In re Oliveras

323 Cal.Rptr.3d 303

IN RE Jose OLIVERAS on Habeas Corpus

A168677

Court of Appeal, First District, Division 3.

Filed July 15, 2024

As Modified on Denial of Rehearing August 2, 2024

Trial Court: Del Norte County Superior Court, Trial Judge: Hon. Robert Cochran, (Del Norte County Super. Ct. No. HCPB235049)

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.

Petrou, J.

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, 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 con- trol 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 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 ‘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.

[1–3] "A case is moot when the reviewing court cannot provide the parties with practical, effectual relief." (City of San Jose v. Informational Assn. of Firefighters, Local 230 (2009) 178 Cal.App.4th 408, 417, 100 Cal.Rptr.3d 396.) 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, 202 Cal.Rptr.3d 629.) 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, 49 Cal.Rptr.3d 825.)

[4–9] However, mootness may be considered alongside the purposes of habeas corpus and the courts’ concomitant "broad remedial powers" to afford relief. (See People v. Aragon (1992) 11 Cal.App.4th 749, 760, 14 Cal.Rptr.2d 561.) The court may dispose of a habeas corpus petition in the manner justice requires, with the flexibility to correct miscamages of justice. (In re Brindle (1979) 91 Cal.App.3d 660, 669– 670, 154 Cal.Rptr. 563.) " ‘ "The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscamages 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, 172 Cal.Rptr. 417.)

[10] 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 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, 284 Cal.Rptr.3d 667 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, 284 Cal.Rptr.3d 667.) 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, 284 Cal.Rptr.3d 667.) "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, 284 Cal.Rptr.3d 667.) As in Marti, the classification of Oliveras’s...