Opinion
A167161
08-25-2023
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; FRANK RUSSELL BURNS, Real Party in Interest.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 22-SF-010004-A)
TUCHER, P.J.
The California Department of Corrections and Rehabilitation (CDCR) seeks review by extraordinary writ of an order sentencing defendant Frank Burns to time served in county jail for violating a condition of his parole by committing a burglary. The sentence was imposed pursuant to a negotiated disposition whereby Burns entered a no contest plea to the burglary charge and admitted the parole violation. CDCR challenges the validity of the plea agreement and the authority of the superior court to impose a time-served county jail sentence instead of remanding Burns to the custody of CDCR for violating the law while he was on lifetime parole for a prior murder conviction. (Pen. Code, §§ 3000.1, 3000.08, subd. (h) (section 3000.08(h)).)Having previously issued an order to show cause, we now grant the petition for writ of mandate.
Statutory references are to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In 1991, a jury convicted Burns of first degree murder (§ 187) and the trial court found true a sentence enhancement for personal use of a firearm (§ 12022.5, subd (a)). Burns was sentenced to an aggregate term of 29 years to life in prison. In October 2018, Burns was released from prison and placed on parole in San Francisco. Because his sentence for murder included a maximum term of life imprisonment, Burns was placed on lifetime parole. (§ 3000.1, subd. (a)(1) (section 3000.1(a)(1)).)
On August 7, 2022, Pacifica police officers responded to a report of suspicious activity at a residence, where they found Burns apparently engaged in committing burglary. Following a parole search, items were seized, and Burns was placed under arrest for burglary and possession of stolen property. Due to the August 7 incident, CDCR instituted a proceeding in San Francisco to revoke Burns's parole. (In the Matter Of Burns (Super. Ct. S.F. City &County, No. 22-SF-01004-A).) CDCR's revocation petition was filed in San Mateo County, where the district attorney also filed new criminal charges against Burns. (People v. Burns (Super. Ct. S.F. City &County, No. 22-NF-009800-A).)
On December 13, 2022, Burns executed a declaration and change of plea in his new criminal case, pursuant to which he pled no contest to felony burglary (§ 460, subd. (a)). According to his declaration, Burns was induced to change his plea by a promise that he would receive a county jail sentence of credit for time served, to run concurrently with the same sentence for the parole violation alleged in CDCR's revocation petition. The trial court found that Burns made a knowing and voluntary waiver of rights, found a factual basis for the plea, and accepted it.
The same day Burns entered his plea, the court held a hearing regarding the parole revocation matter, although the minute order does not reflect that CDCR participated in the hearing. Burns waived his right to a hearing on the revocation petition, admitted the parole violation, and waived time for sentencing. The court sentenced Burns to confinement in county jail for 257 days, gave Burns credit for 257 days, and reinstated him on parole.
On February 10, 2023, CDCR, represented by the Attorney General of California, filed a petition in this court for a writ of mandate directing the superior court to adjudicate CDCR's parole revocation petition, and to remand Burns to CDCR's custody if a parole violation is found. (Code Civ. Proc., § 1085, subd. (a).) CDCR alleges that Burns's plea agreement is void because it violates the parole revocation law, and the superior court had no authority to accept it.
Burns, as real party in interest, opposes CDCR's mandate petition. He argues the petition should be denied without consideration of its merits because CDCR (1) has failed to show it has no other adequate remedy, (2) lacks standing to bring this writ proceeding, and (3) is estopped from challenging the validity of the district attorney's plea bargain with Burns.
CDCR identifies the San Mateo County District Attorney's Office as an additional real party in interest. However, the district attorney has elected not to respond to CDCR's petition.
DISCUSSION
I. Parole Revocation Law
To facilitate our discussion, we briefly review pertinent aspects of the parole revocation law. Historically, parole revocation was solely the responsibility of the Board of Parole Hearings (BPH), but jurisdiction over most petitions to revoke parole was shifted to the superior courts in 2012, when the Legislature amended section 1203.2 to incorporate parole into statutes governing revocation of other types of statutory supervision. (People v. DeLeon (2017) 3 Cal.5th 640, 647.) Currently, sections 1203.2 and 3000.08 establish the statutory framework for parole revocation proceedings. (DeLeon, at p. 647.)
CDCR supervises individuals who are placed on parole after serving prison sentences. (§ 3000.08, subds. (a) &(i).) Both the parole agency and the district attorney have statutory authority to file a petition to revoke a person's parole. (§ 1203.2, subds. (a) &(b).) Either the court in the county in which the person is being supervised or the court in the county where an alleged violation of supervision occurred has jurisdiction to hear a petition to revoke parole. (§ 1203.2, subd. (b)(1).) Some rules and procedures differ depending on which entity has filed a petition for revocation of parole. (People v. Williams (2021) 71 Cal.App.5th 1029, 1038 (Williams).) For one thing, the agency has a statutory duty to file a revocation petition if it concludes that intermediate sanctions are not appropriate under the circumstances. (§ 3000.08, subd. (f).) Relatedly, an agency-filed petition must be accompanied by a written report containing additional information about the parolee, including history and background information, any recommendations, and an explanation as to why intermediate sanctions without court intervention are inappropriate. (§ 3000.08, subd. (f); Cal Rules of Court, rule 4.541.)
For most parolees, when a parole violation is found, the trial court has discretion to modify or revoke parole or to refer the violator to a reentry court or other evidence-based program. (§ 3000.08, subd. (f); see also § 1203.2.) However, "[t]hese options do not exist when the court adjudicates a petition concerning a lifetime parolee" because "once the court finds that a lifetime parolee has violated parole, revocation is 'mandatory.'" (Williams, supra, 71 Cal.App.5th at p. 1040, quoting People v. Perlas (2020) 47 Cal.App.5th 826, 836 (Perlas); see also People v. Wiley (2019) 36 Cal.App.5th 1063, 1067 (Wiley).) This legislative mandate is codified in section 3000.08(h), which provides that, "[n]otwithstanding any other law," if the court determines a lifetime parolee "has committed a violation of law or violated his or her conditions of parole, the person on parole shall be remanded to the custody of [CDCR] and the jurisdiction of the [BPH] for the purpose of future parole consideration." (§ 3000.08(h); see §§ 3000.1 &3000, subd. (b)(4).)
The issue presented by CDCR's writ petition pertains to whether the trial court exceeded its jurisdiction to adjudicate the petition to revoke parole by sentencing Burns in accordance with his plea bargain rather than remanding him to custody pursuant to section 3000.08(h). Before turning to that issue, we consider Burns's procedural objections.
II. Writ Review is a Proper Remedy
Because writ review is an extraordinary remedy, courts generally do not grant writ relief absent extraordinary circumstances. (City of Half Moon Bay v. Superior Court (2003) 106 Cal.App.4th 795, 803.) By the same token, a writ of mandate "must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law." (Code Civ. Proc., § 1086.) Pertinent factors include whether "the party seeking the writ lacks an adequate means, such as direct appeal, to obtain relief," and whether "the petitioner will suffer harm or prejudice which cannot be corrected on appeal." (United Health Centers of San Joaquin Valley, Inc. v. Superior Court (2014) 229 Cal.App.4th 63, 74; see also Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273-1274.)
We conclude that a direct appeal is not an adequate means for CDCR to obtain relief under the circumstances presented here. A ruling on a parole revocation petition is appealable as a postjudgment order in a criminal action. (People v. Wagner (2016) 2 Cal.App.5th 774, 778.) However, the general rule is that only parties have standing to appeal rulings in a criminal case. (Crump v. Appellate Division of Superior Court (2019) 37 Cal.App.5th 222, 236 (Crump).) Here, CDCR was not a party in the underlying murder case pursuant to which Burns was placed on parole. Nor was it a party in the new criminal case charging Burns with burglary, which led to the plea agreement pursuant to which Burns was sentenced for violating his parole by committing another crime. An exception to the rule that only parties can appeal in criminal matters may apply when the challenged order has an immediate, pecuniary, and substantial effect on a nonparty who is bound thereby. (People v. Hernandez (2009) 172 Cal.App.4th 715, 720.) Although CDCR is bound by and was substantially impacted by the sentencing orders in this case, we see no immediate pecuniary effect on CDCR. Thus, it appears that CDCR's ability to obtain appellate review is dependent on and derivative of the People's right to maintain an appeal.
Indeed, the People have filed an appeal from the December 2022 order in Burns's parole revocation matter. (People v. Burns (A167236, app. pending).) However, the fact that an order is appealable does not preclude writ review when the facts show that an appeal is not an adequate remedy. (Kawasaki Motors Corp. v. Superior Court (2000) 85 Cal.App.4th 200, 205206; see Code. Civ. Proc., § 1086.) For example, when the trial court is alleged to have exceeded its jurisdiction in a criminal matter, the need for writ review may outweigh the risk of harassment of the accused. (People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 147.) Moreover, mandate review is available to address issues of great public importance. (Ibid.) Here, the issue raised by CDCR is important and novel. Further, it appears from the facts presented that an appeal by the People does not afford CDCR an adequate remedy to enforce section 3000.08(h).
The parties cite no authority that squarely addresses the issue raised by CDCR's petition. However, this court today decides a similar case that supports many of the conclusions we reach here. (California Department of Corrections & Rehabilitation v. Superior Court (Escobedo) (Aug. 25, 2023, A166559) Cal.App.5th .)
First, the district attorney negotiated and agreed to the allegedly unlawful disposition of CDCR's revocation petition, and "[t]he People are ordinarily bound by their stipulations, concessions or representations." (People v. Mendez (1991) 234 Cal.App.3d 1773, 1783 (Mendez).) Thus, the People may face procedural issues that impede deciding the merits of this case in the context of an appeal. Relatedly the People's interest in preserving the plea agreement creates a potential conflict with CDCR's interest in enforcing section 3000.08(h).
Second, we are not persuaded that an appeal will ensure a sufficiently speedy resolution of this matter. (See e.g. People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1296 [available remedy may be inadequate when "it is clear that [the] matter requires speedy resolution"].) As we have discussed, once a court finds that a lifetime parolee has violated the law or a condition of parole, section 3000.08(h) requires that the parolee be remanded to CDCR. The question whether a trial court has the power to disregard section 3000.08(h) when sentencing a defendant for violating lifetime parole merits a prompt answer, as it implicates public safety concerns as well as CDCR's statutory authority to supervise lifetime parolees.
Anticipating our conclusion that an appeal by the People is not an adequate remedy, Burns argues that the People routinely file direct appeals in cases involving parolees who are likely to reoffend. (Citing People v. Wilson (2021) 66 Cal.App.5th 874; Perlas, supra, 47 Cal.App.5th 826; People v. Toussain (2015) 240 Cal.App.4th 974; People v. Johnson (2020) 58 Cal.App.5th 363 (Johnson).) These cases are inapposite, however, as they did not involve an alleged act in excess of the trial court's jurisdiction pertaining to a lifetime parolee who admitted violating a condition of his parole. Only one of these cases, Perlas, involved a lifetime parolee. (Compare Wilson, at p. 877; Johnson, at p. 365; Toussain, at pp. 977-978.) And in Perlas, the People and CDCR were aligned in their position that the trial court erred by dismissing a revocation petition pursuant to the parolee's demurrer. (Perlas, at p. 831.) Moreover, because the revocation petition in Perlas was dismissed without any substantive finding, that appeal did not turn on an alleged violation of section 3000.08(h), which comes into play only when the court finds that a lifetime parolee has violated the law or a condition of parole. (Williams, supra, 71 Cal.App.5th at p. 1042.)
Burns mischaracterizes Johnson, supra, 58 Cal.App.5th 363, as an appeal by CDCR. Although the appealed order was made pursuant to a parole revocation petition filed by CDCR, the appeal itself was filed by the People on behalf of CDCR, as demonstrated by the case caption for the matter. Because the Johnson opinion reflects that the People were the appellant in that case, we deny CDCR's unnecessary request for judicial notice of the court docket in the Johnson appeal.
Burns also argues that CDCR does not lack a speedy remedy because the People can secure prompt review via their appeal by requesting calendar preference and an expedited appeal schedule. (Citing People v. Loper (2015) 60 Cal.4th 1155.) Loper holds than an inmate denied compassionate release under section 1170 may appeal the superior court's ruling. (Id. at p. 1158.) The court based its holding on statutory construction, but it also rejected a collateral argument that the inmate should be required to "seek writ relief because that avenue would more quickly resolve the case." (Id. at p. 1167.) The court reasoned that, although writ review might be appropriate in some compassionate release matters, a prisoner is also free to seek expedited processing of his or her appeal, as the Loper appellant had done. (Id. at p. 1167.) Loper does not support Burn's argument that the option of requesting expedited review on appeal makes writ review improper. In holding that an inmate has statutory standing to appeal the denial of a petition for compassionate release, the Loper court explicitly declined to foreclose the possibility that writ relief could also be appropriate depending on the facts of the case. (Id. at p. 1167.) By the same reasoning, the People's right to appeal the order at issue in this case does not foreclose CDCR from showing that writ review is nevertheless appropriate due to the importance of the issue presented and the public safety concerns attendant thereto.
Finally, Burns disputes CDCR's allegation that Burns poses a danger to public safety. CDCR's allegation is supported by evidence that after Burns was released from prison following his murder conviction, he violated parole by possessing, on different occasions, a knife, heroin, and other controlled substances and drug paraphernalia, and then committing the residential burglary that led to this proceeding. Burns contends that he poses no current risk to public safety because after his release from jail pursuant to the negotiated disposition here, he was charged and convicted of yet other offenses. We take Burns's point that he poses no immediate public danger so long as he is in custody, but this circumstance does not alter our conclusion that writ review is appropriate. Evidence that the trial court's failure to follow section 3000.08(h) placed Burns in a position to commit additional crimes reinforces that the matter is sufficiently grave to warrant review by writ of mandate.
Burns has filed two requests for judicial notice of records pertaining to his most recent criminal convictions. We grant both requests. (Evid. Code, § 452, subd. (d).)
III. CDCR Has Standing
Taking a different tack, Burns argues the mandate petition should be dismissed due to lack of standing. According to this argument, CDCR lacks standing to challenge the plea bargain that the district attorney negotiated with Burns because CDCR was not a party to the criminal case or to the parole revocation matter. The record shows that CDCR is the petitioner in the parole revocation proceeding and Burns cites no authority for characterizing CDCR as a nonparty. Nevertheless, Burns is correct that CDCR was not a party to the underlying or currently pending criminal actions against Burns. We disagree with Burns's contention that this fact deprives CDCR of standing to bring this writ proceeding.
" 'A petitioner must have standing in order to invoke the power of a court to grant writ relief.'" (Synergy Project Management, Inc. v. City and County of San Francisco (2019) 33 Cal.App.5th 21, 30.) To establish standing under Code of Civil Procedure section 1086, the petition must be brought by a" 'party beneficially interested'" in the subject matter of the action. (Synergy, at p. 30.) "Even though the statute refers to a 'party,' however, 'it is well established that one who petitions for an extraordinary writ need not have been a party to the action below if the one seeking relief demonstrates a beneficial interest in the litigation or is affected by the outcome.'" (Ibid.) "To be 'beneficially interested,' a petitioner must generally have' "some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large." '" (Ibid.) This interest must be" 'direct and substantial,'" requiring the petitioner to demonstrate invasion of a legally protected interest. (Id. at pp. 30-31 [collecting cases].)
Here, the record shows that CDCR has a beneficial interest in the outcome of Burns's burglary case, given the fact that Burns was on lifetime parole when he committed that felony. (§ 3000.08(h).) Moreover, CDCR has a beneficial interest in the revocation matter, as it filed the petition to revoke Burns's parole pursuant to its statutory authority under the parole revocation law. (§§ 1203.2 &3000.08.) By the same token, CDCR has a cognizable interest in the plea agreement, pursuant to which the district attorney agreed to a negotiated disposition that did not remand Burns to the custody of CDCR. The order sentencing Burns to a time-served jail sentence instead of remanding him to CDCR has a direct, immediate, detrimental impact on CDCR's statutory authority and obligation to supervise lifetime parolees.
Burns cites Crump, supra, 37 Cal.App.5th 222, 244, which reinforces our conclusion. The Crump court held that victims of an environmental crime lacked standing to appeal a restitution order because they were not parties in the criminal action, but they did have standing to enforce their statutory right to restitution by seeking a writ of mandate. (Id. at pp. 240242.) Indeed, the court held that an extraordinary writ proceeding "is particularly appropriate in circumstances where the person with the enforcement right is not a party to the proceeding." (Id. at p. 241.) We reach the same conclusion here. CDCR's writ proceeding is particularly appropriate because it was not a party to Burns's criminal matters and yet the sentencing order implementing Burns's plea bargain directly affects CDCR's statutory authority to enforce the law pertaining to supervision of lifetime paroles.
Burns also cites Dix v. Superior Court (1991) 53 Cal.3d 442, which held that the victim of a defendant's crime did not have standing to file a petition for writ of mandate challenging an order to recall the defendant's sentence under former section 1170. The Dix court found, among other things, that "[n]either a crime victim nor any other member of the public has general standing to intervene in an ongoing criminal proceeding." (Dix, at p. 448; see pp. 450-451.) Thus, the court reasoned, "[e]xcept as specifically provided by law," a private citizen does not have a personal legal interest in the outcome of a criminal action filed against somebody else. (Id. at p. 451.) Relatedly, the court found that "the doctrine of 'public interest' standing" may not be invoked to "prevail over the public prosecutor's exclusive discretion in the conduct of criminal cases." (Ibid.) In contrast to the petitioner in Dix, CDCR is not a private citizen, and it does not rely on public interest standing. It is a state agency with a direct beneficial interest in enforcing this state's parole revocation law pursuant to its statutory supervisory powers. (§§ 1203.2, 3000, 3000.1, 3000.08.) Moreover, while the Dix petitioner had no legally recognized interest in the outcome of that criminal action, the parole law carves out an exception to the prosecutor's exclusive discretion by giving CDCR and the BPH a direct interest in the outcome of criminal cases involving lifetime parolees. (§ 3000.08(h).)
IV. The Petition Is Not Barred By Estoppel Principles
Burns contends that CDCR's writ petition should be dismissed because CDCR is estopped from disputing the validity of the plea bargain pursuant to which Burns was sentenced to a time-served jail term for his parole violation. Burns fails to identify any concrete estoppel principle that would apply under the circumstances presented here.
Burns cites Mendez, supra, 234 Cal.App.3d at p. 1783, for the proposition that the People are generally bound by their stipulation, regardless of whether they were represented by the district attorney or the Attorney General when the stipulation was made. This principle has no application here because, as Burns acknowledges, CDCR is a distinct entity from the People, and, as we have discussed, the interests of these two entities are not aligned. CDCR was not a party to the plea bargain and it did not stipulate to a time-served sentence for Burns's parole violation.
Burns contends that CDCR should nevertheless be bound by the district attorney's stipulation because the Attorney General is representing CDCR in this writ matter and the Attorney General also has a close connection with the district attorney. Burns fails to explain how this connection is relevant to the issue at hand, and his argument finds no support in Mendez, supra, 234 Cal.App.3d 1773. In that case, the appellate court declined to apply estoppel to preclude the Department of Justice (DOJ) from challenging an order that set aside the defendant's robbery conviction pursuant to the district attorney's stipulation. (Id. at pp. 1777, 1784.) Estoppel would be inappropriate, the court found, because the DOJ was not a party to the prior stipulation and the district attorney had misunderstood the law when he agreed to an order that the trial court had no jurisdiction to make. (Id. at p. 1784.) By parity of reasoning, since CDCR was not a party to the district attorney's plea agreement with Burns, and never agreed that the trial court could disregard section 3000.08(h), it should not be estopped from demonstrating that the district attorney misunderstood the law by agreeing to a sentence for the parole violation that the court had no jurisdiction to impose.
Burns contends that estoppel should apply because CDCR was in privity with the district attorney when the plea bargain was negotiated. According to this argument, CDCR consented to letting the district attorney handle the parole revocation matter by filing its petition in San Mateo Superior Court and, therefore, CDCR and the district attorney were in privity. Burns relies for this proposition on the district attorney's statutory authority to "initiate and conduct on behalf of the people all prosecutions for public offenses" (Gov. Code, § 26500), and on the requirement that a "criminal action" be "prosecuted in the name of the people" (Pen. Code, § 684). But Burns's parole revocation petition was not initiated by the district attorney, and it is neither a prosecution for a public offense nor a criminal action, but a special proceeding established by statute. (Perlas, supra, 47 Cal.App.5th at pp. 831-832; Wiley, supra, 36 Cal.App.5th at p. 1068.) Statute provides that a parole revocation petition may be initiated and conducted by the district attorney or, as in this case, by CDCR. (§ 1203.2, subds. (a) &(b).) And Burns points to nothing other than this statutory authority to suggest that CDCR consented to the district attorney's negotiated disposition of the revocation petition CDCR had filed.
Burns also relies, for his privity argument, on a case that explains there is no fixed definition of privity:" '" 'Privity is essentially a shorthand statement that collateral estoppel is to be applied in a given case [assuming the other requirements are satisfied].'" '" (Mooney v. Caspari (2006) 138 Cal.App.4th 704, 719.) In this case, the other requirements of the collateral estoppel doctrine are manifestly not met. Collateral estoppel may preclude relitigation of a matter that was argued and determined in a prior proceeding when (1) the issue was necessarily decided in the prior action, (2) the prior action resulted in a final judgment on the merits, and (3) the party to be estopped was a party or in privity with a party in the prior action. (People v. Torres (1992) 6 Cal.App.4th 1324, 1329.) The trial court did not address whether section 3000.08(h) applied when it accepted the plea bargain, so the issue before us may have been overlooked, rather than decided in the trial court. But more fundamentally, there was no prior action resulting in a final judgment here. The order imposing a time-served jail sentence instead of remanding Burns to custody is the subject of a pending appeal and this related writ proceeding, and without a final judgment collateral estoppel simply cannot apply.
Finally, Burns attempts to invoke the judicial estoppel doctrine, which"' "precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position." '" (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986.) The goals of this discretionary doctrine are to"' "maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies." '" (Ibid.) "The doctrine applies when '(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.'" (Id. at pp. 986-987.)
The requirements for applying judicial estoppel are not satisfied.
CDCR was not a party to the plea bargain and took no position in the trial court because it did not participate in those proceedings. Nor would dismissing CDCR's writ petition further the purpose of the judicial estoppel doctrine. Burns contends CDCR obtained an unfair advantage by staying silent when the plea agreement was entered. We find no basis for concluding that CDCR was aware its revocation petition would be included in the district attorney's negotiated disposition of the burglary case. Moreover, Burns fails to articulate any advantage gained by CDCR. His argument that the plea agreement cannot be set aside is based on inapposite authority. (See e.g. People v. Sanders (2012) 203 Cal.App.4th 839 [rejecting defendant's argument that his plea agreement was invalid].) And his argument that his ability to defend against the revocation petition has been compromised is unfounded since CDCR seeks only to have that petition decided in accordance with governing law.
V. The Order Adjudicating the Revocation Petition Is Invalid
CDCR contends the trial court lacked the power to disregard section 3000.08(h) by sentencing Burns to time served in jail and releasing him from custody instead of remanding him to the custody of CDCR. Burns does not dispute the merits of this claim. We agree that the sentencing order was an act in excess of the court's jurisdiction, which renders Burns's plea bargain unlawful and unenforceable.
Plea bargaining has become an essential component of our criminal justice system, and plea bargains that have been approved by the court are generally enforceable under contract principles. (People v. Renfro (2004) 125 Cal.App.4th 223, 230 (Renfro).) "The prosecution and criminal court, however, do not have unfettered discretion in determining the subject matter of a plea bargain. The court must exercise its sentencing authority in accordance with the Penal Code, public policy, and decisional law," which means in this context that a "plea bargain is limited to 'powers legally available to' the court." (Ibid., quoting § 1192.5.)
Here, the trial court exceeded its legally available powers by releasing a lifetime parolee from custody after finding that individual had violated his parole by committing a new felony. As we have noted, section 3000.08(h) states that if a court determines that a lifetime parolee violated a condition of parole or the law, the parolee "shall" be remanded to the custody of CDCR and the jurisdiction of BPH. Moreover, parole is a statutorily mandated element of punishment, and neither the prosecution nor the sentencing court has authority to impose a prison sentence without parole or to alter the applicable period of parole established by the Legislature. (Renfro, supra, 125 Cal.App.4th at p. 232.) This legal principle has been consistently enforced by California courts. (See e.g. In re Moser (1993) 6 Cal.4th 342, 357 ["the length of a parole term is not a permissible subject of plea negotiations"]; People v. McMillion (1992) 2 Cal.App.4th 1363, 1369 ["there is no legal mechanism for negotiating a plea agreement containing . . . reduced time on parole"]; Berman v. Cate (2010) 187 Cal.App.4th 885, 895 [a specified parole term in a plea agreement is unenforceable].)
Once the trial court found that Burns violated the law while he was on lifetime parole, a remand to custody was mandated by section 3000.08(h). The law does not authorize a time-served jail sentence for a lifetime parolee who violates the law, and therefore, neither the prosecution nor the sentencing court had authority to accept a negotiated disposition that released Burns from custody notwithstanding his commission of a new felony. Accordingly, this court shall grant CDCR's petition for a writ of mandate.
DISPOSITION
Let a peremptory writ of mandate issue directing the trial court to vacate the judgment and sentence in the parole revocation proceeding filed against Burns; afford Burns the opportunity to withdraw his plea; and conduct further proceedings as may be appropriate and consistent with the views expressed herein.
WE CONCUR: FUJISAKI, J., PETROU, J.