Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. SWF18458. Gary B. Tranbarger, Judge.
Rod Pacheco, District Attorney, and Elise J. Farrell, Deputy District Attorney, for Plaintiff and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Respondent.
The People of the State of California (appellant) appeal a trial court’s order sustaining an oral demurrer, in violation of Penal Code section 1005. The People filed a Petition for Writ of Prohibition/Mandate regarding the same matter. This court issued a writ of mandate directing the trial court to vacate its previous order. Therefore, this appeal is moot.
All further statutory references will be to the Penal Code, unless otherwise noted.
OPINION
HOLLENHORST, Acting P.J.
PROCEDURAL BACKGROUND
On February 1, 2007, the People filed an information charging defendant and respondent Chondray Armstrong with several felony offenses and enhancements. The information also included eight aggravating factors.
At the outset of the arraignment hearing, defense counsel informed the court that he wished to file a demurrer regarding the aggravating factors in the information, and that he wanted to continue the arraignment to the following day. The court asked defense counsel if he “want[ed] to make an oral request to strike.” After defense counsel answered in the affirmative, the court proceeded to state: “At this time the defense wishes to make an oral motion to strike language regarding aggravating factors from the Information as surplusage; is that correct?” Defense counsel replied, “That’s correct, sir.” The People objected to the “oral demurrer” pursuant to sections 1004 and 1005. The People argued that demurrers were required to be in writing under section 1005. The court responded that it had received “over a dozen copies of oral demurrers on this very issue and ha[d] received over a dozen oppositions from the People.” The court then stated that it was not granting demurrers “in the sense of striking the entire document and requiring a new document to be pled . . . [rather, it was] merely striking the surplus language regarding aggravating facts for reasons [it had] stated a few times now.” The court asked the People if they could articulate some prejudice if the court accepted the oral motion. The People responded that the law simply required a demurrer to be in writing, and that “the law [was] the law.” The court then stated that this was not a demurrer, but a motion to strike; it then granted the oral motion.
On February 13, 2007, the People filed a notice of appeal from the court’s order striking the aggravating factor language from the accusatory pleading, in violation of sections 1002 through 1005. Three days later, the People filed a Petition for Writ of Prohibition/Mandate and Request for Immediate Stay (the writ). The People requested this court to issue a stay of the proceedings and a peremptory writ of mandate ordering the trial court to vacate its order striking the aggravating factors language from the information, to comply with sections 1002-1012, and to refrain from entertaining oral demurrers. This court stayed the appeal pending resolution of the writ. On April 26, 2007, this court filed an order issuing a peremptory writ directing the trial court “to vacate its order[] . . . refusing to allow petitioner to allege aggravating circumstances for the jury’s consideration, and to enter [a] new order[] allowing such action.”
The People have requested that we take judicial notice of the files and records in the companion case of People v. Chondray Armstrong, case no. E042383. We hereby grant that request. (Evid. Code, § 452, subd. (d).)
On May 3, 2007, this court lifted the stay on the appeal and ordered the People to serve and file its opening brief. In response, the People requested clarification of that order to determine which issues this court desired it to address in the appeal. The People then filed the instant appeal.
ANALYSIS
In Light of the Order on the Writ, the Appeal is Moot
On appeal, the People request this court to reverse the trial court’s ruling sustaining the demurrer on the ground that it lacked to authority to either entertain or sustain an oral demurrer. The People acknowledge this court’s order on the writ, directing the court to vacate its previous order and allow the People to allege aggravating circumstances in the accusatory pleading. Nonetheless, the People contend that this court “did not rule on the propriety of entertaining oral demurrers.” The People argue that this court should address this issue because it fits two exceptions to the rules regarding mootness: 1) moot cases may be heard when they involve a broad public interest likely to recur (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8); and 2) a material question remains for the court’s determination. (Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 205 (Viejo Bancorp, Inc.).) Defendant concedes that the trial court erred in granting the oral demurrer, but argues that this court’s preceding decision reversing the trial court’s order “already accomplished that which the People[] now seek.” We agree with defendant.
“It is this court’s duty ‘“to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. . . .”’” (Chantiles v. Lake Forest II Master Homeowners Assn. (1995) 37 Cal.App.4th 914, 921; see also Lester v. Lennane (2000) 84 Cal.App.4th 536, 566.)
Here, the People are requesting us to reverse the trial court’s ruling sustaining the demurrer. However, we already issued a writ directing the court to vacate its order on the demurrer, and to allow the People to include notice of the aggravating factors in the information. Since there is no longer any actual controversy between the parties in this regard, the appeal is moot. As to the People’s contention that this court “did not rule on the propriety of entertaining oral demurrers,” such ruling was implicit in our decision on the writ. Furthermore, we note that defendant concedes the trial court erred in granting the oral demurrer, and that section 1005 states that a “demurrer must be in writing, signed either by the defendant or his counsel, and filed.”
DISPOSITION
The appeal is dismissed.
We concur: RICHLI, J., KING, J.