Opinion
D074272
09-19-2019
THE PEOPLE, Plaintiff and Respondent, v. BRYAN PARDA, Defendant and Appellant.
Cherise Bacalski, 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, Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. SCE368785/SCE369418) APPEAL from an order of the Superior Court of San Diego County, Desiree A. Bruce-Lyle, Judge. Dismissed. Cherise Bacalski, 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, Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Bryan Parda challenges an order revoking and reinstating his mandatory supervision with the modification of an additional 365 days in custody. He has already completed his custodial time, so any ruling we could make can have no practical effect and cannot provide Parda with effective relief. The modification did not lengthen the total term of Parda's mandatory supervision. We therefore dismiss this appeal as moot, pursuant to Spencer v. Kemna (1998) 523 U.S. 1, 12-14 (Spencer) and People v. DeLeon (2017) 3 Cal.5th 640, 645-646 (DeLeon).
BACKGROUND
Procedural Background
Parda pleaded guilty in two cases on April 12, 2017, case Nos. SCE368785 (785) and SCE369418 (418). In case No. 785, Parda pleaded guilty to one charge of using the personal identifying information of another (Pen. Code, § 530.5, subd. (a)), and admitted that he had one prison prior felony conviction (§ 667.5, subd. (b)). The prosecutor dismissed five other felony and misdemeanor counts and the parties stipulated to a sentence of four years of custody, split between one year in custody and three years of mandatory supervision. In case No. 418, Parda pleaded guilty to one count of unlawfully taking and driving a motor vehicle (Veh. Code, § 10851, subd. (a)), and admitted a prior vehicle theft conviction (§ 666.5, subd. (a)), in exchange for dismissal of two other felonies and a concurrent term of four years, split between one year in custody and three years of mandatory supervision.
Further statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced Parda in accordance with the plea deal on May 10, 2017, to a split sentence of one year in local custody and three years of mandatory supervision.
Parda completed his year in custody and was released to mandatory supervision in October 2017. Within two weeks, Parda used methamphetamine while at his sober living house, failed to report for a drug test, failed to report to the probation office as ordered, failed to return to the sober living house, and cut off his GPS device. He swallowed 40 grams of methamphetamine and was taken to a hospital where he was arrested. Parda admitted a probation violation. Mandatory supervision was reinstated with the modification of an additional 365 days in custody and an order to complete a residential treatment program upon his release.
Parda was released from his second custodial term on May 1, 2018, and was arrested two days later for violating his mandatory supervision. After an evidentiary hearing, the trial court found that Parda had intentionally failed to go to a drug rehabilitation program by refusing to take the medication necessary for him to be admitted to the program. The court revoked mandatory supervision and reinstated it with the modification of an additional term of custody of 365 days. Parda filed a timely notice of appeal.
Probation Revocation Evidentiary Hearing
We briefly describe the testimony at the evidentiary hearing in light of our dismissal of this case.
Parda was released from custody on May 1, 2018, to serve the rest of his term on mandatory supervision. Probation officer Ahine Nunez picked him up at the jail and transported him to the Community Transition Center (CTC) and from there to Casa Raphael, a residential treatment program in northern San Diego County. Parda told Nunez that he was not happy to be placed at Casa Raphael because he wanted to be located more centrally, near his friends and family. Nunez heard the next day that Casa Raphael rejected Parda because he had a seizure disorder but had no medication for the disorder. She scheduled a doctor's appointment for him at 1:00 p.m. on May 3 to obtain medication for his disorder.
Probation Officer Robert La Mere was Parda's supervisor while Parda was on mandatory supervision. An intake coordinator from Casa Raphael identified only as Tina, called La Mere and reported that Parda said he did not have a serious drug problem and did not want to be at Casa Raphael. La Mere talked with Parda on the phone. Parda told La Mere that he did not want to be at Casa Raphael because of its location and asked to be placed elsewhere. After talking it over with La Mere, Parda told La Mere he would give it a try. La Mere thought it was settled that Parda would go to Casa Raphael.
Tina did not appear as a witness. Parda argues on appeal that the trial court abused its discretion when it admitted and relied upon Tina's hearsay statements. We do not reach that issue in light of our dismissal of the appeal as moot.
La Mere spoke with Tina by phone the next day, and again, Tina said that Parda did not want to enter the program at Casa Raphael. Tina told La Mere that she asked Parda about his medical history and Parda said he had seizures from time to time. La Mere testified that Tina said Parda refused her offer of a doctor's appointment, saying that he used marijuana to prevent seizures and did not like medications. La Mere concluded that Parda was trying to manipulate what program he would go to, and that he would not go to Casa Raphael. He had Parda arrested and returned to custody.
Parda testified on his own behalf. He had been taking Dilantin, a seizure medication, daily since the jail doctor prescribed it for him. Parda testified that he initially did not want to go to Casa Raphael because Tina told him he could not start a job for five months. He asked if he could go to a drug treatment program in central San Diego where he had support and a job lined up. He indicated he was agreeable to going to Casa Raphael, however, after talking it over with La Mere.
The next day, Tina asked specifically if he had seizures and Parda told her he did have seizures. Parda denied telling Tina that he would not see a doctor. Nunez had made a doctor's appointment for Parda at 1:00 p.m. on May 3, and he intended to go, but he was arrested at noon on May 3, while attending a group therapy session at CTC and waiting for his doctor's appointment.
Parda testified he was currently on medication and was willing to stay on the medication and to abide by the other mandatory supervision rules. He asked to be placed back into a drug treatment program, saying that he needed it.
The trial court found that Parda willfully violated a term of his mandatory supervision by failing to enter a treatment program. It found "an element of manipulation" by Parda. The court revoked mandatory supervision and reinstated it on the same terms and conditions as the original grant with the modification that Parda serve an additional 365 days in local custody. Parda completed his term and was released from county jail on December 12, 2018.
We grant the People's request that we take judicial notice of a computerized document from the San Diego Law and Justice Network showing that Parda was discharged from jail on December 12, 2018. Parda did not oppose this request.
DISCUSSION
Parda contends there was insufficient evidence to support the trial court's finding that he willfully violated the terms of his mandatory supervision and that the trial court abused its discretion in accepting and relying on hearsay evidence in finding a willful violation, or in the alternative that his counsel was prejudicially ineffective in failing to object to the hearsay on confrontation grounds. The People counter that Parda's claims are moot because he has already served the term of punishment for the revocation. They also contend that no error occurred.
Parda's Appeal Is Moot
We agree with the People that Spencer, supra, 523 U.S. at pages 12-14 and DeLeon, supra, 3 Cal.5th at pages 645-646, compel us to find this matter moot because Parda already has served the custodial term imposed by the trial court and has been released from custody. His term of mandatory supervision was not extended. Even if error occurred, we could not provide effective relief to Parda.
Spencer and DeLeon both involve parole supervision. (Spencer, supra, 523 U.S. at pp. 12-14 and DeLeon, supra, 3 Cal.5th at pp. 645-646.) We rely on parole-revocation cases in analyzing mandatory supervision issues because a split sentence under section 1170, subdivision (h) that imposes a commitment to county jail followed by mandatory supervision is "akin to a state prison commitment." (People v. Martinez (2014) 226 Cal.App.4th 759, 763; People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422-1423; People v. Buell (2017) 16 Cal.App.5th 682 (Buell) [relying on parole revocation cases].)
"[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief." (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454.) " '[A]n action that originally was based upon 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.)
Both the United States Supreme Court and the California Supreme Court have held that an appeal from a parole revocation order was moot after the defendant had completed a custody term imposed for the parole violation. (Spencer, supra, 523 U.S. at pp. 12-14; DeLeon, supra, 3 Cal.5th at pp. 645-646.) In Spencer, the Supreme Court rejected the argument that the petitioner faced "collateral consequences" from the potential use of his parole violation in a future parole proceeding. (Spencer, at p. 14.) The court found that this possibility did not show an injury in fact because it was contingent upon the petitioner again violating the law, a circumstance that was within his control. (Id. at p. 15.) In addition, a prior parole violation did not mandate a particular consequence, but was simply one factor that could be considered in a future discretionary decision. (Id. at p. 14.)
Relying on Spencer, the California Supreme Court in DeLeon held that an appeal from a parole revocation order was moot because the defendant had completed the custody term imposed for the parole violation and had been discharged from parole. (DeLeon, supra, 3 Cal.5th at pp. 645-646.) As a result, "a reviewing court's resolution of the issues could offer no relief regarding the time he spent in custody or the parole term that has already terminated." (Id. at p. 645.) In reaching this conclusion, the court rejected the defendant's claim that his appeal was not moot because he faced disadvantageous collateral consequences from his violation of parole. Rather, adopting the analysis in Spencer, the DeLeon court concluded that a "parole violation does not constitute a disadvantageous collateral consequence for purposes of assessing mootness." (Id. at p. 646.)
The court in Buell, supra, 16 Cal.App.5th at pages 687-688 found to the contrary, that an issue of probation revocation is not moot even when the custody term has been completed, because the defendant bears a continuing " ' "stigma of criminality." ' " (Ibid.) The United States Supreme Court in Spencer, however, stated that " 'the moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review.' " (Spencer, supra, 523 U.S. at pp. 8-9.) In DeLeon, the California Supreme Court adopted the Spencer analysis. (DeLeon, supra, 3 Cal.5th at p. 646.) The Buell court did not discuss DeLeon or Spencer, and we are bound to follow the California Supreme Court in DeLeon rather than the Court of Appeal in Buell.
Parda concedes he has completed his custodial sentence, but argues his appeal is not moot because he was given an extra year of mandatory supervision. However, he was not given an extra year of mandatory supervision. He was sentenced to a total term of four years on May 10, 2017, when the split sentence was originally imposed. (People v. Scott (2014) 58 Cal.4th 1415, 1424; People v. Grzymski (2018) 28 Cal.App.5th 799, 805-806.) Mandatory supervision was a part of the sentence imposed, and the trial court could not increase Parda's sentence after it was imposed. (People v. Torres (2008) 163 Cal.App.4th 1420, 1432-1433.) His sentence was four years, and it could not be increased.
After some confusion about the amount of time remaining, the probation officer said at the sentencing hearing that after Parda completed his additional year in custody, there would be 237 days of mandatory supervision remaining on case No. 418 and 233 days on case No. 785. The minute order also states that after serving his term of 365 days in custody, Parda had another 233 days on mandatory supervision to complete his sentence. Parda did not have an extra year of mandatory supervision added after his custodial term, but only the remaining portion—233 days—of his four-year sentence.
The modification imposing additional custody time actually shortens a defendant's sentence as he gets conduct credits while in custody (§ 4019, subds. (a)(6), (f)) but not while on mandatory supervision (§ 1170, subd. (h)(5)(B)). Here, for example, Parda's 365 days in custody were completed in the seven months he spent in jail from May 3, 2018 through December 12, 2018. --------
Parda argues that DeLeon is inapposite because the defendant's parole supervision had ended. (See DeLeon, supra, 3 Cal.5th at p. 645 [parole supervision ended one day after appellate briefing was complete and 16 months before appellate opinion].) That was not the basis for the finding of mootness, however. Following Spencer, the DeLeon court based its finding of mootness on the absence of collateral consequences from the parole violation finding, such as resulting civil disabilities, potential use of the parole violation in a future hearing, or any other injury that was certain to occur. (DeLeon, at pp. 645-646.) In Spencer, the Supreme Court found that the petitioner's claims were moot because the court could provide no relief after the petitioner had been released from custody, and therefore there was no longer a case or controversy at issue. (Spencer, supra, 523 U.S. at p. 7.) The Spencer court noted that the petitioner had completed his term of imprisonment by the time the case was heard by the Supreme Court. It held that completion of the term, alone, did not make the petition moot because the petitioner had filed his petition while he was in custody. That was not the basis for mootness. (Ibid.) We also note that Parda's term of imprisonment will end on or about August 2, 2019, 233 days after release from custody on December 12, 2018, and before this case is argued. This case will be in the same posture as DeLeon and Spencer. Neither DeLeon nor Spencer, nor this case, rely on the end of the entire term of the sentence.
We may review a case that is moot "if the question to be decided is of continuing public importance and is a question capable of repetition, yet evading review." (People v. Alsafar (2017) 8 Cal.App.5th 880, 883.) The questions presented here are not of public importance nor likely to be repeated. Parda's appeal concerns the application of settled law to the particular facts of his case.
As stated supra, Parda challenges the sufficiency of the evidence supporting the revocation of his mandatory supervision, and argues that the trial court erred in admitting and relying upon hearsay from the intake coordinator at Casa Raphael, as related by probation officer La Mere. Sufficiency of the evidence is not an issue of public importance because it depends on the specific facts presented in each case. (See People v. Thomas (1992) 2 Cal.4th 489, 516 ["comparison with other cases is of limited utility, since each case necessarily depends on its own facts"].)
Similarly, the hearsay issue raised by Parda is not a matter of public importance because settled law provides that hearsay evidence is admissible at a revocation hearing if the hearing officer finds good cause to admit it and if the evidence has sufficient " ' "indicia of reliability" ' " such that the court finds "a substantial guarantee of trustworthiness." (Buell, supra, 16 Cal.App.5th at p. 689; Morrissey v. Brewer (1972) 408 U.S. 471, 479 (Morrissey).) A person on mandatory supervision has already been convicted of a crime and has limited liberty interests. A revocation proceeding does not concern guilt of any criminal charges or risk any increase in the maximum term of confinement. Parda's split sentence had already been imposed for the underlying conviction. Revocation proceedings are not criminal prosecutions and, therefore, "the full panoply of Sixth Amendment rights available in criminal trials does not apply to parole (or supervision) revocation hearings." (Buell, at p. 689; Morrissey, at p. 480.) A defendant is still entitled to basic due process under the Fourteenth Amendment, however, including "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." (Morrissey, at p. 489, emphasis added.) Whether there was good cause to admit Tina's hearsay statements and whether they bore sufficient indicia of reliability depended on the particular circumstances of the statements and is not a question of public importance or likely to recur.
Because neither exception to the mootness question are present here, we are compelled to find this appeal moot. There would be no effective relief that we could provide to Parda even if we found in his favor. His term of mandatory supervision was not extended. Possible collateral consequences from the revocation ruling are speculative and largely under Parda's control, i.e., if he commits no further crimes the revocation cannot be used adversely in future sentencing. (Spencer, supra, 523 U.S. at p. 15.) Any disadvantageous collateral consequences resulting from revocation of mandatory supervision are not sufficient to overcome the hurdle of mootness.
DISPOSITION
The appeal is dismissed as moot.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J.