XAVIER BECERRA State of California

Attorney General DEPARTMENT OF JUSTICE

600 WEST BROADWAY, SUITE 1800
SAN DIEGO, CA 92101
P.O. BOX 85266
SAN DIEGO, CA 92186-5266

Public: (619) 738-9000

Telephone: (619) 738-9051
Facsimile: (619) 645-2044
E-Mail: Phillip.Lindsay@doj.ca.gov

December 3, 2020

The Honorable Chief Justice Tani G. Cantil-Sakauye

and Honorable Associate Justices
Supreme Court of California
350 McAllister Street
San Francisco, CA 94102-3600

RE: Request for Depublication of In re Von Staich (2020) 56 Cal.App.5th 53

Court of Appeal, First Appellate District, Division Two, Case No. A160122
California Supreme Court, Case No. S265173

Document received by the CA Supreme Court.

Dear Chief Justice Cantil-Sakauye and Associate Justices:

In a published decision, the First District Court of Appeal, Division Two, held that the
California Department of Corrections and Rehabilitation’s COVID-19 response at San Quentin
State Prison demonstrated prison officials were deliberately indifferent to inmate health and
safety in violation of the Eighth Amendment of the United States Constitution and article I,
section 17 of the California Constitution. The court ordered prison officials to immediately
reduce the inmate population at San Quentin to no more than 1,775 inmates—50 percent of the
inmate population as of June—via transfer of inmates to other prison facilities or release from
custody. (In re Von Staich (2020) 56 Cal.App.5th 53, slip opn. attached as Exh. 1.) The court
issued this sweeping directive in response to a habeas petition brought by a single inmate, Von
Staich, who requested release from San Quentin due to his age and asserted medical
vulnerabilities. (Von Staich has since been transferred, was found suitable for parole, and is
scheduled to be released on December 4, 2020.)

On November 16, 2020, CDCR petitioned for review seeking this Court’s intervention to
clarify the deliberate indifference standard as applied to prison officials’ response to COVID-19
and the scope of appropriate relief on habeas. By this request, CDCR also requests depublication
of the court’s decision whether or not review is granted. (Cal. Rules of Court, rule 8.1125(a).)

The Court should depublish the decision for three reasons. As discussed below, the
decision creates new and erroneous precedent that: (1) CDCR must submit evidence at the
pleading stage to disprove the factual allegations asserted by the petitioner in order to be entitled
to a hearing; (2) a court’s task in determining whether CDCR has been deliberately indifferent in
responding to an unprecedented and dynamic health crisis is to judge whether, with the benefit of
December 3, 2020
Page 2

hindsight, CDCR chose what the court views to be the best possible solution—regardless of the
good faith and reasonableness of its efforts; and (3) a court may issue broad injunctive relief
directing how CDCR must conduct fundamental prison operations in the context of a habeas
petition brought by a single inmate.

SUMMARY OF THE OPINION BELOW

On May 5, 2020, Ivan Von Staich, a life-term inmate at San Quentin, petitioned the Court
of Appeal for a writ of habeas corpus alleging he was at risk of COVID-19 complications should
there be an outbreak at San Quentin. (Slip opn. at p. 1.) A month later, the appellate court
appointed counsel for Von Staich and ordered counsel to file a supplemental petition. (Ibid.)

In that supplemental petition, Von Staich alleged the warden’s failure to immediately
release 50 percent of the inmates at San Quentin violated the Eighth Amendment of the United
States Constitution and article I, section 17 of the California Constitution. (Slip opn. at p. 2.)
The allegation was based upon a recommendation contained in a memorandum written by certain
public health professionals. In June 2020, shortly after the introduction of COVID-19 to San
Quentin, the federal Receiver jointly responsible for CDCR’s COVID-19 response, requested
that health professionals associated with the University of California, San Francisco, and the

Document received by the CA Supreme Court.

University of California, Berkeley School of Public Health, tour San Quentin and provide
recommendations with regard to CDCR’s COVID-19 response. After touring the prison, these
health professionals authored a document entitled Urgent Memo, COVID-19 Outbreak: San
Quentin Prison. In the nine-page Urgent Memo, its authors made many recommendations
covering several domains, including the prison’s command structure, housing, and testing,
among others. (Slip opn. pp. 8-9; see also Supp. Pet., Exh. B – Urgent Memo, COVID-19
Outbreak: San Quentin Prison.) Among other things, the memo stated: “We [ ] recommend that
the prison population at San Quentin be reduced to 50% of current capacity (even further
reduction would be more beneficial) via decarceration[.]” (Slip. opn. pp. 8-9.) The federal
Receiver declined to adopt the recommendation.

The warden filed his return, arguing Von Staich failed to state a claim for relief because
the warden and CDCR, working with public health experts and the federal Receiver, acted
diligently to address the risk associated with the unprecedented COVID-19 pandemic. (See slip
opn. at pp. 19-20.) The return described how CDCR, working in conjunction with and under the
direction of the federal Receiver and with the guidance of state and federal agencies, took
reasonable and comprehensive steps, including all steps recommended by the Centers for
Disease Control and Prevention for prison settings, to address the risk associated with the
unprecedented COVID-19 pandemic. (Return, pp. 18-19.) As the Court of Appeal’s decision
acknowledged, these steps included:

• “provid[ing] guidance on physical distancing” (slip opn. 5; see also id. at p. 12)

• “enhanc[ing] its sanitization procedures” (id. at p. 5; see also id. at p. 12

[increased cleaning and staffing]);
December 3, 2020
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• “establish[ing] a ‘unified command center’ at the prison ‘to coordinate custody

and medical response,’ [and] establish[ing] alternative care sites within existing
San Quentin facilities (id. at p. 12);

• “distribut[ing] personal protective equipment (PPE) to inmates and staff (ibid.)

and “requir[ing] all inmates and staff to wear facial barriers” (id. at p. 5)

• “implement[ing] inmate and staff testing” (id. at p. 12)

• “institut[ing] programs to expedite the release of certain classes of prisoners” (id.

at p. 5); and

• “reduc[ing]d its population ‘through the suspension of intake from county jails,
expedited releases and natural releases from the prison.’” (Id. at p. 12; see also id.
at p. 5)

“As of August 12, 2020, the inmate population at San Quentin had been reduced to 3,129 from
4,051 in March 2020, a reduction of 922 inmates (or 23%).” (Id. at p. 12; see also id. at pp. 19,
21, 23).

Document received by the CA Supreme Court.

Von Staich filed his traverse to the return. CDCR requested an evidentiary hearing to
resolve the disputes regarding material facts relevant to whether CDCR took reasonable steps to
mitigate the COVID-19 risk. (Slip. opn at pp. 13, 16.)

On October 20, 2020, the Court of Appeal issued a published decision. As a threshold
matter, the court denied CDCR’s request for an evidentiary hearing. In the court’s view, the only
relevant question was whether there were public health justifications for not immediately
reducing San Quentin’s prison population by 50 percent—the level of reduction set out in the
public health educators’ memorandum. (See slip opn. pp. 16-18.) It noted that CDCR had not
proffered evidence to counter that specific question. (Id. at pp. 16-17, 20, 25, 33.) Rather than
placing the burden of proof on petitioner to establish through admissible evidence, subject to
cross-examination, that a 50 percent reduction was necessary to meet constitutional standards,
the court accepted petitioner’s view that this measure was constitutionally required because
CDCR “has not offered any evidence to dispute the need for this minimum degree of reduction.”
(Id. at p. 25.) The court asserted that “[t]he issue before us is simply whether respondents’
disregard of the experts’ conclusion that a 50 percent population reduction is essential constitutes
the ‘deliberate indifference’ necessary to sustain petitioner’s constitutional claim.” (Slip opn.
18.) In the court’s view, “[t]hat issue is one of law, not fact.” (Ibid.) The court denied a hearing
on this basis.

Turning to the merits of the constitutional challenge, the court acknowledged the
daunting nature of the challenge facing CDCR: “Prisons and jails have long been associated
with inordinately high transmission probabilities for infectious diseases.” (Id. at p. 4) And
“[i]nfections transmitted through droplets, like COVID-19, are particularly difficult to control in
correctional facilities, as adequate physical distancing and decontamination of surfaces is usually
December 3, 2020
Page 4

impossible.” (Ibid.) Still, it held that CDCR was deliberately indifferent in violation of article I,
section 17 of the California Constitution and the Eighth Amendment to the United States
Constitution for the single reason that it failed to adopt and implement the recommendation to
immediately reduce San Quentin’s population by 50 percent—notwithstanding the myriad other
recommendations and measures that CDCR implemented. (Slip opn. at pp. 18-36.)

Although the court commended CDCR for its many COVID-19 mitigation efforts, and
indeed noted that the Urgent Memo itself “lauds” medical leadership at San Quentin for “‘doing
everything in their power to prepare for an unavoidable COVID-19 outbreak’” (slip opn. at 17,
21), according to the court, CDCR’s decision not to immediately reduce the prison population
by 50 percent constituted cruel and unusual punishment (slip opn. at pp. 34-36). The court
concluded that prison officials’ mitigation efforts, which the federal Receiver directed, reviewed,
or approved, and were implemented in conjunction with the California Department of Public
Health and based on CDC guidance, demonstrated prison officials acted with a “sufficiently
culpable state of mind” such that their actions constituted cruel and unusual punishment under
the California and United States Constitutions. The appellate court also noted, “CDCR’s
deliberate indifference to the risk of substantial harm to petitioner necessarily extends to other
similarly situated San Quentin inmates.” (Slip opn. at p. 37.)

Document received by the CA Supreme Court.

The appellate court ordered CDCR to immediately transfer Von Staich to a prison able to
provide sufficient physical distancing, and ordered CDCR to expedite the release or transfer of
inmates to reduce San Quentin’s population to no more than 1,775 inmates. (Slip opn. at p. 42.)
The Court of Appeal made its decision final within 15 days. (Slip opn. at p. 43.)

THE COURT SHOULD ORDER THE OPINION DEPUBLISHED

I. THE OPINION IMPROPERLY PLACES A PLEADING-STAGE BURDEN ON THE

RESPONDENT TO DISPUTE THE PETITIONER’S FACTUAL ALLEGATIONS

The decision should be depublished because it departs from long-standing habeas corpus
precedent establishing that a respondent is not required to submit evidence at the pleading stage
to disprove the factual allegations asserted by the petitioner.

The court below granted relief based on a faulty premise—that CDCR was required to
present affirmative evidence in the return disputing the wisdom of the Urgent Memo’s
recommendation to immediately reduce San Quentin’s inmate population by 50 percent. (See
slip opn. at pp. 16-17, 20, 25, 33.) As a procedural matter, contrary to the appellate court’s
opinion, under habeas corpus rules, a return need only allege facts responding to the allegations
raised by the petitioner that forms the basis of petitioner’s claim that his or her confinement is
unlawful; it “need not prove the petitioner’s factual allegations are wrong.” (People v. Duvall
(1995) 9 Cal.4th 464, 476.) Indeed, “[d]eclarations by experts presented by a habeas corpus
petitioner need not be met with counterdeclarations by experts solicited by respondent.” (Id. at
p. 485.)
December 3, 2020
Page 5

It is, for example, “sufficient for the respondent to inform the court it intends to dispute
the credibility of the petitioner’s expert” at an ensuing evidentiary hearing to resolve material
disputes regarding allegations of fact. (Duvall, supra, 9 Cal.4th at p. 485.) Further, a respondent
should also be able to make its own case that, regardless of what approach might seem ideal in
the abstract, given resource constraints and the realities of running a correctional institution, the
set of measures it actually undertook are reasonable under the circumstances. (See section II,
below). Where, as in this case, petitioner and respondent each raised factual allegations that
were not conceded, a court “must thereupon proceed in a summary way to hear such proof as
may be produced against such imprisonment or detention, or in favor of the same.” (Pen. Code,
§ 1484.)

If the decision below remains published, it will cause confusion among the lower courts
regarding proper habeas corpus procedure and the right of future habeas parties to an evidentiary
hearing.

II. THE OPINION ALLOWS A COURT TO HOLD THAT A RESPONDENT WAS

DELIBERATELY INDIFFERENT EVEN WHERE RESPONDENT ACTED REASONABLY

This Court should also depublish the opinion below to avoid the propagation of an

Document received by the CA Supreme Court.

erroneous view of deliberate indifference, under which CDCR will be held to have violated the
state and federal Constitutions any time prison officials are unsuccessful in averting the spread of
a novel and emerging disease like COVID-19, regardless of the reasonableness of the officials’
efforts.

Under United States Supreme Court precedent, there is no Eighth Amendment violation
where a prison official who knows of a substantial risk to inmate health responds reasonably to
the risk, even if the harm is ultimately not averted. (Farmer v. Brennan (1994) 511 U.S. 825,
844.) Thus, the issue before the appellate court was whether the measures CDCR had taken to
reduce the spread of COVID-19 are reasonable, not whether in the court’s opinion CDCR
adopted the most effective and best possible solution, viewed in the abstract and with the benefit
of hindsight. Courts must give “due regard for prison officials’ ‘unenviable task of keeping
dangerous men in safe custody under humane conditions’” (Farmer, 511 U.S. at p. 845, quoting
Spain v. Procunier (9th Cir. 1979) 600 F.2d 189, 193), and “consider arguments regarding the
realities of prison administration” (Helling v. McKinney (1993) 509 U.S. 25, 37). Indeed, as the
district court judge in Plata wrote: “the question before the court is not what it thinks is the best
possible solution…the question is whether defendants’ actions to date are reasonable.” (Plata v.
Newsom (N.D. Cal. Apr. 17, 2020, 01-cv-01351-JST) ___ F.Supp.3d ___, *26-27 [2020 WL
1908776].)

However, contrary to Eighth Amendment jurisprudence, the court concluded that, while
all the measures CDCR has taken to reduce the spread of COVID-19 were reasonable, and while
the option recommended by local experts was not adopted by the federal Receiver jointly
responsible for CDCR’s COVID-19 response, CDCR is nevertheless deliberately indifferent to
inmate safety if it fails to adopt a measure the court believes would be best—here, a reduction of
the inmate population by 50 percent. (Slip opn., p. 21.) The court did not analyze whether
December 3, 2020
Page 6

CDCR’s population reduction efforts—which resulted in an almost 25 percent reduction of the

inmate population at San Quentin by the time of the court’s decision—were reasonable, nor
analyze whether the sum of its efforts, such as the erection of tents and conversion of prison
buildings to housing units, or numerous other measures adopted by CDCR were reasonable ways
to increase physical distancing in response to the unprecedented COVID-19 pandemic. Rather,
the court, without receiving evidence or expert testimony about why the federal Receiver
declined to adopt the recommendation of local health experts or whether other prisons can safely
accommodate a substantial number of inmates from San Quentin State Prison, ordered the
transfer or release of over 1,000 inmates. (Slip opn. at p. 42.)

The Court of Appeal’s decision holding that there was a constitutional violation because
CDCR did not adopt what the court believed was the most effective measure for reducing the
risk of COVID-19, without considering the realities of prison administration, is at odds with
settled precedent. And with hundreds of similar habeas corpus petitions pending in the lower
courts, the appellate court’s opinion will likely lead to confusion among the lower courts.
Depublication will eliminate this confusion.

III. THE OPINION CAN BE READ TO SANCTION BROAD INJUNCTIVE RELIEF IN THE
HABEAS CONTEXT

Document received by the CA Supreme Court.

This Court should also depublish the opinion because the court departed from authority
providing that, while courts in ruling on habeas matters may generally declare the procedural
rights of non-party inmates, they may not issue injunctive relief extending to inmates who are not
parties to the proceeding.

It is settled that habeas courts have the authority to generally declare the procedural rights
of inmates similarly situated to the petitioner in the habeas proceeding. (See slip opn. at p. 40,
citing In re Rodriguez (1975) 14 Cal.3d 639, 656.) For example, in Walters, this Court held that
habeas provides an “appropriate vehicle for a general declaration of the procedural rights of
individuals detained.” (In re Walters (1975) 15 Cal.3d 738, 744.) This Court noted that the
decision of the Court would act as a declaration of rights of individuals similarly situated to
Walters, but did not ultimately provide a remedy for the similarly situated individuals. (Id. at p.
744, fn. 4.) Instead, the Court stated that its decision would allow the inmates to receive their
procedural rights, “upon demand.” (Ibid.) 1

1
Accord People v. Brewer (2015) 235 Cal.App.4th 122, 138 (providing that habeas petitions
may be used to obtain “general declarations of procedural rights of individuals”); In re Lugo
(2008) 164 Cal.App.4th 1522, 1544 fn. 4 (stating that habeas provides an “appropriate vehicle
for a general declaration of the procedural rights of individuals detained”); In re Head (1983)
147 Cal.App.3d 1125, 1131 (finding habeas proceedings may be used to obtain a “declaration of
rights”); In re Falco (1986) 176 Cal.App.3d 1161, 1166 (providing that habeas court may declare
the procedural rights of similarly situated individuals).
December 3, 2020
Page 7

The Fifth Appellate District Court of Appeal’s decision in In re Brindle (1979) 91

Cal.App.3d 660, demonstrates the problem with imposing a remedy on a class of individuals
who are not parties in the case. There, the court analyzed the propriety of a superior court’s
order in a habeas case instituted by a small group of inmates granting relief to a class of
individuals who were not party to the habeas case. The superior court granted injunctive relief
by ordering law enforcement agencies and prisons to allow the public defender to access any
person who is imprisoned, being interrogated, or under investigation in a criminal matter,
without regard to the inmate’s desire to confer with the public defender or have counsel. (Id. at
pp. 671-672.) The appellate court held that the superior court’s order providing the public
defender a right to consult was overbroad as it is the inmate’s right to demand his privilege of
consulting with the public defender, not for the court to dictate the decision on behalf of future
inmates. (Id. at p. 672.) Thus, while the superior court had a right to declare that all inmates
under criminal investigation have the right to demand that they receive an opportunity to consult
with a public defender, the superior court’s order was too broad in that it imposed a remedy on
inmates that may not desire such a result. (Id. at p. 682.)

Here, the court forced a remedy on inmates who have not alleged a constitutional
violation and who have not asked for relief, putting CDCR in the untenable position of forcefully
transferring inmates who might disagree as to whether their rights are being violated and prefer

Document received by the CA Supreme Court.

to remain at San Quentin. (See 200 California Inmates with Higher COVID-19 Risk Refuse Move
to Safer Cells, Associated Press, Oct. 29, 2020, at <https://ktla.com/news/california/200-
california-inmates-with-higher-covid-19-risk-refuse-move-to-safer-cells/> [as of Dec. 2, 2020].)
Should the Court of Appeal’s opinion remain published, its order providing injunctive relief
affecting a wide class of inmates may cause confusion in the lower courts as to the
appropriateness of such broad relief in the habeas context.

CONCLUSION

For the foregoing reasons, the opinion below should be depublished.

Sincerely,

PHILLIP J. LINDSAY
Senior Assistant Attorney General

For XAVIER BECERRA

Attorney General