Opinion
F074309
03-21-2018
THE PEOPLE, Plaintiff and Respondent, v. RYAN FROMUTH, Defendant and Appellant.
Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F15901073)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Brant K. Bramer, Commissioner. Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
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Appellant Ryan Fromuth appeals from the denial of his motion to modify his probation. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d. 436, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On January 29, 2014, in Monterey County, a jury convicted Fromuth of meeting a minor for a lewd purpose (Pen. Code, § 288.4, subd. (b)). In a separate proceeding, Fromuth admitted a prior prison term enhancement (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
On March 5, 2014, the court placed Fromuth on probation for three years. One condition of probation prohibited Fromuth from using alcohol, intoxicants, or other controlled substances without the prescription of a physician. Another condition of probation required Fromuth to enroll in, and complete, a sex offender program, if required by probation.
Fromuth's probation report indicates that he had two prior convictions for possession for sale of marijuana (Health & Saf. Code, § 11359). --------
On January 9, 2015, the Monterey County Superior Court granted Fromuth's motion to transfer his case to Fresno County.
On November 13, 2015, Fromuth filed a motion for modification of sentence in which he asked the court to review his ability to pay current fines and costs. He also asked the court to clarify whether the cost of drug testing and sex offender therapy were conditions of probation and whether they required an inquiry into his ability to pay.
On November 20, 2015, the court denied the motion.
On May 23, 2016, Fromuth filed a motion to modify his probation asking the court to evaluate his financial situation and ability to pay various costs, to confirm that he is allowed to use medical marijuana or, alternatively, to modify his probation conditions to allow him to use medical marijuana, and to clarify any unauthorized sentence or vague conditions. Fromuth also asked the court to make "express findings related to [his] ability to pay under such statutes as Penal Codes [sic] 1203.1b and 1203.067(b) and (c)," and for a hearing on his ability to pay for the cost of probation supervision and the probation report.
A probation memo filed on June 28, 2016, indicated that Fromuth tested positive for marijuana five times. It recommended the court deny Fromuth's request to modify his probation conditions to allow him to use medical marijuana and that the court add a condition specifically requiring Fromuth to abstain from using marijuana.
On June 29, 2016, the court suspended the fines and fees Fromuth owed to the court and the probation department and ordered that all Fromuth's conditions of probation remain the same, including the "no drugs" condition. The court, however, did not suspend the sex offender program fee because it found it did not have the authority to do so. It also stated that since Fromuth was going to stop using marijuana, he should be able to pay for the program. Additionally, the court clarified that Fromuth's conditions of probation required him to abstain from using marijuana unless he provided the court with a doctor's prescription, stating as the reason for this prohibition that Fromuth "went to prison on a pot case."
On August 26, 2016, Fromuth filed a timely appeal.
On February 24, 2017, the court extended Fromuth's probation six months to September 5, 2017.
Fromuth's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a letter filed on July 28, 2017, Fromuth asks this court to: (1) direct the trial court to reimburse him or his family for the costs of the sex offender program he paid from May 23, 2016, the date he filed his motion for modification, and "determine the probationer cost of sex offender and other programs in accordance with law, for all probationers"; (2) determine whether the alcohol-related conditions and the denial of use of medical marijuana or recreational marijuana were reasonable; (3) direct the trial court to "address" a discrepancy relating to the marijuana condition between the court's oral pronouncement of judgment at the June 29, 2016, hearing and the minute order of that hearing; and (4) perform an "appropriate level of review" of the transfer of his case from the Monterey County Superior Court to the Fresno County Superior Court.
As a condition of probation, Fromuth was required to participate in a sex offender program pursuant to section 1203.067, subdivision (c), which provides:
"Any defendant ordered to be placed in an approved sex offender management program pursuant to subdivision (b) shall be responsible for paying the expense of his or her participation in the program as determined by the court. The court shall take into consideration the ability of the defendant to pay, and no defendant shall be denied probation because of his or her inability to pay." (Italics added.)
During the modification hearing, Fromuth did not object to the court's finding that he had the ability to pay for the expense of participating in a sex offender program. By failing to object, he forfeited his right to challenge this determination by the court. (People v. McCullough (2013) 56 Cal.4th 589, 593 [defendant who does not challenge a ruling in the trial court forfeits the right to raise the claim on appeal].) Further, Fromuth forfeited his claim that he should be reimbursed for the costs of his sex offender program because he did not raise it in the trial court (People v. Williams (1999) 21 Cal.4th 335, 348). We also decline to order the trial court to determine the cost for all probationers of sex offender and other programs because, inter alia, this issue also was not raised in the trial court. (Ibid.)
Moreover, " 'A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief.' ([Citation]; see Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178 ['Generally, courts decide only "actual controversies" which will result in a judgment that offers relief to the parties. [Citations.]'].) 'Thus, appellate courts as a rule will not render opinions on moot questions ....' " (In re Stephon L. (2010) 181 Cal.App.4th 1227, 1231.)
The record indicates Fromuth's probation should have ended on September 5, 2017. Thus, we will not address Fromuth's three remaining contentions because they are moot.
Further, following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The order appealed from is affirmed.