California Court of Appeals, Fourth District, First Division
APPEAL from an order of the Superior Court of San Diego County, Laura H. Parsky, Judge. Super. Ct. No. SCD225263
Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for Plaintiff and Respondent.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Lise S. Jacobson, Deputy Attorneys General, for Defendant and Appellant.
James Alden Loper appeals from the trial court's order denying a request for recall of his sentence which was initiated by the Department of Corrections and Rehabilitation (the Department) under the compassionate release provision set forth in Penal Code section 1170, subdivision (e). As we will explain, we conclude that the trial court's order is not appealable by Loper, and we accordingly dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Loper, who was born in 1953, pled guilty in 2010 to making a misrepresentation of fact in violation of Insurance Code section 11880, subdivision (a), and he admitted allegations that his crime involved a pattern of felony conduct resulting in a loss of more than $100, 000 (§ 186.11, subd. (a)(3)) and that he had incurred a prior strike (§ 667, subds. (b)-(i)). The trial court sentenced Loper to a six-year prison term.
In May 2012, medical personnel at Richard J. Donovan Correctional Facility issued an internal request to obtain compassionate release for Loper pursuant to the procedure set forth in section 1170, subdivision (e). That provision gives the trial court the discretion — upon application of the Department or the Board of Parole Hearings — to recall the sentence of certain terminally ill or permanently medically incapacitated prisoners who meet the statutory criteria. The internal request stated that Loper had "uncontrolled hypertension, advanced chronic obstructive pulmonary disease (COPD) and severe coronary artery disease." According to the internal request, Loper was currently able to perform all activities of daily living and was housed in an outpatient setting, but his "life expectancy is short and possibly less than 6 months, " and "[h]e is at increased risk for sudden cardiac death[, ]" with his "condition... likely to worsen." In response to the internal request, the Department issued a diagnostic study on June 21, 2012.
On August 14, 2012, the Department's undersecretary of operations sent a letter to the trial court, enclosing the diagnostic study and recommending that Loper's prison commitment and sentence be recalled under section 1170, subdivision (e).
Pursuant to section 1170, subdivision (e)(3), the trial court held a hearing on August 24, 2012. At the hearing, the trial court ordered the Department to provide additional information consisting of: "An update on Mr. Loper's condition; An opinion from a doctor of the [Department] as to whether Mr. Loper's illness would produce death within six months; What treatment is available for Mr. Loper; What, if any, treatment Mr. Loper refused while in prison and how that refusal may have affected his current condition; [and]... a more extensive release plan...."
The chief medical executive at Richard J. Donovan Correctional Facility sent a letter to the trial court on September 12, 2012, in response to the court's request. According to the letter, Loper's condition "remain[ed] stable, " his hypertension had improved, he was "not presenting with any symptoms suggestive for acute congestive heart failure, " but was "an ill individual with disease processes that will continue to progress, despite treatment, leading to his eventual demise." With respect to Loper's life expectancy, the letter stated that "[h]is current status does not indicate for or against a prognosis of less than six months to live."
The trial court held another hearing on September 14, 2012, at which it denied the request to recall Loper's sentence because the statutory requirements were not met. As the trial court explained, "there is an insufficient showing for the court to make the findings required under... section 1170(e)(2)(A), specifically that the prisoner has an incurable condition caused by illness or disease that will produce death within six months as determined by a department physician."
Loper filed a notice of appeal from the trial court's order denying the recall of his sentence. Loper's appellate brief argues that the trial court misunderstood or ...