Wheeler v. Trimble CA5

Filed 3/27/15 Wheeler v. Trimble CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

REGINALD WHEELER, F068696

Plaintiff and Appellant, (Super. Ct. No. 11CECG03585)

v. OPINION ROBERT TRIMBLE,

Defendant and Respondent.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Debra J. Kazanjian, Judge. Reginald Wheeler, in pro. per., for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney General, Julie A. Malone and Patricia Webber Heim, Deputy Attorneys General, for Defendant and Respondent.

-ooOoo-

* Before Hill, P. J., Cornell, J. and Gomes, J.

Petitioner, a prison inmate, seeks a writ of mandate compelling respondent, the prison warden, to have the disciplinary charges against him reheard due to an alleged procedural violation in the prior hearing process. The trial court sustained respondent’s demurrer to the amended petition and petitioner appeals. We affirm. FACTUAL AND PROCEDURAL BACKGROUND The amended petition for writ of mandate, filed January 22, 2013, alleges petitioner was issued a CDC form 115, rules violation report (RVR).1 Apparently, the administrative hearing officer found him guilty of the charge. The RVR was ordered reissued and reheard due to investigative employee error. The subsequent decision from the second level administrative appeal, which is attached to the petition, indicates a rehearing took place on May 4, 2009, and petitioner appeared and pled not guilty. The hearing officer found petitioner guilty. The decision from the second level review, however, found a due process violation had been made: petitioner had not been timely served with the rewritten RVR. Because of the error, the second level decision concluded the finding of guilt could stand, but the forfeiture of conduct credits could not be imposed. The decision from the next level of appeal, the director’s level, denied petitioner’s appeal. It concurred with the second level decision that the evidence the hearing officer relied on was sufficient to sustain a finding of guilt. It rejected petitioner’s assignments of error. The decision concluded: “As the appellant has not provided persuasive evidence that he is innocent of the charge or that due process was unfulfilled in the finding of guilt, relief at the [director’s level of review] is not warranted.”