Filed 6/28/19
                              CERTIFIED FOR PUBLICATION

                  IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                       DIVISION THREE


THE PEOPLE,
        Plaintiff and Respondent,
                                                     A154248
v.
BARRY WILLIAM WILEY,                                 (City & County of San Francisco
                                                     Super. Ct. No. CT18002539)
        Defendant and Appellant.

        Does Penal Code section 13851 authorize a trial court to dismiss a parole
revocation petition “in furtherance of justice”? No. The authority to dismiss conferred
by section 1385, subdivision (a) is addressed to the criminal charges or allegations in the
indictment or information, so we reject defendant Barry Wiley’s assertion that the trial
court abused its discretion when it declined to dismiss his parole violation petition. We
therefore affirm the order revoking Wiley’s parole and remanding him to the California
Department of Corrections and Rehabilitation (CDCR).
                                        BACKGROUND
        In 1991 Wiley was convicted of offenses including first degree murder, second
degree robbery, and kidnapping. He was sentenced to 26 years to life in prison.
        On March 9, 2017, Wiley was released on parole. Between August and November
2017 he violated his parole conditions and the rules of Geo Care Parolee Services Center
(Geo Care), his transitional housing and sober living environment program, by drinking
alcohol on four occasions. He also failed to register as a sex offender as required under
section 290.


        1
            Further statutory citations are to the Penal Code.
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       On February 11, 2018, Wiley violated parole by returning to Geo Care after his
midnight curfew. He had previously been referred to multiple programs for substance
abuse and sex-offender treatment, medical and mental health care, and other services, but
failed to make use of them. Wiley’s parole agent considered intermediate sanctions for
the curfew violation such as additional referrals to outpatient or residential treatment
facilities but concluded such measures would be insufficient in light of Wiley’s poor
performance on parole. According to the parole violation report, Wiley’s behavior was
“destructive to maintaining his sobriety. His less than stellar compliance while on parole
supervision has exhausted the multiple service providers that have attempted to provide
him the multidisciplinary support, guidance and direction to address his dual diagnosis,
[so] it appears that a referral to the Court is appropriate at this time.” Wiley’s failures to
follow Geo Care rules also resulted in his termination from the program.
       The Division of Adult Parole Operations filed a parole revocation petition based
on three grounds: (1) the curfew violation; (2) Wiley’s failure to remain in a transitional
housing program and sober living environment for at least six months; and (3) his failure
to obey his parole agent’s directive to stay out of Golden Gate Park.
       After a contested evidentiary hearing the court found that Wiley violated parole by
returning to Geo Care after curfew. It found the remaining two allegations were
unsubstantiated.
       Wiley argued reincarceration was an excessive sanction for the curfew violation
and urged the court to dismiss the parole revocation petition in the interest of justice
pursuant to section 1385. The court said it did not disagree as a factual matter, but that it
lacked the legal authority to dismiss the petition. It explained: “my understanding of
Penal Code section 3000.08(h) and the provisions around that and realignment statutes
overall is what I said is that—so as to other petitions to revoke parole, the Court has
much more authority. And as to lifers, the legislature gave the authority, once there’s any
violation, essentially, and a petition’s been filed and a finding—well, and a petition’s
been filed and the evidence supports a finding of a violation, that I have to find a
violation and return the parolee to CDCR and the jurisdiction of BPH for a determination

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of how to respond to that violation. Is that what I want to do? No. And, you know,
that’s on the record. But it’s what I feel like I have to do.”
       The court revoked Wiley’s parole and remanded him to the CDCR’s custody.
This appeal is timely.
                                       DISCUSSION
       For most parolees, the court may modify or revoke parole upon finding a violation
if the interests of justice so require. (§§ 1203.2, 300.08, subd.(f).) In doing so, the court
may order the parolee to serve up to 180 days in jail. (§ 3000.08, subds. (f), (g).) But
when a parolee subject to supervision under section 3000.1 (for murder offenses) or
section 3000, subdivision (b)(4) (for certain sex offenses) has violated parole, he or she
“shall be remanded to the custody of the [CDCR] and the jurisdiction of the Board of
Parole Hearings for the purpose of future parole consideration.” (§ 3000.08, subd.(h).)
       Section 1385, subdivision (a) provides: “The judge or magistrate may, either of his
or her own motion or upon the application of the prosecuting attorney, and in furtherance
of justice, order an action to be dismissed.” Wiley contends this provision authorized the
trial court to dismiss the parole revocation petition, and, therefore, that the court’s failure
to recognize its power to do so requires reversal and remand for an informed exercise of
discretion. The Attorney General asserts parole revocation proceedings are not “actions”
within the meaning of section 1385, and therefore that the order should be affirmed. The
issue is one of statutory construction subject to independent review. (People v.
VonWahlde (2016) 3 Cal.App.5th 1187, 1196 (VonWahlde).)
       VonWahlde addressed a closely related issue: whether section 1385 authorizes the
trial court to terminate a defendant’s parole term when sentencing him in another case.
The appellate court concluded it does not. It explained: “ ‘Section 1385 permits a court,
“in furtherance of justice, [to] order an action to be dismissed.” [Citation.] Although the
statute literally authorizes a court to dismiss only an entire criminal action, [the California
Supreme Court has] held it also permits courts to dismiss, or “strike,” factual allegations
relevant to sentencing, such as those that expose the defendant to an increased sentence.
[Citations.] However, the court’s power under section 1385 is not unlimited; it reaches

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only the “individual charges and allegations in a criminal action.” [Citation.] Thus, a
court may not strike facts that need not be charged or alleged such as the sentencing
factors that guide the court’s decisions whether to grant probation [citation] or to select
the upper, middle or lower term for an offense.” (VonWahlde, supra, 3 Cal.App.5th at p.
1197.) “ ‘ “The only action that may be dismissed under . . . section 1385, subdivision
(a), is a criminal action or a part thereof.” [Citation.]’ [Citation.] A period of parole is
not a criminal action or a part thereof as contemplated by section 1385. Rather, it is ‘a
form of punishment accruing directly from the underlying conviction.’ ” (Ibid, quoting
In re Varnell (2003) 30 Cal.4th 1132, 1137 (Varnell).)
       The VonWahlde court expressed no opinion concerning whether a court may
dismiss a parole revocation proceeding, as opposed to striking a term of parole, under
section 1385. (VonWahlde, supra, 3 Cal.App.5th at p. 1198, fn. 6.) Faced squarely with
that question, we conclude section 1385 does not apply. Simply put, a parole revocation
proceeding is not an “action or a part thereof as contemplated by section 1385.” (Id. at p.
1197.) A criminal “action” is defined as “[t]he proceeding by which a party charged with
a public offense is accused and brought to trial and punishment.” (§ 683.) Parole
revocation petitions and hearings do not fit within that definition, as they occur after the
proceeding by which the defendant is brought to trial and punished. “[T]he revocation of
parole is not part of a criminal prosecution. . . . Parole arises after the end of the criminal
prosecution, including imposition of sentence.” (Morrissey v. Brewer (1972) 408 U.S.
471, 480, internal citation omitted; see Williams v. Superior Court (2014) 230
Cal.App.4th 636, 647, disapproved on another point in People v. DeLeon (2017) 3
Cal.5th 640, 653 (Williams).) Nor can such proceedings plausibly be classified as “part”
of an action, which for purposes of section 1385 means “charges or allegations in an
indictment or information.” (People v. Hernandez (2000) 22 Cal.4th 512, 523 [holding
sanity proceedings do not constitute an “action” or part thereof for purposes of section
1385, subdivision (a)]; Varnell, supra, 30 Cal.4th at p. 1137 [sentencing factors not
subject to section 1385 dismissal because they “are not included as offenses or
allegations in an accusatory pleading”; VonWahlde, supra, 3 Cal.App.5th at p. 1197.)

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The conclusion from these authorities that probation revocation petitions are not actions
or parts thereof for purposes of section 1385 is inescapable.
       Wiley disagrees. He relies on People v. Chavez (2018) 4 Cal.5th 771, 784
(Chavez) to argue a parole revocation proceeding is part of a criminal action because “the
procedure permits resumption of the defendant’s ‘punishment’.” But authorities such as
Varnell (sentencing factors) and VonWahlde (parole) show that the potential to affect
punishment does not convert a proceeding into an “action” for purposes of section 1385.
Chavez says nothing different. There, rather than construing the term “action” in the
provision, the Court addressed when an action may be dismissed. Specifically, Chavez
asks whether section 1385 authorizes trial courts to dismiss a criminal action after the
defendant has successfully completed probation. (4 Cal.5th at pp. 779, 780.) Under the
established principle that section 1385 does not authorize dismissals after a judgment has
become final, the Court reasoned that where the trial court suspends imposition or
execution of sentence and grants probation there is no final judgment, so it may dismiss
the criminal action throughout (although not after) the probationary period. (Id. at
pp.782-787.) Nothing in any of this suggests a parole revocation proceeding is an
“action” subject to dismissal under section 1385.2
       We understand the trial court’s concern about the result dictated by the statutory
scheme. Nonetheless, the Legislature’s directive is clear, and we are not at liberty to alter
it. “ ‘Courts must take a statute as they find it, and if its operation results in inequality or
hardship in some cases, the remedy therefor lies with the legislative authority.’”
(Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1697.)


                                       DISPOSITION
       The order revoking parole is affirmed.



       2
         Because we conclude section 1385 does not encompass parole revocation
petitions, we do not address Wiley’s further contention that no other statutes have
eliminated the power to dismiss them.
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                                                        _________________________
                                                        Siggins, P.J.


       WE CONCUR:


       _________________________
       Fujisaki, J.


       _________________________
       Wiseman, J.*




People v. Wiley, A154248

       *
        Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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Trial Court:                                   San Francisco City & County Superior
                                               Court


Trial Judge:                                   Honorable Joseph M. Quinn

Counsel:

Randall Conner, by appointment of the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Phillip J. Lindsay, Senior Assistant Attorney General,
Sara J. Romano, Supervising Deputy Attorney General, Michael G. Lagrama, Deputy
Attorney General, for Plaintiff and Respondent.




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