Cal. Dep't of Corr. & Rehab. v. The Superior Court
| Docket Number | A167161 |
| Decision Date | 25 August 2023 |
| Parties | CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; FRANK RUSSELL BURNS, Real Party in Interest. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 22-SF-010004-A)
The California Department of Corrections and Rehabilitation (CDCR) seeks review by extraordinary writ of an order sentencing defendant Frank Burns to time served in county jail for violating a condition of his parole by committing a burglary. The sentence was imposed pursuant to a negotiated disposition whereby Burns entered a no contest plea to the burglary charge and admitted the parole violation. CDCR challenges the validity of the plea agreement and the authority of the superior court to impose a time-served county jail sentence instead of remanding Burns to the custody of CDCR for violating the law while he was on lifetime parole for a prior murder conviction. (Pen. Code, §§ 3000.1, 3000.08, subd (h) (section 3000.08(h)).)[1]Having previously issued an order to show cause, we now grant the petition for writ of mandate.
In 1991, a jury convicted Burns of first degree murder (§ 187) and the trial court found true a sentence enhancement for personal use of a firearm (§ 12022.5, subd (a)). Burns was sentenced to an aggregate term of 29 years to life in prison. In October 2018, Burns was released from prison and placed on parole in San Francisco. Because his sentence for murder included a maximum term of life imprisonment Burns was placed on lifetime parole. (§ 3000.1, subd (a)(1) (section 3000.1(a)(1)).)
On August 7, 2022, Pacifica police officers responded to a report of suspicious activity at a residence, where they found Burns apparently engaged in committing burglary. Following a parole search, items were seized, and Burns was placed under arrest for burglary and possession of stolen property. Due to the August 7 incident, CDCR instituted a proceeding in San Francisco to revoke Burns's parole. (In the Matter Of Burns (Super. Ct. S.F. City &County, No. 22-SF-01004-A).) CDCR's revocation petition was filed in San Mateo County, where the district attorney also filed new criminal charges against Burns. (People v. Burns (Super. Ct. S.F. City &County, No. 22-NF-009800-A).)
On December 13, 2022, Burns executed a declaration and change of plea in his new criminal case, pursuant to which he pled no contest to felony burglary (§ 460, subd. (a)). According to his declaration, Burns was induced to change his plea by a promise that he would receive a county jail sentence of credit for time served, to run concurrently with the same sentence for the parole violation alleged in CDCR's revocation petition. The trial court found that Burns made a knowing and voluntary waiver of rights, found a factual basis for the plea, and accepted it.
The same day Burns entered his plea, the court held a hearing regarding the parole revocation matter, although the minute order does not reflect that CDCR participated in the hearing. Burns waived his right to a hearing on the revocation petition, admitted the parole violation, and waived time for sentencing. The court sentenced Burns to confinement in county jail for 257 days, gave Burns credit for 257 days, and reinstated him on parole.
On February 10, 2023, CDCR, represented by the Attorney General of California, filed a petition in this court for a writ of mandate directing the superior court to adjudicate CDCR's parole revocation petition, and to remand Burns to CDCR's custody if a parole violation is found. (Code Civ. Proc., § 1085, subd. (a).) CDCR alleges that Burns's plea agreement is void because it violates the parole revocation law, and the superior court had no authority to accept it.
Burns, as real party in interest, opposes CDCR's mandate petition.[2] He argues the petition should be denied without consideration of its merits because CDCR (1) has failed to show it has no other adequate remedy, (2) lacks standing to bring this writ proceeding, and (3) is estopped from challenging the validity of the district attorney's plea bargain with Burns.
To facilitate our discussion, we briefly review pertinent aspects of the 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).) Either the court in the county in which the person is being supervised or the court in the county where an alleged violation of supervision occurred has jurisdiction to hear a petition to revoke parole. (§ 1203.2, subd. (b)(1).) Some rules and procedures differ depending on which entity has filed a petition for revocation of parole. (People v. Williams (2021) 71 Cal.App.5th 1029, 1038 (Williams).) For one thing, 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).) Relatedly, 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. (§ 3000.08, subd. (f); Cal Rules of Court, rule 4.541.)
For most parolees, when a parole violation is found, the trial court 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.) However, "[t]hese options do not exist when the court adjudicates a petition concerning a lifetime parolee" because "once the court finds that a lifetime parolee has violated parole, revocation is 'mandatory.'" (Williams, supra, 71 Cal.App.5th at p. 1040, quoting People v. Perlas (2020) 47 Cal.App.5th 826, 836 (Perlas); see also People v. Wiley (2019) 36 Cal.App.5th 1063, 1067 (Wiley).) 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).)
The issue presented by CDCR's writ petition pertains to whether the trial court exceeded its jurisdiction to adjudicate the petition to revoke parole by sentencing Burns in accordance with his plea bargain rather than remanding him to custody pursuant to section 3000.08(h). Before turning to that issue, we consider Burns's procedural objections.
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.) By the same token, 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." (Code Civ. Proc., § 1086.) Pertinent factors include whether "the party seeking the writ lacks an adequate means, such as direct appeal, to obtain relief," and whether "the petitioner will suffer harm or prejudice which cannot be corrected on appeal." (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 conclude that a direct appeal is not an adequate means for CDCR to obtain relief under the circumstances presented here. A ruling on a parole revocation petition is appealable as a postjudgment order in a criminal action. (People v. Wagner (2016) 2 Cal.App.5th 774, 778.) However, the general rule is that only parties have standing to appeal rulings in a criminal case. (Crump v. Appellate Division of Superior Court (2019) 37 Cal.App.5th 222, 236 (Crump).) Here, CDCR was not a party in the underlying murder case pursuant to which Burns was placed on parole. Nor was it a party in the new criminal case charging Burns with burglary, which led to the plea agreement pursuant to which Burns was sentenced for violating his parole by committing another crime. An exception to the rule that only parties can appeal in criminal matters may apply when the challenged order has an immediate, pecuniary, and substantial effect on a nonparty who is bound thereby. (People v. Hernandez (2009) 172 Cal.App.4th 715, 720.) Although CDCR is bound by and was substantially impacted by the sentencing orders in this case, we see no immediate pecuniary effect on CDCR. Thus, it appears that CDCR's ability to obtain appellate review is dependent on and derivative of the People's right to maintain an appeal.
Indeed the People have filed an appeal from the December 2022 order in Burns's parole revocation matter. (People v. Burns (A167236, app. pending).) However, the fact...
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