Filed 1/10/18 P. v. Gordon CA3
NOT TO BE PUBLISHED



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
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THE PEOPLE,

Plaintiff and Respondent,

v.

CHIC GORDON,

Defendant and Appellant.
C076819

(Super. Ct. No. CM036728)





Defendant Chic Gordon appeals from her conviction of failing to maintain control of a dangerous animal causing serious bodily injury, a felony. (Pen. Code, § 399, subd. (b).) Initially, the trial court suspended sentence and placed defendant on formal probation for 36 months. The court also awarded victim restitution to the Butte County Animal Control (Animal Control) in the amount of $1,710 to reimburse the agency its costs of impounding defendant’s dogs after they injured the victim. Defendant filed a timely notice of appeal.
Less than three months later, the district attorney filed a petition to revoke probation. He later withdrew the petition when defendant declined to be on probation any longer and requested to be sentenced. The trial court sentenced defendant to state prison for the middle term of two years. It also reaffirmed its earlier victim restitution order.
Defendant contends (1) the restitution award to Animal Control was unauthorized, as the agency was not a direct victim under section 1202.4; and (2) requiring her to serve her sentence in state prison instead of county jail violated her equal protection rights. We conclude the restitution award to Animal Control was unauthorized, and we will strike it from the judgment. We do not address defendant’s second argument, as it is moot.
I
Restitution Award
Defendant contends the victim restitution award to Animal Control was unauthorized and should be stricken. She claims the agency is not a direct victim under section 1202.4, the victim restitution statute, and there is no other authority to support the award. The Attorney General agrees Animal Control is not a direct victim under section 1202.4, but he claims the record is unclear as to whether the trial court intended to reimburse Animal Control as a condition of probation under section 1203.1, or as victim restitution under section 1202.4. He argues we should remand the matter rather than strike the award to allow the trial court to clarify the authority for its order. We conclude the court erred by making the award under section 1202.4, and we will strike the order.
A. Background
At the original sentencing where the trial court imposed probation, the prosecutor sought restitution under section 1202.4 in part to reimburse Animal Control for the cost of impounding defendant’s dogs. Defense counsel objected to reimbursing Animal Control. The prosecutor clarified she was not seeking to recoup the costs claimed by Butte County to investigate defendant’s action, which are excluded under section 1202.4, but was seeking only to recoup the impound costs.
The trial court granted the award, stating, “I will impose the impound fees totaling $1,710. That will be joint and severally liable with any other held-responsible party.” The court did not specify the statutory basis for the award, but it did order the award at the same time it ordered restitution to the direct victims, identifying all of the awards as “orders granting restitution.” The court’s minutes show the court imposed the impound costs as victim restitution. The formal probation order lists the impound cost as a civil fee that was expressly not imposed as a condition of probation. It was imposed as victim restitution.
When the trial court later imposed the prison sentence, it reaffirmed its prior victim restitution orders, including the order to make restitution to Animal Control. Defense counsel objected to the restitution for Animal Control, claiming Animal Control was not a direct victim. The court overruled the objection. The court’s minutes for this sentencing and the abstract of judgment both record the impound costs were imposed as victim restitution.
B. Analysis
Section 1202.4 requires a trial court to order a convicted defendant to make restitution to the victim for the latter’s economic loss caused by the defendant’s conduct. (§ 1202.4, subd. (f).) For purposes of this requirement, a victim includes a governmental subdivision, agency, or instrumentality, but only when that entity is a direct victim of the crime. (§ 1202.4, subd. (k)(2).) A direct victim is an entity against which the defendant’s crimes were committed; “that is, entities that are the ‘immediate objects of the [defendant’s] offenses.’ ” (People v. Martinez (2005) 36 Cal.4th 384, 393.)
There is no dispute Animal Control was not the direct object of defendant’s crimes. The immediate object of defendant’s crime was the person whom defendant’s dogs injured, not Animal Control. Accordingly, the court could not order defendant to make victim restitution under section 1202.4 to Animal Control.
The Attorney General agrees with this point, but he asserts the trial court could have required defendant to reimburse Animal Control as a condition of probation under section 1203.1. He further contends it is unclear if the court meant to seek reimbursement in the form of victim restitution or as a condition of probation.
We agree the trial court had the discretion to order defendant to reimburse Animal Control the cost of impounding her dogs as a condition of her probation. (People v. Anderson (2010) 50 Cal.4th 19, 29.) Indeed, had the court done so, the condition would have survived defendant’s completion or revocation of probation. (People v. Kleinman (2004) 123 Cal.App.4th 1476, 1481.)
However, it is clear the trial court did not impose the restitution order as a condition of probation. In its probation order, the court expressly stated restitution to Animal Control was not imposed as a condition of probation. It was imposed as victim restitution. Also, when the court reaffirmed its restitution orders, counsel objected to reimbursing Animal Control because the agency was not a direct victim for purposes of victim restitution. If the trial court had intended to order restitution to Animal Control on any available legal basis other than victim restitution, it could have done so at that point. Instead, the court overruled the objection and imposed the order as part of victim restitution. The court’s minutes and abstract of judgment confirm the court’s decision. As explained, the court lacked authority to require defendant to reimburse Animal Control its costs of impounding her dogs as a form of victim restitution. Accordingly, its order to that effect will be stricken.
 
II
State Prison Sentence
Defendant contends her sentence to state prison instead of county jail under the Realignment Act violated her constitutional rights to equal protection under the law. She claims there is no rational distinction between her felony and its state prison sentence, and the felony of involuntary manslaughter and its county jail sentence.
Defendant, however, has already completed her prison term. As a result, the issue is moot. It is a court’s duty to decide actual controversies and not give opinions on moot questions. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) Although we have discretion to resolve an issue when material questions remain for our determination, where the case poses an issue of broad public interest like to recur, or where the issue is likely to recur between the same parties or others (In re N.S. (2016) 245 Cal.App.4th 53, 59), we choose not to exercise that discretion in this instance where, should we find error, we could provide no effective relief.
DISPOSITION
The order requiring defendant to pay victim restitution to the Butte County Animal Control is hereby stricken as unauthorized. In all other respects, the judgment is affirmed. We direct the clerk of the superior court to amend the abstract of judgment by deleting the award of victim restitution to Butte County Animal Control, and to forward
 
copies of the amended abstract to the Department of Corrections and Rehabilitation and to defendant.


NICHOLSON , J.



We concur:



MURRAY , Acting P. J.




RENNER , J.