In re Cousins

Filed 10/26/06 In re Cousins CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. David S. Wesley, Judge. Reversed and remanded.

Bill Lockyer, Attorney General, James M. Humes, Chief Assistant Attorney General, Frances T. Grunder, Senior Assistant Attorney General, Julie Garland, Heather Bushman and Collette C. Cavalier, Deputy Attorneys General, for Appellant A.P. Kane, Acting Warden.

Law Office of Michael Satris and Michael Satris, under appointment by the Court of Appeal, for Respondent Henry Cousins.

_____________________________________

Petitioner Henry Cousins is serving a life term in state prison following his conviction for the 1977 robbery-murder of Roberto Ramirez. This appeal arose from Cousins’s August 16, 2004 petition for writ of habeas corpus, challenging the finding by the Board of Parole Hearings (the Board) at Cousins’s annual parole hearing in 2003 that he was unsuitable for parole. On October 19, 2005, the superior court granted the habeas writ and ordered the Board to conduct a new hearing within 60 days, having found the Board’s decision was rendered in derogation of Cousins’s due process rights. The superior court’s order proscribed the Board from relying upon specified factors that it found were devoid of evidentiary support or otherwise improper. The warden timely appealed. We granted the Attorney General’s application to stay the order pending appeal, and we also granted the parties’ subsequent joint request to modify the stay order to permit the Board to conduct its next annual hearing (set for December 9, 2005) without the constraints imposed by the superior court’s order.

After the parties had fully briefed the appeal, we granted Cousins’s motion to continue oral argument, which we rescheduled for August 8, 2006. The parties subsequently informed this court that on April 11, 2006, the Board had conducted another annual parole hearing. At the 2006 hearing, the Board found Cousins suitable for parole and set a release date. That order was to become final on August 9, 2006, after which time the Governor would have 30 days to decide whether to reverse the Board’s decision, pursuant to Penal Code section 3041.2. Accordingly, in response to mootness concerns, we continued oral argument to October 4, 2006. In the meantime, the Governor issued a statement reversing the Board’s decision. On September 29, 2006, Cousins filed a motion requesting (1) his immediate release on parole, and (2) leave to supplement the appellate record with two documents, a copy of the transcript of the Board’s April 11, 2006 parole hearing in which a release date was set and the Governor’s August 30, 2006 statement reversing the Board’s decision.

Oral argument took place as scheduled and the matter was submitted on October 4, 2006. As explained below, we find that two post-appeal actions--the Board’s 2006 hearing and decision, coupled with the Governor’s reversal--have rendered moot the underlying action on Cousins’s writ petition. In 2006, the Board granted Cousins the relief sought in his petition,^[1] and he is now being held in custody pursuant to a decision by the Governor, who is not a party to this appeal and whose decision is not properly before this court. Accordingly, as explained below, we reverse the superior court’s judgment and remand this matter with directions to the superior court to vacate its October 19, 2005 order for a new parole hearing as being moot.

DISCUSSION

“It is well settled that an appellate court will decide only actual controversies. Consistent therewith, it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.” (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10; Giles v. Horn (2002) 100 Cal.App.4th 206, 226-227.) “A case is moot when the decision of the reviewing court ‘can have no practical impact or provide the parties effectual relief. [Citation.]’ [Citation.]” (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214; Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888; see also In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316 [“When no effective relief can be granted, an appeal is moot and will be dismissed”], citing Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)

Until the intervening decisions by the Board and the Governor, Cousins’s action was justiciable: As appellant, the warden sought to justify the Board’s unsuitability finding and invalidate the limitations contained in the superior court’s October 19, 2005 order with regard to future hearings; as respondent, Cousins sought to enforce the superior court’s order requiring the Board to conduct a new hearing in accordance with due process. However, when the Board accepted Cousins’s arguments in the 2006 annual hearing and issued a release date, the Board effectively complied with the superior court’s 2005 order. That is, Cousins received the relief he sought to obtain in the underlying writ petition, making superfluous any decision this court might render on the matter--a ruling in Cousins’s favor would compel the Board to do what it has already done. (See MHC Operating Limited Partnership v. City of San Jose, supra, 106 Cal.App.4th at p. 214 [“In this case, we cannot grant the City any effective relief from the 1999 judgment, for it has already complied with the writ.”]; see also, e.g., Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 746 [compliance with trial court’s writ rendered parties’ dispute moot]; Equi v. San Francisco. (1936) 13 Cal.App.2d 140, 141-142 [repeal of challenged provisions of ordinance rendered appeal moot].)

While the Governor’s subsequent reversal serves to restore Cousins’s custodial status, that decision is not properly before this court. If Cousins wishes to challenge the legitimacy of his incarceration, he must file a new petition in superior court challenging the Governor’s decision.^[2] (See In re Rosenkrantz (2002) 29 Cal.4th 616, 660-670.)

This is not an appropriate case for us to exercise our discretion to review the merits of this matter on the ground that it poses an issue of broad public interest that is likely to recur. (Giles v. Horn (2002) 100 Cal.App.4th 206, 228, citing In re William M. (1970) 3 Cal.3d 16, 23.) The question of whether the Governor’s decision complied with due process “is a particularly factual determination that must be resolved on a case-by-case basis . . . not one on which we would exercise our discretion to address on the merits, despite the fact that it is moot.” (Giles v. Horn, supra, 100 Cal.App.4th at p. 228.)

Finally, we address the proper disposition of this appeal. Moot appeals will generally be dismissed. (See, e.g., Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; Chantiles v. Lake Forest II Master Homeowners Assn. (1995) 37 Cal.App.4th 914, 921; MHC Operating Limited Partnership v. City of San Jose, supra, 106 Cal.App.4th at p. 214.) The involuntary dismissal of an appeal, however, operates as an affirmance of the judgment or order appealed from. (E.g., In re Jasmon O. (1994) 8 Cal.4th 398, 413; City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 492; County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1005.) Therefore, when mootness eliminates the basis for a judgment, an appellate court will not merely dismiss the appeal. Rather, it will reverse the judgment and direct the trial court to dismiss the action. As our Supreme Court has explained: “Since the basis for that judgment has now disappeared we should ‘dispose of the case, not merely of the appellate proceeding which brought it here.’ [Citations.] That result can be achieved by reversing the judgment solely for the purpose of restoring the matter to the jurisdiction of the superior court, with directions to the court to dismiss the proceeding. [Citations.] Such a reversal, of course, does not imply approval of a contrary judgment, but is merely a procedural step necessary to a proper disposition of this case.” (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134; Giles v. Horn, supra, 100 Cal.App.4th at p. 229.)

DISPOSITION

The judgment is reversed and the cause remanded to the superior court with directions to dismiss the petition for writ of habeas corpus as moot.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1] Cousins also prayed for his “immediate release” from state custody; however, such relief was not available under the circumstances. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 658 [upon a judicial determination that the Board’s findings lack evidentiary support, “the court should grant the prisoner’s petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law”]; In re DeLuna (2005) 126 Cal.App.4th 585, 599 [trial court’s authority limited to remanding the matter to the Board for further consideration].)

^[2] Having found the underlying petition moot, we deny Cousins’s motion for immediate release. We grant his motion for judicial notice to the extent it supports the parties’ undisputed representations as to the result of the Board’s 2006 hearing and the Governor’s reversal thereof.