P. v. Vailuu

Filed 6/16/08 P. v. Vailuu CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Dismissed.

The People appeal from the trial court's order sustaining a demurrer to a portion of a grand jury indictment against Raymond T. Vailuu, who was an inmate at Calipatria State Prison serving a term of 25 years to life.^[1] After the court sustained his demurrer, Vailuu entered a negotiated guilty plea to one count of assault (Pen. Code,  4501).^[2] Under the plea bargain, the remaining charges in the indictment were dismissed and the prosecution retained the right to challenge the demurrer by this appeal. The trial court sentenced Vailuu to a two-year prison term to run consecutive to his sentence of 25 years to life.

FACTS

On October 13, 2004, Manuel Nieves, a corrections officer at Calipatria State Prison, was attacked by Vailuu in the recreation yard. Vailuu and another inmate punched Nieves in the face. Nieves began to lose his balance, but managed to put a bear hug around Vailuu and bring him down to the ground, where they struggled. When Nieves was on top of Vailuu, he ordered him to stop resisting, and Vailuu complied after several such orders. As a result of his injuries, Nieves had to take three months off from work.

While Vailuu was being photographed by prison officials investigating the incident, he told correctional sergeant Everardo Silva that he was going to kill him and his family. Vailuu made a similar threat to correctional sergeant James Crabtree.

On May 18, 2007, the grand jury returned an indictment prepared by the Imperial County District Attorney's Office, alleging Vailuu committed one count of assault by a state prisoner ( 4501), and two counts of making terrorist threats ( 422); each count carried allegations that Vailuu had a prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)) and committed the instant offense while a prison inmate ( 1170.1, subd. (c)). Underneath the signatures of the grand jury foreperson and the prosecutor, the foreperson printed:

"Count # 4:

"PC 4500: Assault with means of force likely to produce great bodily injury.

"Every person while undergoing a life sentence, who is sentenced to state prison within the state, and who, with malice aforethought, commits an assault upon the person or another by any means of force likely to produce great bodily injury.

"PC 1170.1c

"PC 1170.12 a-D

"PC 667 (b)-(i)

"NA038184 PC 664/187(a) 07/16/99 Los Angeles, Ca. Superior"

On August 17 Vailuu filed a demurrer to count 4 of the indictment, which was opposed by the prosecution.

On September 6 the trial court sustained the demurrer and denied the prosecution's request to amend the indictment. The court granted the prosecution's motion to resubmit count 4 to the grand jury. ( 1010.) Later that day, the prosecution filed a notice of appeal of the order sustaining the demurrer to count 4 of the indictment.

On October 22 Vailuu pleaded guilty to count 1 of the indictmentassault by a state prisoner ( 4501)in exchange for a stipulated two-year prison term and dismissal of the two terrorist threat counts ( 422) and all enhancements alleged in the indictment. Also, as a part of the plea bargain, it was agreed that the prosecution could proceed with its appeal of the demurrer order on count 4 of the indictment ( 4500).

On November 29 the court sentenced Vailuu to a consecutive two-year prison term.

DISCUSSION

Vailuu contends the People's appeal is moot as a result of the plea bargain. We agree.

Our duty 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 [us]." (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.) If, during the pendency of an appeal, an event occurs that "renders it impossible for this court . . . to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal." (Ibid.)

Under section 654, subdivision (a), a criminal act or omission may not be punished under more than one criminal statute. "An acquittal or conviction and sentence under any [criminal provision] bars a prosecution for the same act or omission under any other." ( 654, subd. (a).) Thus, multiple prosecutions for the same act or omission where the defendant has already been tried and acquitted, or convicted and sentenced are barred. (People v. Britt (2004) 32 Cal.4th 944, 950.) This preclusion serves primarily as "a procedural safeguard against harassment." (Neal v. State of California (1960) 55 Cal.2d 11, 21.) As our Supreme Court held in Kellett v. Superior Court (1966) 63 Cal.2d 822, 827:

"When . . . the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence." (Fn. omitted.)^[3]

Since Vailuu has been convicted of and sentenced for the assault on correctional officer Nieves under section 4501, he now cannot be prosecuted for the same conduct under section 4500. ( 654, subd. (a); Kellett v. Superior Court, supra, 63 Cal.2d at p. 827; see also  1023.)

As the Court of Appeal in People v. DeLong (2002) 101 Cal.App.4th 482, 486 pointed out:

"It is settled that '[a]n action that involves only abstract or academic questions of law cannot be maintained.' 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." ' " (Citations omitted.)

Here, by virtue of section 654, subdivision (a), Vailuu's conviction of count 1 of the indictment and his two-year sentence for the crime, left "no prejudicial consequences which could be ameliorated by a successful appeal" by the People. (People v. DeLong, supra, 101 Cal.App.4th at p. 489, italics omitted.) The People's appeal is moot; accordingly, we dismiss the appeal.^[4]

DISPOSITION

The appeal is dismissed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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^[1] At the time of the instant court proceedings, Vailuu was an inmate of the High Desert State Prison in Susanville, California.

^[2] Statutory references are to the Penal Code.

^[3] The Supreme Court also observed: "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor." (Kellett v. Superior Court, supra, 63 Cal.2d at pp. 824-825.)

^[4] We note the People failed to present proper argument in its opening brief. It is improper for an appellant to incorporate legal arguments from papers filed below into the opening brief on appeal. Appellants must argue their cases to this court, not merely recycle their trial arguments. Also, appellants should not require us to search the record to ascertain their appellate arguments. Such incorporation by reference of briefs or points and authorities filed below is an improper mode of appellate advocacy and warrants a determination that the argument has been abandoned. (See Balesteri v. Holler (1978) 87 Cal.App.3d 717, 720-721.) Although we choose not to strike the appellant's opening brief, we did strike the appellant's reply brief, which consisted of one sentence, by order of this court dated April 15, 2008. (Cal. Rules of Court, rule 8.204.) We strongly recommend that the author of the People's briefs familiarize himself with the proper preparation of appellate briefs as set forth in the California Rules of Court and relevant caselaw.