Opinion
H043118
12-04-2019
THE PEOPLE, Plaintiff and Respondent, v. PAUL MARKO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1502747)
In our prior opinion in this matter, we rejected defendant Paul Marko's arguments that the electronics search condition that was imposed as a term of his mandatory supervision was unreasonable and unconstitutionally overbroad and affirmed the judgment. This case is before us again after the California Supreme Court granted review, deferred briefing, and transferred the matter back to this court with directions to vacate our prior decision and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.).
We hereby vacate our previous decision and, having reconsidered it, we dismiss the appeal as moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
Marko was charged by complaint filed on January 29, 2015, with felony transportation of oxycodone (Health & Saf. Code, § 11352, subd. (a); count 1), felony possession of oxycodone for sale (id., § 11351; count 2), misdemeanor possession of methamphetamine (id., § 11377, subd. (a); count 3), and misdemeanor possession of drug paraphernalia (id., § 11364; count 4). He subsequently pleaded no contest to all charges.
Prior to sentencing, defense counsel submitted written objections to several of the probation conditions set forth in the probation department's waived referral memorandum. The People filed an opposition to those objections. On December 14, 2015, the trial court placed Marko on probation, subject to various electronic search conditions allowing for warrantless search and seizure of his cell phone and other electronic devices and accounts, as well as requiring that he provide the necessary passwords to allow officers to access those devices and accounts. Marko was further restricted from accessing social networking sites or the Internet in general without prior approval from his probation officer and was prohibited from deleting his Internet browsing history.
A. Relevant factual background
By order dated February 2, 2016, we granted Marko's request to augment the record to include the police report, which details the facts of the underlying offenses. Because Marko pleaded no contest before a preliminary hearing or trial, we derive the facts from this report.
On January 13, 2015, Santa Clara Police Officer Eric Janssen was investigating narcotics crimes when he came across two postings on Craigslist, one entitled "Roxy relief no waiting" and the other entitled "Hand full of my Roxy blues (tickets)-$30." Janssen knew that Craigslist was often used by narcotics dealers to sell drugs and he also knew that "Roxy" was a common euphemism for oxycodone or oxycontin. Despite the different titles, the text of each post was identical: "I have tickets for the Roxy theater. Blues music in the 30/V or the K9 section (show times vary). I ONLY take orders 2+ and I DO NOT deliver or meet outside of my local area. Please email with serious inquiries and/or orders. $30 per ticket and non-negotiable. My business is legit, safe, fast, and easy. For faster service you can text only no calls at For oh hate seven hoe hate double oh 13 A215, Mbox, K9 V4812, Roxycodone." Janssen searched law enforcement databases and determined the phone number listed in the ads was a voice over Internet phone number which was associated with a cell phone application, Pinger.com.
Per the police report, Pinger.com supports both text messaging and voice calls. --------
Janssen used the listed phone number, indicating he was interested in "trying to get some blue 30$." He eventually arranged to meet with the seller on January 16, 2015, at a convenience store on Winchester Boulevard to purchase 10 oxycodone pills for $275. The seller informed Janssen that he would be in a silver Jeep.
When officers arrived, they observed Marko sitting in the driver seat of a silver Jeep backed into a space in the convenience store's parking lot. As the officers watched, a woman parked next to Marko's vehicle and spoke with him briefly before entering the store. When officers detained Marko shortly thereafter, he was carrying a baggie with 10 oxycodone pills. Following his arrest, police searched Marko's vehicle and found two more oxycodone pills, some methamphetamine, a methamphetamine pipe, 26 unidentified white pills in a prescription pill bottle, along with a Mason jar containing 12.6 grams of marijuana. Marko admitted to officers he was a drug dealer and that he had arranged to sell 10 oxycodone pills to Janssen.
Officers also arrested the woman they had observed interacting with Marko in the parking lot. She admitted that she purchased two oxycontin pills from Marko two weeks earlier after seeing his Craigslist ads. On the day of her arrest, she had also arranged to meet with Marko to purchase two more oxycontin pills from him.
II. DISCUSSION
On December 14, 2015, the trial court placed Marko on three years' formal probation. The Attorney General filed a supplemental brief arguing that the appeal is moot because Marko's term of mandatory supervision has expired. We received no supplemental briefing from Marko.
There is no indication in the record and neither the Attorney General nor Marko has notified us that this probationary period was extended. Accordingly, that probationary period has expired and Marko is no longer subject to the electronics search conditions that he challenges on appeal.
We agree with the Attorney General 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.) Marko's arguments on appeal were directed at the reasonableness and constitutionality of the electronics search conditions. As a result, his 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. Carbajal (1995) 10 Cal.4th 1114, 1120, fn. 5; People v. Moran (2016) 1 Cal.5th 398, 408, fn. 8; In re Charles G. (2004) 115 Cal.App.4th 608, 611.)
Moreover, although we retain the discretion to consider the merits of a moot appeal, we decline to do so here. The validity of electronics search conditions has already been addressed by the California Supreme Court in Ricardo P. There, the California 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 Marko's (expired) probation conditions requires a fact-based inquiry into the circumstances of his particular offense and does not present a question of continuing public importance. (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].)
III. DISPOSITION
The appeal is dismissed as moot.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Grover, J.