People v. Silverstein CA3 ( 2022 )

Filed 8/30/22 P. v. Silverstein CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C094295
Plaintiff and Respondent, (Super. Ct. No. 18CF05303)
v.
REBECCA LYNN SILVERSTEIN,
Defendant and Appellant.
Defendant Rebecca Silverstein appeals from the trial court’s order denying her
motion to terminate probation early. She contends that at the hearing on her petition the
trial court erred by admitting hearsay evidence, evidence of a crime for which she was
not convicted, and opinion testimony from the probation officer. She further contends
the trial court abused its discretion in denying her petition, improperly allowed the
prosecutor to make inflammatory and defamatory remarks regarding her mental health,
and was biased in favor of the prosecution.
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We requested supplemental briefing from the parties on defendant’s probationary
status, and whether her appeal was moot given that her three-year probationary term
apparently expired in March 2022 while this appeal was pending. Having considered the
parties’ supplemental briefs, we shall dismiss the appeal as moot.
FACTS AND HISTORY OF THE PROCEEDINGS
In September 2018, defendant was charged with assault with a firearm (Pen. Code,
§ 245, subd. (a)(2); count 1; statutory section citations that follow are found in the Penal
Code unless otherwise stated); recklessly fleeing a pursuing peace officer’s vehicle (Veh.
Code, § 2800.2, subd. (a); count 2); carrying an unregistered, loaded firearm (§ 25850,
subd. (a); count 3); and resisting, obstructing, or delaying a peace officer (§ 148, subd.
(a)(1); count 4). The court also issued a criminal protective order in favor of the assault
victim. (§ 136.2.)
Shortly after the complaint was filed, the court suspended criminal proceedings
after defense counsel declared a doubt as to defendant’s mental competency under section
1368. In January 2019, the court reinstated criminal proceedings after receiving a report
from an appointed forensic clinical psychologist that defendant was mentally competent.
On January 24, 2019, defendant pleaded no contest to an added count 5, assault by
means of force likely to cause great bodily injury (§ 245, subd. (a)(4)) in exchange for
dismissal of the remaining counts with a Harvey waiver. (People v. Harvey (1979)
25 Cal.3d 754.) The parties stipulated to the probation report as the factual basis for the
plea. According to the probation report, defendant assaulted her estranged husband with
a firearm at the hospital where he worked after he refused to refill medication that he had
prescribed for her as a doctor. She later refused to yield when officers attempted a traffic
stop, committing numerous traffic violations before she was arrested.
On March 28, 2019, the trial court suspended imposition of sentence and placed
defendant on three years domestic violence formal probation with various terms and
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conditions. Approximately two months later, the trial court transferred probation
supervision to New York where defendant was residing.
In May 2021, defendant filed a pro. per. petition requesting that the trial court
terminate her probation early (§§ 1203.1, 1203.3, subd. (a)), reduce her conviction from a
felony to a misdemeanor (§ 17, subd. (b)), and permit her to withdraw her no contest plea
and enter a plea of not guilty and thereafter dismiss the charges against her (§ 1203.4).
At a hearing on June 3, 2021, the trial court denied defendant’s request to terminate
probation early, and then continued her requests to reduce her conviction from a felony to
a misdemeanor, as well as her request for dismissal, until defendant had completed
probation. The court set a continued hearing in January 2022.
Defendant timely appealed the trial court’s denial of her petition for early
termination of probation.
DISCUSSION
The trial court placed defendant on three years formal probation on March 28,
2019, and later denied her petition to terminate her probation early. On appeal, she
challenges the propriety of the court’s denial. Before turning to the merits of defendant’s
appellate claims, we first consider whether her appeal has been rendered moot by events
that occurred after the trial court ruled.
“ ‘ “[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 [or her] 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.) Because
more than three years have elapsed since defendant was placed on probation, we
requested supplemental briefing on whether defendant had completed her full
probationary term while this appeal was pending, and, if so, whether her appeal
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challenging the court’s order denying early termination of probation was moot. (City of
Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 479 [an appellate court may
examine the issue of mootness on its own motion].)
The parties agree that defendant completed her three-year probationary term in
March 2022. They disagree, however, on whether completing her full probationary term
moots the present appeal.
The People contend defendant’s appeal is moot and should be dismissed because
this court cannot provide defendant any effective relief regarding the trial court’s denial
of her petition to terminate probation early.
Defendant, by contrast, argues that her appeal is not moot because it affects her
substantial rights as she intends to file a federal civil rights lawsuit against Butte County.
Alternatively, she contends that several exceptions to the mootness doctrine apply,
including that the appeal presents an issue of public importance that may evade review,
that even if it is not an important public issue, this court should decide the appeal because
there may be a recurrence of the controversy between the parties, and that dismissing the
appeal as moot would leave material questions unanswered. To support her arguments,
defendant attached numerous documents or transcripts to her supplemental brief that
were not before the trial court when it denied her petition for early probation termination,
and which relate to events that occurred after the court’s challenged ruling. (People v.
Waidla (2000) 22 Cal.4th 690, 703, fn. 1 [ordinarily an appeal is limited to the underlying
record on appeal].)
After considering the parties’ supplemental briefs, we conclude that the People
have the better argument. It is undisputed that defendant has completed her three years of
formal probation and is no longer under probation supervision. Defendant’s appeal is
moot because this court cannot offer her any effective relief regarding the early
termination of probation.
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The fact that defendant may file a federal action against Butte County based on her
prosecution in this case does not mean that declining to decide the appeal affects her
substantial rights. Regardless of whether we decide the appeal, defendant may still bring
her federal action if she so chooses.
Nor are we persuaded that any of the exceptions to the mootness doctrine warrant
exercising our discretion to decide defendant’s appeal. While it is true, as defendant
argues, that a reviewing court may exercise its discretion to decide a moot case if it raises
an important issue that is likely to recur yet evade review (see, e.g., People v. DeLeon,
supra, 3 Cal.5th at p. 646; Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn.
1), nothing in the present record convinces us that this is such a case.
In DeLeon, for example, our Supreme Court exercised its discretion to decide what
procedures should govern all parole revocation proceedings under the Realignment Act.
(People v. Deleon, supra, 3 Cal.5th at p. 646.) In Conservatorship of Wendland, even
though the conservatee had passed away, the court exercised its discretion to decide an
appeal that raised the fundamental rights of incompetent conservatees to privacy and life,
and the corresponding limitations on conservators’ power to withhold life-sustaining
treatment because the case demonstrated such important issues tended to evade review as
they typically concerned persons whose health was seriously impaired. (Conservatorship
of Wendland, supra, 26 Cal.4th at p. 524, fn. 1.) We are not faced with similar issues
with such wide-ranging and public implications here. Rather, defendant’s appeal raises
questions uniquely peculiar to her and the hearing where the court denied her petition.
And, even if we assume that other unidentified defendants may have sued Butte
County for malicious prosecution as defendant argues without record support, this says
little, if anything, about whether defendant’s appeal presents an important public issue
that should be decided despite the mootness of her appeal.
We similarly reject defendant’s contention that the controversy may recur between
the parties here. Defendant was criminally prosecuted in Butte County after a d omestic
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dispute between her and her estranged husband over prescription drug medication that
defendant no longer takes. Defendant is no longer married to the victim, and has since
moved across the country, ending contact with him. Thus, the likelihood of a future
confrontation between defendant and her ex-husband that results in defendant being
arrested and prosecuted by Butte County is minimal and defendant does not explain how
ruling on the trial court’s denial of defendant’s motion to terminate probation early has
anything to do with possible future prosecution. Any federal lawsuit defendant may file
against Butte County or other defendants is also unlikely to raise the same issues as
presented on her petition to terminate probation early.
Likewise, defendant has failed to show that material questions regarding the
propriety of declining to terminate probation early would remain such that we should
exercise discretion to decide the appeal. For example, Eye Dog Foundation v. State
Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, upon which defendant relies,
differs markedly from defendant’s appeal. Unlike here, Eye Dog Foundation was a
declaratory relief action regarding the constitutionality of an entire statutory scheme
governing seeing eye dogs. (Eye Dog Foundation, at pp. 540-542.) Defendant’s appeal
does not raise any action for declaratory relief, and certainly not one that challenges the
constitutionality of an entire statutory scheme.
Because defendant completed her probationary term during the pendency of this
appeal, we cannot provide her with any effective relief regarding the court’s denial of her
request to terminate her probation early. Her appeal is moot, and we decline to exercise
our discretion to decide the appeal.
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DISPOSITION
The appeal is dismissed as moot.
HULL, Acting P. J.
We concur:
RENNER, J.
EARL, J.
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