Opinion
A146790
10-29-2019
In re D.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J15-01018)
This case returns to us following a grant of review and transfer by the California Supreme Court. We complied with our high court's order directing us to vacate our prior opinion and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). We now dismiss the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
In 2015, the juvenile court found D.W. committed attempted second degree robbery (Pen. Code, §§ 211, 664), adjudged him a ward of the court, and committed him to Orin Allen Youth Rehabilitation Facility for a six-month program, plus an additional 90-day conditional release parole period. The court imposed numerous probation conditions, including a condition requiring D.W. to "submit . . . any cell phone or any other electronic device in his possession [and] access code . . . to search and seizure by any peace officer at any time of the day or night, with or without a warrant."
D.W. appealed and argued the electronic search condition was invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutional. We held the condition shall be modified to state: "Submit any cell phone under his control to a search by a peace officer of any text messages, email, telephone call history, voice mail, or other communication programs like FaceTime or Skype, and social media accounts, with or without probable cause, and provide the peace officer with any passwords necessary to access the information specified." In all other respects, we affirmed.
The California Supreme Court granted review (Mar. 1, 2017, S239644) and deferred further action pending consideration and disposition of a related issue in Ricardo P., S230923. In August 2019, our high court decided Ricardo P. and held, as relevant here, that an electronic search condition was invalid under Lent where there was no evidence the defendant had used or would "use electronic devices in connection with . . . illegal activity." (Ricardo P., supra, 7 Cal.5th at pp. 1116, 1119-1120.)
After issuing its decision in Ricardo P., the California Supreme Court transferred this case back to this court on September 25, 2019, directing us to vacate our decision and reconsider the cause in light of Ricardo P. On October 3, the Attorney General filed a supplemental letter brief in this court stating: "At the dispositional hearing over three years ago on November 2, 2015, the juvenile court set [D.W.'s] maximum confinement at three years less 73 days' credit. . . Thus, the validity of the probation condition appears moot." D.W. did not file a supplemental brief. (Calif. Rules of Court, rule 8.200(b)(1) [any party may serve and file a supplemental opening brief in the Court of Appeal within 15 days after finality of a Supreme Court decision remanding or order transferring a cause to a Court of Appeal for further proceedings; any opposing party may serve and file a supplemental responding brief within 15 days after an opening brief is filed].)
DISCUSSION
"As a general rule, ' " 'the duty of this court, as of every other judicial tribunal, is 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.' " ' [Citation.] Thus, an ' "action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events." ' [Citations.] Put another way, ' "[a]n appeal should be dismissed as moot when the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief." ' " (People v. Pipkin (2018) 27 Cal.App.5th 1146, 1149-1150.)
The termination of a defendant's probationary period moots an appeal challenging probation conditions. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120, fn. 5; In re Charles G. (2004) 115 Cal.App.4th 608, 611.) Here, because D.W.'s probation has terminated, a ruling on the validity of the challenged probation condition would have no practical effect and would not provide him with effective relief. Accordingly, the appeal is now moot.
Moreover, we decline to exercise our discretion to consider the merits of this moot appeal. "[A] reviewing court may exercise its inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public importance and is a question capable of repetition, yet evading review." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) Because our high court has spoken on the validity of a similar probation condition, this appeal does not present a question of "continuing public importance" that is "capable of repetition, yet evading review." (Ibid.)
DISPOSITION
The appeal is dismissed as moot.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Fujisaki, J.