton to his examiner that “I was head butted and
struck on the left side of my mouth.” (Full capitalization omitted.) The reports for
Solano and Cortez describe various abrasions and bruises.
The SHO found Fratus guilty of battery on a peace officer and assessed a penalty
of a forfeiture of 150 days of credit. This was later reduced to 121 days “in the interest of
justice and [petitioner‟s] mental health.”
Fratus then filed an inmate appeal (602 appeal) contending that his disciplinary
hearing was unfair because he had not been permitted to call inmate Johnson as a witness
(Johnson) or question the prison officers who testified at the hearing.
HABEAS CORPUS PETITIONS
“Habeas corpus may be sought by one lawfully in custody for the purpose of
vindicating rights to which he is entitled while in confinement.” (In re Arias (1986) 42
Cal.3d 667, 678.) After his 602 appeal was denied at the director‟s level, Fratus filed his
first petition for writ of habeas corpus in this court in 2008, alleging he did not have a fair
disciplinary hearing because he had not been allowed to call Johnson as a witness and
had not been permitted to cross-examine the prison officers who testified against him.2
This petition included information not mentioned in Fratus‟s 602 appeal - that the
hearing officer limited him to only one question of each of the correctional officers at the
hearing. According to Fratus, the question was written down and read to each officer by
the hearing officer: “Did this incident happen inside or outside the exercise module?”
2
6.
This court issued an order directing the Department to show cause, before the
Kings County Superior Court, why Fratus was not entitled to appropriate relief and
conduct further proceedings pursuant to California Rules of Court, rule 4.551. Pursuant
to our order, the superior court appointed counsel for Fratus. The Department‟s return
and Fratus‟s traverse were filed in superior court.
The superior court, concluding that an evidentiary hearing was not required to
determine the matter, denied the petition by written order dated February 17, 2009. The
superior court ruled that exclusion of inmate Johnson‟s live testimony was allowed under
California Code of Regulations, title 15, section 3315, subdivision (e)(1)(B), as inmate
Johnson could not provide any additional information beyond that provided in the
investigator‟s interview, which was considered as evidence by the SHO.3 The court also
assumed the hearing officer properly denied Johnson‟s appearance “based on safety and
security concerns.”
The superior court also ruled that: “While petitioner may not have an all inclusive
federal constitutional right to cross-examine disciplinary hearing witnesses, he does have
a limited state right under [California Code of Regulations, title 15,] [s]ection 3315,
subdivision (e)(5) to ask relevant questions of all witnesses called. In this case, by
This question was the second one asked of each officer at the hearing. Fratus was
apparently alleging that the some of the officers went against department policy by
entering the exercise module.
3
Many of the rights afforded to inmates by California Code of Regulations, title 15,
section 3315 are also found in Penal Code section 2932, which prescribes procedures to
be utilized by the Department “after the discovery of information leading to charges that
may result in a possible denial of credit ….” (§ 2932, subd. (c)(1)(A).) Subdivision
(c)(3) of section 2932 states: “The prisoner may request witnesses to attend the hearing
and they shall be called unless the person conducting the hearing has specific reasons to
deny this request. The specific reasons shall be set forth in writing and a copy of the
document shall be presented to the prisoner.” Subdivision (c)(4) of the statute states:
“The prisoner has the right, under the direction of the person conducting the hearing, to
question all witnesses.”
7.
issuing an almost blanket denial of such right to Petitioner without any consideration as
to the relevancy of Petitioner‟s intended questions, the senior hearing officer failed to
comply with the recognized procedural requirements set forth in California Code of
Regulations, title 15, [s]ection 3315, subdivision (e)(5).” (Original italics.) The trial
court essentially concluded that Fratus was deprived of the ability to present his defense
to the head-butting battery allegation involving Officer Hamilton. However, the court
concluded that there was sufficient evidence in the record, with some indicia of
reliability, to support a battery conviction based on the tripping of Officer Cortez, and
therefore concluded that the error in precluding Fratus‟s defense of the Hamilton
accusations was harmless.
Fratus then filed the current (F058189) petition for writ of habeas corpus in this
court in August 2009, essentially repeating the allegations of first petition that he was
denied his right to call Johnson as a witness and question department witnesses at his
disciplinary hearing. He also challenged the sufficiency of the evidence. This court
again issued an order to show cause, this time returnable before this court. The
Department‟s return and Fratus‟s traverse were filed and the matter is now before us.
DISCUSSION
The United States Supreme Court has addressed these issues. In Wolff v.
McDonnell (1974) 418 U.S. 539 (Wolff), an inmate was sanctioned a loss of “good-time
credits” in a prison disciplinary proceeding, similar to this case. The court acknowledged
that prison inmates are protected by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, but explained the realities of the prison
setting:
“[T]he fact that prisoners retain rights under the Due Process Clause in no
way implies that these rights are not subject to restrictions imposed by the
nature of the regime to which they have been lawfully committed.” (Wolff,
supra, 418 U.S. at p. 556.)
“Prison disciplinary proceedings ... take place in a closed, tightly controlled
environment peopled by those who have chosen to violate the criminal law
8.
…. Some are first offenders, but many are recidivists who have repeatedly
employed illegal and often very violent means to attain their ends. They
may have little regard for the safety of others or their property or for the
rules designed to provide an orderly and reasonably safe prison life.
Although there are many varieties of prisons with different degrees of
security, we must realize that in many of them the inmates are closely
supervised and their activities controlled around the clock. Guards and
inmates co-exist in direct and intimate contact. Tension between them is
unremitting. Frustration, resentment, and despair are commonplace.
Relationships among the inmates are varied and complex and perhaps
subject to the unwritten code that exhorts inmates not to inform on a fellow
prisoner. [¶] It is against this background that disciplinary proceedings
must be structured by prison authorities; and it is against this background
that we must make our constitutional judgments, realizing that we are
dealing with the maximum security institution as well as those where
security considerations are not paramount. The reality is that disciplinary
hearings and the imposition of disagreeable sanctions necessarily involve
confrontations between inmates and authority and between inmates who are
being disciplined and those who would charge or furnish evidence against
them. Retaliation is much more than a theoretical possibility; and the basic
and unavoidable task of providing reasonable personal safety for guards
and inmates may be at stake, to say nothing of the impact of disciplinary
confrontations and the resulting escalation of personal antagonisms on the
important aims of the correctional process.” (Wolff, supra, 418 U.S. at pp.
561-562.)
The Right to Call Witnesses
With this backdrop, the court held that “the inmate facing disciplinary proceedings
should be allowed to call witnesses and present documentary evidence in his defense
when permitting him to do so will not be unduly hazardous to institutional safety or
correctional goals.” (Wolff, supra, 418 U.S. at p. 566.) This was later affirmed in
Superintendent v. Hill (1985) 472 U.S. 445, 454 (Hill) (see also In re Rothwell (2008)
164 Cal.App.4th 160, 165).4
4
The court in Wolff also concluded that confrontation and cross-examination of
adverse witnesses in a prison disciplinary proceeding was not constitutionally required.
(Wolff, supra, 418 U.S. at pp. 567-568.)
9.
Fratus was therefore entitled under the Due Process Clause, as interpreted in Wolff
and recognized in Hill, to “an opportunity, when consistent with institutional safety and
correctional goals, to call witnesses and present documentary evidence in his defense”
(Hill, supra, 472 U.S. at p. 454). We conclude that this opportunity was not afforded to
Fratus at his disciplinary hearing. There is no issue here involving Fratus‟s right to
present documentary evidence, since he offered none. The issue is his “opportunity,
when consistent with institutional and safety goals, to call witnesses ... in his defense.”
(Ibid.) In our view, the SHO‟s refusal to allow Fratus to call inmate Johnson as a
witness, for the reasons stated in his report of the disciplinary hearing (he “could not
provide any additional/relevant information”), was a violation of the due process right
recognized in Wolff and Hill.
In addition, the SHO‟s decision to not allow Fratus to call inmate Johnson as a
friendly witness was also a violation of one the Department‟s own rules. California Code
of Regulations, title 15, section 3315 pertains to the handling of “serious” disciplinary
offenses, such as the battery alleged here. Failure to follow these regulations may result
in the denial of procedural due process afforded to prisoners. (People v. Superior Court
(Hamilton) (1991) 230 Cal.App.3d 1592, 1594.) Subdivisions (c) through (f) of
California Code of Regulations, title 15, section 3315 pertain to the procedure for and
disposition of the inmate‟s hearing on the alleged serious disciplinary offense.
Subdivision (e), relied upon by the SHO in this matter, states:
“(e) Witnesses. An inmate may request that friendly and adverse
witnesses attend the hearing.
“(1) Requested witnesses shall be called unless the official
conducting the hearing denies the request for one of the following reasons:
“(A) The appearance would endanger the witness.
“(B) The official determines that the witness has no relevant or
additional information.
“(C) The witness is unavailable.
10.
“(2) If an inmate‟s request for a witness is denied, the reasons shall
be documented on the CDC Form 115.
“(3) Whether or not the inmate requests a witness, witnesses may be
called if the official conducting the hearing determines the witnesses may
have information necessary to the finding of fact.
“(4) The reporting employee shall attend the disciplinary hearing or
be available for questioning via speakerphone if requested by the inmate.
“(5) Under the direction of the official conducting the disciplinary
hearing, the inmate has the right to ask questions of all witnesses called.
The SHO will screen all questions to ensure they are relevant to the
violation charged.
“(6) Nothing in this section shall preclude making a witness
available by speaker phone for a disciplinary hearing.” (Cal. Code Regs.,
tit. 15, § 3315, subd. (e).)
Fratus‟s request to call inmate Johnson as a “friendly” witness at the disciplinary
hearing was denied on the authority of subdivision (e)(1)(B) above. The SHO‟s report
stated he “elected to deny Subjects [sic] request for the presence of Inmate Johnson per
CDC § 3315 (e)(1), as Inmate Johnson could not provide any additional/relevant
information than that which was provided during the [investigator‟s] interview.” The
SHO was required by subdivision (e)(2) to document on his report the “reasons” for
denying Fratus‟s request to call Johnson as a witness. The above quoted reason was the
only one mentioned in the hearing officer‟s report. No safety or correctional issues were
noted.
It seems clear from the investigator‟s report that Johnson had “relevant”
information. According to that report, Johnson said: “I saw the entire thing. Fratus did
not make any moves or anything of that nature. The C/O‟s are lying so they can justify
why they beat him up.” A prison disciplinary hearing is not a court trial, and the rules of
evidence thus do not apply (see Evid. Code, § 210 for the Evid. Code‟s definition of
“relevant evidence”), but the commonly understood meaning of the word “relevant” is
“bearing upon or relating to the matter in hand; pertinent; to the point.” (Webster‟s New
World Dict. (2d college ed. 1982) p. 1199.) The officers contended that Fratus head11.
butted Officer Hamilton. Johnson‟s story was that Fratus did not do so, and that the
officers “are lying so they can justify why they beat him up.” Under the commonly
understood meaning of word “relevant,” Johnson had relevant information.
Also, if the SHO denied Fratus‟s request to call the “friendly” witness Johnson
because Johnson had no “additional information” beyond what had been presented to the
SHO in the investigator‟s report, then (disregarding the fact that the SHO‟s report
contains no explanation as to how he reached such a conclusion) we fail to see why the
SHO did not reach the same conclusion as to Officers Hamilton and Cortez, who did give
live testimony at the disciplinary hearing and who were permitted to state, in person at
the disciplinary hearing, what they had stated in their written reports - that Fratus had
head-butted Hamilton.
As we have stated, we fail to see how the refusal to permit Johnson to testify in
person at the disciplinary hearing could be deemed to comply with the due process right
described in Wolff and in Hill. If Fratus has a right “when consistent with institutional
safety and correctional goals, to call witnesses ... in his defense” (Hill, supra, 472 U.S. at
p. 454), and if he was not permitted to call a friendly witness, then he was denied due
process unless the refusal to hear the friendly witness would be inconsistent with
institutional safety or correctional goals. The documented reason for refusing to permit
Johnson to appear at the hearing had nothing to do with institutional safety or correctional
goals. The assertion that Johnson had no relevant information was not accurate. Johnson
had relevant information, and preventing the presentation of relevant testimony at a
disciplinary hearing is not a “correctional goal.” Because the refusal to permit Johnson to
testify was not based upon any concern for institutional safety or in furtherance of any
legitimate correctional goal, we conclude that it was a violation of Fratus‟s right to due
process of law.
12.
The Right to Ask Questions
Although Fratus did not have a constitutional right to cross-examine adverse
witnesses at his disciplinary hearing (see fn. 4, ante), the refusal of the SHO to allow
Fratus to ask more than one question of the prison officers is a violation of subdivision
(e)(5) of California Code of Regulations, title 15, section 3315, as the superior court
concluded. Fratus‟s first petition, like the present one, alleged that the hearing officer
told Fratus “that he would allow me to ask „one‟ question to each of the adverse
witnesses, and that he ... would write down my one question ... and he would ask it to
them for me.” Until oral argument, the Department never denied that the SHO limited
Fratus‟s questioning of Officers Hamilton, Cortez and Elze, and of Sergeant Robertson,
to one question, and did not appear to contend that such a limitation is justifiable under
the regulation. “Any material allegation of the petition not controverted by the return is
deemed admitted for purposes of the proceeding.” (Cal. Rules of Court, rule 4.551(d).)
Instead, the Department attempted to argue that Fratus failed to exhaust his
administrative remedies because he failed to assert in his initial administrative appeal that
he was denied the right to question or cross-examine the prison officers at his hearing.
This is not correct. His 602 appeal stated he “was not allowed to question/cross-examine
the adverse witnesses ….” The director‟s level decision confirms his allegation.
The superior court‟s conclusion that the error in failing to allow additional
questions of the prison officers was harmless was based upon its assumption that the
battery finding could be upheld on the basis that the evidence of Fratus‟s attempt to trip
Officer Cortez was a battery. We reject this for two reasons. First, the Department has
conceded that appellant was charged with a battery on Hamilton (i.e. the alleged headbutting) and not on Cortez, and this concession of lack of proper notice is well taken.
Second, even if we could reasonably construe the disciplinary charge against Fratus as a
battery upon Officer Cortez, which we cannot, Fratus was still not permitted to ask more
than one question, about anything, at his disciplinary hearing.
13.
Because Fratus was denied his right to present his defense at the disciplinary
hearing, as mandated under the Due Process Clause and allowed under the Department
regulations, and thus denied a fair hearing, we do not know the evidence which would
have come from the testimony of inmate Johnson or the questions asked of the prison
officers. Without this evidence, we cannot evaluate the sufficiency of the evidence issue
at this time, or whether the failure to allow questioning of the prison officers was
harmless error. (See Piggie v. Cotton (7th Cir. 2003) 344 F.3d 674, 679.) We do note
however, that error may not be deemed harmless when such an error “undermine[s]
confidence in the outcome.” (Strickland v. Washington (1984) 466 U.S. 668, 694.)
DISPOSITION
The petition for a writ of habeas corpus is granted and the Department is directed
to either restore to petitioner the 121 days of good-time behavior credits he lost as a
consequence of the Department‟s finding that he had committed a battery upon a
correctional officer or conduct a new disciplinary hearing consistent with the holdings in
this case.
_____________________
Franson, J.
WE CONCUR:
_____________________
Dawson, Acting P.J.
_____________________
Kane, J.
14.
