THE PEOPLE, Plаintiff and Respondent, v. TONY FLORES TORRES, Defendant and Appellant.
E073187 (Super.Ct.No. CR57408)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 4/30/20
See Dissenting Opinion; CERTIFIED FOR PUBLICATION
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Reversed.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
In May 2019, the Board of Parole Hearings (the Board) recommended that defendant and appellant, Tony Flores Torres, be granted a “compassionate release” and his sentenced recalled under
On appeal, defendant asserts the trial court abused its discretion because the trial court found he had satisfied the requirements of
Because it was undisputed defendant satisfied
II.
FACTUAL AND PROCEDURAL BACKGROUND
In 1995, defendant was sentenced to 29 years to life for first degree murder.
Around April 2019, defendant requested a compassionate release under
In response to defendant‘s request, the Department of Corrections and Rehabilitation‘s California Medical Facility prepared a Diagnostic Study and Evaluation Report (the Report). Its authors2 described defendаnt‘s condition in April 2019 as follows: Defendant is “totally Medically Disable[d] due to his current medical condition.” “[Defendant], 76 years-old, who is currently residing in the hospice unit . . . has been diagnosed with widely metastatic prostate cancer. He received 45 radiation treatments. In February 2019, widely metastatic disease was found. Metastases to his neck compromised his spinal cord and necessitated surgical interventions to several vertebrae. He has left-side weakness because of his spinal disease. He requires a permanent hard cervical collar to stabilize his neck.” “[Defendant] does not retain the capacity to commit or to influence others to commit criminal acts that endanger public safety” . . . and is permanently in a wheelchair due to left-side weakness. “His daughter . . . would care for him in her home under home hospice care should he be released.” (Italics added.)
In July 2019, the trial court denied the motion. The trial court noted it was undisputed that defendant‘s physicians determined he had less than six months left to live. The trial court therefore found that defendant had satisfied
As to whether defendant would pose a danger to society if released, the trial court found that it was “a close call” because elderly people in wheelchairs can commit crimes. But given defendant‘s medical condition and his being “wheelchair bound,” the trial court found “it would be a stretch to suggest that . . . he still poses a danger to society.” The trial court thus found that defendant met the requirements for compassionate release under
Nonetheless, the trial court concluded that whether to release defendant was “a discretionary call” because
After the trial court announced its decision, defense counsel asked, “does the [c]ourt say that [defendant] meets the criteria; he does not pose a risk, but you‘re still exercising your discretion to not release him?” The trial court responded, “That is correct. It is because of his extraordinarily violent nature and because of his extraordinarily callous behavior, and I find that his comments of remorse are basically when he was on death‘s door.” The court continued, “[defendant] is not one of the people the [c]ourt‘s going to exercise its discretion for . . . . [¶] There‘s a population of people going [sic] to reach this stage. Some of them deserve compassionate relief. Some of them don‘t. It‘s not mandatоry, which means, I have to differentiate between those folks. Not this person.”
DISCUSSION
On appeal, the parties dispute whether the trial court had the discretion to deny defendant‘s request for a compassionate release even though it found that he satisfied
satisfied
At the outset, we emphasize that the People implicitly concede that defendant‘s release would not posе a threat to public safety. Although the People argued below that defendant‘s release would pose a threat to his victim‘s family members because he conceivably could shoot a gun, the trial court rejected the People‘s contention and found that defendant would not pose a risk to public safety if released. The People do not challenge that finding on appeal.
As the Report indicated, defendant is critically ill, wheelchair-bound, and requires a cervical collar at all times to support his head due to a surgery-related neck injury. The Report‘s authors and the Board therefore found that defendant would not pose a threat to public safety if released due to his medical condition. In light of these undisputed facts and unchallenged findings, the trial court‘s conclusion that defendant‘s release would not pose a threat to public safety is supported by substantial evidence, so we are bound by it. (People v. Robinson (2010) 47 Cal.4th 1104, 1126 [trial court‘s factual finding upheld if supported by substantial evidence].)
The only issue on appeal, then, is whether the trial court abused its discretion by denying defendant‘s motion for compassionate release even though the trial court found he had satisfied
A. Standard of Review
“The interpretation of
B. Analysis
Certain inmates with a terminal illness may be eligible under
prisoner would be released or receive treatment do not pose a threat to public safety.” (
The trial court interpreted this language to mean that, even if a defendant satisfies
We must interpret statutes in a manner that “comports most closely with the apparent intent of the Legislature, to promote rather than defeat the statute‘s general purpose and to avoid an interpretation that would lead to absurd and unintended consequences. [Citation.] We must not construe a statute in a manner that renders its provisions essentially nugatory or ineffective, particularly when that interpretation would frustrate the underlying legislative purpose. [Citation.]” (People v. Carter (1996) 48 Cal.App.4th 1536, 1540.) We therefore must interpret
For instance, in Martinez, the court evaluated the Board‘s discretion under
The Martinez court held the Board erred in both respects. (Martinez, supra, 183 Cal.App.4th at p. 593.) First, the court rejected the Board‘s assertion that it had discretion to deny recommending a compassionate release for the defendant becausе
Second, the Martinez court held—and the Board conceded—that “only facts relating to the criteria set forth in
Thus, under Martinez, in determining whether to recommend if an inmate should receive a compassionate release, the Board may consider only
In deciding whether to grant a motion for compassionate release, we conclude trial courts are likewise limited to those considerations. Before
In enacting
convicted of first degree murder for killing a peace officer. (
Although Martinez addressed the Board‘s discretion, its reasoning applies equally to the trial court‘s discretion under
expending the state‘s resources that
We therefore agree with Martinez that the inmate‘s past and behavior are relevant only insofar as they relate to the safety risk, if any, that the inmate‘s release would pose. (
Although the trial court found that defendant satisfied
subdivision (e)(2)‘s requirements must be read to
We therefore conclude the trial court denied defendant‘s request for a compassionate release for improper reasons. Although the trial court has discretion under
discretionary decision on improper factors. [Citations.]“]; People v. Carmony (2004) 33 Cal.4th 367, 378 [trial court abuses its discretion if it considers “impermissible factors” in exercising its discretion]; People v. Sandoval (2007) 41 Cal.4th 825, 847 [“[A] trial court will abuse its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision“].)
The trial court‘s error was prejudicial. Had the trial court considered only
Our dissenting colleague believes our interpretation and application of
dissenting colleague believes the criteria for comрassionate release in
Our dissenting colleague contends that the Legislature “routinely confers discretion on the trial court without specifying the criteria to be considered in exercising it,” and notes three statutes that allow trial courts to exercise their discretion when sentencing to “serve[] the interest of justice, with no specification of any сriteria for making that determination.” That may be true, but
wanted trial courts to consider the factors that the trial court here considered, such as the defendant‘s criminal history, callous behavior, and lack of remorse, it would havе indicated somewhere that those factors are relevant. The Legislature has not done so beyond providing that inmates serving a death sentence, a life sentence without the possibility of parole, or a sentence for first degree murder of a peace officer are not eligible for a compassionate release. If the Legislature thought trial courts should consider other criteria, it presumably would have provided trial courts with wider, more malleable discretion, such as allowing them to consider whether a compassionate release would “further the interests of justice” or to consider “any other criteria that the court deems relevant to its decision.” (
if they were “materially indistinguishable.” This makes sense because recalling a defendant‘s sentence and resentencing a defendant to a different term of imprisonment are not indistinguishable; they are inherently different mechanisms.
A recalled sentence is effectively vacated. (See In re Acker (1984) 158 Cal.App.3d 888, 891 [“A prison sentence recalled pursuant to section 1170, subdivision (d) is vacated for all intents and purposes, not completed“]; People v. Rivera (1984) 157 Cal.App.3d 494, 497 [“The court recalled Rivera‘s initial sentence and commitment and “resentenced” him as if he “had not been sentenced previously.” [Citation.] The resentence became the sentence and thus the judgment.“].) By contrast, a defendant who is resentenced in order to effect a compassionate release may be subject to parole or postrelease community supervision. (
Our dissenting colleague argues our interpretation of
determining whether the inmate can be released without posing a threat to public safety. The trial court
Finally, our dissenting colleague believes that “the trial court correctly interpreted the statute as conferring discretion on the court to deny relief even if the court found the eligibility criteria [of section 1170, subdivision (e)(2)] were met” and that the trial court did nоt abuse its discretion. The dissent does not explain how the trial court‘s decision squares with our Supreme Court‘s observation in Loper that a trial court does not have “unfettered discretion” to deny a request for compassionate release when, as here, the statutory criteria are met. Nor does the dissent explain how the trial court here exercised its discretion in a manner consistent with
deserves a compassionate release. In other words, the trial court‘s discretion would be “unfettered.”
Our dissenting colleague believes the trial court relied on “reasonable grounds” in reaching its decision, “namely, [defendant‘s] exceptionally violent history, the extreme callousness of his violent conduct, and his 11th-hour expressions of remorse.” But “[a]ll exercises of discretion must be guided by applicable legal principles, however, which are derived from the statute under which discretion is conferred.” (Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 106.) Our dissenting colleague does not cite any authority that indicates those are appropriate considerations under
DISPOSITION
The trial court‘s order denying defendant‘s motion for compassionate release is reversed and the matter is remanded to the trial court. We direct the trial court to enter a new order forthwith granting defendant‘s motion for a compassionate release, and to re sentence defendant or recall his sentence as provided in
this court immediately. (Cal. Rules of Court, rules 8.68, 8.264(b)(1), 8.366(b)(1).) The remittitur shall issue within 30 days, unless the parties stipulate to its immediate issuance. (Cal. Rules of Court, rules 8.272(c)(1), 8.366(a).)
CERTIFIED FOR PUBLICATION
CODRINGTON J.
I concur:
MILLER Acting P. J.
THE PEOPLE, Plaintiff and Respondent, v. TONY FLORES TORRES, Defendant and Appellant.
E073187
MENETREZ, J. Dissenting.
MENETREZ, J. Dissenting.
The majority opinion holds that the criteria in
Under subdivision (e) of section 1170, the Board of Parole Hearings (Board) “may recommend to the court that the prisoner‘s sentence be recalled” if the Board finds that the following criteria are met: (1) release of the prisoner would not “pose a threat to public safety,” and (2) either the prisoner is terminally ill with a life expectancy of at most six months or the prisoner is “permanently medically incapacitated” and hence “permanently unable to perform activities of basic daily living” аnd thus requires “24-hour total care.” (
Subdivision (e) of section 1170 further provides that “[t]he court shall have the discretion to resentence or recall if the court finds” that those same criteria are met. (
discretion expressly conferred by subdivision (e)(2) of section 1170 is limited to choosing between recalling the sentence and resentencing the defendant, leaving the court with no discretion to deny compassionate release altogether. (Maj. opn., ante, at pp. 13-14.) That is, on the majority opinion‘s interpretation, once the court finds that the statutory criteria are met, the court is required to grant the request for compassionate release (by either resentencing or recalling the sentence).
In my view, the majority opinion‘s interpretation of the statute is not reasonable. Subdivision (e) of section 1170 generally does not distinguish between recall of sentence, on the one hand, and recall or resentencing, on the other. The statute authorizes the Board to recommend “that the prisoner‘s sentence be recalled,” with no mention of resentencing. (
mention of resentencing. (
In sum, the statute refers to “recall” and “recall or resentencing” interchangeably. The statute thus accords no significance to the distinction between recall and resentencing. Rather, the statute treats them as materially indistinguishable means of effectuating compassionate release.
But on the majority opinion‘s interpretation, when the statute says “[t]he court shall have the discretion to resentence or recall” if the criteria are met (
The majority opinion articulates three criticisms of my analysis, but I believe none has merit. First, the opinion cites People v. Loper (2015) 60 Cal.4th 1155, 1161, footnote
3, for the proposition that the trial court‘s “discretion is not unfettered” in granting or denying a request for compassionate release of a prisoner who meets the statutory criteria, and the opinion asserts that “[i]f the Legislature wanted the trial court to consider other criteria in determining whether to grant a compassionate release, it would have enumerated those criteria.” (Maj. opn., ante, at p. 16.) But trial court discretion is never unfettered. Rather, it is always subject to reversal if it is exercised “‘in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.‘” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) And the Legislature routinely confers discretion on the trial court without specifying the criteria to be considered in exercising it. Criminal sentencing law, for example, frequently confers discretion on the court to do whatever serves the interest of justice, with no specification of any criteria for making that determination. (See, e.g.,
Second, the majority opinion attempts to refute my claim that subdivision (e) of section 1170 accords no significance to the distinction between recall and resentencing by pointing out that there are significant differences between recall аnd resentencing. (Maj. opn., ante, at pp. 16-17.) I of course agree that there are. I do not claim that recall and resentencing are materially indistinguishable. Rather, I claim that section 1170,
subdivision (e), treats them as materially indistinguishable, so it would make no sense for the same statute
Third and finally, the majority opinion contends that my position would actually give the trial court unfettered discretion, in violation of the dictum in People v. Loper, supra, 60 Cal.4th at page 1161, footnote 3, because it would allow the trial court to deny compassionate release “simply because, in the trial court‘s view, the inmate does not deserve one,” which would be based entirely on “the trial court‘s subjective opinion.” (Maj. opn., ante, at pp. 19-20.) But as I have already noted, trial court discretion is never unfettered but always must be exercised in a manner that is not arbitrary, capricious, or patently absurd. And as I have also noted, courts are routinely called upon to exercise discretion to impose or strike sentence enhancements (to take just one example) with nothing to guide them but their understanding of what would best serve the interest of justice—“subjective opinion,” as the majority opinion puts it. If the court‘s decision is reasonable, we must affirm it, even if we might not have made the same decision ourselves in the first instance. If the trial court here had said it was denying compassionate release “because I just can‘t stand old people,” or “because I‘ve always hated guys named ‘Tony,‘” for example, then it would obviously have abused its discretion, and we would rightly reverse. But the court said nothing so offensive, arbitrary, capricious, or patently absurd. Rather, the court expressed reasonable grounds
for denying compassionate release, namely, appellant‘s exceptionally violent history, the extreme callousness of his violent conduct, and his 11th-hour expressions of remorse, which the court reasonably concluded were insincere and opportunistic.6 I do not know whether I would have made the same decision in the first instance. But the trial court‘s exercise of its discretion was reasonable, so we must affirm.
For all of these reasons, I disagree with the majority opinion‘s interpretation of section 1170, subdivision (e). In my view, the trial court correctly interpreted the statute as conferring discretion on the court to deny relief even
MENETREZ J.