Opinion
H049573
11-09-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALBERTO LAZO MENDOZA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 215786)
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant Jose Alberto Lazo Mendoza appeals after the trial court found him in violation of probation and placed him on a new grant of probation. Defendant contends that the trial court lacked jurisdiction to find him in violation of probation because his original probation term had been shortened by a change in the law. For reasons that we will explain, we will dismiss the appeal as moot.
Defendant is also referred to in the record as "Jose Mendoza," "Jose Alberto Mendoza," and "Jose Albertolazo Mendoza."
In early 2016, defendant pleaded guilty to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). On May 3, 2016, he was placed on probation for three years with various terms and conditions.
In or about September 2018, a petition for modification of probation was filed, alleging that defendant had violated probation by failing to report to the probation department for scheduled office appointments on five occasions between July 2017 and August 2018; that he failed to provide proof of enrollment in or completion of an assaultive behavior class; and that he "failed to avail himself for search and testing." In October 2018, defendant failed to appear in court, his probation was summarily revoked, and a bench warrant was issued. Defendant was arrested on the bench warrant in August 2021.
On September 22, 2021, defendant admitted the probation violations. The trial court found him in violation of probation and placed him on a new grant of probation for two years. Defendant thereafter filed a notice of appeal. While the appeal was pending in this court, defendant's superior court case was transferred on motion of the county probation department to San Bernardino County Superior Court (case No. FWV22001478).
On appeal, defendant contends that a new law effective January 1, 2021 applied retroactively to him, limiting the original grant of three years on probation to two years. He argues that because the original term of probation was "shortened to two years by operation of law," the trial court "lacked jurisdiction" to summarily revoke his probation after the two-year period had expired. Defendant requests that the trial court be directed to dismiss for lack of jurisdiction the September 2018 petition for modification of probation.
This court requested supplemental briefing from the parties addressing whether defendant was still on active probation and, if not, whether the appeal was moot. Both parties have confirmed in supplemental briefing that defendant is no longer on probation.
In view of the fact that defendant is no longer on probation in this case, the Attorney General contends that defendant's appeal should be dismissed as moot." 'An action that involves only abstract or academic questions of law cannot be maintained. [Citation.] And 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.
A reversal in such a case would be without practical effect.'" (People v. Herrera (2006) 136 Cal.App.4th 1191, 1198; see also Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [if no effectual relief can be granted, an appeal will be dismissed as moot].) Defendant's completion of probation in this case renders the appeal moot because a reversal" 'would be without practical effect.'" (Herrera, supra, at p. 1198.)
Defendant nevertheless argues that this court should exercise its discretion to consider his appeal because it involves the change in law limiting most probation terms to two years, and the issue is capable of repetition but likely to evade review. However, the Attorney General points out that "the issue on appeal is presently before the California Supreme Court." Indeed, defendant acknowledges in his reply brief in this appeal that the parties' arguments about the impact of the two-year probation term limit "depends on how our Supreme Court resolves the conflicts among . . . four pertinent cases it is reviewing." Under these circumstances, we decline to exercise our discretion to consider the merits of defendant's appeal.
The appeal is dismissed as moot.
WE CONCUR: WILSON, J. ADAMS, J. [*]
[*]Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.