In re Von Staich

Filed 10/20/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re IVAN VON STAICH on Habeas Corpus. A160122

Petitioner Ivan Von Staich is incarcerated at San Quentin State Prison pursuant to 1986 convictions for second degree murder with use of a firearm and attempted murder. Petitioner has been in the custody of the California Department of Corrections and Rehabilitation (CDCR) since 1989, serving a sentence of 17 years to life for the murder consecutive to a 13-year sentence for the attempted murder. In May of this year, petitioner, in propria persona, filed a petition for writ of habeas corpus alleging CDCR was not adequately prepared to respond to a possible outbreak of COVID-19, the disease caused by the novel coronavirus, at San Quentin. Shortly thereafter, San Quentin suffered a devastating outbreak of COVID-19 that infected approximately 75 percent of the inmate population and dozens of prison staff in just weeks. This court appointed counsel, who filed a supplemental petition on July 23, 2020. Petitioner is 64 years of age and suffers respiratory problems resulting from bullet fragments lodged in his left lung. In a declaration, petitioner states that at the time he commenced this proceeding, he and a 65-year-old cellmate, both of whom had tested positive for COVID-19 (although petitioner

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was asymptomatic), were placed on the fourth tier of west block in a cell which, like others in that facility, was “so small that you can touch the walls with your hands.” The declaration states that “[p]rotecting oneself from infection COVID-19 in this open cell is impossible” because “there is no opportunity to engage in social distancing.” After informal response and reply, we issued an order to show cause on August 14, 2020, directing the Warden of San Quentin Prison (Warden) to show cause why relief should not be granted and to transfer petitioner to a suitable quarantine location pending disposition of this proceeding. The Attorney General’s return and petitioner’s traverse followed. Petitioner, who seeks placement in a residential facility supervised by CDCR that has already accepted him subject to a brief period of quarantine, maintains his continued incarceration at San Quentin violates the prohibition against cruel and unusual punishment embodied in article I, section 17 of the California Constitution and the Eighth Amendment to the United States Constitution. In particular, petitioner alleges respondents acted with deliberate indifference to the risk of substantial harm to inmates by failing to immediately reduce the population of San Quentin by releasing or transferring at least 50 percent of the population of the prison, in accordance with the recommendation of public-health experts who had been asked to advise CDCR on measures to combat COVID-19 considered necessary to “ ‘protect the health of prisoners, the health of correctional facility staff, the health of health care staff, and the health of the community as a whole.’ ” On the same basis, petitioner also seeks declaratory relief for other similarly situated San Quentin inmates. We agree that respondents—the Warden and CDCR—have acted with deliberate indifference and relief is warranted.