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Berman v. Cate

August 19, 2010

VINCENT COLLINS BERMAN, PLAINTIFF AND RESPONDENT,
v.
MATTHEW CATE, AS SECRETARY, ETC., DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge. Reversed. (Super.Ct.No. INC085556).

The opinion of the court was delivered by: Miller, J.

CERTIFIED FOR PUBLICATION

OPINION

After plaintiff and respondent Vincent Collins Berman*fn1 completed 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 the California Department of Corrections and Rehabilitation (hereinafter "the Department") increased the proposed term of petitioner's parole from three to five years.*fn2 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 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 years, 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)).*fn3 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 adjacent 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 count 1 with no credit 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 convicted of a number of enumerated offenses, including the offenses for which petitioner was convicted, serve a minimum period of five years on parole.*fn4

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 record appears to have cut off the top 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.*fn5 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.*fn6

Petitioner alleged he filed three levels of administrative appeals seeking to enforce his purported plea term of a maximum three-year period of parole.*fn7 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 places 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 ...


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