In re Oliveras

Filed 7/15/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re JOSE OLIVERAS on Habeas A168677

Corpus

(Del Norte County Super. Ct.

No. HCPB235049)

Petitioner Jose Oliveras challenged a disciplinary sanction revoking his

computer access and rendering him ineligible for computer-access-required

work assignments or programming because of being found with contraband

pornographic images on a tablet device.

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 Penal Code section 502. 1 In response,

the Secretary asserts the petition is moot because Oliveras’s computer

clearance was reauthorized. We disagree and order the Secretary to vacate

any reference to a section 502 and/or “computer fraud and abuse” violation

from Oliveras’s record.

BACKGROUND

Oliveras is currently serving a life sentence without the possibility of

parole following his 2012 conviction for kidnapping, first degree murder,

1 All undesignated statutory references are to the Penal Code.

kidnapping for ransom, conspiracy to commit a crime, and various gang and

weapons enhancements.

Certain prisoners, including Oliveras, are provided with electronic

tablets to allow them to access certain services and communicate with family.

During an inspection of a tablet assigned to Oliveras for his use, an

investigative services unit officer discovered over 600 pornographic images.

The images were stored on a removable SIM (Subscriber Identity Module)

card. 2 In response, Oliveras was charged with a violation of California Code

of Regulations (CCR), title 15, section 3006(c) for “possession of contraband,”

i.e., obscene material. That section provides, “Except as authorized by the

institution head, inmates shall not possess or have under their control any

matter which contains or concerns any of the following . . . Obscene material

. . . .” (Cal. Code Regs., tit. 15, § 3006, subd. (c) (CCR section 3006(c)).) The

tablet was forwarded to the Correctional Intelligence Task Force for an

additional investigation into possible illicit activity, but no additional

violations were noted or charged.

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

2 We refer to the device as a “SIM card” because that is the terminology

used in the record. However, the description of the device—an external

storage card that was inserted into the tablet—appears to describe a device

more analogous to a SD (Secure Digital) card. The record is silent as to

(1) how the images came to be stored on the SIM card, and (2) whether

Oliveras used the tablet to access the images.

2

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 possession of contraband did not constitute “ ‘computer

fraud or abuse’ ” as defined in the Penal Code. He noted he had recently been

accepted in the “the next cycle of the prestigious Last Mile computer coding

program,” in which he could now no longer participate. The CDCR denied

both his grievance and his subsequent appeal.

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

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‘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 relief.

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(See People v. Aragon (1992) 11 Cal.App.4th 749, 760.) The court may

dispose of a habeas corpus petition in the manner justice requires, with the

flexibility to correct miscarriages of justice. (In re Brindle (1979) 91

Cal.App.3d 660, 669–670.) “ ‘ “The very nature of the writ demands that it be

administered with the initiative and flexibility essential to insure that

miscarriages of justice within its reach are surfaced and corrected.”

[Citation.] Extraordinary relief by mandamus or habeas corpus has been

utilized to correct prior conditions or to declare the rights of unnamed and

future petitioners by decisions designed to affect the prospective

administration of the criminal justice system. [Citations.] “Where questions

of general public concern are involved, particularly in the area of the

supervision of the administration of criminal justice (the court) may reject

mootness as a bar to the decision on the merits.” [Citation.] Although the

petitioner may have received the relief prayed for, the court nevertheless may

decide a question arising from a recurring problem important to insure the

basic rights of prisoners. [Citation.] Habeas corpus is an appropriate

procedure to be used by petitioners “to obtain a declaration of rights in the

prevailing circumstances.” ’ ” (In re Carr (1981) 116 Cal.App.3d 962, 964, fn.

1.)

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: CCR, title 15, sections 3040, subdivision (h) (CCR section

3040(h)), and 3041.3, subdivision (j) (CCR section 3041.3(j)), and imposed

additional punishment by way of rescinding Oliveras’s computer clearance.

Although his computer clearance was recently restored, the Secretary

acknowledges inmates may be subject to computer restrictions “if the inmate

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has a history of computer fraud or abuse, including a documented

institutional disciplinary action involving computer fraud or abuse.” Nothing

in the record indicates the CDCR will not continue to consider his

administrative violation of CCR section 3006(c) (possession of contraband) as

a violation of CCR sections 3040(h) and 3041.3(j) (computer fraud and abuse).

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

administrative rules violation.” (Id. at p. 567.) As in Marti, the classification

of Oliveras’s administrative violation as “computer fraud or abuse” remains

in his file and may be considered in future committee classification review

hearings.

Accordingly, we will address the petition on the merits. 3

3 The Attorney General’s return argued mootness but failed to address

the merits of the petition. Generally, a return is supposed to frame the issues

that are to be decided by the court. (People v. Duvall (1995) 9 Cal.4th 464,

476–477 [“The requirement that the return allege facts responsive to the

petition is critical, for the factual allegations in the return are either

admitted or disputed in the traverse and this interplay frames the factual

issues that the court must decide.”].) We need not address whether the

Attorney General has forfeited its argument on the merits. It is undisputed

that Oliveras pled guilty to the administrative charge of possessing

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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

Section 1094.5 of the Code of Civil Procedure governs judicial review by

administrative mandate of any final decision or order rendered by an

administrative agency. “Interpretation of a statute or regulation is a

question of law subject to independent review.” (Christensen v. Lightbourne

(2017) 15 Cal.App.5th 1239, 1251 (Christensen); United Artists Theatre

Circuit, Inc. v Cal. Regional Water Quality Control Bd. (2019) 42 Cal.App.5th

851, 865 (United Artists) [“ ‘where, as here, the determinative question is one

of statutory or regulatory interpretation, an issue of law, we may exercise our

independent judgment.’ ”].)

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

that language in isolation, but in the context of the statutory framework as a

whole in order to determine its scope and purpose and to harmonize the

various parts of the enactment. If the language is clear, courts must

generally follow its plain meaning unless a literal interpretation would result

in absurd consequences the Legislature did not intend. If the statutory

contraband, and we may decide, as a matter of statutory interpretation,

whether the record supporting that charge establishes a violation of section

502. (See Part II, post.)

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language permits more than one reasonable interpretation, courts may

consider other aids, such as the statute’s purpose, legislative history, and

public policy.’ [Citations.] ‘ “[T]he objective sought to be achieved by a

statute as well as the evil to be prevented is of prime consideration in . . .

interpretation, and where a word of common usage has more than one

meaning, the one which will best attain the purposes of the statute should be

adopted . . . .” ’ ” (United Artists, supra, 42 Cal.App.5th at p. 866.)

“ ‘[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

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disciplinary action involving computer fraud or abuse, shall not be placed in

any work assignment that provides access to a computer.” (CCR § 3040(h);

see also CCR § 3041.3(j) [“Inmates who have a record of computer fraud or

abuse shall not be placed in any work assignment which 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

pursuant to section 502. The Attorney General contends CDCR Department

Operations Manual section 49020.18.1 “provides guidance to employees to

decide when an inmate commits computer abuse.” That section states

“[i]nmates who have a history of computer fraud or abuse, as defined by Penal

Code section 502, shall not be placed in any assignment that provides access

to a computer.” (Italics added.) The agency’s interpretation of the phrase

“computer fraud or abuse” in CCR sections 3040 and 3041.3 pursuant to

Operations Manual section 49020.18.1—i.e., as defined by Penal Code section

502—is not “ ‘clearly erroneous or unauthorized under the statute.’ ” (See

Christensen, supra, 15 Cal.App.5th at p. 1252.) As such, we defer to the

agency’s interpretation and consider whether Oliveras’s conduct and/or

disciplinary action constituted “computer fraud or abuse” as defined by

section 502.

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.

...

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(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.”

(§ 502, subds. (c)(1), (3)–(4), (6)–(7).)

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.” (§ 502, subds. (c)(6), (7).) The record reflects Oliveras was

assigned the tablet at issue for his personal use, and he thus had permission

to access the tablet and use the tablet functions contained thereon.

Likewise, the plain language of subdivision (c)(3) does not encompass

Oliveras’s conduct. That subdivision criminalizes use of “computer services” 4

without permission. (§ 502, subd. (c)(3).) Based on the record before this

court, there is no evidence that Oliveras used any “computer services” on his

tablet—such as internet access or email—to obtain the pornography or share

the images with any third parties. Nor does the record indicate Oliveras

transferred or stored any of the images directly onto his tablet from the SIM

4 Section 502, subdivision (b)(4) defines “ ‘computer services’ ” as

“includ[ing], but is not limited to, computer time, data processing, or storage

functions, internet services, electronic mail services, electronic message

services, or other uses of a computer, computer system, or computer

network.”

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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.” (§ 502, subd. (c)(1).) As noted in

connection with subdivision (c)(3), the record is silent as to whether Oliveras

used any function on his tablet to obtain the pornography or, once obtained,

used the pornography for any purpose. More importantly, nothing in the

record indicates the pornography discovered on Oliveras’s tablet was used or

connected to any illegitimate purpose, such as fraud or extortion.

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 terms.” (Assem. Pub. Safety Com., 3d reading

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analysis of Sen. Bill No. 225 (1987-1988 Reg. Sess.) as amended Sept. 8, 1987,

p. 2.) The “legislative intent” behind the bill was “the need to expand the

provisions of law relating to computer crime.” (Id., p. 1.) And specific

discussions regarding subdivision (c)(1) indicate the Legislature’s concern

with “wrongful control” related to instances arising from “false pretenses.”

(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 255 (1987-1988 Reg. Sess.)

Feb. 27, 1987, p. 2; 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)(1) as establishing criminal penalties for “using a

computer to defraud or steal.”].) Oliveras’s conduct does not fall within the

scope of conduct the Legislature sought to address.

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

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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.

Finally, subdivision (c)(4) criminalizes “add[ing], alter[ing], damag[ing],

delet[ing], or destroy[ing] any data, computer software, or computer

programs” without permission. (§ 502, subd. (c)(4).) Here, the question is

whether placing a SIM card containing pornography into his tablet could

qualify as “add[ing] . . . data” to his tablet “without permission.”

Section 502 broadly defines “data” as “a representation of information,

knowledge, facts, concepts, computer software, or computer programs or

instructions.” (§ 502, subd. (b)(8).) While pornography arguably falls within

this definition, a SIM card—by itself—does not. A SIM card or memory card

is external hardware, not “software.” (Cf In re Robinson (2017) 19

Cal.App.5th 247, 254 [distinguishing between the external storage

devices/memory cards and the software contained thereon].) Thus, the

question is not whether Oliveras placed a SIM card into his tablet—which the

record indicates he did—but whether he impermissibly added data from that

SIM card onto his tablet.

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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.” (§ 502, subds. (h)(2), (i).)

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.

Oliveras’s conduct is more akin to an employee’s improper but non-injurious

use of an employer’s computer, which the Legislature expressly excluded

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from liability under section 502. (Accord Van Buren, supra, 593 U.S. at

p. 396 [officer “did not ‘excee[d] authorized access’ ” under the CFAA, “even

though he obtained information from the database for an improper

purpose.”].)

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.

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_________________________

Petrou, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Fujisaki, J.

A168677/In re Oliveras

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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.

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