In re Gonzales

Opinion

FOCHE, J. Petitioner, Michael Eric Gonzales, complains of the refusal of the Department of Corrections to allow him to correspond confidentially with his Canadian attorney regarding a Canadian divorce proceeding to which petitioner is a party. We agree that under Penal Code section 2600, he is entitled to exercise the right he claims.

Petitioner, a prisoner of the State of California, sought confidential mail privileges with his Canadian attorney. His request was denied on the ground that the attorney was not listed with a state bar association. Petitioner has exhausted available Department of Corrections administrative remedies and has been denied relief in the Marin County Superior Court. He now seeks relief in this court by petition for writ of habeas corpus. Attached to his petition is the declaration of Kevin Robb, who declares that he is a barrister and solicitor licensed to practice in the courts of British Columbia, Canada, and that he represents petitioner with respect to child custody and access arising from a divorce proceeding to which petitioner is a party.

[461]In refusing to allow confidential mail privileges between petitioner and his Canadian attorney, the Department of Corrections was applying the director’s rules found in the California Code of Regulations. These rules provide that correspondence with “[a]n attorney at law listed with a state bar association” will be treated as confidential correspondence. (Cal. Code Regs., tit. 15, § 3141, subd. (c)(5).) This means that the correspondence can be inspected only: (1) for contraband; or (2) to check to determine if the letter is actually to or from a person or office allowed to send or receive confidential mail. (Id., § 3144.) Any inspection involving opening of mail will be in the presence of the inmate. (Ibid.) Attorney-inmate mail or the printed enclosures in the mail may not be read in search of “ ‘verbal contraband.’ ” (In re Jordan (1972) 7 Cal.3d 930, 936 [103 Cal.Rptr. 849, 500 P.2d 873], [Jordan I]; In re Jordan (1974) 12 Cal.3d 575 [116 Cal.Rptr. 371, 526 P.2d 523], [Jordan II].) If mail is not treated as confidential correspondence, it may be read by prison employees. “This reading of mail will be for cause only. Cause may include, but is not limited to, the belief by staff that regular nonconfidential mail sent to or received for an individual inmate poses a danger to a person, persons, the public, or serious threat to the security of the facility.” (Cal. Code Regs., tit. 15, § 3138, subd. (a).)