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Name: People v. Lewis (2024) 101 Cal.App.5th 401
Case #: E082085
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 01/03/2024
Subsequent History: Ordered published 4/10/2024

Trial court abused its discretion in denying compassionate release under Penal Code section 1172.2 where the finding that defendant posed an unreasonable risk of danger to public safety was not supported by substantial evidence. Defendant was convicted of first degree murder committed in 2020. He was also associated with a street gang and had a significant criminal history. In 2023, the CDCR’s director of Health Care Services sent a letter to the superior court recommending compassionate release under section 1172.2. Defendant was diagnosed with ALS, which was rapidly progressing, and he had “a clear end of life trajectory.” Defendant had lost the ability to use his arms, had difficulty breathing and swallowing, and required assistance with feeding, bathing, and dressing. The trial court denied the petition, concluding that defendant posed an unreasonable risk of danger to public safety because he still retained the ability to talk and could coordinate crimes including solicitation for murder. Held: Reversed. Under the current compassionate release statute, relief is mandatory unless the defendant poses an unreasonable risk of committing a super strike. (§§ 1172.2(b), 1170.18(c).) Substantial evidence does not support such a finding here. While defendant’s ability to speak made it possible for him to commit a super strike offense, his mere capacity to commit a super strike has no tendency to prove that it is likely, let alone that there is an unreasonable risk, that he will actually engage in such conduct. The record contains no evidence that defendant ever solicited, directed, or acted in concert with anyone to commit any crime. Additionally, there is no evidence that defendant has a sufficiently elevated status in any gang to be able to direct other gang members to commit crimes. Defendant’s sentence must be recalled. [Editor’s Note: Pursuant to the parties’ stipulation, the court directed immediate issuance of the remittitur.]