Opinion
G058714
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. BRIAN JOHN LAUDENBACK, Defendant and Appellant.
Michael Evan Beckman for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Melissa Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed on March 13, 2020, be modified in the following particulars:
On page 6, the DISPOSITION is deleted and replaced with the following:
"DISPOSITION
The order is reversed. The trial court is ordered to conduct an expedited hearing to determine whether Laudenback's sentence should be recalled and he be granted compassionate release."
Based on the time sensitivity of this matter, and the Attorney General's concession a hearing is required, we invite the parties to stipulate to the immediate issuance of remittitur. (Cal. Rules of Court, rule 8.272(c)(1).)
This modification does not effect a change in judgment.
O'LEARY, P. J. WE CONCUR: IKOLA, J. GOETHALS, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 94HF0192) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Reversed. Michael Evan Beckman for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Melissa Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
Brian John Laudenback appeals from the trial court's postjudgment order denying him compassionate release from prison under Penal Code section 1170, subdivision (e) (section 1170(e)). Laudenback argues the trial court erred by not making the requisite findings and not granting him a statutorily required hearing. We agree the court erred by not affording him a hearing and we remand the matter to conduct an expedited hearing.
FACTS
In 1995, a jury convicted Laudenback of second degree murder for the death of his then girlfriend's 22-month-old son (victim). The trial court sentenced him to prison for 15 years to life, and he remains in prison. In People v. Laudenback (G017881, May 27, 1997) [nonpub. opn.], we affirmed the judgment.
In October 2019, doctors diagnosed Laudenback with stage IV bladder cancer and his life expectancy was less than six months. In November 2019, the California Department of Corrections and Rehabilitation (CDCR) Secretary (Secretary) explained Laudenback had a terminal illness and he had six months or less to live. The Secretary stated he had only one rules violation (a 2000 grooming violation) and concluded he was not a threat to public safety if released from prison. The Secretary recommended his sentence be recalled. In December 2019, a Board of Parole Hearings (BPH) investigator (investigator) informed BPH that Laudenback's cancer had metastasized to both lungs and his condition would deteriorate rapidly the next few months.
On December 17, 2019, BPH conducted a meeting and concluded Laudenback was terminally ill with an incurable condition and would not pose a threat to public safety if released. BPH recommended Laudenback's sentence be recalled. The investigator notified the Orange County Superior Court (superior court) of BPH's recommendation, which the superior court received three days after BPH's meeting.
Laudenback's appellate counsel refers to communications he had with the superior court concerning scheduling a hearing. That information is not in the record.
Three days later, during "chambers work," and without the parties appearance, the trial court denied the request to grant Laudenback compassionate release. In denying the request, the court "considered and weighed [Laudenback's] severe physical condition against the factors surrounding the crime," including the victim's age and terrible injuries, and Laudenback's conduct and "'excuses.'"
Between the time of Laudenback's opening brief and the Attorney General's brief, BPH found Laudenback suitable for parole.
DISCUSSION
Pursuant to section 1170(e), BPH may recommend to the superior court a prisoner's sentence be recalled and the prisoner be granted compassionate release if the prisoner is terminally ill with an incurable illness or disease that would produce death within six months and the prisoner does not pose a threat to public safety. Section 1170(e), states that before BPH makes a recommendation, it must make findings. Section 1170(e)(3), states, "Within 10 days of receipt of a positive recommendation by the [S]ecretary or the board, the court shall hold a hearing to consider whether the prisoner's sentence should be recalled." (Italics added.)
Section 1170(e)(3), is very clear. It says shall. Shall means must. (Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542 [may permissive and shall mandatory especially when single statute uses both terms]; Webster's 3d New Internat. Dict. (1981) p. 2085, col. 3 [shall means "will have to: must"]; see § 1170(e)(6) ["may"].) The trial court was statutorily required to conduct a hearing to consider whether Laudenback's sentence should be recalled. Instead, the court denied his request for compassionate release during "chambers work." This was error. Needless to say, chambers work is not legally equivalent to a hearing. The parties did not appear and did not have an opportunity to argue their respective positions. The Attorney General concedes the court erred and the matter must be remanded for a hearing.
The parties disagree though on the standard of review a trial court must utilize in reviewing BPH's recommendation. Relying on Martinez v. Board of Parole Hearings (2010) 183 Cal.App.4th 578 (Martinez), Laudenback argues the trial court must review BPH's decision for "'some evidence.'" The Attorney General counters the court should review BPH's decision de novo where it can consider new evidence. We think Laudenback has the better argument.
In Martinez, supra, 183 Cal.App.4th at pages 593-594, the court concluded the following: "[T]he standard of judicial review is 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. [Citation.] This standard of review is 'highly deferential' to BPH's factfinding. [Citation.] 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,"' [citation], i.e., that BPH's decision is supported by '"some evidence"' viewed in the light most favorable to the decision [citation]."
The Attorney General attempts to distinguish Martinez by asserting the procedural posture of the case was different. In that case, BPH denied prisoner's request for compassionate release, but the trial court ordered BPH to recommend to the trial court that prisoner's request be granted. That is a distinction without a difference. We conclude it is equally applicable when BPH recommends compassionate release.
Relying on section 1170's language, the Attorney General also asserts recalling a sentence and granting compassionate release is a judicial determination. Section 1170(e)(1), authorizes the Secretary or BPH to make a recommendation, and section 1170(e)(2), provides a trial court has the discretion to recall.
Our conclusion a trial court reviews BPH's decision for some evidence, and not de novo, finds support in People v. Loper (2015) 60 Cal.4th 1155, 1161, footnote 3 (Loper). Although the Loper court recognized a trial court has the "discretion whether to release a prisoner for compassionate reasons," the court added section 1170(e)(2), "establishes clear eligibility criteria [citation], suggesting that discretion is not unfettered when evidence is presented satisfying the statutory criteria." (Loper, supra, 60 Cal.4th at p. 1161, fn. 3.)
As to the Attorney General's claim the trial court can consider "other, admissible evidence," we disagree. Section 1170(e), provides a mechanism for someone with less than six months to live to seek compassionate release. It defies logic to conclude the court may conduct an evidentiary hearing where the parties may offer witness testimony and additional documentary evidence on section 1170(e)(2)'s criteria. By its nature, the process is expedited because the prisoner "is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months[.]" (§ 1170(e)(2)(A).) To allow the parties to delay this process by, for example, conducting further evaluations or securing additional expert testimony, would only serve to undermine section 1170(e)'s purposes. (Martinez, supra, 183 Cal.App.4th at p. 590 [section 1170(e)'s purposes are compassion and to save money].)
Not only did the trial court not conduct a hearing, it did not make the required findings. Although the record reflects the court considered Laudenback's terminable illness, the court did not consider whether he would pose a threat to public safety. Instead, the court considered the circumstances of the offense, which by themselves were not proper factors for consideration under section 1170(e). The Attorney General concedes, "the trial court may not rely on the aggravated nature of [Laudenback's] crime in and of itself to find [him] unsuitable for release." On remand, the court must consider only section 1170(e)(2)'s criteria. (Loper, supra, 60 Cal.4th at p. 1161, fn. 3.)
DISPOSITION
The order is reversed. The trial court is ordered to conduct an expedited hearing to determine whether Laudenback's sentence should be recalled and he be granted compassionate release.
O'LEARY, P. J. WE CONCUR: IKOLA, J. GOETHALS, J.