Opinion
NOT TO BE PUBLISHED
PETITION for writ of habeas corpus. Peter Paul Espinoza, Judge, No. BH005141
Marilee Marshall, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and Ryan K. Schneider, Deputy Attorneys General, for Respondent.
KITCHING, J.
Petitioner Edwin Leland Fugel III seeks a writ of habeas corpus requiring the Board of Parole Hearings (BPH) to find him suitable for parole. Although we issued an order to show cause, subsequent events have made Fugel’s petition moot. Accordingly, we dismiss the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In 1982, Fugel was convicted by a jury of first degree murder and robbery after he stabbed, strangled, and bludgeoned his grandfather’s 78-year-old former girlfriend. Fugel was sentenced to a term of 25 years to life, plus one year, in prison. He was received at the California Department of Corrections in May 1982, and has remained incarcerated since that time. His minimum parole eligibility date was December 13, 1996. In August 2007, the BPH found Fugel unsuitable for parole, based on the gravity of the commitment offense, his lack of insight into the crime and its effect on the community, and his unstable social history. At the time of the August 2007 hearing, Fugel was 48 years old and had been incarcerated for over 25 years.
Fugel challenged the BPH’s 2007 decision by way of a petition for a writ of habeas corpus in the superior court, which was denied. He then petitioned this court for relief, urging that the BPH’s decision was not supported by “some evidence” that he poses a current threat to public safety. (See In re Lawrence (2008) 44 Cal.4th 1181; In re Shaputis (2008) 44 Cal.4th 1241.) We issued an order to show cause and ordered counsel appointed for petitioner.
Meanwhile, a regularly scheduled parole hearing was conducted on August 13, 2009. At that hearing, the BPH found Fugel suitable for parole. In January 2010, Governor Schwarzenegger reversed the BPH’s August 2009 suitability finding.
DISCUSSION
Respondent John F. Salazar, warden of the prison where Fugel is incarcerated, argues in a supplemental return that Fugel’s petition is moot as a result of the BPH’s August 2009 finding he is suitable for parole. We agree. “Appellate courts decide only actual controversies. Consistent therewith, it has been said that an action, originally based upon a justiciable controversy, cannot be maintained on appeal if the questions raised therein have become moot by subsequent events.” (Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1290, fn. 5; Giles v. Horn (2002) 100 Cal.App.4th 206, 226-227; In re Christina A. (2001) 91 Cal.App.4th 1153, 1158.) “A case is moot when the decision of the reviewing court ‘can have no practical impact or provide the parties effectual relief. [Citation.]’ ” (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214; see also In re J.G. (2008) 159 Cal.App.4th 1056, 1062.) In a criminal case, the mootness doctrine may not apply where the defendant will suffer collateral legal consequences on the basis of the challenged decision. (See, e.g., People v. Ellison (2003) 111 Cal.App.4th 1360, 1368-1369; People v. Lindsey (1971) 20 Cal.App.3d 742, 744 [the fact a defendant has completed his or her term of imprisonment does not moot the defendant’s appeal, because the defendant is entitled to appeal the conviction for the sake of clearing his or her name].)
Here, in light of the BPH’s August 2009 suitability finding, Fugel’s habeas petition challenging the BPH’s 2007 unsuitability finding has become moot. Any decision this court could render on the issue would have no practical impact, nor could it provide Fugel with effective relief. Were we to conclude the BPH’s 2007 unsuitability finding was not supported by some evidence, the remedy would be to vacate the BPH’s 2007 decision, and order the BPH to conduct a new suitability hearing and find Fugel suitable for parole absent new evidence of his conduct, circumstances, or a change in his mental state. (See In re Rico (2009) 171 Cal.App.4th 659, 689.) Due to the BPH’s 2009 suitability finding, Fugel has already received the relief he seeks. A ruling in Fugel’s favor could do no more than compel the BPH to do what it has already done. (See MHC Operating Limited Partnership v. City of San Jose, supra, 106 Cal.App.4th at p. 214.) Nor are there any collateral consequences for Fugel that might be remedied by a favorable ruling on his petition. In short, a favorable decision on Fugel’s writ petition by this court could provide him with no more relief than he has already by virtue of the BPH’s August 2009 suitability finding. Similarly, were we to deny the writ petition, our ruling would have no impact on either the regularly scheduled 2009 hearing, which has already transpired, or on the Governor’s reversal of the BPH’s 2009 suitability finding. Although the BPH’s 2009 suitability finding has now been reversed by the Governor, the Governor’s decision is not properly before this court and cannot be addressed at this juncture.
We observe that the California Supreme Court has granted review in two cases to determine the proper remedy when an appellate court determines the BPH’s unsuitability finding is not supported by some evidence. (See In re Prather, review granted Jul. 29, 2009, S172903; In re Molina, review granted Jul. 29, 2009, S173260.)
Fugel argues, in his supplemental letter brief, that we may review the petition despite the subsequent suitability finding, because the issue presented is one capable of repetition, yet evading review. Further, he posits that the petition presents a controversy of substantial and continuing public interest. Fugel is correct that exceptions to the mootness doctrine exist where the question to be decided is of continuing public importance or is capable of repetition, yet evades review. “ ‘[I]if a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot.’ [Citations.]” (In re Christina A., supra, 91 Cal.App.4th at p. 1158; see, e.g., Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1240, fn. 1; In re Lemanuel C. (2007) 41 Cal.4th 33, 38, fn. 4; In re J.G., supra, 159 Cal.App.4th at p. 1062.)
Fugel’s petition meets neither of these criteria, however. The question of whether the BPH’s decision was supported by some evidence “is a particularly factual determination that must be resolved on a case-by-case basis, dependent upon the specific facts of a given situation,” and “is not one on which we would exercise our discretion to address on the merits, despite the fact that it is moot.” (Giles v. Horn, supra, 100 Cal.App.4th at p. 228.) The key issue here -- whether Fugel lacked insight into the crime and had an unstable social history, and whether those facts, combined with the gravity of the commitment offense, constituted some evidence that he remains a danger to the community -- is a fact-specific inquiry that does not present an issue of broad public interest.
Nor, at this particular juncture, is it likely that the questions presented by the petition will be capable of repetition, yet will evade review. As noted, the key issue raised by Fugel’s petition is whether, as of the 2007 parole hearing, Fugel lacked insight into the crime, and whether that lack, coupled with the circumstances of the crime and the other relevant factors, made him a continuing danger to society. An inmate’s insight, or lack thereof, may change over time. Indeed, such was the case here, as the BPH found Fugel lacked insight at the 2007 parole hearing but demonstrated sufficient insight in relevant areas at the 2009 hearing. Given that the BPH has now found in favor of Fugel on this point, it is unlikely this particular question will be relitigated. Fugel is indeed entitled to judicial review of the Governor’s decision reversing the 2009 suitability finding, should he seek it, but the question of whether he had sufficient insight in 2007 is not likely to be germane to that inquiry. Therefore, as applied to the particular facts of this matter, at this point in time, there is not a reasonable expectation that the same controversy will reoccur. Certainly, if Fugel’s petition presented a factual question likely to arise again, our mootness analysis would be different.
Fugel also contends that in light of the Governor’s reversal of the 2009 suitability finding, the issue of the 2007 denial is no longer moot because he will either have to wait for another hearing before the BPH, or file a petition seeking review of the Governor’s decision. He argues that “this perpetual cycle must end.” However, we do not agree that Fugel necessarily will be caught in a “perpetual cycle.” The BPH has found Fugel suitable for parole, which is precisely the relief he sought to achieve via his writ of habeas corpus. With respect to parole decisions for prisoners like Fugel, who have been sentenced to indeterminate terms for murder, under the California Constitution “the Governor possesses ultimate authority to affirm, modify, or reverse the decisions” and conducts a de novo review of the inmate’s parole suitability. (Cal. Const., art. V, § 8; In re Tokhmanian (2008) 168 Cal.App.4th 1270, 1272-1273; In re Masoner (2009) 172 Cal.App.4th 1098, 1109-1110.) Thus, even if we were to conclude that the BPH’s 2007 decision was unsupported by some evidence, the matter would still be subject to the Governor’s review.
DISPOSITION
The petition for a writ of habeas corpus is dismissed as moot.
We concur: KLEIN, P. J.CROSKEY, J.