Filed 10/29/20 P. v. McCard CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC STEVE MCCARD,

Defendant and Appellant.

 B302011

 (Los Angeles County

 Super. Ct. No. 9PH04469)

APPEAL from an order of the Superior Court of Los 

Angeles County, Keith H. Borjon, Judge, and Robert M. 

Kawahara, Commissioner. Appeal dismissed.

Heather E. Shallenberger, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Michael C. Keller and Charles J. Sarosy, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________
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Eric Steve McCard appeals from an October 16, 2019 order 

entered after the trial court revoked his parole for absconding, 

and ordered him to serve 170 days in jail, followed by a 

reinstatement of parole supervision upon his release from jail. In 

his opening appellate brief, McCard contends the trial court 

abused its discretion when it revoked his parole supervision 

without referring the district attorney’s petition for revocation of 

his parole to the parole office for a written report, as required

under Penal Code section 1203.2, subdivision (b)(1).

1 He also 

contends the disproportionate application of the statutes 

governing parole revocation petitions, depending on whether a 

petition is filed by a district attorney or a parole agency, violates

his constitutional right to equal protection of the law. In support 

of his equal protection claim, he asserts he was sanctioned more 

harshly because the petition was filed by the district attorney 

(170 days in jail) than he would have been if the petition had 

been filed by the parole agency, as the parole agency determined 

the appropriate sanction for his violation was continuation on 

parole and drug treatment.

In the respondent’s brief, the Attorney General argues, 

among other things: (1) McCard’s appeal is moot because he 

already served the 170-day jail term the trial court imposed; and 

(2) McCard forfeited his equal protection contention by failing to 

raise it below. 

1 This statutory provision provides, in pertinent part, that 

when a district attorney files a petition for revocation of parole, 

the trial court must refer the petition to the parole officer for 

preparation of a written report that the trial court must read and 

consider before modifying or revoking parole. (Pen. Code, § 

1203.2, subd. (b)(1).)
3

In his appellate reply brief, McCard concedes his appeal “is 

likely moot” because “he has likely been discharged from parole 

supervision during the pendency of this appeal.” 

Notwithstanding this concession, he asks this court to address 

his contention that the trial court abused its discretion when it 

revoked his parole supervision without referring the district 

attorney’s petition for revocation of his parole to the parole office 

for a written report, arguing the issue “ ‘is likely to recur, might 

otherwise evade appellate review, and is of continuing public 

interest.’ ” He also concedes in the reply brief that he forfeited 

his equal protection claim by failing to object below, and he does

not ask this court to address the claim despite the forfeiture.2

We requested supplemental briefing on whether McCard’s 

parole supervision has terminated. McCard submitted a letter, 

confirming he was terminated from parole supervision in this 

matter on January 24, 2020, during the pendency of this appeal. 

Because McCard has served the jail term the trial court 

imposed for the parole revocation, and his parole supervision has 

since terminated, his appeal is moot. (People v. DeLeon (2017) 3 

Cal.5th 640, 645 [“DeLeon has completed his county jail term. 

Counsel has informed us that parole supervision ended . . . one 

day after the Court of Appeal briefing was complete . . . . 

DeLeon’s appeal is technically moot because a reviewing court’s 

resolution of the issues could offer no relief regarding the time he 

spent in custody or the parole term that has already 

2 Courts have rejected equal protection claims like the one 

McCard raised in this appeal. (See People v. Zamudio (2017) 12 

Cal.App.5th 8, 16-17; People v. Castel (2017) 12 Cal.App.5th 1321, 

1326-1330.)
4

terminated”].) As set forth above, McCard concedes his appeal is 

moot.

Where an appeal is moot, we may exercise our discretion to 

decide the issue if it “ ‘is likely to recur, might otherwise evade 

appellate review, and is of continuing public interest.’ ” (People v. 

DeLeon, supra, 3 Cal.5th at p. 646.) Although McCard includes a 

statement in his appellate reply brief that his appeal fits into this 

category, he does not explain why that might be so. We have no 

reason to believe the issue he asks us to consider—whether the 

trial court abused its discretion when it revoked his parole 

supervision without referring the district attorney’s petition for 

revocation of his parole to the parole office for a written report, as 

required under Penal Code section 1203.2, subdivision (b)(1)—is 

an issue that warrants the exercise of our discretion to decide an 

otherwise moot appeal. Indeed, the circumstances of McCard’s 

case may be unique in that, although the trial court did not refer 

the petition to the parole agency for preparation of a report, the 

trial court was aware of the parole agency’s sanction 

recommendation at the time the trial court imposed the 170-day 

jail term; the parties and the trial court discussed the parole 

agency’s recommendation for a lesser sanction and the reasons 

for the recommendation at multiple court hearings prior to the 

parole revocation; and a parole agent appeared and provided 

information at a hearing prior to the parole revocation. Because 

the appeal is moot, and this is not a case that warrants the 

exercise of our discretion to decide a moot issue, we dismiss the 

appeal.
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DISPOSITION

The appeal is dismissed as moot.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.