Trial courts do not have authority to terminate parole under Penal Code section 1385. VonWahlde entered into a plea agreement that resolved both a parole revocation case and a new case. He stipulated to five years in prison for the new case to run concurrently with the parole revocation case. The trial court purported to exercise its discretion under section 1385 to order parole terminated because the court thought it served no purpose to keep VonWahlde on parole while he was serving a five-year prison term. The People appealed. Held: Order vacated. The 2011 Realignment Act transferred jurisdiction from the Board of Parole Hearings to the superior courts to hear petitions to revoke parole. (Pen. Code, § 3000.08, subd. (a).) Section 1203.2 gives superior courts authority to revoke, modify, or terminate supervision of parolees, but subdivisions (a) and (b) state that “the court shall not terminate parole pursuant to this section.” Section 1385 gives superior courts authority to strike a “criminal action or part thereof.” Here, the Court of Appeal concluded that section 1385 cannot be invoked to terminate parole because a period of parole is not a criminal action or part thereof. Parole is a statutorily automatic consequence in every case with a prison term; it is not something that needs to be charged or alleged. Since there is nothing that is charged or alleged, “there is nothing to order dismissed” under section 1385. The order terminating parole must be vacated and the matter remanded with directions to reinstate the parole violation finding and impose a term of custody on the parole violation consistent with the plea bargain made by the parties.
The People possessed the statutory authority to appeal from the trial court’s order terminating parole. VonWahlde argued that the People lacked the authority to appeal. The Court of Appeal disagreed. Section 1238 gives the People a right to appeal in certain circumstances. Subdivision (a)(5), invoked by the People in this case, provides that the People may appeal from an “order made after judgment, affecting the substantial rights of the people.” VonWahlde argued that the parole termination order was not one made “after judgment” because it was made under a different case number than the original case in which judgment was pronounced. However, the fact a superior court assigns a parole revocation case its own number does not somehow disconnect it from the underlying case such that a parole termination order should not be deemed an order made “after judgment.” VonWahlde also argued that the People’s substantial rights could not possibly be affected by the court’s order terminating parole because his entire parole term would run while he was serving his prison term in the new case. However, cutting short a period of parole affects the People’s substantial rights because it affects the underlying judgment and implicates the protection of public safety. There is no guarantee that VonWahlde will not be released from prison early, before his parole term would have expired, especially since the state’s sentencing laws are in a state of flux (e.g., Prop. 47, Prop. 36, and Realignment).
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F069946.PDF