People v. Dews CA5 ( 2021 )

Filed 12/7/21 P. v. Dews CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080475
Plaintiff and Respondent,
(Super. Ct. No. F08906679)
v.
DEMARQIS DEAJOAN DEWS, OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Fresno County. Arlan L. Harrell,
Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Plaintiff and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M.
Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2019, 10 years after defendant Demarqis Deajoan Dews was sentenced to 15
years’ imprisonment, he filed a motion for a “Youth Offender Parole Hearing,” stating he
was 19 years old when the offense forming the basis of his convictions was committed.
In his motion, defendant asked to make a record before the superior court of mitigating
evidence tied to his youth, a proceeding as provided for in People v. Franklin (2016) 63
Cal.4th 261 (Franklin). The court denied the request on the grounds defendant would not
be incarcerated during the 15th year of his term, and his determinate term of 15 years did
not qualify him for youthful offender parole consideration. In his sole issue on appeal,
defendant challenged the court’s order denying the motion, arguing he was eligible for a
youth offender parole hearing and seeking a limited remand to prepare a record as
provided for in Franklin.
Because the defendant has since been released on parole, we dismiss defendant’s
appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
In 2009, a jury convicted defendant of second degree robbery (Pen. Code § 211;
count 1), enhanced by an allegation he personally used a firearm (§ 12022.53, subd. (b)),
criminal threats (§ 422; count 2), enhanced by an allegation he personally used a firearm
(§ 12022.5, subd. (a)), and dissuading a witness (§ 136.1, subd. (a)(1)) after he robbed a
pizza deliveryman at gunpoint. The court sentenced defendant to a total term of 15 years.
The trial court also credited defendant 396 days of actual time served and 58 days of
presentence conduct credit, for a total of 455 days of presentence credit.1
1The record reflects defendant was awarded 58 days of conduct credit at the time of his
November 2009 sentencing. Defendant recently alerted the trial court there was a miscalculation
of his presentence conduct credit. Specifically, he asserted he should have received 59 days of
presentence conduct credit. The court agreed with defendant and ordered the abstract of
judgment to be amended to reflect 59 days of presentence conduct credit. The total credit for
time served remained 455 days.
2.
On November 18, 2019, defendant filed a motion arguing he was entitled to a
youth offender parole proceeding pursuant to Penal Code section 1203.01 and In re Cook
(2019) 7 Cal.5th 439 and, thus, should be able to make a record before the Superior Court
of “mitigating evidence tied to his youth” (a Franklin proceeding).
The court denied defendant’s motion, stating he was “not eligible for the requested
relief as he will not be incarcerated during the 15th year of his term, and will not be
entitled to a youthful offender parole hearing. (Pen. Code, § 3051, subd. (b)(1).)
[¶] Defendant’s determinate term sentence of 15 years, would not qualify him for
youthful offender parole consideration. Eligible defendants are those who are serving a
determinate term in excess of 15 years. Defendant will be eligible for release on parole
well before any youthful offender parole hearing would be required.”
Defendant appealed, arguing the court erred in concluding he was ineligible for a
youth offender parole hearing and that he should be entitled to a limited remand for the
purpose of conducting a Franklin proceeding. Following the parties’ briefing, defendant
filed a supplemental brief notifying the court he was released on parole in April 2021.
DISCUSSION
In his November 2021 supplemental briefing, defendant reported he was released
on parole on April 24, 2021, while his appeal was pending. He further stated, “Since the
issue of a youth offender parole hearing has been resolved, counsel has no further
argument to make.” In their response brief, the People ask for defendant’s appeal to be
dismissed as moot in light of defendant’s representation he has been released on parole.
“‘“[W]hen, pending an appeal from the judgment of a lower court, and without
any fault of the [opposing party], an event occurs which renders it impossible for this
court, if it should decide the case in favor of [defendant], to grant him any effectual relief
whatever, the court will not proceed to a formal judgment, but will dismiss the appeal”’
as moot.” (People v. DeLeon (2017) 3 Cal.5th 640, 645.)
3.
Here, the only relief defendant sought in his appeal was a limited remand for a
proceeding to preserve evidence for use at a later youth offender parole hearing. Because
defendant has already been released on parole, it is not possible for this court to grant him
any effectual relief. Thus, the sole issue raised in his appeal is now moot. And neither
party argues, nor do we find, that an exception to the mootness doctrine applies.
DISPOSITION
The appeal is ordered dismissed.
PEÑA, J.
WE CONCUR:
POOCHIGIAN, Acting P. J.
DE SANTOS, J.
4.