Filed 12/13/19 P. v. Smith CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JENNIFER MARIE SMITH,

Defendant and Appellant.

E068320

(Super.Ct.No. 16CR-070399)

OPINION

APPEAL from the Superior Court of San Bernardino County. Lisa M. Rogan, Judge. Dismissed.

Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sabrina Y. Lane-Erwin and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

This case is before us for the second time after the California Supreme Court granted review, deferred briefing, and transferred the matter back to this court with directions to vacate our prior decision filed July 27, 2018, and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). In our earlier opinion, we rejected defendant and appellant Jennifer Marie Smith’s arguments that the San Bernardino County Superior Court had no authority to modify the terms of her mandatory supervision and the electronics search condition was unconstitutionally overbroad and affirmed the judgment. We hereby vacate our previous decision and, having reconsidered the matter in light of Ricardo P., we dismiss the appeal as moot.

II

FACTUAL AND PROCEDURAL BACKGROUND

Sometime in 2013, using the Internet, defendant ordered checks in her name that included the bank account information of a couple who lived in Stanislaus County. The fraudulent checks did not contain the couples’ address, but an address in Delhi, California. The fraudulent checks were also a different design than the checks used by the couple. Defendant used four of the fraudulent checks, totaling several hundred dollars, at various businesses in Stanislaus and Merced counties.

On May 15, 2015, an information was filed in Stanislaus County charging defendant with four counts of misuse of personal identifying information (Pen. Code, § 530.5, subd. (a); counts 1, 4, 6, and 9), three counts of second degree burglary (§ 459; counts 2, 7 and 10), and four counts of possession of a completed check (§ 475, subd. (c); counts 3, 5, 8, and 11). The information also alleged that defendant had suffered one prior prison term (§ 667.5, subd. (b)).

On May 4, 2016, pursuant to a negotiated plea agreement, defendant pleaded no contest to one count of misuse of personal identifying information. In return, the remaining allegations were dismissed and defendant was promised a split three-year sentence with one year to be served in county jail and two years on mandatory supervision.

On May 20, 2016, the Stanislaus County Superior Court sentenced defendant in accordance with her plea agreement to one year in county jail and two years on mandatory supervision on various terms and conditions of supervision.

On December 9, 2016, the Stanislaus County Probation Department filed a notice and motion to transfer defendant’s case to San Bernardino County. After the San Bernardino County Probation Department verified that defendant had permanently relocated to San Bernardino, the Stanislaus County Superior Court granted the motion to transfer defendant’s case to San Bernardino County.

On March 21, 2017, the San Bernardino County Superior Court accepted jurisdiction over defendant and the matter was set for a probation modification hearing.

On April 14, 2017, the San Bernardino County Probation Department filed a report requesting additional terms and conditions in San Bernardino County in order to ensure officer safety and offender compliance be added to defendant’s mandatory supervisory terms and conditions. The proposed new terms and conditions included, among others, an electronics search condition, which provided as follows: “010B . . . [¶] Submit to search and seizure by a government entity of any electronic device that you are an authorized possessor of pursuant to PC 1546.1(c)(10).”

On April 20, 2017, the San Bernardino County Superior Court held a modification hearing of defendant’s supervisory terms. At that time, defense counsel objected to the additional mandatory supervision terms recommended by the San Bernardino County Probation Department. The prosecutor argued, “I think all of them are appropriate if the Court feels that they are reasonably related to the rehabilitation of the defendant. I think in reading them, I don’t think they are inappropriate. I think that both statute and case law seek to accomplish the goal with probation. So I think all of them are appropriate, and that if [defendant] wishes to transfer into this county for the remainder of her rehabilitation, these are terms which she should abide by.” Defense counsel responded that “the People are incorrect about the Court’s authority to add these in, when she has not been violated.” The court disagreed with defense counsel and explained: “No. The Court can impose terms and conditions at any time during the probationary period, if the Court believes that those are terms and conditions that would facilitate her in successful completion of probation. That’s the discretion of the Court when she goes on probation.” After defense counsel continued to disagree, the court continued the matter.

The continued modification hearing was held on May 4, 2017. At that time, defense counsel continued to object to the additional terms and conditions of mandatory supervision, arguing the court had no authority to modify defendant’s supervisory terms. Defense counsel further argued that imposing the additional terms “would be beyond the scope of the original plea intent” and original sentence. Defense counsel also objected to the electronics search condition as being unconstitutionally overbroad. The prosecutor responded that the court had authority to impose additional terms. The court agreed with the prosecutor and modified the terms of defendant’s mandatory supervision, striking some and modifying one. The court noted, “The Court’s understanding is that mandatory supervision is under the complete control of probation, and that they have the authority to impose terms as they deem necessary under mandatory supervision.” The court also pointed out that the terms are reasonably related to defendant’s crimes and will “allow for successful completion of mandatory probation.” As to the electronics search condition, the court stated: “the Court finds that based on the crime that she has pled to for identity theft, I find that that’s an important, especially in today’s world, that a lot of this is done by way of electronic means, gaining access to people’s identity, utilizing those identities by way of the internet, the Court will find that is not overbroad, because I know it says any electronic device, but to try to narrow that is an impossibility really. So I’m going to leave it in place.”

On May 22, 2017, defendant filed an amended notice of appeal.

In a nonpublished opinion filed July 27, 2018, this court rejected defendant’s contention that the San Bernardino County Superior Court had no authority to modify the terms of her mandatory supervision because no change in circumstances existed to justify the modification. We also rejected defendant’s argument that the electronics search condition imposed as a term of her mandatory supervision was unconstitutionally overbroad in violation of her due process rights and affirmed the judgment. Defendant subsequently filed a petition for review with the California Supreme Court.

On October 10, 2018, the California Supreme Court granted review and deferred briefing pending consideration and disposition of related issues in Ricardo P., supra, 7 Cal.5th 1113.

On October 23, 2019, the Supreme Court transferred the matter back to this court with directions to vacate our prior decision filed July 27, 2018, and reconsider the cause in light of Ricardo P.

After we vacated our prior opinion, we requested supplemental briefing from the parties. On November 4, 2019, defendant filed a supplemental brief, contending in light of Ricardo P., supra, 7 Cal.5th 1113, the electronics search condition must be stricken as unconstitutionally overbroad and in violation of her right to due process.

On December 2, 2019, the People filed a supplemental brief, arguing that the appeal is moot because on April 5, 2019, the trial court revoked defendant’s mandatory supervision and sentenced her to prison. In support, the People attached the trial court’s April 5, 2019 minute order.

III

DISCUSSION

The trial court’s April 5, 2019 minute order shows that the court terminated defendant’s mandatory supervision and sentenced her to 18 months in state prison. Thus, based on the record before us, defendant is no longer under mandatory supervision and is no longer subject to the electronics search condition.

We agree with the People that the appeal is moot. “‘[A]n 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, and the appeal will therefore be dismissed.’” (People v. Herrera (2006) 136 Cal.App.4th 1191, 1198; accord, People v. DeLeon (2017) 3 Cal.5th 640, 645 [“‘“[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.”].)

Defendant’s argument on appeal is limited to the constitutionality of her electronics search condition. A probation condition challenge becomes moot after probation or mandatory supervision is terminated or revoked. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1120, fn. 5; In re Charles G. (2004) 115 Cal.App.4th 608, 611.) A ruling on the validity of the challenged probation condition would have no practical effect and would not provide any effective relief. As a result, defendant’s appeal has been mooted by the termination of her mandatory supervision because we would be unable to grant her any effective relief on appeal. (People v. Moran (2016) 1 Cal.5th 398, 408, fn. 8.)

Although we retain the discretion to consider the merits of a moot appeal, we decline to do so here. First, neither party has identified any reason to do so. Second, the validity of the electronics search condition has already been addressed by the California Supreme Court in Ricardo P. There, the Supreme Court concluded that the electronics search condition imposed in that case was not reasonably related to future criminality and was therefore invalid under People v. Lent (1975) 15 Cal.3d 481. (Ricardo P., supra, 7 Cal.5th at p. 1128.) The Ricardo P. court expressly stated that it was not “categorically invalidat[ing] electronics search conditions” (ibid.) and noted that “[i]n certain cases, the probationer’s offense or personal history may provide . . . a sufficient factual basis from which [the trial court] can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality.” (Id. at pp. 1128-1129.) Thus, an analysis of the validity of defendant’s electronics search condition requires a fact-based inquiry into the circumstances of her particular offense and does not present a question of continuing public importance that will evade review. (See People v. Alsafar (2017) 8 Cal.App.5th 880, 883 [reviewing court may exercise discretion to consider moot issue if question is of continuing public importance and is capable of repetition, yet evading review].)

IV

DISPOSITION

The appeal is dismissed as moot.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

SLOUGH

J.