Misuse of tablets issued to CDCR inmates is not computer fraud or grounds to deny access to computers

In re JOSE OLIVERAS on Habeas Corpus (Cal. Ct. App., Aug. 2, 2024, No. A168677) 2024 WL 3633748

Summary:Oliveras challenged a disciplinary report revoking his computer access and making him ineligible for computer-access-required work assignments or programming because of being found with contraband pornographic images on a tablet device.

The Court issued an order to show cause to the Secretary of the Department of Corrections and Rehabilitation (Secretary), requesting they address whether Oliveras’s conduct violated Penal Code section 502.2 In response, the Secretary asserts the petition is moot because Oliveras’s computer clearance was reauthorized.  The Court disagreed and order the Secretary to vacate any reference to a section 502 and/or “computer fraud and abuse” violation from Oliveras’s record.

Facts: Oliveras, serving a life sentence was provided with electronic tablets to allow him 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. 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)).)

Oliveras pled guilty to the administrative violation charge and received counseling for misconduct “without reprimand.”

Approximately eight months later, at Oliveras’s annual classification review hearing, a Unit Classification Committee rescinded Oliveras’s computer clearance “due to disciplinary [sic].”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.”

Interpretation of CDCR Regulations

“ ‘Rules governing the interpretation of statutes also apply to interpretation of regulations. “In interpreting regulations, the court seeks to ascertain the intent of the agency issuing the regulation by giving effect to the usual meaning of the language used so as to effectuate the purpose of the law, and by avoiding an interpretation which renders any language mere surplusage. ”   Deference is given to the CDCR’s interpretation of the governing regulations in matters that fall within its expertise.” (In re Villa (2013) 214 Cal.App.4th 954, 964, citing In re Cabrera (2012) 55 Cal.4th 683, 688.) However, “ ‘[w]hen an administrative agency construes a statute in adopting a regulation or formulating a policy … “[the court] must … independently judge the text of the statute.” ’ ” (In re Lucas (2012) 53 Cal.4th 839, 849.)

California Code of Regulations and Computer Fraud

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.” (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”].)

CCR sections 3040 and 3041.3 do not 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.”  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.)

The plain language of subdivision (c)(3) does not encompass Oliveras’s conduct. That subdivision criminalizes use of “computer services” without permission. (§ 502, subd. (c)(3).) There was 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. No evidence showed that Oliveras transferred or stored any of the images directly onto his tablet from the SIM card. Although 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.)

In considering the purpose of section 502 and its legislative history, the Court concluded that the CDCR’s finding that Oliveras’s conduct constituted “computer fraud and abuse” is erroneous and 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 was reversed and respondent was directed to remove any reference to this revocation from petitioner’s file.

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