P. v. Flynn
Filed 6/6/07 P. v. Flynn CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. GIRARD FLYNN, Defendant and Appellant. | B188371 (Los Angeles County Super. Ct. No. TA080693) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald V. Skyers, Judge. Dismissed
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.
Girard Flynn appeals from the judgment entered following a jury trial in which he was convicted of possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)).[1]Following a court trial, he was found to have suffered one prior conviction and served a prison term within the meaning of Penal Code section 667.5, subdivision (b). Imposition of sentence was suspended and he was placed on probation pursuant to Penal Code section 1210.1, upon various terms and conditions.[2] He contends the true finding that appellant suffered a prior prison conviction must be stricken because it was never pled in the information.
During the pendency of this appeal, respondent filed a request for judicial notice and proposed order that this court take judicial notice of the trial courts minute order dated January 31, 2007. We have done so. The order reflects that on January 31, 2007, appellant admitted a violation of probation and was sentenced to the middle term of two years. Pursuant to the Peoples motion, the 1 year prior pursuant to Penal Code section 667.5(b) [was] ordered stricken.[3]
Appellant advised this court that he did not oppose the request for judicial notice and proposed order and further agreed that the issue whether the trial court erroneously imposed a one-year prior prison term enhancement was moot.
FACTUAL AND PROCEDURAL SUMMARY
August 17, 2005, Los Angeles Police Officer Michael Saragueta was working undercover in the area of Main Street and Imperial Highway when he asked appellant for a dime, meaning ten dollars worth of rock cocaine. Appellant left for a few minutes and when he returned, Officer Saragueta gave him a pre-recordered 10-dollar bill and appellant handed him several off-white rocks resembling rock cocaine.[4] Following appellants arrest, he was taken to the police station. During a strip search, an off-white rock fell from his waist area.
DISCUSSION
It is settled that [a]n action that involves only abstract or academic questions of law cannot be maintained. [Citation.] [Citation.] Moreover, [A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed. [Citation.] [Citation.] (People v. DeLong (2002) 101 Cal.App.4th 482, 486.) Here, the trial courts action of striking the prior conviction left no prejudicial consequences which could be ameliorated by a successful appeal and the appeal must therefore be dismissed as moot. (Id. at p. 489, italics omitted.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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[1] The jury deadlocked on the charge of the sale/transportation of cocaine in violation of Health and Safety Code section 11352, subdivision (a), and the court declared a mistrial as to that count.
[2] Initially, he was sentenced to prison for three years, consisting of the middle term of two years plus one year pursuant to the prior prison term enhancement. On April 17, 2006, however, the court recalled that sentence and placed appellant on probation.
[3] The minute order also reflects that appellant had accrued enough custody credits to satisfy his state prison term.
[4] Upon analysis, they were found to contain cocaine base.
