People v. McMillion

In People v. McMillion (1992) 2 Cal.App.4th 1363, the People charged the defendant with burglary and petty theft with a prior conviction. The court gave an indicated disposition of probation or a low term of 16 months of imprisonment upon the defendant's plea of guilty. (McMillion, supra, 2 Cal.App.4th at p. 1366.) The court never informed the defendant he would be subject to a period of parole upon completion of any prison term. (Id. at p. 1367.) After the defendant entered his plea, the court permitted him to be released over the Christmas holidays, with the understanding that should he fail to appear for sentencing he would be sentenced to 16 months of imprisonment. The defendant failed to appear. The court sentenced him to 16 months' incarceration, " 'plus the applicable parole period.' " (Id. at p. 1366.) The defendant contended on appeal that a parole-free release from incarceration was an enforceable term of his plea agreement such that he was entitled to specific performance. (Id. at pp. 1366, 1368.) The appellate court held that the trial court's failure to inform the defendant of the mandatory term of parole following his incarceration was a misadvisement rather than a specifically enforceable term of his plea. (McMillion, supra, 2 Cal.App.4th at p. 1369.) Hence, the defendant would be entitled only to the remedy of withdrawing his guilty plea upon a showing of prejudice. (Id. at p. 1370.) The Court noted that "the trial court is authorized neither to determine whether a parole period shall be served nor to prescribe its duration; that is the province of the Board of Prison Terms. Since there is no legal mechanism for negotiating a plea agreement containing no or reduced time on parole, the imposition of parole at sentencing simply cannot be regarded as a breach of such an agreement. Instead, the trial court's error can only be viewed as a failure to advise appellant of the direct legal consequences of his guilty plea, which cannot be set aside unless the error was prejudicial to appellant. Accordingly, the remedy of specific enforcement by striking the parole period is unavailable to appellant." (Id. at p. 1369.)