Opinion
After plaintiff and respondent Vincent Collins Berman 1 сompleted a term of incarceration imposed pursuant to his plea of guilty in the Orange County Superior Court, he was placed on parole. At some point in time, defendant and appellant, Matthew Cate, as Secretary of California’s Department of Corrections and Rehabilitation (hereinafter the Department) increased the proposed term of petitioner’s parole from three to five years. 2 Petitioner filed a petition for writ of mandate in the Riverside Superior Court seeking specific performance of an alleged term of his plea agreement mandating that his term of parole not exceed three years. The superior court granted the petition and issued a peremptory writ of mandate directing the Department “to release Petitioner from parole immediately in compliance with and enforcement of Petitioner’s plea agreement. . . .”
The Department appeals, contending that the filing of a petition for writ of mandate in the Riverside Superior Court was the wrong procedural vehicle in the incorrect venue for resolution of the issue. As to the merits of the petition, the Department maintains that a three-year period of parole was neither a term of petitioner’s plea agreement, nor could it lawfully have been one. Moreover, the Department argues that, at most, a reference to a three-year term of parole in petitioner’s initialed and signed guilty plea was a *889 misadvisement for which petitioner has failed to allege sufficient prejudice entitling him to relief. While we agree with the Department that a petition for writ of habeas corpus filed in the Orange County Superior Court would have been the superior method of obtaining resolution of the issue, we find no procedural bar to deciding the issue at this point. Nevertheless, we agree with the Department that a three-year term of parole was not a negotiated “term” of petitioner’s plea agreement; that it could not lawfully have been a negotiated term of such an agreement; and that, at best, the statement on the guilty plea form, that petitioner’s incarceration would be followed by a parole term of three yеars, was a misadvisement of the consequences of his plea for which petitioner has failed to allege sufficient prejudice entitling him to relief. We, therefore, reverse the judgment of the superior court.
FACTUAL AND PROCEDURAL HISTORY
On October 11, 2002, petitioner signed and initialed a form entitled “Guilty Plea in the Superior Court.” The document reflects that petitioner would be pleading guilty to two counts of lewd and lascivious behavior upon a child under the age of 14 years (counts 1 & 2 — Pen. Code, § 288, subd. (a)). 3 The form indicated that the maximum term of incarceration that could be imposed for the offenses was 10 years. Additionally, the form reflected the court’s indicated disposition of three years of imprisonment should petitioner plead guilty. Petitioner specifically initialed a box adjacеnt to a preprinted statement that, following the expiration of any term of imprisonment, he would be placed on “3 years parole plus 1 year maximum confinement on revocation.”
On the same day, the court orally advised petitioner that he could receive up to 10 years of imprisonment on the charges. However, pursuant to the plea, the court conveyed an indicated disposition of three years of imprisonment with petitioner waiving his accumulation of acquired credits. The court then noted, “At some point in time, . . . when you are released from prison you will be placed on parole. Probably a three-year term as far as parole is concerned. [|] There will be certain terms and conditions of parole that you have to comply with. If you fail to do that, you could return to prison on a parole violation for any amount of time up to one year.” The court then recapitulated the terms of the agreement: “The court has made a promise to you, [petitioner], to give you the three years low term on one count upon the agreement that you waive your credits as we have discussed. Separate and apart from that promise by the court, has anyone else made any other promises to you to get you to plead guilty here today?” Petitioner replied, “No.” Petitioner then entered an oral plea of guilty to both counts. The court sentenced petitioner to the low term of three years on cоunt 1 with no credit *890 for time served and to a concurrent term of three years on count 2, stayed pending completion of his commitment on count 1, at which time sentence on count 2 would be permanently stayed. The minute order of the hearing provided that “[petitioner]’s written waiver of legal and constitutional rights on GUILTY plea received and ordered filed.”
Attached to petitioner’s pleadings below are several documents purportedly issued by the Department (the documents have no headings or signatures) delineating petitioner’s proposed term of parole upon release. The first document is an internal memorandum issued by the Department on May 5, 2003, discussing a purported change in the law effective July 19, 2000, requiring that persons cоnvicted of a number of enumerated offenses, including the offenses for which petitioner was convicted, serve a minimum period of five years on parole. 4
The second document, apparently dated April 7, 2004, reflected petitioner’s earliest release date as May 10, 2005, and his latest release date as October 21, 2005. It likewise indicated a three-year parole term upon release.
The third document, apparently dated March 25, 2005, indicated petitioner’s earliest release date as May 2, 2005, and his latest release date as October 11, 2005. It also reflected that, upon release, petitioner’s parole term would be three years.
The final document is not dated (or at least the copy included in the rеcord appears to have the top cut off of the page where the date appeared in the prior two documents). It reflected petitioner’s latest date of release as October 11, 2005, but indicated no minimum release date. 5 It indicated a five-year term of parole. Nowhere in petitioner’s pleadings does he indicate or attach documentation establishing his actual date of release. In his petition, petitioner avers that he received a memorandum from the Department on September 25, 2008, indicating that his term of parole would be increased to five years; however, he did not include this document in the record below. 6
*891 Petitioner alleged he filed three levels of administrative appeals seeking to enforce his purported plea term of a maximum three-year period of parole. 7 Petitioner attached a declaration averring that the terms of his parole restricted him from living with his family and having any contact with his children. He declared that being forced to maintain a separate residence placed an enormous burden on him and his family. Further, he declared: “Part of the plea agreement was that I would have a parole period of three years. I counted on this term when I agreed to plead guilty.”
The court found that the petition for writ of mandate was a proper method for challenging the extended parole term: “[T]he right to seek another writ does not provide a speedy and adequate legal remedy. As argued by petitioner, he does not seek to attack his conviction as by a habeas petition, but to abide by his plea and require the executive branch to do the same.” The court further found that “[t]he transcript of the proceedings demonstrates that the parties agreed to a parole term of not more than three years. This is not an illegal sentence; the statute on which respondent relies permits, but does not require, a longer parole term. It is thus consistent with the statute for the parties to agree to a parole term of three years — such a term does not exceed five years.”
DISCUSSION
A. Procedure
As it did below, the Department contends that relief by writ of mandate was not warranted because petitiоner had an adequate alternative remedy, i.e., the filing of a petition for writ of habeas corpus in the Orange County Superior Court. Although we agree that the filing of a petition for writ of habeas corpus in the superior court in which petitioner entered his plea would have been a superior method of seeking relief, we find no procedural impediment to our resolution of the issue. Therefore, we shall address the merits of the issue below.
Habeas corpus is the process guaranteed by both the federal and California Constitutions to obtain prompt judicial release from illegal restraint. (U.S. Const., art. I, § 9, cl. 2; Cal. Const., art. I, § 11.) “Every person unlawfully imprisoned
or restrained of his liberty, under any pretense
*892
whatever,
may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment
or restraint.”
(§ 1473, subd. (a), italics added.) A parolee remains constructively imprisoned since he is not free from legal restraint by the authorities; habeas corpus is the appropriate method for challenging the legality of that restraint.
(In re Harincar
(1946)
Both superior and appellate courts have statewide jurisdiction to entertain a petition for habeas corpus relief.
(Griggs v. Superior Court
(1976)
Here, since the main point of contention is whether a term of petitioner’s plea agreement barred the Department from impоsing a term of parole greater than three years, it would appear that the Orange County Superior Court would be in a better position to make such a determination upon a petition for writ of habeas corpus than would the Riverside County Superior Court upon a petition for writ of mandate. This is because the Orange County Superior Court would have ready access to its own files on the matter and a clearer understanding of the meaning, consequences, and process involved in the execution of the “Guilty Plea in the Superior Court” form, the central document at issue in this case, and the taking of pleas by the court in general.
Nevertheless, we note that section 1473, subdivision (d) specifically provides that “[njothing in this section shall be construed as limiting the grounds for which a writ of habeas corpus may be prosecuted
or as precluding the use of any other remedies.”
(Italics added.) Moreover, contemporary decisions have dulled the once clearly delineated purposes of the several extraordinary writs such that they now have overlapping and alternating uses and effects; thus, upon a proper showing, courts will grant the appropriate relief regardless of form.
(People v. Esquibel
(1975)
B. Terms of plea agreement
Petitioner contends that a three-year period of parole following his release from incarceration was an integral term of his plea agreement such that he is entitled to specific performance, i.e., an order compelling the Department to release him upon completion of a three-year term of parole. The Department responds that the preprinted statement on the guilty plea form that a three-year period of parole would be imposed upon petitioner’s completion of his term of incarceration was not a term of his negotiated plea agreement nor could it legally have been one. We agree with the Department.
The framework for аnalyzing petitioner’s contention “ ‘requires consideration of two related but distinct legal principles.’ ”
(In re Moser
(1993)
A defendant is entitled to relief for a violation of the terms of his plea agreement without a showing of prejudice.
(Moser, supra,
Here, “there is no evidence that a three-yeаr maximum parole period was ‘a subject of negotiation (or even discussion) during the plea-negotiation process, or that the [court] made any promises or inducements relevant to the challenged element. [Citation.]’ ”
(Avila, supra,
Moreover, at the oral taking of petitioner’s plea the court advised petitioner that he would “probably” be placed on a three-year term of parole upon release from prison. The tentative nature of this statement could hardly be interpreted as a firm commitment that petitioner would in fact receive a definitive three-year term of parole upon release. The court then summarized the terms of the negotiated plea, stating only that petitioner would receive a three-year prison sentence in exchange for his guilty plea and waiver of accumulated credits. No mention of any promised term of parole upon release was made. When asked if petitioner had been promised anything else in exchange for his plea, petitioner replied in the negative. This, again, strongly reflects that the referenced parole term was merely an advisement of the consequences of his plea, not a term that induced or provided consideration for petitioner to enter his plea. As in
Avila,
“the court referred to parole in the course of advising defendant of the penal consequences of his plea. Nothing in these advisements reflects any prior negotiation regarding the parole period.”
(Avila, supra,
Finally, we note that numerous courts have determined that “the length of a parole term is not a permissible subject of plea negotiations.”
(Moser, supra, 6
Cal.4th at p. 357, italics omitted.) “[T]he court is authorized neither to determine whether a parole period shall be served nor to prеscribe its duration; that is the province of the Board of Prison Terms.”
(People v. McMillion
(1992)
At oral argument, petitioner maintained that McMillion, Avila, Renfro and Moser axe all factually distinguishable from the present case, thus undermining our application of the principle established in thosе cases to the instant case, i.e., that parole terms are not the proper subject of negotiated plea agreements. We recognize that the factual predicate of this case differs from those in the aforementioned cases; nevertheless, we believe our distillation of the principle from those cases is properly applied to the facts of this case.
In
McMillion,
the People charged the defendant with burglary and petty theft with a prior conviction. The court gave an indicated disposition of probation or a low term of 16 months of imprisonment upon the defendant’s plea of guilty.
(McMillion, supra,
The appellate court held that the trial court’s failure to inform the defendant of the mandаtory term of parole following his incarceration was a misadvisement rather than a specifically enforceable term of his plea.
(McMillion, supra,
*896 In Avila, the defendant was charged with murder, an enhancement for personal use of a deadly weapon, and a prior serious felony conviction. The defendant pied guilty to second degree murder, admitted the use of a knife, and submitted a motion to strike the prior conviction allegation. The trial court advised the defendant he would receive a sentence of 15 years to life, plus one year for the knife enhancement; the court further informed him that upon completion of his prison term he would be on parole “ ‘for a period of up to three years.’ ” (Avila, supra, 24 Cal.App.4th at pp. 1457-1458.) Prior to sentencing, the defendant moved to withdraw his plea, noting that contrary to the trial court’s statement he would be statutorily required to remain on parole for life. While the trial court found the defendant had been misadvised regarding the term of parole following his incarceration, it determined that the parole period was not a part of the plea bargain and denied his motion to withdraw the plea. (Id. at p. 1458.)
The appellate court held that while the trial court had misadvised the defendant, he had failed to allege sufficient prejudice to justify withdrawal of the plea. (Avila, supra, 24 Cal.App.4th at pp. 1459-1460.) Moreover, the appellate court held that a three-year maximum parole period was not a term of the plea agreement; there was no evidence a parole term was the subject of negotiation. Furthermore, because the term of parole “was a statutorily mandated consequence of defendant’s conviction[,] it . . . could not have been the subject of negotiations or a condition of the final agreement.” (Id. at p. 1461.)
In
Renfro,
the defendant was confined as a mentally disordered offender (MDO). He attacked hospital personnel, for which he was prosecuted. The defendant entered a plea bargain which included a guilty plea to one offеnse, but a declaration that the offense could not be used against him in a subsequent MDO commitment proceeding.
(Renfro, supra,
On appeal, the court held “that a plea bargain may not be conditioned on a judicial finding that the subject offense falls outside the MDO law.” It ruled that a condition that an offense may not be used in commitment proceedings “is not a proper subject for a plea agreement and may not be enforced by specific performance.”
(Renfro, supra,
In Moser, the petitioner was charged with first degree murder with an enhancement for personal use of a firearm, subjecting him to a total potential term of imprisonment of 27 years to life. The petitioner entered into a negotiated plea agreement whereby he would plead guilty to second degree murder and receive a prison sentence for 15 years to life. The trial court twice informed the petitioner that upon release he faced a maximum parole term of four years. (Moser, supra, 6 Cal.4th at pp. 346-348.) The actual prescribed period of parole for second degree murder was life. (Id. at p. 347, fn. 2.) Three years after entry of judgment, the petitioner filed a petition for writ of habeas corpus seeking leave to withdraw his plea without alleging prejudice. The People responded that the appropriate remedy was specific performance, i.e., an order imposing a maximum parole term of four years upon the petitioner’s release. The People asserted that the Board of Prison Terms, “the statutory entity charged with administering the parole process, had assented to such a remedy.” (Id. at p. 349.) The superior court issued an order setting aside the conviction and permitting the petitioner to withdraw the plea. The Peоple appealed and the appellate court reversed. (Id. at pp. 349-350.) The California Supreme Court granted review to determine “ ‘[w]hether a trial court’s misadvice as to the applicable period of parole for a defendant pleading guilty constitutes a violation of the plea agreement or a violation of the court’s duty to advise of the consequences of the plea, and, if the defendant is entitled to relief, what is the appropriate remedy.’ ” (Id. at p. 350, fn. omitted.)
The court determined that misadvisement of the mandatory parole consequences of a defendant’s guilty plea is error entitling the defendant to withdraw the plea only where he or she establishes prejudice, i.e., that the defendant would not have pied guilty but for the misadvisement.
(Moser, supra,
Petitioner essentially argues here that the term of parole contained in his written plea agreement and discussed during entry of his plea was, unlike Moser, McMillion and Avila, not an illegal parole term. Indeed, a three-year term of parole is specifically within the legally established timeframe established by statute: defendants convicted of the specified offenses “shall be released on parole for a period not exceeding five years, unless in either case the parole authority for good cause waives parole and discharges the inmate from the custody of the department.” (§ 3000, subd. (b)(1), italics added.) Moreover, petitioner insinuates that the statements in Moser, McMillion and Avila that the respective defendants’ plea negotiations did not appear to incorporate the subject of parole, implies that the length of parole could legally be a term of a plea, where the record establishes that it was clearly a negotiated term. Although not without some logical appeal, we disagree with petitioner’s conclusion that a parole term can be the subject of plea negotiations enforceable through the remedy of specific performance.
First, the petitioner in Moser never asserted that the parole term was a negotiated term of his plea agreement entitling him to specific performance. On the contrary, the petitioner in Moser asserted that the reference to a specific term of a parole was a misadvisement of the consequences of his plea entitling him to withdraw the plea. Thus, the Moser court did not squarely face a contention that a parole term was a negotiated term of a defendant’s plea agreement.
Second, the statute explicitly delеgates parole authority to the Board of Parole Hearings (the board). (§ 3000, subd. (b)(6) & (7).) The board has sole authority, within the confines set by the Legislature, to set the length of parole and the conditions thereof. (§§ 3000, subd. (b)(6), 3041.) While the commitment offense is one factor the board may consider in determining the
*899
length of parole, it must likewise consider a myriad of statutory factors including those that relate to postjudgment conduct, parole plans, and rehabilitation. (Cal. Code Regs., tit. 15, § 2402;
In re Criscione
(2009)
Finally, we note that the statements in
Moser, McMillion
and
Avila
condemning negotiation of the term of parole in plea bargains were not limited to the facts of their respective cases: “the length of a parole term is
not
a permissible subject of plea negotiations”
(Moser, supra,
C. Misadvisement
Although petitioner nowhere argued below or on appeal that the recitation of the three-year parole term upon his release constituted a misadvisement, he did aver that he “counted on this term when [he] agreed to plead guilty.” Moreover, the Department raises the issue that petitioner’s contention is more “akin to a claim of judicial misadvisement” than a failure of the Department to adhere to the conditions of his plea agreement. Thus, we shall address whether the trial court committed prejudicial error in failing to advise petitioner that he faced a possible five-year term of parole upоn release.
*900
Failure to properly advise a defendant of the parole consequences of his guilty plea is error.
(Moser, supra,
Here, it is manifest that the guilty plea form contained a misadvisement that petitioner would face a detеrminate parole term of three years upon release from prison. Section 3000, subdivision (b)(1), as effective on the date of petitioner’s plea, provided that a defendant convicted of the offenses for which petitioner pied guilty, “shall be released on parole for a period not exceeding five years . . . .” However, the trial court’s oral advisement did not specify a determinate three-year term of a parole; rather, the court merely prescribed that petitioner would “probably” receive a three-year term of parole. Only the board has the discretion to dictate the duration of a defendant’s parole period within the statutory framework established by the Legislature.
(McMillion, supra,
Petitioner “did not specifically allege that he was prejudiced by the trial court’s misadvisement.”
(Avila, supra,
*901 DISPOSITION
The judgment is reversed and the superior court is directed to enter an order denying the petition.
Richli, Acting R 1, and King, J., concurred.
Notes
Vincent Berman, as petitioner in the trial court, will be referred to as “petitioner” throughout this opinion.
The record contains no documentation of when petitioner was released from prison or when the Department increased petitioner’s proposed parole term. Thus, we have no way of definitively discerning whether the Department’s determination to increase petitioner’s parole term was made before or after his release from prison. However, petitioner’s pleadings indicate the decision was made after his release.
All further statutory references are to the Penal Code unless otherwise indicated.
The document alleges this change was required by an amended version of section 3000, subdivision (b)(1), for offenses committed on or after July 19, 2000. Petitioner’s offenses were committed on May 6, 2001. The actual change in the statute requires that defendants convicted of the enumerated offenses “shall be released on parole for a period not exceeding five years . . . .” (§ 3000, subd. (b)(1), italics added.)
Presumably this is because, as insinuated in his pleadings, petitioner had already been released from custody on the date the document was prepared.
In response to the Department’s petition for writ of supersedeas, petitioner avers that notice of the extension of his parole term from three to five years was made “a mere six months from [his] being discharged from parole.” Again, it is difficult for this court to reconcile the dates and timeframes discussed without knowing precisely when petitioner was released from custody. If it was on the earliest listed date of release in the documents provided, *891 petitioner would now have completed even the extended five-year period of parole. If it is the latest, then he would have less than two months to complete. In all likelihood, defendant has now completed the five-year parole term.
The documentation supporting the filing of these appeals consists of several letters submitted between January 5, 2009, and March 4, 2009, to the Department, and its responses declining petitioner’s requests.
It is plain that the superior court failed to update the form to reflect changes in the law regarding parole terms that took effect on July 19, 2000.
“[I]n effect, the person must ‘earn’ the right to reduce the lifetime term of parole .... Thus, the applicable statute precludes setting the parole term ... in advance of the person’s release from prison.” (Moser, supra, 6 Cal.4th at p. 357, fn. 12.)