Carabes, In re

• Decision Date: 13 July 1983
• Citation: 144 Cal.App.3d 927,193 Cal.Rptr. 65
• Court: California Court of Appeals Court of Appeals
• Parties: In re Cornelio CARABES on Habeas Corpus. 7591 (F001627).

Page 65

193 Cal.Rptr. 65

144 Cal.App.3d 927

In re Cornelio CARABES on Habeas Corpus.

7591 (F001627).

Court of Appeal, Fifth District, California.

July 13, 1983.

As Modified July 25, 1983.

As Modified on Denial of Rehearing Aug. 3, 1983.

[144 Cal.App.3d 928] Willard L. Weddell, Public Defender, Daniel R. Resnick, Deputy Public Defender, Bakersfield, Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Roy M. Dahlberg, Deputy State Public Defender, Sacramento, for petitioner.

John K. Van De Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall, Linda A. Cabatic and Michael T. Garcia, Deputy Attys. Gen., Sacramento, for respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

The issue in this habeas corpus proceeding is whether a defendant who pleads guilty to second degree murder must be advised of the parole consequences of conviction of that offense prior to entering the plea. We hold that such advisement must be given.

Pursuant to a plea bargain, the petitioner pled guilty to second degree murder (Pen.Code, § 187) and use of a firearm in the commission of the offense (Pen.Code, § 12022.5). He was sentenced to 17 years to life--15 to life for the second degree murder conviction (Pen.Code, § 190) and an additional two-year enhancement for the gun use conviction. Prior to his plea petitioner was given and waived all of his Boykin-Tahl rights and was advised the sentence would be 17 years to life for the offense. He was not advised of the parole consequences of his conviction prior to entry of his plea.

Within a few days after the entry of the plea, petitioner moved to withdraw his plea of guilty on the ground he was not advised of the parole consequences of the plea. The motion was denied. The trial court also denied a motion for a certificate of probable cause (Pen.Code, § 1237.5). Petitioner asked this court for a writ of mandate directing the trial court to issue a certificate of probable cause. We deemed the request for mandamus a petition for writ of habeas corpus and issued an order to show cause.

DISCUSSION

In Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086, the Supreme Court directed that "[i]n all guilty plea ... cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute, ..." The requirement extends only to the " 'primary and direct consequences' of his 'imminent conviction' " (People v. Searcie (1974) 37 Cal.App.3d 204, 211, 112 Cal.Rptr. 267, quoting from In re Birch (1973) 10 Cal.3d 314, 319-320, 110 Cal.Rptr. 212, 515 P.2d 12) and is not constitutionally required but is merely 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; In re Yurko (1974) 10 Cal.3d 857, 864, 112 Cal.Rptr. 513, 519 P.2d 561.)

The sentence in this case was imposed pursuant to Penal Code section 1168, subdivision (b), and Penal Code section 190. In addition to setting the term of "15 years to life" for second degree murder, section 190 provides that the defendant is entitled to good time/work time credits against the minimum term of 15 years, "but such person shall not otherwise be released on parole prior to such time." Thus, credits aside, the minimum term is 15 years plus, of course, the two years gun use enhancement.

In In re Jeanice D. (1980) 28 Cal.3d 210, 215, 216-217, 168 Cal.Rptr. 455, 617 P.2d 1087, the court held that the analogous term of "25 years to life" for first degree murder is an "indeterminate sentence with a minimum possible term of 25 years and a maximum potential term of life imprisonment ...." The term actually imposed may range from 25 years to life--in the case at bench from 15 years to life. Thus, petitioner herein will be eligible for parole after serving 17 years (15 plus 2 for firearm use), less any credits pursuant to Penal Code section 2930 et seq.

Section 3000 of the Penal Code mandates that the sentence include a period of parole to be added to the minimum term. It directs, "A sentence pursuant to Section 1168 or 1170 shall include a period of parole, unless waived, as provided in this section." At the time of the commission of the offense herein, section 3000 established a maximum period of parole for second degree murder of five years. (Pen.Code, § 3000, subd. (b).) ¹

The theory of parole under the former Indeterminate Sentence Law (prior to July 1, 1977) was that parole was part of the sentence and was exactly equal to the term to which a defendant was sentenced. It was an early release from the term to which a defendant was sentenced and thus was a benefit to a defendant.

Under the Determinate Sentencing Act, there is a mandatory period of parole after a person has served his term of imprisonment and is released to society. Parole is no longer an element affecting when a prisoner may be released from prison but is rather a condition upon and in addition to imprisonment, affecting his life after he is released.

While a sentence of 15 years to life has been characterized as indeterminate for the purpose of holding that a minor convicted of murder must be first referred to the California Youth Authority for evaluation pursuant to Welfare and Institutions Code section 707.2 (In re Jeanice D., supra, 28 Cal.3d 210, 215, 216-217, 168 Cal.Rptr. 455, 617 P.2d 1087) for parole purposes, a person in the position of petitioner herein is similarly situated to a person sentenced under the Determinate Sentencing Act. Thus, he must be held in prison for a certain minimum period, and then his eligibility for release on parole is at the discretion of the parole authorities. ² The minimum term is in reality a minimum parole release date.

Since the court was required to impose a period of parole upon petitioner in addition to the minimum term of 15 years plus 2 years for the enhancement, it is a direct and, pragmatically, an inexorable penal consequence of the plea that petitioner would be subject to a period of parole commencing sometime after he served his minimum term. The remote possibility that the parole board may permit an early release or waive parole does not detract from the real probability that a term of parole will be served. ³

Respondent relies upon the case of People v. Flores (1974) 38 Cal.App.3d 484, 113 Cal.Rptr. 272. In Flores, the defendant moved to withdraw his guilty plea on the ground that he had not been advised that as a resident alien the conviction might result in his deportation. On appeal from the trial court's denial of his motion to withdraw his plea, the Court of Appeal held that since deportation could be instituted only upon the order of the Attorney General of the United States, who retained discretion not to institute such proceedings, the possibility of deportation was a collateral consequence of the conviction. (Id., at p. 488, 113 Cal.Rptr. 272.) The test applied by the court in Flores was that if the consequence did not inexorably follow conviction, it was collateral. Applying that test to the instant case, since the trial judge is mandated to impose a period of parole after service of the sentence, the parole automatically follows service of the sentence, but is not inexorable in the strictest sense because the parole board may waive parole. However, the term "inexorable" cannot be interpreted to mean that the consequence must follow in all events and irrespective of how remote the contingency which may obviate it. For example, in Bunnell, the Supreme Court held that "... in appropriate cases [the defendant shall be advised of] the possibility of commitment pursuant to Welfare and Institutions Code, sections 3050, 3051, or 6302." (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 605, 119 Cal.Rptr. 302, 531 P.2d 1086; emphasis added.) Obviously, if the occurrence of a future event is only a "possibility," it is not "inexorable."

Further, by way of analogy, the Governor retains the power to commute sentences. (Cal.Const., art. 5, § 8.) Accordingly, there is always the remote possibility a sentence will not be fully served. The fact that such an unlikely contingency might occur does not eliminate the necessity of advising defendants of the range of punishment before they plead guilty.

It is argued that since petitioner was sentenced to be imprisoned for his life, any earlier release by way of parole is not an adverse consequence but a benefit to the prisoner. (See People v. Johnson (1977) 66 Cal.App.3d 197, 200, 135 Cal.Rptr. 756.) However, it is unrealistic to assume petitioner will serve a life term or a substantial part of the life term beyond the minimum term.

Though the purpose of parole is to provide a testing period for reintegration of the prisoner into society, the consequences of being on parole are penal. A parolee is, in a real sense, an "outside inmate." Parole entails a significant array of impositions and liberty curtailment, such as warrantless search and seizure and severe restrictions on travel and other conduct affecting practically every aspect of the parolee's life. Further, "prisoners on parole remain under legal custody and are subject to be returned to prison at any time." (In re Tucker (1971) 5 Cal.3d 171, 178, 95 Cal.Rptr. 761, 486 P.2d 657.) As the court said in In re Thomson (1980) 104 Cal.App.3d 950, 954, 164 Cal.Rptr. 99: "It is the purest sophistry to argue there is no increase in punishment. A determinate term followed by a...