People v. Delong

• Decision Date: 22 August 2002
• Docket Number: No. B152019.,B152019.
• Citation: 101 Cal.App.4th 482,124 Cal.Rptr.2d 293
• Parties: The PEOPLE, Plaintiff and Respondent, v. Janet DELONG, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

124 Cal.Rptr.2d 293

101 Cal.App.4th 482

The PEOPLE, Plaintiff and Respondent, v. Janet DELONG, Defendant and Appellant.

No. B152019.

Court of Appeal, Second District, Division 3.

August 22, 2002.

Certified For Partial Publication^* Review Denied Nov. 13, 2002.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, and Marc J. Nolan, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

CROSKEY, J.

INTRODUCTION

In the case of In re DeLong (2001) 93 Cal.App.4th 562, 113 Cal.Rptr.2d 385, we addressed the threshold issue of when Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, and Penal Code section 1210.1, subdivision (a),¹ enacted thereunder, first applied in a criminal proceeding.² Today, in the published portion of this opinion, we return to Proposition 36 and, in another case of first impression, we decide an issue at the opposite end of the timeline of issues presented in Proposition 36 proceedings. DeLong has appealed from the judgment (order granting probation) entered following her conviction by jury of possession of cocaine (Health & Saf.Code, § 11350, subd. (a)). She was placed on probation for three years.

We hold here that although the appellant Janet DeLong's conviction for possession was set aside pursuant to Proposition 36, because she successfully completed the prescribed drug treatment program and fulfilled her probation conditions, her appeal was not thereby rendered moot. That is so because she is entitled to an opportunity to clear her name and rid herself of the stigma of criminality. In addition, the conviction still exists for some purposes and has certain prejudicial collateral consequences in spite of the fulfillment of her probation conditions. Moreover, a conclusion that the present appeal is moot would disserve Proposition 36 by penalizing defendants who completed their drug programs while rewarding defendants who did not, since only the latter could maintain such appeals.

In the unpublished portion of this opinion, we reject DeLong's contention that the trial court erroneously denied her second Wheeler³ motion, and reject her contention that the trial court erroneously excluded, under Evidence Code section 352, certain hearsay statements allegedly admissible as declarations against interest.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), the evidence established that on August 10, 2000, police arrested DeLong after they discovered .88 grams of a usable amount of cocaine in her purse in Culver City. At the time, DeLong appeared to be under the influence of a central nervous stimulant such as cocaine.

In defense, DeLong claimed that, on the above date, she went with Joel Burg to his hotel room. Two other persons were present. Burg gave her drinks and she eventually passed out on a bed. She awoke to see the two persons kissing, and the two moved to the same bed and continued kissing. Burg began touching DeLong's hair. DeLong entered a bathroom and locked its door. Burg attempted to persuade De-Long to stay but was unsuccessful and called her a bitch. DeLong left, but her purse lay unattended at various times before she left. DeLong later directed the officers who arrested her to Burg's room, where officers discovered narcotics. On September 8, 2000, DeLong's husband accused Burg of planting something on DeLong as a "sick joke." Burg replied, "You can't prove it—so what if I did it. You can't prove it."

In rebuttal, a detective testified that, after DeLong's arrest, he asked her if the drugs in her purse were for sale or personal use. DeLong replied they were for personal use and she did not often use drugs.

CONTENTIONS

DeLong urges that two prejudicial errors justifying reversal were committed by the trial court when it (1) denied her renewed Wheeler motion and (2) excluded, pursuant to Evidence Code section 352, defense evidence of a third party's declarations against penal interest. The People dispute these contentions and argue that, in any event, "[t]he appeal should be dismissed as moot." We address this predicate issue first.

DISCUSSION

1. The Present Appeal Should Not Be Dismissed As Moot.

The following facts are undisputed. An information filed in November 2000, alleged that, in August 2000, DeLong possessed cocaine in violation of Health and Safety Code section 11350, subdivision (a). On May 18, 2001, DeLong was convicted by jury of that charge. On July 1, 2001, Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, and section 1210.1, enacted as part of that proposition, took effect. On July 12, 2001, the sentencing court pronounced judgment, suspending imposition of sentence and ordering DeLong placed on formal probation. The court also, over DeLong's objection that Proposition 36 applied in the present case and precluded an incarceration order, ordered that, as a condition of probation, DeLong be incarcerated in local custody for 150 days.

On July 19, 2001, DeLong filed a petition for a writ of habeas corpus directing the lower court to impose probation, but without incarceration, pursuant to Proposition 36. On October 31, 2001, in the case of In re DeLong, supra, 93 Cal.App.4th 562, 113 Cal.Rptr.2d 385, (hereafter, DeLong), we granted the petition.⁴

On February 6, 2002, pursuant to our writ, the trial court ordered that DeLong's probation be modified and that she be placed on "formal Proposition 36 probation[.]" (Some capitalization omitted.) All other orders were ordered to remain in effect.⁵ At some point prior to March 21, 2002, DeLong successfully completed a Proposition 36 drug program (discussed infra), therefore, on March 21, 2002, the lower court, pursuant to Proposition 36, set aside DeLong's conviction and dismissed the information.

The People argue, "[b]y operation of law, i.e., Proposition 36, there is now no underlying conviction to appeal, or for this Court to affirm or reverse, or for the People to re-try upon reversal. By completing her drug treatment program, this would-be appellant has `served' her `sentence' and then, unlike most persons convicted of crimes, had her conviction set aside. The appeal should therefore be dismissed."

It is settled that "[a]n action that involves only abstract or academic questions of law cannot be maintained. [Citation.]" (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669.) Moreover, "`[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.' (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669.)" (In re Dani R. (2001) 89 Cal. App.4th 402, 404, 106 Cal.Rptr.2d 926.)

The issue of whether events which occur during the pendency of an appeal of a criminal conviction can render the appeal moot is not a novel one. An enlightening annotation canvassing American jurisprudence pertinent to the issue provides perspective. (Annot., When Criminal Case Becomes Moot So As to Preclude Review of or Attack on Conviction or Sentence (1966) 9 A.L.R.3d 462, 1966 WL 15639.) That annotation reveals, "The law as to when a criminal case is moot so as to preclude review of or attack on a conviction or sentence is now unsettled, with a noticeable tendency in the more recent cases to relax rules against the review of judgments in criminal cases, in certain circumstances. [Footnote omitted.] The area of greatest disagreement is that in which the accused has satisfied his sentence, as by serving a prison term or paying a fine. In this area, three general rules have emerged: [¶] (1) The traditional rule that the satisfaction of the sentence renders the case moot so as to preclude review of or attack on the conviction or sentence. [Footnote omitted.] [¶] (2) The liberal view that an accused's interest in clearing his name permits review of or attack on the conviction or sentence even after the sentence has been satisfied. [Footnote omitted.] [¶] (3) The federal rule that the satisfaction of a sentence renders the case moot so as to preclude review of or attack on the conviction or sentence unless, as a result of the conviction or sentence, the accused suffers collateral legal disabilities apart from the sentence, in which event the accused is held to have a sufficient stake in the conviction or sentence to permit him to obtain review of, or maintain a challenge to, the conviction or sentence. [Footnote omitted.]" (Annot., supra, 9 A.L.R.3d at pp. 466-467, italics added.)

California appears to subscribe to the so-called liberal view, although at least one California case suggests that a mootness inquiry may also include consideration of whether prejudicial consequences or disadvantageous collateral consequences can be ameliorated by a successful appeal. In the case of In re Byrnes (1945) 26 Cal.2d 824, 161 P.2d 376, in pertinent part, the defendant was tried and convicted in two successive cases. The cases were sentenced consecutively and he appealed both. He later filed a petition for a writ of habeas corpus claiming he did not have the trial transcripts he needed to perfect his appeals. The defendant requested that the petition be granted or that an order be made requiring the appeals to be heard and determined. The petition was answered but, by the time the appellate court considered its merits, the defendant had served his term of imprisonment for the convictions resulting from the first trial. (In re Byrnes, supra, 26 Cal.2d at p. 825, 161 P.2d 376.)

Nonetheless, that fact did not render the petition moot. "Although it is conceded that, as the petitioner...