Court has no authority to release person on lifetime parole to probation on plea bargain

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ROBERT L. ESCOBEDO, Real Party in Interest. (Cal. Ct. App., Aug. 25, 2023, No. A166559) 2023 WL 5498785

Summary: Escobedo was placed on felony probation pursuant to a plea bargain. 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 offense. (Pen. Code, § 3000.1, subd. (a)(1).) The California Department of Corrections and Rehabilitation (CDCR) sought review by extraordinary writ challenging  the authority of the superior court to release Escobedo on probation, instead of adjudicating CDCR’s parole revocation petition and returning him to prison if the court finds that he has committed a new offense. (See § 3000.08, subd. (h) (section 3000.08(h)).)

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).) The Court of Appeal granted  CDCR’s mandate petition.

Facts and background

Escobedo was convicted 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 and was sentenced to 19 years to life.

In June 2016, Escobedo was released from prison and placed on parole. Escobedo was placed on lifetime parole. (§ 3000.1, subd. (a)(1).) 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. On September 30, the District Attorney filed a petition for revocation of Escobedo’s parole due to the criminal violation. This petition did not reflect that Escobedo was on lifetime parole.

On October 1, 2020, CDCR filed a petition for revocation of Escobedo’s parole, which reflected 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. The dates and descriptions of the criminal conduct in CDCR’s petition match the allegations in the criminal complaint filed two days earlier. CDCR also alleged 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, represented by the Attorney General of California, filed a petition for writ of mandate 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.

Escobedo argues the mandate petition lacks merit because his plea bargain does not violate the law governing proceedings to revoke parole.

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.)

Sections 1203.2 and 3000.08 establish the statutory framework for parole revocation proceedings.

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).) CDCR has a statutory duty to file a revocation petition if it concludes that intermediate sanctions are not appropriate under the circumstances. A CDCR 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. (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. 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 and to consider that written report before deciding the merits of the petition.

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).)

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.)

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.

The Plea Bargain Was Unlawful

The trial court did not have the power to disregard section 3000.08(h) and sentence a lifetime parolee to probation. The District Attorney did not have unilateral authority to withdraw CDCR’s parole revocation petition.

The trial court exceeded its legal powers by placing a lifetime parolee on probation after finding he had committed a felony.  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. 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 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].)


A peremptory writ of mandate was issued directing the trial court to vacate the judgment and sentence in Escobedo’s criminal action.

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