Upshaw v. Superior Court of Alameda Cnty.

231 Cal. Rptr. 3d 505, 22 Cal. App. 5th 489
CourtCalifornia Court of Appeal, 5th District
DecidedApril 18, 2018
DocketA152141
StatusPublished
Cited by21 cases

This text of 231 Cal. Rptr. 3d 505 (Upshaw v. Superior Court of Alameda Cnty.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Upshaw v. Superior Court of Alameda Cnty., 231 Cal. Rptr. 3d 505, 22 Cal. App. 5th 489 (Cal. Ct. App. 2018).

Opinion

Jones, P.J.

*494Petitioner Tikisha Marie Upshaw is incarcerated at Santa Rita Jail (SRJ) in Alameda County, awaiting trial for, among other things, special circumstance murder. By petition of writ of mandate, Upshaw challenges a trial court order denying her motion for a transfer from SRJ to a jail in a contiguous county. We deny the petition. In this case of first impression, we conclude Penal Code section 4007 authorizes a trial court to transfer a prisoner in a county *507jail to another jail in a contiguous county upon a sufficient evidentiary showing the current jail is unsafe for confinement, but that Upshaw is not entitled to writ relief because she failed to exhaust administrative remedies before filing the motion for transfer.1

FACTUAL AND PROCEDURAL BACKGROUND

The prosecution charged Upshaw with special circumstance murder (§§ 187, subd. (a), 190.2, subd. (a)(1) ) and other crimes. The prosecution charged one of Upshaw's co-defendants, Chariott Louise Burks, with first degree murder (§ 187, subd. (a) ) and shooting at an occupied motor vehicle (§ 246). In July 2016, Burks was arrested and booked into custody at SRJ. Approximately five months later, Upshaw was arrested and booked into custody at SRJ. When Upshaw was arrested, SRJ was the only county detention facility in Alameda County for female inmates.2 Upshaw and Burks are housed in Housing Unit 21 (unit 21), which consists of multiple pods of inmate cells. Upshaw and Burks must be housed in unit 21 because of their gender and "maximum security" classification. There is a "keep separate order" for Burks and Upshaw.

Upshaw's Transfer Motion

In February 2017, Upshaw moved for transfer to a jail in a contiguous county pursuant to sections 4004, 4007, and 4029. Upshaw argued there was good cause for the transfer because: (1) SRJ could not offer her access to rehabilitative programs provided to similarly situated male inmates; (2) her personal safety was at risk; and (3) SRJ could not provide her with adequate access to counsel. In a supporting declaration, Upshaw's attorney, Brian Ford, averred the keep separate order precluded Upshaw from participating in work and rehabilitative programs. Ford stated that in early February 2017, he told a sheriff's deputy about Upshaw's "inability to participate in work or rehabilitative programs due to Burks being housed in the same pod" and the deputy *495agreed to "look into options of changing Upshaw's housing in order to get her access to programs." Around that same time, Upshaw told co-counsel "she had requested a housing reclassification" to enable her to participate in rehabilitative programs.

Ford also stated that in mid-February, he attempted, unsuccessfully, to follow up on these programmatic concerns with the sheriff's deputy; he also contacted "inmate services" and "classifications" at SRJ regarding the housing request.3 According to Ford, "[t]he failure of a person at [SRJ] to answer the phone has been a constant frustration to counsel attempting to find a resolution to Upshaw's housing crisis." Ford also chronicled his efforts to "interview and provide counsel to Upshaw." For example, in early January 2017, Ford "began making efforts" to visit Upshaw, but because of "onerous" security measures and insufficient visitation "time slots," he could not visit Upshaw until February 6, 2017. According to Ford, "[s]uch delays are unusual ... in other county jails."

Next, Ford's declaration described three incidents he claimed caused Upshaw to *508"fear[ ] for her safety." During a February 6, 2017 visit with Ford's co-counsel, Upshaw "reported receiving significant animosity from other inmates" after she requested a housing reclassification. During a February 15, 2017 visit, Upshaw told Ford about "two separate incidents where the threatening actions of other inmates ... caused [her] to fear for her personal safety. Both incidents involved different inmates," who "acted with continuous animus or hostility towards Upshaw. In the first incident, the other inmate confronted Upshaw in a loud, threatening, and unprovoked manner in the dining hall. Specifically, the other inmate raised from her seat upon seeing Upshaw and yelled, 'I'm gonna pull your ho card!' ... In the second incident, the other inmate yelled at Upshaw and attempted to assault her while they were watching TV in the common area of Upshaw's pod. This attack was also unprovoked. Thus, Upshaw's safety has been imperiled both in the common area" of unit 21 and in "her own pod."

The prosecutor did not oppose Upshaw's transfer motion, and "submit[ted] to the Court's discretion." At an April 3, 2017 hearing, the court granted the transfer motion, and ordered Upshaw transferred from SRJ to San Francisco County Jail.

Sheriff's Reconsideration Motion

The Sheriff moved for reconsideration, arguing it did not have notice of the motion or an opportunity to be heard. The Sheriff urged the court to deny *496Upshaw's motion to transfer. According to the Sheriff, section 4004 allows a prisoner to attend activities outside a detention facility, but does not authorize the transfer of a prisoner between detention facilities. Next, the Sheriff argued section 4007 did not authorize Upshaw's transfer absent a finding SRJ "is 'unfit or unsafe for the confinement of prisoners,' " and Upshaw had proffered no evidence SRJ is unfit or unsafe for prisoners. Third, the Sheriff claimed section 4029, which concerns equal treatment of prisoners of each sex in county detention facilities, did not authorize a transfer.

Next, the Sheriff argued that even if the court had authority to transfer Upshaw, she had not demonstrated good cause. As the Sheriff explained, a transfer order is granted only in "exceptional" circumstances and Upshaw's allegations-unsupported by competent evidence-did not provide good cause for "exceptional relief." The Sheriff claimed Upshaw's contention regarding her personal safety did "not provide good cause for taking the rare and exceptional step of ordering her transfer" because there was no evidence the interactions actually occurred, and because Upshaw had never notified SRJ of the "alleged threats, despite being aware of the procedures for doing so." Finally, the Sheriff disputed Upshaw's claim that she was denied access to rehabilitative programs and to counsel.

In a supporting declaration, SRJ's Detention and Corrections Administration Captain, Tara Russell, described unit 21 and the rehabilitative programs offered to SRJ inmates. According to Russell: (1) there are no special restrictions on Upshaw's movement at SRJ, and she and Burks have "equal access to recreation, dining, showers and phones. SRJ staff only ensures that Upshaw and Burks do not have any contact with each other"; (2) male and female inmates at SRJ have access to facilities, programs, and services of equal quality; (3) Burks has not received priority enrollment over Upshaw for SRJ courses; and (4) Upshaw declined to request enrollment in a program for anger management and substance abuse; and she was ineligible for the secondary education program and work crew.

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Cite This Page — Counsel Stack

Bluebook (online)
231 Cal. Rptr. 3d 505, 22 Cal. App. 5th 489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/upshaw-v-superior-court-of-alameda-cnty-calctapp5d-2018.