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Trial Court Must Order Compassionate Release of Murderer Who Is Debilitated, Moribund
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has directed a trial court to order the compassionate release from prison of a murderer who has less than six months to live and is severely debilitated, declaring that a judge abused his discretion in denying relief based on speculation that the inmate, a gang member, might, if freed, cause others to commit crimes.
Justice Frank J. Menetrez authored the unpublished opinion, filed Wednesday. It reverses San Bernardino Superior Court Judge Alexander R. Martinez’s Aug. 18, 2023, order denying the petition of Tyshawn Michael Lewis for release pursuant to Penal Code §1172.2.
That section creates a presumption in favor of the release of persons with certain diseases, which includes amyotrophic lateral sclerosis, also known as “Lou Gehrig’s Disease.”
Trial Judge’s Rationale
The presumption is overcome, Martinez ruled, in light of Lewis’s “violent criminal history and still ongoing current association with violent criminal street gang,” rendering him “an unreasonable risk of danger to public safety.” He noted that a diagnostic report made last May by the state Department of Corrections and Rehabilitation indicates that Lewis “does retain the capacity to commit or to influence others to commit criminal acts that endanger public safety.”
Lewis was convicted of first degree murder in 2022 and sentenced to 75 years to life in prison.
Menetrez wrote:
“We agree with the trial court’s assessment that Lewis’s physical limitations notwithstanding, Lewis’s ability to speak made it possible for him to commit a super strike offense. By speaking, Lewis could solicit or aid and abet a homicide offense or an attempted homicide offense….However, Lewis’s mere capacity to engage in such conduct has no tendency to prove that it is likely, let alone that there is an unreasonable risk, that he will actually engage in such conduct. The record contains no evidence that Lewis has ever solicited or directed anyone to commit any crime. The record does not even contain evidence that Lewis has ever acted in concert with anyone in the commission of any crime. In the absence of such evidence, the evidence that Lewis retains some ability to speak has no tendency to prove that there is an unreasonable risk that he will commit a super strike by soliciting or aiding and abetting homicide or attempted homicide.”
Nature of Crime
He continued:
“That deficiency in the evidence is not remedied by the circumstances of Lewis’s most recent offense, his lack of remorse, or his criminal history. Lewis has convictions for firearm possession, driving under the influence, battery, burglary, and murder. His disciplinary history also shows that during previous periods of incarceration he had numerous rules violations. But again, there is no evidence that he has ever solicited or directed anyone to commit any crime (or to commit any rule violation while incarcerated) or even acted in concert with anyone in committing any crime. If Lewis is released, it is possible that for the first time in his life he will use his ability to speak to solicit or aid and abet a homicide or attempted homicide. But the same bare possibility exists for anyone who has any ability to communicate. Lewis’s criminal and disciplinary history does not reveal any prior tendency to engage in such conduct, so it cannot support a reasonable inference that he poses an unreasonable risk of engaging in such conduct in the future.”
A tentative opinion was issued on Dec. 8 indicating an intent to order Lewis’s release. At oral argument on Tuesday, the Office of Attorney General stipulated that if the court adopted the tentative opinion as its decision, the remittitur could be issued immediately, which the court did.
The case is People v. Lewis, E082085.
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