P. v. Elemen CA6

Filed 5/1/13 P. v. Elemen CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038216

(Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1100777) v.

DANIEL ROBERT ELEMEN,

Defendant and Appellant.

In this appeal, Daniel Elemen (appellant) challenges the trial court's finding that his juvenile adjudication for assault with a deadly weapon qualified as a strike within the meaning of the "Three Strikes" law (Pen. Code, §§ 1170.12, 667, subds. (b)-(i)). Appellant argues that the finding is not supported by substantial evidence. For reasons that follow, we find this issue to be moot.

Background On July 21, 2011 the Santa Clara County District Attorney filed an information in which appellant was charged with first degree residential burglary (§§ 459, 460, subd. (a).)1 The information contained two allegations; one, that a person, not an accomplice was present in the residence during the commission of the burglary and two, that appellant had a prior strike conviction based on a prior juvenile adjudication (Welf. & Inst. Code, § 602) for assault with a deadly weapon (§ 245, subd. (a)(1)).

On September 6, 2011, appellant pleaded no contest to the first degree burglary charge, admitted the allegation that a person was present other than an accomplice at the time of the burglary, and admitted that he had suffered a prior juvenile adjudication. However, he reserved the right to challenge that the juvenile adjudication was a strike. The court told appellant that he would receive no more than four years in state prison.2

Following appellant's no contest plea, the court found that appellant's juvenile adjudication for assault with a deadly weapon was a strike; the court relied on this court's opinion in In re Pedro C. (1989) 215 Cal.App.3d 174.3

Thereafter, appellant filed a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, asking the court to exercise its discretion under section 1385 and strike the prior strike in the interests of justice. At the sentencing hearing held on March 6, 2012, the court granted appellant's motion, struck the prior strike and sentenced appellant to the low term of two years.

Subsequently, appellant filed a timely notice of appeal. The notice of appeal indicates that appellant is appealing from the sentence or other matters occurring after the entry of plea.

As noted, on appeal appellant challenges the trial court's finding that his prior juvenile adjudication is a strike. Respondent points out that this issue is moot because the trial court struck the strike before sentence was imposed and did not rely on it in sentencing appellant to the mitigated term of two years in prison. Accordingly, respondent argues, even if this court granted the relief requested by appellant (a finding that his juvenile adjudication was not a strike), it would not alter the already nonexistent effect that the strike allegation has upon appellant's prison term.

We agree with respondent. We need not address this issue because appellate courts do not review questions that are moot and of only academic importance. (People v. Hamilton (1968) 258 Cal.App.2d 511, 515.) We will "not undertake to determine abstract questions of law at the request of a party who shows no substantial rights can be affected by the decision either way. [Citations.]" (Keefer v. Keefer (1939) 31 Cal.App.2d 335, 337.) Generally, a reviewing court will dismiss a case in which the issues are moot. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315.)

Nothing that we decide one way or the other can have any influence on appellant's sentence. We reject appellant's suggestion that if we were to find that the juvenile adjudication was not a strike the court might be inclined to grant him probation on remand. This is highly speculative and unlikely given that appellant was convicted of burglary of an inhabited dwelling house, which provides "[e]xcept in unusual cases . . . probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house." (§ 462, subd. (a).) After dismissing appellant's strike, the court could have placed appellant on probation after making such a finding but chose not so to do. In fact, in sentencing appellant the court specifically made a finding that this was not an unusual case. After considering "the criteria set out in the rules of court,"4 which the court should consider in determining whether the statutory limitation on probation had been overcome, the court found that appellant did not fall within any of the criteria. Further, the court stated that "there were none that [the court] was able to substitute as justifiable reasons." That being so, again, assuming for the sake of argument that we were to agree with appellant that his prior juvenile adjudication was not a strike, to send this case back to the trial court would be an idle act. " ' "[T]he duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." ' [Citation.]" (Eye Dog Foundation v. State Bd. of Guide Dogs for Blind (1967) 67 Cal.2d 536, 541.)

Finally, we point out that there are no adverse consequences to appellant by this decision. If appellant is ever charged with another crime, the prosecution will again have to plead and prove that his prior juvenile adjudication is a strike. (§ 667, subd. (c).)

Disposition

The judgment is affirmed.

____________________________

ELIA, J.

WE CONCUR: __________________________ RUSHING, P.J. __________________________ PREMO, J.