
    [No. H041812.
    Sixth Dist.
    Nov. 21, 2016.]
    In re RAYMOND LOUIS LAMBIRTH on Habeas Corpus.
    
      Counsel
    Michael Satris, under appointment by the Court of Appeal, for Petitioner Raymond Louis Lambirth.
    Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney General, Julie A. Malone, Amanda Lloyd and Denise Yates, Deputy Attorneys General, for Respondent the People.
   Opinion

MIHARA, J.

Petitioner Raymond Louis Lambirth seeks habeas corpus relief directing California’s Department of Corrections and Rehabilitation (CDCR) to rescind its cancellation of his administrative appeal as untimely and to consider it on the merits. Lambirth submitted his appeal within the 30-day period, but the CDCR cancelled his appeal because it had received his appeal after the expiration of the 30-day period. We hold that the CDCR may not deem a prisoner’s appeal untimely when the appeal was submitted within the 30-day period even if the CDCR received the appeal after the expiration of the 30-day period. Accordingly, we grant the requested relief.

I. Background

Lambirth is serving a life term at the Correctional Training Facility in Soledad, California (CTF). His petition alleges that he learned during his March 2013 preannual interview that he was subject to a “child visiting restriction.” He complained to his correctional counselor, Ms. Miley, that it was unwarranted. (See Cal. Code Regs., tit. 15, § 3173.1.) Miley promised to investigate the matter and to remove the restriction if it was without basis. Based on her assurances, Lambirth waived attendance at his 2013 annual review.

“Just prior” to his March 25, 2014 annual review, Lambirth learned that the restriction remained in place. He raised the issue at the annual review, and the classification committee assured him that Miley would investigate the matter and take appropriate action. Lambirth sent Miley a follow-up note on April 13, 2014. The note asked for a copy of the action removing the restriction or, if it had not been removed, for a copy of the committee “chrono” from his 2014 annual review. On April 22, 2014, Lambirth received from Miley “a single-page copy” of the classification chrono from his October 30, 2009 program review. The page that he received noted his “sex offense history” and in the space for “Sex Offenses” included reference to “(CYA 1974) PC 288A, Sexual Perversion.” The chrono stated, “Per [§] 3173.1, restricted to non-contact visits with minors.” It also referenced a “through [sic] discussion with him” and stated that “[a]t the conclusion of the review, LAMBIRTH was informed of his Appeal Rights with regards to this committee’s actions. LAMBIRTH acknowledged his understanding [of] and agreement with [the] committee’s actions.”

Lambirth prepared an administrative appeal challenging the restriction immediately after he received Miley’s response. His pro se appeal explained that the 2009 chrono “contains significant error. I was never charged with such a crime in 1974, and no evidence exists to support that assertion. Title 15, section 3173(b) outlines the relevant criteria for a child visiting restriction; it lists several Penal Code sections, and states [that] inmates convicted of any of them when the victim is a minor [are] subject to the restriction. I have never been convicted of any listed charge, nor have I ever been charged with any sexual crime against a child.” Lambirth asked prison officials to “[r]emove the erroneous information from my file and remove the visiting restriction complained of . . . .”

Lambirth submitted his appeal “via intrainstitutional mail” on April 23, 2014. This was one day after he received Miley’s response and 29 days after his March 25, 2014 annual review. CTF stamped the appeal “RECEIVED APR 25, 2014 CTF-Appeals.” This was 31 days after Lambirth’s annual review. CTF cancelled toe appeal pursuant to section 3084.6, subdivision (c)(4) because “[t]ime limits for submitting the appeal are exceeded . . . .” (Italics & boldface omitted.)

Lambirth challenged the cancellation. He argued that his appeal was timely under section 3084.8 because he “submitted” it within 30 days of the action complained of. He also contended that the appeal was timely under section 3084.6 because toe visiting restriction was “ongoing.” CTF’s second level response stated that “the issue under appeal, visiting restrictions, took place during his annual review on 03/25/2014. This action was taken thirty-one (31) days before the appeal was received in toe Inmate Appeals Office.” “Appellant had Thirty (30) days after the action taken to appeal the issue” and “failed to follow directions as stated on the CDCR 128-G Form[] and the regulations

Lambirth challenged CTF’s second-level response. The third-level response from the CDCR stated that “departmental rules require that appeals are received by the Appeals Office within 30 days, [sic] to utilize the date put on a CDCR Form 602, Inmate/Parolee Appeal Form by an appellant would create unenforceable time limits.” (Italics added.) The CDCR also rejected Lambirth’s alternative argument. It asserted that “the appeal was concerning classification action taken during [Lambirth’s] Annual Review on March 25, 2014,” so “[t]he issue is . . . not considered ongoing, as there was a clear date of occurrence.”

Lambirth unsuccessfully petitioned the superior court for a writ of habeas corpus. The court ruled that the evidence indicated that CTF’s appeals office received Lambirth’s appeal 31 days after his annual review, while section 3084.8 required him to “ ‘submit the appeal within 30 calendar days of . . . [t]he occurrence of the event or decision being appealed’ . . . .” “CTF either took or renewed the challenged classification action at the time of the review and petitioner appeared at the review. CTF acted in accord with regulations in rejecting the appeal.”

Lambirth filed an original petition for a writ of habeas corpus in this court on December 31, 2014. We requested and received an informal response from the Attorney General, and Lambirth filed a reply. We appointed counsel for Lambirth and ordered the Director of the CDCR to show cause why Lambirth was not entitled to the relief requested. The Attorney General filed a return, and Lambirth filed a traverse.

Lambirth’s request for habeas corpus relief was pending in this court when the time for his 2015 annual review arrived. At his April 7, 2015 preannual interview with his correctional counselor, Ms. Palmer, and at the April 14, 2015 annual review, Lambirth again raised the visiting restriction issue. When the restriction was not removed, he submitted a new appeal on May 3, 2015. Prison officials cancelled that appeal “due to missed time constraints,” and Lambirth challenged the cancellation. The cancellation was upheld at the second level of review because the visiting restriction was “imposed on the appellant pursuant to a committee action dated 10/30/09.” The CDCR’s third level response stated that “[pjursuant to departmental regulations, an appellant must submit the appeal within 30 calendar days of the event or decision being appealed. The appellant appeared before the Unit Classification Committee on October 30, 2009, when the noncontact visiting restriction was applied. The visiting restriction was applied on a specific date and is not considered ongoing. Relief in this matter at the Third Level of Review is not warranted.”

II. Discussion

Lambirth contends that the cancellation of his 2014 appeal was based on prison officials’ misinterpretation of the relevant regulations. We agree.

A. Standard of Review

The parties do not specifically address what standard of review applies, although Lambirth suggests that the proper standard is whether CTF’s cancellation of his appeal and the CDCR’s subsequent denial of his challenge to the cancellation were arbitrary, capricious, and without any reasonable basis. That standard applies to appellate review of quasi-legislative rules promulgated by an agency. (Western States Petroleum Assn. v. Board of Equalization (2013) 57 Cal.4th 401, 415 [159 Cal.Rptr.3d 702, 304 P.3d 188]; see Motion Picture Studio Teachers & Welfare Workers v. Millan (1996) 51 Cal.App.4th 1190, 1196 [59 Cal.Rptr.2d 608] [‘‘The adoption, amendment and vacation of rules and regulations are quasi-legislative acts.”].) We are not reviewing an agency’s adoption of quasi-legislative rules here.

At issue here is prison authorities’ interpretation of an existing regulation. (See Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 310 [118 Cal.Rptr. 473, 530 P.2d 161] (Carmona).) ‘“In reviewing such an agency decision a court must determine whether the administrative agency applied the proper legal standard in evaluating the evidence before it. [Citation.] The interpretation of a regulation, like the interpretation of a statute, is, of course, a question of law [citations], and while an administrative agency’s interpretation of its own regulation obviously deserves great weight [citations], the ultimate resolution of such legal questions rests with the courts. [Citations.]” (Id. at p. 310.)

“ ‘The standard for judicial review of agency interpretation of law is the independent judgment of the court, giving deference to the determination of the agency appropriate to the circumstances of the agency action.’ [Citation.]” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 8 [78 Cal.Rptr.2d 1, 960 P.2d 1031] (Yamaha).)

B. The Regulatory Scheme

An inmate who disagrees with a classification committee decision “may file an inmate grievance via the CDCR Form 602 appeal process . . . .” (§ 3173.1, subd. (g); see § 3084.1, subd. (a).) “An inmate ... has the right to file one appeal every 14 calendar days . . . .” (§ 3084.1, subd. (1).) Inmates may “submit” their appeals by mail. (In re Andres (2016) 244 Cal.App.4th 1383, 1392 [198 Cal.Rptr.3d 878] (Andres).) They must “submit” appeal documents in a single mailing. (§ 3084.2, subd. (b)(2).)

The inmate “shall use a CDCR Form 602 (Rev. 08/09), Inmate/Parolee Appeal, to describe the specific issue under appeal and the relief requested.” (§ 3084.2) Inmates must “adhere to appeal filing time constraints as defined in section 3084.8.” (§ 3084.1, subd. (g).) The inmate “must submit the appeal within 30 calendar days of: [¶] (1) The occurrence of the event or decision being appealed, or; [¶] (2) Upon first having knowledge of the action or decision being appealed, or; [¶] (3) Upon receiving an unsatisfactory departmental response to an appeal filed.” (§ 3084.8, subd. (b)(1), (2), (3).)

“Time limits for reviewing appeals shall commence upon the date of receipt of the appeal form by the appeals coordinator.” (§ 3084.8, subd. (a).) All appeals must be responded to and returned to the inmate by staff within time limits specified in the regulations. (§ 3084.8, subd. (c).) “An appeal may be cancelled for any of the following reasons, which include, but are not limited to: [¶] . . . [¶] (4) Time limits for submitting the appeal are exceeded even though the inmate or parolee had the opportunity to submit within the prescribed time constraints. In determining whether the time limit has been exceeded, the appeals coordinator shall consider whether the issue being appealed occurred on a specific date or is ongoing. If the issue is ongoing, which may include but is not limited to, continuing lockdowns ... or an ongoing program closure, the inmate . . . may appeal any time during the duration of the event . . . .” (§ 3084.6, subd. (c)(4).) “[A] cancellation or rejection decision does not exhaust administrative remedies.” (§ 3084.1, subd. (b).)

C. Interpretation of the Regulations

Prison officials interpreted the regulations to mean that an inmate appeal is not timely unless it is received by CTF’s appeals office within 30 calendar days of the event or decision being challenged. But the regulations speak in terms of filing and submission of an inmate appeal. (E.g., §§ 3173.1, subd. (g) [inmates may “file an inmate grievance”], 3084.1, subd. (g) [inmates must “adhere to appeal filing time constraints”], 3084.8, subd. (b)(1) [an inmate “must submit the appeal within 30 calendar days”], 3084.2, subd. (b)(2) [inmates “shall submit their appeal documents in a single mailing”], 3084.2 [“Appeal Preparation and Submittal”], 3084.6, subd. (c)(4) [an appeal may be cancelled if “[t]ime limits for submitting the appeal are exceeded”].) The CDCR’s operations manual similarly refers to the filing and submission of appeals. (CDCR Operations Manual, Article 53 [Inmate/Parolee Appeals (rev. 7/29/11)], §§ 54100.16 [Fixed Time Limits], p. 530 [inmate appeals must be “filed within 30 calendar days of the occurrence of the event or decision being appealed or of the inmate or parolee’s knowledge of the action or decision being appealed”], 54100.6 [Appeal Preparation], p. 504 [“The inmate . . . shall not delay submitting an appeal within established time limits if unable to obtain supporting documents . . . .”].)

“Generally, the same rules of construction and interpretation which apply to statutes govern the construction and interpretation of rules and regulations of administrative agencies.” (Cal. Drive-In Restaurant Assn. v. Clark (1943) 22 Cal.2d 287, 292 [140 P.2d 657].) “Our primary aim is to ascertain the intent of the administrative agency that issued the regulation.” (Butts v. Board of Trustees of California State Univ. (2014) 225 Cal.App.4th 825, 835 [170 Cal.Rptr.3d 604] (Butts).) “We start with an analysis of the plain language of the regulation.” (Ibid.) “We give the regulatory language its plain, commonsense meaning. If possible, we must accord meaning to every word and phrase in the regulation, and we must read regulations as a whole so that all of the parts are given effect.” (Ibid.) Courts “often resort to dictionaries in construing the language of statutes and regulations.” (County of Sacramento v. State Water Resources Control Bd. (2007) 153 Cal.App.4th 1579, 1592 [64 Cal.Rptr.3d 302].) “If the plain language ... is clear and unambiguous, our task is at an end and there is no need to resort to the canons of construction or extrinsic aids to interpretation.” (Butts, at p. 838.) When the intent cannot be discerned from the language of the regulation, “ ‘ “we may look to a variety of extrinsic aids, including the purpose of the regulation, the legislative history, public policy, and the regulatory scheme of which the regulation is a part. [Citation.]” [Citation.]’ ” (Butts, at p. 836.)

Although “submit” and “file” may have different meanings in certain contexts, the regulations at issue here use the terms “submit” and “file” interchangeably. And the timeliness provision explicitly requires an inmate to “submit” an administrative appeal within 30 calendar days of the event or decision complained of. (§ 3084.8, subd. (b)(1).) Under these circumstances, it is clear that the regulations did not intend to distinguish between the submission and the filing of an appeal.

“Submit” is not defined in the regulations. Merriam-Webster’s Collegiate Dictionary defines the verb “submit” as “to present or propose to another for review, consideration, or decision.” (Merriam-Webster’s Collegiate Diet. (11th ed. 2009) p. 1244.) Webster’s Third New International Dictionary similarly defines “submit” as “to send or commit for consideration, study, or decision.” (Webster’s 3d New Internat. Dict., supra, p. 2277.) We conclude from these definitions that the plain, commonsense meaning of “submit” entails sending rather than receipt. Such an interpretation is consistent with the regulation authorizing inmates to “submit” their appeals by mail. (Andres, supra, 244 Cal.App.4th at p. 1392; § 3084.2, subd. (b)(2).) It is also consistent with the directions on the CDCR form 602 (Inmate/Parolee Appeal), which tell the inmate, “[y]ou must send this appeal and any supporting documents to the Appeals Coordinator (AC) within 30 calendar days of the event that lead [sic] to the filing of this appeal.” (Italics added.)

Furthermore, the prison delivery rule provides that an inmate’s delivery of a document to prison authorities is deemed a constructive filing of the document. In People v. Slobodion (1947) 30 Cal.2d 362, 367 [181 P.2d 868] (Slobodion), our high court held that a pro se inmate’s notice of appeal from his criminal conviction was constructively filed when he delivered it to prison authorities for forwarding five days before the statutory deadline, notwithstanding that the court clerk received it six days after the deadline. (Id. at pp. 366-367.) The court noted that the inmate was “by reason of his imprisonment” and pro se status “wholly dependent on the prison employees for effecting the actual filing” and “[ojbviously . . . powerless to prevent any delay which might ensue after he delivered ... his notice of appeal” to them for forwarding to the court. (Id. at p. 366.) The Slobodion court also stated that “[w]hile in perfecting his appeal ‘a convicted defendant serving a term of imprisonment . . . has no greater or additional rights because he is acting as his own attorney than if he were represented by a member of the bar’ [citation], neither . . . will he be deemed to have fewer rights.” (Id. at p. 367.) The court observed that a contrary conclusion would deny the inmate equal protection of the law. (Slobodion, at p. 368.)

In Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106 [92 Cal.Rptr.3d 595, 205 P.3d 1047] (Silverbrand), the California Supreme Court extended the prison delivery rule to appeals in civil cases, finding “no sound basis” for maintaining one rule for criminal appeals and another for civil appeals. (Id. at p. 110.) It explained that “the United States Supreme Court rules do not distinguish between civil and criminal cases and instead apply the federal ‘prison mailbox rule’ to the filing of any document.” (Id. at p. 122.) Other state and lower federal courts had followed suit by extending the prison delivery rule “to a broad range of filings by self-represented prisoners, including complaints, petitions for postconviction relief, motions, and other filings.” (Id. at pp. 123-124, fns. omitted.)

In Andres, the Court of Appeal extended the prison mailbox rule to a pro se inmate’s filing of an administrative appeal. (Andres, supra, 244 Cal.App.4th at p. 1396.) Andres testified at an evidentiary hearing that he put his administrative appeal into an envelope addressed to the prison appeals coordinator and “mailed it via institutional mail between 4:30 and 8:30 p.m. on January 25,” which was five days after the incident complained of. (Id. at p. 1387.) He received no response. Concerned that the first appeal would be mishandled, Andres mailed another appeal to the warden on February 19, this time using “legal mail.” (Ibid.) The warden forwarded that appeal to the appeals office, which received it on March 1 and cancelled it as untimely. (Id. at p. 1390.) The appeals coordinator testified that the timeliness of inmate appeals was determined by the date they were received “because otherwise ‘inmates [could] backdate their appeals.’ ” (Id. at p. 1389.) He testified that the appeals office never received Andres’s January 25 appeal and that it cancelled the February 19 appeal because “it was ‘mailed’ per the log . . . more than 30 days after the January 20 incident” complained of. (Andres, at pp. 1386, 1390.)

The trial court concluded that the January 25 appeal was timely filed when Andres “ ‘put it in the mailbox within 30 days’ ” of the action complained of. (Andres, supra, 244 Cal.App.4th at p. 1391.) The Court of Appeal affirmed, concluding that substantial evidence supported the trial court’s finding. (Id. at p. 1395.) The court “independently conclude[d]” that there is “no requirement in the applicable regulations that an inmate must submit an administrative appeal through a secured collection box or similar system, or frankly, through any specific type of mail or delivery system, in order for the appeal to be deemed properly submitted. Rather, section 3084.8, subdivision (b) merely provides that an inmate ‘must submit the appeal within 30 calendar days of . . . [¶] . . . [t]he occurrence of the event or decision being appealed.’ ” (Id. at p. 1396.) The court concluded that “Andres timely submitted his January 25 appeal when he mailed it that same day to the appeals coordinator via institutional mail.” (Ibid.)

We agree with the result in Andres and find it consistent with both the regulatory language and the rationale underlying the prison delivery rule. We conclude that the uncontradicted evidence in this case compels the same result. The Attorney General affirmatively admits in her return that “on or around April 23, 2014, Lambirth submitted an administrative appeal requesting removal of the child visiting restriction, which was received by the appeals office on April 25, 2014.” Lambirth’s sworn declaration unambiguously states that he submitted his appeal via intra-institutional mail on April 23, 2014. Under the prison delivery rule, Lambirth’s appeal was timely submitted within the 30-day period contemplated by the regulations. (Silverbrand, supra, 46 Cal.4th at p. 110; § 3084.8, subd. (b)(1).) Prison officials misinterpreted the regulations when they concluded otherwise.

D.-F.

III. Disposition

The petition is granted. The CDCR is directed to (1) vacate the decision cancelling Lambirth’s administrative appeal from the action taken at his March 25, 2014 annual review and the decisions upholding the cancellation at the second and third levels of review, and (2) consider the administrative appeal on the merits.

Elia, Acting P. J., and Bamattre-Manoukian, J., concurred. 
      
       Subsequent undesignated section references will be to this title of the California Code of Regulations.
     
      
       A “chrono” “ ‘is used to document information about inmates and inmate behavior. Such information may include . . . records of disciplinary or classification matters ....’(§ 3000.)” (In re Cabrera (2013) 216 Cal.App.4th 1522, 1526, fn. 4 [158 Cal.Rptr.3d 121].)
     
      
       The form number appears to be an error. There are no directions on the form 128-G classification chrono. However, the form 602 “Inmate/Parolee Appeal” says, “You must send this appeal and any supporting documents to the Appeals Coordinator (AC) within 30 calendar days of the event that lead [ízc] to the filing of this appeal.”
     
      
       “File” can have a narrower meaning. Webster’s Third New International Dictionary (1993) at page 849 defines “file” as “to deliver (as a legal paper or instrument) after complying with any condition precedent (as the payment of a fee) to the proper officer for keeping on file or among the records of his office.”
     
      
       Our conclusion makes it unnecessary for us to address Lambirth’s alternative argument that his administrative appeal was timely because the visiting restriction qualifies as an “ongoing” issue that can be appealed at “any time during the duration of the event.” (§ 3084.6, subd. (c)(4).)
     
      
      See footnote, ante, page 915.
     
      
       We express no opinion about the merits of Lambirth’s administrative appeal.
     