C062957

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					Filed 11/22/10           In re D.T. 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                                            NOT TO BE PUBLISHED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 This opinion has not been certified for publication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

                                                  (Sacramento)

                                                          ----



In re D.C.T. on Habeas Corpus.
                                                                                                C062957

                                                                               (Super. Ct. No. 08F07254)




         This is a People‟s appeal from the grant of a writ of

habeas corpus.                (Pen. Code, § 1506.)                      D.C.T. (hereafter

petitioner)1 has filed a motion to dismiss the appeal claiming

the matter is moot because the prison regulation he challenged

has been amended and he has obtained relief under the amended

regulation.             We agree the matter has become moot.                                     We shall

reverse the judgment with directions to the trial court to

dismiss the petition.                       (Paul v. Milk Depots, Inc. (1964) 62

Cal.2d 129, 134.)




1 To address petitioner‟s safety concerns, we have amended the
title of this appeal to reflect only his initials and we shall
refer to him in the text as petitioner.


                                                             1
                            BACKGROUND

    A jury found petitioner guilty of possession of

methamphetamine in violation of Health and Safety Code section

11377, subdivision (a).   Petitioner was sentenced to state

prison for 25 years to life pursuant to the Three Strikes law

(§ 667, subds. (b)-(i)) based on, as relevant here, his prior

convictions for the rape (§ 261) and forcible sexual penetration

(§ 289, subd. (a)) of a 16-year-old girl and the rape (§ 261),

oral copulation (§ 288a, subd. (c)), and forcible sexual

penetration (§ 289, subd. (a)) of a 17-year-old girl.

Petitioner had previously served a sentence of nine years for

such sex offenses.

    When petitioner‟s daughter came to visit him in Folsom

State Prison in August 2007, she attempted to bring her minor

son, petitioner‟s grandson, with her on the visit.    The request

to bring in petitioner‟s grandson for a contact visit was denied

by the correctional officer processing visitors that day

pursuant to California Code of Regulations, title 15, section
3173.1, subdivision (b) (§ 3173.1(b)).   At the time section

3173.1(b) read:   “For inmates convicted of PC Section(s) 261,

264.1, 266c, 285, 286, 288, 288a, 288.5, or 289 when the victim

is a minor, visitation with any minor who is not the victim of

the crime shall be limited to non-contact status.”

    Petitioner filed an inmate appeal seeking contact

visitation with his family members who were minors.
Petitioner‟s appeal was denied at all levels.   After exhausting

his administrative remedies, petitioner filed a petition for


                                 2
writ of habeas corpus in the superior court.   Petitioner claimed

section 3173.1(b) had no rational relationship to the

penological interest of the California Department of Corrections

and Rehabilitation (CDCR) in protecting children in prison

visiting rooms and/or its enforcement against petitioner and his

family members was unconstitutional as, among other things, a

violation of petitioner‟s right to equal protection, citing

Robin J. v. Superior Court (2004) 124 Cal.App.4th 414 (Robin

J.).

       The superior court requested an informal response from the

People.    When the informal response failed to address the

court‟s concerns, the superior court issued an order to show

cause specifically directing the People to address “how [CDCR‟s]

regulation, read in context with Penal Code section 1202.05 and

Welfare and Institutions Code section 362.6, comports with the

four-part test the Supreme Court set out in Turner.[2]”    After

the People filed their return, the superior court issued an

order requesting supplemental briefing “on the following
questions:    Does it violate petitioner‟s equal protection rights

that . . . § 3173.1(b) prohibits him from having contact visits

with any minor, including his own grandson, without exception,

because he has been convicted of a specified sex offense

involving a minor, when Welf[are] and Inst[itutions] Code

§ 362.6[, subdivisions] (a) and (b) give a court the discretion



2 Turner v. Safley (1987) 482 U.S. 78, 89-91 [96 L.Ed.2d 64, 79-
80].


                                  3
to order contact visitation between another inmate convicted of

the same sex offense against a child and that child, if that

child is the inmate‟s child?   Is not that similar to the concern

voiced in Robin J. v. Superior Court (2004) 124 Cal.App.4th

414?”

    After considering all of the People‟s responses, the

superior court ultimately concluded Welfare and Institutions

Code section 362.6 (§ 362.6) provides the juvenile court the

exclusive authority to determine whether visitation between a

sex offender inmate and his/her minor victim is to include

contact visitation or have any other restriction.   It further

concluded that California Code of Regulations, title 15, section

3173.1, subdivision (a) (§ 3173.1(a)), which states

“[v]isitation pursuant to such an order shall be limited to non-

contact status[,]” conflicted with such statute and was invalid

to that extent.   The court then determined that this gave rise

to an equal protection violation for inmates such as petitioner

who, pursuant to section 3173.1(b), are restricted without
exception from contact visitation with any minor who is not the

victim of their sex offense.   The court found the People had

failed to give any justification for the disparity in treatment

and that it made no sense to allow a sex offender inmate to have

the possibility of contact visitation with a minor who was the

actual victim of the sex offense, but preclude any possibility

of contact visitation with a minor who was not the victim of the
offense.   As section 3173.1(b) was not rationally related to a

legitimate governmental interest, petitioner was entitled to


                                 4
relief.   The court granted the petition for habeas corpus and

the People appealed.

     After the issuance of the writ and the People‟s filing of

their notice of appeal, section 3173.1(b) was amended to allow

contact visitation if authorized by the Institution

Classification Committee.   (Cal. Code Regs., tit. 15, § 3173.1

(Register 2010, No. 22 (May 28, 2010) pp. 163-164.)   Section

3173.1(b) now reads:   “For inmates convicted of PC Section(s)

261, 264.1, 266c, 285, 286, 288, 288a, 288.5, or 289 when the

victim is a minor, visitation with any minor who is not the

victim of the crime shall be limited to non-contact status

except as authorized by the Institution Classification

Committee.”

     Petitioner filed a request for a hearing before the

Institution Classification Committee for authorization, pursuant

to amended section 3173.1(b), to have contact visits with his

minor visitors.

     After the People submitted their opening brief3 and
petitioner submitted his respondent‟s brief on appeal, the




3 On appeal, the People contend the order granting habeas corpus
relief should be reversed as (1) the superior court should not
have considered section 3173.1(a) when petitioner only
challenged the validity of section 3173.1(b); (2) the superior
court erred in its interpretation of section 362.6; and (3)
section 3173.1(b) has a rational relationship to the legitimate
governmental interest in protecting minors from sexual
misconduct during prison visitation.


                                 5
Institution Classification Committee authorized contact visits

between petitioner and the minors in his family.

    When negotiations to settle this appeal in light of these

developments were unsuccessful, petitioner filed his motion to

dismiss the appeal as moot.
                              DISCUSSION

    An appellate court decides only actual controversies and,

thus, will not render opinions on moot questions that cannot

affect the matter on appeal.    (Giles v. Horn (2002) 100

Cal.App.4th 206, 226-227; Frias v. Superior Court (1975) 51

Cal.App.3d 919, 923 (Frias).)    Accordingly, if an event occurs

while an appeal is pending and the event makes it impossible for

the appellate court to grant effectual relief, the case becomes

moot and the issues will not be considered.      (Giles v. Horn,

supra, at p. 227; Wilson v. L.A. County Civil Service Com.

(1952) 112 Cal.App.2d 450, 453.)       “The policy behind a mootness

dismissal is that „courts decide justiciable controversies and

will normally not render advisory opinions.‟”      (Giraldo v.
Department of Corrections & Rehabilitation (2008) 168

Cal.App.4th 231, 257.)

    An exception to the mootness doctrine exists for cases

involving important issues of continuing public importance.

(Abbott Ford v. Superior Court (1987) 43 Cal.3d 858, 868,

fn. 8.)   Under the “public importance” exception, “„[i]f an

action involves a matter of continuing public interest and the
issue is likely to recur, a court may exercise an inherent

discretion to resolve that issue, even though an event occurring


                                   6
during its pendency would normally render the matter moot.‟

[Citations.]”    (Giraldo v. Department of Corrections &

Rehabilitation, supra, 168 Cal.App.4th at p. 259.)

    Here, the relief petitioner sought in his petition for writ

of habeas corpus has been obtained.   He has been granted

permission to have contact visitation with his minor family

members pursuant to the amended provisions of section 3173.1(b).

A decision by this court on the validity of the prior section

3173.1(b) would have no effect on petitioner, making the case

moot.   Moreover, since section 3173.1(b) has been amended to

allow inmates in the class that petitioner represents to

likewise seek authorization for contact visitation, there is no

continuing public interest in the validity of former section

3173.1(b).   (Frias, supra, 51 Cal.App.3d at p. 923 [case moot

and not within public interest exception where petitioner freed

from segregated status that triggered the proceedings and class

of inmates petitioner sought to represent were no longer

vulnerable to administratively unreviewable orders of
segregation].)

    The People argue against these conclusions.     The People

contend the case is not moot because the superior court‟s order

invalidating section 3173.1(b) also invalidated section

3173.1(a).   In addition, the People note the ruling of the

superior court also expressed the opinion that the

constitutionality of section 3173.1(b) could not be saved by the
provision of some kind of in-prison review.    The People claim

the continuing adverse impact of these portions of the superior


                                  7
court‟s order on the Warden establishes that the case still

presents an actual controversy.

    To the extent there exists such a controversy, it does not

involve the parties before this court and a ruling on the merits

of the People‟s contentions would be an advisory opinion by this

court.    Nevertheless, we respect the concerns expressed by the

People.    They can be addressed in the disposition of this

matter.    We may avoid impliedly affirming an order that we have

not reviewed on the merits by, instead of dismissing the appeal,

reversing the judgment with directions to the trial court to

dismiss the case as moot.    (Paul v. Milk Depots, Inc., supra, 62

Cal.2d at pp. 134-135, see Giles v. Horn, supra, 100 Cal.App.4th

at p. 229 [when an appeal is disposed of on the ground of

mootness without reaching the merits, in order to avoid

ambiguity, the preferable procedure is to reverse with

directions to the trial court to dismiss the action]; County of

San Diego v. Brown (1993) 19 Cal.App.4th 1054, 1090.)    A

reversal with directions to the trial court to dismiss the
action as moot eliminates the judgment, review of which was

prevented by subsequently occurring events.    (United States v.

Munsingwear, Inc. (1950) 340 U.S. 36, 39-40 [95 L.Ed. 36, 40-

41].)    “When that procedure is followed, the rights of all

parties are preserved; none is prejudiced by a decision which in




                                  8
the statutory scheme was only preliminary.”    (Id. at p. 40 [95

L.Ed. at p. 41].)4

     We will follow this procedure here and reverse the order of

the superior court granting the petition for writ of habeas

corpus with directions to the superior court to dismiss the

petition as moot.
                           DISPOSITION

     The order granting petitioner‟s writ of habeas corpus is

reversed and the case is remanded to the superior court with

directions to dismiss the petition as moot.    The stay previously

issued by this court shall be dissolved as of the date this

opinion is final.



                                         CANTIL-SAKAUYE    , J.



We concur:



       NICHOLSON         , Acting P. J.



       ROBIE             , J.




4 While this type of reversal avoids impliedly affirming the
trial court‟s order or judgment, it “does not imply approval of
a contrary judgment . . . [it] is merely a procedural step
necessary to a proper disposition of this case.” (Paul v. Milk
Depots, Inc., supra, 62 Cal.2d at p. 135.)


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