People v. Duran CA4/1 ( 2015 )

Filed 9/28/15 P. v. Duran CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066259
Plaintiff and Respondent,
v. (Super. Ct. No. JCF32341)
DAVID B. DURAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Poli J.
Flores, Jr., Judge. Dismissed.
Wilkerson & Mulligan and Forest M. Wilkerson for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson, Lynne G. McGinnis and Joy Utomi, Deputy Attorneys General, for
Plaintiff and Respondent.
I.
INTRODUCTION
Defendant David B. Duran obtained a certificate of probable cause to pursue an
appeal from the trial court's order granting him formal probation for three years after
Duran pled no contest to a charge that he committed a lewd act upon a child under the
age of 14. The victim was Duran's girlfriend's 11-year-old daughter.
On appeal, Duran challenges the constitutionality of two of the conditions of
probation that the trial court imposed. One of the conditions Duran challenges prohibited
Duran from contacting the victim "or any member of her family." The other condition
ordered Duran to "stay away from places where [known gang members] congregate."
During the pendency of this appeal, it came to this court's attention that the trial
court revoked Duran's probation and sentenced Duran to prison after he admitted to
violating two of his probation conditions (including an admission that he had contacted
the mother of the victim, who was also the mother of Duran's young son). Because
Duran is no longer subject to the probation conditions that he is challenging in this
appeal, we dismiss his appeal as moot.
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II.
FACTUAL AND PROCEDURAL BACKGROUND1
On December 27, 2013, at approximately 5:00 a.m., Duran's girlfriend left their
shared home to go to work. Duran picked up his girlfriend's daughter, J.G., and carried
her to a bedroom. Duran placed J.G. on the bed in the room and started touching her
vaginal area. J.G. described Duran's touching as being "hard" and said that it hurt. Duran
took off J.G.'s clothing, put his face on her upper thigh area, and licked her. At some
point, the three-year-old son of Duran and his girlfriend woke up and started crying.
Duran left the room to check on the boy. When Duran left the room, J.G. got up and ran
over to her grandmother's house, where she reported what had occurred.
The Imperial County District Attorney filed an information charging Duran with
committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd.
(a)). The information further alleged that Duran had served two prior prison terms
(§ 667.5, subd. (b)).
Duran pled no contest. The two prior prison term allegations were dismissed.
The trial court placed Duran on formal probation for three years and ordered him
to serve 365 days in county jail. In addition to the standard terms and conditions of
probation, the trial court also imposed on Duran the requirement that he register as a sex
1 We provide this summary of the facts underlying Duran's conviction based on the
preliminary hearing transcript, since Duran pled no contest to the charged offense.
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offender, "[h]ave no contact with the victim, [J.G.], or any member of her family," and
that he "[n]ot affiliate or associate with any known identifiable gang members, and stay
away from places where such persons congregate."
Duran filed a timely notice of appeal and was granted a certificate of probable
cause.
III.
DISCUSSION
Duran contends on appeal that two of the probation conditions are
unconstitutional. However, after the parties briefed the issues that Duran raises in this
appeal, Duran's attorney filed a request to augment the record in this appeal with the
record and disposition in People v. Duran (5/18/15, D067023, nonpub. opn.), a
subsequent appeal arising from the same underlying case. We granted Duran's request to
augment the record, and we have taken judicial notice of the record in case No. D067023.
The record in that case demonstrates that Duran admitted to having violated at least two
of the probation conditions, including one of the conditions of probation that he
challenges in this appeal, and further demonstrates that the trial court revoked Duran's
probation and sentenced him to a term of eight years in prison.
Duran filed a notice of appeal from the trial court's order revoking probation and
sentencing Duran to state prison. In briefing in his appeal from that order, Duran did not
identify any arguable appellate issues, and this court reviewed the record pursuant to
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People v. Wende (1979) 25 Cal. 3d 436.2 This court affirmed the judgment of the trial
court in an opinion dated May 18, 2015.
" 'It is well settled that the duty of this court, as of every other judicial tribunal, is
to decide actual controversies by a judgment which can be carried into effect, and not to
give opinions upon moot questions or abstract propositions, or to declare principles or
rules of law which cannot affect the matter in issue in the case before it [citation].' " (In
re J.G. (2008) 159 Cal. App. 4th 1056, 1062.) "An appeal should be dismissed as moot
when the occurrence of events renders it impossible for the appellate court to grant
appellant any effective relief." (In re Montgomery (2012) 208 Cal. App. 4th 149, 160.)
In light of the court's revocation of Duran's probation, he is no longer subject to
any of the conditions of probation that the trial court imposed. As a result, we cannot
grant Duran any effective relief at this point with respect to the probation conditions that
he challenges in this appeal. We therefore dismiss Duran's current appeal as moot.
2 Duran did not mention that he had already appealed from the trial court's probation
order, challenging the constitutionality of two of the probation conditions. Nor did he
identify as a possible (though not arguable) issue in this later appeal whether the trial
court relied on Duran's violation of an unconstitutional probation condition as part of its
decision to revoke probation.
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IV.
DISPOSITION
Duran's appellate challenge to the conditions of his probation is dismissed as
moot.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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