Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC805137
ELIA, J.Shortly before entering a plea of no contest to a charge of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), appellant Jesse Duarte waived his right to a jury trial regarding a prior conviction allegation. On September 29, 2008, a court trial was held to determine whether the prior conviction allegation was true and whether it constituted a strike for purposes of the three strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) At the conclusion of the court trial, the court found true the prior strike conviction allegation and sentenced appellant. However, the court reduced appellant's current Penal Code section 245 conviction to a misdemeanor and placed appellant on probation on the condition that he serve 155 days in county jail. When the court reduced appellant's current conviction to a misdemeanor the court noted that it had struck "the strike because of the nature of the current offense."
Appellant filed a notice of appeal on September 30, 2008.
On appeal, appellant contends that the true finding regarding the strike prior must be reversed because the trial court considered inadmissible evidence. During briefing, the Attorney General moved this court to dismiss the appeal as moot because the court struck the strike and therefore, appellant has received the remedy sought on appeal.
Our denial of the Attorney General's motion to dismiss the appeal as moot is not binding as law of the case. (Kowis v. Howard (1992) 3 Cal.4th 888, 899-901.)
On July 28, 2009, we denied the Attorney General's motion to dismiss the appeal, and extended the time for the Attorney General to file a brief. In that brief, the Attorney General reiterates that the appeal should be dismissed. For reasons that follow, we agree with the Attorney General and dismiss this appeal as moot.
During appellant's sentencing hearing, as noted, the court stated that it had struck "the strike because of the nature of the current offense." However, the record establishes that no such written order was entered as required by Penal Code section 1385. Furthermore, the minute order from the sentencing hearing contains the following notation: "COURT TAKES JUDICIAL NOTICE OF COURT FILE 200735 AND PUTS FINDINGS ON THE RECORD AS TO WHY THE COURT WOULD FIND THAT STRIKE PRIOR TRUE AS ALLEGED." However, since the minute order deviates from the court's oral pronouncement, "The record of the oral pronouncement of the court controls over the clerk's minute order...." (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)
Discussion
Appellant argues there are two grounds why this appeal should not be dismissed as moot: (1) he has a right to clear his name of the adverse finding and (2) this court should entertain the appeal in order to resolve the important issue that it presents.
Appellant asserts that the trial court considered inadmissible evidence in rendering its verdict on the prior strike allegation.
Appellant argues that society takes an extremely dim view of those citizens who have committed serious or violent felonies that fall under the three strikes law. Thus, because he has suffered the judicial fact finding that he committed a strike offense, he has a right to clear his name.
We acknowledge that true name clearance can render an otherwise moot matter an ongoing controversy for which effective relief is possible. (See In re Byrnes (1945) 26 Cal.2d 824, 827 (Byrnes); People v. Succop (1967) 67 Cal.2d 785, 790 (Succop); People v. Delong (2002) 101 Cal.App.4th 482, 487 (Delong).)
In Byrnes, the defendant was tried and convicted in two successive cases. The cases were sentenced consecutively and he appealed both. Subsequently, he filed a petition for a writ of habeas corpus claiming he did not have the trial transcripts he needed to perfect his appeals. The defendant requested that the petition be granted or that an order be made requiring the appeals to be heard and determined. The petition was answered but, by the time the appellate court considered its merits, the defendant had served his term of imprisonment for the convictions resulting from the first trial. (Byrnes, supra, 26 Cal.2d at p. 825.)
Nevertheless, the fact that the defendant had served his term of imprisonment did not render the petition moot. The Byrnes court noted, "Although it is conceded that, as the petitioner has served his full term for the offenses of which he was convicted in the first trial, he cannot obtain relief as to them so far as imprisonment is concerned, the question presented is not moot and he is entitled to an appeal from the judgments in that case for the purpose of clearing his name." (Byrnes, supra, 26 Cal.2d at p. 827, italics added.)
In Succop, supra, 67 Cal.2d 785, our Supreme Court relied on Byrnes in a case involving mentally disordered sex offender (MDSO) proceedings. In Succop, after the defendant was convicted of indecent exposure, but before he was sentenced, the court adjudged the defendant a probable MDSO and ordered him committed temporarily to a state hospital for observation. (Succop, supra, 67 Cal.2d at p. 788.) Subsequently, the hospital rejected the defendant on the ground that he was an MDSO who was not amenable to treatment, and he was returned to court for further proceedings. Thereafter the court denied the defendant probation and sentenced him to prison. (Id. at pp. 788-789.) The defendant appealed the judgment of conviction. (Succop, supra, 67 Cal.2d at p. 787.) On appeal, the defendant raised an issue concerning the lawfulness of the temporary commitment order. The Supreme Court concluded the trial court had violated several provisions of the statute governing proceedings pertaining to MDSO commitments, as well as the defendant's right to due process. (Id. at p. 789.) The Attorney General claimed the issue was moot because the defendant had been returned to court and, therefore, was no longer confined in the hospital. The Supreme Court rejected the claim, noting that if the defendant had not been erroneously denied certain statutory rights pertaining to MDSO proceedings, the court might have found that the defendant was not a probable MDSO, and such a finding would have been relevant to the issues of whether probation should have been granted and, if defendant were imprisoned, whether parole later should have been granted. (Id. at pp. 789-790.) In so finding, the Supreme Court stated, "Furthermore, defendant is entitled to the opportunity to clear his name of the adjudication that he is a probable mentally disordered sex offender. [Citations.]" (Id. at p. 790, italics added.)
In Delong, supra, 101 Cal.App.4th 482, the defendant was convicted of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). The court placed her on probation for three years. The defendant appealed from the judgment. (Id. at p. 484.) Although the defendant's conviction for possession was set aside pursuant to Proposition 36, because she successfully completed the prescribed drug treatment program and fulfilled her probation conditions, the Second District Court of Appeal heard her appeal, finding that her appeal was not rendered moot even though her conviction was set aside. (Ibid.) The court held that she was "entitled to an opportunity to clear her name and rid herself of the stigma of criminality." (Ibid.)
We find all these cases distinguishable from the case before us. In Byrnes, the defendant was granted appellate review of his convictions, even though he had completed his sentence prior to appellate consideration of his appeal because the conviction and sentence were still of record and subsistent at the time of review. (Byrnes, supra, 26 Cal.2d at p. 828.) Similarly, in Delong, the conviction still existed for some purposes and had certain prejudicial collateral consequences in spite of the fulfillment of the defendant's probation conditions. (Delong, supra, 101 Cal.App.4th at p. 484.) In this case, as the court stated that it had struck the strike finding, there is no strike finding from which appellant needs to clear his name.
Finally, with regard to Succop, supra, 67 Cal.2d 785, even though there is no strike finding, the finding that someone is probably a MDSO or sexual psychopath is a far cry from a finding that someone has committed a strike offense. Any holding by this court that the strike finding was based on insufficient evidence of great bodily injury would hardly clear appellant's name. He remains a twice-convicted felon who assaulted someone with a deadly weapon in the present case, and has a substantial misdemeanor record. Had it not been for the court reducing his current conviction to a misdemeanor, appellant would have had a serious felony conviction on his record.
According to the probation report prepared for this case, appellant has 15 misdemeanor convictions and two felony convictions.
In addition, there is no possibility that the fact that a court once found that appellant had committed a strike offense (then struck the strike) could possibly be of any consequence in the future. At each new trial, the prosecution must "plead and prove" a prior conviction allegation (Pen. Code, §§ 667, subds. (c) & (g), 1170.12, subds. (a) & (e)) at a "trial" either by jury or the court. (Pen. Code, § 1025.)
As a final point, "[i]t is settled that '[a]n action that involves only abstract or academic questions of law cannot be maintained. [Citation.]' [Citation.] Moreover, ' "[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." [Citation.]' [Citation.]" (DeLong, supra, 101 Cal.App.4th at p. 486.) Here, the trial court's action of striking the prior strike conviction has left no prejudicial consequences that could be ameliorated by a successful appeal and the appeal must therefore be dismissed as moot. (Id. at p. 489.)
Furthermore, we decline appellant's invitation to render an advisory opinion. (DeLong, supra, 101 Cal.App.4th at p. 486.) "We may not disregard the long-standing principle that, even in circumstances when an issue involves significant public interest, California courts adhere to the even older, and more important, judicial policy against issuing advisory opinions." (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 69.) It is our duty to decide actual controversies, not to give opinions upon questions that cannot possibly affect the matter that is at issue in this case. (Vernon v. State of California (2004) 116 Cal.App.4th 114, 121.)
Disposition
The appeal is dismissed as moot.
WE CONCUR: RUSHING, P. J., PREMO, J.