Opinion
C087768
11-20-2019
THE PEOPLE, Plaintiff and Respondent, v. JASON LEE TUCKER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR24632)
Defendant Jason Lee Tucker repeatedly violated the terms of his post release community supervision. For one violation, the court ordered him to serve 180 days in county jail and also ordered him to commence a 180-day residential treatment program immediately upon his release from jail.
On appeal, defendant contends the court abused its discretion in ordering him to serve 180 days in jail and 180 days in the residential treatment facility. He argues that imposing both jail and residential treatment violated Proposition 36 (as approved by voters, Gen. Elec. (Nov. 7, 2000, eff. Nov. 8, 2000) that generally governs dispositions for drug-related supervision violations, and the court was statutorily prohibited from sentencing him to jail and rehabilitation for a combined period that exceeded 180 days. We shall dismiss the appeal as moot as defendant's period of community supervision has expired.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant pleaded guilty to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), and was sentenced to serve four years in state prison. Upon his release from prison in March 2016, he entered into community supervision until May 2, 2019, under the supervision of the Amador County Probation Department. As a condition of his community supervision, defendant was ordered by his probation officer to participate in rehabilitation programming.
Undesignated statutory references are to the Penal Code.
In June 2016, the probation department filed a petition in the superior court to revoke defendant's community supervision, alleging defendant violated the terms of his release by testing positive for controlled substances and by failing to report to the probation department. Defendant admitted the petition allegations. The court ordered defendant to serve 45 days in county jail and to report to the probation department upon his release. He was reinstated on community supervision.
In July 2016, the probation department filed a second petition to revoke defendant's community supervision alleging defendant failed to report to the probation department as ordered. Defendant admitted violating the terms of his release by failing to report and the court ordered him to serve 90 days in jail and reinstated him on community supervision.
In October 2017, the probation department petitioned to revoke defendant's community supervision for a third time, alleging his failure to participate in drug and alcohol rehabilitation programming resulted in his termination from the program. According to the petition, in March 2017 defendant was ordered to participate in weekly outpatient drug and alcohol treatment, and on September 27, 2017, he was terminated from his drug and alcohol treatment program for excessive absences. Following a contested hearing, the court found the allegations true, sentenced defendant to serve 48 days in jail, and reinstated his community supervision. It also ordered him to participate in drug treatment as required by the terms and conditions of his community release.
In January 2018, the probation department filed a fourth petition to revoke defendant's community supervision alleging he failed to participate in rehabilitation programming as ordered, failed to comply with probation department instructions, and failed to abstain from using controlled substances. The probation department recommended defendant be sentenced to serve 180 days in jail, and that the court reinstate his community supervision with the additional term that he complete a residential drug treatment program. After a contested hearing in March 2018, the court found the allegations true. As requested by the probation department, the court ordered defendant to serve 180 days in county jail and then 180 days in a rehabilitation program. Attending the rehabilitation program was made a condition of defendant's community supervision.
In June 2018, the probation department filed a fifth petition to revoke defendant's community supervision. The petition alleged defendant failed to participate in rehabilitation programming, and again requested that the court sentence him to serve 180 days in jail and reinstate his community supervision with an additional condition that he serve 180 days in a residential treatment program.
Following a contested hearing on July 5, 2018, the court found the allegation true. It ordered defendant to serve 180 days in the county jail to be followed by 180 days in a residential treatment program as an additional condition of defendant's community supervision. Defendant timely appealed.
DISCUSSION
Defendant contends the trial court abused its discretion by ordering him to serve 180 days in jail followed by 180 days in residential treatment because the terms conflicted with the "spirit" of Proposition 36, which was intended to admit nonviolent drug offenders into substance abuse treatment programs rather than incarcerating them (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7, 2000), § 3), given that the court did not find he was a danger to others or otherwise not amenable to treatment (§ 3063.1). Instead, defendant argues the court should have issued a lesser jail sanction and then ordered residential treatment, the combined total of which did not exceed 180 days so as to comply with section 3455, which limits a period of confinement for a community supervision violation to 180 days in county jail.
We do not reach defendant's contention on appeal, however, because the record shows his appeal is moot. Defendant's period of community supervision expired on May 2, 2019. That date has now passed, and defendant has presumably been discharged from community supervision. (§ 3451, subd. (a) ["Notwithstanding any other law and except for persons [convicted of certain crimes], all persons released from prison on and after October 1, 2011 . . . shall, upon release from prison and for a period not exceeding three years immediately following release, be subject to community supervision provided by the probation department of the county to which the person is being released"].)
It is not an appellate court's function to render opinions upon moot questions or abstract principles of law, or to declare rules of law that can have no effect on the matter before the court. (People v. Rish (2008) 163 Cal.App.4th 1370, 1380.) " '[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.' " (Ibid.) Because the deadline for community supervision has expired, our resolution of the issues raised by defendant can offer him no effective relief. We therefore dismiss the appeal as moot. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1198.)
Defendant argues that even if his claim of error is technically moot, because his appeal raises issues that are likely to recur on a statewide basis, we should decline to dismiss on mootness grounds. But other published decisions have already held individuals may not be incarcerated for violations of community supervision conditions in a manner that conflicts with Proposition 36. (See, e.g., People v. Gutierrez (2016) 245 Cal.App.4th 393, 404 [holding section 3455 may not be applied "in a manner that is inconsistent with the treatment requirements of Proposition 36"]; People v. Armogeda (2015) 233 Cal.App.4th 428, 436 [holding section 3455 invalid to the extent it permits incarceration of nonviolent drug offenders under circumstances not permitted by Proposition 36].) We therefore decline to exercise our discretion to consider the moot issues.
DISPOSITION
The appeal is dismissed as moot.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
MAURO, J.