Filed 9/28/15 P. v. Duran CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066259

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF32341)

DAVID B. DURAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, Poli J.

Flores, Jr., Judge. Dismissed.

         Wilkerson & Mulligan and Forest M. Wilkerson for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Eric A. Swenson, Lynne G. McGinnis and Joy Utomi, Deputy Attorneys General, for

Plaintiff and Respondent.
                                              I.

                                     INTRODUCTION

       Defendant David B. Duran obtained a certificate of probable cause to pursue an

appeal from the trial court's order granting him formal probation for three years after

Duran pled no contest to a charge that he committed a lewd act upon a child under the

age of 14. The victim was Duran's girlfriend's 11-year-old daughter.

       On appeal, Duran challenges the constitutionality of two of the conditions of

probation that the trial court imposed. One of the conditions Duran challenges prohibited

Duran from contacting the victim "or any member of her family." The other condition

ordered Duran to "stay away from places where [known gang members] congregate."

       During the pendency of this appeal, it came to this court's attention that the trial

court revoked Duran's probation and sentenced Duran to prison after he admitted to

violating two of his probation conditions (including an admission that he had contacted

the mother of the victim, who was also the mother of Duran's young son). Because

Duran is no longer subject to the probation conditions that he is challenging in this

appeal, we dismiss his appeal as moot.




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                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND1

       On December 27, 2013, at approximately 5:00 a.m., Duran's girlfriend left their

shared home to go to work. Duran picked up his girlfriend's daughter, J.G., and carried

her to a bedroom. Duran placed J.G. on the bed in the room and started touching her

vaginal area. J.G. described Duran's touching as being "hard" and said that it hurt. Duran

took off J.G.'s clothing, put his face on her upper thigh area, and licked her. At some

point, the three-year-old son of Duran and his girlfriend woke up and started crying.

Duran left the room to check on the boy. When Duran left the room, J.G. got up and ran

over to her grandmother's house, where she reported what had occurred.

       The Imperial County District Attorney filed an information charging Duran with

committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd.

(a)). The information further alleged that Duran had served two prior prison terms

(§ 667.5, subd. (b)).

       Duran pled no contest. The two prior prison term allegations were dismissed.

       The trial court placed Duran on formal probation for three years and ordered him

to serve 365 days in county jail. In addition to the standard terms and conditions of

probation, the trial court also imposed on Duran the requirement that he register as a sex


1      We provide this summary of the facts underlying Duran's conviction based on the
preliminary hearing transcript, since Duran pled no contest to the charged offense.
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offender, "[h]ave no contact with the victim, [J.G.], or any member of her family," and

that he "[n]ot affiliate or associate with any known identifiable gang members, and stay

away from places where such persons congregate."

         Duran filed a timely notice of appeal and was granted a certificate of probable

cause.

                                              III.

                                        DISCUSSION

         Duran contends on appeal that two of the probation conditions are

unconstitutional. However, after the parties briefed the issues that Duran raises in this

appeal, Duran's attorney filed a request to augment the record in this appeal with the

record and disposition in People v. Duran (5/18/15, D067023, nonpub. opn.), a

subsequent appeal arising from the same underlying case. We granted Duran's request to

augment the record, and we have taken judicial notice of the record in case No. D067023.

The record in that case demonstrates that Duran admitted to having violated at least two

of the probation conditions, including one of the conditions of probation that he

challenges in this appeal, and further demonstrates that the trial court revoked Duran's

probation and sentenced him to a term of eight years in prison.

         Duran filed a notice of appeal from the trial court's order revoking probation and

sentencing Duran to state prison. In briefing in his appeal from that order, Duran did not

identify any arguable appellate issues, and this court reviewed the record pursuant to



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People v. Wende (1979) 25 Cal.3d 436.2 This court affirmed the judgment of the trial

court in an opinion dated May 18, 2015.

       " 'It is well settled that the 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].' " (In

re J.G. (2008) 159 Cal.App.4th 1056, 1062.) "An appeal should be dismissed as moot

when the occurrence of events renders it impossible for the appellate court to grant

appellant any effective relief." (In re Montgomery (2012) 208 Cal.App.4th 149, 160.)

       In light of the court's revocation of Duran's probation, he is no longer subject to

any of the conditions of probation that the trial court imposed. As a result, we cannot

grant Duran any effective relief at this point with respect to the probation conditions that

he challenges in this appeal. We therefore dismiss Duran's current appeal as moot.




2      Duran did not mention that he had already appealed from the trial court's probation
order, challenging the constitutionality of two of the probation conditions. Nor did he
identify as a possible (though not arguable) issue in this later appeal whether the trial
court relied on Duran's violation of an unconstitutional probation condition as part of its
decision to revoke probation.
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                                             IV.

                                      DISPOSITION

        Duran's appellate challenge to the conditions of his probation is dismissed as

moot.



                                                                                AARON, J.

WE CONCUR:



               McCONNELL, P. J.



                    O'ROURKE, J.




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