California, United States of America
The following excerpt is from Moser, In re, 24 Cal.Rptr.2d 723, 6 Cal.4th 342, 862 P.2d 723 (Cal. 1993):
Here, the remedy that the People assert should be afforded petitioner for the trial court's erroneous statement regarding the period of parole is a reduction of petitioner's parole term to a period not to exceed five years. The problem with this suggested remedy is that it violates section 3000.1, subdivision (a). That statute expressly states that for a second degree murder conviction "with a maximum term of life imprisonment, the period of parole, if parole is granted, shall be the remainder of the inmate's life." Unlike the situation in People v. Walker, supra, 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861, in which the remedy fashioned--reduction of the restitution fine rather than withdrawal of the plea of guilty--was within the statutory framework, here the People's suggested remedy of reducing the number of years that petitioner would serve on parole is not authorized by the parole statute at issue. The superior court recognized that when, at the hearing on the order to show cause in this writ proceeding, it rejected the People's suggested remedy as "creative sentencing" that would work "a subversion of the appropriate penal statute." I agree with the superior court that in this case allowing petitioner to withdraw his guilty plea is the only available remedy.
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