In Re Scott

[948]

Opinion

ANDERSON, P. J.

The California Department of Corrections (appellant) appeals from an order granting the petition of Sterling B. Scott II (petitioner) for a writ of habeas corpus. We reverse.

I. Factual Background

Petitioner is a prisoner at San Quentin State Prison. While he was a prisoner at Solano State Prison in 1993, he became involved in a series of exchanges with correctional officers stemming from the fact that no potatoes were available at the time he went to the dining hall for the evening meal.

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Following those exchanges, disciplinary proceedings were initiated against petitioner in which he was charged with violation of title 15, California Code of Regulations, section 3005, subdivision (c), which provides that inmates “must not willfully attempt to incite others, either verbally or in writing, or by other deliberate action, to use force or violence upon another person.” Those proceedings resulted in petitioner’s loss of 30 days of good conduct credits. Petitioner appealed that decision through administrative channels. When his administrative appeal(s) was (were) unsuccessful, he filed a petition for a writ of habeas corpus in the superior court, seeking reversal of the decision of the prison officials and restoration of the 30 days of behavior credits. The petition was not served on appellant or the District Attorneys of Solano or Marin County.

The trial court issued an “Order Granting Petition for Habeas Corpus.” The court determined, based on the record submitted by petitioner, that “[t]here was no evidence that [petitioner] willfully attempted to incite others to use force or violence upon staff or any other person.” The court then ordered appellant to restore the 30 days of behavior credits lost as part of the disciplinary proceedings.

Appellant argues that the trial court erred in granting the relief requested without issuing a writ or an order to show cause which would have permitted appellant to respond to the petition. Per appellant, the procedure followed by the trial court violated appellant’s right to due process of law.