Opinion
A129614
09-14-2011
In re ROBERT McEUEN, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 05-100415-9)
After the Board of Parole Hearings (Board) found Robert McEuen unsuitable for parole at a 2009 hearing, he successfully petitioned the superior court for a writ of habeas corpus. The court ordered the Board to hold a new parole suitability hearing for McEuen. In this appeal, Gary Swarthout, the Acting Warden of California State Prison, Solano (appellant), challenges the superior court's order. Because the Board has already complied with the lower court's order and given McEuen a new parole suitability hearing, we shall dismiss the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
McEuen pleaded guilty to charges of first degree murder and attempted voluntary manslaughter arising from an incident that took place in September 1992. In May 1993, the court sentenced him to serve 25 years to life in prison, composed of a 25-year indeterminate term for the murder conviction plus a concurrent, three-year determinate term for the attempted manslaughter conviction.
McEuen's first parole suitability hearing was held on December 2, 2009. The Board denied parole for five years. McEuen challenged the denial of parole in a petition for a writ of habeas corpus filed in the Contra Costa County Superior Court. The superior court issued an order to show cause and appointed the public defender to represent McEuen. On August 16, 2010, the superior court granted McEuen's petition and ordered the Board to conduct a new parole suitability hearing within 30 days of the decision's finality "in accordance with due process."
Appellant filed a timely appeal from the superior court's order and sought a writ of supersedeas to stay the court's order pending appeal. This court granted a temporary stay of the court's order but ultimately denied supersedeas relief and dissolved the temporary stay.
The Board conducted a new parole suitability hearing on October 29, 2010. The Board's presiding commissioner expressly stated that the hearing was being held pursuant to the superior court's order and that the Board would "follow the direction and dictates of that order." At the conclusion of the hearing, the Board denied parole for three years.
On the court's own motion, we take judicial notice of this court's file in case number A132708, In re McEuen. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) We previously informed the parties of our intent to take judicial notice of the file in A132708 and afforded the parties an opportunity to comment on the matter.
McEuen filed a new habeas corpus petition in the Contra Costa Superior Court challenging the Board's October 2010 denial. In a lengthy order, the same judge who had previously granted habeas relief to McEuen denied the new petition, concluding that the findings made by the Board at the October 2010 parole suitability hearing were supported by the record before the Board. The court concluded: "In stark contrast to the findings made at the December 9, 2009 parole hearing, the findings made at the October 29, 2010 parole hearing are amply supported by the record." McEuen filed a petition for a writ of habeas corpus in this court on July 26, 2011, challenging the Board's three-year denial. This court summarily denied the petition.
Among other things, the court pointed out that the 2010 Board panel did not rely on " 'immutable conduct' of ancient vintage to assess current dangerousness" but instead focused on McEuen's current mental state. Both the Board and the court stressed McEuen's demeanor at the renewed parole suitability hearing, at which he was "visibly angered when asked relatively innocuous questions." (See In re Smith (2011) 196 Cal.App.4th 468, 480-481 [inmate's inability to stay composed at parole hearing, particularly when his crimes resulted from uncontrolled anger, supported decision denying parole].)
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DISCUSSION
In light of the fact McEuen has already received a new parole suitability hearing in compliance with the order from which this appeal is taken, we asked the parties to provide supplemental briefs addressing whether the appeal is moot, and, if so, whether there is any reason this court should not dismiss the appeal. The Attorney General, acting on behalf of appellant, takes the position that the appeal should be dismissed as moot. McEuen's counsel agrees the appeal is technically moot but nevertheless urges this court to decide the appeal in order to "declare the rights of the parties" for purposes of providing guidance to future Board panels that will consider whether McEuen is suitable for parole. For the reasons that follow, we decline to do so.
"An appeal should be dismissed as moot when the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief. [Citation.]" (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479.) There is no question that the appeal here is technically moot, as the parties concede. It is impossible for this court to grant appellant any effective relief because the Board has already complied with the challenged order.
Nevertheless, McEuen asks this court to exercise its discretion to entertain this moot appeal, arguing that the controversy between the parties is likely to recur as McEuen appears before the Board again in a little more than two years. He relies on In re Scott (2004) 119 Cal.App.4th 871, 877, fn. 1 (Scott), in which Division Two of this court exercised its discretion to decide a technically moot writ petition involving a denial of parole because the "same controversy between the parties [was] likely to recur."
The posture of this appeal is very different from that of the writ proceeding in Scott. In that case, there was no superior court order granting relief to the inmate. Rather, the matter was an original writ proceeding before the appellate court, and the inmate was the party seeking relief. (Scott, supra, 119 Cal.App.4th at p. 877.) Because the inmate in Scott had already been afforded his regularly scheduled subsequent parole consideration hearing by the time the writ proceeding was before the appellate court, the respondent warden argued that the matter was moot and should be dismissed. (Id. at p. 877, fn. 1.) The Court of Appeal recognized that the inmate's challenge would evade judicial review if the matter were dismissed as technically moot. (Ibid.) Consequently, the Board's decision would effectively remain unchallenged even if legally unsupportable, thus allowing the Board to repeat its errors at subsequent hearings.
Here, unlike in Scott, McEuen prevailed in the superior court and was granted a new hearing. The new hearing he received was not simply a regularly scheduled, subsequent hearing at which the Board could repeat the same mistakes it had made at the earlier hearing. Instead, as the Board recognized, the new hearing was being conducted pursuant to the court's order, which defined the contours of the Board's renewed consideration of McEuen's suitability for parole. Thus, the Board's decision did not evade judicial review. Further, McEuen did not appeal from the superior court's order and, in light of the fact he prevailed below, it is not clear what grounds he would have had to appeal. Therefore, by dismissing this action as moot we are not depriving McEuen of a right to appellate review he might have otherwise had as an aggrieved party.
As for the contention that our resolution of this appeal would "provide a necessary declaration of rights for the parties," any such resolution would be nothing more than a mere advisory opinion that may have no bearing on issues raised at a parole hearing several years from now. In addition, McEuen has already received a "declaration of rights" vis-à-vis the Board in that there is a court order addressing deficiencies in the Board's 2009 decision. Our dismissal of this appeal operates to affirm that order. (See City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 492 [dismissal acts as affirmance of judgment below].) Therefore, we shall decline McEuen's invitation to entertain this moot appeal.
As a final matter, we note that McEuen (but not appellant) requested oral argument in response to a notice sent by the court's clerk, as a matter of course, when an appeal is fully briefed. A party's right to oral argument exists in any appeal considered on the merits and decided by written opinion. (See Moles v. Regents of University of California (1982) 32 Cal.3d 867, 871; accord, Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1255.) Because we dismiss the appeal without reaching the merits, McEuen does not have a right to oral argument, which we find in this instance to be unnecessary to our dismissal of the appeal on the ground it is moot.
DISPOSITION
The appeal is dismissed.
McGuiness, P.J.
We concur:
Pollak, J.
Jenkins, J.