Metropolitan News-Enterprise


Monday, April 27, 2020


Page 1


Appeals Court Mandates Release of Murderer Dying of Cancer

Panel Says Judge Incorrectly Determined, Independently, That Child-Slayer Would Pose Public Risk If Freed, Rather Than Sizing Up Whether ‘Some Evidence’ Supports Parole Board’s Determination


By a MetNews Staff Writer


Div. Three of the Fourth District Court of Appeal has directed the Orange Superior Court to immediately vacate its April 3 order denying a compassionate release to a moribund inmate who was convicted of second degree murder in 1994, and to advise prison officials that he is to be set free.

Thursday’s decision is the second one by the appeals court in the past six weeks relating to Brian John Laudenback, a child-slayer who was diagnosed in October as being unlikely to live any longer than this month. It finds one of the grounds for denying a release to be far-fetched in light of the current epidemic.

The panel, in an unpublished “By the Court” opinion, declared that “[i]n the interest of justice, the opinion in this matter is deemed final as to this court forthwith, and the clerk is directed to issue the remittitur forthwith.” The trial court is to act no later than today in vacating the sentence of Brian John Laudenback and to fax to the California Men’s Colony, where Laudenback is incarcerated, either an amended abstract of judgment or the court’s minute order.

There’s one proviso: that the release is to take place only if moving Laudenback “does not jeopardize” his health. He is otherwise to be taken, by today, “to a location where access to care is available.”

Wrong Standard

The panel—comprised of Presiding Justice Kathleen E. O’Leary and Justices Raymond J. Iola and Thomas M. Goethals—said that Orange Superior Court Judge Cheri T. Pham employed the wrong standard in denying relief. She determined, for herself, that there is “some evidence” Laudenback would pose a danger to society if released, rather than assessing—as the panel said was legally required to—whether there is “some evidence” supporting the Dec. 17 finding by the Board of Parole Hearings (“BPH”) that he would not be a danger.

Martinez v. Board of Parole Hearings, a 2010 decision by the Third District Court of Appeal, is quoted in Div. Three’s opinion as saying:

“[W]e must uphold BPH’s decision if it is supported by some evidence viewed in the light most favorable to the decision.”

Thursday’s opinion observes:

“Here, there’s no indication the trial court reviewed or even considered the BPH’s decision.”

Seeking Employment

One reason Pham pointed to for believing Laudenback would pose a danger is a statement he made in interviews with the Department of Corrections and Rehabilitation and BPH that, if released, he would hope to find employment.

The opinion comments:

“[T]he trial court’s belief petitioner, while suffering from a terminal illness with less than six months to live, who was deteriorating, becoming weaker, and unable to lift more than 19 pounds, and experiencing shortness of breath and reduced stamina, poses a threat to public safety because he might seek employment, strains credulity. Under normal circumstances, it is unlikely petitioner could obtain gainful employment in his physical condition. In the midst of ‘the current state of emergency due to the COVID-19 Pandemic,’ it is extremely unlikely. This was an abuse of discretion.”

2019 Diagnosis

A medical diagnosis of Laudenback last October indicated he would be expected to die from bladder cancer within six months. BPH proclaimed on Dec. 17 that Laudenback would pose no danger to the public if he were released and forwarded its recommendation to the Orange Superior Court for a recall of the sentence.

Penal Code §1170 provides that “[w]ithin 10 days of receipt” of such a recommendation, “the court shall hold a hearing to consider whether the prisoner’s sentence should be recalled.” However, Orange Superior Court Judge Kimberly Menninger did not hold a hearing but, acting upon the matter in-chambers, denied relief on Dec. 23.

Div. Three, in a March 13 opinion by O’Leary, ordered that a hearing be held, declaring:

“Section 1170(e)(3), is very clear. It says shall. Shall means must.”

However, at that point, a hearing could not have taken place until after May 13, when a remittitur was scheduled to be issued, reinvesting the Superior Court with jurisdiction—a point after it was anticipated that Laudenback would have succumbed.

The panel was powerless to render its opinion to be “final forthwith.” California Rules of Court, rule 8.366(a), provides that a court of appeal, in deciding an appeal (as opposed to acting on a writ petition), may “direct immediate issuance of a remittitur only on the parties’ stipulation” or one other circumstance that did not apply.

On March 18, Div. Three 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.”

The Office of Attorney General that day so stipulated, and the following day, a hearing was set for April 3, to be presided over by Menninger. Instead, the hearing, conducted via videoconferencing,  was handled by Pham, who announced that “the Court does not have any confidence that” Laudenback “will not pose a threat to public safety at this time,” and denied the motion.

Laudenback on April 16 filed a petition for a writ of habeas corpus. Div. Three acted the following day, specifying that it was treating the petition as one seeking a writ of mandate, and ordering, by telephone call and email, that opposition, if any, be filed by the Office of Attorney General by last Monday.

Opposition was provided on that day.

The opinion on Thursday scoffs that the argument by the Office of Attorney General that “[t]here is ample support for the trial court’s finding that Petitioner’s release would pose a threat to public safety” is one which “misses the point.” It says that “we explained” in the March 13 opinion that “the trial court’s role was not to consider and make its own findings” but to review the “BPH’s decision for some evidence, and not de novo.”

The case is Laudenback v. Superior Court, G059035.


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