People v. Escobar CA1/2 ( 2014 )

Filed 6/4/14 P. v. Escobar CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A138974
v.
ORLANDO ESCOBAR, (Marin County
Super. Ct. No. SC180039A)
Defendant and Appellant.
Orlando Escobar appealed from an order revoking probation. After the appeal was
briefed, appellant admitted a new probation violation. As part of the disposition of this
subsequent probation violation, appellant agreed to abandon the present appeal.
Respondent then moved to dismiss the appeal. We hereby grant this motion and dismiss
the appeal.
STATEMENT OF THE CASE
On July 26, 2012, appellant was placed on probation for three years, with
conditions including an order that he was “not to be a member of any gang, nor associate
with any known gang members, nor frequent places where gang members congregate.”
On April 29, 2013, the prosecutor filed a petition for revocation of probation alleging
violation of this condition. After a contested hearing, the trial court found appellant had
violated his probation by being in an area where gang members congregate. On May 24,
2013, the court ordered probation reinstated, to expire on July 26, 2015, and ordered
appellant to serve 90 days in jail and pay a probation restitution fine.
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Appellant filed a timely notice of appeal on June 12, 2013. His opening brief on
the appeal was filed on October 22, 2013, claiming the probation condition he allegedly
violated was unconstitutionally vague and there was insufficient evidence of the
violation. Respondent’s brief was filed on January 30, 2014, and on February 10, 2014,
with the filing of appellant’s reply, the appeal was fully briefed. Appellant requested oral
argument.
On March 12, 2014, the prosecutor filed a new petition for revocation of
probation. On March 19, appellant, who was in custody and represented by the public
defender, was advised of and waived his right to a hearing in the trial court, and admitted
the alleged violation. The court revoked probation, appellant waived time for sentencing,
and the court reinstated probation with the original terms and conditions, to expire on
July 26, 2016. The trial court’s order states, “No further sanction. Defendant abandons
the appeal, Case Number A138974, that is pending in First Appellate District Court in
this case. The Appeal is dismissed with prejudice.”
On March 20, 2014, respondent filed in this court a motion to dismiss the appeal
as moot and abandoned. Appellant’s appellate counsel responded with a motion for a
reporter’s transcript and extension of time to oppose the motion to dismiss. Counsel
declared that she had not been consulted before appellant accepted the plea offer that
resulted in reinstatement of his probation and that a reporter’s transcript was necessary
for her to assess whether appellant’s waiver of the appeal was knowing, intelligent and
voluntary. Counsel requested that respondent be ordered to provide a reporter’s
transcript of the March 18 trial court hearing and that the time for appellant’s opposition
to the motion to dismiss the appeal be extended until 15 days from service of the
reporter’s transcript on counsel. Respondent opposed this motion, and we denied it on
May 5, 2014, giving appellant until May 15 to file his opposition to the motion to dismiss
the appeal. No opposition to the motion to dismiss has been filed.
DISCUSSION
The 2013 order from which appellant appealed has been superseded by the March
18, 2014 order reinstating and extending probation until July 26, 2016. Accordingly,
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there is no relief this court is able to grant on the appeal from the 2013 order. “ ‘ “When
no effective relief can be granted, an appeal is moot and will be dismissed.” [Citation.]’
(MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal. App. 4th 204,
214.)” (Matteo v. Department of Motor Vehicles (2012) 209 Cal. App. 4th 624, 629; In re
M.R. (2013) 220 Cal. App. 4th 49, 56; In re Sodersten (2007) 146 Cal. App. 4th 1163,
1217.) Although we have discretion to entertain an appeal that is technically moot “when
the case presents an issue of broad public interest that is likely to recur[,]” “when there
may be a recurrence of the controversy between the parties” or “when a material question
remains for the court’s determination” (In re M.R., at p. 56), we find none of these
exceptions applicable here.
Dismissal of the appeal is also appropriate on the basis that it has been abandoned
by appellant. While the trial court has no power to dismiss an appeal in this court, its
order purporting to do so can be construed as an acceptance of appellant’s agreement to
dismiss the appeal as part of the plea agreement under which he admitted the probation
violation and was released from custody onto reinstated probation. Moreover, appellant’s
failure to oppose respondent’s motion to dismiss the appeal “may be deemed a consent to
the granting of the motion.” (Cal. Rules of Court, rule 8.43(c).)
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DISPOSITION
The appeal is dismissed.
_________________________
Kline, P.J.
We concur:
_________________________
Haerle, J.
_________________________
Richman, J.
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