Filed 5/10/22 Gray v. Hill CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Police arrested David Gray for rape in 1996. He is currently incarcerated for an unrelated crime. Based on the 1996 arrest, prison authorities designated Gray’s custody status with an “R” suffix used to identify sex offenders in the prison population, thereby imposing restrictions on Gray not usually placed on prisoners.

After the trial court granted Gray’s petition to seal and destroy the 1996 arrest records per Penal Code section 851.8,[1] Gray filed a petition for writ of mandate to compel individual employees of Folsom State Prison (Folsom) and the California Department of Corrections and Rehabilitation (CDCR) (collectively, respondents) to seal and destroy the arrest records and remove the “R” suffix from his custody designation. The trial court sustained respondents’ demurrer to Gray’s writ petition with leave to amend, but dismissed the case as moot a few months later when it found that respondents had voluntarily performed the acts sought in the writ petition.

Gray appeals from the judgment of dismissal and the trial court’s intermediate orders sustaining respondents’ demurrer and denying his motion for punitive damages. We affirm the judgment of dismissal.

Factual and Procedural Background

1. Background and Gray’s Custody Designation

Since 2007, Gray has been serving a sentence of 51 years to life in Folsom for second-degree murder.

In March 2008, a Unit Classification Committee (UCC) conducted Gray’s program review.[2] As part of that review, the UCC sought to determine whether it would be appropriate to affix Gray’s inmate custody designation with an “R” suffix, which the CDCR uses to identify prisoners with a history of sex offenses. An “R” suffix designation limits an inmate’s housing and assignment options and may preclude them from family visits. (Cal. Code Regs., tit. 15, §§ 3177, subd. (b)(1)(A); 3377.1, subd. (b)(10).)

Based on its review of a police report regarding Gray’s 1996 arrest for rape and a review of “all case factors,” the UCC decided to apply the “R” suffix to Gray’s custody designation.

2. Gray’s Section 851.8 Petition and Related Writ Petition

A decade later, in March 2018, a trial court granted Gray’s petition to seal and destroy the arrest records for his 1996 arrest per section 851.8. Under that section, a court will grant a petition to seal and destroy arrest records if it finds that the petitioner is “factually innocent” of the crime for which he or she was arrested. (§ 851.8, subd. (b).) If the court grants the petition, it orders the Department of Justice (DOJ) and the law enforcement agency having jurisdiction over the arrest to seal the arrest records and to request other agencies to destroy the records. (§ 851.8, subd. (b).)

After the court granted his section 851.8 petition, Gray initiated an inmate appeal to have the “R” suffix removed from his custody designation. Folsom denied Gray’s appeal because the document Gray submitted—a form petition that included an order signed by the trial court—directed the DOJ to seal records but did not require the CDCR to take any action. Folsom advised Gray that “appropriate action will be taken” if the CDCR receives an order from the court or the DOJ to remove certain records.

A month later, in May 2018, Gray filed a petition for writ of mandate for an order requiring that respondents remove the “R” suffix from his custody designation and for an order requiring that respondents seal and destroy his 1996 arrest records. Gray alleges that once he provided them the petition with the signed trial court order, respondents were required to destroy the arrest records and to refer Gray to a classification committee for review of his custody designation under California Code of Regulations, title 15, section 3377.1, subdivision (b)(6), which requires a UCC to refer the matter to an Institutional Classification Committee (ICC)[3] if the UCC finds that an inmate no longer requires an “R” suffix, and subdivision (b)(8), which requires an ICC to reverse an “R” suffix evaluation if there is “new and compelling” information. Relying on California Code of Regulations, title 15, section 3377.1, subdivision (b)(9), which prohibits an “R” suffix designation if the inmate was acquitted or found not guilty of the sex offense, Gray further contends that respondents should have removed the “R” suffix from his custody designation because the court determined he was factually innocent of the alleged sex offense.

3. Gray’s Reclassification

In September 2018, the DOJ sent a letter to the CDCR notifying it that all records associated with Gray’s 1996 arrest must be sealed. That same month, on Gray’s motion, the trial court issued an order stating that Gray is factually innocent of the crime for which he was arrested in 1996 and requiring the CDCR and Folsom to seal the arrest records.

In November 2018, an ICC recommended removal of the “R” suffix from Gray’s custody designation. In making its decision, the ICC referred to the order on the section 851.8 petition and the September 2018 DOJ letter. The committee noted Gray’s “rapsheet” had been updated to omit the 1996 arrest and concluded “the arrest is no longer available for consideration.” The ICC referred Gray to a classification staff representative, who also approved removal of the “R” suffix from Gray’s custody designation. Thereafter, Folsom issued a modification order showing that Gray’s appeal of his custody designation was granted. (Former Cal. Code Regs., tit. 15, §§ 3000, 3084, subd. (d).)

4. Subsequent Court Proceedings

In December 2018, the trial court sustained respondents’ demurrer to Gray’s writ petition, finding that the order granting the section 851.8 petition did not require respondents’ removal of the “R” suffix affixed to Gray’s custody designation because “it did not contain a finding that Petitioner was acquitted or found factually innocent of the 1996 rape charge.” The court granted Gray leave to amend, however, noting that the court’s September 2018 order declaring his factual innocence postdated the filing of Gray’s petition and was not alleged therein. Gray did not file an amended petition.

A few weeks after the trial court sustained respondents’ demurrer, Gray filed a motion for punitive damages, arguing that he was the “prevailing party” and that respondents’ demurrer was “frivolous.” In March 2019, the trial court denied the motion in part because the court had not ruled on the merits of Gray’s writ petition or made any finding that respondents had breached a duty or obligation, and thus the claim was unripe.

In May 2019, respondents filed a case management statement stating that prison officials had removed the “R” suffix designation and attaching Folsom’s November 2018 modification order. At the case management conference a few weeks later, the trial court dismissed the case as moot, finding that respondents had “voluntarily performed the act sought in the Petition for Writ of Mandate.” Gray appeals from the judgment of dismissal and challenges the trial court’s intermediate orders sustaining the demurrer and denying punitive damages.

Discussion

1. The Dismissal Order and the Order Sustaining Respondents’ Demurrer

Gray’s petition for writ of mandate sought to enforce his rights under section 851.8 and the regulations governing inmate classification. The writ relief he requested is an order requiring respondents to seal and destroy his 1996 arrest records, to refer him to a classification committee, and to remove the “R” suffix from his custody designation. The trial court dismissed the case as moot after reviewing evidence that respondents had voluntarily performed those acts.

It is well-established that courts decide only actual controversies. (Giles v. Horn (2002) 100 Cal.App.4th 206, 226–227 (Giles).) “ ‘[A]n 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.) In the context of a writ of mandate, courts generally will not “enforce an abstract right of no practical benefit to petitioner, or where to issue the writ would be useless, unenforceable or unavailing.” (Ellena v. Department of Ins. (2014) 230 Cal.App.4th 198, 207.) The key inquiry in determining whether a case is moot is whether the court can grant the plaintiff any effectual relief. (Giles, at p. 227.)

Gray has failed to show that he can still obtain effectual relief from the trial court. Specifically, he does not dispute the trial court’s finding that respondents performed the acts sought in his writ petition.[4] Because the issuance of a writ would have no practical benefit to him, the matter is moot. (Ellena v. Department of Ins., supra, 230 Cal.App.4th at p. 207.)

Gray contends for the first time in his reply brief that the trial court dismissed the matter as moot without confirmation from respondents that they had removed the “R” suffix. But this contention is contrary to the record, and Gray does not claim that respondents actually failed to remove the “R” suffix. Rather, he acknowledges in his reply that they have done so.

Gray’s writ petition also sought a court order “similar” to an unsigned order attached to the petition declaring that the court has found him factually innocent of the alleged sex offense. But again, Gray does not contend he has not received this relief, and, in any case, the record shows that Gray has already obtained such relief in an order dated September 19, 2018.

Turning to the trial court’s ruling on respondents’ demurrer, we acknowledge that ruling is unrelated to the court’s dismissal of the case as moot. But any conceivable error in the demurrer ruling would not change the outcome of this case and the fact that no effective relief can be granted. (See Giles, supra, 100 Cal.App.4th at p. 227.) Gray’s challenge to the order sustaining respondents’ demurrer provides no basis for reversing the judgment.

In his reply brief, Gray asks this court to exercise its discretion under one of the exceptions to the mootness doctrine to consider the issue of whether respondents had a duty to reclassify him based solely on his granted section 851.8 petition. We decline to do so. It is not likely that resolution of this question would provide guidance to future cases given the unique facts of this case. (See MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 215.) The issue is not likely to recur between the parties, and we are unpersuaded by Gray’s contention that respondents might reclassify him with an “R” suffix in the future based on the perceived deficiency of the original order on his section 851.8 petition.

2. Order Denying Gray’s Punitive Damages Motion

Gray also challenges the trial court’s order denying his punitive damages motion. Even assuming this claim is appealable, Gray fails to show error.

A plaintiff may recover punitive damages, in addition to actual damages, in “an action for the breach of an obligation not arising from contract” where the defendant is guilty of “oppression, fraud or malice.” (Civ. Code, § 3294, subd. (a).) Here, Gray does not persuade us that the trial court erred in denying punitive damages under Civil Code section 3294. Among other things, the evidence in the record does not demonstrate that respondents acted with oppression, fraud or malice when they failed to perform the acts sought in the writ petition.

Relying on Code of Civil Procedure section 1032, Gray also contends he is entitled to punitive damages as the “prevailing party” in the action because respondents voluntarily performed the acts sought in his writ petition. But that statute is inapplicable because punitive damages are not statutorily listed as an allowable cost. (See Code Civ. Proc., § 1033.5.) In any event, there is no evidence that Gray was the prevailing party at the time of his motion. Respondents did not inform the court that they had voluntarily performed the acts sought in Gray’s writ petition until months after the court ruled on his motion, and the record does not reflect that Gray renewed his motion in light of the new circumstances.

Finally, and contrary to Gray’s assertion, punitive damages are not recoverable here under former Code of Civil Procedure section 128.6 or its current version, Code of Civil Procedure section 128.5.

Disposition

The judgment of dismissal is affirmed.

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Fujisaki, J.

WE CONCUR:

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Tucher, P. J.

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Petrou, J.

A157573

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] California Code of Regulations, title 15, section 3376, subdivision (d)(2), provides that a UCC shall review an inmate’s case at least annually “to consider the accuracy of the inmate’s classification score, custody designation, program, work and privilege group, and facility placement[.]”

[3] The ICC makes decisions about an inmate’s classification. (Cal. Code Regs., tit. 15, §§ 3376, subd. (d)(1)(C), 3377.1, subd. (b)(6)-(8).)

[4] As indicated in the statement of facts, the record supports this finding. Shortly after the DOJ notified the CDCR that all records associated with Gray’s 1996 arrest must be sealed, Gray was referred to the ICC for review of his “R” suffix designation. The ICC recommended removal of the “R” suffix from Gray’s inmate status based in part on the DOJ letter, and it noted the 1996 arrest was removed from Gray’s “rapsheet” and was “no longer available” for consideration. The record further indicates that Folsom completed a modification order for the removal of Gray’s “R” suffix designation. Respondents referred to the modification order when they represented to the trial court several months later that prison officials had removed the “R” suffix designation. Under these circumstances, we can reasonably infer that Folsom sealed or destroyed its arrest records for the 1996 arrest and removed the “R” suffix from Gray’s custody designation.