Opinion
B296389
04-08-2020
THE PEOPLE, Plaintiff and Respondent, v. JASON WILLIAM JORDAN, Defendant and Appellant.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Supervising Deputy Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Blake Armstrong, Deputy Attorney General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 8PH07886) APPEAL from an order of the Superior Court of Los Angeles County, Robert M. Kawahara, Judge. Dismissed. Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Supervising Deputy Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Blake Armstrong, Deputy Attorney General, for Plaintiff and Respondent.
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Jason William Jordan appeals from the trial court's order revoking his parole following a contested hearing, in which the trial court found true the allegation that Jordan had access to a simulated firearm in violation of the terms and conditions of his parole.
Jordan contends that there was insufficient evidence to support the trial court's conclusion that he violated the terms and conditions of his parole by touching the simulated firearm. He concedes that his appeal may be technically moot because he has completed his term of imprisonment, but urges this court to exercise its discretion to consider the merits.
We dismiss the appeal as moot. Jordan has completed his term of incarceration, and we are unable to provide him effective relief.
FACTS AND PROCEDURAL HISTORY
In 2008, Jordan was convicted by jury of four counts of second degree robbery (Pen. Code, § 211) and two counts of sexual battery by restraint (§ 243.4, subd. (a)). He was sentenced to 10 years in state prison. On appeal, we ordered the judgment modified to include five additional $20 section 1465.8, subdivision (a)(1) security fees, but otherwise affirmed the judgment. (People v. Jordan (Apr. 3, 2009, B207912) [nonpub. opn.] (Jordan).)
All further statutory references are to the Penal Code unless otherwise indicated.
Jordan was released on parole on August 30, 2016. He was required to obey various conditions, including a standard weapons condition that states: "You shall not own, use, have access to, or have under your control: (a) any type of firearm, instrument, or device which a reasonable person would believe to be capable of being used as a firearm, or any ammunition which could be used in a firearm . . . ."
On December 20, 2018, officers were pursuing an individual who lived in the same house as Jordan did. Officers took the individual into custody, and searched the entire house. The house was large and each person had a defined living space that other residents did not enter. The officers discovered a .410 gauge shotgun with a sawed off barrel under a cloth in a bookshelf on a stairwell landing that was part of another resident's living space. The officers arrested Jordan, who was one of a crowd of people gathered outside the house observing the event, for possession of a firearm by a felon (§ 29800, subd. (a)(1)).
Jordan made the following written statement: "I was renting a room at a friends house on 1049 West 62nd St. I arrived at the house today to see a bunch of commotion. I was detained. According to the officers they searched the house and found a firearm. To my knowledge the only firearm I ever seen was a old antic long wooden rifle. It looked like something from the 19th century. I seen it helping old lady with her stuff and I seen it in her house. I touched it. It looked fake, I felt it was fake. This was 3 months ago. That's the only knowledge of any firearm I seen. I was informed by the officer that this is the weapon they found, and I was informed that in fact it was real unfortunately."
A petition to revoke parole was filed on December 27, 2018, alleging that Jordan had possession of a firearm in violation of the terms of his parole, on the basis that the .410 gauge sawed-off shotgun had been found in the house where he rented a room.
At a contested parole revocation hearing, Jordan testified that there were about five bedrooms on the first floor of the house that were rented to different people, as well as a separate upstairs unit. He had only gone up to the landing where officers discovered the shotgun on one occasion, because that was not his area of the house. The single time he went upstairs, he was helping the elderly lady who lived in the upper unit to move a heavy dresser. On that occasion, he saw "a long rifle, wooden rifle," that looked totally intact. He touched the rifle. In response to his counsel's questions about touching the wooden rifle, Jordan testified as follows:
Q: Did [touching] it make you think it was fake?
A: Yes.
Q: What did you think it was?
A: I thought it was an antique."
Jordan moved the dresser and left the apartment after approximately five minutes.
Jordan testified that he had never seen the bookcase on the landing or the gun that the officers discovered. He thought the officers were referring to the fake antique gun on the elderly lady's wall when they questioned him. His statement pertained to the fake gun. Jordan did not tell his parole agent about the firearm because he did not have access to the upstairs unit and "didn't think it was a threat."
The trial court ruled:
"First of all, with respect to the firearm that was found upstairs in the landing, I will find that is not the -- I don't think there is sufficient evidence, preponderance of evidence. But there has to be some type of evidence that is established that he reasonably should have known and he knew that the firearm was there. And I didn't hear any evidence that he did know that or reasonably should have known."
"With respect to the firearm that was found that he saw in the woman's bedroom, he looked at it. And [if he had] said hey, 'I saw that and left.' I believe that I would say he is not in violation. But he testified his statement is he actually handled it. It becomes more than a transitory, 'Oh, I looked at that. And I know I am not supposed to be in possession.' . . . I will find him in violation of handling that particular firearm."
The trial court revoked parole and ordered Jordan to serve 120 days in county jail, with credit for 42 days already served.
Jordan timely appealed.
DISCUSSION
We agree with the People that Jordan's appeal is moot, because he has concluded his term of incarceration, and we can provide him no effective relief. (People v. DeLeon (2017) 3 Cal.5th 640, 645 (DeLeon), quoting Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132 ["'"[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."].)
Jordan contends that the matter is not moot because he has suffered concrete negative consequences as a result of his inappropriate incarceration, which we have the power to remedy. He urges us to exercise our discretion to do so. Citing former section 2900.5, subdivision (a) (Stats. 1998, ch. 338, § 6), and People v. Morris (2015) 242 Cal.App.4th 94, Jordan argues that the days he was wrongly incarcerated must be treated as excess custody credits to offset the fines and fees imposed upon him when he was convicted and sentenced.
We are not persuaded. Jordan's argument presumes that his obligation to pay fines and fees is a disadvantageous collateral consequence of the allegedly wrongful revocation of his parole. This is incorrect. The fines and fees were imposed as a direct consequence of his conviction. Jordan would have been obligated to pay these fines and fees even if he had successfully completed his parole and it had not been revoked and reinstated on the condition he serve time in county jail. Thus, his obligation to pay fines and fees is not a concrete negative consequence "attributable to his parole revocation." (Spencer v. Kemna (1998) 523 U.S. 1, 14.) To the contrary, applying former section 2900.5, subdivision (a), to offset those fines would be a direct, advantageous consequence of a reversal of the revocation order.
We likewise reject Jordan's contention that we should exercise our discretion to decide the merits because his appeal involves important questions that affect the public interest and are capable of repetition yet evade review. That exception to the mootness doctrine is usually reserved for issues of first impression. (See, e.g., DeLeon, supra, 3 Cal.5th at p. 646; People v. Morales (2016) 63 Cal.4th 399, 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"].) Resolution of the issue in this appeal—whether touching a simulated firearm constitutes access to, or control over, that firearm—merely requires application of well-settled law and does not require this court to decide a novel issue important to the wider public.
DISPOSITION
The appeal is dismissed as moot.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J. RUBIN, P. J. - Concurring:
I have signed the opinion of the court, but write separately to make three observations.
First, I agree the appeal is moot. Appellant argues that the appeal is justiciable because this court can grant relief by reducing the amount of fees and fines previously assessed by applying the dollar equivalent of time unlawfully spent in custody. As the court's opinion points out, this mathematical exercise bears no relation to the parole violation. The fines and fees are products of the original conviction.
Appellant next argues that the mootness trap is likely to recur. I acknowledge that today's opinion means that, at this moment in time, appellant's appellate options are no longer effectual. But that was not always so. Even though the trial court's ruling is appealable (see Pen. Code, § 1237, subd. (b)), writ relief was potentially available. In rare cases, the availability of an appeal does not foreclose relief by writ of mandate where "time is of the essence." (People ex rel. Becerra v. Superior Court (2018) 29 Cal.App.5th 486, 494 [reviewing final judgment by way of writ of mandate rather than appeal, because issue was of great public importance and required prompt resolution, as it affected terminally ill patients expected to die within six months].) This is true even where an appeal has already been filed in the case. (Ibid.)
Another option likely was the speedier writ of habeas corpus. After the court revoked appellant's parole, appellant was in custody; he is not now. "Ordinarily, where a petitioner for habeas corpus has an appeal pending or a right of appeal in which the grounds for release advanced in the petition for the writ could be urged as grounds for reversal of the judgment, the court would hold that habeas corpus is not an available remedy. But in this case it appears that petitioner was denied bail and although she has an appeal pending to the appellate department of the superior court, before that appeal can be determined in the natural course of that court's business she would have served the terms of her sentences. For that reason it appeared to the court that habeas corpus was her only effective remedy." (In re Sweet (1952) 113 Cal.App.2d 413, 414.)
Because alternative procedural avenues likely are available in situations like this one, I cannot say that the present circumstances are likely to recur.
Second, if the court's opinion had reached the merits, I would have concluded the evidence was insufficient to support the revocation of appellant's parole. The evidence was that appellant did not possess, in terms of dominion or control, the replica or antique firearm. Instead the evidence showed that appellant was helping an elderly tenant move her furniture when he happened to see the firearm on the wall of the woman's residence. He touched it. He did not seek to control it, handle it, use it, or do anything with the firearm. He did not move the antique weapon; he moved her furniture. The only reasonable inference from this was that appellant was surprised at the sight of the antique firearm and, perhaps in awe, reflexively touched it.
Respondent states that appellant's "parole condition prohibited him from owning, using, having access to or having under his control any firearm." Respondent cites People v. Bay (2019) 40 Cal.App.5th 126, 132 for the proposition that a " ' "defendant has actual possession when the weapon is in his [or her] immediate possession or control," ' i.e., when he or she is actually holding or touching it." (Id at. p. 132.) The words are there but no "touching" was considered by the appellate court in that case. Bay was a rather run-of-the-mill stop of three individuals in a car inside of which was a backpack containing a handgun. There was no discussion of whether the defendant had "touched" the backpack or the gun. It was a case of constructive possession, dominion and control by the defendant and his cohorts.
The second case cited by respondent fares no better. People v. Blakely (2014) 225 Cal.App.4th 1042, 1052 has nothing to do with touch or touching; those words are found nowhere in the opinion. That case deals with the distinction between possession of, and armed with, a firearm for purposes of eligibility for resentencing under Proposition 36, the Three Strikes Reform Act of 2012.
More on point would be People v. Martin (2001) 25 Cal.4th 1180, and People v. Mijares (1972) 6 Cal.3d 415 (Mijares). In Martin our Supreme Court reaffirmed its earlier opinion in Mijares, which had held that momentary possession of narcotics for the purpose of disposal did not constitute possession under the narcotics laws. There, the defendant was driving a car with a friend. The passenger was overdosing on heroin. The defendant reached into his friend's pocket, grabbed a heroin baggie, threw it out the car window, and drove his friend to a fire station where he was resuscitated. A passing neighbor found the baggie and reported it to police.
The Supreme Court reversed the defendant's conviction, finding that momentary possession was not illegal possession. "We cannot read the possession statutes to authorize convictions under such guileless circumstances." (Mijares, supra, 6 Cal.3d at p. 422.) Both Martin and Mijares dealt with narcotics; the present case involves a firearm. Perhaps ironically and probably in dicta, Martin did state, "Recognition of the 'momentary possession' defense serves the purpose of encouraging disposal and discouraging retention of dangerous items such as controlled substances and firearms. (Martin, supra, 25 Cal.4th at p. 1190; italics added.) To be sure, appellant here was not disposing anything but if momentary possession of heroin for disposal is "guileless" (Mijares, at p. 422), what happened here was even more so.
See also People v. Hurtado (1996) 47 Cal.App.4th 805, 813-814 [Mijares rule extends to charge of possession of a firearm by an ex-felon, however, possession there was not momentary].) The holding in Mijares led to the adoption of CALJIC 12.06, now CALCRIM 2305, "Momentary Possession of Controlled Substances." --------
Third, two standards of review govern this appeal. The substantial evidence rule is applied to the court's factual findings. (People v. Butcher (2016) 247 Cal.App.4th 310, 315.) As expressed above, my view is that the evidence is insufficient under that standard. But it is equally true that we give great deference to the trial court's decision to revoke parole, "and the court's discretions will not be disturbed in the absence of a showing of abusive or arbitrary action." (People v. Urke (2011) 197 Cal.App.4th 766, 773.)
Even if substantial evidence of possession were found in this case, it was nevertheless an abuse of discretion to revoke appellant's parole for an act that can only be described as guileless, momentary, transitory, and de minimis. RUBIN, P. J.