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California Appeals Court Lets CDCR Define Term Adopted From Legislation

by Kevin W. Bliss

Is a man your mother marries after you grow up and leave home your stepfather? What if she dies — is he still your stepfather then?

The questions sound like parlor games, but the answers carry significance under regulations promulgated by the California Department of Corrections and Rehabilitation (CDCR). So when a state prisoner asked a state court to weigh in, and the court punted back to CDCR, the prisoner turned to the Fifth Appellate District of California, arguing that only state lawmakers had authority to define the legal boundaries of the term.

But the Court said he was wrong.

In a remarkable decision reached on March 15, 2022, the Court ruled that CDCR not only may enforce rules that mention a prisoner’s “stepfather” but the agency also gets to define what the word means.

Nathaniel Gann is a prisoner in California’s Valley State Prison. He and his sister were sentenced for the 2007 murder of Timothy McNeil, a man married to Gann’s biological mother. Though McNeil adopted Gann’s sister, Gann had run away from home and become a ward of the state before McNeil married his mother, who died one year before her husband was killed.

After Gann went to prison for the murder, the state legislature passed a bill allowing prisoners to make overnight visits with family. So he applied for one with his wife on July 7, 2016. But CDCR denied the application, stating that Gann did not qualify because the law excludes prisoners convicted of the murder of an “immediate family member,” which CDCR said McNeil was because he fit its definition of “step-parent.”

Underlying the issue is California Code of Regulations (C.C.R.), Title 15 § 3177, which permits state prisoners overnight family visits subject to certain caveats, including this one: “Family visits shall not be permitted for inmates convicted of a violent offense where the victim is a … family member.” The law then points to another law, C.C.R. Title 15 § 3000, which defines “Immediate Family Members” to include “step-parents.”

Since the prisoner was not otherwise barred, he appealed through proper channels at CDCR, but to no avail. He then filed a pro se mandamus action in state Superior Court, arguing that McNeil could not have been his “step-parent” because California Family Code § 3101 defines that as “a person who is a party to the marriage … with respect to a minor child of the other party.” As Gann explained, he was never a minor under McNeil’s custody and his mother’s 2006 death had dissolved her marriage to McNeil a year before his 2007 murder.

On appeal, where Gann continued to proceed pro se, the Court ruled that CDCR is a quasi-legislative agency capable of promulgating its own rules and regulations. Several subsections of CDCR’s administrative codes expressly adopt statutory definitions from the state’s Penal Code or other statutory agencies, the Court noted. But not for the word stepfather.

However, the Court said, definitions for the term outside of § 3101 vary to include some that make McNeil a stepfather to Gann simply by marriage to Gann’s mother. Therefore, the Court concluded, CDCR was within its jurisdictional authority to say McNeil qualified as an immediate family member, excluding Gann from eligibility for overnight visitation. Thus, the lower court’s decision was affirmed and Gann’s motion for mandamus was denied. See: Gann v. Acosta, 76 Cal. App. 5th 347 (2022). 

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Related legal case

Gann v. Acosta