NOT TO BE PUBLISHED IN OFFICIAL REPORTS
OPINION
THE COURT*
Petitioner, Harold Barnes, contends the superior court erred in denying the Board of Parole Hearing's (BPH) recommendation that his sentence be recalled under Penal Code1 section 1170, subdivision (e). Petitioner contends that he suffers from "Glioblastoma Multiforme (brain cancer cluster) and is terminally ill." Petitioner asserts that his cancer has rendered him "physically and cognitively unable" to file petitions and was assisted in preparing and filing this writ by a hospice worker.
BACKGROUND
On May 18, 2010, the BPH filed in superior court a recommendation for compassionate release and recall of petitioner's sentence pursuant to section 1170, subdivision (e). "Any recommendation for recall submitted to the court by the secretary or the Board of Parole Hearings shall include one or more medical evaluations, a postrelease plan, and findings pursuant to paragraph (2)." (§ 1170, subd. (e)(7).)
Pursuant to section 1170, within ten days of receipt of said recommendation, the superior court "shall hold a hearing to consider whether the prisoner's sentence should be recalled." (§ 1170, subd. (e)(3).) A hearing was held on May 28, 2010. Counsel appeared on petitioner's behalf; petitioner was not present.
The court denied the BPH's recommendation stating as follows:
"THE COURT: All right. The Court has reviewed all of the correspondence from the prison, from the Parole Board in this matter and I get a sense of different reports. Some folks say he's able to take care of his needs on his own. Other folks say he isn't. They seem to be contradictory of each other. Some folks say that they're concerned about the return of a tumor. The diagnosis would be six months if it returned. And yet when the MRI did come back and the latest report, it doesn't really indicate that it's returned. It's just that there's some change in the status. So the Court does have the same concerns about public safety in this matter. It appears that from some of these reports he is walking around, taking care of his day-to-day needs and activities.
"He does have a long and serious history of committing crimes and creating victims. And the Court's concerned based upon some of these reports that he would be allowed to create additional victims and the Court does not want to do that. So, I believe he qualifies, however, I also believe the Court has the discretion to deny the request and the Court's going to exercise that discretion and deny the request.
"Thank you, counsel."
This petition was filed October 22, 2010. This court directed the preparation of the record before the superior court and an informal response.
The respondent, Attorney General, argues that this writ should be denied because of petitioner's five-month delay and because petitioner bypassed his remedy of appeal from the superior court's denial order of May 28, 2010. However, at this initial stage of the proceeding, this court should accept as true petitioner's assertions. (In re Lawler (1979) 23 Cal.3d 190, 194 (Lawler).) Petitioner asserts that he is ignorant of the law, is confined in a hospice where there aren't "jailhouse lawyers," is terminally ill with brain tumors which render him "physically and cognitively unable..." to use a law library, and had to have a hospice worker prepare this petition. His terminal illness and lack of full mental capacity are supported by the record filed in superior court by the BPH. Taking these assertions to be true under Lawler, petitioner has made a prima facie showing that he should be excused from not exhausting his remedy on appeal and his delay. (Cf. Phelan v. Superior Court of San Francisco (1980) 35 Cal.2d 363.)
DICUSSION
Steven C. Martinez v. Board of Parole Hearings (2010) 183 Cal.App.4th 578 (Martinez), held that the superior court reviews a refusal of the BPH to recommend a compassionate release under "the same as that used when reviewing a decision by BPH to deny parole, i.e., `whether "some evidence" supports the conclusion' of BPH that the prisoner does not come within the statutory criteria. (See [In re] Lawrence [(2008)], 44 Cal.4th [1181,] 1191.) This standard of review is `highly deferential' to BPH's factfinding. ([Lawrence] id. at p. 1204.) It does not permit a court to second-guess BPH's factfinding. 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,"' (id. at p. 1205), i.e., that BPH's decision is supported by `"some evidence"' viewed in the light most favorable to the decision (id. at p. 1204)." (Martinez, supra, 183 Cal.App.4th at pp. 593-594.)
Martinez is distinguishable from the present case for several reasons.
First, Martinez evaluated the scope of the superior court's review of a decision of the BPH. Martinez did not expressly consider the significance of the language in section 1170 which provides:
"The [superior] court shall have the discretion to resentence or recall if the court finds that the facts described in subdivisions (A) and (B)...exist:
(A) The prisoner is terminally ill ... that would produce death within six months....
(B) The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety." (§ 1170, subd. (e)(2)(A) & (B) (emphasis added).)
The respondent argues that the use of the word "discretion" quoted above means that section 1170 created "two stages of factfinding..." In the first "stage," the BPH makes its determination whether to recommend a compassionate release based on the evidence before it. Respondent concedes that if the correctness of that determination is challenged by an inmate in superior court, the superior court reviews that determination under the "some evidence" standard of review. Respondent argues that in the "latter stage," the superior court exercises a second level of factfinding and exercises its own discretion to make findings regarding compassionate release "under a `broad generic standard.'"
The above quoted language is clear and unambiguous that the superior court exercises its own "discretion to resentence or recall if the court finds that the facts described in subparagraphs (A) and (B) or subparagraphs (B) and (C) exist..." (§ 1170, subd. (e)(2).) It follows that the superior court in this case did not have to apply the "some evidence" standard of review.
Second, insofar as Martinez may be inconsistent with this court's interpretation of subdivision (e)(2), Martinez could have avoided consideration of the of the standard of review because that discussion focused on a portion of the superior court's decision which could have been reversed on the basis of a fundamental error. The "some evidence" discussion in Martinez was only directed at that portion of the superior court's decision which concluded as follows:
"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:... 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, [BPH] can reasonably exercise its authority under subdivision (e) of section 1170 in only one way: it can only determine that the criteria for a recall recommendation are satisfied and proceed to make that recommendation to the court that sentenced [Martinez]." (Martinez at p. 587.)
However, the superior court in Martinez had already decided that the BPH's refusal had to be reversed in its entirety and remanded for complete redetermination because the BPH had failed to make the findings required by section 1170 and because the BPH "`considered factors and criteria outside the scope of its authority under subdivision (e) of section 1170..." Because the BPH did not make findings, it was unclear whether the prior refusal of the BPH had been primarily based on the "factors and criteria outside the scope of its authority" and not on a finding against the inmate on one or more of the factors contained in subdivision (e)(2). The superior court should not have presumed that on reconsideration the BPH would fail to properly review the evidence before it in light of the factors in subdivision (e)(2). (Cf. In re Prather (2010) 50 Cal.4th 238 (Prather).) Thus, after deciding that the refusal of the BPH should be reversed and reconsidered, it was inappropriate for the superior court to proceed to evaluate the evidence before the BPH in light of the factors in subdivision (e)(2) and to compel the BPH to reach any particular result. Prather held that in the analogous situation of reviewing a decision of the Board of Prison Terms denying parole, "... it is improper for a reviewing court to direct the Board to reach a particular result or to consider only a limited category of evidence in making a suitability determination." (Prather, supra at p. 253.) Martinez, supra, could have reversed the above quoted findings of the superior court solely on the ground that the superior court had in essence usurped the fact finding authority of the BPH in violation of Prather and avoided any discussion of the standard of review.
This case requires a review of the refusal of the superior court to not follow the recommendation of the BPH. Under the above quoted language of section 1170, this court has to review the exercise of discretion by the superior court in light of the record filed by the BPH.
The superior court in this case refused to recall or resentence in part because it concluded that:
"He does have a long and serious history of committing crimes and creating victims. And the Court's concerned based upon some of these reports that he would be allowed to create additional victims and the Court does not want to do that. So, I believe he qualifies, however, I also believe the Court has the discretion to deny the request and the Court's going to exercise that discretion and deny the request."
The supreme court found that petitioner did not meet the requirement in subdivision (e)(2)(B) that "The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety."
The materials filed by the BPH with its recommendation contain several opinions that petitioner would not be a threat if released. However, those opinions are conclusional and are apparently based on facts contained in documents which were not filed with the recommendation. Section 1170, subd. (e)(7) provides:
"Any recommendation for recall submitted to the court by the secretary or the Board of Parole Hearings shall include one or more medical evaluations, a postrelease plan, and findings pursuant to paragraph (2)." (§ 1170, subd. (e)(7).)
The failure to include those documents pertinent to subdivision (e)(2)(B) with the recommendation filed in superior court constitutes support for the superior court's determination that petitioner does not satisfy the requirement in section (e)(2)(B). (Cf. People v Duvall (1994) 9 Cal.4th 464, 474.)
More importantly, Martinez, supra, required the BPH to make express findings. The recommendation of the BPH dated May 18, 2010, only addressed the requirement in subdivision (e)(2)(A) [terminal illness]. That recommendation did not contain any findings on the requirement of subdivision (e)(2)(B). The recommendation is thus defective under Martinez which further supports the superior court's finding under subdivision (e)(2)(B).
Nothing in this opinion would prevent petitioner or his family from requesting the BPH to file another recommendation with the pertinent records and express findings. Also, nothing in this opinion would prevent the BPH from filing an adequate recommendation on its own initiative.
DISPOSITION
The petition for writ of habeas corpus is denied.
