People v. Cappello

• Decision Date: 07 October 2011
• Docket Number: D058390
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ADAM FRANCISCO CAPPELLO, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. ADAM FRANCISCO CAPPELLO, Defendant and Appellant.

D058390

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Dated: October 7, 2011

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCD223160)

APPEAL from an order of the Superior Court of San Diego County, Francis M. Devaney, Judge. Dismissed.

Adam Francisco Cappello appeals an order suspending imposition of sentence and granting him probation following his conviction of criminal offenses. Since that order has been superseded by a later judgment revoking probation and imposing sentence which has become final, we dismiss the appeal as moot.

FACTUAL AND PROCEDURAL BACKGROUND

After a bench trial, Cappello was found guilty of two counts of battery on a peace officer with injury (Pen. Code, § 243, subd. (c)(2)); and one count each of attempt to take a firearm from a peace officer (id., § 148, subd. (d)), resisting an executive officer (id., § 69), and vandalism (id., § 594, subds. (a), (b)(1)). At the initial sentencing hearings, the trial court denied as untimely Cappello's requests to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). The court suspended imposition of sentence and granted Cappello five years of formal probation. One of the conditions of probation was that Cappello submit to warrantless searches of his person, residence, vehicle and personal effects.

Cappello filed the present appeal from the order suspending imposition of sentence and granting probation.¹ He contends the trial court erroneously denied his Faretta right of self-representation at the sentencing hearings and improperly imposed consent to warrantless searches as a condition of probation.

Two months after Cappello was granted probation, the trial court formally revoked his probation and sentenced him to prison for two years. At the probation revocation and subsequent sentencing hearings, Cappello was permitted to and did represent himself.

Cappello appealed from the judgment sentencing him to prison. That appeal has been dismissed.²

DISCUSSION

In light of the dismissal of Cappello's subsequent appeal (D058824), we asked the parties to file letter briefs addressing the mootness of the present appeal (D058390). (See Gov. Code, § 68081.) In his letter brief, Cappello concedes that his challenge to the condition of probation requiring him to consent to warrantless searches is moot, but contends his Faretta claim "still appears viable" and invites us "to exercise [our] discretion as to its merit for the guidance of future proceedings." The People contend that Cappello's entire appeal is moot and should be dismissed. As we shall explain, we agree with the People.

An appellate court generally will not review questions that are moot and only of academic interest. (People v. Travis (2006) 139 Cal.App.4th 1271, 1280; People v. DeLong (2002) 101 Cal.App.4th 482, 486; Keefer v. Keefer (1939) 31 Cal.App.2d 335, 337.) A question becomes moot when, during the pendency of an appeal, an event occurs that makes it impossible for the decision of the appellate court to have any practical impact or to provide the parties effective relief. (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 131; People v. Rish (2008) 163 Cal.App.4th 1370, 1380; DeLong, at p. 486.)

In particular, a challenge to a condition of probation becomes moot when, because of the occurrence of some event, the condition is no longer in effect. (See, e.g., In re Sheenah K. (2007) 40 Cal.4th 875, 879 [death of probationer]; People v. Carbajal (1995) 10 Cal.4th 1114, 1120, fn. 5 [expiration of probation]; In re R.V. (2009) 171 Cal.App.4th 239, 245 [revocation of probation].) Here, as Cappello concedes, his challenge to the probation condition that required him to consent to warrantless searches became moot when the court revoked the grant of probation and sentenced him to prison, because the condition was no longer in effect.

Also, after a judgment in a case has become final, a challenge to an earlier order or ruling in the case is generally moot. (See, e.g., Hindman v. Owl Drug Co. (1935) 4 Cal.2d 451, 456; In re Fireside Bank Cases (2010) 187 Cal.App.4th 1120, 1126.) Similarly, an appeal in one case is moot when a reversal in that case could not affect the conclusiveness of a judgment in a related case that has become final. (Estate of Ehle (1968) 267 Cal.App.2d 24, 30; Swart v. Swart (1942) 49 Cal.App.2d 44, 47.) Here, the judgment sentencing Cappello to prison became final when his appeal was dismissed (D058824) (see Swart, at p. 47); that judgment thus conclusively resolved the sentence to be imposed for the crimes of which he was convicted. Cappello's challenge to the denial of his Faretta request to represent himself at the earlier sentencing hearing, when imposition of sentence was suspended and probation was granted, is therefore moot.

Cappello nevertheless invites us to exercise our discretion to decide his Faretta claim "for the guidance of future proceedings." (See, e.g., People v. Cheek (2001) 25 Cal.4th 894, 897-898 [exercising discretion to decide moot issue that involved issue ofpublic interest that was likely to recur yet evade review].) We do not think such guidance is needed. Our colleagues in the Fifth District have held that a defendant who makes a timely Faretta motion has a right to represent himself at sentencing, and in the opinion they discussed the timeliness requirement. (People v. Miller (2007) 153 Cal.App.4th 1015, 1024.) Our Supreme Court has held that a Faretta motion made for the first time at a sentencing hearing may be denied as untimely, and in its opinion the court discussed the circumstances relevant to a trial court's exercise of discretion in that regard. (People v. Doolin (2009) 45 Cal.4th 390, 452-455.) Since the existing jurisprudence already provides an adequate framework of analysis, we decline Cappello's invitation to exercise our discretion to address the merits of his Faretta claim.

In short, we conclude...