Filed 1/24/19




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                        DIVISION THREE


 THE PEOPLE,

      Plaintiff and Respondent,                        G056696

          v.                                           (Super. Ct. No. 03NF1636)

 RAFAEL SERVIN,                                        OPINION

      Defendant and Appellant.



                  Appeal from a postjudgment order of the Superior Court of Orange County,
Richard M. King, Judge. Appeal abated and remanded with directions.
                  Rebecca P. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant.
                  Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and
Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
                                    *          *          *
                                      INTRODUCTION
              This is an appeal from a postjudgment order denying defendant Rafael
Servin a compassionate release from prison under Penal Code section 1170,
subdivision (e) (section 1170(e)). During the pendency of the appeal, defendant died.
The appellate proceedings are therefore abated. Nevertheless, we are filing this opinion
to make two points: (1) the statutory requirements and the standard of appellate review
explained in Martinez v. Board of Parole Hearings (2010) 183 Cal.App.4th 578 apply in
all cases under section 1170(e), whether the defendant or the People appeals; and (2) to
alert the Attorney General and the criminal defense bar to the necessity of immediately
advising the appellate court of the time exigency and the need for calendar preference in
compassionate release cases.


                                  PROCEDURAL HISTORY
              Defendant was convicted of murder and participation in a criminal street
gang, and gang and firearm allegations were found to be true. Defendant was sentenced
to life without the possibility of parole plus 25 years to life. Defendant, who was 16
years old at the time he murdered the victim, was resentenced pursuant to Miller v.
Alabama (2012) 567 U.S. 460.
              On May 22, 2018, the Secretary of the California Department of
Corrections and Rehabilitation (the Secretary) requested that the trial court recall
defendant’s sentence pursuant to section 1170(e), on the grounds defendant had less than
six months to live and no longer posed a threat to the community. The Secretary’s
request was supported by a diagnostic study and evaluation report and medical
evaluation.
              Following an evidentiary hearing, the court denied the section 1170(e)
request for compassionate release. The court explained its denial as follows:



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                “The question that the court is faced with is: Should the court under the
circumstances of this case exercise its discretion and allow the defendant to go home and
die with his family? That is really the issue here. And that’s the decision. [¶] . . . [¶]
                “There is no question from the record before me that the defendant has a
terminal illness. There is no question before me that the defendant has less than six
months to live as of the date of that letter.
                “The statement by the Department of Corrections that the defendant does
not pose a threat to public safety, as I indicated yesterday, the inference from that is
because of the defendant’s condition. [¶] . . . [¶]
                “What the court is faced with here is: Should the court through compassion
allow the defendant to go home and die surrounded by his family? When all is said and
done, that’s truly the case, that’s the issue before the court.
                “The ability, if that is even the correct word, to be able to be with your
family when you die, especially when you have a terminal illness, is something that we
all wish for.
                “Death is part of living. I don’t want to be cliché here, but everybody is
going to die, and the question is: When you do die, what are the circumstances?
                “There are lots of situations where individuals who are innocent do not get
to die with their family. It was mentioned yesterday about combat. People who defend
our country who die in combat do not get to die with their family around them.
                “A young person who is killed, even by an accident in an automobile
collision, does not get to die with their family around them.
                “And the victim in this case obviously did not get to die with his family
around him.
                “So the question for the court is: Should the court exercise its discretion
and allow compassion for this defendant to go home with his family? And the court at
this time will answer that question, ‘no.’

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              “This was a tragic case. This victim was basically assassinated. The
defendant, although [he] should be complimented on his journey to rehabilitation, but has
he earned the compassion in this court’s mind to be able to go home and to die with his
family? And the answer is no.
              “So for all of those reasons, at this time the court will deny the request to
recall the sentence under 1170 subsection (e).”
              Defendant filed a timely notice of appeal. During the pendency of this
appeal, defendant died. Defendant’s appointed appellate counsel, while acknowledging
the appeal was mooted by defendant’s death, asked this court to nevertheless issue an
opinion to address important questions of public policy and to give guidance to the trial
courts in future matters. “[I]f a pending case poses an issue of broad public interest that
is likely to recur, the court may exercise an inherent discretion to resolve that issue even
though an event occurring during its pendency would normally render the matter moot.”
(In re William M. (1970) 3 Cal.3d 16, 23.) We choose to address the issues raised herein
which pose an issue of broad public interest; the issues not addressed in this opinion are
deemed moot.


                                        DISCUSSION
              Section 1170(e), provides: “(1) Notwithstanding any other law and
consistent with paragraph (1) of subdivision (a), if the secretary [of the Department of
Corrections and Rehabilitation] 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.
              “(2) The court shall have the discretion to resentence or recall if the court
finds that the facts described in subparagraphs (A) and (B) . . . exist:




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              “(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. [¶] . . . [¶]
              “The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall to the court. This
subdivision does not apply to a prisoner sentenced to death or a term of life without the
possibility of parole.” (§ 1170, subd. (e)(1), (2).)
              “[A]lthough section 1170(e) authorizes the trial court to exercise discretion
whether to release a prisoner for compassionate reasons, the statute also establishes clear
eligibility criteria [citation], suggesting that discretion is not unfettered when evidence is
presented satisfying the statutory criteria.” (People v. Loper (2015) 60 Cal.4th 1155,
1161, fn. 3.) The proper standard of review is whether “some evidence” supports the
Secretary’s recommendation for compassionate release (Martinez v. Board of Parole
Hearings, supra, 183 Cal.App.4th at pp. 582-583, 593-594), and is “‘highly deferential’”
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to the Secretary’s factfinding (id. at p. 593).
              In considering a request for release of a defendant under section 1170(e),
the trial court must consider only the factors specified in that statute and must make
findings regarding those factors, with deference to the Secretary’s recommendation. In
this case, the trial court did not make a finding regarding defendant’s threat to public
safety. Instead, the court made findings regarding whether defendant deserved to be
released from prison, which is not a proper factor for consideration under


1
  The appellate court in Martinez was addressing the use of criteria that were not
specified in section 1170(e) by the Board of Parole Hearings rather than by the trial court.
The issue of the standard of review of the findings underlying the board’s
recommendation is the same here.

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section 1170(e). For understandable reasons, the trial court did not believe that defendant
deserved to be released, especially in light of the record and the statements by the
victim’s family at the resentencing hearing. However, the statute has two requirements;
the trial court needed to make findings on both, and not on other factors. Had defendant
not died during the pendency of these proceedings, based on the record, we would have
remanded this matter to the trial court to make findings on the statutory factors.
              Section 1170(e) is designed to ensure that the process of requesting a
compassionate release from prison is conducted expeditiously. The statute makes no
specific provisions for appeals of a trial court’s order, however. The California Supreme
Court has expressed its opinion that an appeal of the trial court’s order is preferable to a
petition for a writ of mandate. “[R]espondent argues that permitting defendant to appeal
the denial of compassionate release is contrary to the Legislature’s purpose of expediting
cases in which prisoners who meet the criteria for compassionate release can quickly be
released from custody. Respondent suggests prisoners should instead seek writ relief
because that avenue would more quickly resolve the case. We disagree: ‘A remedy by
immediate direct appeal is presumed to be adequate, and a party seeking review by
extraordinary writ bears the burden of demonstrating that appeal would not be an
adequate remedy under the particular circumstances of that case.’ [Citation.] While not
foreclosing the possibility of writ relief in all cases, we observe that prisoners remain free
to seek expedited processing of their appeal on a showing of good cause, as defendant did
in this case.” (People v. Loper, supra, 60 Cal.4th at p. 1167.)
              In order to ensure that such cases may be resolved fully and expeditiously,
we urge any party or counsel appealing from a trial court’s order under section 1170(e) to
advise the appellate court at the earliest possible time of the nature of the issues on appeal
and the date on which a medical professional determined the defendant had no more than
six months to live, and to seek calendar preference. (Cal. Rules of Court, rule 8.240.)



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                                       DISPOSITION
              The court having received and filed a certified copy of a certificate
evidencing the death of defendant Rafael Servin during the pendency of this appeal, all
proceedings in the case are permanently abated. (In re Jackson (1985) 39 Cal.3d 464,
480; In re Sodersten (2007) 146 Cal.App.4th 1163, 1218.) The cause is remanded to the
trial court with directions to enter an order permanently abating all proceedings with
respect to defendant Rafael Servin.




                                                 FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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