Opinion
E074273
11-17-2020
THE PEOPLE, Plaintiff and Respondent, v. RONALD JOSEPH CARR, JR., Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana R. Butler, and Amanda L. Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAR1901892) OPINION APPEAL from the Superior Court of Riverside County. Judith M. Fouladi, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Dismissed as moot. Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana R. Butler, and Amanda L. Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
After a contested hearing, the trial court found Ronald Joseph Carr Jr., in violation of his postrelease community supervision (PRCS) terms, revoked PRCS, and ordered him to serve 160 days in county jail, with a release date of January 21, 2020.
On appeal, Carr argues the trial court abused its discretion by revoking PRCS because the Riverside County Probation Department (Probation) never considered any intermediate sanctions. We dismiss the appeal as moot.
I
FACTS
Carr was convicted of vehicle theft (Veh. Code, § 10851, subd. (a)), possession of a stolen vehicle (Pen. Code, § 496d, subd. (a), unlabeled statutory citations refer to this code) and obstructing a police officer (§ 148, subd. (a)(1)), along with enhancements for a prior prison offense and prior strike. He was released to PRCS in June 2018.
Carr violated the terms of his PRCS in August 2018 and again in March 2019 by failing to report or follow directives from Probation.
Carr reported to Probation Officer Jacob Nuchols in September 2019. Nuchols ordered Carr to report to the Riverside probation office daily before 3:00 p.m., and to report to the Banning probation office on October 8 in order to be placed on GPS monitoring. Carr informed Nuchols he did not have the means to go to the appointment in Banning.
Nuchols saw Carr again on October 2, 2019, and reminded him of his appointment for GPS monitoring. Carr once again told Nuchols he did not have the means to make the appointment.
Carr failed to appear for the October 8, 2019 appointment. The next day, Carr called Nuchols to inform Nuchols he was reporting to Probation. Nuchols told Carr he was in violation of the terms of PRCS. The two "went back and forth circling around as to why he didn't make it to the appointment," and the conversation ended when Carr hung up on Nuchols.
On October 17, 2019, Probation filed a petition to revoke Carr's PRCS. On November 22, 2019, the trial court held a contested violation hearing.
Nuchols testified at this hearing. When asked on direct examination whether he considered any intermediate sanctions before filing the petition to revoke PRCS, Nuchols responded "[Carr] was informed that if he reported to the probation office he would be arrested for violation of probation. But at that time, that could also consist of a flash incarceration, which would be an intermediate sanction. He elected to not report, so he essentially forced the hand to go ahead with the bench warrant and a full violation." However, on cross-examination, defense counsel asked Nuchols if he "consider[ed] any intermediate sanctions before filing the petition?" Nuchols responded, "No. Not with those circumstances." Defense counsel clarified that "based on the circumstances that you saw, you did not consider any intermediate sanctions?" Nuchols responded "[c]orrect." On re-direct examination, when asked "whether [he] considered [intermediate sanctions] but did not find them appropriate," Nuchols responded "[i]n my opinion, they weren't appropriate in this matter based on [Carr] appearing to be deceitful and his previous violations, so at that point they were not considered." He added that he might have considered intermediate sanctions if Carr had appeared on October 9 after their phone call.
Defense counsel argued Nuchols's testimony revealed he didn't consider intermediate sanctions prior to filing the petition to revoke Carr's PRCS, as required by statute. (§ 3455, subd. (a).) The court found Carr in violation of the terms of his PRCS. It noted "Nuchols has specifically testified that had Mr. Carr appeared on October 9th, it was possible that he would have considered intermediate sanctions." The court said it was "satisfied and does find that intermediate sanctions, whereas they may not have been formally put in a bullet-point format in a revocation petition, were nevertheless contemplated and considered by Officer Nuchols and rejected because of the facts of the case."
The court reinstated PRCS and ordered Carr to serve 160 days in county jail. He was to be released in January 2020.
Carr timely appealed the decision finding him in violation of the terms of PRCS prior to being released from jail.
II
ANALYSIS
Carr argues it was error to grant the petition to revoke his PRCS because Nuchols's testimony reveals he did not consider intermediate sanctions before filing the petition. The People argue Nuchols did consider intermediate sanctions, but regardless Carr's appeal is moot because he was released from jail prior to this decision, meaning this court can provide him no relief. We agree with the People that the appeal is moot.
" ' "[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [opposing party], an event occurs which renders it impossible for this court, if it should decide the case in favor of [defendant], to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal" ' as moot." (People v. DeLeon (2017) 3 Cal.5th 640, 645 (DeLeon).) Where, as here, a defendant has completed his jail term and his PRCS supervision has ended, an "appeal is technically moot because a reviewing court's resolution of the issues could offer no relief regarding the time he spent in custody or the parole term that has already terminated." (Ibid.) A parole violation alone "does not constitute a disadvantageous collateral consequence for purposes of assessing mootness." (Id. at p. 646.)
While DeLeon, supra, 3 Cal.5th 640 concerned parole, not PRCS, we find the reasoning equally applicable to PRCS. PRCS is ultimately just "an alternative to parole for non-serious, nonviolent felonies," and is the same as parole in all relevant ways for this case. (People v. Gutierrez (2016) 245 Cal.App.4th 393, 399.) Indeed, section 3000.08, subd. (f)—which governs revocation of parole—and section 3455, subd. (a)—which governs revocation of PRCS—have nearly identical language regarding consideration of intermediate sanctions, which is the central issue in this case. Moreover, Carr relies on DeLeon and therefore implicitly concedes it is applicable here.
Carr's appeal is therefore moot, which he acknowledges. Nevertheless, Carr urges us to use our discretion to hear the case anyway, because the issue raised "is likely to recur, might otherwise evade appellate review, and is of continuing public interest." (People v. Morales (2016) 63 Cal.4th 399, 409 (Morales).) Carr points out our Supreme Court did exactly that in a recent case on parole, DeLeon, opting to consider the issue raised there despite the technical mootness. (DeLeon, supra, 3 Cal.5th at p. 646.)
The primary issue in Carr's appeal is his argument that Probation did not meet its duty under section 3455, subdivision (a), to first consider intermediate sanctions and find them inappropriate before petitioning to revoke PRCS. Carr contends that because the maximum possible punishment for revoking PRCS is 180 days in county jail, this issue is likely to recur and evade appellate review, and there is a continuing public interest in this case because "Riverside County is not following the lawful procedure governing parole revocation."
Carr's briefs erroneously cite to section 3000.08—which concerns parole—rather than to section 3455—which concerns PRCS. However, because the two statutes are nearly identical in relevant part, Carr's basic argument is still appropriate under section 3455. Therefore, we treat Carr's citations to section 3000.08 as if they were citations to the corresponding portions of section 3455. --------
While we agree with Carr's argument that PRCS issues are likely to recur and to evade appellate review, the issue he identifies is not of sufficient public interest to compel review on the merits. This case is thus distinguishable from DeLeon. In that case, our Supreme Court exercised its discretion because the central question was "what procedure should govern parole revocation proceedings under the Realignment Act"? (DeLeon, supra, 3 Cal.5th at p. 646.) This was an important question of due process and statutory interpretation that would affect proceedings throughout the state and would necessarily recur in cases other than DeLeon's.
No such issue exists here. The only argument Carr raises is that the trial court abused its discretion by concluding Nuchols considered intermediate sanctions. This is necessarily a fact-specific question, as it involves a review of the specific evidence the trial court relied on in coming to this conclusion. Any decision on the merits in Carr's case would not change the law or have any larger impact on any other defendants.
Nor does the record support Carr's claim that Riverside County is routinely disregarding the requirements in section 3455, subdivision (a). Carr does not point to any evidence the Riverside County Superior Court flouts this requirement as a general practice. Moreover, the trial court in this case heard argument on this issue, considered it, and found against Carr. Thus, the record shows it specifically grappled with whether Nuchols's testimony showed he met the requirements under section 3455, subdivision (a). This shows the trial court was aware of the specific requirements, considered them in light of the factual testimony it heard, and made a ruling on those grounds. That one may disagree with the court's ultimate conclusion doesn't mean the court ignored or misunderstood the relevant legal requirements, nor is it evidence to support a broader claim of a routine misapplication of the law. Thus, Carr raises no larger procedural or substantive issues that would constitute a "continuing public interest." (Morales, supra, 63 Cal.4th at p. 409.)
III
DISPOSITION
We dismiss the appeal as moot.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. MILLER
J.