IN RE: Sandy Lee MOSER on Habeas Corpus.

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Court of Appeal, First District, Division 1, California.

IN RE: Sandy Lee MOSER on Habeas Corpus.

No. A052308.

Decided: April 14, 1992

Daniel E. Lungren, Atty. Gen., George H. Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald E. Niver, Supv. Deputy Atty. Gen., Catherine A. Rivlin, Deputy Atty. Gen., San Francisco, for plaintiff and appellant. Richmond M. Flatland, Newark, by appointment of the Court of Appeal, First District Appellate Project, for defendant and respondent.

The People appeal from the grant of Sandy Lee Moser's petition for habeas corpus which allowed withdrawal of Moser's guilty plea.   Because of the unusual facts of this case, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In January of 1986, following a preliminary hearing, Moser was held to answer on charges of first degree murder and personal use of a firearm.   The victim was Moser's former girlfriend.   Following the shooting, Moser told his friend Thomas Stover that “I blew her away, bam, bam, bam.   I'm sorry, but it happened.”

On May 29, 1987, Moser pled guilty to second degree murder and the district attorney moved to dismiss the weapon allegation and the allegations of premeditation and deliberation.   The court advised Moser of his constitutional rights and told him that the mandatory statutory sentence was 15 years to life.   The court then incorrectly advised as follows:  “Do you understand that once you have concluded your term in prison, that there will be a period of parole which cannot exceed forty-eight months, and it works—actually, the term is thirty-six months;  but if you add parole violations spaced just correctly, you could serve an additional forty-eight months in prison if the Board determined that there should be a return on each violation.”   The applicable period of parole at the time Moser was sentenced was life.   (Pen.Code, § 3000.1, subd. (a).) 1

Moser was sentenced on June 5, 1987.   At that time, the court again told him that there was a period of parole following release from prison of 36 to 48 months.   No appeal was filed.

On July 17, 1990, Moser filed a petition for writ of habeas corpus in the superior court declaring that he had not appealed his conviction because counsel had advised him there were no appealable issues and an application for certificate of probable cause had been denied on July 23, 1987.   In the accompanying memorandum, Moser argued that the trial court never advised him of the correct parole term.   He asked to withdraw his guilty plea.   The People filed a return to the court's order to show cause, conceding the error, but arguing that the correct remedy was to shorten Moser's parole period.   Following the filing of Moser's denial, the court set the matter for argument.

At the hearing, the district attorney conceded the error and the appropriateness of habeas corpus to challenge the error.   The district attorney disputed Moser's right to withdraw his plea, arguing that the parole term was not a part of the plea bargain, could not have induced the plea, and that the People were greatly prejudiced by being forced to trial on a five-year-old murder charge.   Counsel offered to stipulate, on behalf of the Board of Prison Terms, the district attorney and the Attorney General, to reduce Moser's maximum term of parole to three years.

On December 12, 1990, the court filed its opinion finding that specific performance of the erroneous advisement would result in “a subversion of the appropriate penal statute, to impose a sanction not provided in the penal code, to impose a created punishment.”   The court also expressed concern that specific performance would not remedy the harm because the short parole term may influence the Board of Prison Terms in its determination of Moser's prison term.   The court determined that Moser was entitled to withdraw his plea.   The People appealed.

DISCUSSION

 The parole period a convicted defendant is required to serve is a direct penal consequence of a guilty plea, and a defendant must be advised of the parole consequence prior to acceptance of the plea.  (In re Carabes (1983) 144 Cal.App.3d 927, 932, 193 Cal.Rptr. 65.)   The requirement is not constitutionally required, but is a “judicially declared rule of criminal procedure.”  (In re Ronald E. (1977) 19 Cal.3d 315, 320–321, 137 Cal.Rptr. 781, 562 P.2d 684.)

 The determination of whether a sentence term may be imposed when it is not a part of a plea bargain and the defendant has not been advised requires consideration of two principles.  (People v. Walker (1991) 54 Cal.3d 1013, 1019–1020, 1 Cal.Rptr.2d 902, 819 P.2d 861;  People v. Glennon (1990) 225 Cal.App.3d 101, 104, 276 Cal.Rptr. 1.)   Thus, in addition to the principle that a defendant must be advised of the penal consequences of the plea, the parties to a plea bargain must adhere to the terms of the bargain.  (People v. Walker, supra, 54 Cal.3d at p. 1020, 1 Cal.Rptr.2d 902, 819 P.2d 861;  People v. Mancheno (1982) 32 Cal.3d 855, 860, 187 Cal.Rptr. 441, 654 P.2d 211.)

In Walker, the Supreme Court considered the application of these principles in the context of a defendant who was improperly advised as to the nature and amount of fines that would be imposed following his guilty plea.   The terms of the plea bargain in Walker were that the defendant pled guilty to one count, another count was dismissed and the midterm sentence would be imposed.  (54 Cal.3d at pp. 1018–1019, 1 Cal.Rptr.2d 902, 819 P.2d 861.) 2  The trial court in Walker orally explained that the defendant would be subject to a fine of up to $10,000.   The fine actually imposed at sentencing was $5,000.   The Supreme Court found that because the actual fine imposed was less than the amount of which the defendant was advised, the failure to advise that two separate fines could be imposed had been waived by the failure to object at sentencing and was harmless.  (Id. at p. 1029, 1 Cal.Rptr.2d 902, 819 P.2d 861.)

Continuing with its analysis, the court found that the negotiated plea did not include any term regarding a fine, and that the fine actually imposed was a significant deviation from the negotiated terms of the bargain.   Because defendant had not been told of his right to withdraw the plea when sentenced in excess of the terms, no waiver was found by the failure to object.   In light of the constitutional issues raised by this deviation, harmless-error analysis was improper and the defendant was entitled to a remedy.  (People v. Walker, supra, 54 Cal.3d at pp. 1029–1030, 1 Cal.Rptr.2d 902, 819 P.2d 861.)   In fashioning the remedy, the Walker court considered two factors that are relevant in the instant case.   The first factor is that the defendant in Walker did not raise the issue until the time of appeal.   This triggered consideration of the prejudice to the People caused by the passage of time.   “The passage of time may have caused some witnesses' memories to dim.   Other witnesses may be missing.   Victims might be traumatized by the resurrection of a criminal proceeding long since believed resolved.”  (Id. at p. 1028, 1 Cal.Rptr.2d 902, 819 P.2d 861.)   This consideration “tilts the relevant interests strongly towards reducing the fine rather than undoing the plea bargain.”  (Ibid.)  This consideration is even more compelling in the instant case, where the crime occurred in 1985 and no challenge was made until 1990.   Indeed, the balance here is greatly tilted toward a remedy that will preserve the conviction.

The second consideration in Walker was the restitution fine that was a mandatory statutory requirement.   For this reason, the court found it inappropriate to strike the fine, which was viewed as “an important benefit to crime victims․”  (People v. Walker, supra, 54 Cal.3d at p. 1027, 1 Cal.Rptr.2d 902, 819 P.2d 861.)   The court fashioned an intermediate remedy that would serve the interest of upholding the plea bargain and imposing the mandatory term by reducing the fine to the statutory minimum of $100.   Although the court noted that a defendant should not normally receive any more punishment than bargained for, the $100 fine was insignificant as a matter of law.  (Id. at pp. 1027–1028, fn. 3, 1 Cal.Rptr.2d 902, 819 P.2d 861.)   In determining the significance of an additional punishment, the court cited the strict test of Santobello v. New York (1971) 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427.  Santobello involved a prosecutor who failed to keep a promise not to make a sentencing recommendation.   The Santobello court stated:  “the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.   Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”  (Santobello, supra, at p. 262, 92 S.Ct. at p. 499.)

Our Supreme Court in Walker cautioned that the Santobello test for significance of imposition of a greater punishment than was bargained for is a stricter test than the harmless-error test that would deny relief when it is not reasonably probable the defendant would not have pleaded guilty if informed of the punishment.  (People v. Walker, supra, 54 Cal.3d at pp. 1027–1028, fn. 3, 1 Cal.Rptr.2d 902, 819 P.2d 861.)   In the instant case, Moser did not negotiate for a specified punishment.   He was told, however, that the court had no discretion in its choice of sentence or parole period and that the parole period was three to four years.   It is clear that his understanding of the bargain included only a three- to four-year term of parole.   Specific performance would be the appropriate remedy if it resulted in a legal sentence.

The difficulty with imposing what appears to be the appropriate remedy is that the parole period for Moser's sentence is life.  Penal Code section 3000.1, subdivision (a) provides:  “In the case of any inmate sentenced under Section 1168 for any offense of first or second degree murder with a maximum term of life imprisonment, the period of parole, if parole is granted, shall be the remainder of the inmate's life.”   Although this appears to be a mandatory period, subdivision (b) of the same statute provides:  “Notwithstanding any other provision of law, when any person referred to in subdivision (a) has been released on parole from the state prison, and has been on parole continuously for ․ five years in the case of any person imprisoned for second degree murder, since release from confinement, the board shall, within 30 days, discharge such person from parole, unless the board, for good cause, determines that such person will be retained on parole.”   Thus, despite the language of subdivision (a), this provision allows a parole period of five years, subject to the board's contrary finding of good cause.   By stipulating to a lesser term of parole, the board has conceded there was no good cause to retain Moser longer than the minimum parole period.3

This set of circumstances allows us to reduce Moser's parole period to five years, which brings it closer to the term he expected.   Applying the test of Santobello v. New York, supra, 404 U.S. at p. 262, 92 S.Ct. at pp. 498–99, we find that the possibility of an additional one to two years on parole cannot be said to have been a significant inducement of Moser's plea.   He agreed to accept a sentence of 15 years to life in exchange for avoiding the possibility of a first degree conviction and an additional term for the weapons enhancement.   The evidence adduced at the preliminary hearing indicated that the victim telephoned a friend 15 minutes before her death, asking her to come over because of trouble with Moser.   Shortly after the shooting, Moser appeared at a friend's house, confessed the killing, and asked for help in hiding.   These facts indicate that the allegations in the complaint were well founded and that Moser's bargain was amply supported.

We might find, even under these unusual circumstances, that Moser's plea rested in some degree on a promise that his parole would be three to four years.   This is especially true when the actual period of parole is life.   However, in light of the long delay in challenging the sentence, the great prejudice to the People, and the stipulation by the board itself that the parole period may be reduced, we find that reducing the parole period to the minimum term of five years is the only permissible remedy to cure the harm caused by the error and yet give consideration to the People's interest in upholding a conviction of a 1985 murder.4

Because the lower court failed to properly consider the harm caused to the People by disrupting the plea bargain, and because it abused its discretion by assuming improper conduct by the board, we reverse the judgment of the superior court and order it to enter a new judgment directing the Board of Prison Terms to impose no more than the minimum five-year term of parole.

FOOTNOTES

1.   Section 3000.1 subdivision (a) provides:  “In the case of any inmate sentenced under Section 1168 for any offense of first or second degree murder with a maximum term of life imprisonment, the period of parole, if parole is granted, shall be the remainder of the inmate's life.”

2.   The Court distinguished between a negotiated plea, such as that in Walker and a nonnegotiated plea, such as that in People v. Glennon, supra, 225 Cal.App.3d 101, 276 Cal.Rptr. 1 (defendant pled to all charges with no sentence specified), finding that when the failure to advise arises in the context of a nonnegotiated plea, the error is waived if not raised at sentencing.   If it is timely raised, a harmless-error analysis applies.

3.   We are aware of Moser's argument that the Board of Prison Terms may treat him differently when considering his eligibility for parole if faced with a specifically enforced reduction in the period of parole.   The board is a party to this action and has agreed to abide by such a disposition.   It is improper to presume that the board will not abide by its stipulation.   In addition, the board is subject to statutory constraints on its actions in setting the minimum eligible parole release date and must set uniform dates for offenses of similar gravity.   (Pen.Code, § 3041.)   Breach of these constraints is subject to review by petition for writ of habeas corpus.  (In re Dayan (1991) 231 Cal.App.3d 184, 282 Cal.Rptr. 269.)

4.   We are aware of People v. Victorian (1992) 2 Cal.App.4th 954, 4 Cal.Rptr.2d 460, in which Division Three of this court reversed to allow withdrawal of a guilty plea when the defendant had been misadvised as to the maximum parole term.   The defendant in Victorian had moved to withdraw his plea prior to sentencing, unlike the instant case in which no objection was made until three years after sentencing.   We agree with the Victorian court that we have no authority to specifically enforce an erroneous parole term.   However, the Board of Prison Terms, which determines each inmate's parole term, has stipulated to the reduced term in the instant case.   For these reasons, we believe that this case is distinct from Victorian and that a different result is, therefore, required.

STEIN, Associate Justice.

NEWSOM, Acting P.J., and DOSSEE, J., concur.

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