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Name: Berman v. Cate
Case #: E049552
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 08/19/2010

Parole consequences are not a permissible subject of plea negotiations. Petitioner entered into a plea negotiation whereby he was guaranteed a court-indicated sentence of three years in exchange for his guilty plea to two counts of Penal Code section 288, subdivision (a). At the change-of-plea hearing, petitioner submitted a change of plea form setting forth the maximum possible term of ten years in state prison for the charged offenses, and the agreed-upon three-year prison term. The form also included a pre-printed provision advising that a three year period of parole would follow the expiration of any term of imprisonment. Upon petitioner’s completion of the prison term, the Department of Corrections and Rehabilitation informed him that his parole term was increased to five years. Petitioner filed a petition for writ of mandate seeking specific performance of the plea negotiation, with an allegation that it included a guarantee of three years parole. Initially, the appellate court observed that although the better method for seeking relief would have been with a petition for writ of habeas corpus, petitioner was not barred in seeking relief via a writ of mandate. It then found that there was no evidence to support appellant’s claim that the length of the parole term was a subject of the plea negotiation. At most, the pre-printed statement on the change-of-plea form was only an advisement of one of the consequences of the plea and not a term which the parties had negotiated. If it was a misadvisement, petitioner was entitled to relief only if he established prejudice (for example, that he would not have entered into the bargain if he had known the true period of parole), which was not present on this record. Even if petitioner had been able to establish that the parole period was a term of the negotiation, it would have been an invalid term for which petitioner’s remedy would have been withdrawal of plea, and not specific performance. The prosecution and the criminal court do not have unfettered discretion in determining the subject matter of a plea bargain and are limited to powers legally available to the court. The trial court is authorized neither to determine whether parole should be served, or the length of the parole period as that is the province of the Board of Prison Terms.