Modification: In re Oliveras

In re JOSE OLIVERAS on Habeas Corpus

No. A168677

(Del Norte County Super. Ct. No. HCPB235049)

California Court of Appeal

First Appellate District

Division Three

Filed August 2, 2024

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

Trial Court: Del Norte County Superior Court

Trial Judge: Hon. Robert F. Cochran

Counsel: Donald H. Specter for Petitioner Jose Oliveras.

Rob Bonta, Attorney General, Sara J. Romano, Assistant Attorney General, Amanda J. Murray and John P. Walter, Deputy Attorneys General, for Respondent the People.

BY THE COURT¹:

It is ordered that the opinion filed herein on July 15, 2024, be modified as follows:

1. On page 7, the entire second full paragraph beginning with "Section 1094.5 of the Code of Civil Procedure . . ." and ending ". . . an issue of law, we may exercise our independent judgment.' "].)" should be deleted and replaced with a new paragraph that reads:

" 'Rules governing the interpretation of statutes also apply to interpretation of regulations. [Citation.] "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. [Citation.]" [Citation.]' [Citation.] We accord deference 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.)

2. On page 8, last line of the first paragraph, which began on the prior page, replace "United Artists, supra, 42 Cal.App.5th at p. 866" with "United Artists Theatre Circuit, Inc. v Cal. Regional Water Quality Control Bd. (2019) 42 Cal.App.5th 851, 866."

3. On page 9, fourth sentence of the first full paragraph, replace "not " 'clearly erroneous or unauthorized under the statute.' " (See Christensen, supra, 15 Ca1.App.5th at p. 1252.)" with "within " ' "the presumed expertise of the agency." ' " (See In re Cabrera, supra, 55 Cal.4th at p. 687.)" creating a sentence and citation that reads:

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 within " ' "the presumed expertise of the agency." ' " (See In re Cabrera, supra, 55 Cal.4th at p. 687.)

There is no change in the judgment.

Respondent's petition for rehearing is denied.

Tucher, P. J.

^1. Tucher, P. J., Petrou, J., and Fujisaki, J. participated in the decision.