In re JOSE OLIVERAS on Habeas Corpus
A168677 (Del Norte County Super. Ct. No. HCPB235049)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Filed 7/15/24
CERTIFIED FOR PUBLICATION
We issued an order to show cause to the Secretary of the Department of Corrections and Rehabilitation (Secretary), requesting in part they address whether Oliveras‘s conduct violated
BACKGROUND
Oliveras is currently serving a life sentence without the possibility of parole following his 2012 conviction for kidnapping, first degree murder, kidnapping for ransom, conspiracy to commit a crime, and various gang and weapons enhancements.
Oliveras pled guilty to the administrative violation charge and received counseling for misconduct “without reprimand.” The hearing officer did not make any findings regarding whether Oliver was “a program failure” and did not issue a referral to a classification committee for program review.
Approximately eight months later, in October 2022 at Oliveras‘s annual classification review hearing, a Unit Classification Committee rescinded Oliveras‘s computer clearance “due to disciplinary [sic].” The only disciplinary behavior identified in the review was Oliveras‘s administrative violation for possession of contraband. In its discussion of computer clearance, the committee “noted” the circumstances of the violation and stated, “CCR, Title 15, Sections 3040(h) and 3041.3(j) state that inmates who have a history of computer fraud or abuse, including documented institutional disciplinary action involving computer fraud or abuse, shall not be placed in any work assignment that provides access to a computer, or rehabilitative program which provides access to the internet. Because an electronic tablet is essentially a hand-held computer and performs many of the same tasks as a desktop or laptop computer, [the committee] finds it appropriate to rescind [Oliveras‘s] computer clearance and remove him from any wait lists for programs or job assignments that would allow him computer access.”
Oliveras subsequently filed a grievance with the Department of Corrections and Rehabilitation (CDCR). He asserted the tablet in his possession did not provide any meaningful laptop or desktop functions and his rule violation for
Oliveras filed a petition challenging this reclassification with the superior court. The court noted the hearing officer‘s decision “will be upheld as long as there is ‘some basis in fact’ for the decision.” The court then denied the petition, explaining “[t]he hearing officer‘s findings that denial of access to computers or work assignments is an appropriate sanction is supported by ‘some evidence’ in the record.” The court did not identify what evidence it was referencing.
In September 2023, Oliveras filed the pending petition. In October 2023, while his petition was pending, prison officials conducted Oliveras‘s annual classification committee review hearing and reauthorized his computer clearance. In January 2024, this court issued an order to show cause, requesting in part the Secretary address (1) whether Oliveras introduced pornography onto his tablet “without permission” as defined under section 502, and (2) whether Oliveras‘s conduct violated section 502.
DISCUSSION
I. Mootness
The Attorney General argues the matter is moot because the classification committee has since reauthorized Oliveras for computer clearance.
“A case is moot when the reviewing court cannot provide the parties with practical, effectual relief.” (City of San Jose v. International Assn. of Firefighters, Local 230 (2009) 178 Cal.App.4th 408, 417.) Likewise, “[t]he voluntary cessation of allegedly wrongful conduct destroys the justiciability of a controversy and renders an action moot unless there is a reasonable expectation the allegedly wrongful conduct will be repeated.” (Ctr. for Loc. Gov‘t Accountability v. City of San Diego (2016) 247 Cal.App.4th 1146, 1157.) The underlying policy behind the mootness doctrine is that courts decide justiciable controversies and do not normally render merely advisory opinions. (Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178–1179.)
However, mootness may be considered alongside the purposes of habeas corpus and the courts’ concomitant “broad remedial powers” to afford
Here, Oliveras pled guilty to a specific rule violation—possession of contraband. At a subsequent classification committee review hearing, the committee considered that violation as a violation of two different regulations:
In re Marti (2021) 69 Cal.App.5th 561 is instructive. In that matter, an inmate challenged a decision finding him guilty of a prison disciplinary violation for possession of excess property. (Id. at p. 563.) While the CDCR asserted the issue was moot because the inmate had already “suffered the punitive consequences of the decision” and any future harm was speculative, the court disagreed as “the adjudication remains in [the inmate‘s] file and may be considered in the future, for example for purposes of classifying another violation as serious or administrative.” (Id. at pp. 563, 567.) “Whatever the full scope of prison decisions that may be affected by adjudication of an administrative rules violation, it is clear this court can afford petitioner meaningful relief by vacating . . . [the] adjudication of the
Accordingly, we will address the petition on the merits.3
II. Oliveras‘s Rule Violation
Although Oliveras was charged with, and pled guilty to, possession of contraband, the Classification Committee subsequently concluded Oliveras‘s violation constituted computer abuse and prohibited him from work assignments with computer or internet access.
A. Standard of Review
The principles of statutory interpretation are well-established. ” ‘Our fundamental task in interpretating a statute is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine
” ’ [W]here the meaning and legal effect of a statute is the issue, an agency‘s interpretation is one among several tools available to the court. Depending on the context, it may be helpful, enlightening, even convincing. It may sometimes be of little worth. [Citation.] Considered alone and apart from the context and circumstances that produce them, agency interpretation is not binding or necessarily even authoritative . . . . “The standard for judicial review of agency interpretation of law is the independent judgment of the court, giving deference to the determination of the agency appropriate to the circumstances of the agency action.” ’ [Citation.] ‘Unlike quasi-legislative rules, an agency‘s interpretation does not implicate the exercise of a delegated lawmaking power; instead, it represents the agency‘s view of the statute‘s legal meaning and effect, questions lying within the constitutional domain of the courts. But because the agency will often be interpreting a statute within its administrative jurisdiction, it may possess special familiarity with satellite legal and regulatory issues. It is the “expertise,” expressed as an interpretation . . . , that is the source of the presumptive value of the agency‘s views.’ ” (Ibid.)
B. Analysis
The California Code of Regulations provides “Inmates who have a history of computer fraud or abuse, including documented institutional disciplinary action involving computer fraud or abuse, shall not be placed in any work assignment that provides access to a computer.” (
While neither CCR sections 3040 nor 3041.3 define “computer fraud or abuse,” the Attorney General does not dispute it should be interpreted
In briefing before this court, the Attorney General asserts Oliveras‘s conduct constituted computer abuse under subdivisions (c)(1), (3)–(4), and (6)–(7) of section 502. These provisions provide as follows:
“(1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.
. . .
(3) Knowingly and without permission uses or causes to be used computer services.
(4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.
. . .
(6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.
(7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.”
(
As an initial matter, the plain language of subdivisions (c)(6) and (7) do not apply to Oliveras‘s conduct. Those provisions require Oliveras to have accessed a computer, computer system, or computer network “without permission.” (
Likewise, the plain language of subdivision (c)(3) does not encompass Oliveras‘s conduct. That subdivision criminalizes use of “computer services”4 without permission. (
card. And though it may be that Oliveras could have used his tablet to view the images, nothing in the record actually indicates he did so. Under well-established appellate rules, we are “limited to consideration of the matters contained in the appellate record.” (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.)
For similar reasons, subdivision (c)(1) also does not apply here. That provision requires Oliveras to have “knowingly and without permission” used data or computers for the purpose of either “devis[ing] or execut[ing] any scheme or artifice to defraud, deceive, or extort” or “wrongfully control[ling] or obtain[ing] money, property, or data.” (
Conceivably, Oliveras exerted “control“—a term not defined by section 502—over the pornography by mere possession. But non-injurious possession, without more, exceeds any reasonable interpretation of the statute.
At the time the Legislature enacted Senate Bill No. 255 (S.B. 255), which repealed and rewrote section 502, the Legislature was focused on increased harm to businesses caused by computer crimes. An Assembly analysis of S.B. 255 highlighted concerns regarding the significant financial losses suffered by America‘s companies “attributable to computer crime,” and stated the bill “was developed by Los Angeles County‘s Computer Crime Task Force to provide for increased penalties for computer ‘hackers’ and to provide standardized definitions of
Van Buren v. United States (2021) 593 U.S. 374 (Van Buren) provides an instructive analogy. In Van Buren, a police officer was authorized to access a license plate database for law enforcement purposes. However, the officer ran a license plate search in the database in exchange for money. The government subsequently charged the officer with violating the Computer Fraud and Abuse Act of 1986 (CFAA). The CFAA “subjects to criminal liability anyone who ‘intentionally accesses a computer without authorization or exceeds authorized access,’ and thereby obtains computer information.” (Van Buren, at p. 379.) The parties disputed whether the phrase “exceeds authorized access” applied to improper use of authorized access or prohibited access. (Id. at pp. 382–383.) As relevant here, the Supreme Court noted the government‘s interpretation “would attach criminal penalties to a breathtaking amount of commonplace computer activity. . . . [¶] If the ‘exceeds authorized access’ clause criminalizes every violation of a computer-use policy, then millions of otherwise law-abiding citizens are criminals.” (Id. at p. 393.) The court thus concluded “an individual ‘exceeds authorized access’ when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him.” (Id. at p. 396.) Because the officer was entitled to access the license plate database, the court held he “did not ‘excee[d] authorized access’ ” under the CFAA, “even though he obtained information from the database for an improper purpose.” (Ibid.)
We find a similar interpretation appropriate here. Oliveras, like the officer in Van Buren, was authorized to access his tablet for personal use and, presumably, maintain personal data on the device. Even if Oliveras utilized that authorized access for an improper purpose—i.e., placing a SIM card containing pornographic images into his tablet—he did not engage in the type of conduct section 502 was designed to criminalize.
The statute does not define the term “add” and, therefore, the phrase “add[ed] . . . data” is ambiguous. In the case before us, this ambiguity is of no import as we conclude the legislative history overwhelmingly indicates the Legislature did not intend to criminalize an individual for merely viewing images contained on a SIM card inserted into his own personal electronic device.
As discussed above, S.B. 255 was focused on addressing computer crime. In discussing the specific expansion of crimes encompassed by S.B. 255, the Legislature summarized subdivision (c)(4)—the provision at issue here—as creating criminal liability for “accessing, altering, damaging, etc. data, software, programs or supporting documentation, in other words, vandalism.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 255 (1987-1988 Reg. Sess.) Feb. 27, 1987, p. 2 (italics added); see also Assem. Pub. Safety Com. Republican Caucus, analysis of Sen. Bill No. 255 (1987-1988 Reg. Sess.) as amended Jun. 23, 1987 [summarizes subdivision (c)(4) as establishing criminal penalties for “vandalizing computer software and systems.“].) The Legislature also expressly excluded from criminal liability an employee‘s use, knowingly and without permission, of an employer‘s computer outside an employee‘s scope of employment which does not result in an injury “to the employer or another.” (
Given the above legislative history, we cannot reasonably conclude the Legislature intended an individual‘s use of a personal computer to view images saved on a memory card to qualify as impermissibly “adding data” under subdivision (c)(4). Rather, the record expressly indicates the legislative focus was vandalism, e.g., adding malware to a computer.
In sum, considering the purpose of section 502 and its legislative history, we conclude the CDCR‘s finding that Oliveras‘s conduct constituted “computer fraud and abuse” is unpersuasive and we decline to adopt its interpretation. (See United Artists, supra, 42 Cal.App.5th at p. 866.) To the contrary, we conclude Oliveras‘s conduct did not constitute “computer fraud and abuse” under section 502, and improperly subjected him to discipline under CCR sections 3040 and 3041.3.
DISPOSITION
The October 2022 revocation of petitioner‘s computer clearance and removal from wait lists for programs or job assignments that would allow him computer access by the Unit Classification Committee is reversed and respondent is directed to remove any reference to this revocation from petitioner‘s file.
Petrou, J.
WE CONCUR:
Tucher, P.J.
Fujisaki, J.
A168677/In re Oliveras
Trial Court: Del Norte County Superior Court
Trial Judge: Hon. Robert Cochran
Counsel: Rob Bonta, Attorney General, Sara J. Romano, Senior Assistant Attorney General, Amanda J. Murray, Supervising Deputy Attorney General, and John P. Walter, Deputy Attorney General, for Respondent.
First District Appellate Project, Donald H. Specter, for Petitioner.