People v. Boyer CA2/8 ( 2014 )


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  • Filed 11/3/14 P. v. Boyer CA2/8
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
    SECOND APPELLATE DISTRICT
    DIVISION EIGHT
    THE PEOPLE,                                                          B255335
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. PA075864)
    v.
    ANDRE PIERRE BOYER,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los Angeles County,
    Lloyd M. Nash, Judge. Dismissed.
    California Appellate Project, Jonathan B. Steiner and Richard B. Lennon, under
    appointment by the Court of Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
    General, Yun K. Lee and Corey J. Robins, Deputy Attorneys General, for Plaintiff and
    Respondent.
    ************
    In October 2012, Andre Pierre Boyer was convicted of sexual battery, requiring
    him to register as a sex offender. In this case, he was charged with one count of failing to
    register (Pen. Code, § 290, subd. (b))1 and one count of disobeying a court order (§ 166,
    subd. (a)(4)). He pled no contest to the counts and was sentenced to 16 months in state
    prison. He claims a component of his plea was that the trial court would delay his
    sentencing long enough for him to accumulate enough presentence credits to avoid
    actually physically serving any time in state prison. Although the trial court did so, he
    was sent to a state prison for what appears to be an overnight stay for processing and he
    has since been released. He argues that was a breach of his plea agreement. Because he
    has been released and we can grant no effective relief to him, we dismiss the appeal as
    moot.
    On November 20, 2013, appellant pled no contest to both counts “open . . . to the
    court over the People’s objections.” The trial court indicated it planned to sentence him
    to 16 months in state prison, but because appellant’s primary concern in pleading no
    contest was to avoid actually serving any time in state prison, the court continued the
    sentencing to March 17, 2014. On that date, appellant was indeed sentenced to the low
    term of 16 months on count one, with 442 days of custody and conduct credit (221 days
    of actual custody and 221 days for good time/work time), and a concurrent term of 180
    days in county jail on count two, with the same number of custody and conduct credits.
    At the conclusion of that hearing, the trial court said, “Okay. They will turn you around.
    Good luck to you, sir.” According to the court’s sentencing minute order, the court
    remanded appellant to “state prison” and directed that appellant be transported to the
    Department of Corrections and Rehabilitation “for a forthwith commitment.”
    1       All further statutory references are to the Penal Code unless otherwise noted.
    2
    Judgment was entered on April 2, 2014, and appellant filed a notice of appeal
    challenging “the sentence or other matters occurring after the plea.” He did not obtain a
    certificate of probable cause.2
    According to a one-page document from the Los Angeles County Sheriff’s
    Department Inmate Information Center we have judicially noticed, appellant was
    assigned to a “housing location” at Wasco State Prison on April 23, 2014, at the time of
    “2322” (presumably military time for 11:22 p.m.) and released the next morning,
    April 24, 2014, at the time of “0956” (again, presumably military time for 9:56 a.m.).
    The document indicates his sentence imposed on March 17, 2014, was for “0” days.
    Appellant does not contend he spent any more than this single night in state prison.
    Generally, when no effective relief can be granted to an appellant, his or her
    appeal is moot and will be dismissed. (People v. Travis (2006) 
    139 Cal.App.4th 1271
    ,
    1280.) Appellant contends his brief 10-hour stay at Wasco State Prison breached the plea
    agreement not to spend any time in state prison and the appropriate relief is to allow him
    to withdraw his no contest plea. But allowing him to withdraw his no contest plea would
    not remedy the alleged breach because he still will have stayed in state prison for one
    night. To the contrary, if he withdraws his plea, he will almost certainly be subject to
    renewed prosecution with as real the prospect of prison time, given the plea deal he
    received from the trial court was over the prosecution’s objections.
    Moreover, the traditional rule is that if a defendant has already served his or her
    sentence, the appeal is moot and the defendant is precluded from attacking either the
    sentence or the conviction. (People v. Delong (2002) 
    101 Cal.App.4th 482
    , 487.) There
    are exceptions, such as when the sentence may have “‘disadvantageous collateral
    consequences’” (People v. Ellison (2003) 
    111 Cal.App.4th 1360
    , 1368-1369) or the
    defendant has an interest in “clearing his name” (Delong, supra, at p. 487), but those
    2      Appellant’s notice of appeal was filed after the trial court announced his sentence
    on March 17, 2014, but one day before judgment was entered on April 2, 2014. We
    nevertheless treat it as timely. (Cal. Rules of Court, rule 8.308(c).)
    3
    exceptions do not apply here. The plea agreement already included a state prison
    sentence -- with its attendant stigma and collateral consequences -- and appellant has
    identified no additional collateral consequences or stigma attached to actually staying in
    state prison for one night. He has also given no indication he will spend any more time in
    state prison on this conviction absent a change in circumstances.
    DISPOSITION
    Appellant’s appeal is dismissed.
    FLIER, J.
    WE CONCUR:
    BIGELOW, P. J.
    RUBIN, J.
    4
    

Document Info

Docket Number: B255335

Filed Date: 11/3/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021