Filed 12/9/19 P. v. Gordon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

RALPH GORDON,

Defendant and Appellant.

E068521

(Super.Ct.No. FWV17000054)

OPINION

APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson, Judge. Dismissed.

Forest M. Wilkerson, 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, Andrew Mestman and Michael D. Butera, 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 December 28, 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 Ralph Gordon’s arguments that the San Bernardino County Superior Court had no jurisdiction to add terms not previously imposed in Los Angeles County, the electronics search condition that was imposed as a term of his mandatory supervision was unreasonable and unconstitutionally overbroad, the condition requiring him to obtain the probation officer’s written permission before leaving the state was unconstitutionally overbroad and infringed on his right to travel, 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 October 20, 2015, defendant, who was the driver of a four-door vehicle, was involved in a road rage incident after he was cut off by the victim, who was riding a motorcycle. Defendant became angry with the victim, drove across several lanes of traffic to get in front of the victim, and then stopped his vehicle abruptly, causing the victim to slam into defendant’s vehicle and suffer serious injuries. After the victim crashed into defendant’s vehicle, defendant got out of his car and snapped photographs of the prone victim with his mobile telephone while saying, “That’s what you get, [expletive].”

On November 17, 2015, an information was filed in Los Angeles County charging defendant with assault with a deadly weapon, to wit, a vehicle (Pen. Code, § 245, subd. (a)(1)). The information also alleged that in the commission of the offense, defendant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).

On July 28, 2016, pursuant to a negotiated plea agreement, defendant pleaded no contest to assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)) and admitted the great bodily injury enhancement allegation. In return, defendant was promised a grant of probation on various terms and conditions of probation.

On August 31, 2016, in accordance with his plea agreement, the Los Angeles County Superior Court placed defendant on probation for a period of three years on various terms and conditions of probation, including serving 90 days in county jail.

On December 23, 2016, the Los Angeles 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 Los Angeles County Superior Court granted the motion to transfer defendant’s case to San Bernardino County.

On March 27, 2017, the San Bernardino County Superior Court accepted jurisdiction over defendant and the matter was set for a probation modification hearing.

On April 20, 2017, the San Bernardino County Probation Department filed a report requesting additional terms and conditions in San Bernardino County, in order to ensure that officer safety and offender compliance were added to defendant’s probationary terms and conditions. In relevant part, the proposed new terms and conditions were as follows:

“019A Not associate with persons known to defendant to be convicted felons or anyone actively engaged in criminal activity, or the co-defendant(s), except those involved in recovery/rehabilitative services.

“007 Not leave the State of California without first obtaining written permission of the Probation Officer.

“08F Permit visits and searches of places of residence by agents of the Probation Department and/or law enforcement for the purpose of ensuring compliance with the terms and conditions of probation; not do anything to interfere with this requirement, or deter officers from fulfilling this requirement, such as erecting any locked fences/gates that would deny access to Probation Officers, or have any animals on the premises that would reasonably deter, threaten the safety of, or interfere with officers enforcing this term.

“004A Report to the Probation Officer in person immediately or upon release and thereafter as directed. If you are removed from the United States, you are to report to the Probation Officer by phone or mail within fourteen (14) days of your release from immigration custody and inform Probation of your address and phone number.

“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 May 30, 2017, the San Bernardino County Superior Court held a probation modification hearing. At that time, defense counsel objected to the electronic device search condition, arguing it violated defendant’s Fourth Amendment right and as having no “nexus or ties to the offense.” Defense counsel also noted that there was no change of circumstances to allow the additional term. The trial court disagreed, ordered the additional terms and conditions, including the electronic device search condition, and continued defendant on probation. The court explained “as a . . . felony probationer, he does sacrifice some Fourth Amendment issues. The Bravo[ ] search term is really more intrusive than that particular paragraph regarding electronic devices, certainly. And that is certainly an appropriate term of probation to impose in virtually every single case. Given this day and age, it seems to be an appropriate tool for the probation department to monitor [defendant]. I don’t think it’s overbroad. It seems to be easily related to felony probation as a felony probationer. [¶] And for those reasons—I’ll note the objection. I will impose it. If it is something that becomes burdensome, and if he feels that the probation department is using that tool unfairly, he can certainly address it in the future.” The court later noted that “I think it’s a tool that’s available to probation. I think it assist[s] their monitoring in supervising. I think I could add that term, if it’s appropriate for our County. I think it is. [¶] And I mention Bravo because those are—that’s certainly a waiver of his Fourth Amendment rights. No different than what’s being asked in this case. So it will be imposed.”

III

DISCUSSION

On August 31, 2016, the Los Angeles County Superior Court placed defendant on probation for a period of three years. Thus, based on the record before us, defendant is no longer under probation supervision and is no longer subject to the conditions that he challenges on appeal.

After we vacated our prior opinion, we requested supplemental briefing from the parties. The People filed a supplemental brief arguing, among other things, that the appeal is moot because defendant’s term of probation 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 probation conditions and the trial court’s discretion to impose additional probation conditions. 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. First, neither party has identified any reason to do so here. 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 probation 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

Acting P. J.

We concur:

SLOUGH

J.

FIELDS

J.