People v. Wiley

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. 1

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