Monday, May 4, 2020
Court of Appeal:
Majority: Judge Must Order Release of Dying Inmate Who Poses No Danger Notwithstanding Statute Saying That Court Has ‘Discretion’; Dissent: ‘Eligibility’ for Release Doesn’t Mean ‘Entitlement’
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has held, in a 2-1 decision, that a judge who finds that a prison inmate who has less than six months to live and would pose no danger to the public if released must send that person home to die, notwithstanding language in the “compassionate release” statute that a judge “shall have the discretion to resentence or recall” the sentence.
Justice Carol D. Codrington wrote the majority opinion, filed Thursday, and joined in by Acting Presiding Justice Douglas P. Miller. The only discretion she saw was choosing between a recall of the sentence—thus nullifying it—or a resentencing, which could include conditions of probation.
Justice Frank J. Menetrez dissented, saying that the majority confuses “eligibility for compassionate release” under Penal Code §1170(e) with “entitlement,” maintaining that a judge has discretion, under the statute, to deny a release.
Riverside Superior Court Judge John D. Molloy did just that in July 2019 in acting on the application for release by Tony Flores Torres, convicted in 1995 of first-degree murder. The majority’s opinion reverses that order.
Wording of Statute
Sec. 1170(e) provides:
“(1)…[I]f the secretary or the Board of Parole Hearings or both determine that a prisoner satisfies the criteria set forth in paragraph (2), the secretary or the board may recommend to the court that the prisoner’s sentence be recalled.
“(2) The court shall have the discretion to resentence or recall if the court finds that the facts described in subparagraphs (A) and (B)… exist:
“(A) The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
“(B) The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.”
Trial Judge’s Reasoning
In denying Torres’s motion for relief, Molloy said it was “a discretionary call,” observed that “that some people are going to die in prison,” and noted that Torres is “a brutal person” who expressed remorse only recently and, he found, deserves no sympathy.
He said of moribund inmates, in general:
“Some of them deserve compassionate relief. Some of them don’t. It’s not mandatory, which means, I have to differentiate between those folks.”
In differentiating between those who deserve mercy and those who do not, he said, with respect to Torres:
“Not this person.”
Codrington reasoned that because the Legislature categorically excluded certain inmates from consideration for compassionate relief, the remaining inmates must be granted freedom if a judge finds both that they are apt to die within six months and are not dangerous. She explained:
“In enacting section 1170, subdivision (e), the Legislature decided which inmates deserve a compassionate release and the circumstances that would justify one. The Legislature specifically excluded inmates serving a death sentence or life without the possibility of parole from receiving a compassionate release, as well as those who are convicted of first degree murder for killing a peace officer.”
The jurist continued:
“In doing so, the Legislature determined that those inmates do not deserve a compassionate release and should serve their sentences in prison. By excluding only those inmates from receiving a compassionate release, the Legislature indicated that all other inmates are entitled to one so long as they satisfy section 1170, subdivision (e)’s criteria….Whether an inmate is remorseful or whether the trial court believes the inmate deserves to remain incarcerated for reasons unrelated to public safety are not among those criteria.”
Third District Opinion
Codrington cited the 2010 Third District Court of Appeal opinion in Martinez v. Board of Parole Hearings in which it was held that the Board of Parole Hearings must recommend that a superior court order that an inmate be freed where that person is expected to die within six months and is not deemed dangerous. She wrote:
“Although Martinez addressed the Board’s discretion, its reasoning applies equally to the trial court’s discretion under section 1170, subdivision (e)(2). Just as the statute’s purpose of saving the state’s resources is ‘thwarted’ when the Board declines to recommend granting a compassionate release to an inmate who satisfies section 1170, subdivision (e)(2)’s requirements, the statute’s purpose is likewise thwarted when a trial court denies an inmate a compassionate release even though he or she is statutorily qualifies for one. In both situations, the result is the same—an inmate the Legislature sought to release as a compassionate, cost-saving measure remains incarcerated, expending the state’s resources that section 1170, subdivision (e) was enacted to preserve.”
“To deny an inmate’s request for a compassionate release because the trial court thinks the inmate does not deserve to be released, even if he or she satisfies section 1170, subdivision (e)’s requirements, circumvents the Legislature’s intent underlying the statute and hinders its goals.”
It was ordered that the Riverside Superior Court “enter a new order forthwith granting defendant’s motion for a compassionate release.” A superior court cannot act until jurisdiction is reinstated in it upon issuance of a remittitur which normally follows a 30-day period for seeking review in the California Supreme Court—but, pointing to an exception, the opinion says:
“The remittitur shall issue within 30 days, unless the parties stipulate to its immediate issuance.”
The Office of Attorney General did so stipulate in March after Court of Appeal’s Fourth District’s Div. Three decided a case against it that was brought under the “compassionate relief” statute.
Menetrez said in his dissent:
“In my view, the trial court correctly interpreted the statute as conferring discretion on the court to deny relief even if the court found the eligibility criteria were met.”
Her noted that the Legislature used the words “recall” and “resentence” interchangeably and “treating the distinction between recall and resentencing as having no importance in this context, the Legislature made clear that the court has discretion to grant relief (by resentencing or recalling the sentence; it does not matter which) or to deny it.”
Arguing that Molloy’s order should be upheld, he wrote:
“If the court’s decision is reasonable, we must affirm it, even if we might not have made the same decision ourselves in the first instance.”
He said that if Molloy, in denying relief, explained “I just can’t stand old people” or “I’ve always hated guys named ‘Tony,’ ” there would be an abuse of discretion and reversal would be warranted.
Reasonable Grounds Stated
“But the court said nothing so offensive, arbitrary, capricious, or patently absurd. Rather, the court expressed reasonable grounds for denying compassionate release, namely, appellant’s exceptionally violent history, the extreme callousness of his violent conduct, and his 11th-hour expressions of remorse, which the court reasonably concluded were insincere and opportunistic. I do not know whether I would have made the same decision in the first instance. But the trial court’s exercise of its discretion was reasonable, so we must affirm.”
Menetrez said is a footnote:
“Because the majority opinion deems such considerations categorically irrelevant to the trial court’s decision on a petition for compassionate release, the opinion does not mention the extensive information before the trial court concerning appellant’s violent history, callous nature, and lack of remorse. The respondent’s brief aptly summarizes it as follows: Appellant is serving ‘a life sentence for the murder of his brother-in-law and had an extensive criminal record. He had stabbed people, pointed guns at people, fired shots at people, and terrorized those around him for most of his life....He even killed the family cat because it ate off a plate.... The prosecutor argued appellant was extremely impulsive, mentally unstable, dangerous, and lacked any insight into why he behaved the way he did.’ Appellant did not express remorse for his murder of his brother-in-law until after being diagnosed with cancer in 2018.”
Codrington, in responding to the dissent, remarked:
“Specifically, the dissent does not cite, and we cannot locate, any authority that indicates the trial court may deny a statutorily eligible inmate’s request for a compassionate release simply because, in the trial court’s view, the inmate does not deserve one. If that were an appropriate consideration, then the trial court’s discretion would be circumscribed only by the trial court’s subjective opinion of who deserves a compassionate release. In other words, the trial court’s discretion would be ‘unfettered.’ ”
The case is People v. Torres, 2020 S.O.S. 2084.
April, 2019 Report
Torres applied for compassionate relief, according to Codrington’s opinion, “[a]round April 2019.” A Department of Corrections and Rehabilitation report in April 2019 said that Torres, 76, was “currently residing in the hospice unit” of the prison, having been diagnosed in February “with widely metastatic prostate cancer.”
Molloy made his ruling in July of last year. A notice of appeal was filed July 16, and Torres on Sept. 10 requested an expedited resolution.
Div. Two on Sept. 30 responded:
“Once briefing is complete, the court will assign this case for preparation of an opinion as soon as the court’s calendar will allow.”
Oral argument was held Feb. 4. Friday’s opinion was issued more than a year after board physicians determined that Torres had less than six months to live.
Div. Three of the Fourth District Court of Appeal on April 23 ordered the compassionate relief of a man who was convicted in 1995 of killing a 22-month-old boy left in his care. He had been diagnosed on October of 2019 as being apt to die within six months.
The grandfather of the slain infant said in an email to the METNEWS on Tuesday:
“Our family was notified yesterday that the baby killer of my grandson will be released this week without a parole officer and basically unsupervised into my daughters neighborhood in Orange County, apparently to his mother in Costa Mesa!”
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