People v. Loper

Citation60 Cal.4th 1155,343 P.3d 895,184 Cal.Rptr.3d 715
Decision Date05 March 2015
Docket NumberNo. S211840.,S211840.
CourtUnited States State Supreme Court (California)
PartiesThe PEOPLE, Plaintiff and Respondent, v. James Alden LOPER, Defendant and Appellant.

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

WERDEGAR, J.

Penal Code section 1170, subdivision (e) (section 1170(e) )1 authorizes certain prison authorities to recommend that the superior court recall a previously imposed sentence 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.

Facts

The San Diego County Grand Jury indicted defendant Loper in 2010 on several criminal counts related to his underpayment of both taxes and worker's 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 California 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 compassionate release was a nonappealable order. We thereafter granted review.

Discussion
The Right to Appeal

The right to appeal is statutory only, and a party may not appeal a trial court's judgment, order or ruling unless such is expressly made appealable by statute. (Teal v. Superior Court (2014) 60 Cal.4th 595, 598, 179 Cal.Rptr.3d 365, 336 P.3d 686 ; People v. Totari (2002) 28 Cal.4th 876, 881, 123 Cal.Rptr.2d 76, 50 P.3d 781 ; People v. Mazurette (2001) 24 Cal.4th 789, 792, 102 Cal.Rptr.2d 555, 14 P.3d 227.) Appeals by criminal defendants are governed by section 1237, and defendant contends subdivision (b) authorizes his appeal: “An appeal may be taken by the defendant: [¶] ... [¶] From any order made after judgment, affecting the substantial rights of the party. (Italics added.) There being no dispute the trial court's order denying the recommendation to recall defendant's sentence pursuant to section 1170(e)was one made after defendant's original judgment, or that defendant is a party,” section 1237, subdivision (b) authorizes him to appeal if the trial court's denial of compassionate release constitutes (1) “any order” that (2) affects his “substantial rights.”

Compassionate release was first authorized by statute in 1997 when the Legislature added new subdivision (e) to section 1170, permitting trial courts to recall the criminal sentences of terminally ill prisoners and resentence them to serve their sentences outside prison. (Stats. 1997, ch. 751, § 1, pp. 5071–5072.) The Legislature amended the law 10 years later to provide the same option for medically incapacitated prisoners. (Stats. 2007, ch. 740, § 1, pp. 6196–6197.) (A separate statute permits medically incapacitated prisoners to seek a medical parole directly from the Board of Parole Hearings (BPH) without intervention of the trial court. See § 3550, subd. (a).) Motivated in part by the Legislature's desire to save the prison system money (see Martinez v. Board of Parole Hearings, supra, 183 Cal.App.4th at pp. 590–592, 107 Cal.Rptr.3d 439 ), section 1170(e) now provides in pertinent part that “if the secretary2 or the Board of Parole Hearings or both determine that a prisoner satisfies the criteria set forth in paragraph (2), the secretary or the board may recommend to the court that the prisoner's sentence be recalled.” Section 1170(e)(2), in turn, provides that “[t]he court shall have the discretion to resentence or recall if the court finds that the facts described in subparagraphs (A) and (B) or subparagraphs (B) and (C) exist:

(A) The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.

(B) The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.

(C) The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24–hour total care, including, but not limited to, coma, persistent vegetative state

, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.”

Section 1170(e) thus authorizes only two parties to seek a prisoner's compassionate release: the Secretary or the BPH (or both). Although “the prisoner or his or her family member or designee may independently request consideration for recall and resentencing by contacting the chief medical officer at the prison or the secretary” (§ 1170(e)(6) ), nothing in the statutory scheme authorizes a prisoner (or his family) to initiate a proceeding in the trial court for compassionate release independently of prison or parole authorities. Unsurprisingly, the statutory scheme similarly contains no express provision permitting a prisoner to appeal an adverse decision.

The law thus presents a slight anomaly, for although a terminally ill or medically incapacitated prisoner is the party whose rights are most directly affected by a trial court's grant or denial of compassionate release, section 1170(e) does not specifically authorize the prisoner to seek recall of his sentence. Both the Court of Appeal below and respondent found this aspect of the law dispositive of defendant's right to appeal. Thus, the appellate court concluded that because “a defendant has no right to apply to the court for an order recalling the sentence on compassionate release grounds,” his “substantial rights are not affected by the trial court's order denying recall of his sentence” and he thus “may not appeal from the order.” Similarly, respondent, represented by the Attorney General, argues in this court that “because [Loper] did not have a right to request that the trial court recall his sentence and release him, the trial court's denial of...

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