In re Cabrera 9/8/11 CA5

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F059511

Case Date: 12/14/2011

Preview:Filed 9/8/11

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

F059511 In re ELVIN CABRERA,

OPINION
On Habeas Corpus.

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Elvin Cabrera, in pro. per.; and Melanie K. Dorian, under appointment by the Court of Appeal, for Petitioner Elvin Cabrera. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Julie L. Garland, Assistant Attorney General, Jessica N. Blonien and Henry J. Valle, Deputy Attorneys General, for Respondent State of California.

Elvin Cabrera filed a petition for writ of habeas corpus to challenge his validation as an associate of the Mexican Mafia prison gang (EME) and his placement in the security housing unit (SHU) at the California Correctional Institution at Tehachapi (CCI). Cabrera argues that his possession of photocopies of drawings signed by either a gang member or gang associate was insufficient to establish a direct link to a current or

former validated member or associate of the gang as required by California Code of Regulations, title 15, section 3378, subdivision (c)(4).1 We agree. The required direct link between Cabrera and a gang member or associate was not established by the artist`s name on the photocopied artwork. Consequently, Cabrera`s petition for writ of habeas corpus will be granted. THRESHOLD ISSUES There are two threshold issues that will affect our description of the facts in this proceeding. Consequently, we will address those issues before setting forth the facts and procedural history of this case. Broadly stated, the first issue concerns which facts are material to deciding the merits of this habeas corpus proceeding. The term material fact is used here to mean a fact that affects the decisionmaking of this court. In other words, a material fact is a fact of consequence to our reasoning and resolution of this matter. (See generally Cal. Const., art. VI,

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