Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB704627, Bryan Foster, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Chandra E. Appell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant pled guilty to possessing cocaine base for sale (Health & Saf. Code, § 11351.5), as well as to the enhancement allegation for possessing a firearm in the commission of a felony (Pen. Code, § 12022, subd. (a)(1)). On appeal defendant contends certain gang-related probation conditions should be struck, and that his probation revocation fine should be reduced to equal his restitution fine. The People concede the fines should have been set to be equal and do not oppose reducing the revocation fine to equal the restitution fine.
On our own motion, we took notice of the trial court’s post appeal minute order dated December 15, 2008, which revoked defendant’s probation for a violation of an undisputed condition of his probation. We then requested supplemental briefing as to whether some or all of this appeal was rendered moot. The People’s response argued the appeal was moot because they had conceded the fine issue and the revocation of probation “removed the only contested issue on appeal.” Defendant’s response conceded the probation condition issue was technically moot but requested we still address the issue, contended the fine revocation issue was not moot, and raised a new issue regarding the indication in the minute order that a restitution fine was being imposed.
RELEVANT FACTS
Defendant, wearing clothing similar to that described in an all points bulletin for a robbery suspect and holding what appeared to be an open container of alcohol, fled when he was approached by a police officer. Prior to being apprehended defendant discarded his sweater. After defendant was detained the police officer located the sweater and discovered it contained a handgun and narcotics.
Defendant was identified as a gang member in the probation report. However, defense counsel argued that “this was not a gang case,” “[t]here was no gang allegation,” and the police report did not reference a gang, other than noting the presence of a tattoo stating the name of a gang, which defendant asserted he was in the process of having removed.
GANG-RELATED PROBATION CONDITIONS
Defendant, who conceded the issue was technically moot, urges us to address the issue of the imposition of gang-related probation conditions in this non-gang-related conviction because, in defendant’s opinion, the issue is one of continuing public importance.
“‘An appellate court will not review questions which are moot and which are only of academic importance.’ [Citations.] A question becomes moot when, pending an appeal... events transpire that prevent the appellate court from granting any effectual relief. [Citations.]” (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 419.) Where an appeal raises issues of continuing public importance an exception exists which provides an appellate court the discretion to review moot questions. (See, e.g., Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1001.)
Because of the revocation of defendant’s probation for a violation of an unchallenged condition, the issue as to the challenged gang-related prohibitions is technically moot. We decline to exercise our discretion to address the merits as the issue is not significant enough and existing jurisprudence already provides an analogous framework of analysis. (See, e.g., People v. Murillo (2009) 171 Cal.App.4th 210, 217-218 [alcohol-related conditions upheld where no relation between the offense and alcohol use but where a history of alcoholism and drug abuse].)
FINES
The probation officer’s recommendation proposed a restitution fine in the amount of $800 plus a 10 percent administrative fee, for a total of $880, and a probation revocation restitution fine in the sum of $880. Without mentioning the administrative fee, at sentencing defense counsel requested, and the trial court granted, a reduction in the restitution fine to $200. The probation officer’s recommendation appears to have been hand annotated by the trial court to reduce the base restitution fine from $800 to $200 and left the administrative charge at 10 percent of the fine. The minute order also reflects this change. Thus the restitution fine equals a total of $200 plus the administrative charge.
Defendant contends that his probation revocation fine should be reduced to equal his restitution fine. The People agree the fines should have been set in equal amounts and do not oppose reducing the revocation fine to equal the restitution fine.
Penal Code section 1202.44 requires that the probation revocation restitution fine be set in the same amount as the restitution fine.
It appears that when the trial court reduced the restitution fine it overlooked that it was required to also reduce the probation revocation restitution fine to equal the same amount. (Pen. Code, § 1202.44.) Accordingly, we hold that the probation revocation restitution fine imposed on July 2, 2008, should also have been reduced to be in compliance with Penal Code section 1202.44.
Defendant’s letter brief also notes that the December 18, 2008, minute order imposes a restitution fine. However, it is not clear if this is a second fine or restatement of the previously determined fine amount. “Points raised for the first time in a reply brief ordinarily need not be considered [citations], and such abstention is even more appropriate where, as here, the issue is not even mentioned in the reply brief but only in a supplemental post briefing submission requested by the court. [Citation.]” (Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 777.)
Thus, while Penal Code section 1202.4 requires the trial court impose “[a] restitution fine,” we decline to address the issue of the fine indicated in the December 18, 2008 minute order.
DISPOSITION
The judgment is modified so that the probation revocation restitution fine is set at $200. As modified, the judgment is affirmed. The trial court clerk is directed to amend the sentencing minute order memorializing the judgment as amended with the probation revocation restitution fine set at $200. The trial court clerk is also directed to prepare an amended abstract of judgment based upon the new sentencing minute order and then forward the amended abstract to the Department of Corrections and Rehabilitation.
We concur: GAUT, J., KING, J.