S265173 Von Staich PFR Answer

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
In re IVAN VON STAICH, S265173
Petitioner, Court of Appeal

No. A160122
On Habeas Corpus.
(Marin County Super.
Ct. No. C58351)
ANSWER TO PETITION FOR REVIEW
After Decision by the Court of Appeal
Document received by the CA Supreme Court.

First Appellate District, Division Two
Filed on October 20, 2020
JONATHAN SOGLIN
Executive Director
J. BRADLEY O’CONNELL
Assistant Director
(Bar No. 104755)
L. RICHARD BRAUCHER
Staff Attorney
(Bar No. 173754)
First District Appellate Project
475 Fourteenth Street, Suite 650
Oakland, CA 94612
Telephone: (415) 495-3119
Emails: jboc@fdap.org
rbraucher@fdap.org
Attorneys for Petitioner

TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................ 4
INTRODUCTION AND SUMMARY OF ARGUMENT............... 10
ARGUMENT .................................................................................. 14
I. This Court Should Deny Review Because the Appellate

Opinion Applies Established Constitutional Principles and
Does Not Present a Review-Worthy Issue. ......................... 14
A. The Opinion Does Not Pose Any Contested Issue

Concerning the Proper Formulation of the
“Deliberate Indifference” Standard. ......................... 14
B. As a State Habeas Court Relying on the California

Constitution, As Well As Federal Principles, the
Court of Appeal Was Not Subject to the Constraints
That Have Impaired Federal Oversight of CDCR .

..................................................................................... 16
II. Respondent’s Defense of San Quentin’s Response to the

COVID-19 Outbreak Rests on Arguments Never Presented
to the Court of Appeal – Especially Its New Assertion that
CDCR Declined to Follow Infectious Disease Experts’
Urgent Recommendation to Reduce San Quentin’s
Population Based on a General “Interim Guidance” from
CDC. ..................................................................................... 21
A. The Return Did Not Allege That CDCR Rejected the

Experts’ “Urgent” Recommendation to Reduce San
Quentin’s Inmate Population Based on an “Interim
Guidance” from CDC. ................................................ 21
B. The CDC “Interim Guidance” Addressed General

Considerations Relevant to Correctional Institutions,
While the UCSF/Berkeley Public Health Memo
Rested on an On-Site Inspection of San Quentin and
Specifically Addressed the Exceptional Risk of
Widespread Contagion Posed by Its Unique
Architectural Features. ............................................. 25
2
C. Respondent’s Return Did Not Present Any Factual
Basis or Allegations Rebutting the Infectious Disease
Experts’ Analysis of the Grave Public Health Risks
Presented by San Quentin’s Population Level Due to
the Grave Risks Exacerbated by Its Unique Features.
..................................................................................... 27
III. The Court Of Appeal’s Disposition Represents A Measured

Remedy That Affords CDCR Broad Discretion In Achieving
The Necessary Reductions................................................... 33
A. The Appellate Disposition Affords CDCR Maximum

Discretion. .................................................................. 33
B. Respondent Does Not Assert that the Appellate

Court’s Remedy Is Unworkable or That It Would Pose
Any Danger to Public Safety. .................................... 35
IV. In View Of The Continuing Urgency Posed By The

Pandemic, Especially During The Coming Winter Months,
This Court Should Deny Review To Allow Expeditious
Implementation Of The Appellate Court’s Remedy. .......... 39
CONCLUSION ............................................................................... 44
CERTIFICATE OF WORD COUNT ............................................. 45
3
TABLE OF AUTHORITIES
FEDERAL CASES
Brown v. Plata (2011)

563 U.S. 493 .............................................................................. 17
Coleman v. Brown (E.D. Cal. 2013)

922 F.Supp. 1004 ...................................................................... 36
Estelle v. Gamble (1976)

429 U.S. 97 ................................................................................ 14
Farmer v. Brennan (1994)

511 U.S. 825 .............................................................................. 14
Helling v. McKinney (1993)

509 U.S. 25 ................................................................................ 14

Hutto v. Finney (1978)
437 U.S. 678 .............................................................................. 14
Plata v. Newsom (N.D. Cal. 2020)

445 F.Supp.3d 557 .................................................................... 19
4
STATE CASES
In re Lynch (1972)
8 Cal.3d 410 ............................................................................... 18
In re Serrano (1995)
10 Cal.4th 447 ........................................................................... 24
In re Von Staich (2020)

56 Cal.App.5th 53 .............................................................. passim
Inmates of the Riverside County Jail v. Clark (1983)

144 Cal.App.3d 850 ............................................................. 14, 18
People v. Buza (2018)

4 Cal.5th 658 ............................................................................. 18
People v. Dillon (1983)

34 Cal.3d 441 ............................................................................. 18
People v. Duvall (1995)

9 Cal.4th 464 ................................................................. 24, 28, 29
In re Lewallen (1979) 23 Cal.3d 274 ............................................ 28
DOCKETED CASES
In re Ian Hall et al., Marin County Super. Ct.

SC212933 et al. ......................................................................... 41
Plata v. Newsom,
N.D. Cal., 01-CV-1351-JST ...................................................... 16
5
FEDERAL CONSTITUTIONAL PROVISIONS
AND STATUTES
United States Constitution

Eighth Amendment ........................................................... passim
Prison Litigation Reform Act

18 U.S.C. § 3626 ........................................................................ 17
STATE CONSTITUTIONAL PROVISIONS,

RULES, AND STATUTES
California Constitution
Article I, § 17 ...................................................................... passim
Article I, § 24 ............................................................................. 18
California Rules of Court

Rule 8.500 ............................................................................ 23, 24
Rule 8.504 .................................................................................. 45

Government Code
§ 8658 ......................................................................................... 37
6
OTHER AUTHORITIES
Williams & Bertozzi, Urgent Memo, COVID-19

Outbreak: San Quentin Prison (June 15, 2020) ............... passim
CDC, Interim Guidance on Management of

Coronavirus Disease 2019 (COVID-19) in
Correctional Facilities (Mar. 23, 2020, updated
through Oct. 21, 2020)
https://www.cdc.gov/coronavirus/2019-
ncov/community/correction-detention/guidance-
correctional-detention.html {reviewed Nov. 24,
2020} .......................................................................................... 23
CDCR, Weekly Report of Population (Nov. 18, 2020)

https://www.cdcr.ca.gov/research/wp-
content/uploads/sites/174/2020/11/Tpop1d201118.p
df {reviewed Nov. 23, 2020} ...................................................... 35

As Curfews Multiply, the U.S. Breaks More Records
for New Cases and Hospitalizations, N.Y. Times
(Nov. 21, 2020)
https://www.nytimes.com/live/2020/11/20/world/co
vid-19-
coronavirus?referringSource=articleShare#as-
curfews-multiply-the-us-breaks-more-records-for-
new-cases-and-hospitalizations {reviewed Nov. 21,
2020} .......................................................................................... 39
The Third Wave of Coronavirus Is Washing Over the

Bay Area. How Will We Weather the Storm?, San
Francisco Chronicle (Nov. 21, 2020)
https://www.sfchronicle.com/bayarea/article/The-
third-wave-of-coronavirus-is-washing-over-the-
15743917.php {reviewed Nov. 21, 2020} .................................. 39
7
Charts Show How Bay Area’s Current Coronavirus
Surge Is Already Worse Than the Last One, San
Francisco Chronicle (Nov. 21, 2020)
https://www.sfchronicle.com/bayarea/article/Chart
s-show-how-Bay-Area-s-current-coronavirus-
15738406.php {reviewed Nov. 21, 2020} ............................ 39, 40
CDCR, Population COVID-19 Tracking

https://www.cdcr.ca.gov/covid19/population-status-tracking/
{reviewed Nov. 24, 2020} ............................................................... 40
New York Times, American is Letting the

Coronavirus Rage Through Prisons (Nov. 21, 2020)
https://www.nytimes.com/2020/11/21/opinion/sund
ay/coronavirus-prisons-jails.html?smid=nytcore-
ios-share {reviewed Nov. 23, 2020} .......................................... 43
8
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
In re IVAN VON STAICH, S265173
Petitioner, Court of Appeal

No. A160122
On Habeas Corpus.
(Marin County Super.
Ct. No. C58351)
ANSWER TO PETITION FOR REVIEW
TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF

JUSTICE, AND TO THE ASSOCIATE JUSTICES OF THE
CALIFORNIA SUPREME COURT:

Respondent seeks review of the Court of Appeal’s finding
that the California Department of Corrections and Rehabilitation
(CDCR) exhibited “deliberate indifference” to inmates’ lives and
health through its inadequate response to the COVID-19
outbreak that ravaged San Quentin State Prison in spring and
summer 2020. The thorough opinion represents a fact-intensive
application of established legal principles and does not present
any split of authority or other issue warranting review. (In re
Von Staich (2020) 56 Cal.App.5th 53.)
Because the winter months present an especially
dangerous period in the ongoing pandemic, it is essential that
CDCR expeditiously implement the remedial measures
prescribed in the opinion to avoid a further contagion and
potential loss of life.
9
INTRODUCTION AND SUMMARY OF ARGUMENT
This is unquestionably an important case in terms of its

immediate consequences for the lives and health of the 2760
inmates currently incarcerated in San Quentin State Prison.
It is also an urgent case. As reflected in the almost daily
record-breaking numbers of new COVID-19 cases in California
and throughout the country, as winter approaches, we are
entering what will likely be the most dangerous phase of the
pandemic. It is essential that CDCR expeditiously carry out the
remedial steps prescribed in the appellate opinion rather than
defer doing so until after completion of a new round of
proceedings in this Court.

Notwithstanding its importance to San Quentin inmates,
this is not a review-worthy case. It does not present any contested
legal issue concerning formulation of the governing constitutional
standards. There is no split of authority. The Court of Appeal
applied long-established precedents and conducted an
exceptionally thorough review of the facts in determining that
CDCR had exhibited “deliberate indifference” in responding to
the San Quentin COVID-19 pandemic.
Not only are respondent’s criticisms of the opinion
essentially factual rather than legal. In crucial respects, the
petition for review’s current defenses of CDCR’s actions rest on
assertions never presented in respondent’s Return.
As summarized in the opinion, a COVID-19 outbreak
ravaged San Quentin in 2020, infecting over 75% of the inmate
population. 28 inmates have died. (Slip opn., pp. 1, 5, 20.) CDCR
10
did take a number of steps to mitigate the pandemic, such as
distributing masks, cleaning supplies and hand sanitizers;
disinfecting showers, etc. (Return p. 34-35.) However, based on
the factual record, including the unrebutted analyses of infectious
disease experts, the Court of Appeal found those measures
woefully inadequate because they did not address the
circumstances that fueled the epidemic within San Quentin.
Respondent failed to squarely address the analysis of
infectious disease experts that, due to its unique architectural
features, San Quentin could not safely protect inmates from
spread of the COVID-19 contagion unless CDCR promptly
reduced the inmate population by 50% or more. (Slip opn., pp. 16-

17, 33.) That was the determination of a team of experts from
UCSF and the UC-Berkeley School of Public Health, who
conducted an on-site examination of the prison in June 2020.
(Supp. Pet. Appx. B at 12-15.) Two additional expert declarants –
Dr. Peter Chin-Hong (also of UCSF) and Dr. Chris Beyrer of
Johns Hopkins -- concurred in that assessment. (Supp. Pet. Appx.
K at 125-128; Trav. Appx. 11 at 144-146.)
Respondent insists it was not required to abide by the
experts’ recommendations. Yet, respondent has failed to allege
any facts controverting the experts’ assessment on the necessity of
a drastic population reduction as the only means to avoid the
tragic spread of the disease that soon occurred. (Slip opn., p 17.)
Respondent asserts that CDCR was free to disregard the
UCSF/Berkeley Public Health assessment and instead rely on
“different experts” (Pet. Rev. 26) – specifically an “Interim
11
Guidance” from the federal Centers for Disease Control &
Prevention (CDC). But, despite the crucial role of habeas
pleadings in “joining” the issues, respondent never referred to that
CDC “Guidance” in its Return. Because the habeas pleadings
were the proper mechanism for framing the issues and
development of the record, it is too late for respondent to assert
that this “Guidance” was the basis for CDCR’s failure to heed the
public health experts’ recommendations on the dangers posed by
San Quentin’s specific features.
Even leaving aside respondent’s failure to present this
assertion in its Return, the CDC “Interim Guidance” provides no
justification for CDCR’s inaction. The “Guidance” was a highly

general document noting considerations relevant to correctional
institutions of all types throughout the country. It made clear
that prison authorities would have to tailor their responses in
view of the feature of specific facilities. In contrast, the
UCSF/Berkeley Public Health memorandum was the product of
an on-site inspection of San Quentin. It was driven by the
experts’ recognition that this 19th Century structure’s “unique”
architectural features posed an exceptionally high risk of
widespread contagion that could only be abated through
substantial reductions in the inmate population.
Having found that CDCR had exhibited “deliberate
indifference” in its response to the contagion at San Quentin, the
Court of Appeal adopted a remedy commensurate with the cause
– the impossibility of adequate distancing as long as San
Quentin’s inmate population remained at its current level. It
12
directed CDCR to reduce the inmate population by 50% -- to 1775
– through a combination of early releases and transfers.
The Court of Appeal’s disposition affords CDCR broad
discretion in how it reaches the target level of 1775. The
disposition is considerably different than that urged in Von
Staich’s petition and gives CDCR far greater leeway. Petitioner
has urged the appellate court to direct CDCR to release specific
categories of vulnerable inmates – those 60 or older or with pre-
existing conditions enhancing their vulnerability to the disease.
But the Court of Appeal chose not to mandate which categories of
inmates should be released. Moreover, though the petition had
sought the remedy of supervised releases of vulnerable inmates,

the opinion leaves CDCR free to reduce San Quentin’s population
through a combination of early releases and transfers.
This is a measured decision that leaves correctional
decisions in the hands of correctional authorities. Moreover, the
petition for review does not pose any argument that the
disposition is unworkable or unachievable.
Time is of the essence. Each day brings further record-
setting COVID-19 numbers throughout the state. The same
features of San Quentin which facilitated the rapid spread of
COVID-19 in spring-summer 2020 continue to place inmates at
an intolerable risk of a second outbreak. This Court should let
the appellate decision stand and should permit the appellate
court’s measured disposition go into effect without delay.
13
ARGUMENT
I. This Court Should Deny Review Because the

Appellate Opinion Applies Established
Constitutional Principles and Does Not Present a
Review-Worthy Issue.
This is not a review-worthy case because it does not present

any contested legal issue. There is no split of authority. The
Court of Appeal applied long-established U.S. Supreme Court
and California precedents and conducted an exceptionally
thorough review of the facts in determining that CDCR had
exhibited “deliberate indifference” in responding to the San
Quentin COVID-19 pandemic.

A. The Opinion Does Not Pose Any Contested
Issue Concerning the Proper Formulation of
the “Deliberate Indifference” Standard.
Respondent asks this Court to “grant review to clarify the

deliberate indifference standard as applied to prison officials’
response to a novel health crisis.” (Pet. Rev. 18.) But there is no
contested legal issue here. The Court of Appeal applied the
venerable deliberate indifference standard as articulated in
Eighth Amendment precedents (Farmer v. Brennan (1994) 511
U.S. 825; Estelle v. Gamble (1976) 429 U.S. 97; Helling v.
McKinney (1993) 509 U.S. 25; Hutto v. Finney (1978) 437 U.S.
678), as well as California constitutional authorities (art. I, § 17;
Inmates of the Riverside County Jail v. Clark (1983) 144
Cal.App.3d 850). (Slip opn. at p. 18-19; 31-33; 35.)
14
The Eighth Amendment … and article I, section 17 of
the California Constitution both require correctional
officials to provide inmates adequate medical care.
[Citations.] In order to prevail on a constitutional
claim of inadequate care, a prisoner must establish
that the responsible prison official treated him with
“deliberate indifference to serious medical needs.”
[Citation.] “Deliberate indifference” is established
where the challenged deficiency is “sufficiently
serious,” and prison officials “know[] that inmates
face a substantial risk of serious harm and disregard
that risk by failing to take reasonable measures to
abate it.” [Citation.] (Slip opn. at p. 18.)
The appellate court applied long-standing U.S.

Supreme Court precedents on the spread of communicable
disease:

Prison officials may not be “deliberately indifferent to
the exposure of inmates to a serious communicable
disease” [citation], and the placement of inmates in
places to which infectious diseases could easily
spread constitutes a constitutional violation.
[Citation.] Deliberate indifference may be proven by
circumstantial evidence and it may be inferred from
“the very fact that the risk was obvious.” [Citation.]
(Slip opn. at pp. 18-19.)
Respondent does not identify any flaw in the opinion’s

formulation of the deliberate indifference standard, nor does
respondent allege any split of authority. The opinion does not
break any new legal ground but simply applies the deliberate
indifference standard to a complex body of facts. Moreover, the
most crucial facts were uncontroverted on the record before the
appellate court:
15
That respondents are presently disregarding the risk
of harm and will continue to do so is also not disputed
by any evidence the Attorney General has provided.
…. [P]etitioner produced evidence that the efforts
respondents have taken to control COVID-19 in San
Quentin are insufficient to protect inmates from
COVID-19 without the speedy reduction of the
population of that prison by at least half.
Respondents disagree with that claim, but have
provided no evidence at all contradicting the
substantial evidence petitioner has marshalled.
Respondents thus disregard uncontested evidence
that the measures CDCR has taken to protect San
Quentin will be ineffectual if prison officials do not
immediately reduce the population of San Quentin
dramatically. (Slip opn. at pp. 33-34 (emphasis
added).)
The appellate court’s “deliberate indifference” finding was

driven by the facts before it (which respondent failed to rebut)
and was not impaired by any error or uncertainty on the
applicable constitutional standards.
B. As a State Habeas Court Relying on the

California Constitution, As Well As Federal
Principles, the Court of Appeal Was Not Subject
to the Constraints That Have Impaired Federal
Oversight of CDCR.
Respondent refers throughout the petition for review to the
long-running federal civil rights action, concerning overcrowding
and inadequate medical care throughout the CDCR system, Plata
v. Newsom, N.D. Cal., 01-CV-1351-JST. The Plata case resulted
in the U.S. Supreme Court’s landmark holding that the systemic
overcrowding resulted in such grievous deficiencies in inmates’
medical care that it represented an ongoing violation of the
16
Eighth Amendment’s prohibition on cruel and unusual
punishment. (Brown v. Plata (2011) 563 U.S. 493.) The Supreme
Court affirmed a three-judge district court decision requiring
CDCR to reduce its overall inmate population to 137.5% of design
capacity. Although 9 years have passed since the Supreme Court
decision, the Plata litigation remains pending in district court.
Respondent refers throughout the petition for review to the
district court’s ongoing review of the CDCR system, including its
response to the COVID-19 pandemic, and the involvement of a
federal Receiver appointed by the district court. However, as the
Court of Appeal underscored, the California courts remain the
primary guarantors of the rights of inmates confined in California

penal institutions. (Slip opn., pp. 14-16.) Federal courts served
only as a backstop to redress patent constitutional violations
where a state has failed in those primary obligations. Moreover,
even in that backstop role, the federal courts are constrained by
basic federalism principles and by the strictures of the Prison
Litigation Reform Act (PLRA), 18 U.S.C. § 3626. “State courts
are not subject to the restrictions of the PLRA.” (Slip opn., p. 15.)
That is particularly so where the state case raises a claim
under the California Constitution. In addition to his Eighth
Amendment claim, Von Staich’s habeas petition alleged “cruel or
unusual” punishment under article I, section 17, and that state
constitutional claim was the focus of the appellate court’s order to
show cause.
“[T]he California Constitution is, and has always been, ‘“a
document of independent force’” [citation] that sets forth rights
17
that are in no way ‘dependent on those guaranteed by the United
States Constitution’ (Cal. Const., art. I, § 24).” (People v. Buza
(2018) 4 Cal.5th 658, 684.) Indeed, this Court has sometimes
afforded greater protections under article I, section 17, than
federal applications of the Eighth Amendment. 1
California courts review conditions of confinement claims
under article I, section 17, under the same “deliberate
indifference” test as Eighth Amendment precedents. “The same
basic test employed in the federal courts is appropriate to
assessing conditions of confinement challenged under the
California Constitution.” (Inmates of the Riverside County Jail v.
Clark (1983) 144 Cal. App.3d 850, 859.) Although the standard is

the same, California courts are not limited by the same federalism
constraints. Nor are they bound by federal courts’ specific
applications of the Eighth Amendment. California values and
interests can and should animate the independent application of
that standard:
[T]he questions of federalism which exist when
federal courts review the operations of state
institutions are not present in cases such as this.
[Citation.] Further, in assessing the “standards of
decency” which are essential to this analysis, we
think it appropriate that California courts should
look chiefly to California standards and institutions
for their guideposts. (Inmates of the Riverside County
Jail at 859.)
Due to these constraints on the federal court’s remedial
authority, the petition for review’s various references to the Plata
1 E.g., In re Lynch (1972) 8 Cal.3d 410; People v. Dillon (1983) 34

Cal.3d 441.
18
district court and its Receiver are beside the point. Especially
because Von Staich’s petition raises an article I, section 17 claim
(as well as an Eighth Amendment claim), the federal court’s
limited actions over the course of the pandemic do not constrain a
California court from taking more decisive action. The Plata
litigation is distinguishable because “this case and Plata address
fundamentally different subjects. Plata is concerned with ongoing
overcrowding in the overall correctional system and its effect on
medical care in general,” while “[t]he petition before us … is
concerned with the population of only one prison…, and the
problem it presents is very specific….” (Slip opn., p. 15.)
Respondent’s citations to an April 2020 district court order,

Plata v. Newsom (N.D. Cal. 2020) 445 F.Supp.3d 557, are
irrelevant for additional fundamental reasons. That order did
not concern San Quentin specifically but CDCR’s overall plans in
response to COVID-19 throughout the prison system. More
importantly, the district court issued that order at a very early
stage of the pandemic (April 17) -- months before the principal
events that formed the basis for the Court of Appeal’s “deliberate
indifference” finding. Those include the botched transfer of
infected inmates to San Quentin, the UCSF/Berkeley Public
Health team’s site inspection and Urgent Memo (June 15), and
CDCR’s disregard of those recommendations.
The Court of Appeal’s decision is an example of a state
court conscientiously undertaking its responsibility to vindicate
the constitutional rights of inmates in a specific state facility.
Respondent has not and cannot identify any error in the state’s
19
formulation of the governing standard. There is no review-
worthy issue, and this Court should decline review.
20
II. Respondent’s Defense of San Quentin’s Response to
the COVID-19 Outbreak Rests on Arguments Never
Presented to the Court of Appeal – Especially Its
New Assertion that CDCR Declined to Follow
Infectious Disease Experts’ Urgent Recommendation
to Reduce San Quentin’s Population Based on a
General “Interim Guidance” from CDC.
A. The Return Did Not Allege That CDCR Rejected
the Experts’ “Urgent” Recommendation to
Reduce San Quentin’s Inmate Population Based
on an “Interim Guidance” from CDC.
The Petition for Review flouts elementary principles of

appellate practice, as well as this Court’s longstanding rules
governing post-OSC habeas corpus proceedings. Respondent’s
critique of the appellate opinion rests on CDCR’s asserted

“adoption” of an “Interim Guidance” from CDC. Yet, respondent
never discussed that “Guidance” in its Return.
First, some background: At the invitation of the Receiver in

the ongoing federal Plata litigation, a team of infectious disease
experts from UCSF and the UC-Berkeley School of Public Health
conducted an on-site inspection of San Quentin in June 2020 for
the express purpose of assessing the COVID-19 outbreak at San
Quentin – then still in its earliest stage. Those experts issued an
“Urgent Memo” “which assigned central importance to the
prompt reduction of the population of San Quentin Prison by at
least 50% of current capacity.” (Slip opn., p. 8, discussing
Williams & Bertozzi, Urgent Memo, COVID-19 Outbreak: San
Quentin Prison (June 15, 2020) (Supp. Pet. Appx. B at 10-18).)
Based on their on-site inspection, the experts focused on San
Quentin’s physical features, including its poor ventilation and the
21
layout of its 5-tier open-grill cells, which made it exceptionally
conducive to widespread contagion with the virus:
Given the unique architecture and age of San

Quentin (built in the mid 1800s and early 1900s),
there is exceedingly poor ventilation, extraordinarily
close living quarters, and inadequate sanitation. We
therefore recommend that the prison
population at San Quentin be reduced to 50% of
current capacity even further reduction would
be more beneficial) via decarceration ….
….
[G]iven San Quentin’s antiquated facilities, poor
ventilation, and overcrowding, it is hard to identify
any options at San Quentin where it advisable
to house high-risk people with multiple COVID-
19 risk factor for serious morbidity or

mortality. (Supp. Pet. Appx. B at 12, 15 (emphasis
in original); Slip opn., pp. 8-9.)
In addition to the UCSF/Berkeley Public Health Urgent

Memo, petitioner presented declarations from other renowned
infectious disease experts – Dr. Peter Chin-Hong of UCSF and
Dr. Chris Beyrer of Johns Hopkins. Drs. Chin-Hong and Beyrer
each agreed with the Urgent Memo’s analysis of the contagion-
escalating physical features of San Quentin and its assessment
that only a population reduction of 50% or more could prevent a
disastrous spread of the virus through the prison endangering
the many inmates whose age or pre-existing conditions rendered
them exceptionally vulnerable. (Supp. Pet. Appx. K at 125-128:
Trav. Appx. 11 at 144-146.) Finally, Dr. Martin Willis, the Marin
County Public Health Officer also personally inspected San
Quentin and offered a dire assessment of the implications of its
22
physical features and the “crowding of inmates in single large
settings.” (Trav. Appx. 1 at 5-7; Slip opn., pp. 11-12.)
The Petition for Review attempts to justify CDCR’s failure
to heed the infectious disease experts’ “urgent” call for a 50% (or
greater) population reduction by asserting that “prison officials
acted on the advice of different experts, in this case the advice of
the CDC.” (Pet. Rev. 26 (emphasis in original).) The Petition for
Review cites an “Interim Guidance” for correctional institutions
first issued in March 2020. (CDC, Interim Guidance on
Management of Coronavirus Disease 2019 (COVID-19) in
Correctional Facilities (Mar. 23, 2020, updated through Oct. 21,
2020) (“CDC Interim Guidance”).) 2 The Interim Guidance is a

centerpiece of the Petition for Review, which refers to it again
and again. (Pet. Rev. 9, 26-28) Yet, respondent never referred to
the CDC Interim Guidance or CDCR’s putative “adoption” of it in
its Return, nor was it discussed in respondent’s other Court of
Appeal filings such as its Amended Informal Opposition.
This Court “normally will not consider” a matter that the
petitioning party failed to raise in the Court of Appeal. (Cal.
Rules of Court, rule 8.500(c)(1).) Respondent chides the appellate
court for failing to “account for” CDCR’s reliance “on the advice of
different experts.” (Pet. Rev. 26) But this Court “normally will
accept the Court of Appeal opinion’s statements of the issues and
facts unless the party has called the Court of Appeal’s attention
2 https://www.cdc.gov/coronavirus/2019-
ncov/community/correction-detention/guidance-correctional-
detention.html {reviewed Nov. 24, 2020}
23
to any alleged omission or misstatement … in a petition for
rehearing.” (Id., rule 8.500(c)(2).) Respondent did not file any
rehearing petition contesting any such “omission” – presumably
because respondent had not claimed any such reliance on the
Interim Guidance in its briefing.
Respondent’s attempt to offer a new justification for
CDCR’s failure to heed the infectious disease experts
recommendations concerning the perilous conditions at San
Quentin contravenes this Court’s precedents defining the crucial
function of the return. The return and the traverse establish the
framework through which “‘both factual and legal issues are
joined for review.’ [Citation.] This process of defining the issues is

important because issues not raised in the pleadings need not be
addressed. [Citation.]” (People v. Duvall (1995) 9 Cal.4th 464, 478
(emphasis added).) 3
The Return’s treatment of the infectious disease experts’
analysis of the specific features of San Quentin (poor ventilation,
overcrowding, the lay-out of its tiers of cells, etc.) consisted of
little more than general statements that prison authorities must
“giv[e] ‘due regard’ for the dangerousness of many of the men
imprisoned at San Quentin” and that the various other steps San
Quentin implemented represented a “reasonable’ response to the
pandemic (Return pp. 14-15 ¶¶ 13-14 (pleading), pp. 32-34
(memorandum).) While CDCR lauded its own “robust measures,”
its Return did not explain how such steps as distributing cleaning
supplies and hand sanitizers could mitigate the contagion-
3 See also In re Serrano (1995) 10 Cal.4th 447, 455.

24
escalating physical features described in the Urgent Memo. The
Return did not state that CDCR had relied on the CDC Interim
Guidance or that it had somehow read that document as
validating its decision to disregard the infectious disease experts’
firm conclusion that only a 50% or greater population reduction
could prevent the wider contagion that later occurred.
This Court should not permit respondent to critique the
Court of Appeal’s thorough analysis based on assertions it never
presented to that Court. In view of the central role that CDCR’s
asserted “adoption” of the Interim Guidance plays in respondent’s
bid for review, this Court should rebuff this belated effort to
reframe the issues and should deny review.

B. The CDC “Interim Guidance” Addressed
General Considerations Relevant to
Correctional Institutions, While the
UCSF/Berkeley Public Health Memo Rested on
an On-Site Inspection of San Quentin and
Specifically Addressed the Exceptional Risk of
Widespread Contagion Posed by Its Unique
Architectural Features.
Even if the Return had alleged that CDCR rejected the

infectious disease experts’ urgent recommendation to reduce San
Quentin’s population based on a CDC “Interim Guidance” —
which it did not—that “Guidance” merely offered considerations
relevant to correctional institutions generally. “This document is
intended to provide guiding principles for healthcare and non-
healthcare administrators of correctional and detention
facilities…” (CDC Interim Guidance, supra (emphasis added).)
As the document expressly states: “This guidance will not
25
necessarily address every possible custodial setting…,” and
emphasizes: “The guidance may need to be adapted based
on individual facilities’ physical space, staffing,
population, operations, and other resources and
conditions.” (Ibid. (emphasis in original.) As respondent notes,
“the CDC recommends prison officials ‘increase the physical
space between incarcerated[ ] persons (ideally 6 feet between all
individuals, regardless of symptoms) and to minimize mixing of
individuals from different housing units.’” (Pet. Rev. 27.)
This general guidance did not address the exceptional risk

of widespread contagion posed by the unique architectural
features and layout of California’s oldest prison. In contrast, the

UCSF/Berkeley Public Health “Urgent Memo” was the product of
an on-site inspection of San Quentin and addressed those
characteristics in depth: “There are currently 3547 people in total
incarcerated at San Quentin, approximately 1400 of whom have
at least one COVID-19 risk factor (as do many, unknown, staff
members). This means these individuals are at heightened risk of
requiring ICU treatment and/or mortality if infected. …. Given
the unique architecture and age of San Quentin (built in the mid
1800s and early 1900s), there is exceedingly poor ventilation,
extraordinarily close living quarters, and inadequate sanitation.
We therefore recommend that the prison population at
San Quentin be reduced to 50% of current capacity (even
further reduction would be more beneficial) via
decarceration; this will allow every cell in North and West
Blocks to be single-room occupancy and would allow leadership at
26
San Quentin to prioritize which units to depopulate further,
including the high-risk reception center and gymnasium
environments. It is important to note that we spoke to a number
of incarcerated people who were over the age of 60 and had a
matter of weeks left on their sentences. It is inconceivable that
they are still in this dangerous environment.” (Supp. Pet. Appx. B
at 12 (emphasis in original); Slip opn., p. 8).)
The CDC Interim Guidance was highly generic and listed

factors relevant to correctional institutions generally, while
acknowledging that officials would have to tailor appropriate
responses to the circumstances of particular facilities. The
Urgent Memo was a highly specific document directed to the

unique problems posed by San Quentin’s design. Respondent
cannot explain how the Interim Guidance’s generalities could
take precedence over a report prepared by multiple infectious
disease experts based on their on-site inspection of this specific
prison.
C. Respondent’s Return Did Not Present Any

Factual Basis or Allegations Rebutting the
Infectious Disease Experts’ Analysis of the
Grave Public Health Risks Presented by San
Quentin’s Population Level Due to the Grave
Risks Exacerbated by Its Unique Features.
Respondent insists that CDCR was free to disregard the
recommendations of the UCSF/Berkeley Public Health team. But
respondent has never presented any contrary expert analysis or
articulated any factual basis for discounting the Urgent Memo’s
27
analysis (which was seconded by other infectious disease experts
such as habeas declarants Drs. Chin-Hong and Beyrer).
Respondent fails to present any review-worthy issue,
because its Return – its most crucial pleading in the habeas
proceeding – failed to rebut that medical analysis. The function
of the formal habeas pleadings – particularly, the Return – is to
“join” “the factual and legal issues” of the habeas proceeding.
(Duvall, 9 Cal.4th at 478.) To “join” the issues is to meet the
opposing party’s factual and legal contentions directly to enable
the Court to determine which issues are genuinely contested.
Here, rather than “join” the issues by presenting any contrary
medical analysis, the Return sidestepped the facts presented in

the Urgent Memo. While the Return insisted that CDCR was not
required to follow the public health team’s recommendations, it
never rebutted the Urgent Memo’s analysis.
“The factual allegations of a return must … respond to the
allegations of the petition that form the basis of the claim that
the confinement is unlawful [Citations.]” (Duvall, 9 Cal.4th at
476.)
Because the issuance of an order to show cause
reflects the issuing court’s determination that the
petition states facts which, if true, entitle the
petitioner to relief [citations], the respondent should
recite the facts upon which the denial of petitioner’s
allegations is based, and, where appropriate, should
provide such documentary evidence, affidavits, or
other materials as will enable the court to determine
which issues are truly disputed. (In re Lewallen
(1979) 23 Cal.3d 274, 278 fn. 2; Duvall at 480
(emphasis in Duvall).
28
Respondent did submit copious exhibits, including selected
items from Von Staich’s individual records intended either to
discredit his individual medical vulnerabilities or to raise
dangerousness concerns. It also submitted documents describing
other steps CDCR was taking – which conspicuously did not
involve inmate releases anywhere near the level prescribed in the
Urgent Memo. The Urgent Memo (and the other experts’
concurring declarations) were crucial components of “the basis of
the claim” that the conditions of confinement in San Quentin
were “unlawful.” (Duvall at 476.) But the Return did not present
any contrary expert analysis or any other facts countering the
Memo’s factual premises and medical analysis. Nor did it allege

any facts or reasons discrediting the Memo’s conclusion that no
option short of a 50% population reduction would permit San
Quentin to continue to house vulnerable inmates in the midst of
the current pandemic.
Even if a respondent declines to present counter-
declarations or other evidence, at a minimum, the return must
plead with particularity a factual basis for disputing the petition’s
supporting factual showing. Duvall restated the Court’s
longstanding disapproval of “general denials” in a return.
(Duvall, 9 Cal.4th at 479-480.) “We have required the People to
set forth, in their return, facts responsive to the factual
allegations in the original petition….” (Duvall at 476 fn. 3.)
Where a respondent purports to dispute the factual basis
for a petition’s claims – such as the Urgent Memo’s analysis of
the conditions at San Quentin and other experts’ concurrence–
29
the Return must plead facts and reasons for that showing. “We …
reiterate the centrality of the return in this process and the
requirement that the return state facts and respond to the factual
allegations set forth in the petition.” (Duvall at 477 fn. 4
(emphasis added).)
To this day, respondent has not articulated any basis for
discounting the infectious disease experts’ findings. The Return’s
general assertions that CDCR could “reasonably” disregard that
analysis raise more questions than they answer. For example:
• Does respondent dispute the credentials of Dr. Brie
Williams and Dr. Stefano Bertozzi or other members
of the UCSF/Berkeley Public Health team?

• Does respondent dispute the factual premises of the
Urgent Memo – i.e., its descriptions of San Quentin’s
architectural features, its poor ventilation, the layout
of its tiers of cells, or other aspects of the confinement
conditions?
• Does respondent dispute the Urgent Memo’s medical
and epidemiological analysis – i.e., is there some flaw
in the Memo’s explanation of the characteristics of
the COVID-19 virus and the means of its
transmission?
While the Return praises the various other measures
CDCR has taken – inmate and staff testing, distribution of
masks, hand-sanitizers, cleaning supplies, etc. – those assertions
establish only that CDCR did something. “The target of the
petition is not what respondents have done but what they refuse
30
to do.” (Slip opn., p. 21.) The Urgent Memo made clear that the
crucial circumstances making San Quentin a Petri dish for
contagion were its dense population level and the facility’s
architecture and other physical features. The return did not
state any medical basis for believing that CDCR’s more modest
steps could abate the wide contagion which the crowded
conditions and poor ventilation made inevitable.
The same goes for respondent’s assertions that prison
authorities must consider danger to the public. It is a truism to
say that some San Quentin inmates would pose a danger to the
public if released. But the Return did not offer any specific data
or analysis of the inmate population indicating the numbers of

inmates deemed too dangerous to be released under parole
supervision.
If respondent had some factual basis for disputing the
expert medical analysis presented in the petition, its opportunity
to present those facts was its return. Yet the return offered
neither contrary evidence (e.g., an expert report or counter-
declaration) nor any explanation in its pleading of medical or
other factual grounds for contesting the petition’s showing.
This Court has excused a respondent’s duty to state a
specific factual basis for disputing the petition’s showing where,
as a practical matter, “it may be impossible to obtain and allege
facts to refute the allegation, especially if [trial] counsel refuses
to speak to respondent or, as here counsel has died.” (Duvall, 9
Cal.4th at 484 (inability to respond to ineffective assistance
allegations).) In marked contrast to Duvall, this is a situation in
31
which respondent has far greater access to the facts than
petitioner.
CDCR has ready access to cadres of medical staff and other
experts and is well-positioned to investigate any perceived errors
in the petition’s factual showing regarding the physical
conditions at San Quentin. Similarly, CDCR has access to
inmates’ records. But the Return made no effort to analyze the
inmate population and assess the numbers of inmates whose age,
prior offenses, and/or prison disciplinary records indicated a
substantial ongoing risk to the public and the numbers of
inmates who could be safely released into supervised re-entry
programs.

Because the Return failed to bring the petition’s factual
showing into dispute, this case would be a highly unsuitable
vehicle for review of any of these issues.
32
III. The Court Of Appeal’s Disposition Represents A
Measured Remedy That Affords CDCR Broad
Discretion In Achieving The Necessary Reductions.
Respondent’s “Issue Presented” appears to include a
dispositional question in addition to its challenge to the
“deliberate indifference” determination: “[M]ay a court on that
basis order officials to reduce the total prison population by
50%?” (Pet. Rev. 6) But the body of the petition addresses only
the “deliberate indifference” finding and does not raise any
challenge, much less any review-worthy question, concerning the
appellate court’s formulation of the remedy.
The measured disposition affords CDC extraordinarily
broad discretion, and the petition does not argue that the

disposition is unworkable. These are additional compelling
grounds to decline review.
A. The Appellate Disposition Affords CDCR

Maximum Discretion.
The appellate court found CDCR exhibited “deliberate
indifference” to the grave risk San Quentin’s population level
posed to inmates’ lives and health in the midst of the pandemic.
However, the Court of Appeal’s formulation of the remedy should
give CDCR no cause for complaint in view of the breadth of
discretion it affords CDCR.
The disposition does not give either side everything it
wanted. Von Staich had requested that the Court of Appeal order
his release on parole due to his age (64) and other factors
accentuating his vulnerability. The petition requested
declaratory relief establishing that similarly-situated vulnerable
33
inmates should also be released. But the Court structured the
remedy in a different way that preserved CDCR’s ability to make
the crucial decisions as to which inmates to release or transfer.
“The Remedy We Provide Will Benefit All San Quentin Inmates
and Provide CDCR Latitude to Determine How That Happens.”
(Slip opn., p. 37 (heading).)
The Court did not prescribe which categories of inmates
should be released in order to achieve the requisite reduction of
the population to 1775. The court was careful to leave those
decisions up to CDCR. The petition had argued that any
reduction of the inmate populations should be achieved through
releases of vulnerable inmates. While the opinion noted several

ways that CDCR could expand its early-release programs without
compromising public safety, the disposition does not compel
CDCR to make any of those programmatic changes. The opinion
leaves CDCR free to reach the target population of 1775 through
a combination of early releases and transfers to other facilities.
This disposition is the opposite of any judicial overreach.
Consistent with the unrebutted expert analysis, it requires San
Quentin to reduce the inmate population by 50% to protect
inmates from this deadly virus. But it gives CDCR broad
discretion to achieve that result. This is a commendable case of a
court tailoring a remedy to a difficult situation in a way that
leaves the crucial implementation decisions in the hands of
correctional officials.
34
B. Respondent Does Not Assert that the Appellate
Court’s Remedy Is Unworkable or That It
Would Pose Any Danger to Public Safety.
The petition for review is most noteworthy for what it does
not assert. Respondent does not contend that CDCR will be
unable to achieve the prescribed reduction of San Quentin’s
inmate population to 1775.
Over the course of the pandemic and the Von Staich
litigation, CDCR has made progress in reducing San Quentin’s
population. At the time of the June 2020 UCSF/Berkeley Public
Health Urgent Memo, San Quentin housed 3547 inmates. (Slip
opn., p. 8; Supp. Pet. Appx. B at 12.) CDCR’s most current
population statistics show that this progress has continued, albeit

incrementally, so that the San Quentin population now stands at
2760. (CDCR, Weekly Report of Population (Nov. 18, 2020).) 4
Thus, San Quentin is now within 1000 of the target population of
1775.
As confirmed by CDCR’s most current population report
several other CDCR institutions are currently below capacity.
(Ibid.; Slip opn., p. 26), Because the opinion gives CDCR
discretion in the matter, the excess capacity in other facilities
should permit CDCR to achieve much of the necessary reduction
through transfers if it so chooses. (Slip opn., pp. 26-27.) “[T]he
population at San Quentin could also be rapidly reduced by
transferring uninfected prisoners to other CDCR supervised
4https://www.cdcr.ca.gov/research/wp-
content/uploads/sites/174/2020/11/Tpop1d201118.pdf {reviewed
Nov. 23, 2020}.
35
facilities.” (Slip opn., p. 26.) The petition for review does not
dispute that feasibility.
In response to the pandemic, CDCR has initiated three
distinct early release programs. (Slip opn., pp. 23-24.) The
problem is that, in their current forms, those programs’ criteria
are so restrictive that they render “a large population of San
Quentin’s inmate population” categorically ineligible. The 180-
day and 365-day programs’ exclusions of all inmates serving time
for a “violent” offense bar consideration of early release for
“virtually all life prisoners eligible for parole (lifers).” “The
expedited release plans also exclude most inmates convicted of
second or third strikes. [Citations.]” (Slip opn., p. 24.)

“The two expedited release programs aimed at prisoners
near the end of their sentences … necessarily exclude from
consideration many San Quentin inmates who are unlikely to
present a danger to the public despite their past offenses (and at
the same time, are likely to be at high risk for COVID-19).” (Slip
opn., p. 27.) As reflected in the criminal justice studies discussed
in the opinion, the risk of recidivism declines dramatically as
inmates age. (Id., pp. 28-31.) Because “lifers” have already served
lengthy minimum terms before becoming eligible for parole, they
present an almost negligible risk. “‘Lifers have been placed in
CDCR’s lowest risk category, and the historical recidivism rate of
Lifers is approximately 1%....’” (Id. at p. 29, quoting Coleman v.
Brown (E.D. Cal. 2013) 922 F.Supp. 1004, 1051 fn. 47.)
Because elderly inmates present the lowest risk of any
danger to the public if released under parole supervision but are
36
also among those most vulnerable to death or grave illness if
infected with COVID-19, they should be prime candidates for
early release. “Respondents … have the authority [under Govt.
Code § 8658] to include all elderly inmates eligible for parole in
the expedited release plans…, but have chosen not to do so
despite such inmates’ heightened vulnerability to the virus and
reduced risk of dangerousness to the public.” (Slip opn., p. 31.)
What is most noteworthy about the petition for review, is
“the dog that didn’t bark.” Respondent does not attempt to
dispute that CDCR can achieve the necessary population
reduction through a combination of transfers and early releases.
Nor does the petition dispute that CDCR can take these steps

without posing any danger to public.
While the appellate court has found that CDCR’s failure to
take the necessary steps to reduce San Quentin’s population to a
safe level has amounted to an ongoing constitutional violation,
respondent has no cause for complaint. The Court of Appeal has
set out a fully achievable benchmark – a reduction to 1775
inmates as prescribed by the infectious disease experts. While it
has highlighted ways CDCR can modify its early release
programs to facilitate that reduction, it has not mandated those
changes or otherwise tied prison authorities’ hands.
“[W]e do not dictate this or any other specific requirement
for releasing prisoners. …. Respondents are free to employ the
means they determine will most quickly achieve the necessary
population reduction.” (Slip opn., p. 41.) This is a measured
disposition that leaves CDCR free to chart the course of the
37
necessary reductions and to make the relevant programmatic and
individual decisions along the way. There is no cause for this
Court to intervene through a grant of review.
38
IV. In View of the Continuing Urgency Posed By the
Pandemic, Especially During the Coming Winter
Months, This Court Should Deny Review To Allow
Expeditious Implementation of the Appellate Court’s
Remedy.
Sometimes the urgency of a matter calls out for
intervention by the state’s highest court. Here the opposite is
true. It is imperative that CDCR implement the appellate
court’s disposition now and bring the San Quentin
population down to 1775 with all deliberate speed,
because the pandemic is entering its most dangerous
phase.
By every measure – new infections, hospitalizations, deaths
– COVID-19 cases are now surging in California and throughout

the country. The public health community has warned that the
escalation will worsen in the coming winter months due to the
onset of flu season and other factors. (As Curfews Multiply, the
U.S. Breaks More Records for New Cases and Hospitalizations,
N.Y. Times (Nov. 21, 2020); 5 The Third Wave of Coronavirus Is
Washing Over the Bay Area. How Will We Weather the Storm?,
San Francisco Chronicle (Nov. 21, 2020); 6 Charts Show How Bay
5 https://www.nytimes.com/live/2020/11/20/world/covid-19-
coronavirus?referringSource=articleShare#as-curfews-multiply-
the-us-breaks-more-records-for-new-cases-and-hospitalizations
{reviewed Nov. 21, 2020}.
6 https://www.sfchronicle.com/bayarea/article/The-third-wave-of-
coronavirus-is-washing-over-the-15743917.php {reviewed Nov.

21, 2020}.
39
Area’s Current Coronavirus Surge Is Already Worse Than the
Last One, San Francisco Chronicle (Nov. 21, 2020). 7)
During the virus’s spread through San Quentin earlier this
year, it infected over 75% of the inmate population, and 28
inmates died. (Slip opn., 1, 5, 20.) Although CDCR’s site lists only
a handful of currently “active” San Quentin cases, 8 that is no
cause for complacency. Due to the unique contagion-exacerbating
features analyzed in the experts’ Urgent Memo, there remains a
grave risk of another epidemic within the prison and further loss
of life as long as San Quentin’s population remains 1000 above
the level prescribed in that report.
“[T]here is no assurance that San Quentin will not

experience a second or even third spike, as it did during the
Spanish flu pandemic in 1918…. [Citation.]” (Slip opn., p. 6.)
Indeed, CDCR’s COVID-19 tracking site reflects that several
other institutions have experienced two or more distinct waves of
contagion. 9 Such a second outbreak at San Quentin could be still
7 https://www.sfchronicle.com/bayarea/article/Charts-show-how-
Bay-Area-s-current-coronavirus-15738406.php {reviewed Nov. 21,
2020}.
8 CDCR, Population COVID-19 Tracking,
https://www.cdcr.ca.gov/covid19/population-status-tracking/
{reviewed Nov. 24, 2020}.
9 These include Avenal, California Rehabilitation Center,
California Institution for Men, Wasco, Chuckwalla Valley,

Substance Abuse Treatment Facility, Corcoran, Valley State
Prison, and California Institution for Women. (CDCR, Population
COVID-19 Tracking, supra,
https://www.cdcr.ca.gov/covid19/population-status-tracking/.)
40
worse because its antiquated features are more conducive than
modern facilities to an explosive.
It is imperative that CDCR implement the necessary
reductions now. Yet, in the ongoing consolidated habeas corpus
proceeding pending in Marin County Superior Court (involving
over 300 San Quentin inmates), respondent has asked the
superior court to stay all proceedings related to CDCR’s
implementation of the Von Staich opinion, due to the pendency of
this Petition for Review. Respondent’s most recent filing in the
Marin cases urges, “This Court should stay the proceedings here
until the Von Staich decision is final. Respondent is seeking
review of the Court of Appeal’s decision and, pending finality of

the decision, this Court is not compelled by Von Staich to take
any action.” 10
That is precisely the wrong response at this time of crisis.
Even if respondent disagrees with the appellate court’s
“deliberate indifference” finding, CDCR should proceed with the
necessary population reduction now, rather than await finality of
the opinion, to avert a further disaster.
Respondent’s deferral of implementation of the necessary
reductions provides further cause for this Court to deny review
and ensure that the remedy goes into effect as soon as possible.
Even if this Court were to set an expedited schedule for briefing
and argument, a grant of review would inevitably delay final
10In re Ian Hall et al., Marin County Super. Ct. SC212933 et al.,
Respondent’s Br. re Effects of Von Staich Decision, p. 4 (Nov. 16,
2020). See accompanying Motion for Judicial Notice.
41
resolution for several months. 11 Yet, the current escalating surge
in California is a stark reminder that time is the essence. Robust
steps of the kind directed in the appellate opinion are necessary
to prevent further tragedy.
Review is unnecessary. There is no unresolved issue
concerning proper formulation of the constitutional standard. The
case comes down to a highly complex set of facts. The opinion
attests to the care and thoroughness of the appellate court’s
evaluation of those facts under the governing principles. There is
no cause for this Court to undo that decision and to re-examine
those facts anew.
Finally, a grant of review would send the wrong message.

“[T]he COVID-19 outbreak at San Quentin has been the worst
epidemiological disaster in California correctional history.” (Slip
opn., p. 6.) Sadly, however, it is far from the only instance in
which correctional authorities have failed to take the intensive
steps, including population reductions, necessary to ensure jail
and prison inmates’ rights to confinement under safe and
humane conditions.
11 The Court of Appeal’s experience is telling. The appellate

court was highly conscious of the human stakes of the case and
took extraordinary steps to expedite briefing, hearing, and
resolution of the matter. For example, it required filing of a
supplemental habeas petition just 10 days after appointment of
counsel and set similar very tight deadlines for the subsequent
briefs and pleadings. The justices and the court’s staff did a “full
court press” and devoted extensive time to working up this
factually complex case. Despite those commendable efforts, the
appellate court was not able to issue its decision until 3 months
after the appointment order.
42
As the New York Times stated in the lead editorial of its
most recent Sunday edition: “The American penal system is a
perfect breeding ground for the virus.” (New York Times, America
is Letting the Coronavirus Rage Through Prisons (Nov. 21,
2020).) 12 The Times editorial specifically discussed the San
Quentin outbreak as a particularly dramatic example of that
nationwide problem. “All too often, continued foot-dragging or
dysfunction by prison official requires the courts to step in,” as
the Court of Appeal here did with its order “to cut [San
Quentin’s] population by around half.” (Ibid.)
The Court of Appeal’s summary of the history and causes
of the San Quentin provides a sad but compelling example of the

kind of “foot-dragging or dysfunction” described by the Times.
(See Slip opn., pp. 5-12.) The opinion here is a model of a
thorough and factually-supported analysis of a disastrous disease
outbreak at California’s oldest prison. The appellate court
devised a disposition which ensures inmates’ state and federal
constitutional rights to adequate medical care and safe conditions
of confinement while also affording correctional authorities broad
discretion in how they achieve the necessary population
reductions.
This Court should let the appellate decision stand, so that
CDCR can take these desperately necessary remedial measures
now, rather than months in the future. We respectfully request
12
https://www.nytimes.com/2020/11/21/opinion/sunday/coronavirus-
prisons-jails.html?smid=nytcore-ios-share {reviewed Nov. 23,
2020}.
43
this Court to deny review and to remove any uncertainty over
CDCR’s duty to fully comply with these responsibilities.
CONCLUSION
For all these reasons, petition respectfully urges this Court

to decline review.
Dated: Nov. 25, 2020 Respectfully submitted,
JONATHAN SOGLIN
Executive Director
/s/ J. Bradley O’Connell
J. Bradley O’Connell
Assistant Director
/s/ L. Richard Braucher

L. Richard Braucher
Staff Attorney
44
CERTIFICATE OF WORD COUNT
Counsel for petitioner Ivan Von Staich hereby certifies that

this Answer to Petition for Review consists of 7,739 words
(excluding cover page information, tables, proof of service,
signature blocks, and this certificate), according to the word
count of the computer word-processing program. (Cal. Rules of
Court, rule 8.504(d)(1).)
Dated: Nov. 25, 2020 Respectfully submitted,
JONATHAN SOGLIN
Executive Director
/s/ J. Bradley O’Connell
J. Bradley O’Connell

Assistant Director
/s/ L. Richard Braucher
L. Richard Braucher
Staff Attorney
45
DECLARATION OF SERVICE BY MAIL AND ELECTRONIC SERVICE BY TRUEFILING
Re: In re Ivan Von Staich Case No.: S265173
Court of Appeal Case No. A160122
Marin County Superior Court Case No. C58351
I, the undersigned, declare that I am over 18 years of age and not a party to the
within cause. I am employed in the County of Alameda, State of California. My business
address is 475 Fourteenth Street, Suite 650, Oakland, CA 94612. My electronic service
address is eservice@fdap.org. On November 25, 2020, I served a true copy of the attached
on each of the Answer to Petition for Review following, by placing same in an
envelope(s) addressed as follows:
Marin County Superior Court Marin County District Attorney
3501 Civic Center Drive 3501 Civic Center Drive
San Rafael, CA 94903 San Rafael, CA 94903
Ivan Von Staich

(Petitioner)
Each said envelope was sealed and the postage thereon fully prepaid. I am familiar
with this office’s practice of collection and processing correspondence for mailing with the

United States Postal Service. Under that practice each envelope would be deposited with
the United States Postal Service in Vallejo, California, on that same day in the ordinary
course of business.
On November 25, 2020, I transmitted a PDF version of this document by TrueFiling
to the following:
Phillip Lindsay Court of Appeal, First Appellate District
Office of the Attorney General
(phillip.lindsay@doj.ca.gov) Alexander Post
(Respondent) Office of the State Public Defender
(post@ospd.ca.gov)
Eniola Longe-Atkin
Office of the Attorney General Alyssa Mellot
(Eniola.LongeAtkin@doj.ca.gov) Office of the State Public Defender
(alyssa.mellott@ospd.ca.gov)
Jennifer Neill
California Department of Corrections Hadar Aviram
and Rehabilitation UC Hastings
(jennifer.neill@cdcr.ca.gov) (aviramh@uchastings.edu)
Catherine Lhamon Donald Specter

Office of Governor Gavin Newsom Prison Law Office
(catherine.lhamon@gov.ca.gov) (dspecter@prisonlaw.com)
Keker Van Nest & Peters

(Kbringola@keker.com)
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on November 25, 2020, at Vallejo, California.
/s/ Elizabeth Wilkie

Elizabeth Wilkie, Declarant

S265173 Von Staich PFR Answer

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IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

In re IVAN VON STAICH, S265173

Petitioner, Court of Appeal

ANSWER TO PETITION FOR REVIEW

After Decision by the Court of Appeal

Document received by the CA Supreme Court.

Attorneys for Petitioner

TABLE OF AUTHORITIES ............................................................ 4

INTRODUCTION AND SUMMARY OF ARGUMENT............... 10

I. This Court Should Deny Review Because the Appellate

A. The Opinion Does Not Pose Any Contested Issue

B. As a State Habeas Court Relying on the California

Document received by the CA Supreme Court.

II. Respondent’s Defense of San Quentin’s Response to the

A. The Return Did Not Allege That CDCR Rejected the

B. The CDC “Interim Guidance” Addressed General

III. The Court Of Appeal’s Disposition Represents A Measured

A. The Appellate Disposition Affords CDCR Maximum

B. Respondent Does Not Assert that the Appellate

IV. In View Of The Continuing Urgency Posed By The

Document received by the CA Supreme Court.

CERTIFICATE OF WORD COUNT ............................................. 45

Brown v. Plata (2011)

Coleman v. Brown (E.D. Cal. 2013)

Estelle v. Gamble (1976)

Farmer v. Brennan (1994)

Helling v. McKinney (1993)

Document received by the CA Supreme Court.

Plata v. Newsom (N.D. Cal. 2020)

In re Von Staich (2020)

Inmates of the Riverside County Jail v. Clark (1983)

People v. Buza (2018)

People v. Dillon (1983)

Document received by the CA Supreme Court.

People v. Duvall (1995)

In re Lewallen (1979) 23 Cal.3d 274 ............................................ 28

In re Ian Hall et al., Marin County Super. Ct.

United States Constitution

Prison Litigation Reform Act

STATE CONSTITUTIONAL PROVISIONS,

California Rules of Court

Document received by the CA Supreme Court.

Williams & Bertozzi, Urgent Memo, COVID-19

CDC, Interim Guidance on Management of

CDCR, Weekly Report of Population (Nov. 18, 2020)

Document received by the CA Supreme Court.

The Third Wave of Coronavirus Is Washing Over the

CDCR, Population COVID-19 Tracking

New York Times, American is Letting the

Document received by the CA Supreme Court.

In re IVAN VON STAICH, S265173

Petitioner, Court of Appeal

ANSWER TO PETITION FOR REVIEW

TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF

Document received by the CA Supreme Court.

This is unquestionably an important case in terms of its

Document received by the CA Supreme Court.

Document received by the CA Supreme Court.