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Court of Appeal:
Courts in Two Counties Can’t Rule on Resentencing Petition
Los Angeles Superior Court, in Granting Compassionate Relief, Lacked Jurisdiction, Fifth District Says, Because Later of Two Sentences Was Imposed by Kern Superior Court, Which Had Sole Authority to Provide or Deny Relief to Inmate
By a MetNews Staff Writer
The Fifth District Court of Appeal has held that the Los Angeles Superior Court—which in 1985 sentenced a murderer to 15 years to life plus seven years—was without jurisdiction when, on Sept. 30, 2024, Judge Ricardo R. Ocampo granted the defendant, who is suffering from cancer, a compassionate release from prison, pursuant to Penal Code §1172.2.
Acting Presiding Justice Donald R. Franson Jr. wrote the opinion, filed Monday, denying inmate Thomas Floyd Brissette’s petition for a writ of habeas corpus.
The California Department of Corrections and Rehabilitation (“CDCR”) had sent a notice both to the Los Angeles Superior Court and the Kern Superior Court that Brissette qualifies for compassionate release under §1172.2. In 1998, Brissette had pled guilty in the Kern County court to possession of a controlled substance by an inmate and was sentenced to eight years in prison, to be served consecutively to the sentence for murder.
Petition Denied
Kern Superior Court Judge David E. Wolf on Aug. 9, 2024, denied compassionate release.
Noting that the “current release plan” is for Brissette “to go into an independent living residence,” he pointed to the inmate’s 1979 conviction for raping his wife’s 14-year-old sister, and commented that he “has significant concerns about the other patients” in such a facility. He said:
“[F]rankly, having this fully ambulatory murderer, a child molester roaming in a facility of [this] type is an outrageously ridiculous plan. Because he’s fully ambulatory and has no qualms of taking advantage of vulnerable victims, he is not a suitable candidate for compassionate release.”
Ocampo’s Ruling
The Los Angeles Superior Court granted relief the following month. Ocampo, now the district court’s assistant presiding judge, said in a Sept. 30 minute order, in part:
“The Request for Compassionate Release pursuant to Penal Code section 1172.2 is granted.
“The Defendant/Prisoner has a serious and advanced illness with an end-of-life trajectory and shows no sign of risk or threat to public safety.”
The order was amended to specify:
“It is ordered that the previously imposed sentence be recalled in its entirety, which will result in the discharge of the above offender upon release from the California Department of Corrections and Rehabilitation’s jurisdiction.
“The California Department of Corrections and Rehabilitation shall release the prisoner within 30 calendar days to a location where access to care is available.”
‘Absurdity’ Noted
Franson wrote:
“The collective absurdity of the conflicting rulings based on a review of identical information, the novel legal issues implicated, the separate appellate paths involved, and the significant expenditure of judicial resources would be avoided if section 1172.2 is interpreted to mean that a single court is to resolve an inmate’s section 1172.2 petition.”
That court, he concluded, is the Kern Superior Court—not because it ruled before the Los Angeles Superior Court did but because it sentenced Brissette later. He explained:
“Each time an inmate receives a new term in multiple cases, the inmate’s sentence is considered to be a resentencing….The effect is that the latest court to impose a sentence on an inmate in a multiple case situation is considered to be the sentencing court.…The prior courts are no longer considered to be a sentencing court.”
He said in a footnote:
“Because it is an issue of first impression, and because no party has adequately argued that this writ should be decided through issue preclusion, we express no opinion as to the effect that issue preclusion may have in petitioner’s case.”
Single Court
In concluding that §1172.2 “mandates” that “a single court” hear a §1172.2 petition, Franson pointed out that the section refers to “court” in the singular and that its command that physical release be effected within 48 hours of the petition being granted would be frustrated if hearings in an additional county first had to be held.
He reasoned:
“To interpret section 1172.2 as permitting multiple courts to resolve compassionate release petitions would hinder section 1172.2’s legislative goals by creating an additional barrier to a subset of inmates who are otherwise eligible for compassionate release. This subset of inmates would have to present the same evidence and information to a second court and then wait additional time for the second court to conduct a hearing and then make a ruling. If the courts reach different conclusions after viewing the same evidence and information, then appeals and/or writ proceedings will ensue, and the inmate will remain in custody until those appeals or writs are resolved.”
Franson continued:
“It is possible that the inmate could die while awaiting resolution of his compassionate release petition in the same manner as described by section 1172.2’s author. Such a result forces an inmate to navigate a cumbersome legal process and would require California to continue to bear costly healthcare expenses, expend substantial amounts of judicial resources, and keep an inmate who meets the expanded criteria for release (at least according to one court) in prison. We cannot find that respondent’s interpretation furthers or is consistent with section 1172.2’s legislative purposes.”
Second Opinion
Monday’s opinion is the second one this year handed down by the Fifth District relating to Brissette.
On March 7, in an unpublished per curiam opinion, it affirmed Wolf’s denial of compassionate release.
Brissette on April 4 filed a petition for a writ of habeas corpus in the California Supreme Court. That same day, the high court ordered the secretary of the CDCR “to show cause, returnable before the Court of Appeal, Fifth Appellate District, why relief should not be granted on the ground Penal Code section 1172.2 is irreconcilable with Penal Code section 1170.1, subdivision (c).”
Sec. 1170.1(c) provides:
“In the case of any person convicted of one or more felonies committed while the person is confined in the state prison…and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison….”
It was based on that subsection that the CDCR took the view that a new term had started once the sentence for murder had been recalled.
No Irreconcilability
Disputing the high court’s initial assumption, Franson said “that section 1172.2 is reconcilable with section 1170.1(c).”
Under §1170.1(c), he pointed out, where a new offense is committed in prison, there is an exception to a more lenient general rule relating to consecutive sentences; the full consecutive sentence must be served.
The justice advised that “[t]he fully consecutive sentence imposed under section 1170.1(c) for an in-prison offense is often called a ‘Thompson term,’ in reference to In re Thompson,” decided in 1985 by the Fifth District.
Franson went on to say that “simply because the section 1170.1(c) term is treated in effect as if it were a new principal term…does not mean that an inmate with a Thompson term is actually serving two sentences.”
He noted that the abstract of judgment in the Kern Superior Court case says:
“This case to be served consecutive to the L.A. County Case A532808 for a total term of 15 yrs. to life plus 2 yrs. plus 5 yrs. plus 8 yrs.”
Franson remarked:
“As can be seen, there is a total term that is identified….”
One Sentence
The sentences in Los Angeles Superior Court and in Kern Superior Court, he said, are merely elements of one sentence, he said, declaring:
“With the understanding that section 1172.2 mandates that a single court resolve an inmate’s compassionate release petition, and that a Thompson term is merely a separate and distinct component of a single total sentence, it is possible to harmonize section 1170.1(c) and section 1172.2.”
The case is In re Brissette, 2025 S.O.S. 1771.
Stephanie L. Gunther, whose law office is in Temecula, a city in Riverside County, represented Brissette on appeal. She said yesterday that she “will definitely be seeking review in the California Supreme Court.”
She offered this view:
“What is particularly disturbing about this case is that Mr. Brissette was originally convicted of second degree murder in L.A. in 1985. That court granted his compassionate release.
“In Kern County, Mr. Brissette, was convicted of possession of methamphetamine in prison in 1998 (27 years ago). Understandably, all prison offenses are more serious than non-prison offenses; but if he had committed that same crime of possession of methamphetamine out on the street, it would be a misdemeanor only.”
She continued:
“Although we agree with much of the Court of Appeal’s analysis, we are very disappointed in this result.
I hope the Legislature will look at this result very closely. It seems to me that ‘the court’ that should conduct the compassionate release hearing should be ‘the court’ with the most skin in the game. Here, Los Angeles County clearly had the most at stake, as Mr. Brissette’s second degree murder conviction occurred in Los Angeles. Mr. Brissette’s crime of mere possession of methamphetamine occurred in Kern, but Kern’s ruling is the one being upheld while Los Angeles’s order granting compassionate release is ignored.
“As a practical matter, this result will also give certain countries, such as Kern County that is home to four prisons, somewhat of a monopoly on deciding who gets released on compassionate release, as the occurrence of Thompson terms (in prison offenses) is not an unusual or rare occurrence.”
She related:
“Thomas’s health is not improving, but he remains optimistic that justice will prevail. It has been an honor to get to know him and advocate for him. He has been an absolute gentleman and very appreciative of my efforts on his behalf.”
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