Filed 5/25/17 P. v. Hibbard CA4/3



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

MITCHELL ALAN HIBBARD,

Defendant and Appellant.


G052675

(Super. Ct. No. 14NF5116)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Dismissed.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Christine M. Levingston Bergman and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
* * *

1. Introduction
In this appeal, Mitchell Alan Hibbard challenges a probation condition stating, “[d]o not be in the presence of children under the age of 18, unless accompanied by a responsible adult 21 years of age or older and approved in advance by your probation or mandatory supervision officer.” Hibbard contends this probation condition is unconstitutionally vague because it lacks a knowledge (scienter) requirement. We dismiss the appeal as moot because Hibbard no longer is on probation. We decline to exercise our discretion to reach the merits of a moot appeal.

2. Background
A jury found Hibbard guilty, as charged, of one count of possession or control of child pornography in violation of Penal Code section 311.11, subdivision (a). The trial court suspended imposition of sentence and placed Hibbard on five years’ formal probation with terms and conditions, including the challenged condition. Hibbard’s trial counsel did not object to any terms of probation. This matter is Hibbard’s appeal from the judgment.
In December 2015, Hibbard’s probation officer filed a petition for arraignment on probation violation. Hibbard admitted the probation violation at the probation violation arraignment conducted on December 8, 2015. At the same time, he pleaded guilty to a related misdemeanor offense. The trial court terminated probation and imposed a prison sentence of 16 months on the conviction for possession or control of child pornography. Hibbard received a total of 626 days’ credit for time served. He appealed from the sentence, which would include the revocation of probation. We affirmed the sentence and revocation of probation in a nonpublished opinion, People v. Hibbard (Oct. 4, 2016, G053141).

3. Discussion
“[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.” (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454.) “‘[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.’” (People v. Herrera (2006) 136 Cal.App.4th 1191, 1198.)
Hibbard is no longer on probation and no longer subject to the challenged probation condition. A reversal therefore would have no practical effect. Hibbard has not identified, and we have not found, any disadvantageous collateral consequences from the challenged probation condition. (See People v. Gonzalez (2017) 7 Cal.App.5th 370, 380.)
Hibbard asks that we exercise our discretion to consider the merits of his appeal because it raises a constitutional issue of continuing public interest that is likely to recur. “‘We have discretion to decide a case that, although moot, poses an issue of broad public interest that is likely to recur.’” (People v. Gonzalez, supra, 7 Cal.App.5th at p. 381.) We decline to exercise our discretion to reach the merits of the appeal. Although challenges to probation conditions lacking a knowledge requirement have become commonplace, “‘there is now a substantial uncontradicted body of case law establishing, as a matter of law, that a probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter.’” (People v. Moses (2011) 199 Cal.App.4th 374, 380, quoting People v. Patel (2011) 196 Cal.App.4th 956, 960.) There is no need to address the same scienter issue in a moot appeal in which no objection to the condition was made in the trial court.
4. Disposition
The appeal is dismissed as moot.



FYBEL, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.