Opinion
D071295
06-23-2017
THE PEOPLE, Plaintiff and Respondent, v. KEVIN DWAYNE MALLARD, Defendant and Appellant.
Randy Mize, Chief Deputy Public Defender and Michael Begovich, Deputy Public Defender, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Alan L. Amann, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD249817) APPEAL from an order of the Superior Court of San Diego County, David J. Danielsen, Judge. Appeal dismissed. Randy Mize, Chief Deputy Public Defender and Michael Begovich, Deputy Public Defender, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
This is the second appellate proceeding arising from the same order issued by the superior court. After the order at issue here was entered by the trial court, Kevin Mallard filed a notice of appeal on November 2, 2016. On November 18, 2016, Mallard also filed a petition for writ of habeas corpus in case D071345. Thereafter this court issued an order to show cause why the relief should not be granted in the habeas proceeding.
On January 12, 2017, Mallard filed his opening brief on appeal. On January 27, 2017, this court issued a published opinion in the habeas corpus proceeding in which the court denied the petition and addressed all the grounds for relief now raised in the current appeal. (In re Mallard (2017) 7 Cal.App.5th 1220 (Mallard).) We have granted the respondent's request to take judicial notice of the file in Mallard.
As we will discuss below, the issues currently raised in this appeal have been fully resolved in our published opinion. Thus, the current appeal is moot and we will dismiss it.
PROCEDURAL BACKGROUND
We will take the facts and procedural history from our opinion in Mallard, supra, 7 Cal.App.5th 1220.
Mallard was on felony probation for possession of marijuana when he committed a carjacking offense. He was sentenced to prison for three years for carjacking and a consecutive eight-month term for the marijuana offense. (Mallard, supra, 7 Cal.App.5th at pp. 1222-1223.)
Mallard later successfully petitioned the trial court to reclassify the marijuana offense as a misdemeanor pursuant to Proposition 47 (Pen. Code, § 1170.18). (Mallard, supra, 7 Cal.App.5th at pp. 1222-1223.) By the time of the Proposition 47 proceeding Mallard had served his prison term and was returned to local custody to serve the remainder of the marijuana sentence. The trial court resentenced Mallard to a consecutive 240-day term in local custody for the marijuana offense. (Mallard, supra, at p. 1223.)
All further statutory references are to the Penal Code unless otherwise specified.
At the resentencing proceeding Mallard argued he was entitled to 50 percent custody credit for the misdemeanor sentence pursuant to section 4019. (Mallard, supra, 7 Cal.App.5th 1224.) The trial court rejected the argument because the original sentence was imposed consecutively to a serious or violent felony and that section 2933.1 controlled. Therefore, the trial court found that Mallard only accrued custody credits at the rate of 15 percent. (Mallard, supra, at pp. 1222-1223.)
DISCUSSION
Mallard's opening brief on appeal was filed prior to the filing of our opinion in the petition for writ of habeas corpus proceeding. Accordingly, it does not mention the decision we reached in our resolution of the arguments in the writ of habeas corpus petition. Simply put, Mallard pursued two separate appellate proceedings to address the question of which statutory custody credit formula should apply to the remaining time on the consecutive, now misdemeanor sentence. This court issued an order to show cause on the petition for writ of habeas corpus because Mallard's release date would change if his arguments were accepted and there was a possibility of him serving excessive time in custody. Because the process of resolving the writ petition proceeded ahead of the trailing appeal, all the issues were resolved shortly after Mallard's opening brief had been filed. Appellate counsel has not filed a reply brief and has not objected to the court taking judicial notice of the petition for writ of habeas corpus case.
We find the issues now raised in the opening brief are moot, having been fully resolved on the merits in the opinion previously filed. Mallard has served his sentence on the misdemeanor offense and is not on parole. Thus, no further relief could be granted by this court. (People v. Valencia (2014) 226 Cal.App.4th 326, 329; In re A.Z. (2010) 190 Cal.App.4th 1177, 1180.)
In addition to the issues being moot, the law of the case doctrine precludes relitigation of the same issues arising from the same trial court proceeding. (People v. Gray (2005) 37 Cal.4th 168, 196.)
DISPOSITION
The appeal is dismissed.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
O'ROURKE, J. /s/_________
DATO, J.