Mootness/Remand
Category > Mootness/Remand
MDOs, like SVPs and NGI defendants have a statutory right not be compelled to testify in proceedings to extend their commitments.Mentally disordered offenders are similarly situated with not guilty by reason of insanity defendants and sexually violent predators for purposes of the testimonial privilege provided in Penal Code section 1026.5. However, defendant’s appeal was moot because a subsequent petition for recommitment was denied based on the court’s finding that he no longer met the criteria for commitment as an MDO.id: 24659
Defendant’s challenge to the incompetency finding was not rendered moot by the subsequent finding that competency had been restored following a guilty plea.Defendant was determined to be incompetent before trial and was committed to a state hospital under Penal Code section 1370. He appealed claiming errors had been made in the process. While his appeal was pending, the trial court found he had been restored to competency and reinstated criminal proceedings. He then entered a plea and the court granted probation. Contrary to the state’s claim, the appeal issues were not rendered moot due to the restoration of competency finding and subsequent actions. Because the incompetency finding might impact future proceedings, defendant was entitled to challenge it.id: 23818
Because the defendant never made it outside the prison boundaries the evidence did not support the prison escape conviction and the court could not reduce the offense to attempted escape because the jury had not been instructed on that offense.Defendant broke out of his prison cell and breached a number of interior barriers but remained within the boundaries of the prison. Escape from prison under Penal Code section 4530 requires proof that the prisoner has gone beyond the boundary of the prison, so the evidence was insufficient to support the conviction. While the evidence did support an attempt to escape the prison, the court never instructed the jury on that offense. Therefore, the appellate court could not simply reduce the conviction to an attempted escape, but rather, reversed the conviction.id: 21784
CDCR’S placement of a parolee must stand absent an abuse of discretion, and while the issue was likely moot due to the death of the parolee, the court addressed it as it is likely to recur.After defendant served his prison term for manslaughter and accessory to three murders, the Department of Corrections and Rehabilitation provided him a trailer within a fenced compound on the grounds of High Desert State Prison and imposed severe restrictions on his movement. The trial court ruled the placement was not in the public’s best interest and ordered him transferred out of the county. However, that ruling was reversed where the Department’s placement was not so unreasonable and arbitrary as to constitute an abuse of discretion. The parolee died during the present appeal, but the court decided the issue because it will likely recur.id: 22633
The trial court had the authority to make a new, lower restitution order on resentencing. A trial court, upon appellate remand for resentencing, has the legal authority to make a new restitution fine order, even if the original restitution order was never addressed in the appeal that led to the remand in the first place.id: 21957
Because the minor’s maximum period of confinement for two 602 petitions was aggregated he was entitled to credit for all actual time served in connection with either petition. The minor was the subject of two sustained Welfare and Institutions Code section 602 petitions. He argued the juvenile court erred by failing to award predisposition credit. The appeal was not moot regardless of the expiration of minor’s camp commitment because his maximum period of confinement for the two petitions was aggregated. He was entitled to credit for all actual time spent in custody in connection with either petition.id: 21400
Since the court erred by finding the search was justified by defendant's adult probation search condition, the matter was remanded for a hearing on the other issues raised in the suppression motion.Defendant moved to suppress evidence obtained during a search of his hotel room. The issue of the search warrant was not litigated at the hearing. Instead, the motion was denied after evidence was presented that defendant was subject to a probation search condition about which the searching officer was unaware. However, in light of People v. Sanders (2003) 31 Cal.4th 318, an adult's probation search condition cannot be used to justify a search. The matter was remanded for a hearing on the remaining issues raised by the original suppression motion.id: 17996
Prosecution's failure to provide defense discovery of recorded statements that would have impeached key witnesses required reversal of judgment twenty years after the conviction and defendant's death did not render the proceedings moot in light of the circumstances. More than 20 years ago, defendant was convicted of special
circumstance murder and received a sentence of life in prison without parole. However, it was determined years later that the prosecution failed to provide the defense at trial with several tape-recorded statements by key witnesses. The statements did not establish defendant's innocence but would have damaged the credibility of the state's key witnesses. There was therefore a
reasonable probability of a better result had the prosecution complied with its discovery obligations and the habeas corpus petition was granted. Moreover, the death of the defendant
pending the proceedings did not render the action moot in light of the extraordinary circumstances.id: 19418
The trial court was bound by the terms of the remittitur following the order of a jury trial on the sentencing factors even though the Supreme Court published Black after the remittitur issued. The appellate court affirmed the earlier conviction but
accepted the Attorney General's concession that the matter needed to be remanded for a sentencing trial in order to impose the upper term, if the prosecutor would to accept the mid-term
sentence. The prosecutor refused to accept the mid-term and the California Supreme Court thereafter found in People v. Black (2005) 35 Cal.4th 1238 that the court's imposition of the
upper term did not violate Blakely v. Washington (2004) 524 U.S. 296. Because of the intervening Black opinion, the trial court did not conduct the retrial. However, the trial court erred since it lacked the authority to disobey a remittitur, even after the intervening Black decision.id: 19403
Stop was unreasonable where police did not know of defendant's probation condition, and there was no reason for remand for further proceedings.At the suppression hearing, the prosecution conceded defendant was detained without a warrant, probable cause, or reasonable suspicion. It argued the search was valid because of defendant's
probation status, which was unknown to the police at the time of the detention. The trial court's denial of the suppression motion was reversed in light of recent case law on point. The
prosecution argued the matter should have been remanded for further proceedings. However, in light of the prosecutor's decision to expressly concede that the stop was unreasonable absent the probation search condition, further proceedings were unwarranted and the judgment was reversed.id: 19407
The directions of the appellate court on remand limited the jurisdiction of the trial court and prevented the imposition of consecutive sentences on certain counts.The Court of Appeal reversed defendant's attempted voluntary manslaughter convictions and remanded with directions to lift the stay of execution on the assault counts if the prosecution
chose not to retry defendant. The prosecution chose not to retry him. The trial court thereafter lacked jurisdiction to modify the sentence by directing that the terms on the assault run consecutively.id: 19338
The minor's release from CYA did not render his appeal denying a modification of the commitment moot where he remained a parolee subject to direct supervision.The juvenile court denied the minor's motion to modify his CYA commitment. He was released on parole while his appeal was pending. However, the release did not render the appeal moot since the minor remained under CYA commitment as a parolee and subject to its direct supervision.id: 18974
Weapon possession appeal was not moot where the underlying prior conviction was subsequently rendered invalid.Defendant was convicted of Penal Code 12021.1, possession of a firearm by a person previously convicted of a violent offense. The charge was based on defendant's membership in a class of persons who are unable to legally possess firearms, and thus, the subsequent invalidity of the underlying prior conviction did not render his appeal moot.id: 10677
Updated 3/7/2024Defendant’s habeas petition was dismissed as moot after he had received everything he requested while the petition was pending. Defendant filed a habeas corpus petition in the superior court challenging the CDCR regulations that at that time made three strike offenders serving an indeterminate term for a nonviolent offense ineligible for early parole consideration under Prop 57. The court denied the petition due to defendant’s failure to exhaust his administrative remedies. He then filed a similar habeas petition in the Court of Appeal. The petition was denied as moot given the CDCR determination that defendant was now eligible for early parole consideration, regardless of the fact that his parole hearing may not take place until 2021.id: 26284
Updated 3/6/2024Issue of custody credits was moot for defendant who was released from custody.Defendant argued that he was entitled to additional credits for time he spent in presentence custody in Ohio. However, the issue was moot where he was released from custody without further supervision, and because he was not ordered to pay any amount against which excess presentence custody credits could be applied.id: 26651
Updated 2/4/2024Application to reduce a dead client’s felony to a misdemeanor was moot. Defendant died in 2012. In 2020, counsel filed an application under Penal Code section 1170.18(f) seeking to have defendant’s 1998 felony conviction designated a misdemeanor. However, the application on behalf of a dead defendant was moot where there was no showing that granting the petition would provide any effective relief.id: 27382
Updated 1/31/2024Trial court lacked jurisdiction to reconsider the gang enhancement where remand was limited to sentence.On remand following a resentencing, the defendant was entitled to the ameliorative benefits of AB 333 because the judgment was not final. However, because the court had reversed solely with respect to the sentence and directed the court to resentence defendant, the trial court did not have jurisdiction to reconsider the gang enhancement.id: 28043
Minor’s life term for sex offenses was returned for a Prop 57 transfer hearing, and his claim that if sent back to adult court he should receive an early parole haring was not ripe.Defendant was convicted of multiple violent sex offenses and sentenced to 94 years-to-life. He was 17 years old at the time of the offenses. If the juvenile court sends the case back to adult court then a resentencing will be necessary because the original term is cruel and unusual. Defendant’s claim that Penal Code section 3051, allowing for an early parole hearing, violates equal protection because sex offenders shouldn’t be treated worse than murderers, will not be ripe for review until the new sentence is imposed.id: 25989
Because the court granted defendant’s Prop 47 petition, the prior finding that she violated her PRCS and the accompanying jail term were rendered moot.Defendant argued the trial court erred in refusing to consider her Prop 47 petition prior to revoking her postrelease community supervision (PRCS). However, because the court later granted her Prop 47 petition, the prior finding that she violated her PRCS and the attendant 120 day jail sentence were rendered moot.id: 25028
MDO’s, like people facing involuntary civil commitments after a NGI finding, have a statutory right not to testify at commitment proceedings.Persons facing involuntary civil commitment as mentally disordered offenders are similarly situated with people subject to civil commitment after being found not guilty by reason of insanity. The latter group has a statutory right not to be compelled to testify at their commitment proceedings. Denying potential MDO’s the same right would violate equal protection. However, the issue was moot because the petition for recommitment was denied.id: 24751
Supreme Court says state court misinterpreted prior decision vacating death sentence.Prior to Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), Texas capital juries were instructed to decide "special issues." If the jury answered those questions in the affirmative, the trial court was required to impose a death sentence. In Penry I, the Court held that the Texas procedure was constitutionally inadequate. At defendant's post- Penry I trial, the court sought to cure the Penry problem by instructing the jury that if it felt the death sentence should not be imposed, it should falsely answer "no" to one of the special-issue questions, even if it believed that the answer should be "yes." In Penry v. Johnson, 532 U.S. 782 (2001) (Penry II), the Court found this approach inadequate to cure the Penry I problem. Defendant's trial was held between Penry I and Penry II. He objected to the use of the special issue questions. The U.S. Supreme Court vacated defendant's death sentence, finding error under Penry I that was not cured by allowing the jury to answer the questions "no." On remand, the state court reinstated the death sentence, holding that defendant had not preserved his Penry II challenge and, for that reason, had to show that the error caused "egregious harm." The Supreme Court again vacated defendant's death sentence, holding that its prior decision established that the Penry I error required defendant's death sentence to be vacated and that the state court had misinterpreted the Court's prior decision.id: 20187
Petition challenging the MDO commitment was not moot where it was filed during initial year of commitment.The Board of Parole hearings rejected defendant’s challenge to her classification as a mentally disordered offender and the initial one year commitment. The trial court granted the prosecutor’s motion to dismiss as moot since the petition was not heard in the first year. However, defendant is entitled to have the petition heard on the merits because it was filed during the initial year of commitment even thought the initial term had been completed. id: 23789
The trial court erred by applying a local rule requiring misdemeanor defendants to appeal personally at readiness and settlement conferences.The trial court erred by applying a local rule requiring misdemeanor defendants to personally appear at readiness and settlement conferences. Penal Code section 977 provides that misdemeanor defendants may appear by counsel only. While the present matter was moot, the court decided the issue because it was likely to recur.id: 22712
Habeas petition seeking new parole suitability hearing was moot where defendant had been released on parole at a new hearing.Defendant alleged in a petition for writ of habeas corpus that he was denied due process at the parole hearing in 2007 because its determination that he was not suitable for parole was not supported by “some evidence.” While the petition was pending, he was released from prison after the board found him suitable at a new hearing. The petition was moot because the remedy for a due process violation at a parole suitability hearing is a new hearing.id: 21981
Question regarding an error in allowing self-representation at an MDO commitment hearing was moot where the commitment period expired during the appeal. Defendant argued the trial court erred by allowing her to represent herself at the mentally disordered offender commitment hearing. However, because the commitment period has expired the issue is moot. Other claims, such as the error in revoking her outpatient status are not moot because she had been recommitted and the erroneous commitment to an inpatient program could have affected her subsequent recommitment. id: 20603
An inmate serving a life term in a prison outside of California who is participating in the federal witness protection program has a right to personally appear at his "lifers hearing."Petitioner was serving multiple life sentences outside of California as a participant in the federal witness protection program. He was denied the right to appear in person at his "lifers hearing" before the Board of Parole Hearings. However, he had the statutory right to appear at the hearing in person, and any regulation suggesting otherwise was void and violated due process by failing to honor the agreement suggesting he would be treated as if he were in a California prison. Finally, the issue was not moot even though the CDCR agreed to the relief suggested because the substance of his claims are important and likely to be raised again.id: 20076
When the suppression motion was litigated before the court's decision in Sanders, the proper remedy was a remand to determine whether police knew of defendant's parole search condition.In 2003, the court held police must know of a defendant's
parole search condition to justify a warrantees search under that exception. (People v. Sanders (2003) 31 Cal.4th 318.) Defendant's suppression motion was litigated before the court decided Sanders. The parties did not present evidence as to whether the police knew of the search condition at the time of the search. The Court of Appeal thereafter erred by reversing the judgment outright. The appropriate remedy was a remand to determine whether the officers knew of the search condition.id: 19152
Prosecution's appeal of the order dismissing the conspiracy charge was not moot since the offenses to which defendant pled guilty were not LIO's of conspiracy.Defendant was charged with conspiracy, possession of pseudoephedrine with intent to manufacture methamphetamine, and petty theft with a prior. The court granted defendant's Penal Code section 995 motion dismissing the conspiracy count under the corpus delicti rule. The prosecution appealed the order. Defendant argued the appeal was moot because he pled guilty to the other counts which he claimed were lesser included offenses of the conspiracy. However, the appeal was not moot since counts 2 and 3 were not LIO's of conspiracy under the elements test, and the accusatory pleading test is not applicable for double jeopardy purposes or for deciding whether multiple convictions of charged offenses is proper.id: 18930
The trial court did not err in denying live evidence following a remand to conduct a new hearing on the motion to modify the death verdict.Following a death verdict, the matter was remanded to the trial court for a new Penal Code section 190.4, subd.(e) modification of penalty since the trial court erroneously considered a probation report at the first hearing. The second hearing was held before a different judge. The new judge reviewed the transcripts of the guilt and penalty phases. Contrary to defendant's claim, he was not entitled to present live testimony at the new hearing. The inability of the new judge to view live witnesses in determining credibility was not fatal. Moreover, the court did not err in denying the request for an evidentiary hearing for a motion to strike the special circumstance finding since that request exceeded the scope of the remand order.
id: 17957
Remand was not required where any sentencing error was harmless.Appellant argued the sentencing court failed to exercise the discretion permissible under Penal Code section 654 when it sentenced appellant to the most serious offense, and stayed the imposition of sentencing on the less serious offenses. Without deciding the issue the court found that any error was harmless and remand was therefore unnecessary.id: 14757
Supreme Court holds that case was not moot where remainder of sentence could still be imposed.Defendant was sentenced to three years in custody, but his sentence was reversed and on remand the District Court imposed an 18-month sentence. In the meantime, the Supreme Court granted certiorari and the juvenile served his time before the case was decided. Nevertheless, the Supreme Court held the case was saved from mootness by the juvenile's failure to complete the 3-year detention originally imposed and the possibility that the remainder of it could be imposed.id: 14758
Overbreadth issue was mooted by amendment to child pornography statute.Defendant was convicted under a Massachusetts statute prohibiting adults from posing nude minors for photographs. After the U.S. Supreme Court granted certiori, the statute was amended to add a lascivious intent requirement. Writing for a four-person plurality, Justice O'Connor ruled that the statute's amendment mooted the argument that it was overbroad on its face, because it could no longer chill free speech, and accordingly the judgment below was vacated and the case remanded for further proceedings on the other issues which had not been reached. Justices Scalia and Blackmun dissented from the mootness ruling, stating that they would uphold the statute as not overbroad. Justices Brennan, Marshall and Stevens also dissented from the mootness ruling, but stated that they would strike down the statute as overbroad.id: 10684
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245