In re Field CA4/1 ( 2013 )

Filed 12/18/13 In re Field CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JOHN FIELD D063227
on (San Diego County
Super. Ct. No. CRN22066)
Habeas Corpus.
Petition for writ of habeas corpus. Order to show cause discharged and petition
dismissed.
Steve M. Defilippis, under appointment by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney
General, Phillip Lindsay and Linnea D. Piazza, Deputy Attorneys General, for
Respondent.
Petitioner John Field seeks a writ of habeas corpus requiring the Board of Parole
Hearings (BPH) to grant his petition to advance his next parole suitability hearing.
Although this court issued an order to show cause, subsequent developments have made
the petition for writ of habeas corpus moot.
BACKGROUND
In 1992, a jury found Field guilty of first degree murder with use of a firearm, and
he was sentenced to 27 years to life. At Field's 2009 parole suitability hearing, the BPH
found him unsuitable for parole and, applying the provisions of Marsy's Law, ordered a
five-year waiting period until his next parole suitability hearing.
In 2012, Field filed a petition with the BPH, pursuant to Penal Code1 section
3041.5, subdivision (d)(1), seeking an order from the BPH advancing his next parole
suitability hearing to an earlier date, alleging there were changed circumstances or new
information establishing a reasonable likelihood that consideration of the public safety
did not require the additional period of incarceration. (§ 3041.5, subd. (d)(1).) The BPH
summarily denied the petition, as permitted by section 3041.5, subdivision (d)(2), which
provides, in part, that the BPH "shall have the power to summarily deny a request that
does not comply with the provisions of this subdivision or that does not set forth a change
in circumstances or new information as required in paragraph (1) that in the judgment of
the board is sufficient to justify the action described in paragraph (4) of subdivision (b)."
Field petitioned the superior court for a writ of habeas corpus challenging the denial of
his petition to advance the hearing date. The superior court denied the petition, and Field
then filed the instant petition. This court issued an order to show cause and directed
newly appointed counsel for Field to address whether application of Marsy's Law to Field
violated ex post facto principles.
1 Statutory references are to the Penal Code unless otherwise specified.
2
After we issued our order to show cause, the Supreme Court filed its decision in In
re Vicks (2013) 56 Cal.4th 274 upholding Marsy's Law against a facial ex post facto
challenge. Accordingly, to the extent Field's habeas corpus petition sought relief under
ex post facto principles, that relief is now foreclosed. However, Field's habeas corpus
petition also asserted he adequately demonstrated new information or changed
circumstances, and therefore the BPH's summary denial of his petition to advance his
next parole suitability hearing to an earlier date was a manifest abuse of discretion (§
3041.5, subd. (d)(2) [BPH decision on request made pursuant to subdivision (d)(1) "shall
be subject to review by a court or magistrate only for a manifest abuse of discretion by
the board"]), denying him due process, and he therefore continued to pursue this writ
seeking an order requiring the BPH to set an advanced hearing date. The People contend
that because the relief sought in the habeas corpus petition has been granted by the BPH,
the petition is moot.
DISCUSSION
Ordinarily, we do not review questions that have become moot. (National Assn. of
Wine Bottlers v. Paul (1969) 268 Cal.App.2d 741, 746.) As one court instructed:
"It is 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. It
necessarily follows that when, pending an appeal from the judgment
of a lower court, and without any fault of the defendant, an event
occurs which renders it impossible for this court, if it should decide
the case in favor of plaintiff, to grant him any effectual relief
whatever, the court will not proceed to a formal judgment, but will
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dismiss the appeal. [Citations.]' " (Paul v. Milk Depots, Inc. (1964)
62 Cal.2d 129, 132.)
Numerous other decisions have likewise concluded mootness requires dismissal of
an appellate challenge to an underlying ruling. (See Finnie v. Town of Tiburon (1988)
199 Cal.App.3d 1, 11 [dismissing as moot appeal from trial court's denial of injunction to
stop election where election had subsequently taken place]; National Assn. of Wine
Bottlers v. Paul, supra, 268 Cal.App.2d at p. 746 [dismissing as moot appeal where
challenged order of Director of Agriculture had been terminated]; Bell v. Board of
Supervisors (1976) 55 Cal.App.3d 629, 636 [dismissing as moot appeal where challenged
legislation had been repealed and replaced with materially different law].)
The policy of dismissing moot appellate proceedings, which applies with equal
force to writ proceedings (see Fleming v. Bennett (1941) 18 Cal.2d 888; Lay v. Pacific
Perforating Co. (1944) 63 Cal.App.2d 452), is based on the rationale that "an 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 would be without
practical effect, and the appeal will therefore be dismissed." (9 Witkin, Cal. Procedure
(5th ed. 2008) Appeal, § 749, p. 814.) " '[T]he 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.' " (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863,
quoting Mills v. Green (1895) 159 U.S. 651, 653.) "A case is moot when the decision of
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the reviewing court 'can have no practical impact or provide the parties effectual relief.
[Citation.]' " (MHC Operating Limited Partnership v. City of San Jose (2003) 106
Cal.App.4th 204, 214.) " '[W]hen, pending an appeal . . . , an event occurs which renders
it impossible for this court, if it should decide the case in favor of [appellant], to grant
him [or her] any effectual relief whatever, the court will not proceed to a formal
judgment, but will dismiss the appeal. [Citations.]' " (Eye Dog Foundation v. State
Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; accord, In re Jessica K.
(2000) 79 Cal.App.4th 1313, 1315-1316.) The question of mootness must be decided on
a case-by-case basis. (In re Kristin B. (1986) 187 Cal.App.3d 596, 605.)
Here, even were we to conclude the BPH's summary denial of Field's petition to
advance his next parole suitability hearing to an earlier date was a manifest abuse of
discretion or a denial of due process, the only relief we could have granted under Field's
petition would be to order the BPH to conduct a suitability hearing for a date earlier than
the "due course" suitability hearing set by the BPH in its 2009 order. However, we are
informed by the parties that the BPH reconsidered its summary denial of his petition to
advance his next parole suitability hearing to an earlier date and, on August 1, 2013, the
BPH approved Field's application for an advanced parole suitability hearing date.
Accordingly, even were we to rule that Field's petition for an advanced hearing date
should have been granted by the BPH, that ruling would have no impact because the
relief he sought--an order requiring the BPH to advance his next suitability hearing for a
date earlier than the due course suitability hearing--has already been provided by the
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BPH. We therefore agree with the People that the proper disposition is to discharge the
order to show cause and dismiss the petition as moot.
DISPOSITION
The order to show cause is discharged and the petition is dismissed.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.
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