People v. Simpson CA4/1

Filed 5/11/22 P. v. Simpson CA4/1
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION ON REHEARING
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079474
Plaintiff and Respondent,
v.
(Super. Ct. No. C1653732)
TEVINE TAJ SIMPSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Santa Clara County,
Socrates Peter Manoukian, Judge. Dismissed.
Lori A. Quick, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney
General, Catherine A. Rivlin and Bruce M. Slavin, Deputy Attorneys
General, for Plaintiff and Respondent.
As part of a plea bargain, Tevine Taj Simpson agreed to plead no
contest to one count of using personal identifying information without
authorization (Pen. Code,1 § 530.5, subd. (a)), in exchange for receiving a 16-
month lower-term sentence, to be served locally and with no postrelease
supervision. But in December 2019, after Simpson repeatedly failed to
appear in court, the trial court exercised the Cruz2 waiver incorporated in the
plea bargain and sentenced Simpson to a three-year upper-term sentence
(still to be served locally and without postrelease supervision).
On appeal, Simpson challenges only the trial court’s imposition of the
upper-term sentence. As we will explain, however, Simpson’s appeal is moot
because he fully served his sentence as of May 2021, is not subject to
postrelease supervision, and has not identified any ground on which we
should exercise our discretion to entertain a moot appeal. Accordingly, we
will dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Trial Court Proceedings
In 2018, Simpson entered into a plea bargain under which he pleaded
no contest to a single felony count of using personal identifying information
without authorization (§ 530.5, subd. (a)), which carries a potential sentence
of 16 months, two years, or three years (§§ 530.5, subd. (a), 1170, subd.
(h)(1)). Under the plea bargain, Simpson would receive a 16-month sentence
to be served in county jail, with no postrelease supervision. The deal also
included a Cruz waiver that would allow the court to impose a longer
1 Further undesignated statutory references are to the Penal Code.
2 People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).
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sentence if Simpson failed to appear for future court dates without
reasonable justification.
In April 2018, the court entered Simpson’s plea and ordered him to
return in August 2018 for sentencing. Simpson failed to appear in August
2018 and on several later occasions. In November 2019, he was apprehended
in Georgia and extradited to California.
On December 20, 2019, the trial court sentenced Simpson to the upper
term of three years, to be served in county jail. The court credited Simpson
with 80 days of presentence custody credits, and specified that “[u]pon
[Simpson’s] release from custody, there will be no further supervision.”
Appeal
In February 2020, Simpson filed a notice of appeal in the Court of
Appeal for the Sixth District. The appeal was fully briefed in November
2020.
In September 2021, the Supreme Court transferred Simpson’s appeal to
this court.
On March 21, 2022, we issued a nonpublished opinion affirming
Simpson’s sentence.
Petition for Rehearing
On April 5, 2022, Simpson filed a petition for rehearing. He argued
rehearing was necessary so that we could remand for resentencing in light of
changes in the law that took effect January 1, 2022. We ordered the Attorney
General to respond to the petition.
On April 15, the Attorney General filed a response, arguing the appeal
should be dismissed as moot because Simpson was released from custody in
May 2021 “and has fully served his sentence.” The Attorney General stated
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he had requested and was awaiting receipt of documentation confirming this
claim.
On April 18—two days before our opinion would become final—we
granted Simpson’s petition for rehearing. We ordered the Attorney General
to “submit evidence substantiating its claim that [Simpson] has served his
entire sentence.” And we ordered Simpson to submit a letter brief
“addressing whether this appeal is moot in light of [the Attorney General]’s
claim that [Simpson] has served his entire sentence.”
Supplemental Submissions
On April 29, the Attorney General submitted a report from the County
of Santa Clara Department of Corrections that stated Simpson “was released
to the Custodial Alternative Supervision Program” on March 9, 2021, “with a
scheduled release date of” May 4, 2021.
Also on April 29, Simpson submitted a letter brief arguing the appeal is
not moot. Simpson maintained that, even though he is no longer in physical
custody, he is still subject to postrelease supervision, the duration of which
could be shortened by a determination that the trial court erred in imposing
the upper-term sentence. Simpson’s appellate counsel asserted in the
submission that, “[b]ecause [Simpson] lives in Los Angeles County, it is that
county that is supervising him.” The submission included a photograph of a
form from the County of Los Angeles Probation Department that indicated
Simpson is subject to probation in a different case. Simpson represented that
calls by his appellate counsel to the probation department to secure
additional documentation “have not been returned or even acknowledged.”
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Motion to Withdraw Petition for Rehearing
On May 4, 2022—the apparent anniversary of Simpson’s release from
custody—Simpson filed a motion to withdraw his petition for rehearing and
subsequent letter brief.
In a supporting declaration, Simpson’s appellate counsel stated that
when she filed the petition for rehearing, it was her “[mis]understanding that
because [Simpson] lives in Los Angles County, supervision for [this] case . . .
had been transferred there.” She explained trial counsel “was unable to
give . . . any information on the current status of the case,” and calls to the
Los Angeles County Probation Department “were never returned.”
Counsel advised that on May 2, the Deputy Attorney General handling
this appeal advised her “he had finally been able to contact probation
departments for both Santa Clara and Los Angeles Counties and that
[Simpson]’s sentence in [this case] had been served in full” and “[h]e was not
subject to community supervision.”
Accordingly, Simpson requested “permission to withdraw the petition
for rehearing and subsequent letter brief on the ground that the issue raised
therein is moot.” Simpson’s counsel represented that the Attorney General
“has no objection” to the requested relief.
Simpson did not address the Attorney General’s contention that the
appeal, as a whole, should be dismissed as moot.
DISCUSSION
I. This Appeal is Moot
In opposing Simpson’s petition for rehearing, the Attorney General
argued this appeal should be dismissed as moot because we cannot grant
effective relief inasmuch as Simpson has fully served his sentence and is not
subject to further supervision. (See People v. DeLeon (2017) 3 Cal.5th 640,
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645 (DeLeon) [where the appellant has completed his sentence and is no
longer subject to postrelease supervision, the “appeal is technically moot
because a reviewing court’s resolution of the issues could offer no relief
regarding the time he spent in custody or the parole term that has already
terminated”]; Cucamongans United for Reasonable Expansion v. City of
Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 [“ ‘[A]n appeal should be
dismissed as moot when the occurrence of events renders it impossible for the
appellate court to grant appellant any effective relief.’ ”].)
Initially, Simpson argued the appeal is not moot because we could
grant effective relief by remanding for resentencing, which could result in a
shorter sentence that would also shorten the remaining period of postrelease
supervision. However, Simpson has since acknowledged he was not subject
to postrelease supervision in this case. Thus, he has not identified any
effective relief we can grant.
Nor has Simpson identified any issue in this case that is a matter of
continuing public interest that is likely to recur yet evade appellate review.
(See DeLeon, supra, 3 Cal.5th at p. 646.) Thus, we decline to exercise our
discretion to entertain a technically moot appeal. (Ibid.)
Accordingly, we will dismiss the appeal as moot.
II. Motion to Withdraw
Because we are dismissing this appeal as moot, we similarly deny as
moot Simpson’s motion to withdraw his petition for rehearing and
supplemental letter brief.
This appeal should serve as a cautionary tale for all appellate counsel
to learn and advise the courts of the custodial status of appellants who are
appealing issues relating only to their sentences. The failure to do so here
has wasted hours of scarce judicial resources on an appeal that was moot
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when it was transferred to this court, when we filed our original opinion, and
when Simpson filed his petition for rehearing.
DISPOSITION
The appeal is dismissed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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