I. BACKGROUND

Inmates in California prisons “may possess only the personal property . . . as

permitted” by regulation. (Cal. Code Regs., tit. 15, § 3006.) A list of “[s]pecific items of

personal and religious property” that an inmate is permitted to possess, depending on

classification and privilege level, has been “established by a consensus of individual

facilities” and described in an “Authorized Personal Property Schedule” (APPS) that is

incorporated by reference into the relevant regulation. (Cal. Code Regs., tit. 15, § 3190.)

Individual facilities, however, may request and obtain from the California Department of

Corrections and Rehabilitation (CDCR) exemptions from that standardized list. (Cal.

1 We use the past tense intentionally, as both Dohner and Gerber have since been transferred to other facilities that impose no such restriction.

2 Code Regs., tit. 15, § 3190, subd. (b) [contemplating “[l]ocal facility exemptions to the

property lists,” to be identified in the APPS].)

Under the APPS applicable to general population prisoners like Dohner and 2 Gerber, inmates often may possess a television. That is not true, however, at CVSP.

CDCR granted CVSP’s request for a local exemption that excludes televisions (among 3 other things) from the property permitted to inmates in dormitory housing at that facility.

According to CVSP’s exemption request, made and granted in 2005, there is “little or no

reception” for television signals due to the prison’s location, and though CVSP “uses a

satellite for general TV broadcasting,” the dormitory housing units “are not equipped for

cable.” Moreover, at the time, the prison was struggling with an electrical system that

was already overloaded, so additional electrical appliances would risk “major power

black outs” that, due to extreme weather conditions in summer months, could be

dangerous to the health of staff and inmates. The electrical system has since been

improved, but the reception for television signals has not. Inmates who possess a

television when they are transferred to CVSP from a facility that permits them are given

the option of mailing it home at their own expense or disposing of it.

2 The APPS is updated from time to time, and the version in our record is not the most recent version. (See Cal. Code Regs., tit. 15, § 3190, subd. (b) [APPS to be updated “no more frequently than twice yearly”; current version “(Rev. 7/6/20)”].) No party has argued that the current APPS is different from the one in our record in any relevant respect. 3 Although petitioners present this limitation as unique, the list of granted exemptions shows a number of other facilities also obtained similar exemptions for at least some of their housing units.

3 Dohner brought this suit against CDCR, as well as the individuals serving as 4 CDCR Secretary and CVSP Warden, in April 2017. Dohner’s petition sought, in the

alternative, a writ of habeas corpus or writ of mandate, and requested declaratory relief.

In June 2017, Dohner, Gerber, and six other CVSP inmates filed a joint first amended

petition.

After informal briefing and argument from the parties, the trial court denied the

request for a writ of habeas corpus without issuing an order to show cause.

Subsequently, the trial court sustained respondents’ demurrer to the remaining claims of

the first amended petition with leave to amend. Dohner filed a second amended petition 5 naming the same parties, but he was the only petitioner who verified it. The trial court

sustained respondents’ demurrer to the second amended petition without leave to amend

as to Dohner, but granted Gerber and the other six petitioners leave to amend.

Nevertheless, neither Gerber, nor any other petitioner filed an amended petition, so the

court dismissed their claims with prejudice.

4 Since that time, the CDCR Secretary and the CVSP Warden have changed. Thus, Kathleen Allison is now defendant and respondent in her capacity as the current CDCR Secretary, replacing former CDCR Secretary Ralph Diaz. Similarly, David Holbrook is now defendant and respondent in his capacity as the current CVSP Warden, in place of former CVSP Warden Charles Callahan. 5 On appeal, Dohner asserts that he was the only signatory because “it had proven impossible to get the signatures of all 7 Co-Petitioners,” an assertion that Gerber joins, along with the rest of Dohner’s briefing.

4 6 Dohner and Gerber appealed separately. Both filed motions requesting that we

consolidate their appeals, which we granted.

II. DISCUSSION

“[I]n noncapital cases, if the superior court denies a petition for a writ of habeas

corpus, the petitioner has no statutory right to appeal. Instead, the petitioner must file a

new, original petition, generally in the Court of Appeal.” (Robinson v. Lewis (2020) 9

Cal.5th 883, 895.) Respondents argue on this basis that we should not consider the merits

of Dohner and Gerber’s constitutional claims, which were pleaded as a petition for writ

of habeas corpus. We have discretion, however, to deem an appeal from the denial of a

petition for writ of habeas corpus to be an original habeas petition filed in this court. (See

People v. Gallardo (2000) 77 Cal.App.4th 971, 986; People v. Garrett (1998) 67

Cal.App.4th 1419, 1423.) In this case, unlike many, the interest of judicial economy

weighs in favor of deciding the merits now, and there is no need to further develop the

record, so we choose to exercise that discretion.

Dohner and Gerber’s contentions in habeas that various constitutional rights are

violated by CVSP’s prohibition on possessing a personal television fail on the merits.

They have not cited any case that holds there is a constitutionally protected right to watch

television at all while incarcerated or detained, let alone the right to possess a personal

television so programs can be watched privately, rather than on a shared television. On

6 Gerber filed his notice of appeal prematurely, before judgment had been entered against him, but we issued an order deeming the premature notice of appeal to have been filed after entry of judgment.

5 7 the contrary, to our knowledge, courts have universally rejected such arguments. (See,

e.g., Rahman X v. Morgan (8th Cir. 2002) 300 F.3d 970, 973-974 [no denial of due

process or cruel and unusual punishment from inmate’s lack of access to television in his

cell]; Murphy v. Walker (7th Cir. 1995) 51 F.3d 714, 718, fn. 8 [denial of television not a

constitutional violation]; More v. Farrier (8th Cir. 1993) 984 F.2d 269, 271 [“Despite

television’s importance in modern society, appellees have no fundamental right to in-cell

cable television”]; James v. Milwaukee County (7th Cir. 1992) 956 F.2d 696, 699 [denial

of television does not constitute a cognizable civil rights claim]; Montana v.

Commissioners Court (5th Cir. 1981) 659 F.2d 19, 23 [claims relating to usage of radio

and television did not pertain to federal constitutional rights and were properly dismissed

as frivolous]; Kesling v. Tewalt (D. Idaho 2020) 476 F.Supp.3d 1077, 1086 [“[T]here is

no constitutional right to watch television in prison”]; Rawls v. Sundquist (M.D. Tenn.

1996) 929 F.Supp. 284, 288 [“There is no constitutional right to television while

incarcerated”].)

As Dohner and Gerber note, the United States Supreme Court has, in a variety of

contexts, found the First Amendment to guarantee “‘not only the right to speak and

publish but also the right to hear, to learn, to know.’” (Presidents Council, Dist. 25 v.

Community School Board No. 25 (1972) 409 U.S. 998, 999 (Douglas, J., dissenting from

7 Petitioners’ claims are framed primarily in terms of the United States Constitution, so we look primarily to federal law to determine their viability. (See Buenavista v. City and County of San Francisco (1989) 207 Cal.App.3d 1168, 1174.) But there is no more authority in support of their claims under analogous state constitutional provisions.

6 denial of certiorari) [case involving school board resolution banning a particular book

from circulation in school libraries]; see, e.g., Stanley v. Georgia (1969) 394 U.S. 557,

568 [holding that the “First and Fourteenth Amendments prohibit making mere private

possession of obscene material a crime”]; Martin v. City of Struthers (1943) 319 U.S.

141, 142-144, 149 [finding ordinance prohibiting door-to-door distribution of leaflets or

other advertisements to be unconstitutional].) Such authority does not apply here,

however, at least in the manner Dohner and Gerber have proposed, to guarantee inmates

access to any particular source of information from the relative privacy of their own cells.

(See, e.g., Hudson v. Palmer (1984) 468 U.S. 517, 527-528 [a prison “‘shares none of the

attributes of privacy of a home, an automobile, an office, or a hotel room,’” and “We

believe that it is accepted by our society that ‘[l]oss of freedom of choice and privacy are

inherent incidents of confinement’”]; Jones v. North Carolina Prisoners’ Labor Union,

Inc. (1977) 433 U.S. 119, 125 [“this Court has long recognized that ‘[l]awful

incarceration brings about the necessary withdrawal or limitation of many privileges and

rights’ [...] including those derived from the First Amendment”].)

Relatedly, although inmates retain some property rights while in prison, those

rights do not extend to possessing any particular item of personal property, including a

television. (See In re Alcala (1990) 222 Cal.App.3d 345, 371 [Pen. Code section 2601

sets out “specific rights of prisoners ‘[t]o inherit, own, sell, or convey real or personal

property,’” but “[does] not include the right to wear, keep, and use his or her own

personal possessions in prison. This legislative omission is significant”].) There is no

7 authority in support of the proposition that requiring inmates transferred to CVSP to mail

home or dispose of property they are not permitted to possess at CVSP amounts to an

“unconstitutional taking,” as Dohner and Gerber would have it.

Reframing the issue as one of access to a particular television channel (CDCR’s

educational channel), rather than to television broadcasts generally or the television itself

as a physical possession, is no more persuasive. Under the United States Constitution,

inmates have no constitutional right to rehabilitative or educational programs, which

would include programs delivered by television, though of course the government may

choose as a matter of policy to make such resources available by one method or another.

(See Moody v. Daggett (1976) 429 U.S. 78, 88, fn. 9; Rizzo v. Dawson (9th Cir. 1985)

778 F.2d 527, 530-531.) Similarly, the California Constitution gives CDCR the

“authority to award credits earned for good behavior and approved rehabilitative or

educational achievements.” (Cal. Const., art. I, § 32, subd. (2) (italics added).) But it

does not require CDCR to provide rehabilitative or educational programs by any

particular means, as Dohner and Gerber would have it. No caselaw supports the notion

that the California constitution’s guarantee of “right of access to information concerning

the conduct of the people’s business” (Cal. Const., art. I, § 3, subd. (b)(1), italics added)

may be recast as a general right of “access to [rehabilitative] information” that includes

the right to access CDCR’s educational channel from a personal television in one’s prison

cell.

8 Dohner and Gerber cite only inapposite law in their efforts to establish that their

constitutional rights are implicated by the rule against possessing personal televisions at

CVSP. For example, in Turner v. Safley (1987) 482 U.S. 78 (Turner), the United States

Supreme Court held that “when a prison regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related to legitimate penological

interests,” and articulated factors to consider in making that determination. (Id. at pp. 89-

91.) As we have discussed, however, no constitutional right is impinged upon by the 8 prison regulation at issue here, so the Turner analysis is inapplicable. In Packingham v.

North Carolina (2017) 137 S.Ct 1730, the United States Supreme court addressed the

constitutionality of a state statute that prohibited convicted sex offenders from accessing

social networking websites after their release from prison. (Id. at pp. 1733-1734.) The

case has no application to inmates’ access to television during their incarceration. Sandin

v. Conner (1995) 515 U.S. 472 considers inmates’ “liberty interest protected by the Due

Process Clause” in relation to punishments imposed under prison regulations for

disciplinary infractions. (Id. at p. 474.) Again, the analysis has no bearing on this case.

Similarly, although Dohner and Gerber cite various cases for general equal protection

8 Moreover, even if the Turner analysis did apply, the record shows there to be legitimate penological interests underlying the prohibition on inmates possessing a personal television at CVSP. The facility has little or no television reception due to its location, and its dormitory housing is not equipped for cable. The penological interest in prohibiting inmates from possessing relatively large, heavy objects made out of metal, plastic, and glass that, due to the characteristics of the particular facility, cannot serve in their intended function, is obvious and compelling.

9 principles, none holds or suggests that equal protection is implicated by the circumstance

that televisions are contraband at CVSP, but not at other prisons (or some portions of

them) in the state.

In short, the trial court was correct to decline to order a writ of habeas corpus be

issued.

The trial court was also correct to find that Dohner and Gerber had not pleaded a 9 viable claim for writ of mandate. A writ of ordinary mandate is available “to compel the

performance of an act which the law specially enjoins, as a duty resulting from an office,

trust, or station . . . .” (Code Civ. Proc., § 1085, subd. (a).) “‘Two basic requirements are

essential to the issuance of the writ: (1) A clear, present and usually ministerial duty

upon the part of the respondent [citations]; and (2) a clear, present and beneficial right in

the petitioner to the performance of that duty [citations].’” (Moran v. Cal. Dept. of Motor

Vehicles (2006) 139 Cal.App.4th 688, 691 (Moran).) “Where the alleged ministerial duty

would be contrary to law, mandate is unavailable.” (Ibid.) “It must also be shown the

remedy at law is inadequate.” (Ibid.; see Code Civ. Proc., § 1086.)

If anything, respondents have a ministerial duty not to permit CVSP inmates to

possess televisions. As discussed above, the APPS incorporated by reference into the

relevant regulation reflects a granted exemption request, such that inmates may not

possess personal televisions in dormitory housing at CVSP. Thus, the purported

9 Again, in the interest of judicial economy, we choose to address the merits of Dohner and Gerber’s mandate claim, rather than respondents’ arguments that the claims should be rejected on various procedural bases.

10 ministerial duty alleged by Dohner and Gerber would be contrary to law, and mandate is

unavailable. (Moran, supra, 139 Cal.App.4th at p. 691.)

Dohner and Gerber propose that the APPS, or at least the section of it describing

CVSP’s granted exemption request, is an invalid “underground” regulation because it is

incorporated by reference into the Code of Regulations, rather than published in full

within it. This argument is without merit. (See Kings Rehabilitation Center, Inc. v.

Premo (1999) 69 Cal.App.4th 215, 220 [“we find the practice of incorporation by

reference to be lawful”]; Cal. Code Regs., tit. 1, § 20 [defining “Incorporation by

reference” and describing requirements for materials to be incorporated by reference into

the Code of Regulations]; id., tit. 15, § 3190, subd. (b) [expressly contemplating APPS

will be incorporated by reference].) We disagree with Dohner and Gerber’s bald

assertion that it would not be “cumbersome, unduly expensive, or otherwise impractical”

to publish the APPS within the text of the regulation; the version in our record is 64

pages, even in quite small print. (Cal. Code Regs., tit. 1, § 20, subd. (c)(1).) Moreover,

changes to the APPS are adopted by means of the formal APA process. (Cal. Code

Regs., tit. 15, § 3190, subd. (b).) There is simply nothing “underground” about the

APPS. And respondents have a duty to enforce regulations regarding what property is

allowed to inmates at CVSP, including documents incorporated into those regulations by

reference, not disregard them, as Dohner and Gerber would have them do.

11 Dohner and Gerber further propose that respondents violated ministerial duties

arising from a variety of constitutional and statutory provisions that in general ways at

least arguably tend to support providing inmates with rehabilitative and educational 10 opportunities. To give rise to a ministerial duty, however, a constitutional or statutory

provision must identify a “clear, nondiscretionary duty . . . to act upon the facts alleged or

an abuse of discretion in how [respondents] chose to act.” (Collins v. Thurmond (2019)

41 Cal.App.5th 879, 915.) “To construe a statute [or constitutional provision] as

imposing a mandatory duty on a public entity, ‘the mandatory nature of the duty must be

phrased in explicit and forceful language.’” (In re Groundwater Cases (2007) 154

Cal.App.4th 659, 689.) Moreover, “‘[i]t is not enough that some statute [or constitutional

provision] contains mandatory language. In order to recover plaintiffs have to show that

there is some specific statutory mandate that was violated by the [public entity.]’” (Ibid.)

“Thus, ‘the enactment at issue [must] be obligatory, rather than merely discretionary or

permissive, in its directions to the public entity; it must require, rather than merely

authorize or permit, that a particular action be taken or not taken.’” (Ibid.) Not one of

the constitutional or statutory provisions identified by Dohner and Gerber, or any other

constitutional or statutory provision, specifically requires respondents to allow inmates to

possess personal televisions at CVSP or to make the infrastructure changes to CVSP that

would be required to have such televisions work.

Dohner and Gerber further contend that respondents have a ministerial duty to

compensate inmates for televisions and their accessories that they were permitted to

12 possess at other prisons but were not permitted to retain once they were transferred to

CVSP. Not so. At CVSP, televisions are contraband, no matter whether they are

permitted at other prisons. (Cal. Code Regs., tit. 15, § 3000 [“[c]ontraband” includes

“anything which is not permitted”].) Respondents do not have a ministerial duty “to

return, replace, or compensate an inmate for property confiscated as contraband.”

(Flores v. Dept. of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 207.)

Moreover, inmates transferred to CVSP are given the option of mailing home any

television they may have been allowed to possess at another prison, instead of having it

be disposed of as contraband.

Thus, Dohner and Gerber have not demonstrated any ministerial duty that

respondents failed to fulfill related to inmate television access at CVSP, so the trial court

was correct to dismiss on demurrer their claim for a writ of mandate. We therefore need

not address, for example, whether Dohner and Gerber continue to have a beneficial

interest in the performance of such a duty despite their transfers to other prisons, whether

they exhausted their administrative remedies, or whether they had an adequate remedy at

law.

The trial court was also correct to dismiss on demurrer Dohner and Gerber’s claim

for declaratory relief. (See Coachella Valley Unified School Dist. v. State of California

10 These include the First, Fourth, Fifth, Eighth, and Fourteenth Amendments of the United States Constitution; Article I, sections 1, 2, 3, 7, 13, 17, 19, and 32 of the California Constitution; and Penal Code sections 667.1, 667.2, 2600, 2601, 2930, 2931, 2932, 2933.05, 5054, 5058, and 5068.

13 (2009) 176 Cal.App.4th 93, 125-126 [complaint seeking issuance of writ and declaratory

relief based on same underlying facts did not state separate causes of action, but asked for

different forms of relief; where facts alleged do not state cause of action for issuance of

writ, declaratory relief is also unavailable].)

Finally, Dohner and Gerber assert in briefing on appeal that they were denied

meaningful access to the court based on various retaliatory and harassing acts taken

against them for engaging in the present litigation. We agree that “‘[p]rison walls are a

powerful restraint on a litigant wishing to appear in a civil proceeding’” and “all courts

have an obligation to ensure those walls do not stand in the way of affording litigants

with bona fide claims the opportunity to be heard.” (Apollo v. Gyaami (2008) 167

Cal.App.4th 1468, 1487, quoting Hoversten v. Superior Court (1999) 74 Cal.App.4th

636, 640.) Nevertheless, there is nothing to suggest that Dohner and Gerber’s claims

were not fully and fairly heard, in the trial court or in this court. It is not apparent how

any additional hearings to develop the factual record, or additional opportunities for

Dohner and Gerber to argue the merits of their claims, would make a difference. The

record, indeed, is already voluminous, and Dohner and Gerber have not identified

anything they would like to add to it. As discussed above, our analysis turns on legal

issues, not factual ones, as the relevant underlying facts are undisputed. Dohner and

Gerber have managed to brief those legal issues at some length, both here and in the trial

14 11 court, despite various alleged impediments. We therefore are not persuaded that they

were denied fair hearing of their claims related to television access at CVSP, so as to

require any remedy to effectuate their right of meaningful access to the courts.

Moreover, Dohner and Gerber’s allegations of harassment and retaliation

motivated by their participation in this litigation were not raised in their pleadings or

otherwise presented in an appropriate manner to the trial court (for example, in a noticed 12 motion for sanctions). There is therefore no decision by the trial court related to such

issues for us to review. We offer no opinion as to whether those allegations, which are

not properly before us, could give rise to viable claims of one sort or another if asserted

in separate litigation.

III. DISPOSITION

We treat Dohner’s and Gerber’s appeals from the trial court’s denial of their

petition for a writ of habeas corpus as original petitions for a writ of habeas corpus, and

we deny them on the merits. We affirm the trial court’s rulings sustaining respondents’

11 Gerber did not elect to file an opening brief on appeal of his own, but instead joined in Dohner’s brief. He attributed this decision not to any harassment or retaliation by respondents or their agents, but rather to disruptions caused by the pandemic and both his and Dohner’s medical conditions. 12 Dohner often asserted some of the alleged underlying facts in briefing (as he did in his appellate briefing) or at oral argument on other matters, but the issue of retaliation and harassment was never made a part of Dohner’s or Gerber’s petitions or otherwise formally presented for determination. For example, Dohner complained of related issues in an ex parte application in June 21, 2017, but ultimately requested only an order requiring his transportation to a hearing. In November 2018, the trial court expressed its willingness to “hear any timely motions that are properly served” related to such issues. There were no such motions filed or served.

15 demurrers to Dohner and Gerber’s remaining claims. In the interests of justice, the

parties shall bear their own costs on appeal.

CERTIFIED FOR PUBLICATION

RAPHAEL

J.

We concur:

McKINSTER Acting P. J.

FIELDS

J.

16