Filed 12/6/19 P. v. Aguilar 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

HECTOR RAMON AGUILAR,

Defendant and Appellant.

E067738

(Super.Ct.No. 16CR-068920)

OPINION

APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Dismissed.

John E. Edwards, 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, Arlene A. Sevidal, Stacy Tyler, and A. Natasha Cortina, 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 June 11, 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 Hector Ramon Aguilar’s arguments that the electronics search condition that was imposed as a term of his probationary supervision was unreasonable and unconstitutionally overbroad and the San Bernardino County Superior Court had no jurisdiction to add the electronics search condition upon transfer of the case to that county, 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

On July 9, 2013, defendant transported methamphetamine and delayed or resisted a peace officer.

On April 9, 2014, an information was filed charging defendant and a codefendant with transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and resisting or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)).

On May 29, 2014, defendant pleaded guilty as charged.

On May 6, 2015, the Riverside County Superior Court granted defendant formal probation for a period of three years on various terms and conditions of probation.

On August 29, 2016, the Riverside County Probation Department filed a notice and motion to transfer defendant’s case to San Bernardino County.

On November 10, 2016, after the San Bernardino County Probation Department verified that defendant had permanently relocated to San Bernardino County, the Riverside County Superior Court granted the motion to transfer defendant’s case to San Bernardino County.

On December 16, 2016, the San Bernardino County Probation Department filed a report requesting additional terms and conditions in San Bernardino County, including that defendant “Submit to search and seizure by a [government entity] of any electronic device that you are an authorized possessor of pursuant to P[enal ]C[ode section ]1546.1 [subdivision] (c)(10).”

On February 8, 2017, the San Bernardino County Superior Court held a probation modification hearing. At that time, defendant’s counsel objected to the imposition of the electronics search condition as unconstitutionally overbroad, vague, and in violation of defendant’s right to privacy. Defense counsel pointed out that “‘any government entity’” was a “very broad term” and it could be “anybody who works for the government.” Defendant’s counsel also objected to the condition as “having no nexus” to the facts of defendant’s case. Defense counsel noted that the case had been transferred to San Bernardino County and that there was no factual background reflected in the file from which one could determine whether defendant simply had drugs in his car or whether a cell phone or electronic device was used in the crime or to facilitate the transportation. The court noted that defendant had pleaded guilty to transportation of drugs, and commented that, in the court’s opinion, the challenged condition was related to the crime. The court, however, modified the condition to track the language of Penal Code section 1546.1, subdivision (c)(10), to read as follows: “‘Submit to a search and seizure by a law enforcement officer of any electronic device that you are an authorized possessor of pursuant to Penal Code Section 1546.1[, subdivision ](c)(10) except where prohibited by state or federal law.’” As modified, the court thereafter continued defendant on probation under various terms and conditions of probation.

III

DISCUSSION

On May 6, 2015, the Riverside County Superior Court placed defendant on formal probation for a period of three years on various terms and conditions of probation. Defendant’s probation expired on May 5, 2018. Thus, based on the record before us, defendant is no longer under probation supervision and is no longer subject to the electronics search condition.

After we vacated our prior opinion, we requested supplemental briefing from the parties. The People filed a supplemental brief arguing that the appeal is moot because defendant’s term of mandatory supervision has expired. Defendant did not file any supplemental briefing

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 arguments on appeal are limited to the reasonableness and constitutionality of his electronics search condition and the trial court’s discretion to impose that condition upon transfer of the case. A probation condition challenge becomes moot after probation 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 conditions 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 his probation because we would be unable to grant him 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 conditions requires a fact-based inquiry into the circumstances of his 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:

MILLER

Acting P. J.

FIELDS

J.