APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G. Connelly, Judge. Reversed in part and affirmed in part. (Super. Ct. No. 34200800015591CUWMGDS).
The opinion of the court was delivered by: Scotland, P. J.
CERTIFIED FOR PUBLICATION
While serving the third year of a sentence of 157 years to life for kidnapping a woman and committing violent crimes against her, including rape and other forcible sex acts, Steven C. Martinez was stabbed by another prison inmate. The stabbing lacerated Martinez's spinal cord, causing "immediate and complete quadriplegia." Due to his physical condition, Martinez later asked the Board of Parole Hearings (BPH) to recommend that his sentence be recalled and that he be granted a compassionate release from custody pursuant to Penal Code section 1170, subdivision (e). (Further section references are to the Penal Code unless otherwise specified.)
Section 1170 provides that BPH "may recommend" to the sentencing court that a defendant's sentence be recalled (§ 1170, subd. (e)(1)) and the defendant be released from custody (§ 1170, subd. (e)(9)) if, after judgment was originally imposed, the defendant has become terminally ill with an incurable condition that would produce death in six months, or has become permanently medically incapacitated with a medical condition rendering the defendant unable to perform activities of basic daily living and requiring 24-hour total care, and the condition is such that the defendant would not pose a threat to public safety if released from custody. (§ 1170, subd. (e)(2)(A), (B), (C).)
BPH denied Martinez's request, but the superior court issued a writ of mandate directing BPH to recommend to the sentencing court that Martinez's sentence be recalled. The superior court cited three reasons for its ruling: (1) BPH failed to make explicit findings as to whether Martinez meets the criteria in section 1170, subdivision (e)(2) for recall of sentence; (2) BPH considered "factors and criteria outside the scope of its authority," i.e., that Martinez's period of confinement should be proportionate to the seriousness of his crimes and that, because of the nature of his crimes and his continually abusive behavior in prison, an early release would not be in the interest of justice; and (3) BPH's denial of the request "lacks an evidentiary basis" because the evidence can be viewed "in only one way," namely, that Martinez is eligible for recall of sentence and release from custody.
BPH appeals, asserting that section 1170 gives it "discretion" whether to recommend recall of sentence when, "in [BPH's] judgment," a prisoner's condition satisfies the statutory criteria for recall of sentence and release. Conceding that it did not explicitly make findings as required by the statute, BPH "has not appealed the superior court's judgment to the extent that it require[s] the Board to make findings." And BPH does not challenge the superior court's ruling that, in determining whether to recommend the recall of sentence, BPH is limited to the specific criteria set forth in section 1170, subdivision (e). Instead, BPH claims some evidence supports its implied finding that, despite his physical condition, Martinez would be a threat to public safety if released from prison. Thus, BPH argues, the superior court erred in directing it to recommend the recall of Martinez's sentence and his release from custody pursuant to section 1170, subdivisions (e)(2) and (e)(9).
We shall affirm the superior court's order to the extent that it (1) faults BPH for failing to make explicit findings required by subdivision (e)(6) of section 1170, and (2) concludes that BPH may not exercise its discretion based on factors and criteria not set forth in the statute.
We shall reverse the order to the extent that it directs BPH to recommend recall of Martinez's sentence and his release from custody.
As we will explain, the word "may" in the phrase "the board may recommend to the court that the prisoner's sentence be recalled [if the prisoner meets the criteria set forth in subdivision (e) of section 1170]" must be interpreted in a way that effectuates the provision's primary purpose of saving the state money by authorizing the release from prison custody of those inmates who are terminally ill or permanently medically incapacitated and do not pose a threat to public safety. In this light, the superior court correctly held that the word "may" has to be read to mean BPH is authorized to recommend the recall of sentence and release of such an inmate, and must so recommend if the prisoner meets the statutory criteria.
However, the superior court incorrectly concluded that, on the facts presented, BPH erred in failing to find that Martinez would not pose a threat to public safety if released from custody. The proper standard of judicial review is whether "some evidence" supports the conclusion of BPH that a prisoner does not come within the statutory requirement for recall of sentence and release from custody. (See In re Lawrence (2008) 44 Cal.4th 1181, 1191 (hereafter Lawrence).) This "highly deferential" standard of review does not allow a court to second-guess BPH's factual finding. (Id. at p. 1204.) Our role is narrow. A court has the authority to do no more than "ensure that [BPH's] decision reflects `an individualized consideration of the specified criteria' and is not `arbitrary and capricious,'" (see id. at p. 1205), i.e., that BPH's decision is supported by "`some evidence'" viewed in the light most favorable to the decision. (See id. at p. 1204.) For reasons that follow, we cannot say that BPH acted arbitrarily and capriciously in refusing to recommend the recall of Martinez's sentence and his release from custody. By refusing to do so, BPH impliedly concluded the evidence did not support a finding that Martinez would not pose a threat to public safety if released from custody. Stated another way, BPH impliedly found that Martinez could pose a threat to public safety if released. Applying the deferential standard of review, as we must, we conclude there is some evidence to support an implied finding that, despite his quadriplegia, Martinez could be a threat to public safety if released because he is an evil, angry, and violent person who may seek the aid of others to harm those who irritate him.
Nonetheless, we must direct BPH to reconsider the matter because it did not explicitly make factual findings required by section 1170, subdivision (e)(6), and it wrongly considered factors other than the criteria set forth in the statute.
FACTS AND PROCEDURAL BACKGROUND
In March 1998, Martinez drove his car into two young women, pinning one beneath the vehicle. After grabbing the incapacitated woman by the throat and punching her in the face, breaking her nose, Martinez placed her in the back seat of the car and drove to a secluded location, where he forcibly committed various sexual acts upon the battered and bloodied woman. Convicted of forcible rape, forcible oral copulation, rape with a foreign object, assault with a deadly weapon, battery causing serious injury, hit and run causing injury, and kidnapping, he was sentenced to 165 years to life in state prison. The sentence was later reduced to 157 years to life.
In February 2001, while serving his sentence at Centinela State Prison, Martinez was attacked by two inmates and was stabbed in the neck. The knife wound lacerated Martinez's spinal cord, causing instant quadriplegia. He "has no motor power whatsoever in his arms or legs," "is only able to move his head to a very minimal degree," and does not have any control over his bowel or bladder movements. He will require "24-hour a day complete care for the rest of his life and has no chance of regaining any motor skills."
On February 11, 2008, Martinez's attorney, Ken I. Karan, sent a letter to the warden and the chief medical officer of Corcoran State Prison, asking them to consider Martinez for recall of his sentence and release pursuant to section 1170, subdivision (e). After describing the deteriorating nature of Martinez's condition, Karan explained: "The heavy burden on the state to care for [Martinez] continues to escalate predictably as his condition worsens." One example of the financial burden imposed by his medical condition required the state to spend more than $500,000 in hospital bills, and incur a $750,000 "loss in a lawsuit over [CDCR's] neglect" in allowing Martinez to be "in a state of sepsis and close to death" due to a "pressure ulcer on the area of [Martinez's] coccyx" that had become infected. According to Karan, the cost of caring for Martinez need not be assumed by the State because his parents and personal physician are willing and capable of providing the care he will require for the remainder of his life.
On March 13, 2008, the warden and the chief medical officer recommended the recall of Martinez's sentence for the following reasons: "[Martinez] is considered permanently paralyzed from the neck down. [¶] [He] did not have the medical condition at the time of sentencing. [¶] [He] does not pose a threat to public safety; he is totally dependent on his care givers for his needs. [¶] There are family members who have expressed a desire to care for [him] should an early release be granted." However, the head of the California Department of Corrections and Rehabilitation, Division of Adult Institutions (CDCR), disagreed.
On April 7, 2008, CDCR recommended BPH "deny the compassionate release of [Martinez]" because of the "seriousness of his commitment offense" and the fact his "institutional adjustment is considered less than satisfactory based on the six Rules Violation Reports (RVR) (four for Disrespect to Staff, one for Behavior that can Lead to Violence (verbal), and one for Violation of Grooming Standards) he has received" while at Corcoran State Prison. CDCR emphasized that "[Martinez] is a quadriplegic who continues to demonstrate inappropriate, disrespectful, and verbally threatening behavior. While [his] physical threat is obviously restricted, his defiant demeanor could be perceived as threatening. Although he is eligible for [section] 1170[, subdivision] (e)(2)(C) consideration based on his permanently medically incapacitated status and required 24-hour total nursing care, given the seriousness of his commitment offense and his continuously exhibited aggressive and verbally abusive behavior, a recommendation for his early release does not appear to be in the interest of justice."
There can be no doubt that Martinez's behavior following his incapacitation has been inappropriate and disrespectful.
On one occasion, after Martinez had been assisted to a toilet chair, he complained he was "in an unsafe position" and believed that he was going to fall. He ordered the nurse to get the supervisor. Rather than do so, the nurse informed him that he was seated safely on the toilet chair. Martinez responded by calling the nurse "incompetent" and "stupid," and stating: "You obviously don't know who you're dealing with. . . . You're one of those real smart ones[,] aren't you[?] You're lucky I can't walk. . . . I'd kick your ass. I don't have to worry though, someone will get you."
On another occasion, Martinez asked a female nurse to place him in a seated position before inserting a catheter into his urethra. When the nurse refused (because Martinez had previously become aroused while watching her catheterize him in a sitting position) and explained there was no medical reason for him to be seated during the procedure, Martinez called her an "obnoxious ghetto rat." While the nurse was transferring him to bed with a hover-lift, Martinez told her to "shut [her] suck-hole," threatened to urinate on the hover-lift, and told her that "he'd call [her] the `N' word, but [would] wait until another time" for that indignity.
On yet another occasion, Martinez became agitated while another nurse was conducting pressure relief and yelled: "Get the hell out of my room, did you hear, get the fuck out of my room[.] . . . Get your fucking dirty hands off me."
Two weeks later, Martinez again became belligerent with the same nurse, again yelling: "Get the hell out of my room." When the nurse supervisor entered the room, Martinez accused the nurse of being "incompetent." Then, looking at the nurse, Martinez said: "You probably don't even know how to spell incompetent." When the supervisor told Martinez to "quit screaming at the nurses and to watch his profanity," he looked at her and said: "You better watch it."
On May 2, 2008, Attorney Karan sent a letter to BPH rebutting CDCR's accounts of Martinez's conduct (CT 45-50) and stating that section 1170, subdivision (e) required BPH to consider two, and only two, criteria in deciding whether to make the recall recommendation: (1) whether Martinez was permanently medically incapacitated and unable to perform activities of basic daily living, thus requiring 24-hour total care, and (2) whether the conditions under which he would be released or receive treatment do not pose a threat to public safety. Karan argued that, despite conceding that Martinez falls within the first of these criteria, and effectively conceding that he poses no actual threat to public safety, CDCR based its recommendation on inappropriate considerations, such as the seriousness of his crimes and an exaggerated reading of his disciplinary record.
On June 17, 2008, BPH rejected the request for "Compassionate Release -- Penal Code section 1170(e)." Its decision simply stated: "Decline to refer to court for consideration of sentence recall."
Martinez then filed a complaint for injunctive and declaratory relief and a petition for writ of mandate, asking the superior court to compel BPH to recommend the recall of Martinez's sentence.
BPH's answer asserted Martinez was not entitled to mandamus relief because BPH's decision whether to recommend an inmate for recall of sentence is "purely discretionary" and BPH appropriately had considered not only whether Martinez was "permanently medically incapacitated" (§ 1170, subd. (e)(2)(C)) and whether his release would "pose a threat to public safety" (§ 1170, subd. (e)(2)(B)), but also whether his release would be inconsistent with section 1170, subdivision (a)(1), "stat[ing] that the purpose of imprisonment is punishment, and that the purpose is best served when a prisoner serves a term that is proportionate to his offense." Therefore, BPH argued, the nature of Martinez's commitment offense must be considered when deciding whether he is eligible for recall under section 1170, subdivision (e).
On December 31, 2008, the trial court issued a writ of mandate directing BPH to set aside its denial of Martinez's request and to recommend that his sentence be recalled pursuant to section 1170, subdivisions (e)(2)(B) and (e)(2)(C).
The trial court explained its ruling as follows:
"[BPH's] denial of [Martinez's] request for a recommendation of recall constitutes an abuse of [its] discretion under subdivision (e) of section 1170 in three respects. First, [BPH] failed to make any findings, as required by the last sentence in subdivision (e)(2) and in subdivision (e)(6) of section 1170.*fn1
"Second, [BPH] considered factors and criteria outside the scope of its authority under subdivision (e) of section 1170, including the legislative finding and declaration in subdivision (a)(1) of section 1170 that prisoners' sentences [should] be proportionate to the seriousness of their offenses. [BPH] improperly considered subdivision (a)(1) in denying [Martinez's] request under subdivision (e) by misconstruing the introductory clause to the first sentence of subdivision (e): `Notwithstanding any other law and consistent with paragraph (1) of subdivision (a), if the secretary [of the Department of Corrections and Rehabilitation] or [BPH] or both determine that a prisoner satisfies the criteria set forth in paragraph (2), the secretary or [BPH] may recommend to the court that the prisoner's sentence be recalled.' In the introductory clause of this sentence, the Legislature essentially declares that [BPH's] authority to make a recall recommendation, as specified in the main clause of the sentence, is not precluded by any other law and is consistent with subdivision (a)(1) of section 1170. The introductory clause does not, as [BPH] contend[s], add a criterion of consistency with subdivision (a)(1) to the criteria to be considered by [BPH] in determining whether to make a recall recommendation under subdivision (e) of section 1170. Further, the conditional clause of the sentence, beginning with `if,' makes clear that the sole criteria to be considered by [BPH] in exercising its authority under section 1170(e) are `set forth in paragraph (2),' i.e., subdivision (e)(2) of section 1170.*fn2
"Third, [BPH's] denial of [Martinez's] request for a recall recommendation lacks an evidentiary basis. All of the evidence before [BPH] satisfies the criteria for a recall recommendation under subdivision (e)(2) of section 1170: [He] has lost muscular and neurological function, is permanently paralyzed from the neck down, is unable to perform activities of basic daily living and requires 24- hour total care as a result of a lacerated spinal cord sustained during an attack at Centinela State Prison (subdivision (e)(2)(C) of section 1170); given [his] total physical dependence on others, the plan for his release to the care of family members does not pose a threat to public safety (subdivision (e)(2)(B) of section 1170); and [he] is not sentenced to death or a term of life without the possibility of parole (last sentence of subdivision (e)(2) of section 1170). None of the evidence supports findings that [Martinez] fails to meet one or more of the criteria for a recall recommendation under subdivision (e)(2). Thus, ...