Filed 12/23/19 P. v. Newsome CA5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DONALD RAY NEWSOME,

Defendant and Appellant.

F072825

(Super. Ct. No. F15905797)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Glenda S. Allen-Hill, Judge.

Lauren E. Dodge, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kari Ricci Mueller, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In October 2015, appellant Donald Ray Newsome was placed on formal probation for three years after he pleaded no contest to willful infliction of corporal injury (Pen. Code, § 273.5, subd. (a)). He appealed, arguing an electronic search condition imposed as a condition of probation was unconstitutionally overbroad and was unreasonable under People v. Lent (1975) 15 Cal.3d 481, superseded by statute (on other grounds) as stated in People v. Moran (2016) 1 Cal.5th 398, 403, footnote 6. He also argued that a condition of probation prohibiting his possession of firearms was unconstitutionally vague.

In 2017, this court affirmed appellant’s judgment in an unpublished opinion. (People v. Newsome (Apr. 12, 2017, F072825).) Appellant filed a petition for review with the California Supreme Court. His appeal was limited to the issue of the validity of the electronic search condition imposed against him.

On June 28, 2017, the high court granted the petition for review. On October 16, 2019, the Supreme Court transferred this matter back to this court with directions to vacate its decision and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113.

On October 18, 2019, we alerted the parties that they could serve and file a supplemental opening brief following transfer from the Supreme Court. On October 29, 2019, respondent filed such a brief.

Respondent asserts this appeal is now moot because appellant’s three-year probation term expired. Respondent states it contacted the prosecuting deputy district attorney, who indicated that appellant’s probation in this matter was set to expire on October 18, 2018, and there was no indication the probation term had been extended. Respondent further states it communicated with appellant’s counsel, who concurred the present appeal is moot. According to respondent, the parties agree any “mootness exception” is inapplicable.

Appellant did not file a supplemental brief or otherwise dispute the assertions set forth in respondent’s supplemental brief.

On November 18, 2019, we issued an order vacating the prior opinion filed in this matter. The case was deemed submitted for decision.

DISCUSSION

An action that originally presents a justiciable controversy cannot be maintained on appeal if all the questions subsequently become moot. (In re Dani R. (2001) 89 Cal.App.4th 402, 404.) An issue is moot when an event occurs which renders it impossible for an appellate court to grant effectual relief. (People v. DeLeon (2017) 3 Cal.5th 640, 645.) In such a situation, a reversal would be without practical effect so such an appeal should be dismissed. (Los Angeles Internat. Charter High School v. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1354; Jordan v. County of Los Angeles (1968) 267 Cal.App.2d 794, 798.)

We agree with the parties that appellant’s appeal is moot. This appeal involved issues stemming from a three-year term of probation that started in 2015. That term was set to expire in 2018, and nothing suggests it was extended. As such, although the appeal originally presented justiciable controversies, we can no longer provide a meaningful disposition. We are unable to grant appellant effectual relief. Under these circumstances, it is appropriate to dismiss this appeal.

We agree with the parties that any “mootness exception” is inapplicable. Even when moot, an appellate court may still address an appellate issue. Appellate courts do so when the issue resolves a question of public importance with a likelihood of recurrence. (See In re Sheena K. (2007) 40 Cal.4th 875, 879; People v. Carbajal (1995) 10 Cal.4th 1114, 1120, fn. 5.)

In light of our high court’s opinion in In re Ricardo P., supra, 7 Cal.5th 1113, the issue regarding appellant’s electronic search condition is not one of first impression. Moreover, the issues which appellant raised are factually intensive to his situation and the terms of his probation. Under these circumstances, we will not exercise our discretion to address appellant’s claims. Accordingly, we dismiss this appeal.

DISPOSITION

The appeal is dismissed as moot.