Metropolitan News-Enterprise


Monday, July 19, 2021


Page 1


Court of Appeal:

Petition to Reduce Offense of Dead Man Properly Denied

Appellate Court Dismisses Appeal From Denial of Bid for Reduction of 1998 Narcotics Conviction From Felony to Misdemeanor, Holding That Death of Defendant Renders the Matter Moot


By a MetNews Staff Writer


The Court of Appeal has granted a motion to dismiss the appeal in a case in which a motion was made in 2020, pursuant to Proposition 47, to lower a 1998 felony conviction for possession of a controlled substance to a misdemeanor, concluding that such a motion is foreclosed in light of the defendant’s death in 2012.

Notwithstanding that defendant Jeffery Mount has died, the Office of Napa County Public Defender on Aug. 21, 2020, petitioned for a reclassification of his offense; Napa Superior Court Judge Scott R.L. Young on Oct. 7 denied the petition, saying that there was no substantial right at issue “that would have any effect to the living or dead”; the Public Defender’s Office filed a notice of appeal.

Div. One of the First District Court of Appeal on Dec. 22 appointed Stanley Dale Radtke of San Leandro as attorney for the dead man. Radtke filed a brief on April 1 arguing that “there is no statutory requirement that someone seeking re-sentencing under Proposition 47 must be alive in order to receive this ameliorative benefit.”

Motion to Dismiss

The Office of Attorney General responded on April 13 by filing a motion to dismiss.

Relief was sought pursuant to Penal Code §1170.18(f), created by Proposition 47, which voters enacted in 2014. The provision says that a “person” who has completed a sentence may seek the reduction of a felony conviction to a misdemeanor conviction where the crime is now a misdemeanor—and, Attorney General’s Office maintained, someone who is dead is no longer a “person.” After receiving written opposition, the appeals court, in an opinion by Presiding Justice Jim Humes, dismissed the appeal “in the interests of justice.”

A determination of mootness as to the Court of Appeal based on Mount’s death necessarily validated Young’s finding of mootness on that same basis.

Humes’s Opinion

Humes wrote:   

“Some states that allow a direct appeal of a criminal conviction to proceed notwithstanding the defendant’s death require the personal representative of the estate to consent to the continued appeal….Here, we  have no indication that Mount’s personal representative has given such  consent. No California cases address the circumstances, if any, under which an attorney can, without authorization and in the name of the criminal defendant, continue to represent a defendant who has died. We need not reflect on these circumstances here, however, because—even assuming the public defender could, and the appointed attorney can, pursue the case in Mount’s name without consent—the trial court properly dismissed the case as moot.”

The jurist declined Radtke’s invitation to decide the case notwithstanding mootness, explaining that “there has been no showing of a wider public interest in redesignating felony convictions of deceased defendants.”

In a footnote, Humes said that in light of the determination that the appeal must be dismissed for mootness, “we need not resolve whether a deceased defendant is categorically precluded from filing an application under section [1170.18] or can ever be considered a ‘person’ under the statute.”

The case is People v. Mount, 2021 S.O.S. 3098.


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