People v. Rogers CA1/4 ( 2015 )

Filed 6/19/15 P. v. Rogers CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Appellant,
A142269
v.
MARIO ROGERS, (Contra Costa County
Super. Ct. No. 1405885)
Defendant and Respondent.
While on parole Mario Rogers, a registered sex offender, removed his GPS
monitor, attempted to use it as a communication device to call his parole agent for
assistance, and then sat down on a nearby curb for over an hour waiting for help to come.
What came was not help, but a petition to revoke his parole for violation of Penal Code
section 3010.101. The evidence at Rogers’s parole revocation hearing suggested that his
bizarre behavior was a product of mental illness, not an attempt to flee. The trial court
nevertheless revoked parole and ordered him incarcerated for 130 days in the county jail,
“deviat[ing]” downward from the 180 days specified in the statute because of the unusual
circumstances surrounding the violation.
The People appeal, contending that section 3010.10, by its express terms, requires
that Rogers serve 180 days and gives the trial court no discretion to impose a shorter
period of imprisonment. We are asked to reverse and remand with directions that Rogers
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“A person who is required to register as a sex offender...shall not remove,
disable, render inoperable, or knowingly circumvent the operation of...an electronic,
GPS, or other monitoring device affixed to his or her person as a condition of parole....”
All subsequent statutory references are to the Penal Code unless otherwise noted.
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be sent to jail for another 50 days. Instead, we conclude the appeal is moot. Because
Rogers recently completed his full term of parole, he is no longer subject to the
supervisory authority of the California Department of Corrections and Rehabilitation
(CDCR) or the jurisdiction of the superior court, and as a result, there is no longer any
possibility of our rendering effective relief on appeal.
The People urge us to exercise our discretion to decide the appeal notwithstanding
its mootness. They contend this is a matter of “continuing public importance,” given the
dearth of case law authority under section 3010.10. We do not see it that way. The
circumstances surrounding Rogers’ parole violation appear to be idiosyncratic and
situational. There is no basis to expect that, by dint of some policy or other circumstance
pointing to likely recurrence, this case presents an inherently transient controversy that is
bound to repeat itself and yet evade review. Aside from the importance that attaches to
proper and just disposition of all criminal matters in accordance with law, we also see
nothing here that is a matter of particularly weighty public importance.
Accordingly, without endorsing or intimating any view on what the proper length
of Rogers’s term of imprisonment for violating parole should have been under section
3010.10, we dismiss the appeal as moot on our own motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mario Rogers was placed on parole in May 2011 with a condition requiring him to
wear a Global Positioning System (GPS) ankle monitor. On March 13, 2014, the CDCR
and the Contra Costa County District Attorney filed a petition to revoke Rogers’s parole
pursuant to section 3000.08, subdivision (f). The petition alleged that on March 5, 2014,
Rogers removed his GPS monitor in violation of section 3010.10. An evidentiary hearing
on parole revocation occurred on April 15, 2014.
At the hearing, the evidence showed that Rogers had mental health issues and had
recently stopped taking his medication. Just prior to removing his GPS monitor, he had
gotten into a fight with his mother, who told him he had to find somewhere else to live.
Rogers made numerous unsuccessful attempts to contact his parole officer for advice and
assistance in finding housing, including repeatedly pressing a button on the GPS monitor
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that “notifies the parole office” that a parolee is attempting to contact his parole officer or
the agency. He ultimately broke and removed his ankle monitor on the assumption that
his agent would respond to his location. After he removed his monitor, he sat on a
nearby curb for more than an hour, fruitlessly waiting for help to arrive.
At the conclusion of the hearing, the court found that Rogers had violated his
parole and sustained the petition to revoke parole, reinstating it on the terms previously
imposed. A parole violation having been found, the prosecution sought imprisonment for
180 days and argued that the language of section 3010.10 mandates that length of
custody. The court reinstated Rogers’s parole, but chose to “deviate, based on the record
indicated by the court” from the 180-day recommendation and ordered 130 days in
custody. On July 1, 2014, the People appealed pursuant to section 1238, subdivision
(a)(10), which allows them to appeal from “the imposition of an unlawful sentence.”2
After completion of the initial round briefing on the appeal, we reviewed the
record, spotted a potential issue of mootness, and invited the parties to submit
supplemental briefs addressing (1) whether Rogers is still on parole, and (2) if not,
whether the appeal should be dismissed as moot. The parties have now submitted their
supplemental briefs. They agree that Rogers is no longer on parole, having been
discharged on May 11, 2015, but they disagree on whether the appeal should be
dismissed as moot.
II. DISCUSSION
Moot cases are “ ‘[t]hose in which an actual controversy did exist but, by the
passage of time or a change in circumstances, ceased to exist.’ [Citation.]” (Wilson &
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Appellant has not raised the issue, but whether the trial court’s parole revocation
order remanding Rogers to custody is properly considered a “sentence” for purposes of
section 1238, subdivision (a)(10) may be open to question. The statutes dealing with
parole supervision and revocation give the superior court the authority to “impose a term
of custody” (§ 3000.08) for violations of parole and do not refer to an order returning a
parolee to custody as a “sentence” but rather as “reinprisonment” (§ 3056). Because we
see a more fundamental defect here and order dismissal on that ground, as explained
below, we simply note this issue and do not address whether the People’s appeal was
properly taken from the imposition of an “unlawful sentence” under section 1238,
subdivision (a)(10).
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Wilson v. City Council of Redwood City (2011) 191 Cal. App. 4th 1559, 1573.) In
assessing mootness, “[t]he pivotal question . . . is . . . whether the court can grant the
plaintiff any effectual relief. [Citations.] If events have made such relief impracticable,
the controversy has become ‘overripe’ and is therefore moot.” (Id. at p. 1574.) Thus,
“[a]n appeal becomes moot when, through no fault of the respondent, an event occurs that
renders it impossible for the appellate court to grant the appellant effective relief.” (In re
Esperanza C. (2008) 165 Cal. App. 4th 1042, 1054.) “Ordinarily, a moot appeal will be
dismissed. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669.)
Although the parties have not raised the question of mootness, the court may examine a
suggestion of mootness on its own motion.” (City of Hollister v. Monterey Ins. Co.
(2008) 165 Cal. App. 4th 455, 479.)
A. The Court Lost Jurisdiction After Rogers’ Period of Parole Ended and
the Bench Warrant Power Expired With the Loss of Jurisdiction
“ ‘Parole is the conditional release of a prisoner who has already served part of his
or her state prison sentence.’ ” (In re Taylor (2015) 60 Cal. 4th 1019, 1037.) Penal Code
section 3000 et seq. regulates the length and terms of parole for inmates released from
state prison. “ ‘Once released from confinement, a prisoner on parole is not free from
legal restraint, but is constructively a prisoner in the legal custody of state prison
authorities until officially discharged from parole.’” (In re Taylor, supra, 60 Cal. 4th
1019, 1037.) (Italics added.)
The Criminal Justice Realignment Act of 2011 (Realignment) established “a
uniform process for revocation of parole, probation, and postrelease supervision of most
felons. . . .Under this uniform procedure, the court has jurisdiction over petitions for
revocation of supervision (including parole).” (Williams v. Superior Court (2014) 230
Cal. App. 4th 636, 643; § 1203.2.) After July 1, 2013, most paroled individuals are
supervised by the CDCR, but are under dual jurisdiction of the CDCR and the superior
court in the county where the parolee is released or resides for purposes of parole
revocation. (§§ 3000.08, 3056, subd. (b).) Although the superior court has been vested
with jurisdiction in parole revocation hearings, that jurisdiction is not without limits. Just
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as a court’s jurisdiction expires once an individual is off probation, its jurisdiction is also
at an end when an individual’s term of parole is completed.
The People suggest that we could authorize the trial court to issue a bench warrant
for the return of Rogers for a further appearance before it, with instructions to remand
him to jail for an additional 50 days. But section 3000, subdivision (b)(9)(A), makes
clear that “[o]n and after July 1, 2013, the sole authority to issue warrants for the return to
actual custody of any state prisoner released on parole rests with the court pursuant to
Section 1203.2” except in cases of prisoners who have escaped or are released prior to
their scheduled release date. And section 1203.2, subdivision (a)(5) specifically
authorizes the court to issue a warrant for a parolee’s arrest “[a]t any time during the
period of supervision.” (Italics added.) Accordingly, once the period of parole
supervision expires, so does the court’s authority to bring an individual into court on a
bench warrant.
We therefore agree with Rogers that there is no longer any possibility of our
rendering effective relief on appeal. Since Rogers had no hand in bringing about these
procedural circumstances, we conclude the appeal is moot.
B. We Decline to Exercise Our Discretion to Decide the Merits
Alternatively, the People argue that even if we determine the appeal to be moot,
we should exercise our discretion to decide the merits because the case presents “an issue
of recurring statewide importance.” Under the public importance exception to the
mootness doctrine, “ ‘[i]f an action involves a matter of continuing public interest and the
issue is likely to recur, a court may exercise an inherent discretion to resolve that issue,
even though an event occurring during its pendency would normally render the matter
moot.’ ” (Giraldo v. Department of Corrections & Rehabilitation (2008) 168
Cal. App. 4th 231, 259.) This exception “applies to those controversies that are capable of
repetition and yet evading review.” (Tiffany A. v. Superior Court (2007) 150 Cal. App. 4th
1344, 1352.)
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We recognize that the public importance exception to mootness can have
particular utility “in the area of the supervision of the administration of criminal justice.”
(In re Walters (1975) 15 Cal. 3d 738, 744.) But it must be borne in mind that deciding
moot appeals is something we do only in exceptional circumstances where it is clear that
a short-lived controversy is likely to arise again and again, generally as a result of some
official policy. (See, e.g., ibid. [ongoing court policy of shackling juveniles deemed
likely to reoccur]; In re William M. (1970) 3 Cal. 3d 16 [challenge to specific court’s
blanket policy of detaining juveniles accused of selling marijuana without conducting
requisite inquiries]; United States v. Howard (9th Cir. 2007) 480 F.3d 1005 [challenge to
district-wide policy requiring leg restraints during defendants’ initial appearances fell
under exception to mootness doctrine]; Oregon Advocacy Ctr. v. Mink (9th Cir. 2003)
322 F.3d 1101, 1118 [challenge to state policy that resulted in delayed acceptance of
criminal defendants into mental hospital properly addressed under exception to mootness
doctrine].)
There are no such circumstances here. We also see nothing of heightened public
importance to deciding whether Rogers must serve an additional 50 days’ jail time.
There is no indication, for example, that the trial court here had a blanket practice of
flouting Section 3010.10. To the contrary, the court specifically indicated that it was
choosing to “deviate” from the 180-days prescribed in the statute “based on the record”
established at the evidentiary hearing. The court recognized the “unusual and
extenuating circumstances” of this particular case, and noted that it could not “remember
a circumstance where somebody disabled, or dislodged, or took off the GPS device, and
then sat and waited for the police to come.” If this ruling was contrary to the mandatory
terms of section 3010.10, we do not endorse it. But we also do not see it as a matter of
consequence beyond this particular case.
The People point out in their supplemental letter brief that there are no published
opinions interpreting section 3010.10. They also note that, as part of Realignment, a
large number of individuals are becoming eligible for parole after one year of continuous
custody (§ 3001, subd. (a)(2)) and many will be discharged before review of any
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appellate issues raised by the People can be undertaken. Because section 3010.10 is of
recent vintage—it went into effect as of January 2014—the dearth of decided cases
applying the statute is not surprising. The unusual facts of this case make it a poor
vehicle in which to begin expounding on the statute’s meaning. Moreover, California
Code of Regulations, title 15, section 2535, subdivision (b)(4), defines “continuous
parole” as a period in which a parolee has not absconded from parole or had his parole
revoked since his initial release from confinement, so such individuals would not be
coming before the court on a petition to revoke their parole. In these cases, the law
provides for a 30-day review period during which time the CDCR can recommend, upon
a finding of good cause, that the individual be retained on parole. (§ 3001, subd. (a)(2).)
Thus, the parole authorities have an avenue to ask the court to retain jurisdiction in the
posited scenario, should they choose to do so.
We choose not to exercise our discretion to review the merits in spite of a finding
of mootness.
III. DISPOSITION
The appeal is dismissed.
_________________________
Streeter, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Rivera, J.
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