Thursday, March 26, 2020
By a MetNews Staff Writer
A hearing is scheduled for 9 a.m. on April 3 in Orange Superior Court in the matter of whether Brian John Laudenback, convicted in 1995 of the second degree murder of a 22-month-old boy, is to be granted a compassionate release in light of the prognosis of doctors in October of last year that he would be dead within six months from bladder cancer.
The scheduling of the hearing is in response to recent action by Div. Three of the Fourth District Court of Appeal, speeding up the proceedings. At an earlier point, it appeared that no hearing would be held until a time when, if the doctors are right, the prisoner will have died.
Laudenback sought the release last year pursuant to Penal Code §1170(e) which authorizes the recall of a sentence if a prison inmate is terminally ill and would pose no threat to public safety. The statute provides that the sentencing court “[w]ithin 10 days of receipt of a positive recommendation” from the Board of Parole Hearings “shall hold a hearing to consider whether the prisoner’s sentence should be recalled.”
No Hearing Held
However, Orange Superior Court Judge Kimberly Menninger, acting on the board’s recommendation for release on Dec. 23, 2019, three days after the court received it, denied the request in the course of “chambers work” without holding a hearing. Menninger is supervising judge of the Central Felony Panel.
On Dec. 31, Laudenback filed a notice of appeal, and on Jan. 2, Div. Three granted calendar preference in the matter, indicating that no extensions would be granted “absent a showing of extraordinary good cause.” The appellant’s opening brief was filed on Jan. 14.
The Office of Attorney General on Feb. 13 filed a request for an extension of time within which to file a respondent’s brief, which the appeals court denied the following day, saying:
“It has now been 30 days since appellant’s opening brief was filed. Respondent’s application for an extension does not address all of the factors set forth in California Rules of Court, rule 8.63(b). It merely recites a list of matters evidencing the busy schedule of the assigned deputy attorney general. This is insufficient to establish extraordinary good cause for an extension of any length in a case like this one, let alone the 30 days requested.”
The Attorney General’s Office filed its brief on Feb. 26; a reply brief was filed the next day.
Oral argument was waived.
Appeals Court’s Opinion
On March 13, Div. Three reversed the postjudgment order in an unpublished opinion by Presiding Justice Kathleen O’Leary who, wrote:
“Section 1170(e)(3), is very clear. It says shall. Shall means must….The trial court was statutorily required to conduct a hearing to consider whether Laudenback’s sentence should be recalled. Instead, the court denied his request for compassionate release during ‘chambers work.’ This was error. Needless to say, chambers work is not legally equivalent to a hearing. The parties did not appear and did not have an opportunity to argue their respective positions. The Attorney General concedes the court erred and the matter must be remanded for a hearing.”
The opinion declares:
“The trial court is ordered to conduct an expedited hearing to determine whether Laudenback’s sentence should be recalled and he be granted compassionate release.”
However, as a March 16 METNEWS article pointed out, the remittitur (restoring jurisdiction in the Superior Court) was scheduled to be issued May 13, after it was expected that Laudenback will have succumbed, unless the parties were to stipulate to an immediate issuance.
The Court of Appeal on March 18 modified its opinion to add a footnote, saying:
“Based on the time sensitivity of this matter, and the Attorney General’s concession a hearing is required, we invite the parties to stipulate to the immediate issuance of remittitur.”
That day, the parties stipulated to an immediate issuance of the remittitur, and the clerk was directed by the court to carry that out.
On March 19, the April 3 hearing was set, to be presided over by Menninger.
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