In a published decision, the Court of Appeal held the trial court erred in denying appellant’s petition for compassionate release pursuant to Penal Code section 1172.2. The order was reversed the trial court was directed to recall appellant’s sentence in accordance with section 1172.2.

First, section 1172.2 creates a presumption in favor of release unless the court finds the petitioner poses an unreasonable risk of committing a super strike based on their current physical and mental condition. The trial court here erred in basing its denial on defendant’s failure to affirmatively show evidence of rehabilitation and on the general observation “people who usually commit those offenses are more likely than not to recommit the same offense.” The court further failed to sufficiently consider appellant’s current physical/mental condition and evidence indicating he is less of a risk than when he was sentenced, before he developed a terminal illness.

Second, appellant could be placed at a family member’s home despite the victim’s statement that she would seek to contest the placement pursuant to section 3003(f), due to it being within 35 miles of her residence. Section 3003(f) applies only to inmates who remain under state jurisdiction. However, petitioners released under section 1172.2 do not remain under state jurisdiction after release. Despite appellant not raising this issue in the trial court, the Court of Appeal chose to resolve this purely legal issue to guide the trial court and CDCR on remand and in recognition of the urgency of appellant’s situation.