Superior Court of San Diego County, No. SCD225263, Laura H. Parsky, Judge. Court of Appeal, Fourth Appellate District, Division One, No. D062693.
[Copyrighted Material Omitted]
Raymond M. DiGuiseppe, under appointment by the Supreme Court, for Defendant and Appellant.
Nora E. Wilson for Justice Now as Amicus Curiae on behalf of Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Werdegar, J., with Cantil-Sakauye, C. J., Chin, Corrigan, Liu, Cué llar, and Kruger, JJ., concurring.
[184 Cal.Rptr.3d 716] WERDEGAR, J.
Penal Code section 1170, subdivision (e) (section 1170(e))  authorizes certain prison authorities to recommend that the superior court recall a previously imposed sentence [343 P.3d 896] because the prisoner is now terminally ill or medically incapacitated, permitting the resentencing of the prisoner to serve a new sentence outside the prison walls. Under this procedure, sometimes called " compassionate release" (see Martinez v. Board of Parole Hearings (2010) 183 Cal.App.4th 578, 590 [107 Cal.Rptr.3d 439]), a question has arisen whether an inmate denied such release by the superior court may appeal that decision. We conclude that when the proceeding is properly initiated by prison or parole authorities as required by law, the trial court's decision produces an appealable order that may be appealed by the prisoner. Accordingly, we reverse the Court of Appeal's decision, which reached a contrary conclusion.
[184 Cal.Rptr.3d 717]Facts
The San Diego County Grand Jury indicted defendant James Alden Loper in 2010 on several criminal counts related to his underpayment of both taxes and workers' compensation premiums in connection with his tree trimming business. On November 11, 2010, he pleaded guilty to one count of violating Insurance Code section 11880, subdivision (a) and admitted various enhancements; the remaining charges were dismissed. On February 4, 2011, the trial court sentenced him to six years in prison. On August 14, 2012, the Secretary of the Department of Corrections and Rehabilitation (CDCR) recommended that defendant's sentence be recalled pursuant to section 1170(e) and that he be granted compassionate release due to his medical condition. The recommendation was accompanied by a letter from Dr. Ronelle Campbell, staff physician for the CDCR, who opined that defendant suffered from a variety of health ailments and that " [h]is life expectancy is short and possibly less than 6 months." On August 24, 2012, the trial court ordered the CDCR to provide it with an update on defendant's condition and an opinion from a medical doctor as to whether defendant was expected to die within six months, which is one of the statutory criteria for release. The court then continued the matter.
The trial court revisited the case on September 14, 2012. It had before it a letter from Dr. Kyle Sealey, the chief medical executive at the CDCR's Richard J. Donovan Correctional Facility, which stated that defendant " is an ill individual with disease processes that will continue to progress, despite treatment, leading to his eventual demise," but that " [h]is current status does
not indicate for or against a prognosis of less than six months to live." The CDCR was not represented at the hearing but the People, represented by the San Diego County District Attorney's office, argued that because Dr. Sealey could not assert defendant would die within six months, defendant did not fall within the terms of section 1170(e). Counsel appearing on behalf of defendant Loper presented the opinion of Dr. Campbell, who had recently retired from the CDCR and who last examined defendant on June 28, 2012. Counsel asserted to the court that Dr. Campbell told him " that you can't say to any medical certainty when someone is exactly going to die. He could die tomorrow. It's possible he could live beyond six months. But it's clear that his condition is inoperable. He doesn't have very long to live." Dr. Campbell was present in the courtroom and answered a few informal questions although she was not placed under oath. She did not dispute counsel's representation of her medical opinion. Despite the absence of formal testimony from Dr. Campbell, and there being no objection from the People, the trial court accepted counsel's recitation of Dr. Campbell's opinion but ultimately found an insufficient basis for compassionate release under section 1170(e). Noting that Dr. Sealey's letter said that defendant's " current status does not indicate for or against a prognosis of less than six months to live," the court opined that " the language of the statute is quite definitive in terms of the determination that the department physician needs to make." Accordingly, the court denied the CDCR's recommendation to recall defendant's sentence.
Defendant, but not the Secretary of the CDCR (the Secretary), appealed the trial court's decision. The Court of Appeal dismissed the appeal, finding the trial court's denial of the CDCR's recommendation for [343 P.3d 897] compassionate ...