Dept. of Corrections & Rehabilitation v. Super Ct. ( 2023 )

Filed 8/25/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
Petitioner,
A166559
v.
THE SUPERIOR COURT OF (Alameda County
ALAMEDA COUNTY, Super. Ct. Nos. 20-CR-012838,
20-CR-012947, 20-CR-012845)
Respondent;
ROBERT L. ESCOBEDO,
Real Party in Interest.
The California Department of Corrections and Rehabilitation (CDCR)
seeks review by extraordinary writ of an order placing defendant Robert
Escobedo on felony probation pursuant to a negotiated disposition. To
effectuate the plea agreement, the superior court permitted the People to
withdraw a pending petition for revocation of parole that CDCR filed against
Escobedo, who was on lifetime parole when he committed his current offense.
(Pen. Code, § 3000.1, subd. (a)(1); statutory references are to this code unless
otherwise indicated.) CDCR challenges the authority of the superior court to
release Escobedo pursuant to a grant of probation, instead of adjudicating
CDCR’s parole revocation petition and returning him to prison if the court
1
finds that he has committed a new offense. (See § 3000.08, subd. (h) (section
3000.08(h)).)
We conclude that because Escobedo was on lifetime parole, the superior
court lacked authority to release him on probation after finding that he
committed a new criminal offense. Once the court found Escobedo had
committed another crime, it was required to remand him to the custody of
CDCR. (§ 3000.08(h).) Accordingly, we grant CDCR’s mandate petition.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996, a jury convicted Escobedo of second degree murder and
discharging a firearm into an inhabited dwelling, and also found true
sentence enhancement allegations for personal use of a firearm. (§§ 187,
subd (a), 246, 12022.5, subd (a).) Escobedo was sentenced to an aggregate
prison term of 19 years to life.
In June 2016, Escobedo was released from prison and placed on parole.
Because Escobedo’s sentence for murder included a maximum term of life
imprisonment, he was placed on lifetime parole. (§ 3000.1, subd. (a)(1).) As a
lifetime parolee, Escobedo faced consequences for violating parole that do not
apply to people who are on parole for a defined period. Specifically, if a court
determines that a person who is on lifetime parole “has committed a violation
of law or violated his or her conditions of parole, the person . . . shall be
remanded to the custody of the Department of Corrections and Rehabilitation
and the jurisdiction of the Board of Parole Hearings for the purpose of future
parole consideration.” (§ 3000.08(h).)
On September 29, 2020, the Alameda County District Attorney filed a
criminal complaint charging Escobedo with two counts of forcible oral
copulation with Jane Doe (§ 287, subd. (c)(2)(A)), and two counts of making
criminal threats, one against Jane Doe and the other against a second victim
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(§ 422, subd. (a)). On September 30, the District Attorney filed a petition for
revocation of Escobedo’s parole due to the criminal violations alleged in the
complaint. This petition did not reflect that Escobedo was on lifetime parole,
notwithstanding that the District Attorney used a form petition that contains
a box to be checked when the supervised person is on lifetime parole.
On October 1, 2020, CDCR filed a petition for revocation of Escobedo’s
parole, which did reflect Escobedo was on lifetime parole. CDCR’s petition
was accompanied by a “Parole Violation Report” alleging that Escobedo
violated multiple laws on September 25 and 27, 2020, during or relating to
nonconsensual sexual encounters, specifically: oral copulation with a
nonconsenting adult (§ 287, subd. (c)(2)(A)); battery of a spouse (§ 273.5);
false imprisonment (§ 236); and criminal threats (§ 422). The dates and
descriptions of the criminal conduct in CDCR’s petition match the allegations
in the criminal complaint filed two days earlier. CDCR alleged further that
Escobedo violated a special condition of his parole prohibiting him from
consuming alcohol; according to CDCR’s parole violation report, Escobedo
admitted drinking alcohol for approximately 10 days and that his alcohol
consumption played a major role in his commission of the charged offenses.
CDCR’s petition stated that Escobedo was subject to supervision pursuant to
section 3000.1, and that if the court determined he violated parole, the court
was required to remand him to the custody of CDCR.
CDCR also reported that it considered imposing intermediate sanctions
but deemed them inappropriate. The report documented Escobedo’s criminal
history, which predates his murder conviction, five CDCR disciplinary
violations Escobedo incurred while in prison, and one other parole violation
for consuming alcohol and being drunk in public. CDCR reported that
Escobedo had been referred to specialized treatment programs in the past,
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and another such referral would be inappropriate due to the high risk of
recidivism and threat to public safety.
On August 16, 2022, the superior court held a change-of-plea hearing in
Escobedo’s criminal case. The hearing transcript references case numbers for
three pending matters against Escobedo—the criminal case and the two
parole revocation petitions. But when the judge requested appearances, she
made no reference to CDCR. At the hearing, the Deputy District Attorney
(DDA), Ms. Chavez, recited the terms of a negotiated disposition of
Escobedo’s criminal case: He would plead guilty or no contest to one count of
violating section 422 by making criminal threats, and would admit an
aggravating factor of threatening or dissuading a witness. In exchange for
his plea, Escobedo would be placed on three years of felony probation and be
subject to a criminal protective order protecting both victims. All remaining
counts and related enhancements would be dismissed. In addition, the
People agreed to dismiss “two other dockets.” DDA Chavez then clarified
that the People had agreed they would dismiss both parole revocation
petitions before Escobedo entered a new plea admitting the section 422
felony. Defense counsel interjected that it was important to withdraw the
petitions first, and the People agreed. Accordingly, the People made a formal
motion to withdraw the revocation petitions, which the court granted before
it proceeded to take Escobedo’s plea. The matter was continued until
September for sentencing.
On August 17, 2022, Ms. Martin, a parole agent supervisor from
CDCR’s court compliance unit, sent an email to Judge Nixon at the Alameda
County superior court, DDA Chavez, and Escobedo’s defense counsel. Judge
Nixon was not the judge who took Escobedo’s change of plea and would not be
the judge to sentence him, but Martin may have been under the
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misconception that Escobedo’s criminal case was assigned to Judge Nixon, as
the purpose of her email was to share information about Escobedo’s status as
a lifetime parolee. Martin stated that while tracking Escobedo’s cases on
CDCR’s computer system, she noticed a sentencing hearing was scheduled,
and that parole petitions had been “withdrawn by the DA.” Martin advised
that because Escobedo is a “lifer parolee” subject to section 3000.1, the court
was required to hold a good cause hearing as to both parole revocation
petitions and, if there was good cause, to remand Escobedo to the Board of
Parole Hearings. She stated further that “if [Escobedo is] convicted of the
criminal charges, the Court must also remand him to the custody of CDCR
where he will also be returned to prison, as he falls under the authority of the
Board of Parole Hearings.” And “[t]his verbiage needs to be on the minute
order at sentencing,” Martin continued, going into detail about how section
3000.08(h) applied in Escobedo’s case.
On September 14, 2022, Escobedo appeared for sentencing before a
different judge, who made a record of the fact that the court and counsel had
discussed the case before the matter was called on the record, and that
counsel had “enlighten[ed] the Court to some of the rationale behind the
negotiated disposition.” Based on that unrecorded conversation, the court
accepted the plea agreement. Following submission of the matter, Escobedo
was sentenced in accordance with the negotiated disposition, to a suspended
sentence for a period of three years during which he would be on felony
probation. Near the end of the hearing, the court observed that two parole
petitions had been withdrawn on the day Escobedo changed his plea, but
there was no mention or acknowledgement of the fact Escobedo was on
lifetime parole. Whether agent Martin’s email, or the information in it, ever
5
found its way to the judge who sentenced Escobedo is unknown, and nobody
from CDCR appeared at Escobedo’s sentencing hearing.
On November 14, 2022, CDCR, represented by the Attorney General of
California, filed a petition in this court for writ of mandate or other
appropriate relief, seeking review of the September 2022 order placing
Escobedo on probation. CDCR contends it was unlawful for the superior
court to accept a negotiated plea pursuant to which the People withdrew the
parole revocation petitions, prays for a writ of mandate commanding the trial
court to adjudicate those petitions, and seeks such other relief as may be just
and appropriate. (Code Civ. Proc., § 1085, subd. (a).) CDCR names the
superior court as respondent and Escobedo as the primary real party in
interest. CDCR alleges that the Alameda County District Attorney’s Office is
also a real party in interest, due to its representation of the People in the
underlying criminal case against Escobedo.
After informal briefing, this court issued an order to show cause. The
Alameda County District Attorney’s Office advises that the People decline to
take any position regarding CDCR’s mandate petition. Escobedo, however,
vigorously opposes the petition on procedural and substantive grounds. He
argues that CDCR’s mandate petition should be denied without consideration
of its merits because CDCR fails to show it has no other adequate remedy or,
alternatively, that CDCR does not have standing to bring this writ
proceeding. Escobedo also contends the mandate petition lacks merit because
his plea bargain does not violate the law governing proceedings to revoke
parole.
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DISCUSSION
I. Overview of 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).) Some rules and procedures differ
depending on which entity has filed a petition. (People v. Williams (2021) 71
Cal.App.5th 1029, 1038 (Williams).) Importantly, 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).) 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. (Ibid.;
Cal Rules of Court, rule 4.541.) This statutory requirement to submit a
report with a revocation petition does not apply to the district attorney.
Instead, after the district attorney files a petition to revoke parole, the
superior court is required to refer the petition to the parole officer for a report
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and to consider that written report before deciding the merits of the petition.
(§ 1203.2, subd. (b) (section 1203.2(b)); Williams, at pp. 1039–1040.)
Some aspects of parole revocation law apply to all inmates released on
parole but, as we have noted, once a court finds that a lifetime parolee has
violated conditions of parole or the law, a special rule applies. (People v.
Wiley (2019) 36 Cal.App.5th 1063, 1067 (Wiley); People v. Perlas (2020) 47
Cal.App.5th 826, 836 (Perlas); Williams, supra, 71 Cal.App.5th at p. 1040.)
Generally, when a trial court finds a parole violation, it 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.) “These
options do not exist when the court adjudicates a petition concerning a
lifetime parolee,” however. (Williams, at p. 1040.) “[O]nce the court finds
that a lifetime parolee has violated parole, revocation is ‘mandatory.’ ” (Ibid.
quoting Perlas, at p. 836.) 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).)
With this framework in mind, we turn to the issues raised by the
parties in this writ proceeding.
II. CDCR’s Writ Petition Is Procedurally Sound
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. It must
be issued upon the verified petition of the party beneficially interested.”
(Code Civ. Proc., § 1086.)
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A. CDCR Has No Other Plain, Speedy, and Adequate Remedy
CDCR contends writ review is proper because it has no other adequate
remedy to enforce section 3000.08(h), which requires that Escobedo be
immediately returned to the custody of CDCR as a result of his recent
criminal violation. Escobedo disputes this contention.
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.) Pertinent factors
include whether (1) “the party seeking the writ lacks an adequate means,
such as direct appeal, to obtain relief,” (2) “the petitioner will suffer harm or
prejudice which cannot be corrected on appeal,” or (3) “the petition presents
an issue of first impression that is of general interest to the bench and bar.”
(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 find all three circumstances
present to varying degrees. Like the parties, we focus our discussion on the
first two circumstances, but we note at the outset that the issue presented is
new, and nobody disputes its importance.
The crux of Escobedo’s procedural objection to this writ proceeding is
that CDCR purports to challenge the September 2022 sentencing order
despite the fact that it could have filed a direct appeal from the August 2022
order that allowed the People to withdraw the parole revocation petitions
before Escobedo changed his plea. We disagree. The record shows that
withdrawal of both petitions was a material term of the plea agreement
between the People and Escobedo. When asked to “state the terms and
conditions” of the negotiated disposition, DDA Chavez explained the plea
Escobedo would enter and terms of probation he would accept, then stated
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that “[i]n exchange for this plea, the remaining counts and any enhancements
will be stricken and dismissed. [¶] And . . . before he agrees to do this, we
are dismissing two other dockets,” the two parole petitions. Dismissal or
withdrawal of these petitions would have been important consideration for
Escobedo’s plea, since they threatened him with mandatory return to prison.
And because the order permitting withdrawal of those petitions was a
material term of the negotiated disposition, it was not a final decision by the
court in August 2022. Along with the rest of the plea agreement, the order
could have been set aside in light of further consideration of the matter at
any time until pronouncement of judgment in the new case. (§ 1192.5,
subd. (c).)
Escobedo cites cases involving appeals from rulings in parole revocation
matters, but only one precedent that involved a plea agreement. (People v.
VonWahlde (2016) 3 Cal.App.5th 1187.) In VonWahlde, the trial court
preliminarily revoked the defendant’s parole pursuant to a petition charging
him with absconding from parole supervision and then continued the matter
because the defendant was also facing new charges. (Id. at p. 1191.)
Subsequently, the defendant entered a plea in the new criminal case
pursuant to an agreement that provided for a stipulated prison term to run
concurrently with the parole revocation case. (Ibid.) But then at the
sentencing hearing a month later, the court ordered parole terminated
instead. Ostensibly, this was pursuant to the court’s discretion under section
1385, since the defendant was heading to prison on the new case. (Id. at
pp. 1192–1193.) The People could appeal this termination order as a
postjudgment order affecting the defendant’s sentence, the VonWahlde court
held. (Id. at pp. 1194–1195, citing § 1238, subd. (a)(5).)
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VonWahlde reinforces our conclusion that the order permitting the
People to withdraw parole revocation petitions in this case was not
immediately appealable. The VonWahlde plea agreement disposed of a
related revocation petition by including a stipulated sentence for the parole
violation, and the order accepting that stipulated disposition was not
immediately appealable. Indeed, that order was subsequently changed at
sentencing, when the VonWahlde trial court purported to terminate parole
supervision pursuant to section 1385, and it was that final ruling that
became the appealable order. By the same reasoning, the order permitting
the district attorney to withdraw the revocation petitions pending against
Escobedo pursuant to a plea agreement was not a final order. (§ 1192.5,
subd. (c); see People v. Stamps (2020) 9 Cal.5th 685, 706 [“ ‘court, upon
sentencing, has broad discretion to withdraw its prior approval of a
negotiated plea’ ”].) Thus, we reject Escobedo’s contention that the August
2022 order was immediately appealable.
We also reject Escobedo’s related argument that CDCR’s mandate
petition was not timely filed. “As a general rule, a writ petition should be
filed within the 60-day period that applies to appeals.” (Cal West Nurseries v.
Superior Court (2005) 129 Cal.App.4th 1170, 1173.) Escobedo’s contention
that CDCR violated this rule rests on the erroneous assumption that the
August 2022 order was immediately appealable. That order became final at
the September 2022 hearing, when the sentencing court accepted the parties’
plea agreement and imposed the agreed disposition. Accordingly, CDCR
properly seeks review of the September 2022 sentencing order, and its
mandate petition was timely filed.
We must, therefore, decide whether a direct appeal of the September
2022 sentencing order constitutes an adequate remedy at law, and we
11
conclude that it does not. It is not clear who, if anyone, had the right to
appeal the order allowing the withdrawal of the revocation petitions or the
allegedly unlawful sentence. Because the September 2022 order was part of
the plea agreement in the new criminal case, any appeal of the order would
presumably have to be filed in, or accompanied by the filing of, an appeal
from the judgment in which the plea was entered. And CDCR, at least, was
not in a position to file that appeal.
CDCR is not a party to Escobedo’s criminal case, and the general rule is
that only parties to a criminal action may appeal. (Crump v. Appellate
Division of the Superior Court (2019) 37 Cal.App.5th 222, 236 (Crump).)
There is an exception when an order has an immediate, pecuniary, and
substantial effect on a nonparty who is bound by the order. (People v.
Hernandez (2009) 172 Cal.App.4th 715, 720.) But, although the sentencing
order in Escobedo’s criminal case substantially impacted CDCR, we see no
immediate pecuniary effect that would justify applying the Hernandez
exception.
The People are a party in the criminal case, but we reject Escobedo’s
contention that an appeal by the People provides CDCR with an adequate
remedy. Escobedo cites several cases in which the People appealed final
orders dismissing or otherwise disposing of a parole revocation petition that
CDCR had filed. (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).)1 But here, CDCR is not synonymous with the People, and this
1 In Johnson, supra, 58 Cal.App.5th 363, another panel of this court
reversed an order purporting to terminate the defendant’s parole supervision,
holding that the trial court did not have statutory authority to terminate
parole supervision. While Escobedo characterizes Johnson as an appeal by
CDCR, and the appealed ruling was a response to a petition for revocation
12
line of authority is inapposite. For one thing, the revocation petitions filed
against Escobedo were withdrawn pursuant to the People’s own motion,
which implicates the rule that “[t]he People are ordinarily bound by their
stipulations, concessions or representations.” (People v. Mendez (1991) 234
Cal.App.3d 1773, 1783.) Moreover, withdrawal of the petitions was
inextricably intertwined with the negotiated disposition to grant Escobedo
probation, and the People may not appeal from an order granting probation.
(See § 1238, subd. (d); People v. Douglas (1999) 20 Cal.4th 85, 93.) These
facts, if they do not preclude an appeal by the People, at least demonstrate
that the People’s interests are not aligned with the interests of CDCR. We,
thus, conclude that the first factor favors granting writ review, as we see no
adequate means for CDCR to obtain relief through direct appeal.
We also doubt whether an appeal would provide CDCR with a
sufficiently speedy resolution to constitute an adequate remedy. (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”].) CDCR’s revocation petition and parole
violation report contain fact-specific evidence tending to show that Escobedo
poses a serious risk to public safety while on probation. Escobedo’s only
rejoinder is to argue that CDCR could simply expedite its appeal to get
prompt review of the trial court’s ruling, citing People v. Loper (2015) 60
Cal.4th 1155. But Loper confirms that the determination whether an appeal
provides an aggrieved party with an adequate remedy depends on “ ‘the
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.
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particular circumstances of that case.’ ” (Id. at p. 1167.) On the facts of this
case, we conclude the need for a speedy resolution weighs at least modestly in
favor of writ review. Potential harm to the public and potentially prejudicial
impingement of CDCR’s statutory authority are additional factors supportive
of CDCR’s request to decide this issue of first impression pursuant to a
petition for a writ of mandate.
Finally, as we will see, Escobedo’s attack on CDCR’s standing to bring
this challenge confirms our view that a mandate petition is appropriate here.
B. CDCR Has Standing
Escobedo contends CDCR has failed to establish it has standing to
bring this mandate petition because it was not a party in Escobedo’s criminal
action, and it has no right to interfere with the prosecutor’s discretion to
control that proceeding. We are not persuaded by these arguments.
“ ‘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
14
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 Escobedo’s criminal case, given the fact that Escobedo was on
lifetime parole when the trial court permitted the People to withdraw CDCR’s
revocation petition. The order sentencing Escobedo to probation, instead of
remanding him to the custody of CDCR, has a direct, immediate, detrimental
impact on CDCR’s statutory authority and obligation to supervise lifetime
parolees.
Escobedo cites Crump, supra, 37 Cal.App.5th 222, which reinforces our
conclusion. In Crump, victims of a gas leak filed a writ petition seeking
review of an order denying them restitution in an underlying criminal action
against the gas company that failed to report the gas leak. The Crump court
held the victims lacked standing to appeal the 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. 240–242.) 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.) So, too,
here. CDCR was not a party to Escobedo’s criminal action, but the
September 2022 judgment and sentence directly affected CDCR’s statutory
authority to initiate a parole revocation proceeding and enforce the law
pertaining to supervision of lifetime parolees.
Escobedo 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. In reaching this conclusion, the court
15
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, “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
does not rely on public interest standing. It is a state agency with a direct
and substantial interest in enforcing the legislative directive that it supervise
parolees (§ 3000, subd. (a)), including by petitioning the court to revoke
parole in an appropriate case. (See § 3000.08, subds. (d), (f) [on finding of
good cause that parolee has committed a violation of law or parole conditions,
if “intermediate sanctions . . . are not appropriate, the supervising parole
agency shall . . . petition” court to revoke parole].) While the Dix petitioner
had no legally recognized interest in the outcome of that criminal action,
CDCR has a legal obligation, independent of the district attorney’s, to file a
petition to revoke parole in appropriate cases. This dual authority is an
exception to the exclusive discretion a prosecutor usually enjoys in handling
criminal cases, which distinguishes Dix.
Finally, Escobedo contends CDCR abandoned its objection to the
withdrawal of its revocation petition and forfeited its right to appellate
review “by choosing not to attend the sentencing hearing and object in
person” to the entry of judgment in accordance with the negotiated plea. We
agree with Escobedo that an email sent to the court may not be a proper way
for a party to lodge an objection to an anticipated ruling. But CDCR was not
16
a party to Escobedo’s criminal action and the apparent purpose of the parole
agent’s email was simply to remind the court (and the district attorney) of the
governing law pertaining to lifetime parolees. Regardless, we conclude
CDCR did not forfeit its right to bring this claim by failing to appear in
Escobedo’s criminal case. As a rule, the failure to raise an issue at the
earliest opportunity results in forfeiture of a question in a later proceeding.
(Parmar v. Board of Equalization (2011) 196 Cal.App.4th 705, 718.) But this
rule does not apply “to ‘noncurable defects of substance where the question is
one of law,’ or to ‘matters involving the public interest or the due
administration of justice. . . .’ ” (City of Clovis v. County of Fresno (2014) 222
Cal.App.4th 1469, 1477; see also In re L.C. (2023) 90 Cal.App.5th 728, 738.)
Moreover, forfeiture can work against either party. (See e.g., Guastello v.
AIG Speciality Ins. Co. (2021) 61 Cal.App.5th 97, 105.) And ironically,
Escobedo has forfeited his forfeiture argument by failing to flesh it out more
fully and place it under a separate heading in his brief. (Landry v. Berryessa
Union School Dist. (1995) 39 Cal.App.4th 691, 699–700 [“When an issue is
unsupported by pertinent or cognizable legal argument it may be deemed
abandoned and discussion by the reviewing court is unnecessary”].)
Accordingly, we proceed to the merits of CDCR’s petition.
III. The Plea Bargain Was Unlawful
CDCR contends the People’s plea bargain with Escobedo is
unenforceable because the trial court was required by law to adjudicate the
parole revocation petitions and remand Escobedo to the custody of CDCR.
Escobedo disagrees, arguing that because the petitions were withdrawn, the
prosecution was free to negotiate a disposition that did not require Escobedo’s
return to prison. As we shall explain, the trial court did not have the power
to disregard section 3000.08(h) and sentence a lifetime parolee to probation.
17
Moreover, even if DDA Chavez had authority to withdraw the revocation
petition filed by the district attorney, she did not have unilateral authority to
withdraw CDCR’s parole revocation petition. Accordingly, we conclude the
plea agreement to sentence Escobedo to probation for his admitted violation
of Penal Code section 422 is 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.” (Renfro, at p. 230, quoting § 1192.5.)
Here, the trial court exceeded its legally available powers by placing a
lifetime parolee on probation after finding he had committed a felony. As we
have noted, section 3000.08(h) states that if a court determines a lifetime
parolee has violated conditions of parole or the law, the parolee “shall” be
remanded to the custody of CDCR and the jurisdiction of BPH. This remand
is not optional, but follows ineluctably from the judicial finding that a
lifetime parolee has committed a new offense. 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.) Simply stated, the “imposition
and duration of a parole term is not a permissible subject of plea
negotiations.” (Ibid.) This legal principle has been consistently enforced by
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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 [specified parole term in a
plea agreement is unenforceable]; Renfro, at p. 233 [same].)
Escobedo contends that section 3000.08(h) is inapplicable—and thus
did not limit the trial court’s authority to accept the plea agreement—because
the petitions charging Escobedo with violating conditions of his parole were
withdrawn before Escobedo entered his plea. According to this argument,
section 3000.08(h) simply does not apply in the absence of a pending petition
to revoke parole. Escobedo cites no authority supportive of this proposition,
but he reasons that the statutory scheme contemplates a revocation petition
must be pending in order for the court to revoke somebody’s parole and
remand the person to the custody of CDCR. We disagree.
Section 1203.2, subdivision (b)(1) expressly provides that the court may
modify or revoke parole “[u]pon its own motion.” Escobedo acknowledges this
provision but deems it irrelevant since the trial court did not make a motion
to revoke Escobedo’s parole in this particular case. The pertinent fact,
however, is that the Legislature has determined that a trial court’s power to
revoke parole is not conditioned on either the district attorney or CDCR filing
a revocation petition. Further, revocation of parole is mandatory in the event
a criminal defendant is convicted of any offense, even a misdemeanor, based
on conduct he committed while on lifetime parole. (Perlas, supra, 47
Cal.App.5th at p. 836, citing § 3000.08(h).) And in the present case, there is
no dispute that Escobedo was a lifetime parolee when he committed the acts
that the court found were a felony violation of section 422. Although the
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court’s finding was based on a plea rather than evidence presented at a
revocation hearing, we see no reason why that finding was insufficient to
trigger application of section 3000.08(h) and the principle of Perlas,
notwithstanding that the revocation petitions had ostensibly been
withdrawn. If no revocation petition had ever been filed, section 1203.2,
subdivision (b)(1) would have provided the court a procedural mechanism to
comply with the statutory mandate.
The language of section 3000.08(h) is consistent with this analysis. Its
requirement that a lifetime parolee, found to have committed a new offense,
be remanded to the custody of CDCR is not conditioned on the filing or
adjudication of any petition to revoke parole. Section 3000.08(h) codifies a
legislative mandate that unequivocally requires, “[n]otwithstanding any
other law,” that the court remand a lifetime parolee in such circumstances.
(§ 3000.08(h).) The provision requires no petition to revoke parole, and no
court order adjudicating such a petition. Section 3000.08(h) mentions
neither. Escobedo acknowledges that section 3000.08(h) carves out an
exception to the range of consequences otherwise available under subdivision
(f) of section 3000.08, when a lifetime parolee is the one found to have
committed a parole violation. (See Williams, supra, 71 Cal.App.5th at p.
1040; Perlas, supra, 47 Cal.App.5th at p. 836.) But he contends, with no
authority, that subdivision (h) lies dormant absent a formal revocation
proceeding. We disagree. As with section 3000.08(h), nothing in subdivision
(f) requires a pending petition before the court may revoke a person’s parole.
Subdivision (f) does require CDCR to file a revocation petition in certain
circumstances, but it does not condition the court’s power to revoke parole on
any such petition. The court retains the power to revoke parole on its own
motion if need be. (§ 1203.2, subd. (b)(1).)
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But there is no need to deal in hypotheticals here. Even if we were to
credit the contention that section 3000.08(h) does not come into play unless a
formal revocation petition is pending, we would reach the same conclusion in
the present case. Two such petitions were filed against Escobedo before he
negotiated his plea bargain with the People. Settled authority establishes
that the court could not dismiss those petitions in the interests of justice
pursuant to section 1385. (Wiley, supra, 36 Cal.App.5th at p. 1068; Williams,
supra, 71 Cal.App.5th at p. 1044.) Because section 1385 refers to the
dismissal of an “action,” it has been found not to apply to parole revocation
proceedings. (Wiley, at p. 1068.) These are not criminal actions, but special
proceedings established by statute. (Perlas, at pp. 831–832.)
We do not rule out the possibility that a workable distinction can be
drawn between dismissing a revocation petition and allowing it to be
withdrawn, but we know of no authority allowing a district attorney to
withdraw a petition she did not file. The statutory scheme for adjudicating
parole violations confers no express right to withdraw a revocation petition,
but neither does it expressly preclude withdrawing a petition. In the face of
this silence, Escobedo posits that the power to withdraw a revocation petition
falls within the prosecution’s discretionary authority to control criminal
proceedings. We reject this theory because, as noted, a parole revocation
proceeding is not a criminal action to be prosecuted, but a special proceeding
arising from an underlying prior conviction. (Wiley, supra, 36 Cal.App.5th at
pp. 1067–1068; Perlas, supra, 47 Cal.App.5th at pp. 831–832.) And the
Legislature has resolved that revocation petitions are not solely the
responsibility of the district attorney, as a parole revocation proceeding can
also be initiated by CDCR, or even on the trial court’s own motion. (§ 1203.2.)
If the district attorney were empowered to withdraw CDCR’s petition without
21
CDCR’s permission, this would undermine the Legislative scheme giving the
two agencies independent authority to initiate revocation proceedings.
Finally, as we have discussed, the law requires CDCR to file parole revocation
petitions in specified circumstances (§ 3000.08, subd. (f)), which were present
here. In a case where CDCR is required to file a parole revocation petition,
we question whether anyone—CDCR or the district attorney—has authority
simply to withdraw that petition. For all of these reasons we conclude that,
even if DDA Chavez had authority to withdraw her own parole revocation
petition, she had no authority to withdraw the petition that CDCR filed
pursuant to its own statutory mandate.
Escobedo relies heavily on Williams, supra, 71 Cal.App.5th 1029 to
argue otherwise. In that case, the district attorney filed both a complaint
charging a lifetime parolee with two misdemeanors and a petition to revoke
the defendant’s parole. After a contested hearing on the revocation petition,
the court determined the defendant had committed one of the charged
offenses and remanded him to prison pursuant to section 3000.08(h). On
appeal, the defendant argued the trial court erred by refusing to obtain a
written report from CDCR before ruling on the revocation petition. Division
One of this court agreed, applying the plain language of section 1203.2(b),
which requires the trial court to obtain and review a written report from the
parole agency before ruling on a parole revocation petition filed by the district
attorney, making no exception for lifetime parolees. (Williams, at pp. 1039–
1040; see also People v. Zamudio (2017) 12 Cal.App.5th 8, 15.)
Although Williams is not directly on point, one aspect of the appellate
court’s decision provides useful guidance. In that case, the People argued
that although section 1203.2(b) generally requires courts to obtain a written
report from the parole agency, that requirement should not apply to lifetime
22
parolees because the purpose of the report is to aid the court in deciding
whether to impose an intermediate sanction, which simply is not an option
when the violator is on lifetime parole. (Williams, supra, 71 Cal.App.5th at
pp. 1042–1043.) The Williams court confirmed that “a trial court has no
discretion to do anything but remand a lifetime parolee to prison once it finds
that the person violated parole.” (Id. at p. 1042, see also p. 1040.) But it
found, among other things, that “even though the trial court may not dismiss
a petition, or impose intermediate sanctions short of revoking parole, based
on the parole agency’s report,” that report could potentially influence the
prosecutor to withdraw his or her petition. (Id. at p. 1044.) The court
reasoned that the district attorney could be prompted to reconsider its
decision to file the revocation petition if the report disclosed, for example,
that the parole agency would have imposed intermediate sanctions instead of
requesting court intervention. (Id. at pp. 1044–1045.)
Williams supports the proposition that the district attorney has
discretion to withdraw its own petition for revocation of parole based on
information provided by the parole agency. By parity of reasoning, the
district attorney might also have discretion to withdraw its own revocation
petition in order to facilitate a plea agreement. (Cf. People v. Vaesau (2023)
__ Cal.App.5th ___ [2023 Cal.App.Lexis 598] [district attorney must have
legitimate basis for withdrawing a resentencing request].) But even if we
assume that DDA Chavez had authority to withdraw the district attorney’s
petition, CDCR filed its own revocation petition against Escobedo, and that
petition was supported by a CDCR report explaining the need for court
intervention and a remand to state custody. Williams does not hold or
intimate that the district attorney has discretion to withdraw a revocation
petition that was filed by CDCR. And we conclude that because the statutory
23
scheme establishes parallel tracks for CDCR and the district attorney to file
revocation petitions, Williams should not be read to support a district
attorney exercising independent authority to withdraw a revocation petition
that CDCR filed.
At oral argument before this court and in postargument letter briefs,
Escobedo developed a new theory, that in this particular case CDCR
delegated its authority to withdraw its revocation petition to the district
attorney. Escobedo reasons that by failing separately to appear on the
petition, CDCR permitted the district attorney to prosecute CDCR’s petition,
thereby ceding the power to withdraw that petition. We see several problems
with this argument.
Escobedo cites no statute or document to support his contention that
the district attorney was counsel of record on CDCR’s petition here or,
relatedly, that CDCR needs to appear through counsel after filing a
statutorily mandated revocation petition. And there is a practical problem
with requiring CDCR to appear at every hearing, a problem the Attorney
General explains this way: already a parole agent or parole-agent supervisor
appears in the Alameda County Superior Court for the weekly calendar
where parole revocation petitions are heard, and parole agents should not
need also “to appear at every criminal calendar in Alameda County to ensure
prosecutors do not act ultra vires and withdraw a CDCR-initiated parole
revocation petition without CDCR’s permission.”
Further, to the extent that the district attorney acted as counsel for
CDCR under the facts presented here, we disagree with Escobedo that
CDCR’s counsel had unilateral authority to withdraw the revocation petition.
Escobedo cites Code of Civil Procedure, section 283, which codifies the
general rule authorizing an attorney to bind his or her client “in any of the
24
steps of an action or proceeding.” However, this rule is subject to substantive
limitations. For example, an attorney exceeds his or her authority by
abdicating a substantial right of the client contrary to express instructions.
(Linsk v. Linsk (1969) 70 Cal.2d 272, 278; see Conservatorship of John L.
(2010) 48 Cal.4th 131, 156.) Here, Ms. Martin’s email made clear that CDCR
was of the view that both parole revocation petitions needed to be adjudicated
and, if good cause was found, Escobedo needed to be remanded to the Board
of Parole Hearings, so the district attorney knew it did not have CDCR’s
approval for the course of action it was pursuing.
Indeed, nothing in this record supports Escobedo’s factual assertion
that CDCR delegated or ceded its authority to enforce the parole revocation
law. As soon as the parole-agent supervisor discovered the allegedly
unlawful plea agreement, she notified both the district attorney and the court
about the need to comply in this case with rules applicable to lifetime
parolees who reoffend. Accordingly, we reject Escobedo’s new theory that
CDCR’s nonappearance in the trial court authorized the district attorney to
withdraw CDCR’s petition.
We note, in closing, that “[d]efining offenses and prescribing
punishments (mandatory or alternative choices) are legislative functions.”
(People v. Navarro (1972) 7 Cal.3d 248, 258.) When the court accepted
Escobedo’s plea, it implicitly found that Escobedo violated the law while on
lifetime parole. The court then had no choice but to impose the consequence
the Legislature has mandated in such circumstances. Notwithstanding the
fact that the prosecutor purported to withdraw both revocation petitions,
section 3000.08(h) required that Escobedo be returned to the custody of
CDCR. The law simply does not authorize probation for a lifetime parolee
who is found to have again violated the law, and therefore, neither the
25
prosecution nor the sentencing court had authority to accept a negotiated
disposition that placed Escobedo on probation. 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 Escobedo’s criminal action; vacate the
order granting the People’s motion to withdraw CDCR’s petition to revoke
Escobedo’s parole; afford Escobedo the opportunity to withdraw his plea; and
conduct further proceedings as may be appropriate and consistent with the
views expressed herein.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
California Department of Corrections & Rehabilitation v. Superior Court (Escobedo) (A166559)
26
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Paul Delucchi
Counsel: Rob Bonta, Attorney General, Phillip J. Lindsay, and Sara
J. Romano, Senior Assistant Attorneys General, Brian
C. Kinney, Supervising Deputy Attorney General,
Michael G. Lagrama, and Kathleen R. Walton, Deputy
Attorneys General for Petitioner
No appearance for Respondent
Jonathan Soglin, and Jeremy Price, under appointment by
the Court of Appeal, for Real Party in Interest Robert L.
Escobedo
No appearance for Real Party in Interest the People
27