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People v. Carriger

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Mar 18, 2020
E072576 (Cal. Ct. App. Mar. 18, 2020)

Opinion

E072576

03-18-2020

THE PEOPLE, Plaintiff and Respondent, v. ROBERT DANIEL CARRIGER, Defendant and Appellant.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Robin Urbanski, Donald W. Ostertag, and Meredith S. White, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CJ002670) OPINION APPEAL from the Superior Court of San Bernardino County. Patrick L. Christianson, Temporary Judge. Dismissed as moot. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Robin Urbanski, Donald W. Ostertag, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant Robert Daniel Carriger appeals from the trial court's summary denial of his oral motion to recuse the entire San Bernardino County District Attorney's Office. On appeal, defendant contends the trial court abused its discretion in summarily denying his oral motion because, at a minimum, he had shown a conflict sufficient to warrant a hearing. We dismiss the appeal as moot.

II

FACTUAL AND PROCEDURAL BACKGROUND

On March 30, 2016, defendant was convicted in San Bernardino County Superior Court of one count of inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)), and was sentenced to two years in state prison. He was released on postrelease community supervision (PRCS) on February 8, 2017, under various terms and conditions, including condition No. 004A, which required defendant to "Report to the Probation Officer in person immediately or upon release and thereafter as directed."

All future statutory references are to the Penal Code unless otherwise stated.

On December 14, 2018, the San Bernardino County Probation Department filed a petition to revoke defendant's PRCS release because he had violated condition No. 004A when he failed to report as directed.

At a hearing on the revocation petition on February 5, 2019, the assigned deputy district attorney (DDA) alerted the trial court that the newly elected district attorney, Jason Anderson (DA Anderson), had previously represented defendant in the underlying matter. The parties agreed to put the matter over to allow the Attorney General to appear due to the alleged conflict.

At the next hearing on February 28, 2019, the Attorney General was not present. The assigned DDA informed the trial court that the Attorney General's Office had been consulted about the case, but concluded there was no conflict of interest, and thus recusal of the entire San Bernardino County District Attorney's Office was not necessary. The DDA explained that defendant had initially been represented in the underlying case by an attorney from the public defender's office and that attorney had represented defendant through his guilty plea. The DDA further stated that DA Anderson was appointed after the guilty plea to represent defendant for purposes of investigating and filing a motion to withdraw his plea and that "[t]he motion to withdraw the plea was ultimately withdrawn and vacated and no further action was taken by [DA] Jason Anderson during his representation of [] defendant."

Defendant asserted his intention to pursue a motion for recusal and complained about his appointed public defender and "misconduct by the public defender's office." Defendant also inquired about the agreement that the Attorney General would appear. The trial court found, "It appears the Attorney General has decided that there is no conflict. Based on what I've heard, I find that there is no conflict."

Defendant did not file a written motion to recuse the San Bernardino County District Attorney's Office. Instead, on March 6, 2019, defendant admitted he violated the terms of his PRCS by failing to report to his probation officer as directed. The trial court thereafter reinstated defendant on PRCS, and ordered defendant to complete 160 days in custody with 64 days of credit for time served.

On April 19, 2019, defendant filed a notice of appeal and a request for a certificate of probable cause. The trial court granted defendant's request for a certificate of probable cause.

III

DISCUSSION

Defendant argues the trial court erred in summarily denying his oral motion to recuse the San Bernardino County District Attorney's Office without a hearing. He requests a limited remand to allow him an evidentiary hearing on his motion to recuse. The People respond defendant forfeited the issue by failing to request a full evidentiary hearing. Alternatively, the People claim the issue is moot, defendant failed to comply with the procedural requirements of section 1424, and defendant failed to show "a conflict of interest existed such that it was likely [he] would be treated unfairly."

We decline to find forfeiture. The record indicates defendant made an oral motion to recuse the San Bernardino District Attorney's Office and believed the Attorney General would intervene and be present at the February 28, 2019 hearing. At the February 28, 2019 hearing, defendant continued to pursue his motion to recuse and appeared to want a hearing on the matter. Therefore, under the circumstances of this case, we do not believe defendant forfeited the issue by failing to request a full evidentiary hearing.

However, it appears the issue is moot. Normally, an appeal by a parolee challenging a condition of parole or the revocation of parole becomes "technically moot" if the defendant is discharged from parole before the appeal is decided. (People v. Morales (2016) 63 Cal.4th 399, 409 (Morales); see People v. Navarro (2016) 244 Cal.App.4th 1294, 1298 ["Navarro's release from parole eliminated any effect our decision may have had on him"].) "'"[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).)

In DeLeon, the superior court revoked the defendant's parole, sentenced him to 180 days in custody, and reinstated parole. (DeLeon, supra, 3 Cal.5th at p. 644.) The defendant appealed, arguing the court erred by not first conducting a preliminary hearing on the parole revocation petition. (Id. at p. 645.) The Supreme Court noted the defendant had already completed his county jail term, and defense counsel informed the court the defendant had been discharged from parole well before the Court of Appeal issued its decision. (Ibid.) The defendant argued his appeal was not moot because he faced "disadvantageous collateral consequences from the fact that he was found in violation of his parole." (Ibid.) The Supreme Court held that "DeLeon's 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.) Relying on the reasoning of the United States Supreme Court in Spencer v. Kemna (1998) 523 U.S. 1 (Spencer), our Supreme Court provided some guidance on the type of consequences of a parole revocation that will establish a live controversy on appeal. (DeLeon, at p. 645.)

In Spencer, "the court considered whether the defendant's appeal from a parole revocation was mooted by the fact that he had completed the entire term of imprisonment underlying the revocation. [Citation.] Interpreting the case-or-controversy requirement of article III, section 2 of the federal Constitution [citation], the court held that a violation of parole does not result in civil disabilities resembling those that stem from a criminal conviction [citation]. The court further rejected the argument that the defendant faced 'collateral consequences' from the potential use of the parole violation in a future proceeding. [Citation.] This possibility did not show an injury in fact. First, it was contingent upon the defendant again violating the law, a circumstance that was wholly within his control. Second, a prior parole violation did not mandate a particular consequence, but was simply one factor among many that could be considered in a discretionary decision by the parole authority." (DeLeon, supra, 3 Cal.5th at pp. 645-646, italics omitted.) "Spencer's analysis is persuasive, and we adopt it. The trial court's finding that DeLeon violated his parole does not involve the same collateral consequences that attach to a criminal conviction. Future consequences will not arise unless there is additional criminal conduct. Even then, his parole violation is just one of many factors a court may consider in deciding whether to grant probation, or what sentence to impose. Under these circumstances, [a defendant's] parole violation does not constitute a disadvantageous collateral consequence for purposes of assessing mootness." (DeLeon, at p. 646.)

The Supreme Court disapproved of two Court of Appeal decisions to the extent they concluded a parolee's appeal was not moot, despite his discharge from parole because he might face disadvantageous collateral consequences in future criminal proceedings, when seeking employment, or in child custody proceedings. (DeLeon, supra, 3 Cal.5th at p. 646, disapproving People v. Gonzalez (2017) 7 Cal.App.5th 370, 380-381 and People v. Osorio (2015) 235 Cal.App.4th 1408, 1412.) --------

Our Supreme Court left open "the possibility that, under other circumstances, a defendant could demonstrate sufficiently concrete consequences to avoid a finding of mootness, even if the term of imprisonment has already concluded. Instead, we hold that the consequences DeLeon has identified here are simply too speculative to support the conclusion that a legally sufficient controversy exists." (DeLeon, supra, 3 Cal.5th at p. 646, fn. 2, italics added.) Although the court held the appeal was moot, it nonetheless exercised its discretion to address the merits of the appeal—whether the transfer of parole revocation hearings from the Board of Parole Hearings to the superior court made a probable cause hearing unnecessary—because the issue was likely to recur, might otherwise evade review, and was of continuing public interest. (Id. at p. 646.)

Here, defendant was on PRCS when the petition for revocation was filed. On March 6, 2019, after he admitted the violation, defendant was reinstated on PRCS and ordered to serve 160 days in custody at "half time" or 80 actual days. (§ 4019, subd. (f).) When he was reinstated on PRCS, defendant was awarded 64 days of credit for time served. Therefore, he had 16 days of custody left to serve before returning to PRCS under the same terms and conditions previously imposed. Because the only additional term imposed pursuant to the revocation petition was the 160 days of custody, and that term has necessarily been satisfied, it is unclear what effective relief this court could provide defendant. Furthermore, by the time this appeal is finalized, defendant would be entitled to immediate discharge from PRCS because defendant would have been on PRCS for three years. Section 3456, subdivision (a)(1), provides that the probation department "shall maintain postrelease supervision over a person" until "[t]he person has been subject to postrelease supervision pursuant to this title for three years at which time the offender shall be immediately discharged from postrelease supervision." Here, defendant was placed on PRCS on February 8, 2017. By the time this appeal is finalized, defendant would be subject to immediate discharge from PRCS under section 3456, subdivision (a)(1).

Defendant does not dispute he will have already completed his jail term before this appeal is resolved, but argues his appeal is not moot because he "will potentially have collateral consequences." He asserts that a finding of a violation of PRCS "may be used at a later time to deny probation" or "justify imposition of an aggravated term" or "prevent a finding of mitigation."

We are not persuaded by this argument. Although a violation of PRCS may be used to deny a defendant probation or circumstances in aggravation (see California Rules of Court, rules 4.414(b)(2) & 4.421(b)(5)), it is "contingent upon [] defendant again violating the law, a circumstance that [is] wholly within his control." (DeLeon, supra, 3 Cal.5th at p. 646.) As our Supreme Court stated, "This possibility [does] not show an injury in fact." (Id. at p. 645.) In addition, "a prior parole violation [does] not mandate a particular consequence, but [is] simply one factor among many that could be considered in a discretionary decision by the parole authority." (Id. at pp. 645-646.) Defendant failed to show any concrete consequences to avoid a finding of mootness and his assertions are speculative.

Defendant does not argue his issue is likely to recur, might otherwise evade review, and is of continuing public interest. Even if defendant had made these assertions, those exceptions to the mootness doctrine are usually reserved for issues of first impression. (See, e.g., DeLeon, supra, 3 Cal.5th at p. 646; Morales, supra, 63 Cal.4th at p. 409; People v. Hronchak (2016) 2 Cal.App.5th 884, 889 [exercising discretion to decide merits of technically moot appeal from parole revocation order because it presented "a significant issue of first impression"].) Furthermore, whether the issue is likely to recur is within defendant's control, and there is no indication it would otherwise evade review or is one of continuing public interest. Resolution of the issue in this appeal—whether the trial court abused its discretion in denying defendant's oral motion to recuse the entire San Bernardino County District Attorney's Office without a full evidentiary hearing—merely requires application of well-settled law and does not require this court to decide a novel issue important to the wider public.

Based on the foregoing, we find defendant's appeal to be moot.

IV

DISPOSITION

The appeal is dismissed as moot.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J. We concur: FIELDS

J. RAPHAEL

J.


Summaries of

People v. Carriger

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Mar 18, 2020
E072576 (Cal. Ct. App. Mar. 18, 2020)
Case details for

People v. Carriger

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT DANIEL CARRIGER, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Mar 18, 2020

Citations

E072576 (Cal. Ct. App. Mar. 18, 2020)