Filed 6/27/22 In re T.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Stanislaus County. Rubén A. Villalobos, Judge.

Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

T.D. was 14 years old when he shot and killed Chaz Bettencourt during an attempted carjacking. (People v. Diaz (2018) 21 Cal.App.5th 538 (Diaz); see id. (Mar. 20, 2018, F071348) [nonpub opn.].)[1] He eventually was convicted in adult criminal court and sentenced to a lengthy prison term. (Diaz, at p. 541.) Before his judgment of conviction became final, changes in law with respect to the charging of juveniles in adult criminal court required that the matter be remanded to the juvenile court and the criminal convictions be treated as juvenile adjudications. (Initiative Measure, Prop. 57, § 4.2, approved by voters, Gen. Elec. (Nov. 8, 2016) eff. Nov. 9, 2016; Senate Bill No. 1391 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1012, § 1) (Senate Bill No. 1391); see Diaz, at p. 546; see also People v. Superior Court (T.D.) (2019) 38 Cal.App.5th 360, 368.) Due to lengthy proceedings concerning the constitutionality of some of these changes in law (People v. Superior Court (T.D.), supra, 38 Cal.App.5th 360; People v. Superior Court (T.D.), S257980), T.D. was over the age of 25 when the matter came before the juvenile court for a contested disposition hearing. Nonetheless, the juvenile court held a contested disposition hearing and committed T.D. to the Division of Juvenile Justice (DJJ)[2] for a two-year period of control.

T.D. contends the juvenile court lost jurisdiction on his 25th birthday and thus lacked jurisdiction to conduct the disposition hearing and commit him to the DJJ. The People argue, both in a motion to dismiss and in their responsive briefing, that the appeal is moot because the juvenile court has since terminated T.D.’s wardship, discharged his case, and released him from custody.

For reasons we explain, we agree with the People that the appeal is moot and we therefore grant the People’s motion to dismiss.

PROCEDURAL HISTORY[3]

Bettencourt was murdered in August 2010. (Diaz, supra, F071348.) As stated, T.D. was 14 years old at the time. He was tried in adult criminal court and convicted in 2013 of first degree murder committed during the commission of an attempted carjacking (Pen. Code, § 187, subd. (a)), and attempted carjacking (id., §§ 215, subd. (a), 664) in which a principal personally and intentionally discharged a firearm, proximately causing death (id., § 12022.53, subds. (d), (e)(1)). He was sentenced in 2015 to a lengthy prison term.

During the pendency of his direct appeal, the voters passed Proposition 57 (Initiative Measure, Prop. 57, § 4.2, approved by voters, Gen. Elec. (Nov. 8, 2016) eff. Nov. 9, 2016). Our opinion modified T.D.’s sentence in ways no longer relevant and, in light of Proposition 57, conditionally reversed the conviction and sentence as modified. We remanded to the juvenile court with instructions to conduct a juvenile transfer hearing and to either (1) treat the convictions as juvenile adjudications and impose an appropriate disposition or (2) reinstate the convictions and sentence if the court determined it would have transferred T.D. to a court of criminal jurisdiction. (Diaz, supra, 21 Cal.App.5th at p. 546.) When the remittitur issued in July 2018, T.D. was 22 years old.

On January 1, 2019, before the juvenile court conducted the juvenile transfer hearing, Senate Bill No. 1391 took effect, prohibiting T.D.’s transfer to adult criminal court. T.D. was then 23 years old. On January 2, 2019, he asserted his right to a speedy disposition pursuant to Welfare and Institutions Code section 702. The People argued Senate Bill No. 1391 was unconstitutional and asked the juvenile court to set a juvenile transfer hearing. The juvenile court determined Senate Bill No. 1391 is constitutional and set the dispositional hearing for January 24, 2019.

The People filed a petition for writ of mandate in this court and, on January 23, 2019, we stayed the pending juvenile court dispositional hearing. On August 5, 2019, we denied the petition for writ of mandate but specified that the stay of juvenile court proceedings would remain in effect until the opinion became final or the California Supreme Court granted a hearing. (People v. Superior Court (T.D.), supra, 38 Cal.App.5th at p. 378.) The California Supreme Court then granted the People’s petition for review (S257980) and stayed all further proceedings in the juvenile court.

On February 25, 2021, the state high court issued its opinion in O.G. v. Superior Court (2021) 11 Cal.5th 82, upholding the constitutionality of Senate Bill No. 1391. On May 12, 2021, the high court dismissed the petition for review in People v. Superior Court (T.D.), S257980 and dissolved the stay of proceedings. On May 14, 2021, this court issued its remittitur. By that time, T.D. was 25 years old.

On May 19, 2021, T.D. filed in the juvenile court a request to place the case on calendar for purposes of setting a dispositional hearing, noting that T.D. was still asserting his right to a speedy disposition pursuant to Welfare and Institutions Code section 702. The request was granted and the parties appeared before the juvenile court on May 21, 2021, at which time the dispositional hearing was set for May 25, 2021.

On May 24, 2021, T.D. filed in the juvenile court a motion to dismiss the action, arguing the juvenile court had no jurisdiction over the matter because T.D. had attained 25 years of age. Accordingly, he argued, the court lacked authority to order any further detention or supervision of T.D. In a dispositional brief, the People argued the court had authority under Welfare and Institutions Code section 1769 to commit T.D. to the DJJ for a two-year period despite his having attained 25 years of age. The motion to dismiss was heard on May 25, 2021. The court determined Welfare and Institutions Code sections 607, former subdivision (g)(2) and 1769 “indicate that DJJ jurisdiction in the specifics of this particular type of charge exist[s] to age 25 or a two-year period of control.” On that basis, the court concluded it had jurisdiction to proceed with disposition and remarked that, “if the Supreme Court felt differently, they would have had the opportunity to tell [the juvenile court] that [it] couldn’t.” Accordingly, the motion to dismiss was denied. T.D. stated his intent to proceed to disposition “as originally requested” without time waived.

On June 10, 2021, the juvenile court held a contested disposition hearing. The parties presented further argument regarding the court’s authority to commit T.D. to the DJJ and the court reiterated its prior ruling that it was not only authorized, but required, to consider committing T.D. to the DJJ for a two-year period of control. The parties presented argument and evidence regarding T.D.’s suitability for either commitment or release. The court found it was probable that T.D. would benefit from a DJJ commitment and therefore committed T.D. to the DJJ for a two-year period of control. A review hearing was set for June 28, 2021. The court emphasized to counsel and the probation department that the court’s focus at subsequent 15-day review hearings would be on determining whether the DJJ would accept the commitment and, if so, ensuring minor was committed as soon as possible.

T.D. appealed. The record on appeal does not contain records pertaining to the initial 15-day review hearing. However, during the pendency of the appeal, we granted the People’s second motion for judicial notice and took judicial notice of the juvenile court’s September 7, 2021 minute order from T.D.’s juvenile case. The minute order reflects the DJJ rejected T.D.’s placement based on an individualized determination based primarily on T.D.’s age. The juvenile court determined other commitment and supervision options were either inappropriate or nonexistent. Accordingly, the court “exercise[d] and order[ed] the only remaining option, which is to release [T.D.], terminate his wardship, and discharge him from [the juvenile] case.” T.D.’s adult criminal case was dismissed and T.D. was released from custody, effectively immediately, on the basis that “any further commitment is contrary to law.”

DISCUSSION

The People move to dismiss the appeal as moot because T.D.’s wardship has been terminated and he has been released from custody. T.D. contends the appeal is not moot because, “n the event [he] prevails on appeal, he will be able to seek whatever rights and remedies he has under the law due to being wrongfully and unlawfully detained in a state prison.” He further argues that, even if the appeal is moot, we should exercise our discretion to decide the appeal on the ground the issue is capable of repetition and likely to evade appellate review.

“ ‘ “[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.” ([i]People v. DeLeon (2017) 3 Cal.5th 640, 645 (DeLeon); accord, In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) Here, T.D.’s wardship has been terminated and he is no longer in custody. Reversal of the juvenile court’s dispositional order would have no practical effect. The appeal is therefore moot.

Nonetheless, T.D. contends the case is not moot because he may have collateral rights or remedies arising from his being “wrongfully and unlawfully detained in a state prison.” He cites no authority for this proposition. Generally speaking, a case will not be considered moot where a defendant continues to suffer adverse collateral consequences despite having completed a sentence. (See DeLeon, supra, 3 Cal.5th at p. 646, fn. 2 [recognizing that collateral consequences can avoid a mootness determination]; accord, In re Christian H. (2015) 238 Cal.App.4th 1085, 1091; People v. Ellison (2003) 111 Cal.App.4th 1360, 1368-1369.) However, the defendant must demonstrate “sufficiently concrete consequences to avoid a finding of mootness.” (DeLeon, at p. 646, fn. 2.) Consequences that are speculative do not “support the conclusion that a legally sufficient controversy exists.” (Ibid.)

Here, T.D. does not identify any specific rights or remedies that may be available to him. We note that T.D. was convicted in adult criminal court and his convictions were valid at the time they were entered. (Diaz, supra, 21 Cal.App.5th at p. 546.) T.D. does not point us to authority that provides a remedy for an offender who was validly convicted of murder and attempted carjacking and suffered continued custody pending resolution of novel legal questions regarding the application of an ameliorative change in law that caused his criminal convictions to be treated as juvenile adjudications and reduced his period of incarceration or detention from a term of 50 years to life to a term of just under 11 years. (Cf. Pen. Code, §§ 4900-4906 [claims by persons erroneously convicted and pardoned]; see id., §§ 851.865 [requiring payment of compensation pursuant to § 4900 upon declaration of factual innocence from the court], 1485.55 [finding of factual innocence in habeas proceeding is binding on the California Victim Compensation Board for a claim presented to the board].) His claim of potential collateral rights or remedies is insufficiently concrete to avoid a finding of mootness.

T.D. next asks us to exercise our discretion to decide the appeal despite it being moot. We may do so if “[t]he issue ‘is likely to recur, might otherwise evade appellate review, and is of continuing public interest.’ ” (DeLeon, supra, 3 Cal.5th at p. 646.) We disagree that the juvenile court’s exercise of jurisdiction over T.D. presents a recurring issue of continuing public importance that will continue to evade review absent our discretionary intervention. T.D. points us to no other cases in which this issue has arisen, much less any in which appellate review has been thwarted by termination of a wardship and discharge of a former juvenile. (See Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 716 [exercising discretion to resolve a moot question where there was “a substantial amount of litigation touching on the issue,” and appellate review had been thwarted by conduct of one of the litigants that mooted the issue].) We further note that, upon denial of T.D.’s motion to dismiss, the trial court queried whether T.D. wished to pursue “any type of appeals or writs.” T.D. declined. Having declined to pursue such remedies, T.D.’s emphasis on the exigency of this issue’s resolution is unpersuasive.[4]

In sum, the appeal is moot and we decline to exercise our discretion to decide the moot issue.

DISPOSITION

The People’s motion to dismiss is granted and the appeal is dismissed as moot.

DETJEN, J.

WE CONCUR:

HILL, P. J.

POOCHIGIAN, J.

[1] Our opinion in T.D.’s direct appeal was partially published; the nonpublished portions of the opinion fall within the exception to the California Rules of Court, rule 8.1115(b)(1).

[2] Effective July 1, 2021, the responsibilities for the agency formerly known as Division of Juvenile Justice were transferred to the newly created Office of Youth and Community Restoration (OYCR). OYCR is part of the California Health and Human Services Agency. (See Gov. Code, § 12803; Stats. 2020, ch. 337, Sen. Bill No. 823 (2019-2020 Reg. Sess.); see also Welf. & Inst. Code, § 2200 et. seq.) For ease of reference, we refer to the agency as DJJ in this opinion.

[3] We dispense with a lengthy statement of facts, as the facts underlying the offenses are not pertinent to the issues raised on appeal.

[4] T.D. also suggests the juvenile court delayed proceeding to a contested disposition hearing: “Although the juvenile court had jurisdiction over appellant for approximately two years before it ultimately held a disposition hearing in the case, it waited well beyond his 25th birthday to conduct the hearing. As a result, appellant was held in state prison for 11 months beyond his 25th birthday, suffering irreputable harm as a result.” T.D. turned 25 years old in October 2020. At that time, proceedings in the juvenile court had been stayed by the California Supreme Court. The stay was dissolved on May 12, 2021, and the remittitur issued on May 14, 2021. The trial court heard and denied T.D.’s motion to dismiss on May 25, 2021, and proceeded to the contested disposition hearing on June 10, 2021, less than a month after the stay was dissolved and the remittitur issued. We perceive no delay on the part of the juvenile court.