Can a Person on Lifetime Parole Be on Probation?

Judges are applauded when they demonstrate compassion and empathy for criminal defendants.  However, sometimes, a judge may just go too far, as the following summary of a recent California Court of Appeals for the Third District exemplifies.

In 1996, a jury convicted Robert L. Escobedo of second degree murder (Penal Code § 187) and discharging a firearm into an inhabited dwelling (Penal Code § 246).  The jury also found true sentence enhancement allegations for personal use of a firearm (Penal Code § 12022.5(a)).  Escobedo was sentenced to an aggregate prison term of 19 years to life.

In June, 2016, Mr. Escobedo was released from prison and placed on parole.  Because his sentence for murder included maximum terms of life in prison, he was placed on lifetime parole (Penal Code § 3000.1(a)(1)).

As a lifetime parolee, Escobedo faced consequences for violating parole that do not apply to people who are on parole for a defined period such as two years.  Specifically, if a judge determines that a person who is on lifetime parole “has committed a violation of law or violated his or her conditions of parole . . . shall be remanded to the custody of the Department of Corrections and Rehabilitation and the jurisdiction of the Board of Parole Hearings for the purpose of future parole consideration.”  Penal Code § 3000.08(h).

On September 29, 2020, the Alameda County District Attorney filed a criminal complaint charging Mr. Escobedo with two counts of forcible oral copulation of a nonconsenting adult, Jane Doe (Penal Code § 287(c)(2)(A)) and two counts of making criminal threats (Penal Code § 422(a)). 

The following day, the District Attorney filed a petition for revocation of Escobedo’s parole due to the criminal violations alleged in the complaint.  This petition did not state that Escobedo was on lifetime parole, even though the District Attorney used a form petition that contained a box to be checked when the supervised person in on lifetime parole.

On October 1, 2020, the CDCR filed a petition for revocation of Escobedo’s parole, which did reflect that Mr. Escobedo was on lifetime parole.  The report detailed how Mr. Escobedo had not only allegedly committed forcible oral copulation and criminal threats, as referenced in the complaint, but also battery of a spouse (Penal Code § 273.5(a)) and false imprisonment (Penal Code § 236).  The report also said that Mr. Escobedo drank alcohol for about ten days, which violated a special condition of his parole and that his alcohol consumption played a major role in the crimes.

The CDCR report also detailed Escobedo’s criminal history predating his murder conviction, five CDCR violations while in prison and one parole violation earlier for consuming alcohol and being drunk in public.

On August 22, 2022, the judge in Mr. Escobedo’s sex offense case allowed Mr. Escobedo to plead no contest to one count of violation Penal Code § 422 and placed him on three years of formal probation subject to a criminal protective order to protect the victim..  The People also agreed they would dismiss both parole revocation petitions.

About two months later, the CDCR, represented by the Attorney General of California, filed a petition in the California Court of Appeal for the First Appellate District for a writ of mandate, seeking review of the September 2022 order placing Mr. Escobedo on formal probation.  The CDCR alleged that it was unlawful for the judge to accept a negotiated plea deal in which the People withdrew the parole revocation petitions and asked for an order that the trial court adjudicate those petitions.

The First Appellate District granted the CDCR’s petition, finding that the trial court erred by dismissing the parole violation and revocation proceedings because if a court determines that a lifetime parolee has violated the conditions of parole, that person “shall be remanded to the custody of the Department of Corrections and Rehabilitation and the jurisdiction of the Board of Parole Hearings for the purpose of future parole consideration.”  This is not optional, the First District noted.

The law simply does not authorize probation for a lifetime parolee who is found to have again violated the law.